1. MUHAMMAD HALEEM, ACTG. C. J.-This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore, dated 11th of February, 1975, by which Constitutional Petition No. 723-R of 1972 was allowed and the order of the Settlement Commissioner, dated 17th of August, 1972, was quashed.
2. The dispute in this appeal relates to the transfer of property No. 79, known as Old Buxley Lodge, situate at Kuldana Road, Murree. It was auctioned on 24th of September, 1962, in favour of Mst.
3. Aisha Habibullah, who gave the highest bid of Rs. 1,58,000. She was ,the real sister of Khawaja Abdur Rauf Butt in whose favour she surrendered all her rights in the property. On 13th of July, 1964, the Deputy Settlement Commissioner served a notice on Abdur. Rauf Butt under paragraph 24 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to vacate the premises within 21 days as he had failed to pay its transfer price demanded earlier by notice dated 3rd of July, 1963. The second notice was served on him on 28th of December, 1965, again under paragraph 24 of the said Schedule and so also under paragraph 2 of Settlement Scheme No. VIII, requiring him to pay the transfer price amounting to Rs. 38,516 within 30 days failing which he would be ejected, his transfer documents cancelled, and the amount paid by him would be forfeited. The third notice was served on him on 22nd of April, 1971 and this time it required him to deposit Rs. 19,636'25 as this amount, adjusted from Compensation Book No. 181886-KYC/D/3402/5 was declared to be bogus by - the Deputy Settlement Commissioner, Karachi, by his order dated 11th of February, 1971. The period within which the amount was .Allowed to be deposited was 30 days and the notice purported to issue under Settlement Scheme No. VIII.
4. Abdur Rauf took no steps to have the order of the Deputy Settlement Commissioner, Karachi, set aside but sent a reply on 3rd of July, 1971, in which he requested for the extension of time for the payment of the above amount up til 31st of December, 1971, and also tendered a sum of Rs. 2,000 by cheque. However, before the disposal of this request, the Deputy Settlement Commissioner cancelled the transfer of the house on 16th of June, 1971, which was re-auctioned on 26th of July, 1971 and purchased by the first respondent for Rs. 36,000. The Deputy Settlement Commissioner; on 7th of August, 1971 intimated Abdur Rauf Butt that the transfer stood cancelled and the property re- auctioned ; and for this reason his request for extension of time was futile. He also returned the cheque: Abdur kauf Butt next fled an appeal before the Additional Settlement Commissioner against the orders dated 16th of June, 1971 and 26th of July, 1971, who passe4 a conditional order on 6th of November, 1971 allowing one month's time to Abdur Rauf to pay the amount, failing .Which the re- auction would stand. It seems that within, one- month of this order Abdur Rauf Butt died on 21st of November, 1971, without making the payment, The L. Rs., who are the appellants herein, also did not take any steps to deposit the amount within the specified time but filed a revision before the Settlement Commissioner who by order dated 17th of August, 1972, allowed them 4 months time to deposit the amount within which period the deposit was made.
5. Against this order the respondent filed Constitutional Petition No. 723-R of 1972 which was allowed ex parte on 18th of November, 1972. - A prayer for the review of the order was refused on 17th of June, 1975. In holding that the Settlement Commissioner had no power under paragraph 3-A of Settlement Scheme No. VIII to extend the time, the. High Court observed :- "The second argument, however, has considerable force. Paragraph 3-A of Settlement Scheme No. VIII authorises the Deputy Settlement Commissioner to allow a person against whom an order of resumption has been made to pay in lump sum the whole of the balance of transfer price payable by him if such an application is submitted within 30 days of the date of the order of cancellation.
6. The appellate authority has the power to allow the payment of the balance of transfer price within 90-days of the date of order of cancellation. This power can, however, be exercised only if no other person has applied for transfer of the property or the property has not been put to auction. The power of extending the period could not be exercised in this case in view of -the fact that the property had already been auctioned and that auction had been confirmed."
7. Leave to appeal was granted to consider the question as to whether in the face of paragraph 24 of the Schedule to the Act, paragraph 3-A of Settlement Scheme No. VIII could be pressed into service for setting aside the order of the learned Settlement Commissioner exercising _revisional jurisdiction.
8. If paragraph 24 of the Schedule was alone applicable, then on a plain reading of clauses (1) and
(2) of this paragraph, it was obvious that there was no limit of time for the deposit of the amount for the restoration of the property, cancelled earlier. But paragraph 3-A of Settlement Scheme No. VIII A denied the appellate authority from exercising this power within 90 days in case someone else had applied for its transfer or it had been put to auction. For a better appreciation of the situation it would be of advantage here to reproduce clauses (1) and (2) of paragraph 24 and so also paragraph 3-A of Settlement Scheme No. VIII, which are as under :-- "Para. 24.-(1) If any person to whom the benefit of payment by instal--ments has been granted under this Schedule fails to pay two consecutive instalments or does not pay the amount due from him in accordance with the terms and conditions on which any property has beentransferred to him the Chief Settlement Commissioner or an officer authorised by him in this behalf may give such person a notice to pay up the arrears _ within 30 days together with such penal interest as may be determined by the Chief Settlement Commissioner or such officer, failing which the transfer of the property to such person shall be liable to cancellation and he shall be liable to ejectment.
(2) Where the transfer of any property to a person is cancelled under sub-paragraph (1) the Chief Settlement Commissioner or the officer authorised by him in ibis behalf may by order restore the property to such person after the amount due from him has been paid with such penal interest as may be specified in the order.
