' Shop No, 189 situated in Ward No, 4, Aminpur Bazar, Faisalabad City, Evacuee Property, was put to auction on 18th February, 1960. On the basis of bid for Rs, 73,000 one Karim Bakhsh was declared the highest bidder. Before auction in his favour could be confirmed, he withdrew his offer and consequently the property bearing Survey No, 189 was again put to auction on 10th June, 1960.
Mushtaq Ahmad, petitioner and Ghulam Muhammad, respondent No, 1, since deceased, both participated in the auction proceedings. Mushtaq Ahmad gave a bid for Rs, 40,000 whereas bid of Ghulam Muhammad was only for Rs, 39,000. Auction in favour of Mushtaq Ahmad, the highest bidder, was confirmed by Additional Settlement Commissioner, Faisalabad on 18th June, 1960.
Provisional Transfer Order was issued in favour of Mushtaq Ahmad on 31st October, 1960. Armed with P. T.
0., ejectment proceedings were initiated by Mushtaq Ahmad against Ghulam Muhammad who was in occupation of the above-stated shop in the Court of Rent Controller, Faisalabad. Ejectment, after contest, was ordered by Rent Controller on 17th May, 1965. Ghulam Muhammad challenged order of eviction before learned District Judge, Faisalabad. Appeal did not succeed and failed on 9th April, 1965. Second appeal however succeeded on 21st June, 1975 in the High Court on the ground that the default proved against Ghulam Muhammad was not wilful.
2. Ghulam Muhammad instituted a civil suit wherein he challenged auction and its confirmation in favour of Mushtaq Ahmad. Suit was instituted on 3rd November, 1964. Learned Civil Judge, Faisalabad after examination of the merits of the case in the light of evidence produced, vide order, dated 30th November, 1973, dismissed the suit. Appeal challenging the dismissal order was filed in the Court of District Judge by Ghulam Muhammad. However during the pendency of the appeal Ghulam Muhammad succeeded before Settlement Commissioner, Sargodha to have the auction cancelled in favour of Mushtaq Ahmad and obtained a Transfer Order in his own favour and consequently withdrew civil appeal on 8th September, 1979. It may be pertinent here to mention that earlier Ghulam Muhammad had submitted L. S. Form under provisions of Settlement Scheme VIII seeking transfer of the disputed shop in his favour. However, his prayer was turned down on 18th April, 1967 by Deputy Settlement Commissioner, Faisalabad, on the ground that the shop had already been transferred in favour of Mushtaq Ahmad and was no longer available for transfer under law. Ghulam Muhammad did not agitate the matter further, in so far as the order, dated 18th April, 1967 was not subjected to appeal or revision in the normal hierarchy provided under the Settlement Laws.
3. Ghulam Muhammad however, filed an appeal challenging the auction order, dated 10th June, 1960 and its subsequent confirmation order, dated 18th June, 1960 before Settlement Commissioner. Appeal, after full contest was dismissed on 23rd October, 1967. Though unsuccessful here, Ghulam Muhammad did not challenge the correctness of order passed in appeal by Settlement Commissioner on 23rd October, 1967 and allowed it to attain finality under the law.
4. Having been defeated on all the fronts Ghulam Muhammad again through a miscellaneous petition submitted to Deputy Settlement Commissioner, on 17th April, 1973, prayed that auction of Evacuee Property (shop in dispute) made in favour of Mushtaq Ahmad was not legal and was liable to be set aside. On the application of Ghulam Muhammad, Deputy Settlement Commissioner, made his report on 23rd February, 1974. Meanwhile on 25th February, 1974 Ghulam Muhammad submitted another L. S. Form under Scheme No, VIII. Settlement Commissioner vide order, dated 1st March, 1974 agreeing with the report of the Deputy Settlement Commissioner made on a miscellaneous petition, cancelled the auction in favour of Mushtaq Ahmad. In pursuance to the order of cancellation of transfer, Deputy Settlement Commissioner, Faisalabad, transferred the shop in dispute to Ghulam Muhammad on 12th April, 1974 on the basis of L. S. Form submitted on 25th February, 1974.
