' This Constitutional Petition, filed by Mufti Amanullah and 65 others, is directed against the order, dated 12th April, 1980 passed by the Settlement Commissioner (Industries) Peshawar, Division Peshawar, whereby he refused to cancel the unrestricted public auction held, on 31st January, 1963 and approved by the Chief Settlement Commissioner, West Pakistan, on 15th April, 1963 in respect of an Evacuee Big Mansion, known as Kawatra Building, situated on Arbab Road, Peshawar Cantt. It is prayed in this petition that the said order of the Settlement Commissioner (Industries) and all actions taken by the Authorities pursuant thereto being without lawful authority and of no legal effect, may be so declared. It is further prayed that an appropriate direction be made that the Deputy Settlement Commissioner concerned, with whom each one of the petitioners has allegedly filed claim on prescribed form for the transfer in his favour of the unit in his possession out of the said building, may be allowed by the Authorities above him to proceed freely in determining each claim.
2. Prior to the partition of the Sub-Continent, the Kawatra Building, as it used to be then called, was owned by non-Muslims, who on partition migrated to India. This building consisting of 38 houses and 36 shops, which were occupied' by various persons, thus, became an evacuee property and was declared by the Chief Settlement Commissioner for the purpose of disposal, to be a Big Mansion. It was accordingly disposed of by an unrestricted public auction, which was held, on 31st January, 1963 by an Auction Committee constituted for the purpose. Against the reserve price of Rs, 5,72,850 this building fetched, at auction, Rs, 15,05,000 as the highest bid which was jointly given by Major Muhammad Rafique, Major (now Brig. Rtd.) Faqir Muhammad Khan and Mr. Ghulam Sarwar.
As was required by paragraph 9 of Settlement Scheme No, III, the auction proceedings were submitted to the Chief Settlement Commissioner, after completion of necessary formalities and after receiving payment of 25 per cent of the transfer price in the shape of claims. Compensation Books through Association Deeds, for acceptance. The aforesaid joint bid was accepted by the Chief Settlement Commissioner, Lahore, on 11th April, 1963 intimation whereof was sent to the bidders on 15th April, 1964.
3. While the finalisation of the case of transfer was pending and the entire transfer price was yet to be paid, a change amongst the bidders came into being in that Mr. Ghulam Sarwar Khan and Major Faqir Muhammad Khan each surrendered half of his share in favour of Mst. Qamar Sultana.
Later, Mr. Ghulam Sarwar Khan, by surrendering his remaining half share in favour of Major Muhammad Rafique, totally served his connections with the building. The transfers so made ultimately left the persons noted below to possess the shares noted against each :
(1) Major Muhammad Rafique Khan
(2) Mst. Qamar Sultana
(3) Major (now Brig. Retd.) Faqir Muhammad Khan ...
4. Since all the bidders were locals, the entire bid money was to be paid by them within thirty days of the date of receipt of the intimation of acceptance of their bid by the Chief Settlement Commissioner. The intimation of acceptance could be delivered to the successful bidders by hand or by registered post, as provided in paragraph 11 of the Terms and Conditions of Auction of Big Mansions and Hostels, and as in this case the successful bidders were living away from the Headquarters of the Chief Settlement Commissioner, the intimation of acceptance was naturally sent to them by registered post, the receipt whereof by them was deemed after the expiry of three days after its despatch, as provided in paragraph 12 of the said Terms and Conditions.
5. It appears that the bidders were not able to deposit the entire bid money within the prescribed period of thirty days from the date of receipt of the intimation of acceptance. They, therefore, applied for the extension of the period for making payment of the bid money. The Chief Settlement Commissioner extended the period of payment upto three months, which period was further extended upto 11th April, 1964 by the Government of Pakistan. The whole of the transfer price could not be deposited by the bidders upto the extended date. They, therefore, made another request to the Chief Settlement Commissioner for the extension of the period of deposit which was allowed and the date upto which the deposit could be made was extended to 11th July, 1964. Failure was still there, so another request was made by the bidders to the Chief Settlement Commissioner for the extension of the period, which was also allowed and the period extended upto 31st August, 1964.
This detail is available in the notice (Annexure 'A' to this writ petition), dated 28th December, 1964 issued by the Additional Settlement Commissioner Industrial to the bidders whereby they were directed to pay the entire outstanding bid money within seven days of the receipt of that notice.
The bidders were also informed through the same notice that if they failed to pay the entire outstanding bid money, the auction in their favour "will be cancelled with attendant penalties'. The Annexure 'A' to the judgment order, however, shows that even after the said notice the bidders had continued tendering Compensation Books of various amounts for adjustment against the transfer price and this process continued upto 29th December, 1966 on which date, as mentioned in the said annexure, the value of the Compensation Books and the each amount tendered by the bidders stood at Rs, 15,85,119.70.
