1. ' ANWARUAL HAQ, J.-This appeal, by the leave of the Court, is directed against an order dated the 28th of September 1967 made by a Division Bench of the former High Court of West Pakistan at Peshawar, whereby a Constitution petition moved by the appellant, in the matter of the transfer of an evacuee building known as Serai Devi Dass Jawala Dass and situate in Mohallah Shah Baz Darugaran, outside Reti Gate, Peshawar City, was dismissed.
2. ' The building is stated to comprise nineteen rooms, out of which three rooms are being used as shops, three as godowns, and the remaining for residential purposes. It appears that none of the occupants of these rooms applied for its transfer, with the result that it was put to public auction on the 8th of March 1960. The highest bid for Rs, 31,000 was offered by one Faiz Ali, but the same was not accepted as it fell below the reserve price of Rs, 45,619. The learned Additional Settlement Commissioner directed that the building be re-auctioned. There is a dispute between the parties on the question whether a fresh auction was ever held, a point to which we shall advert later. At this stage it will suffice to state that on 16-4-60 the property was transferred in favour of the present appellant Noor Ahmad for Rs, 31,934 which was regarded as the reserve price of the building under the "new formula". A P. T. O. Was issued in favour of the appellant on 2-5-1961, after he had paid the sale price.
3. ' On 18-7-61, five persons, including respondents No, 4 and 5, namely, Haji Fazal Elahi and Niamutullah, made an application to the Additional Settlement Commissioner for setting aside the transfer in favour of the appellant, and requesting that the property be transferred to them either jointly or individually. A reply was sent to them by the Deputy Settlement Commissioner on the 19th of August 1961 to the effect that the property in question had already been disposed of through auction, and, therefore, they may avail of the legal remedy open to them. On receiving this reply the two respondents, alongwith eighteen other persons, filed an appeal which was, however, dismissed by the learned Settlement Commissioner, Peshawar Division, by his order dated 1-11-1961.
4. This Officer observed that the appeal was time-barred by one year and four months, and he could not believe that the appellants, who were residents of Peshawar City could remain ignorant of the order transferring the property in favour of Noor Ahmad. He also recorded a finding that "after hearing the arguments it is very clear in the order of the Additional Settlement Commissioner that the property was put to second auction, and on the recommendation of auction committee the offer of Noor Ahmad was accepted, which amounted to Rs, 31,934, equal to the revised reserve price. This shows that the appellants did not take part in the auction proceedings deliberately. The first auction was held on 8-3-60 and the second on 16-4-60".
5. ' Aggrieved by this appellate order of the learned Settlement Commissioner, Peshawar Division, respondents Nos. 4 and 5, alongwith Faiz Ali, filed a revision petition in the Court of the Chief Settlement Commissioner at Peshawar on 22-11-1961. Another revision petition was also filed in the same Court on 11-4-1962 by twenty persons, including respondents Nos. 4 and 5. The matter was taken up by Mr. Muhammad Ziaullah Khan, Settlement and Rehabilitation Commissioner, Lahore Division, with powers of the Chief Settlement Commissioner for Multan, u. I. Khan and Peshawar Divisions, and disposed of, by his order dated 22-5-1962. It is not clear from the order as to which of the two revision petitions was being dealt with by this Officer, but the point is not material as both the revision petitions were based on identical grounds. Mr. Mohammad Ziaullah Khan observed that although the petitioners before him had filed a revision petition yet in fact this was an appeal and he would treat it as such. On the merits of the case, he observed that the property had been transferred by private negotiation below its reserve price just to favour a local. He, therefore, accepted the appeal, set aside the transfer in favour of Haji Noor Ahmad, and directed that the property should be put to open unrestricted auction, room by room, after giving wide publicity.
6. ' This order of Mr. Ziaullah Khan was challenged in the High Court by Hap Noor Ahmed. Jt was contended on his behalf that the learned Settlement Commissioner, exercising the powers of the Chief Settlement Commissioner, had no jurisdiafon to treat the moondeut,'6 revision Petition as an appeal, and, therefore, the High Court ought to declare his order as being one without lawful authority. The contention was, however, repelled by the learned Judges by observing that the writ jurisdiction being purely discretionary and primarily designed to sub serve justice, and not to perpetuate illegal orders, could not be exercised in favour of the appellant, as the transfer of the property in his favour by private negotiation was manifestly contrary to the provisions of law as contained in the relevant Paragraphs of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. They expressed the view that the Settlement authorities were not empowered to transfer the propertly by negotiation unless genuine efforts had been made to dispose of the same by unrestricted auction, and only when the offers made in the unrestricted auction were unattractive, that the property could be disposed of by negotiations, provided further that the price negotiated was not below the auction bid.
7. ' Leave to appeal was granted in this case to examine, inter alia, the following two questions :-
(1) That the Deputy Settlement and Rehabilitation Commissioner had no authority to treat the revision petition as an appeal, nor was an appeal competent before him ; and
(ii) That the transfer in this case was in accordance with Memo. No, 4499-P. 1-Reh/60, dated 9th/16th March 1960, and as such, the Settlement and Rehabilitation Commissioner had rightly refused to entertain the hopelessly time-barred appeal against the order of the Additional Settlement and Rehabilitation Commissioner.