5. Meanwhile Mushtaq Ahmad had filed another ejectment petition seeking eviction of Ghulam Muhammad in the Court of Rent Controller, Faisalabad. In pursuance to notice issued by Rent Controller, Ghulam Muhammad entered appearance and filed written-statement on 19th July, 1974 wherein it was stated that the property subject-matter of eviction petition had already been transferred to him by the Deputy Settlement Commissioner vide order, dated 12th April, 1974 and consequently it was averred that the ejectment petition was no longer maintainable at all. Coming to know of the cancellation of auction in his favour and subsequent transfer of the property in favour of Ghulam Muhammad, Mushtaq Ahmad filed a Constitutional petition in this Court assailing the orders annulling auction proceedings and subsequent transfer of shop in favour of Ghulam Muhammad.
6. Learned counsel for the petitioner has contended that order, dated 1st March, 1974 passed by Settlement Commissioner, Sargodha Division on the basis of a one-sided report submitted by the Deputy Settlement Commissioner whereby auction held in favour of Mushtaq Ahmad was cancelled is opposed to elementary principles of natural justice, in so far as he was not associated in the inquiry resulting in cancellation of the auction in his favour. He has further contended that Settlement Commissioner, Sargodha Division had no jurisdiction whatsoever to cancel the auction earlier held in favour of Mushtaq Ahmad on the ground that the Settlement Commissioner on judicial side had already dealt with the matter exhaustively and dismissed the appeal filed by Ghulam Muhammad on 23rd October, 1967. This final order passed in appellate jurisdiction not challenged in the higher hierarchy under the Settlement Laws attained finality under law and could not have been interfered with by an officer of co-ordinate jurisdiction acting on executive side on basis of a mere report of Deputy Settlement Commissioner. Learned counsel has further contended that Ghulam Muhammad was estopped by his own conduct to challenge the earlier auction held and confirmed in favour of Mushtaq Abmad on the following grounds :-
(i) That his L. S. Form had earlier been rejected on 18th April, 1967 by the Deputy. Settlement Commissioner. Rejection of the Form was not challenged either in appeal or revision by Ghulam Muhammad.
(ii) Ghulam Muhammad participated in the auction proceedings and took a chance of getting the property by making a bid for it. Having not succeeded therein, could not be permitted to take a turn subsequently to challenge the auction made in favour of Mushtaq Ahmad in which he himself had taken part with full sense of participation.
(iii) Ghulam Muhammad had earlier accepted the correctness of auction in ejectment proceedings which went upto the High Court level and thereafter could not secretly attack the title of Mushtaq Ahmad for the purposes of undoing the auction proceedings for his own benefit.
7. Learned counsel appearing for the respondent exercising his right of reply has contended that on the basis of a cancellation order, dated 1st March, 1974 passed. By the Settlement Commissioner, Sargodha Division, Sargodha, property in dispute was transferred to Ghulam Muhammad and Permanent Transfer Deed was also issued. Once a P. T. D. Had been issued, finally transferring the property, the Court is left with no jurisdiction to examine its vires. He has placed reliance upon Mst.
Fazal Bibi and others v. Settlement Commissioner and others (1) and S. Anwar Hussain Sani v.
Sarfraz Ahmad and two others (2) to support his above contention. He has further contended that the Association Deed on the basis of which the transfer had been made in favour of Mushtaq Ahmad had since been cancelled reducing his share to the extent of 1/4th in the property and in case the transfer in favour of Ghulam Muhammad was set aside, the present petitioner could not lay his hands to more than 1/4th share in the property. In view of this nominal share left with him in the disputed property, he has no locus standi to prosecute the present petition. It has been further pointed out that auction was not properly conducted as the auction Committee was comprised of only two persons whereas the third member did not participate at all in the auction proceedings as is evident from the bid sheet.
8. Examination of the record reveals that the property was put to auction. Karim Bakhsh was declared its highest bidder. Before the auction
(1) PLD 1983 SC 163 (2) PLD 1971 SC 669 ' could be confirmed, offer made by Karim Bakhsh was withdrawn, as a result thereof the property was again put to auction wherein Mushtaq Ahmad and Ghulam Muhammad, since deceased, both participated. Auction was knocked down in favour of Mushtaq Ahmad being the highest bidder.
Transfer orders were thereafter issued in his favour after. Auction price was deposited by him within time. Ejectment proceedings initiated against Ghulam Muhammad occupant under Rent Laws, succeeded before the subordinate Courts, but failed in High Court in second appeal on the sole ground that the default proved against Ghulam Muhammad was not found wilful warranting his eviction from the shop in dispute.