6. The matter of verification of the Compensation Books through Association Deeds presented difficulty and for that reason the finalisation of the case lingered on. After the break-up of One-Unit the Settlement Authorities of this. Province took cognizance of the matter. Many notices were issued to the bidders for the payment of the outstanding bid money, the last of the series being the one issued on the 4th April, 1973 by the Additional Settlement and Rehabilitation Commissioner (Industries) N.-W. F. P. In that notice the amount tendered through Compensation Books and admitted to have been adjusted towards the auction price was shown to be Rs, 4,93,755 and the bidders were accordingly directed to remit the balance of Rs, 10,11,245 within seven days of the receipt of that notice. The admitted amount mentioned in that notice was probably the one respecting which some out of many Compensation Books tendered by the bidders had by then been verified. Aggrieved by that notice, the bidders took up the matter with the Chief Settlement Commissioner, N.-W. F. P. Who, by his detailed order, dated 15th September, 1973 directed the Additional Settlement Commissioner to carry out immediate verification of the Compensation Books already tendered by the bidders and if need be, to permit the auction-purchasers to make extra payment towards the bid money.
7. Action was then intimated by the Additional Settlement Commissioner in compliance with the aforesaid order of the Chief Settlement Commissioner. During the progress of that action, however, another development took place and that is that the Chief Settlement Commissioner vide letter No, 3884/PB/BOR/NWFP, dated 13th December, 1975 informed the lower Authorities that the Chief Minister was pleased to order that since the bidders or their successors-in-interest had not fulfilled the Terms and Conditions of the auction and had not deposited the entire bid money, the property involved should be excluded from the list of Big Mansions and should be disposed of by allotting each unit to the sitting tenant in due course of law under Scheme No, VIII then in vogue.
8. The Settlement Commissioner (Industries) accordingly issued a notice, on 17th June, 1976 to the bidders to show cause as to why auction in their favour should not be cancelled and the property resumed for fresh disposal. It would be of advantage to reproduce below the said notice.
"Whereas you were served with the Notices No, 1062/ASC/Acctt/ Ind/ Adj, dated 23rd July, 1971 No, 3531/ASRC/72, dated 23rd October, 1972 No, 3532/ASRC/Ind, dated 24th October, 1972, No, 5040/ASRC1IND/72, dated 18th December, 1972, No, 262/AS & RC, dated 9th February, 1973 and No, 918/AS & RC/73, dated 4th April, 1973 in respect of the above-mentioned property for which you had offered a sum of Rs, 15,05,000, payable by you within 30 days from the date of intimation of confirmation of auction of the property in your favour i. e. On 15th April, 1963.
(2) And whereas you have failed to comply with the directions contained in the said notices so far, which inter alia required you : ' To produce original/certified copies of verification order by the Claim Officer/Deputy Claim Commissioner/Additional Claim Commissioner/ Claim Commissioner with Compensation Books and powers-of-attorney before the Officer Incharge Claim Record Office, Karachi and the Additional Settlement Commissioner and Rehabilitation Commissioner/Settlement Commissioner Industries/Chief Settlement Commissioner, N.-W. F. P. To enable this office to verify the bona fides of the incomplete Association Deeds, which you had filed to be accounted towards the price of the property. And whereas the bona fides of the incomplete Association Books valuing Rs, 3,00,000 (at present in the custody of the Enforcement Police) could not be established for the last 10 years. You are hereby served with this final show-cause notice as to why :
(a) The incomplete association Deeds involving Rs, 10,11,245 (ten lac eleven thousand two hundred and forty-five only) be not treated invalid and rejected straightaway.
(b) The auction of the property be not cancelled from your name.
(c) The property be resumed for fresh disposal. Your reply should reach this office within 15 days of the receipt of this notice failing which ex parte proceedings will be taken in the case."
' This notice was replied to by the bidders, who simultaneously filed a writ petition in the High Court where they succeeded in obtaining on 27th August, 1976 a interim status quo order, which somehow or other appears to have continued till the writ petition was finally disposed of by the Court, on 7th May, 1980. In that writ petition the High Court on 19th December, 1979 made an interim order in the following terms :- "(1) The Department has accepted that a sum of Rs, 5,46,987.70 has been received by them and adjusted on the basis of Compensation Books. They have also admitted the receipt of Rs, 1,00,000 as cash. Apart from that they admit that C. Bs. Of Rs, 6,32,916 has been verified but the adjustment has not been made in view of the writ petition. In respect of the Compensation Books of Rs, 5,74,724 it is stated that Compensation Books relating to this amount though verified, the amount thereof has not been adjusted as such a course would have been contrary to the instructions contained in letter of 27th March, 1964.
(2) To resolve the controversy and to reduce the limit of time for final disposal of the matter, the learned counsel has shown his readiness to pay in cash a sum of Rs, 2.70,113 about which the Department is not sure. This amount should be paid within a period of thirty days by the petitioners.