8. The first question does not present much difficulty. By Ordinance No, 2 of 1962, as amended by Ordinance No, 13 of the same year, revisional powers were taken away from the Chief Settlement Commissioner, unless the records of the case had been summoned before the 13th of January 1962, In the report submitted by the Settlement Department, it was made clear that the records in the revision petition filed by the two respondents were summoned for the first time on 12-4.62, whereas the second revision petition had been filed much after the prescribed date. As a result, both the revision petitions were incompetent. It appears that it was for this reason that Mr. Ziaullah Khan proceeded to deal with the matter by observing that "in fact this is an appeal and I treat it as such."
9. ' It is clear that this approach was entirely misconceived. In the first place, the initial order of transfer made by the Additional Settlement Commissioner in favour of the appellant had already been made the subject-matter of a time-barred appeal, which had been dismissed on 1-11-1961 by the learned Settlement Commissioner exercising appellate powers for the Peshawar Division. No second appeal in the same matter could lie to an Officer of co-ordinate jurisdiction in the matter of status and powers, and also totally lacking in territorial jurisdiction. We have already stated that Mr. Ziaullah Khan had the powers of a Settlement Commissioner for Lahore Division only, but he had been given powers of a Chief Settlement Commissioner for Multan, D. I. Khan and Peshawar Divisions, which powers could not be invoked in the present case owing to the limitation placed by Ordinances Nos. 2 and 13 of 1962. As he was not the Settlement Commissioner for the disposal of the ordinary appellate and revisiona work of Peshawar Division, his order in appeal, even if it was maintainable otherwise, would be eutirejy without jurisdiction.
10. ' As the order made by Mr. Ziaullah Khan on 22-5.1962 has been found to be without jurisdiction, it would follow as a natural corollary that the appellate order of the Settlement Commissioner of the Peshawar Division would automatically stand restored. It was however, submitted by Sh. Ghias Muhammad, learned counsel for the respondents, that as the appellant had faded to object, at the proper time, to the assumption of jurisdiction by Mr. Ziaullah Khan, he was not entitled to any relief in the High Court. Learned counsel further submitted that in any case the High Court had acted on good authority in refusing to grant relief to the appellant, as the writ jurisdiction of the High Court was not to be made an instrument for perpetuating injustice, by allowing the appellant to grab property to which he was not entitled under the law.
11. ' In support of the first submission, Sh. Ghias Mohammad placed reliance on Ghulam Mohiuddin v.
12. The Chief Settlement Commissioner (I) in which it was held that the failure of the appellant to raise any objection to the hearing of the review petition and his willing participation therein in spite of being aware of the true legal position, and in deliberately allowing the Settlement Commissioner to commit an illegality disentitled him to claim abashment of the order passed in review. It was added that discretionary relief was refused in such a case as the petitioner bad stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess, knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself. This decision has, however, to be read in the light of the subsequent decisions, for example, in Mohammad Afzal v. Board of Revenue (2) in which it was observed that "by mere submission, in the capacity of a respondent, to the authority of the Member, the appellant could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power to interfere with the order of the Commissioner." The distinction sought to be brought out was that where a party had himself invoked the jurisdiction of a Tribunal, he could not be permitted later on to allege want of jurisdiction in the event of the decision going against him. Now, in the instant case, the rev signal or the appellate jurisdiction of Mr. Mohammad Ziaullah Khan had not been invoked by the present appellant; he had merely been called upon to appear before this Officer as a respondent at the instance of those who had sought to challenge the transfer made in his favour. We are, therefore, of the view that the appellant was not in any manner estopped from raising the question of jurisdiction in regard to the order made by Mr. Ziaullah Khan.
13. ' It is correct that in several cases, namely, Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner (3), Tufail Mohammad v. Mohammad Ziaullah Khan (4), Merajuddin v. Director.
14. Health Services (5) and Wall Mohammad and others v. Sheikh Mohammad and others (6) this Court has reiterated its view that relief in writ jurisdiction being entirely discretionary with the High Court, it ought not to be granted to help retention of ill-gotten gains by a party even if because of any technical reason an order passed by a Tribunal is not found strictly justifiable, as the writ c jurisdiction is not to be invoked in aid of injustice. The question, therefore, is whether the transfer of the property in favour of the appellant was in any manner contrary to law.
15. ' We have already stated that Mr. Ziaullah Khan as well as the learned Judges in the High Court have proceeded on the assumption that the property was transferred to the appellant by private negotiation, even though the Additional Settlement Commissioner had ordered that it should he put to re-auction. An examination of the record of the Settlement Department shows that this view is factually incorrect. The first indication, in this behalf is contained in the recommendation made by the Deputy Settlement Commissioner on 16-4-60 in the following terms :- "Token No, 817, Noor Ahmad has offered Rs, 31,934, which is the revised reserve price according to new formula, which may be accepted and confirmed."