9. Para. 3-A of Settlement Schedule No. VIII.-(I) Within thirty days of the date of the order of cancellation as aforesaid, the defaulter may apply to the Deputy Settlement Commissioner of the Additional Settlement Commissioner (Industries) as the case may be, to allow him to pay in lump sum the whole of the balance of transfer price payable by him. The aforementioned authorities may then allow him to pay it immediately if by then no other person has applied for the transfer of the same property nor has it been put to auction.
(2) The concerned appellate authority may allow the defaulter to pay the whole of the balance of transfer price payable by him in one lump sum within ninety days of the date of order of cancellation as aforesaid, if any, then no other person has applied for transfer of the same property nor has it been put to auction.
(3) When the defaulter makes full payment under sub-paragraph (1) or cub-paragraph (2) the order of the cancellation and any other order made will be withdrawn."
10. Settlement Scheme No. VIII was prepared under section 10(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by the Chief Settlement Commissioner which was approved by the Central Govern--ment. Subsection (1) of section 10 deals with the transfer or disposal of the property in the compensation pool in accordance with the provisions of the Schedule and subsection (3) concerns itself with the cancellation of transfer of properties in the event of default in the payment of the whole or a part of the price or public dues, restoration of such properties and the transfer of the resumed properties in accordance. With the Scheme prepared thereunder; and in spite of the opening words in subsection (3) such as "notwithstanding anything contained in subsection (1)" the effect is not to supersede the power of the Chief Settlement Commissioner under sub--section (1) but an additional power is given to prepare one or more schemes for the purposes mentioned in clauses (a). (b) and (c) of that subsection.
11. Accordingly, paragraph 3-A of Settlement Scheme No. VIII cannot be construed to efface paragraph 24 of the Schedule but is complimentary to it. Clause (1) of paragraph 24 and paragraph 2 of Settlement Scheme No. 8 are worded alil6e except for the provision in the former for the limit of 30 days for the deposit of the arrears of the price whereas no such period is mentioned in the latter but a detailed process is prescribed for the service of notice on the defaulter.
12. Additionally, the power to cancel the transfer of the property is provided in clause (1) of paragraph 24 and such like power is found in paragraph 3-A of Settlement Scheme No. VIII. Clause (2) of paragraph 24, however, prescribes no limit of time within which the property cancelled could be restored on the payment of the full amount. Clause (1) of paragraph 3-A, however, refers to the making of the application for restoration within 30 days of the order of cancellation and the Deputy Settlement Commissioner is empowered to allow the payment of price immediately provided no other person had applied for its transfer nor was it put to auction. Similarly, in clause (2) of paragraph 3-A, the appellate authority, which of course includes the revisional authority, is empowered to allow the payment of the balance in a lump sum within 90 days of the order of cancellation with the same restriction of an intervening interest as in clause (1). The provisions of paragraph 24 and paragraph 3-A more or less overlap each other except for the intervening interest which restricts the exercise of the power to restore the cancelled property. It is also obvious that paragraph 24 of the Schedule, being a part of the-Act, existed earlier to meet the contingency of non-payment of the transfer price and for cancellation and restoration of the property in case of failure to deposit the price of the property in a lump sum whereas Settlement Scheme No. VIII was enforced in November, 1965, and paragraph 3-A was introduced in 1966 for disposing of properties which hitherto before had not been transferred or which became available on resumption after the procedure laid down in paragraphs 3 and 3-A of the Scheme was complied with. During the interregnum, paragraph 24 was being pressed into service and in the absence of any express or implied bar in either of them as to their applicability, no exception could be taken if the Deputy Settlement Commissioner had pressed into service paragraph 3-A of Settlement Scheme No. VIII.
13. In the instant case Abdur Rauf Butt was required to deposit Rs. 19,636.25 which was the total of two instalments with a difference of about Rs. 1 but as this amount was not deposited, the transfer in his favour was cancelled by the Deputy Settlement Commissioner on 16th of June 1971. Within 30 days of the cancellation of the transfer as required by clause (1) of paragraph 3-A, Abdur Rauf Butt applied on 3rd of July, 1971, for extension of time but without deciding this application, the Deputy Settlement Commissioner re-auctioned the property on 26th of July, 1971. It is of significance to note that between 3rd of July, 1971 and 26th of July, 1971, this request could have been disposed of as during this interregnum no on had applied for its transfer nor the disputed property had been auctioned. The clog on the exercise of the power can .Only arise on a reading o clause (1) of paragraph 3-A if, before the filing of the application within the prescribed period of 30 days of the order of cancellation, an intervening interest comes into existence which is not the case here.
14. Accordingly, we are of the view that the auction could only follow the result of the application and till then it was not an available property on the same principle as that of lis pendens: Therefore, the first respondent could not be said to have acquired any vested right in the property by reason of its re-auction in his favour. This being the legal position, the revisional authority was free in terms of clause (2) of paragraph 3-A to grant an extension of 90 days for the payment of the. Price in a lump sum.
15. Here we may point out that the property was originally auctioned for Rs. 1,58,000 and the hasty manner in which it was put to re-auction and purchased for Rs. 36,343 shows that its subsequent disposal was not above board. However, in the order of the revisional authority, there is only the irregularity of allowing an additional 30 days for depositing the amount which in the context of the facts and circumstances of the case was allowed inadvertently and to this extent it exceeds the time limit of 90 days; but as it was in aid of justice to enable the appellants to deposit the amount for securing their vested rights which they had acquired under the first auction, it would not, by itself, reflect on the propriety of the exercise of the power as it was invoked in good faith, To interfere with it would be to perpetuate injustice as it would negate their vested rights in the property.
16. The High Court, while holding the restriction to have come in the way of the extension of time, did not apply its mind to this aspect of the case and declared the order of the Settlement Commissioner to be without lawful authority. Accordingly, we would set aside the impugned order and recall the writ.
17. The appeal is thus allowed with costs.