After the receipt of this amount the Settlement Commissioner notwithstanding any interim status quo order of this Court may make a tentative decision whether the transfer of the property in favour of the petitioners is to be finalized by issuance of transfer order. If he comes to the decision that the petitioners are entitled to the transfer then the present writ petition would become infructuous. If the tentative decision is to the contrary then the writ petition shall proceed. The Settlement Commissioner should communicate the tentative decision to this Court within three months of the date of the deposit of the amount of Rs, 2,70,113 by the petitioners if done within thirty days.
(3) As regards the uncertainty about Rs, 5,74,724 the Settlement Commissioner should give an opportunity to the petitioners to explain the same and if he is satisfied about the genuineness of the Compensation Books then the cash deposit by the petitioners shall be refunded to them and the amount of the Compensation Books adjusted against the transfer price.
(4) A copy of this order should be handed over to the petitioners, to the counsel for the Department and to the counsel for newly-added respondents. One copy of the order should be sent directly to the Settlement Commissioner.
(5) The replies of the Settlement Commissioner and the Chief Settlement Commissioner have been received and placed on record."
9. Pursuant to the directions given by the High Court in the interim order aforesaid, the petitioners deposited in cash, on 9th January, 1980 the amount of Rs, 2,70,113 towards the payment of auction price. Thereafter the Settlement Commissioner (Industries) proceeded to make a tentative decision whether or not the transfer of the property in favour of the bidders could be finalised by issuance of transfer documents, as was directed by the High Court in the interim order aforesaid.
This exercise was completed by him after hearing the bidders, the sitting tenants, who had already become party to the proceedings before him and the High Court, and their learned counsel. He finally announced his orders on 12th April, 1980, whereby he refused to set aside the auction proceedings concluded in the year 1963 with the approval of the Chief Settlement Commissioner. In the last paragraph of his orders, however, the Settlement Commissioner (Industries), despite the fact that the Central Record Office, Karachi had certified vide letter No, SC(CRO)/Claims/80-182- 183, dated 19th February, 1980 that the Compensation Books were correct and were certified with the original record lying in that office, directed that the matter of certification would be examined in due course to make sure that was conveyed by the Central Record Office, Karachi through their letter aforesaid, was correct according to record.
10. It appears that the bidders were satisfied with the aforesaid order of the Settlement Commissioner (Industries), who in consequence appeared before the High Court on 7th May, 1980 and made a statement that in the light of the said order they had no intention to continue with their writ petition as in fact it had become infructuous. Their writ petition was accordingly disposed of on the said date as having become infructuous.
11. The aforesaid order of the Settlement Commissioner has, however, aggrieved the sitting tenants who have filed this constitutional petition calling in question the said order and all further actions taken by the Authorities pursuant thereto. The main grounds taken up in the writ petition, briefly stated, are that the disputed property having been disposed of by unrestricted public auction under Settlement Scheme No, III and all the bidders being locals, they, in view of paragraph 12 of Terms and Conditions of Auction relating to the said Scheme, were to pay the whole of the bid money within thirty days of the date of receipt of the intimation of acceptance, that the bidders after having failed to deposit the entire bid money of the prescribed date applied for the extension of the date which was granted but they failed to deposit the bid money even by the extended date, that as a result of the default made by the bidders in the payment of the entire auction price by the specified or the extended date to rights acquired by them at the auction stood extinguished by the operation of paragraph 22 of the Terms and Conditions of Auction forming part of the Settlement Scheme No, III, that no notice or further action for extinguishment of such rights was necessary to be given or taken by any authority, nor was necessary to be passed any formal order to that effect, that all subsequent actions taken by the Settlement Authorities in issuing notices of cancellation to the bidders and for treating the whole case pending at the time of the repeal of the Settlement Laws were all illegal and void ab initio, and what was, in fact, pending was the transfer of the various units of the building, comprising the houses and the shops, to the persons who were in occupation thereof and had already applied to the Settlement Authorities for their transfer in their favour.
12. The bidders have contested this petition on factual as well as legal grounds, the main being that the petitioners were not the "aggrieved persons", that they had no locus standi to claim transfer of various units of the property in their favour, that the disputed property already stood finally transferred in favour of the bidders and was thus not an 'available property' and could not, therefore, be transferred under the reconstituted Settlement Scheme No, VIII, that the entire bid money was deposited by bidders, with the approval of the Settlement Authorities, by tendering cash amount and Compensation Books before the close of the year 1966 and for that reason the auction was not cancelled by the Settlement Authorities, and that the impugned order of the Settlement Commissioner (Industries) being fair, just and equitable, into the circumstances of the case, did not require interference. The averments made in the writ petition were also controverted by the Settlement Commissioner (Industries) and the Government of the North-West Frontier Province, who are respondents 1 and 2 herein.
13. Major Ishaq Muhammad Khan, Advocate appeared on behalf of petitioner Khawaja Nazir Ahmad, Advocate appeared on behalf of the respondents 1 and 2 and Sardar Muhammad Iqbal, Advocate, assisted by Mr. Sardar Khan, Advocate, appeared on behalf of the respondents 3 to 5.
