1. SALAHUDDIN AHMED, J.-This appeal, by special leave of this Court, is from the JUDGMENT and order of a Division Bench of the then High Court of West Pakistan, Peshawar Bench dismissing the appellant's Constitution Petition.
2. The appellant is a displaced person from Jammu & Kashmir State, and his verified claim was for Rs.
3. 17,340.
4. The dispute between the parties is over the transfer of some shops situated in the Peshawar Cantonment. The shops had been put to public auction on the 12th of September 1960, by the Auction Committee presided over by the Deputy Settlement and Rehabilitation Commissioner, Peshawar, and the appellant having offered the highest bid of Rs. 48,000 against the reserve price of Rs. 74,175 his bid was accepted, and the sale of the shops to him, was approved by the Auction Committee which was headed by its Chairman Mr. Muhammad Alam Khan, Additional Settlement, and Rehabilitation Commissioner, Peshawar. A Provisional Transfer Order was issued to the appellant on the 11th of November 1960. The Provisional Transfer Order bore an endorsement that 25 % of the bid money was paid on the basis of Compensation Book of the appellant. Subsequently, however, it was discovered by the Settlement Department that a house and a shop had earlier been transferred to the appellant, and after having deducted the price of the house and the shop the balance left in his Compensation Book was Rs. 7,440 only, and this, obviously fell short of the 1/4 of the bid money required to be deposited on the acceptance of the appellant's bid. He was, accordingly, served with the following notice dated the 9th of February 1962:th "You are hereby informed that 1st instalment of your premises purchased in auction had fallen due on 11-12-60, but you have failed to clear out the amount due from you up to this date. You are hereby advised to attend this office on any working day at usual office hours within one week after the receipt of this notice. After the expiry of this period your P. T. O. No. 63614, dated 11-11-60 will be considered as cancelled."
5. This notice was addressed by the Assistant Accounts Officer,-- Peshawar. The appellant was served with another notice dated the 26th of February 1952, by the same officer to the following effect: "You were directed to attend this office vide this office notice, dated 9-2-1962 within a week but you failed to comply with the orders. Now you are hereby served with this final notice to attend the office of the undersigned and clear the outstanding dues within a week. If you fail to comply with these orders your P. T. O. No. 63614, dated 11-11-60 will be considered as cancelled and the property will also be put to auction."
6. On the 10th of April 1962, the appellant made an application to the Deputy Settlement and Rehabilitation Commissioner, Peshawar, and stated that the property was transferred to the appellant for Rs. 48,000 out of which he paid Rs. 7,400 and for the remaining amount of Rs. 40,600 instalments had been fixed, which bad not been paid. It was also stated that the appellant intended to sell his other property in order to enable him to make cash payment of the property in dispute. He prayed that the property should be deleted from the auction list. The Deputy Settlement and Rehabilitation Commissioner, by his endorsement of even date, said that as long as he did not arrange payment of due instalments the question of deletion did not arise. The appellant, thereafter, applied to the Additional Settlement and Rehabilitation Commissioner for extension of the period of the instalments for the payment of auction price. The Additional Settlement and Rehabilitation Commissioner refused this applica--petition, and by his order dated the 27th April 1962, directed that the shops should be offered to any other person who was prepared to pay the same amount of Rs. 48,000, and if that amount was not offered then the shops should be put to public auction. It appears from this order that the appellant had uptill then paid only Rs. 7,440 and that his Compensation Book showed that his entire claim had been exhausted. It further appears that the Additional Settlement and rehabilitation Commissioner gave him several opportunities to make the payment but the appellant failed to take advantage of them. The appellant had a tailor shop and his daily income was not more than Rs.
10. The appellant preferred an appeal from this order and the Settlement and Rehabilitation Commissioner, Peshawar, by his order dated the 4th of June 1962, refused to interfere with the order of the Additional Settlement and Rehabilitation Commissioner. The Settlement Commissioner also refused to allow the appellant to file his agreement of association made with one Mat. Manzur Fatima at that stage inasmuch as the property had already been transferred in the meantime to Haji Fazal Karim predecessor of respondent Nos. 3(i) to 3(vi). The appellant then approached the High Court on a Constitution Petition with the result stated already.
