' The dispute, in this writ petition, relates to a shop bearing No, 143/C situate in Main Bazar Haripur, District Abbottabad. Ghulam Hussain (respondent No, 1) applied to the Deputy Settlement Commissioner for the transfer of the shop under Settlement Scheme No, VI on the ground that he was in possession of the shop since he had purchased the rights of construction from his brother Wazir Hussain who was an allottee of the shop in question. His request for the transfer of the shop was turned down by the Deputy Settlement Commissioner on 9th October, 1960 and the shop was put to open auction on 26th November, 1960. The shop could not be disposed of in the said auction and hence it was again put to open public auction on 29th November, 1960. The highest bid of Abdul Qadus (petitioner) was accepted and the auction was confirmed in his name by the Additional Settlement Commissioner on 16th December, 1960 in the following terms :- "The highest bid of Rs, 4,100 offered by one Abdul Qadus as recommended by the Auction Committee is hereby approved, provided no body offers reserve price."
' On 8th July, 1961 a Provisional Transfer Order was issued in the name of the petitioner.
2. Against the aforesaid order of the Deputy Settlement Commissioner, dated 9th October, 1961 rejecting the request of Ghulam Hussain (respondent No, 1), he preferred an appeal before the Additional Settlement Commissioner claiming the transfer of the shop under Settlement Scheme No, VI but the same was rejected on 19th October, 1961 on the ground that respondent No, 1 was neither an allottee nor had he reconstructed the shop in question and since he had not purchased the rights of construction from his brother Wazir Hussain before 20th December, 1958 he was not entitled to the transfer of the shop under Settlement Scheme No, VI. Against the aforesaid order, respondent No, 1 filed revision petition before the Chief Settlement Commissioner which was also dismissed on 11th October, 1962. However, without disclosing the rejection of his revision petition by the Chief Settlement Commissioner, respondent No, 1 filed another revision petition before the Settlement and Rehabilitation Commissioner against the order, dated 19th October, 1961 passed by the Additional Settlement Commissioner. This revision petition was also dismissed on 28th November, 1962. Not satisfied, respondent No, 1 then instituted suit No, 226/1 in the civil Court on 29th June, 1972 which was also dismissed as withdrawn on 27th March, 1975.
3. It appears that after acceptance of his bid of Rs, 4,100 in the open public auction, the petitioner deposited Rs, 1,025 in cash on 6th December, 1960 and the balance was paid by him through association with claimants from their Compensation Books and thus nothing remained outstanding against him. However on 10th July, 1964 the petitioner was directed by respondent No,
2. (The Additional Settlement Commissioner) to pay the transfer price of the shop purchased by him within three months on the ground that the Enforcement staff had reported that the Compensation Books were found bogus. The petitioner and other affectees of the order preferred appeals to the Settlement Commissioner (District Judge, Hazara) against the aforesaid order which were accepted on 30th January, 1965 and by setting aside the order, dated 10th July, 1964 of respondent No, 2 the cases were remanded to him with a direction that he should not place reliance on the mere report of the Enforcement staff and should examine the case afresh by asking the Enforcement staff and the effected persons to adduce evidence before him in support of their respective contentions. However, it appears that after the order of remand, respondent No, 2 did not take any action and the matter remained in abeyance. The petitioner was never called upon to deposit the balance outstanding against him since no proceedings regarding the validity or otherwise of the Compensation Books were taken in hand.
4. In 1968 the petitioner sought ejectment of Ghulam Hussain (respondent No, 1) from the shop in dispute before the Rent Controller Haripur. In the said case on 22nd January, 1969 respondent No, 1 entered into a compromise with the petitioner and thereby accepting his tenancy under him agreed to pay the arrears of rent amounting to Rs, 1,500 in three instalments, failing which he held himself liable to ejectment. Since he failed to pay the arrears of rent as agreed upon, the petitioner initiated execution proceedings against him. Respondent No, 1 unsuccessfully objected to the execution proceedings and his appeal in this regard also failed before the learned District Judge, Hazara on 21st June, 1972.