The learned counsel for the parties addressed lengthy arguments. Several decided cases have also been cited from both the sides. They are : PLD 1975 SC 58, 1972 SC M 8.359. PLD 1978 Kar. 100, PLD 1982 SC 412, PLD 1973 SC 236, 'PLD 1979 Lah. 330, PLD 1978 SC 89, PLD 1962 Lab. 217, PLD 1976 SC 208 and 410, PLD 1969 SC 223, 1980 SCM R 921, PLD 1982 SC 272, 1978 SCMR 367, PLD 1963 Pesh.
85. PLD 1973 Lah.
345. 1970 SCMR 542, 1974 SCMR 337, PLD 1963 Lah. 436, 1974 SCMR 352, 1979 SCMR 287, PLD 1979 Pesh. 56, PLD 1971 SC 252, PLD 1971 SC 438, PLD 1968 SC 362, 1978 SCMR 367, 1982 SCMR 1038, PLD 1974 Lab. 370, 1968 SCMR 1207, 1968 SCMR 1316, 1969 SCM R 110, 1976 SCMR 8 and 118,PLD 1978 SC 273,1980 SCMR 792 and 827, 1972 SCMR 62, 1974 SC MR 337, 1975 SCMR 24 and 33, NLR 1980 (Civil)
Lah. 605, PLD 1975 Lah. 825 and PLD 1982 SC 413.
14. Before the learned counsel for the petitioners could open his case, the learned counsel for the respondents 3 to 5 raised a preliminary objection as to the maintainability of the writ petition. His argument was that the disputed property had stood finally transferred by public auction, duly confirmed by the then Chief Settlement Commissioner, as was required by the Terms and Conditions of Auction relevant in the context, much earlier than the coming into operation of the Settlement Scheme No, VIII and as such, on the commencement of the Settlement Scheme No, VIII, and thereafter, it was not an 'available property' within the meaning of the expression used in the said Scheme, especially when, as the record would show, the auction bidders had long ago deposited the entire bid money with the Settlement and Rehabilitation Authorities in the form of cash amount and Compensation Books. He further argued that as soon as the offer of the bid was accepted by the Chief Settlement Commissioner and the acceptance was conveyed to the bidders, a contract of sale between the parties had come into being, subject only to the rights and obligations of each party as mentioned in the relevant law of the Terms and Conditions of Auction.
In such circumstances, the learned counsel argued, since the disputed property was not an 'available property' and since it had already stood finally transferred in favour of the auction bidders and concluded contract of sale between the parties had come into being, the petitioners, or for that matter those who were in possession of various units of the disputed property. Had no locus standi to question the transfer in favour of the auction bidders or to ask for the transfer of various units of such property in their favour.
15. The learned counsel for the petitioners, replying to the preliminary objection, argued that the whole case of the petitioners was that the auction held in favour of the auction bidders had come to an end by operation of law in the year 1963, or at the most in the year 1964, no matter no order to that effect was passed by any authority, as it was not necessary, and that thereafter the rights which the bidders had acquired at the auction did not subsist when they made default in the payment of auction price within the specified or the extended period and the property thus became available for re-auction or re-disposal in accordance with law. He submitted that the preliminary objection raised by the learned counsel for the respondents 3 to 5 could not be decided until the whole case of the petitioners was heard.
16. After considering the arguments of the learned counsel for the parties on the prelimniary objection, I was of the view that this objection, though appearing to be of a preliminary nature, constituted the main defence of the respondents 3 to 5. For its decision, therefore, it was necessary to deal with the full case of the parties on merits. This objection could not, therefore, be decided as a preliminary objection and has been dealt with at appropriate place while dealing with the case of the parties on merits.
17. The main arguments of the learned counsel for the petitioners were that the Kawatara-building was disposed of as a 'Big Mansion' by an unrestricted public auction under Settlement Scheme No, III. The respondents 3 to 5 had bid for the property and were successful in offering the highest bid.