7. Leave was granted to consider the question whether under Paragraph 24 of the Schedule to the Displaced Persons (Compen--sation and Rehabilitation) Act XXVIII of 1958 (hereinafter called "The Act") it was the Chief Settlement Commissioner only who could take action for failure to pay instalments of bid money, and whether the order passed by the Additional Settlement Commissioner was, therefore, without jurisdiction.
(a) the cancellation of transfer of properties made under that subsection to claimants, non- claimants and locals, who have defaulted in payment of either the whole or any part of transfer or purchase price, or public dues;
(b) the resumption of such property or part thereof 1 and
(c) the transfer, in any manner, of the property resumed . . . . . . . . To persons against cash payment . . . . . . . . . ."
8. Paragraph 16-A of the Schedule provides that notwithstanding anything contained in this Schedule, whenever any property is sold by public auction, the auction shall be subject to such terms and conditions as may be laid down by the Chief Settlement Commissioner, and that the Chief Settlement Commissioner may for reasons to be recorded in writing accept a bid other than the highest bid or refuse to accept any bid. Again, paragraph 21 (tit) of the Schedule provides that if the property is transferred to him under this Act by means of auction, the claimant shall pay the amount due from him after adjustment of the total amount of deferred payment admissible to him in accordance with the terms and conditions of auction.
9. By Memorandum No. 839-PI-Reh.-60, dated the 9th January 1960, the Chief Settlement Commissioner directed the auction of shops to be held under the supervision of an Auction Committee consisting of the following :-
(1) Additional Settlement Commissioners of the region concerned (Chairman).
(2) Deputy Settlement Commissioner of the area concerned (Member).
(3) A representative of the Deputy Commissioner (Member).
10. The Chief Settlement Commissioner further directed that the terms and conditions of auction prescribed in the case of industrial concerns might be adopted mutatis mutandis for the auction of shops and might include the following :-
(i) One year's gross annual rent of the shop approximately may be prescribed as the earnest money.
(ii) ------------------.. Claimants will deposit their Compen--sation or Rehabilitation Books instead of paying earnest money in cash provided there is sufficient balance in the amount of deferred payment or compensation available to cover the earnest money. The Compensation Books of unsuccessful bidders will be returned to them immediately after the auction. If a claimant who is a successful bidder defaults in any manner necessitating forfeiture of earnest money, an entry with regard to the amount forfeited on this account will be made in the Compensation or Rehabilitation Book.
(iii) The Chairman, Auction Committee may for reasons to be recorded in writing accept a bid other than the highest bid or refuse to accept any bid.
11. The Chief Settlement Commissioner directed that if the highest bid offered in any case was less than the reserve price, the Chairman of the Auction Committee might at his discretion transfer the shop to any person who was prepared to pay at least the reserve price. Furthermore, that if for some reason the Additional Settlement Commissioner was unable to preside over the auction the Deputy Settlement Commissioner of the area concerned should do so.
12. By a Press Note, dated the 3rd March 1960, the Chief Settlement Commissioner decided (hat the following terms and conditions might, Inter alia, be prescribed while disposing of shops and building sites by public auction :- "(i) The successful bidder will deposit twenty-five percent of the bid money immediately on the fall of hammer. He should produce either Compensation Books of this value or deposit the amount in cash or in the form of a bank draft in the name of the Chairman, Auction Committee, on the date of auction.
(ii) The balance of seventy-five percent of the bid money will be paid by the successful bidder within thirty days unless a longer period is prescribed in the terms and conditions of auction.
(iii) If the successful bidder fails to fulfil the aforesaid conditions or any other condition prescribed by the Settlement Authority concerned, the auction in his favour will be cancelled and the property may be re-auctioned.