9. Civil suit challenging auction in favour of Mushtaq Ahmad filed by Ghulam Muhammad did not succeed and was dismissed on 30th November, 1973, appeal before District Judge as observed above was subsequently withdrawn after obtaining transfer order. Ghulam Muhammad filed L. S. Form under Scheme No, VIII claiming transfer of the property which was dismissed by the Deputy Settlement Commissioner, Lyallpur (now Faisalabad) on 18th April, 1967. Rejection of L. S. Form was not agitated further in appeal or revision. Ghulam Muhammad also filed an appeal against the order, dated 10th June, 1960 whereby the property was auctioned in favour of Mushtaq Ahmad and its subsequent confirmation before the Settlement Commissioner. The Settlement Commissioner on judicial side did not find any merit in the submissions of Ghulam Muhammad and proceeded to dismiss the appeal on 23rd October, 1967. After the order, dated 23rd October, 1967 was passed by Settlement Commissioner, Ghulam Muhammad did not agitate the matter any further and felt content with it. However, on a miscellaneous petition made by Ghulam Muhammad questioning auction and its confirmation in favour of Mushtaq Ahmad, Deputy Settlement Commissioner in the absence of and without notice to the auction purchaser made recommendations on 17th April, 1973 for the cancellation of the auction. Learned Settlement Commissioner, Sargodha vide his order, dated 1st March, 1974 cancelled the auction and observed that if the occupant (Ghulam Muhammad) had submitted C. S., N. C. S. Form under Revised Settlement Scheme No, VIII, the property may be transferred to him on the market price. For facility of reference, the order, dated 1st March, 1974 is reproduced below :- "Both the auction proceedings in respect of Property No, P-189, Ward No, 4, Lyallpur held in favour of Karim Bakhsh on 14th March, 1960 and subsequently in favour of Mushtaq Ahmad etc. Are hereby set aside. If the occupant has submitted C. S., N. C. S. Form under Revised Settlement Scheme No, VIII, it may be transferred to him on the market price.
(Sd.)
' Settlement Commissioner, Sargodha Division."
10. In pursuance to the order made by Settlement Commissioner, Deputy Settlement Commissioner proceeded to make a transfer order in favour of Ghulam Muhammad on 12th April, 1974. Both the orders, one cancelling the auction from the name of Mushtaq Ahmad and the other transferring the property in favour of Ghulam Muhammad were passed in the absence of and without a prior notice to the petitioner who came to know about cancellation of his transfer and its subsequent transfer in favour of Ghulam Muhammad for the first time when written statement was filed by Ghulam Muhammad in the Court of Rent Controller. From the narration of facts given above, it is crystal clear that the order, dated 1st of March, 1974 of the Settlement Commissioner, Sargodha Division cancelling transfer earlier in favour of Mushtaq Ahmad was passed withou any prior notice or granting opportunity of hearing. This order is opposed to basic elementary principles of natural justice, for no person can be condemned unheard. Speaking precisely an order judicial or quasi- judicial detrimental to the interests of a person or his property cannot be made without granting an adequate opportunity of hearing to the party. This time honoured principle which is deeply embedded in eve statute unless its application has been expressly excluded has been seriousl flouted in the instant case by both the Settlement Officers depriving th present petitioner of his valuable property. This, to say the least smacks of arbitrariness. Where two parties are in dispute and it is the obligatio of some person or body to decide equitably between the conflicting claim, each claim must receive consideration and each claimant must be invite not merely left to take initiative if he choses to put forward the material which he desires to have considered. It has been observed by Megarr J. In John v. Rees (1) that : "When something is obvious' (it may be said), why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start. Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not ; of unanswerable charges which, in the event, were completely answered ; of inexplicable conduct which was fully explained ; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to under-estimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."
' In the instant case, no efforts have been made to hear the affected party 1. e. Mushtaq Ahmad who till then was the valid and legal transferee of the property in dispute and had paid its full price.
Mushtaq .Ahmad was in litigation with Ghulam Muhammad for the last so many years defending his title. In reply to the Court question as to why this all important order had been passed without notice to Mushtaq Ahmad, learned counsel appearing for respondent has contended that while passing order, dated 12th April, 1974, the Deputy Settlement Commissioner, Lyallpur had issued notice to Mushtaq Ahmad but he refused to receive the process and consequently was served through substituted service. Requirements of hearing had thus been complied with.
