1. ALI HUSSAIN QAZILBASH, J.--This is an appeal by leave against the order of a learned Single Judge of the Lahore High Court, dated 31-3-1976, whereby the writ petition of the appellant was dismissed.
2. The appellant is a claimant displaced person and is in possession of a flat bearing No.S-19-R-7, situate on .The Mall, Lahore. The flat was transferred to him against his C. H. Form on 16th of May 1960 and a P.T.O. Was issued to him. In order to pay the transfer price of the said flat, he submitted his compensation book for adjustment of the deferred amount of Rs.3,360 against its price of Rs.22,080. The appellant expressed his willingness to pay the remaining amount as and when an initimation was sent to him. The case, however, could not be finalised as the relevant records were taken away by the Special Police Establishment in connection with some enquiry. The file of the appellant was returned on 29th January, 1970 but it seems that in the meantime the Deputy Settlement Commissioner resumed the property on 14th March 1968 on the ground of non- payment of the transfer price by the appellant. Against the said order the appellant on 10-9-1969 approached the Chief Settlement Commissioner for allowing him time to deposit the outstanding amount which was allowed and intimation was sent to the appellant on the 3rd of October, 1969 and copy was addressed to the Additional Settlement Commissioner, Lahore, and the Deputy Settlement Commissioner, Circle-II, Lahore, with a direction that if the outstanding amount is not deposited by the transferee within 90 days of the decision of his claim case, the property may be disposed of by auction. It seems that this letter was not at all despatched either to the appellant or to the lower Settlement authorities, as a result of which the property was put to auction on 23rd May, 1973 and was purchased by respondent No.2 for a sum of Rs.39,700 with whom respondent No.3 associated. The appellant came to know about this auction on 2nd of June, 1973. He again approached the Chief Settlement Commissioner but without success. On the 18th of August, 1973 he filed a revision petition before the Settlement Commissioner, Lahore, who, after hearing the appellant, dismissed the same on the 12th of April, 1975. The appellant then approached the High Court through a writ petition but the same too was dismissed through the impugned order.
3. Leave in this case was granted to examine the correctness of the findings of the Lahore High Court and that of the Settlement Commisssioner, Lahore, qua the cancellation of the transfer of the flat from a claimant displaced person.
2. 4.We have heard the learned counsel for the parties and have gone through the record of the case and are of the view that this appeal merits acceptance. The appellant is a claimant displaced person to whom the property was transferred and P.T.O. Issued. In order to pay the transfer price he deposited his compensation book and there is nothing on the record to the contrary. Perusal of the Settlement record shows that the Chief Settlement Commissioner vide his letter bearing No.4104- 5/Urb/69, dated 3-10-1969 addressed to the appellant and copies to the Additional Settlement Commissioner and the Deputy Settlement Commissioner, Lahore, recalled the resumption order passed by the Deputy Settlement Commissioner, Lahore, dated 14-3-1968. Through the same letter, the appellant was allowed to deposit the remaining transfer price within 90 days of the decision of his claim case. The letter (at page 93 of the Settlement file) reads: OFFICE OF THE CHIEF SETTLEMENT AND REHABILITATION COMMISSIONER WEST PAKISTAN.
3. 11-Egerton Road, Lahore.
4. No.Dated the October, 1969.
5. From Mr.M.Y.Haqqi, B.A. (Hons.), LL.B., Settlement Commissioner (Urban)
6. West Pakistan, Lahore.
7. To Mr. S. M. Naim, S/o Khizar Azim, 7-The Mall, Lahore.
8. Sub:-PAYMENT OF TRANSFER PRICE OF RESIDENTIAL FLAT IN PROPERTY NO.S-19-R-7, THE MALL, LAHORE.
9. Please refer to your application dated 10-9-1969 on the above subject.
2. The Chief Settlement and Rehabilitation Commissioner, West Pakistan has cancelled the resumption order of Residential Flat in Property No.S-19-R-7, The Mall, Lahore, and has been pleased to give you a final chance to make payment of the transfer price of the said property outstanding against you within 90 days of the decision of your claim case. No further chance would be given to you.
10. (Sd.)
11. SETTLEMENT COMMISSIONER (URBAN)
12. WEST PAKISTAN, LAHORE.
13. No. 4105/Urb./69Dated the 3rd October, 1969.
14. A copy with a copy of the application replied to, is forwarded to:-
1. The Additional Settlement Commissioner. It is understood that the property has already been deleted from the auction list on receipt of verbal orders from this office. It may, however, be disposed of by auction, if the transferee does not make the payment within 90 days after the disposal of his claim.
15. 2.The Deputy Settlement Commissioner, Circle-II, Lahore. He may please make every effort to pass orders on the claim of the application stated to be pending, in his Court at the earliest.
16. (Sd.)
17. SETTLEMENT COMMISSIONER (URBAN)
18. WEST PAKISTAN, LAHORE.
19. This letter obviously was not gone through by the Settlement Commissioner while deciding the revision of the appellant and most probably not brought to the notice of the learned Single Judge.
20. During the hearing of the writ petition in the High Court some confusion was created by the Departmental Representative about the despatch of this letter but all the same it was not the case of the Department at all that the letter was never written by the Chief Settlement Commissioner.
21. There is nothing on the record, and it is also not the case of the Department or the contesting respondents that the claim case of the appellant has been finalised. Therefore, the property was not at all available for disposal by auction or otherwise. Thus, its auction in favour of respondent No.2 was absolutely without jurisdiction and void ab initio.
5. In view of the above, the appeal is accepted and the order of the Settlement Commissioner dated 12-4-1975 and that of the High Court dated 31-3-1976 are set aside, with no order as to costs.