5. Respondent No, 1 thereafter again move the Deputy Settlement Commissioner for reopening the case of the auction of the shop in favour of the petitioner and for its transfer to him. The Deputy Settlement Commissioner (respondent No, 4) declined to interfere vide order, dated 20th May, 1974 on the ground that he had no cuo motu powers of revision for reopening such like cases. Against the aforesaid order of the Deputy Settlement Commissioner, respondent No, 1 filed a revision petition before the Settlement Commissioner but it was also dismissed on 31st May, 1974.
Respondent No, l not being satisfied with the above efforts yet moved another application to the Additional Settlement Commissioner on 3rd June, 1974 calling in question the transfer of the shop in favour of the petitioner and requesting for its transfer in his favour against the reserved price of Rs, 6,320. This application of respondent No, 1 was accepted by the Additional Settlement Commissioner on 26th June, 1974 whereby the transfer in favour of the petitioner was cancelled and the offer of respondent No, 1 against the reserved price of Rs, 6,320 was approved. It is clear that the said order was passed behind the back of the petitioner without affording him an opportunity of being heard in the matter. The report was also sent for from the Deputy Settlement Commissioner to inform if the petitioner had preferred any appeal against the declaration of the Compensation Books to be bogus. However, respondent No, 1 without disclosing that the Settlement Commissioner vide order, dated 30th January, 1965 has set aside the order declaring the Compensation Books as bogus and has remanded the cases for fresh inquiry to the Additional Settlement Commissioner, produced a certificate from the Settlement Commissioner, Peshawar Division, dated 21st June, 1974 to the effect that no appeal of the petitioner was pending in the matter before him.
6. The learned counsel for respondent No, 1 challenged the validity of the auction proceedings of the shop on the ground that the terms and conditions relating to auction as envisaged by para. 16.A of the Schedule attached to Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) have not been complied with and thus the auction proceedings being invalid no right has accrued to the petitioner. It may, however, be mentioned that the highest bid of Rs, 4,100 offered by the petitioner and as recommended by the Auction Committee was approved by the Additional Settlement and Rehabilitation Commissioner on 16th December, 1960. A sum of Rs, 1,025 was deposited by the petitioner on 6th December, 1960 and the outstanding balance was cleared through association with claimants from their Compensation Books as was legally permissible. The payment through Compensation Books was approved after due verification by the authority concerned and subsequently Provisional Transfer Order was also issued in favour of the petitioner on 8th July, 1961. Thus, in these circumstances the objection of the learned counsel about the validity of the auction proceedings would not prevail. The learned counsel then asgued that the Additional Settlement and Rehabilitation Commissioner was not competent to accord approval to the auction proceedings inasmuch as only the Chief Settlement Commissioner was invested with the powers to do so. In this regard the learned counsel relied on Fazal Karim & Bros v. The Chief Settlement and Rehabilitation Commissioner (1) wherein it was held that according to para. 16-A of the schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Chief Settlement Commissioner alone was empowered to accept or refuse to accept a bid and the Additional Settlement Commissioner was not competent to do so. It was also held that "as there has been no valid delegation by the Chief Settlement Commissioner to the Additional Settlement Commissioner of the power of accepting or rejecting, a bid, the latter's exercise of that power is illegal and ultra vices of the Act". The learned counsel for respondent No, 1 also relied on Alaf Gul v.
The State and 4 others (2) wherein it was held that : "I am clear in my mind that the order made by the Central Government under subsection (1) of section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as contained in letter No, F 13 (5)/63-SP, dated the i7th May, 1963 is defective and does not solve the difficulty. When the Act has assigned a particular function to the Chief Settlement Commissioner alone, the Central Government in my opinion was not competent to allocate that function to any other subordinate authority by a general or special order for, that will be in derogation of the Act itself. In view of the provisions of section 31 (2) of the Act XXVIII of 1958 I am of the opinion that the Chief Settlement Commissioner should have delegated his powers in this regard to any Settlement Commissioner or Additional, Deputy or Assistant Settlement Commissioner by notification in the official Gazette."
