1. ' ABDUL KADIR SHAIKH, J.--This appeal, by leave, is directed against the judgment of a learned Judge of Sind High Court dated 3-6-1979 whereby a Constitutional Petition filed by appellant was dismissed. By that Constitutional Petition, appellant sought to challenge the order of Additional Settlement Commissioner dated 23-10-1973 and the auction of the property in dispute namely, portion of House bearing City Survey No, 1292 and 1293, Ward 'C' Larkana.
2. ' Facts of the case briefly stated are that the aforesaid property was transferred to Dalloomal, predecessor-in-interest of appellants, en 17-7-1967 on his L.H. Form after he deposited Rs, 4,403 towards arrears of rent. He was directed to pay Rs, 12,852 as transfer price within one month, and being aggrieved by the fixation of that quantum of transfer price, he made a representation for its reduction for the reasons stated by him in his application dated 23-9-1967 which reads as follows: "To, ' The Deputy Settlement Commissioner, Larkana.
3. ' Sub:- In the matter of Property No, 1292 & 1293, Ward "C' Larkana.
4. ' Sir, ' The portion from the above-mentioned C.S. Nos has been transferred to me and Demand Notice for the payment of Rs,12,852 has been issued to me. That according to the area given to me there becomes a difference of Rs, 800 (Eight hundered only) which has been shown in excess in my D.
5. Notice.
6. ' It is therefore requested that the value may kindly be calculated again and correct D. Notice may be issued to me so that I may be able to pay the price.
7. ' Thanking you in anticipation. Yours faithfully.
8. ' Note:- ' Total area of 1292 & 1293 is 334-7 sq.Yds. And the Municipal Assessment is 648 per year for whole area. The area given to me is 200-7 sq.Yds. According to the area given to me the Municipal assessm ent for my share will be Rs, 388-04 and for the other portion the assessment will be Rs, 259-96. It is prayed that the value may kindly be calculated according to the above assessment.
9. Larkana Dated:- 23-9-1967.
10. ' However, before any decision was made on the above application, the Deputy Settlement Commissioner passed the order dated 2-12-1967 cancelling the transfer in appellant's favour by a short order in these words: "The property in question is hereby cancelled as the transferee failed to clear the arrears of the transfer price. Sd/- 2-12-1967 Deputy Settlement Commissioner Larkana."
11. ' The property was later on put to auction on 20-5-1968 and transferred to the highest bidder, Nasir Hussain for Rs, 10,400. Appellant challenged this order in appeal-cum-revision application which was however dismissed by the Additional Settlement Commissioner by the order dated 23-12-1973 for the following reasons: "From the perusal of the entire case papers in respect of the dispute it is established beyond doubt that the applicant was a wilful defaulter and the suit property was rightly resumed and disposed of in favour of the respondents.
12. ' Further in view of PLD 1971, SC 669, it is also now not open to this Court to legally reopen already finalised cases on such grounds.
13. ' The revision has no substance at all and is, therefore dismissed."
14. ' It was this order that was challenged by the appellant in the Constitutional Petition in the High Court which was dismissed by the impugned judgment. The reasons that prevailed with the learned Judge may be stated by reproducing the relevant part of the judgment as under:-- "Mr. Nooruddin Sarki, learned counsel for the petitioner has challenged the auction as being illegal as the property stood transferred in favour of the petitioner. The respondent and their counsel were called absent. I am in agreement with Mr. Sarki that the property has wrongly been put to auction as the appendix in favour of the petitioner had not been cancelled by the Settlement Organisation, but the difficulty in the way of the petitioner is that an appendix is only an offer to transfer and is not a complete transfer in itself and moreover, petitioner failed to comply with the requirement of transfer order and he has done precious little from 17th July, 1967, when he was ordered to pay the price of the property within one month, till 2-8-1975 when he filed the. Appeal. He probably lost interest in the property. It was on account of lies inaction and failure to comply with the order of the Settlement Authorities that the property was put to auction and another unfortunate cirumstance has intervened, that a third party viz. Anandram and Mandhawdas have stepped into the shoes of auction-purchaser and a P.T.D. Had been issued in their favour on 26-5-1973. The petitioner contends in his petition that he made application for reduction of price to the Settlement Authorities, but the petitioner has failed to produce any proof of the same. In fact this plea of the petitioner is untenable as he should have filed an appeal against the order of 17-7-1967 to become final. Thereafter, he could not have made any representation of reduction of the price. Mr. Sarki has stated that the auction on 30th May, 1968 was based on the order of 18-2-1967 which had been setaside in appeal by the Additional Commissioner and hence the auction was void. I think there is some force in what Mr. Sarki contends and there may have been confusion in the Settlement Office and they may have based the auction on the order of 18-2-1967, but the petitioner has failed to comply with the order of even 17-7-1967, and the Settlement Office may have considered that the order of 17-7-1967 has lapsed on account of failure of the petitioner to comply with the same. Be that as it may, unfortunately the petitioner has been sleeping for full 6 years before he filed appeal and meanwhile vested interests of third parties viz. Respondent No, 2 and his brother had been created in due course in this property for valuable consideration and a P.T.D. Had been issued.
15. Therefore, the Settlement Commissioner did no wrong when he dismissed the revision of the petitioner. The petitioner failed to pay the price as directed and further failed to take any action in time. In these circumstances the petition is dismissed."
16. Leave to appeal was granted by this Court in order to consider the plea raised on behalf of the appellant that the limitation of one month's time fixed for the payment of transfer price and also the determination of the transfer price of Rs, 12,852 were actions totally contrary to the rules on the subject, and since neither any notice was issued to appellants' predecessor-in-interest nor an order of redemption of the property was passed, the auction of the property was totally void in law.
17. The facts of the present case squarely fall within the principle laid down by this Court in Bashir Ahmad v. Zahoor Ahmad and another 1985 SCMR 1247 wherein it was held that the cancellation or resumption of the transferred property in the absence of observing the prescribed procedure for cancellation/redemption is illegal, and the earlier transfer in favour of the party concerned remains intact. Earlier this Court in somewhat similar situation as in this case held in Mst. Zarina Rauf Butt and others v. Malik Aziz Ahmad and others, PLD 1982 SC 272, that where proper adjudication of transfer price is pending, it is not open to the Settlement Authorities to cancel the transfer on the ground of non-payment of the full transfer price. Again in Muhammad Saleem C and others v.
18. Muhammad Yaqub and others 1987 SC MR 1171, it was held that the delay in payment of transfer price would not entitle the Settlement Department to cancel the transfer and put the property to auction. There is therefore no escape from the conclusion that the impugned order of the learned Deputy Commissioner dated 2-12-1%7 cancelling the transfer in favour of appellants' predecessor- in-interest was void ab initio. This was indeed the view of the learned Judge in the High Court when he observed that "I am in agreement with Mr. Sarki (learned counsel who appeared before the High Court for the appellant) that the property has wrongly been put to auction as the appendix in favour of the petitioner had not been cancelled by the Settlement Organization." He however refused to grant the relief on the ground that in his opinion appellant "had lost interest in the property". This view is not only erroneous but since the basic order of resumption of the property is void in law, he should not have denied the relief otherwise due to the appellant.
19. ' For these reasons the appeal is allowed, the impugned judgment of the High Court and all the impugned orders passed against appellants' predecessorin-interest relating to the disputed property are set aside and the transfer of the property in favour of appellants' predecessor-in- interest is upheld as valid in law.
20. ' The appellants shall deposit the transfer price at Rs, 12,852 within one year with the Nazir of the High Court who shall transmit the amount to the authorised person under the law. The parties are however left to bear their own costs.