13. The" Press Note bore the following post script :- "The imposition of the above conditions have become necessary as the Chief Settlement Commissioner has received reports that In a number of cases the successful bidders have failed to deposit the bid money in accordance with the terms and conditions of auction and have withdrawn their offers thereby delaying disposal of the property."
14. The Press Note contains the latest instructions of the Chief Settlement Commissioner on the terms and conditions that should govern the disposal of shops by public sanction, and it is therefore, applicable in the present case.
15. It is, thus, evident from the foregoing provisions of law and the instructions issued by the Chief Settlement Commissioner, who was competent to issue them, that the successful bidder was required to pay 25 % of the bid money in cash immediately on acceptance of the bid. In the case of the claimant, however, this 25 % could be paid by his surrender of Compensation and Rehabilitation Book and it could be adjusted against his claim provided the claim was sufficient enough to cover the 25 %. Now, so far as the payment of this 25 % of the bid money is concerned, on the admission of the appellant himself in his application appearing at page 49 of the paper- book, he paid only Rs. 7,400 as against the bid money of Rs. 48,000. The sum of Rs. 7,400 is not equivalent to 25 % of Rs. 48,000. Again, admittedly the appellant has not paid the balance of the bid money uptill now although several opportunities were given to him by the Settlement Authorities including the Additional Settlement Commissioner. According to the conditions laid down in the aforesaid Press Note, the balance of 75 % of the bid money was required to be paid by the appellant within 30 days of the day of auction. The appellant having failed to comply with the requirements of the payment of 25 % of the bid money, and the balance of 75 % within the requisite period, the auction in his favour was validly cancelled fn terms of paragraph (iii) o the said Press Note and this was exactly what was done by the Additional Settlement Commissioner by his order dated the 27th of April 1962. The cancellation was, therefore, done in pursuance of the terms and conditions laid down by the Chief Settlement Commissioner himself. The Additional Chief Settle-- ment Commissioner being the Chairman of the Auction Committee was fully authorised to take necessary consequential action in case the auction-purchaser failed to comply with the terms and conditions of the auction. We, accordingly, hold that the Additional Settlement Commissioner was fully competent to pass the impugned order of cancellation.
16. The two notices that were issued to the appellant were entirely ex gratin and as it appears from the record, he was given more than enough Indulgence to pay up the bid money and comply with the terms and conditions of sale.
17. It appears further that on the failure of the appellant, the disputed property was transferred to Fazal Karim, predecessor of respondents Nos. 3(i) to 3(vi) on negotiation for a sum of Rs. 48,003 in terms of the order of the Additional Settlement Commissioner, dated the 27th April 1962, and the transfer was confirmed by the Settlement Commissioner by his order dated the 4th of June 1962.
18. The appellant is a tailor whose daily income is Rs. 10 only. He never could have the means to purchase the shops. At the time of auction his claim amounting to Rs. 7,440 only was available to him in his Com--pensation Book and this sum was wholly inadequate even to meet the requisite 25 % of the bid money. His alleged agreement of association, dated the 3rd June 1962, with Mst.
19. Manzur Fatima was sought to be pit in before the Additional Settlement Commissioner on the 4th June 1962, but the Settlement Commissioner did not permit him to do so. The shops now stand transferred to another person. The appellant has been never in possession of the shops. In these circumstances the appellant has no locus standi and he is merely fighting the battle of Mst. Manzur Fatima who is a stranger. This view is supported by the decision of this Court in the case of Abdul Qayyum v. Chief Settlement Commissioner (HLD1968SC362).
20. Mr. Nisar Muhammad Khan, learned Advocate who appeared for the Settlement Department has said that he has nothing to add to the submissions made by the learned counsel for respondents Nos. 3(i) to 3(vi).
21. There is no substance in this appeal and I would, accordingly, dismiss the appeal, but without any order as to costs.
22. HAMOODUR RAHMAN, C. J.-I agree.
23. SAJJAD AHMAD, J.-I agree.
24. ANWARUL HAQ, J.-I agree.