AJMAL MIAN, C.J.--The above petition is directed against the orders dated 1-4-1979 and 26-4-1981, passed by respondent Nos.2 and 1 respectively. The brief facts leading to the filing of the above petition are that a plot of land, measuring 2,000 square yards, bearing No.70, situated on Khayaban-e-Bukhari, Block 6 of the Defence Officers Cooperative Housing Society Limited (hereinafter referred to as the plot was allotted to one Lt. Colonel Mehtabuddin Ahmad (hereinafter referred to as the allottee). It is the case of the petitioners p that petitioner No.1 entered into an agreement with the allottee in April, 1971 for s the purchase of plot for a consideration of Rs.21,000 out of which a sum of; Rs.5,000 was paid in May, 1971, and the balance amount was paid on 19-11-- -1971. Upon the receipt of the balance amount, the allottee executed a receipt for having received the full consideration on 19-11-1971 and also executed an affidavit on the same date relinquishing his right on the plot in favour of petitioner No.1. It is also the case of the petitioner that because of the uncertain conditions obtaining at the relevant time in Pakistan, the petitioner No.1 submitted affidavit of the allottee to the Defence Officers Co-operative Housing Society Limited (hereinafter referred to as the Society) on 25-1-1972, which was accepted by the Society on 15-4-1972. It is also the case of the petitioners that after the amendment of bye-laws in 1976 permitting the transfer of the plot in favour of non-member by admitting him as an associate member, petitioner No.1 approached the Society for the transfer of the plot in favour of petitioner No.2, when they were asked to obtain no objection from respondent No.2. It is further case of the petitioners that when they made enquiry, they discovered that the plot was notified as abandoned property in terms of section 11 of the Abandoned Properties (Taking over and Management) Act, 1975 (XX of 1975) hereinafter referred to as the Act). Thereupon, the petitioner filed an application under sections 13 and 14 of the Act before respondent No.2 on 7-8-1976. Which was heard by respondent No.2 and which was to be allowed but subsequently the application was rejected on receipt of instructions from the Higher ups by the impugned order dated 1-4-1979 on the ground that the consideration was not adequate. The petitioners being aggrieved by the above order filed appeal which was also dismissed by respondent No.1 by the impugned order dated 26-4-1981. The petitioners being aggrieved by the. Above orders had filed the above petition.
2. In support of the above petition, Mr. Shamsul Arfin, learned counsel for the petitioners, has urged as follows:-
(i) That the plot could not have been treated as Abandoned Property within the in meaning of section 2 (a) of the Act:
(ii) That since the-transaction was accepted by the Society on 25-1--1972 on the basis of the document of November, 1971, it would be deemed that the transaction was finalized on the original date.
(iii) That the impugned orders are perverse and mala tide
3. On the other hand, Syed Inayat A.I, learned counsel for the respondents, has submitted that in terms of subsection (2) of Section 15, the Board could pass any order which it might think fit and that because of the above provision, the order cannot be said to be without jurisdiction or in excess of jurisdiction.
4. From the impugned order dated 1-4-1979, passed by respondent No.1, we have noticed that the petitioners' application was denied on the ground that the consideration was not adequate, whereas, in the appellate impugned order dated 26-4-1981, a number of other grounds have been added including the alleged discrepancy between the receipt for the payment and the amount allegedly paid by the petitioner No.1, the delay in submission of the document to the Society. Mr. Shamsul Arfin has pointed out that the reference to the three transactions in the impugned order of respondent No.2 is incorrect as the area shown is 100 square yards instead of 1,000 square yards in each of the said three transactions. The ground of inadequate consideration which found favour with respondent No.2 has been negated by respondent No.1 in their order by holding, that the petitioner No.1 had. Paid a total sum of Rs.33,025 which apparently includes Rs.6,000 being the transfer fee of the plot paid to the Society. The petitioner has filed documents to indicate that factually the three plots referred to in the impugned order of respondent No.2 were of 1,000 square yards and not of 100 square yards as stated in the impugned order. If the price of 1,000 square yards in 1976 ranged between Rs.18,000 to Rs.23,850 the consideration shown by the petitioner No. 1 for the year 1971, namely, about Rs.26,000 after the payment of Society dues, cannot be said to be inadequate, and, therefore, the impugned order of respondent No.2 could not have been sustained on the above ground. The respondent No.1 added the grounds which are based on surmises and conjectures, there seems to be-no discrepancy between the alleged amount paid by the petitioner No. 1 and the receipt produced by him. It was not the case of the petitioner No.] that in addition to Rs.5,000 he had paid Rs.21,000. The receipt indicates total payment of Rs.21,000. The above point is candidly conceded by Syed Inayat A.I and he, has submitted that, there is no such alleged discrepancy as alleged in the impugned order of respondent No.1, as to the amount of consideration, The alleged delay of two months in the submission of the affidavit to the society has been sufficiently explained. It cannot be denied that there were uncertain situation obtaining in Pakistan in the months of November and December, 1971. Similarly, the conclusion of respondent No.1 that if petitioner No.2 wanted to purchase the plot, he should have done so in 1971, is also based on surmises and conjectures. It has not been denied that in 1971, the plot could not have been transferred in favour of petitioner No.2 by the Society, as he was not a member of the Society and not being a defence personnel and, therefore, the plot was purchased in the name of petitioner No.1 to whose favour the plot could have been transferred. The above two referred facts, were not made grounds by respondent No.2 while rejecting the petitioner's application.
5. Mr. Shamsul Arfin has vehemently contended that factually respondent No.2 was going to allow petitioner's application but upon receipt of instructions from Higher ups the above application was rejected. In support of the above submission, he has invited our attention to paragraph 10 of the petition and paragraph 12 of the counter-affidavit which contains reply to the above paragraph of the petition. It may be advantageous to reproduce the same. Which read as follows:- "10. The petitioners' case therefore proceeded on merits and the petitioner is aware that by an order dated 11-10-1978 the Deputy Administrator proposed to allow the petitioner's application under Sections 13 and 14 of the Abandoned Properties Act of 1975. But this order evidently did not gain the approval of the Higher ups and a different order was passed by the same officers on the 1st of April 1979 rejecting the petitioner's case. A copy of the said order is filed herewith and marked "H".
12. That the statement made in paragraph 10 of the petition is admitted to the extent that the case of the petitioner was rejected by the learned Deputy Administrator vide order dated 1-4-1979. It is however submitted that the Deputy Administrator forwarded papers to the B.O.T. In terms of subsection(4) of Section 13 of the Act XX of 1975."
6. It is evident from the above-quoted paragraphs that the resp6nzicn'ts have admitted the factum that respondent No.1 had submitted the papers to respondent No.1 under sub-section (4) of Section 13 of the Act which provide submission of papers by respondent No.2 to respondent No.1 only in a case in which the application was to be accepted and not when it was to be rejected. The above subsection (4) of Section 13 of the Act provides:- "(4) If the application is not rejected under subsection (3), the Administrator may, with the prior approval of the Board, confirm the creation or transfer either unconditionally or subject to such terms and conditions as he thinks fit to impose."
7. We are inclined to hold that the respondents have declined the petitioner's application on the grounds which were not sustainable in law. We would, therefore, allow the petition and declare the impugned orders as being without lawful authority and of no legal effect. However, there will be no order as to costs.