Their bid was accepted by the Chief Settlement Commissioner and the intimation of acceptance was issued to them by the registered post which they had received on 15th April, 1963. Since the bidders were locals, they, under paragraph 12 of the Terms and Conditions of Auction under Settlement Scheme No, III, were required to pay the whole bid money within thirty days of the receipt of the intimation of acceptance. They, however, failed to pay the amount by the due date and applied to the Chief Settlement Commissioner for the extension of period of payment. This extension, under paragraph 25 of the Schedule to the relevant Act, could have been granted by the Chief Settlement Commissioner for a period not exceeding three months. In this case, however, the time was extended on many occasions beyond the prescribed period of three months, which was against the statutory provisions. The total period within which the whole of the bid money could have been deposited by the bidders, being locals, was four months from the date of the receipt of the intimation of acceptance, which had expired, on 15th August, 1963. The bidders had failed to pay the total bid money upto that date and their rights in the property, therefore, extinguished automatically under paragraph 22 of the Terms and Conditions of Auction and no formal order for the purpose was necessary to be passed by any authority. After such automatic extinguishment of rights the disputed property could have been put to re-auction or could have been disposed of in accordance with law. This was, however, illegally not done. The notices issued from time to time by the Settlement Authorities were unwarranted by law and could in no manner change the status of the property which by operation of law had become open for re-disposal, nor could such notices revive the extinguished rights of the bidders. Since the petitioners continued in undisturbed possession of the units in their possession, they, upon the enforcement of the re-constituted Settlement Scheme No, VIII, became entitled to the transfer of the units which they were possessing, for which they had already filed applications on the prescribed forms. The learned counsel for the petitioners also urged that if the Settlement Authorities had failed to notice the correct provisions of law, then it was the duty of the Court to discover the correct law and apply it to the case before it. He further argued that since the auction-rights of the respondents 3 to 5 had come to an end by operation of law in the year 1963, or at the most in the year 1964, there was no case pending disposal at the time of the repeal of the Evacuee Laws and for that reason the Settlement Commissioner (Industries) had no jurisdiction to take cognizance of the case, nor could, for that matter, any higher Authority confer upon him, by sending to him an application or a case for disposal, the jurisdiction which in law he did not possess. For all these reasons, the learned counsel contended that the impugned order was without lawful authority and of no legal consequence.
18. The learned counsel for the respondents 3 to 5 contended that the grounds now argued before this Court that the Chief Settlement Commissioner had no authority to extend the period for the payment of the bid money beyond a period of three months and that the rights acquired by the bidders at auction which was approved by the Chief Settlement Commissioner, in consequence whereof a contract for a sale between the parties had come into being the moment the intimation of acceptance was received by the bidders, had come to an automatic end without any action having been taken or an order having been made for its cancellation or for the resumption of the property, and that the property, on account of automatic extinguishment of the rights of the bidders, had become available for re-disposal, were the grounds which were not urged by the petitioners before the Settlement Commissioner, whose order is impugned herein, or otherwise the Settlement Commissioner would have in his order referred to all these points. He contended that for that reason these grounds, having not been agitated before the Special Tribunal, could not be agitated before this Court in Constitutional jurisdiction. The learned counsel further contended that it was wrong to suggest that paragraph 22 of the Terms and Conditions of Auction was intended to have or had the effect of bringing to an automatic end the rights acquired by the bidders after their bid was accepted by the competent Authority and the acceptance was conveyed to the bidders. He argued that as a result of offer made and the bid accepted by the persons who were legally competent to enter into a contract for the transfer of the disputed property, a binding contract had come into existence and such contract, when the substantial portion of the bid money had been paid by the bidders after the receipt of the intimation of acceptance, could not come to an automatic end unless for its cancellation resort was had to paragraph 24 of the Schedule, or to Chapter II of the Settlement Scheme No, VIII which had come into operation. He further contended that even otherwise it was a well-settled principle of law that before penalising a person he must be heard and afforded an opportunity to show cause against the action proposed to be taken with respect to him. This principle, the learned counsel argued, has to be read in every statute and in every instrument having the force of law where nothing to the contrary was expressly or impliedly provided in that statute or in that instrument, as was the case here. The learned counsel further argued that according to Settlement Scheme No, VIII, before cancelling the transfer of the property or before ordering its resumption, the specified Authority had to issue demand notice to the transferors requiring them to pay the whole of the outstanding amount. This procedure provided in the said Scheme by its tenor knocked down the bottom of the idea of automatic termination of the rights of the successful bidders. The learned counsel for the respondents 3 to 5 also argued that the Chief Settlement Commissioner and the Central (Federal)
Government duly possessed the powers to extend to any limit the period for making payment of the outstanding auction price. In this regard he relied on para. 16-A of the Schedule and section 9 of the relevant Act (since repealed). He contended that since there was no automatic termination of the rights acquired by the bidders at the duly accepted auction and since they had as early as the year 1965 made payment of the entire auction price and since no specific order for the cancellation of the transfer or for the resumption of the disputed property was passed by any Authority, the auction finalised in the year 1963 in favour of the bidders subsisted and the disputed property could not, therefore, be called an 'available property' so that it could be disposed of under Settlement Scheme No, VIII, He contended that the petitioners, therefore, had no locus standi to ask for the transfer of the units of the disputed building in their favour. He also argued that only some of the petitioners did make application for such transfer and that also in the year 1974 when the disputed property was not an 'available property' within the meaning of the Settlement Scheme No, VIII as re-constituted. The learned counsel argued that the. Settlement Commissioner (Industries) has, after going through the record, reached the conclusion that the bidders had earlier than the close of the year 1966 deposited the entire bid money and such conclusion being that of fact could not be put to scrutiny by the High Court in writ jurisdiction. In any case, the learned counsel contended, the impugned order of the Settlement Commissioner (Industries) being fair, just and equitable may not be interfered with in jurisdiction, as such jurisdiction can only be exercised to do justice to the parties and not to perpetuate injustice. He maintained that it would have been highly unjust if the respondents 3 to 5, who had paid huge bid money in the year 1966, had not been deprived of their valuable property merely because some of the Compensation Books could not have been got verified by the Settlement Authorities earlier, for which the respondents 3 to 5 could not have been blamed.
