' Facts necessary for the disposal of this constitutional petition, briefly stated, are that the petitioner who was in occupation of portion of property bearing No, S-52=R-52, Nisbet Road, Lahore, submitted a belated Form NCH on 14-3-1970 before the Chief Settlement Commissioner seeking transfer of the property in dispute under Settlement Scheme No, VIII. He also made an application for condonation of delay in filing the Transfer Form. Chief Settlement Commissioner vide his memo., dated 1-5-1970 forwarded petitioner's NCH Form along with the application for condonation of delay to the Additional Settlement Commissioner, Lahore, "for necessary action in the light of instructions contained in the circular letter No, 1124-POL/69, dated 2-8-1969". According to these instructions, issued from the Office of the Chief Settlement and Rehabilitation Commissioner on 2- 8-1969, it was decided that in individual cases, request for condonation of delay in the submission of forms for transfer of houses under Settlement Scheme No, VIII may be considered by the Additional Settlement Commissioner keeping in view that (i) the delay was for good and sufficient reasons, (ii) the house is definitely available for disposal under Settlement Scheme No, VIII, and (iii) the applicant is in undisputed occupation of the house and is prima facie eligible for its transfer under the said Scheme. Cases which merited rejection could be disposed of by the Additional/Settlement Commissioner. However, cases deserving consideration were to be referred to the headquarter for orders of the Chief Settlement Commissioner.
2. It appears that before the Chief Settlement Commissioner had forwarded the petitioner's application for condo nation of delay to the Additional Settlement Commissioner, property in dispute was put to auction on 28-4-1970, and was purchased by Hail Muhammad Yagoob, respondent No, 3 herein. Auction in question was confirmed on 21-5-1970. Petitioner filed an appeal to challenge the order, dated 21-5-1970 confirming the auction in question. Learned Settlement Commissioner by his order, dated 31-8-1976 dismissed the petitioner's appeal holding that he was not a regular applicant for transfer of the property in dispute under relevant Scheme. Learned Officer took the view that merely because the petitioner had filed an application before the Chief Settlement Commissioner which application was transmitted to the Additional Settlement Commissioner, without any specific order thereon by the learned Chief Settlement Commissioner, petitioner did not become a regular applicant. This order of the Settlement Commissioner was brought under challenge through the present constitutional petition.
3. I have heard the learned counsel for the parties and have also perused the relevant record.
Learned counsel for the petitioner has submitted that the petitioner who was admittedly in possession of the property in dispute had applied for its transfer under Settlement Scheme No, VIII and as the Form submitted by the petitioner was belated, he had applied for condonation of delay.
That being so, the property in dispute could not be disposed of through auction without deciding the petitioner's application for condonation of delay. Learned counsel has placed reliance on Azimullah v. Chief Settlement Commissioner and others 1968 SC M II 175. In that case, Muhammad Ramzan, who was a claimant in possession of the property in dispute had filed a belated CH Form on 2-5-1960 under Settlement Scheme No,
1. Nevertheless, the Settlement authorities put the property in question to auction on 4-5-1960. Their Lordships of the Supreme Court after considering the relevant provisions of Settlement Scheme No, 1 came to the conclusion that "an evacuee house can, therefore, be disposed of by auction only if there is no person who claims it under any of the earlier paragraphs. Without determining the claim, therefore, of Ramzan, who was a claimant in possession entitled under paragraph 1 to the transfer of the property, the same could not have been put to auction as was done in this case two days after Ramzan had actually filed his CH form."
A question was also raised in that case that Muhammad Ramzan could not claim transfer on the basis of a belated CH form' because the delay was not condoned. Their Lordships disposed of this question observing that "the short answer to this is that since the Settlement Authorities had not, at any stage, decided that there are no grounds for condoning the delay, if any, in the filing of the CH form by Muhammad Ramzan it cannot be said that he had lost his entitlement". Case cited by the learned counsel for the petitioner is distinguishable as in that case, Muhammad Ramzan was a claimant in possession entitled to the transfer of property under paragraph I of Settlement Scheme No,1 and he had not made any application for condonation of delay.