16. This recommendation is followed by an order recorded by the Additional Settlement and Rehabilitation Commissioner to the effect that "the offer of Mr. Noor Ahmad for Rs, 31.934 recommended by the auction committee which is equal to the revised reserve price is accepted".
17. ' It would be recalled that it was a normal condition of the procedure for the auction of industrial concerns, houses and shops that one-fourth of the reserve price was to be deposited as earnest money before anyone could be allowed to bid at the auction. The mention of Token No, 817 in the recommendation made by the Deputy Settlement Commissioner shows that the appellant had complied with this requirement in the first instance. The challan form in original, on which a sum of Rs, 7,500 was deposited by the appellant on 16-4-60, is available on the Settlement file and it shows that the deposit was made as earnest money for the auction of the property in question. A second circumstance, directly relevant in this behalf, is that the recommendation was made by the Deputy Settlement Commissioner as Chairman of the auction committee, and a reference to this aspect is contained in the final order of transfer made by the Additional Settlement Commissioner.
18. ' We next find that when the respondents applied on 18-7-61 to the Deputy Settlement Commissioner another authorities for setting aside the transfer in favour of the appellant, they were informed that the property had been disposed of by auction. The matter does not rest here.
19. The Settlement file contains a letter written by the Deputy Settlement Commissioner on 9-9-61 to the occupants of the property, including the respondents, to the effect that the property had been purchased in auction by Mr. Noor Ahmad, and they should, therefore, attend the office of the Deputy Settlement Commissioner on 13-9-61 for finalizing their individual accounts etc. This letter could not have been issued in these terms if at the time of the transfer of the property in favour of the appellant; the authorities had regarded it as a transfer otherwise than by auction.
20. ' We mention these facts only to show that the finding recorded by the learned Settlement Commissioner in his appellate order of the 1st of November 1961 that the property had been disposed of by auction in favour of Haji Noor Ahmad was clearly sustainable on the record, and could not ordinarily have been set aside in revision or writ jurisdiction of the High Court. On a review of the entire record of the Settlement Department, and the various orders passed in this case as well as the correspondence addressed to the respondents, it seems to us that the re-auction of the property was scheduled to be held on 16-4-60, as directed by the Additional Settlement Commissioner while rejecting the inadequate bid of Fiaz Ali on 8th of March 1960. It was for this reason that the appellant deposited the earnest money so as to be able to participate in the auction, but there were apparently no bidders and the auction committee, therefore, decided to recommend that the property be transferred to the present appellant against his offer of a price equal to the revised reserve price of the property.
21. In these circumstances, it cannot be said that the disposal was not by way of auction, but by negotiation. On this view of the matter, it becomes clear that the High Court was in error in thinking that the property had been disposed of by an illegal or underhand manner in favour of the present appellant.
22. ' An argument was raised by Mr. Ghias Mohammad that the Memorandum or circular of the 16th of March 1960 issued by the Chief Settlement Commissioner for the disposal of houses and shops by private negotiation, could not have any statutory force, for the reason that under Paragraphs 7 and 12 of the Schedule to the Act, the manner of disposal of properties not transferred under the preceding paragraphs dealing with the two categories had to be prescribed by the Government by notification in the official Gazette, as required by section 35 of the Act, but no such notification had been issued so far. We consider that it is not necessary for us to deal with this question for the purpose of the disposal of the present appeal, as we have already expressed our agreement with the finding recorded by the learned Settlement Commissioner in appeal that the property had been disposed of in favour of the appellant by means of an auction as directed earlier by the Additional Settlement Commissioner. This disposal would fall under Paragraphs 6 and 11 of the Schedule to the Act and not under Paragraphs 7 and 12.
23. ' The final position which, therefore, emerges in this case is that the appellate or revisional order made by Mr. Mohammad Ziaullah Khan, a Settlement Commissioner purporting to exercise the powers of the Chief Settlement Commissioner, was entirely without jurisdiction, and must, therefore, be declared to be without lawful authority and of no legal effect. As a result, the appellate order made by Mr. Behram Khan, Settlement Commissioner, Peshawar Division, on 1-11-61 would stand restored. According to that order, the property had been transferred in favour of the appellant at the second auction held on 16-4-60, at which apparently there were no other bidders. Such being the case, the disposal was in accordance with the provisions as contained in Paragraphs 6 and 11 of the Schedule to the Act, and the High Court was, therefore, in error in thinking that by setting aside the order of Mr. Mohmmad Ziaullah Khan it would be acting in aid of injustice. We would accordingly accept this appeal, set aside the orders made by the High Court and by Mr. Mohammad Ziaullah Khan, Settlement Commissioner with the powers of the Chief Settlement Commissioner, and restore the appellate order passed by Mr. Behram Khan, Settlement Commissioner, on 1-11-61 in favour of the appellant. The parties are left to bear their own costs.