19. Before dealing with the arguments of the learned counsel for the petitioners, I would first like to dispose of the objection raised by the learned counsel for the respondents 3 to 5 that the grounds now being agitated here were not taken up by the petitioners before the Settlement Commissioner (Industries), whose order is impugned herein. These grounds have been specified in the beginning of para. 18 of this judgment in clear terms and need not be repeated here. These grounds have been pressed before me and in fact constituted the main grounds on which the petitioners' case rested. Before the Settlement Commissioner (Industries) who had passed the impugned order, the parties were represented by their counsel, who had also filed written arguments, besides personally addressing the Special Tribunal. The Settlement Commissioner (Industries) has in the impugned order also reference to the written arguments filed by the learned counsel for the parties. In the written arguments filed by the sitting tenants, who are petitioners herein, all the grounds respecting which the learned counsel for the respondents 3 to 5 has now raised objection were mentioned and relied upon. It is another thing that the Settlement Commissioner (Industries) in the impugned order did not advert to those grounds and by this it cannot be said that the grounds mentioned in the written arguments were not pressed. In my view, where the Court or a Tribunal asks for written arguments, or where written arguments are supplied by the parties or their counsel themselves, then those written arguments become part of the record and the Court or the Tribunal concerned has to address itself to all the points raised therein, unless the parties or their counsel appearing before the Court or the Tribunal later specifically say that all or any of A the points raised by them in the written arguments were not pressed, or the Court or the Tribunal for good reasons considers it unnecessary to discuss them and makes in the order a special note to that effect. There was not a word in the impugned order to show that the points raised by the petitioners herein in the written arguments filed by their learned counsel before the Settlement Commissioner (Industries) were not pressed by him before the Special Tribunal. There was, therefore, no substance in this objection raised by the learned counsel for the respondents 3 to 5.
20. It was not disputed by any of the parties that there was no specific order on the file respecting cancellation of the transfer of the property to the auction-bidders and resumption thereof. The case of the petitioners, if I am permitted to say at the cost of repetition, was that since the auction- bidders had failed to deposit the entire bid money within the specified or the extended period, the rights acquired by them stood automatically extinguished on the expiry of the extended period and the property thereafter became available for re-auction or re-disposal in accordance with law. The learned counsel for the petitioners, while so advancing the case of the petitioners, relied on paragraph 22 of the Terms and Conditions of Auction which formed part of the Settlement Scheme No, III. The decision of the case, therefore, rests on the interpretation which may be placed on the language employed in paragraph 22 of the said Terms and. Conditions, The learned counsel for the petitioners laid stress on the words 'will be extinguished'. As used in the said paragraph, and argued that these words clearly indicated that where the purchaser made default in the payment of the entire purchase-money, his rights in the property stood automatically extinguished on the expiry of the specified or, as the case may be, the extended period, and no formal order to that effect was necessary to be passed, nor any action towards that end required to be taken, by any Authority. He contended that the words 'will be extinguished' used in paragraph 22 were the words of automatic operation and for that reason the legal consequence would flow from the very default made by the purchasers and not from any order passed or action taken for the cancellation of the transfer or the resumption of the property involved. He also argued that the words 'will be extinguished' could be equated with the words `shall be struck off' and since the words 'shall be struck off' have been interpreted by the Supreme Court in Shamroz Khan's case as the words of automatic operation, the words 'will be extinguished' used in para. 22 were also to be given the same meaning. He, therefore, contended that no matter the Settlement Authorities did not make any order for the cancellation of the transfer of the property to respondents 3 to 5 or for resumption thereof, the rights of the purchasers at auction had come to an end the moment the default was made by them. According to him, payment could have been made by the bidders, as of right, within 30 days after the receipt of the intimation of acceptance and then, as of concession, within further three months, the extended date, as according to the learned counsel even the Chief Settlement Commissioner had no powers to grant extension beyond three months, as provided in paragraph 25 of the Schedule to the relevant Act. In this regard the learned counsel relied on PLD 1962 (W.P.) Lah.217.
21. Before determining the issue raised in the above paragraph, it would be useful to refer to Annexure 'A' to the impugned order wherein the details of the amount deposited by the auction- purchasers on various dates, either in cash or in the form of Compensation Books, have been given.
This annexure has been prepared by the Settlement Commissioner (Industries) after scrutiny of the record lying in his office and elsewhere and the entries therein have to be accepted as they relate to facts and the High Court in writ jurisdiction cannot enter upon enquiry regarding facts or regarding correctness or otherwise of those entries, which do not on the face of record appear to be incorrect, nor have been so challenged. The perusal of this annexure would show that the deposit made by the bidders, towards the payment of bid-money was in the form of cash and Compensation Books and upto 16th July, 1964 the amount deposited by them stood at Rs, ,23,962.