11. I have examined the original Settlement File with minute tare and particularly the notice said to have been issued to Mushtaq Ahmad. It is not easily believable that Mushtaq Ahmad who had strenuously been defending his title to the suit property will refuse to receive a process issued from the Court of Deputy Settlement Commissioner in
(1) (1969) 2 W L R 1294, 1335 ' proceedings which seriously affected his rights in the property, he had succeeded to secure through auction and had paid its heavy price. However, basic order by which auction had been set aside from the name of Mushtaq Ahmad was passed without affording him opportunity of hearing and in violation of the Rules of Natural Justice. He was entitled to be heard before any adverse order could have been passed affecting his rights in the property. The said order passed by the Settle-B ment Commissioner, therefore, was absolutely void and any superstructure subsequently built on the basis of void order did not possess any legal sanctity. As stated above, several attempts were made by Ghulam Muhammad who was in occupation of the property to get auction made in favour of Mushtaq Ahmad annulled but did not succeed. So much so at various times forms submitted by him seeking transfer of the property were rejected by the Settlement Authorities. A final and determinative order, dated 23rd October, 1967 was passed by Settlement Commissioner on the judicial side setting at rest the entire controversy. No appeal or revision was filed against this order nor was it challenged in Constitutional jurisdiction before superior Courts.
Evidently said order attained absolute finality under law. Finality thus attained could not have been allowed to be taken away through back door on the executive side on mere recommendations made by the Deputy Settlement Commissioner to the Settlement Commissioner and that too in the absence of real affected party. If the Settlement Commissioner had cared to look into the records, it would have clearly revealed to him earlier futile efforts made by the Ghulam Muhammad to dislodge Mushtaq Ahmad from the property and various orders passed by the Settlement Authorities in that behalf.
12. Resume of the facts and their examination lead me to one irresistible conclusion that the order, dated 1st March, 1974 passed b Settlement Commissioner on executive side clearly knocked the bottom') out from the previous judicial orders passed by competent Settlemen Authorities upholding the entitlement of Mushtaq Ahmad to the disputed property. He could not be deprived of his valuable property in such a slip-shod manner without even hearing him to defend his title.
13. The matter could have been resolved finally in writ jurisdiction but for a fact that the basic auction in favour of Mushtaq Ahmad has been objected to by the learned counsel for the respondents on the ground that the Committee constituted to auction the property was comprised of two persons only and a third member never participated or signed the auction proceedings.
Copy of the auction proceedings Annexure 'D' placed on file by the petitioner shows that the proceedings had been attended to by all three members and that bid sheet was not only signed by Chairman but was signed by two other members also. However, the original Settlement file shows that only Chairman and one Member signed the proceedings whereas there are no signatures available as against the third member. In view of this and other related factual matters which can more appropriately be decided by the Settlement Authorities, I feel that, it would be in the interests of justice and law to order remand of the case to the Settlement Authorities for its decision afresh. Writ petition is consequently E accepted, order, dated 1st March, 1974 passed by the Settlement Commissioner, Sargodha Division is set aside and declared to have been passed without lawful authority. Subsequent orders passed thereafter including the order by which the property had been transferred in favour of Ghulam Muhammad are set aside and also declared to have been passed without lawful authority. As a necessary corollary thereof, the case is remanded to Settlement Commissioner, Faisalabad with a direction to decide it afresh in the light of order, dated 18th April, 1967 passed by the Deputy Settlement Commissioner rejecting the form of Ghulam Muhammad order, dated 23rd October, 1967 passed by the Settlement Commissioner upholding the auction and transfer in favour of Mushtaq Ahmad and the conduct exhibited by Ghulam Muhammad throughout. Learned Settlement Commissioner will also examine the alleged irregularity in the auction proceedings and its possible legal effects on the rights of Mushtaq Ahmad in the light of earlier orders passed by Settlement Authorities.
14. Since the parties are in litigation for over 20 years in respect of evacuee property it is thought appropriate that a direction be also issued to the Settlement Commissioner for early disposal of the case. Learned Settlement Commissioner, therefore, is directed to dispose of the case within six months from the date of the receipt of the order from this Court so as to put an end to the agony and anguish of parties. No order as to costs.