1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment dated 27-4-1982 of the Lahore High Court; whereby in a case relating to urban settlement, respondents; Constitutional Petition was allowed.
2. The house in question, it is stated was in a dilapidated condition and was accordingly put to auction in 1961. The petitioner was highest bidder at Rs.19,200. This auction was confirmed in his favour on 20th December, 1962. An amount of Rs.5,684 was adjusted from his compensa--tion- book. He, however, made an application on 23rd of October, 1967 for reduction of the price on account of the dilapidated condition of the house. It was rejected on the 26th October, 1967. But before this rejection the house had been resumed on 24th of October 1967--during the pendency of the said application. An appeal was filed by the petitioner against the order of resumption, dated 24th October, 1967.
3. Prior to the rejection of the application for reduction of the price the Department had included the house in the list for auction but there was no bid for the same. It was again put to auction during the pendency of the petitioner's appeal on 24-10-1967 but again no bid was offered. Thereafter the office recorded the note on 6-2-1968 that although the reserve-price was Rs.15,792 no bid was being offered. Therefore, the reserve-price merited to be reduced by 50% to Rs.7,896. This proposal was by the D.S.C. And was marked to the competent authority in this behalf i.e., Additional Settlement Commissioner for the approval. But it is an admitted fact that the Additional Settlement Commissioner never approved the proposal for reduction nor was the matter represented before him. The house was, however, again put to auction on 26-6-1968, sufficiently enough with a further reduced reserved-price of Rs.3,948 whereupon Shah Muhammad, the predecessor-in-interest of respondent No.2 purporting to be the highest bidder at Rs.6,100 was successful. This auction was approved on 5-8-1968 without cauctious application of mind to the fact that the original reserve- price was 1;s.15,792 whereupon the petitioner had offered a bid of Rs.19,200. The matter having been agitated before the Settlement Commissioner from the petitioner side who by his order dated 29- 7-1973 allowed the petitioner's appeal, permitted him to make the balance deposit of Rs.13,560 with the direction that if he failed to make the deposit, of the auction in favour of Shah Muhammad will "automatically come into force". This order was challenged in the High Court through Writ Petition No.399-R of 1974 which was allowed by a learned Single Judge on the ground that the subsequent transferee had not been associated in the appeal proceedings culminating in petitioner's favour.
4. Accordingly the case was remanded with the direction that it should be heard on merits afresh. In other words, the petitioner's appeal was to be heard and disposed of afresh of course after considering the merits of the pleas to be advanced from both the sides. After remand the Settlement Commissioner by his order dated 3-4-1976 set aside the auction in- favour of the' petitioner on the ground that withstanding the pendency of his application for reduction of price, he was required to make the due deposit of the auction price because there was no scope for reduction of the price in cases covered by auction proceedings from the cases of transfer on the basis of Settlement Forms. He also set aside the second auction on the main ground that there was no justification for accepting such law bid of Rs.5,100 from the respondents side as compared to Rs.
5. 19,200 offered from the petitioner's side, as the proposal for reduction of the reserve-price was never approved by a competent authority.
6. Both the parties filed Constitutional petition in the High Court which were separately disposed of.
7. Writ Petition by the petitioner was dismissed on 15-11-1980 while the writ petition filed by Mst. Umar Hanif the contesting respondent was allowed on 27-4-1982 with the effect that the remand order has been recalled and the property has been directed to be transferred to the respondent against the original auction price offered by the petitioner at Rs.19,200, on an offer made on her behalf during the hearing. Leave to appeal is now sought by the petitioner, the first auction purchaser from the judgment dated 27-4-1982. We having considered the case have found it fit for conversion of the petition for leave to appeal into Appeal and proceed to decide the same accordingly.
8. It is an admitted position that the petitioner did not challenge the dismissal of his writ petition by the High Court by the order dated 15-11-1980. His counsel accordingly has pressed only for the restoration of the order of the Settlement Commissioner dated 3-4-1976 whereby the property was directed to be disposed of afresh.
9. One of the considerations which weighed with the learned Judge in the High Court going in favour of the respondent was that notwithstanding absence of approval of the reduction in the confirmation of the auction at much lower bid would be deemed to have condoned the defect regarding lack of approval. Earlier the Settlement Commissioner having noticed this argument, had repelled the same as in the facts and circumstances of the case it was not found tenable. The Special Tribunal having applied the mind to the peculiar facts of this case it needs to be considered whether it was a fit case for interference by the High Court in Writ jurisdiction of the High Court on this question.
10. It is strange that during 'the pendency of the application of the petitioner for reduction of the price, the property was included in an auction list without due formality regarding that application. Not only this when the petitioner's appeal against resumption was pending, the property was again hurriedly included in the list for auction which as held in Ghulam Qadir and others v. Abdul Sattar and another PLD 1984 SC 12 was not proper and in any case was subject to the decision of the appeal. Further it appears some one without any authority reduced the reserve price to 50$ of the original reserve price. The auction in favour of the petitioner took place on the basis of the reduction of the reserve price notwithstanding the fact that the proposal for reduction have not even been represented before the Additional Settlement Commissioner. Learned counsel for the respondent has stated that there were only to persons who offered the bids as a result of which Shah Muhammad succeeded in obtaining the property at only Rs.6,100. The offer from the respondent side before the High Court of the same price which was offered by the petitioner is undoubtedly relevant for consideration that the reduction of reserve price was not only without approval but also improper, in the circumstances of this case. Accordingly approach. Of the Settlement Commissioner in refusing to accept the approval of the auction in respondent's favour as an applied condonation of all illegalities was neither without lawful authority nor improper. The order of the High Court, therefore, merits to be set aside.
11. Although it might have been a point for consideration whether an auction purchaser of a dilapidated property could not seek reduction of the auction price on any ground whatsoever and whether the property could be put to auction even prior to the rejection of the application for reduction of the price, and further question whether the judgment of this Court in the case of Ghulam Qadir already noticed which related to a case arising out of an application of reduction of price by a transferee on the basis of possession would not be of assistance to the petitioner. But in view of the fact that he failed to challenge the dismissal of his writ petition by the High Court, on 15- 11-1980, we do not consider it necessary to examine the question whether the first auction in his favour should be reserved as the entire price by now, it is admitted, was paid by the petitioner in first round of litigation.
12. The next question arises whether on the setting aside of the judgment of the High Court the order of the Settlement Commissioner dated 3-4-1976 to the effect that the property would be disposed of afresh should be restored as it is. As the original auction took place in 1961 and the law then prevailing was thought to be applicable in this case, both the learned counsel for the contesting parties were asked to render assistance on the question of unrestricted re-auction or a re-auction restricted between the petitioner and respondent No.2. They agreed on the point that in the circumstances of the case a third party should not now be introduced. We also feel that it would be just and fair that the re-auction is restricted between the petitioner and respondent No.2. If however, by mutual agreement they expressed their willingness to take the property jointly at the price agreed to by them individually, the property would then be disposed of in accordance with such agreement.
13. Order accordingly, with the result that the writ issued by the 1 High Court is recalled and the order passed by the Settlement Commissioner on 3-4-1976 is restored with the afore-directed modification.