4. -learned counsel appearing for the contesting respondents has supported the impugned order by submitting that the petitioner could not be said to be an applicant for the transfer of the property in dispute until the delay was duly condoned in terms of the instructions contained in the afore-referred memo dated 2-8-1969. Learned counsel further submitted that the petitioner having applied for transfer of the property in dispute should have moved to get it deleted from the auction-list and/or to have the auction stayed but he took no such steps. He has also pointed out that the authorities concerned had no knowledge of the petitioner's Form for transfer when the property was put to auction on 28-4-1970. Petitioner's Form was admittedly forwarded to the Additional Settlement Commissioner on 1-5-1970 i.e, after the property had been put to auction.
Precise submission of the learned counsel was that the property in dispute was available for auction on relevant date and it was, therefore, rightly disposed of as such. He also submitted that the property in dispute having already been auctioned it was no more available for transfer even on the date when the petitioners Transfer Form together with the application for condo nation of delay was transmitted to the Additional Settlement Commissioner. Learned counsel has further pointed out that the petitioner had earlier applied for transfer of the property in dispute in 1963, but his application was rejected by the Deputy Settlement Commissioner by his order, dated 25-3-1964 (Annexure R/2). Petitioner never challenged that order in any higher forum. He could not therefore, apply for transfer under Settlement Scheme No, VIII.
5. In support of his submissions aforementioned, learned counsel for the respondents relied on Imdad Ali v. Ghulam Nabi and others 1980 SCMR 560 (2) and Mst. Fatima v. Abdul Hamid and others PLD 1983 SC 157. In Imdad Ali's case, facts are almost identical to those in the present case. He, too, had applied for transfer of the property under Settlement Scheme No, VIII, and had also sought condo nation of delay for filing the belated form. He had applied on 8th February 1968. Matter was sent to the Deputy Settlement Commissioner for report. Before the report could be received, it transpired, that the property had been auctioned on 30th October 1968. He filed an appeal and revision before the Settlement authorities but failed. His writ petition was also dismissed and the High Court held that as the delay was no condoned, the form was not legally entertain able. His petition for leave to appeal was dismissed and the submission made that the property could not be disposed of by auction until the D.S.C. Had sent the report to the Chief Settlement Commissioner was repelled with the following observations:- "This submission is without substance as without the condonation of delay the Form could not be regarded as properly presented: and if he was keen for its transfer, he should not have slept over the matter and allowed the auction to proceed which transaction, having attained finality, could not be re-opened."
' In the second case of Mat. Fatima v. Abdul Majid, it was held that a person filing a delayed CH Form could not claim as of right that even if the property had been disposed of, the form should be entertained and the transfer already made should be re-opened.
6. Undisputed facts in the present case are that when the property in dispute was put to auction on 28-4-1970, petitioner's belated Form for the transfer of the Property in dispute alongwith his application for condonation of delay was pending in the Office of the Chief Settlement Commissioner and the authorities who had auctioned the property in dispute were not even aware of the petitioner's transfer Form. Delay A in the submission of the Form had admittedly not yet been condoned. In fact, it was after the property in dispute was put to auction that the petitioner's Form and his application for condo nation of delay were sent to the Additional Settlement Commissioner for necessary action. As held in Imdad Ali's case without the condonation of delay, petitioner's Form had no existence in law. That being so, there was no impediment to the disposal of the property through auction. In this view of the matter, petitioner's appeal was rightly dismissed by the learned Settlement Commissioner.
It is also significant that the petitioner having submitted the belated Form took no steps to get the property in dispute deleted from the auction list or to have the auction stayed. Needless to point out that it is not the case of the petitioner that the property in dispute was not included in the auction-list, which is a matter of public knowledge. Petitioner filed appeal only after the auction was confirmed. In these circumstances, disposal of the property having attained finality could not be re-opened at the instance of the petitioner, who had slept over the matter.
7. Note may also be taken of the fact that the petitioner had earlier applied for the transfer of the property in dispute in 196 presumably under Settlement Scheme No,1. His Form NCH was rejected on 25-3-1964 and the petitioner did not pursue the matter any further. What is important is that he even did not disclose this fact in the present petition and it is the respondent who has placed copy of the order of the Deputy Settlement Commissioner (Annex R/1) showing that the petitioner's Form NCH was earlier rejected in the year 1964. This conduct of the petitioner also disentitles him to the grant of equitable and discretionary relief in writ jurisdiction.
8. For the foregoing reasons, the impugned order of the Settlement Commissioner is not open to any exception. In any case, petitioner is not entitled to discretionary and equitable relief in writ jurisdiction. This petition; therefore, fails and the same is dismissed but there shall be no .Order as to costs in the circumstances of the case.