According to the petitioners' case stated in this petition, the final extension granted by the Chief Settlement Commissioner expired, on 31st August, 1964, and by that date, therefore, the amount tendered by the auction-bidders, as already said, stood at Rs, 5,23,962. The amount surrendered1 from the Compensation Books was, however, subject to verification which was to be done by the Departmental Authorities. It was, therefore, clear that upto 31st August, 1964 a substantial amount, exceeding l/3rd of the bid-money, had been tendered by the auction-bidders. This annexure would further show that even though there was no specific order on the file for the extension of the period for payment, not the Settlement Authorities had been allowing the auction purchasers to tender Compensation Books of various values towards the payment of the bid-money and upto 29th December, 1966 the amount so tendered, in the form of cash and Compensation Books stood at Rs, 15,85,119.70, Which was more than the bid-money.
22. Reverting to the real controversy, the words 'will be extinguished', used in paragraph 22 of the Terms and Conditions of Auction of Settlement Scheme No, HI, in my view, were not the words of automatic operation. These words were used to convey the intention that wherein a case the extinguishment of the rights of the purchaser was desired, it would be necessary for the competent Authority to pass a specific order to that effect, without which there would be no automatic extinguishment of such rights. c I must here mention that none of the authorities cited at the Bar related to the interpretation of these words. The words of similar import were also used in the same Terms and Conditions at many places, such as, words 'the notice of demand will ordinarily be served', used in paragraph 16, the words 'will be refunded' and 'will be adjusted', used in subparagraphs (a) and (b) of paragraph 17, the word 'will be given', used in paragraph 18, the words 'will be permanently transferred' and 'will be provisionally transferred', used in sub-paras. (a) and (b) of paragraph 19, and the words 'will be forfeited' used in sub-paras. (1) and (2) of paragraph 21, and all these words clearly meant that in order to achieve the result thereby intended, an action was necessary to be taken or an order was necessary to be passed by the competent authority. Similar could be the intention of the law-maker while using the words be extinguished" in paragraph 22 of the Terms and Conditions, and this interpretation would be in line with the settled rule that in the same law or instrument the words of similar import are used to convey similar intention. Similarly, in the same paragraph 22, after the words 'will be extinguished' the words 'he will be dispossessed of the property' were also used which clearly meant that further action, in order to bring into being the result sought to be achieved, was required to be taken by the competent Authority. In the same Terms and Conditions, paragraph 16 talked about the 'notice of demand', which could be served on the authorised agent of the joint purchasers of the property or any one of them. This 'notice of demand' could only be issued where a default was made by the purchasers and there could be no default by the purchasers if the payment was made within the prescribed period or the extended period. So the 'notice of demand' mentioned in paragraph 16 was meant for the purchasers who were found to be defaulting after the expiry of the prescribed or the extended period. This provision in the same Terms and Conditions clearly defeated the argument of the learned counsel for the petitioners that the words "will be extinguished" used in paragraph 22 brought to an automatic end the right of the defaulting purchasers the moment the original or the extended period expired. Further, paragraph 23 of the relevant Terms and Conditions provided for the restoration of the property to the purchaser after he was dispossessed therefrom under paragraph 22: If a local purchaser was involved, then he could only be put into possession of the property after making payment of the full price, as specified in paragraph 18 of the said Terms and Conditions. Obviously, such a purchaser could not fall within the purview of paragraph 23, as having paid the entire price he could not have been dispossessed under paragraph 22. There could, however, be a purchaser who may not have paid the full price of the property and yet be in possession thereof, either having already been in possession before its auction in his favour or having obtained in thereafter but before making payment of the full price. He could also be a local or a non-local. If action with respect to him was taken under paragraph 22 and he was also dispossessed of the property, being a defaulter, he could approach the Chief Settlement Commissioner within sixty days of his dispossession and regain the property on payment of the amount mentioned in the said paragraph, no matter his dispossession may have happened after years of making of default because paragraph 23 was silent about the period of default preceding dispossession. If such a defaulter was provided with the remedy in the same Scheme, I fail to understand why a defaulter who was not in possession of the property, would not be having any remedy and would even be denied a chance of hearing, by not serving upon him the `notice of demand', before his rights in the property were extinguished ? This would clearly result in uncalled for discrimination, which could not have been the intention of the law-maker. Again where the earnest money was required to be forfeited under paragraph 21 of the same Terms and Conditions then a prior notice was a must, as provided in paragraph 24 of the Schedule, but if a higher penalty of the extinguishment of the rights of the purchaser was to be imposed, then could it be believed that it was intended that no prior notice to show cause was necessary.
23. For the reasons aforesaid, I do not agree with the learned counsel for the petitioners that the words "will be extinguished" used in paragraph 22 bad the effect of automatic extinguishment of the rights of the, respondents 3 to 5 in the property. In my view, without specific order by the competent Authority to that effect, which should have been preceded by show-cause notice, the rights acquired by the auction-purchasers could not come to an end. Although not cited at the Bar, I am fortified in this view by the decision of the Supreme Court in Shah Walt's case, where the words "will be dismissed" received interpretation as being not the words of automatic operation.