(1) PLD 1964 (W. P.) Pesh. 129 (2) PLD 1964 (W.P.) Pesh. 238 ' The learned counsel for the petitioner, however, referred to Displaced Persons Laws (Amendment)
Ordinance, 1964 (Ordinance XIII of 1964) whereby in section 10(1) of the Displaced Persons Act, 1958, after the word "Chief Settlement Commissioner", the words "or any other officer authorised in writing in this behalf by him" were inserted and by virtue of section 3 of the amending Ordinance of 1964 it was provided that anything done, action taken, order passed, rule made or notification issued, or purporting to have been done, taken, passed, made or issued, under the aforesaid Act before the promulgation of this Ordinance, shall be deemed to have been done, taken, passed, made or issued under the said Act as amended by this Ordinance, and shall have and shall be deemed always to have had effect accordingly. In this view of the matter the objection of the learned counsel for respondent No, I, that the B approval accorded by the Additional Settlement Commissioner to the] auction proceedings was invalid, is without any substance.
7. The learned counsel for respondent No, 1 then argued that another adequate remedy by way of filing a revision petition was available to the petitioner against the impugned order which he did not avail and hence the writ jurisdiction should not be exercised in his favour. It may however, be mentioned that where the impugned order is found to be wholly without jurisdiction then irrespective of an alternate remedy, a writ petition is C always held to be a more appropriate remedy. In Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty (1) it was held that : "There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy; and provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute."
Therefore in the circumstances, even if the right to file a revision has not been availed of by the petitioner, he will not be deprived of his D remedy in the writ jurisdiction in case the impugned order was found to be wholly void and without jurisdiction. It was next urged by the learned counsel for respondent No, 1 that the writ petition was barred on the ground of laches for the impugned order having been passed by the Additional Settlement Commissioner on 24th June, 1974 the writ petition was filed in this Court on 24th October, 1975. This argument of the learned counsel is also without any force for it is evident that the impugned order was passed behind the back of the petitioner without serving him with a notice to show cause why the transfer of the shop in dispute should not be cancelled from his name. According to the petitioner he was unawares of the impugned order and it was only in the execution proceedings of ejectment of respondent No, 1 from the shop in question that the afore-said order of respondent No, 2 was produced before the executing Court which resulted in the filing of the execution proceedings without satisfaction. The petitioner then applied for the certified copy of the said order 'E on 2nd July, 1975. However, a period of 3 months was spent by him in obtaining the copies of other relevant documents from Peshawar and Abbottabad and thus the writ petition was filed on 24th October, 1975. In the circumstances it cannot be urged that the writ petition has been filed with unreasonable delay or that the petitioner has been negligent in
(1) P D 961 SC 119 pursuing his remedy before this Court. In Muhsin Khan and another v. I The Chief Settlement Commissioner (I) it was observed that : "It is true that mere delay is not by itself a sufficient ground for non-suiting a party in a proceeding of this nature but where the delay is accompanied by such circumstances as indicate a clear negligence on the part of the applicant to pursue his remedy with due diligence or conscious acquiescence in the adverse order made against him, then that would be a very good ground for denying this extraordinary remedy. The law assists those who are vigilant about their rights and not those who sleep over them."
' It also appears that the Additional Settlement Commissioner (respondent No, 2) was not competent to entertain the application, dated 3rd June, 1974 of respondent No, 1 for the transfer of the shop in question since by virtue of Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 (Act LV of 1973) the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 were amended and all applications/appeals etc. Pending with any subordinate authority were transferred for disposal to the Settlement Commissioner which he could dispose of himself or transfer to the Additional Settlement Commissioner for disposal. It is evident that the aforesaid application of respondent No, 1 was not transferred to respondent No, 2 by the Settlement Commissioner for disposal and hence for this reason as well the impugned order, dated 24th June, 1974 passed by respondent No, 2 was without jurisdiction.
8. For the aforesaid reasons, the impugned order of Additional Settlement Commissioner (respondent No, 2), dated 24th June, 1974 is declared as without lawful authority and of no legal effect. The petitioner (now represented through his legal representatives) is declared to be the lawful owner of the shop in dispute on the conditions that the outstanding balance of Rs, 3,075 of the transfer price shall be deposited within a period of one month before We concerned authority failing which the shop shall stand cancelled from his name. No order as to costs.
(1) 1969 SCMR 306