The observations of the Supreme Court in Shamroz Khan's case cited by the learned counsel for the petitioners, where not attracted to this case because the interpretation of the words "shall be struck off" was not directly involved in the case, nor was in issue in that case the point whether or not an order for striking off the defence was necessary to be passed by the authority concerned. In my humble view, even in presence of the words "shall be struck off" in section 13 (6) of the West Pakistan Reis Restriction Ordinance, it would be necessary to make an order for strikin off defence, or otherwise the proceedings would continue and would no F come to an automatic end. There may even arise cases under section 13 (6) in which dispute default, defence, for good reasons, may not be struck off. 1981 S CM R 326 and 1983 SCMR 1073 are authorities on the point. I fully agree with the learned counsel for the respondents 3 to that before taking action under paragraph 22 it was necessary for the Settlement Authorities to have issued notice to the defaulters (if the respondents 3 to 5 could be so-called), and the rights acquired by the auction-purchasers could only come to an end when a specific order to that effect was passe by the competent Authority. I also agree with him that the provisions o Chapter II of the Settlement Scheme No, VIII, which was brought into operation in the year 1965, were also applicable to this case and since no order for the cancellation of the auction was ever made by the competent Authority in this case, the rights of the auction- purchasers did not come to an end and were subsisting at the time when the impugned order was made in their favour.
24. In presence of the finding that the auction of the disputed property in favour of the respondents 3 to 5 was subsisting at the time of making of the impugned order, the arguments of the learned counsel for the petitioners that it was an 'available property' to be disposed of under reconstituted Settlement. Scheme No, VIII and that the designated Authority (Settlement Commissioner) after the repeal of the Evacuee Laws, before whom the petitioners (thirty of them) had been appearing and taking part in the proceedings, had no jurisdiction to deal with the matter automatically fall to the ground. The disputed property, having already been lawfully transferred in favour of the respondents 3 to 5, was not an 'available property' at the time when the Settlement Scheme No, VIII had come into operation, nor had it become so available when this Scheme was subsequently re- constituted. Since it was subsequently re-constituted. Since it has never been an 'available property', the sitting tenants had no locus standi to ask for the transfer of the units of disputed2 property in their favour. If the argument of the learned counsel for the petitioners that upon making default in the payment of entire auction-price the right of the auction-purchaser had automatically extinguished upon such default was accepted, even then the petitioners had no locus standi to ask for the transfer of the property or its various units in their favour as it would have then been re-auctioned as Big Mansion under Settlement Scheme No HI, or otherwise disposed o as such in accordance with law. I also do not agree with the learned counsel for the petitioners that the Chief Settlement Commissioner could not eaten' time beyond the period of three months because the time mentioned I Paragraph 25 of the Schedule was not strictly followed in practice and th Chief Settlement Commissioner had invariably been extending such tim for a longer period.
The Supreme Court in 1974 SCMR 352 observed that "it is common knowledge that the Chief Settlement Commissioner has, by general public notices from time to time, been extending period for payment of price still outstanding to obviate the operation of the penal provisions of the aforesaid sub-paragraph" (concluding words of para. 5 of the judgment). This practice of the Chief Settlement Commissioner was in line with the scheme of the relavant Act when millions of refugees were to be settled and the huge properties left by the evacuees were to be disposed of.
25. It is true, as urged by the learned counsel for the petitioners, that where a Tribunal of exclusive jurisdiction fails to notice and apply correct law to a case before it, then it is the duty of the High Court, while exercising writ jurisdiction, to point out the correct law and direct the Tribunal to decide the case in accordance with law. Same was the dictim laid down by the Supreme Court in Prince Ghulam Muhammad Khan's case. This principle, however, cannot be applied to this case for three reasons ; firstly, that the Settlement Commissioner (Industries) has not failed to apply the correct law to the case before him, nor where the Settlement Authorities dealing with the matter earlier ignorant of the correct law on the subject. They have, in my view, while granting extensions for the payment of auction price and in not invoking the penal provisions for the cancellation of the auction, all along been acting in accordance with the scheme of the relevant Act and the general policy of government. Secondly, that the scrutiny revealed, as pointed out in the last but one para. Of the impugned order, that the Compensation Books, which were deposited by the respondents 3 to 5 before the end of the year 1966, were ultimately found to be genuine and correct and it would be unjust and inequitable to direct cancellation of the auction held in the year 1963 when huge amount of money belonging to the respondents 3 to 5 remained locked-up in this auction. Thirdly, that the respondents 3 to 5, who have been repeatedly requesting for the finalisation of their case, as would appear from their applications on the record, could not be punished for the default or in- action of the Settlement Authorities who failed to finalise their case earlier.
26. Judged from all angles, there is no merit in this petition, which is hereby dismissed with costs. PLD 1978 SC 89 P P 1966 SC 983 1972 SCMR 359.