Plots bearing Nos.5227/221 and 5228/221 each measuring 4 Marlas and 2 Sarsahis were put to unrestricted open auction and were purchased by Muhammad Aslam Butt, respondent No.3 and Ghulam Hussain deceased, predecessor-in-interest of respondents Nos.l and 2, in the said auction for an amount of Rs.6,000 for each plot on 7-3-1963. They paid an amount of Rs.500 as a token money and in spite of the fact that they did not deposit the balance auction amount as per term No.10 of the terms and conditions of auction, the auction was approved by the learned Additional Settlement Commissioner vide Order dated 14-6-1963. On 16-1-1977, Muhammad Hayat petitioner before this Court filed B.S. Form for transfer of the plots referred to above on the basis of possession and raising of constructions thereon under Settlement Scheme No.VIII. Deputy Settlement Commissioner/Deputy Administrator (R.P.), Rawalpindi transferred the plots to the -petitioner vide order dated 25-2-1981. In pursuance of the aforementioned transfer order T.O. was issued to the petitioner on 7-6-1981. The petitioner also claimed plot bearing Khasra No.5229 but as his claim was refused, he filed a revision petition before Administrator (R.P.), Rawalpindi respondent No.l who dismissed the revision petition and while dismissing the same cancelled the transfer of the plot, referred to above from the name of the petitioner vide order dated 28-9-1981 on the ground that the Plots Nos.5227/221 and 5228/221 have been illegally transferred to the petitioner as the same could not have been transferred having already been disposed of by auction which auction had been duly confirmed and further that the said plots were never resumed in accordance with the Settlement Scheme No.VIII nor the auction was ever cancelled, hence it was not an available evacuee property meant for disposal under R.P. Scheme. The subsequent order of cancellation of these plots dated 3-7-1980 passed by the Deputy Settlement Commissioner was held to be bogus and ante-dated. The case hence was remanded to the Deputy Administrator respondent No.2 for decision of the matter afresh. This order was challenged in W.P.No.5-R of 1985 in this Court wherein the case was remanded to respondent.No.2 for decision thereof in the light of the following points:
(1) Whether notice. under Chapter 2, section 2 of Settlement Scheme No.VIII in regard to the resumption of property was issued and duly served on respondents Nos.3 and 5. If so, its effect?
(2) Was the disputed property available for transfer under Settlement Scheme for the Managementand Disposal of available urban properties?
(3) In addition to the aforenoted two points, it shall be open to both the parties to raise any point which is relevant to the issue?
2. In post-remand proceedings learned Additional Deputy Commissioner(G)/Deputy, Settlement Commissioner/Deputy Administrator (RP), Rawalpindi/Notified Officer, vide order dated 29-5-1988 has rejected the B.S. Form of the petitioner and decided that the plots referred to above may be transferred to respondent No.3 Muhammad Aslam Butt and Ghulam Hussain deceased predecessor of the respondents Nos.4 to 11 which they had purchased in open auction, on their deposit all the dues within a period of one month from the date of announcement of the order. In pursuance of the above order, the auction purchaser-respondents have deposited the balance auction price and on completion of other formalities, Transfer Order has been issued to them. This order has been challenged through this Constitutional Petition by the applicant.
3. M/s. Raja Muhammad IqbW and Muhammad Latif Khalid, Advocates have appeared on behalf of Muhammad Hayat petitioner whereas Mr. Muhammad Siddique Qureshi, Advocate has appeared on behalf of respondents Nos.3 to 11. Learned counsel for the petitioner have raised the following contentions:--
(i) That as admittedly respondent No.3 and Ghulam Hussain deceased, the auction-purchasers had not deposited the balance auction amount within the stipulated period of 30 days, no complete contract came into existence and hence auction in their favour automatically stood cancelled, therefore, the plots were available for disposal under the R.P. Scheme where under they have filed B.S. Form. It is contended that it was not at all necessary under the Settlement Scheme No. VIII to resume the property in question inasmuch as it has never been transferred. Therefore, the petitioner being in possession of the property having raised construction in question thereon, is entitled to transfer thereof under Settlement Scheme No.VIII and the learned Notified Officer has illegally held that the property was not available for disposal under R.P. Scheme and has committed an error of jurisdiction by holding that the plots stand purchased by the respondents in open auction and by allowing them to deposit the balance price. In support of his contention, learned counsel have placed reliance on the law declared in case of Abdul Hamid and others v.
Fazalur Rehman and others (1989 SCM R 120);
(ii) That admittedly,, respondent No.3 as well as Ghulam Hussain deceased predecessor-in- interest of respondents Nos.4 to 11 did not pay the balance auction price within the stipulated period and even the order of transfer of the plots in favour of the petitioner passed in May, 1981 was not. challenged by any lawful proceedings, it shall be assumed that the respondents had abandoned their rights in the property in question and therefore they cannot claim any right to retain the said plots as auction-purchasers. Reliance is placed on the law declared in case of Inayat Ullah v. Sh. Muhammad Yusuf, etc. (1979 SCMR 487);
(iii) That Settlement Scheme No.Vlll where under prior notice is necessary to be issued while resuming the property in question, a person has to be a transferee thereof and in this case as no complete contract has taken place as yet, therefore, it cannot be said that respondent No.3 and Ghulam Hussain deceased were transferees within the meanings of Settlement Scheme No.Vlll which requires issuance of notice to transferee before resumption, and not to a person who is only an auction-purchaser, who has not even fulfilled the conditions of auction and as such his title is still inchoate and in fact non-existent in the eyes of law as by no stretch of imagination, he can be termed as transferee. Reliance has been placed on case of Shabbir Ahmad v. Mst. Kabir-un--Nisa and others (PLD 1975 SC 58).
4. As against the above arguments addressed by the learned counsel for the petitioner, learned counsel for the respondents Nos.3 to 11 has taken me through the terms of auction particularly terms Nos.10 to 11 which are reproduced as below:-- and has contended that the plots in question having admittedly been purchased in open auction by the respondent and the auction having never been cancelled in accordance with term No.ll of the terms of auction, it cannot be said that the auction stood cancelled, merely due to non-deposit of balance auction price, particularly when there is nothing on the record to show that a notice to deposit or a show-cause notice was ever issued, an order was ever passed to cancel the same or it was ever resumed in accordance with the provisions of Settlement Scheme NO.VIll, which also require, a mandatory issuance of demand notice for payment of the dues, it cannot be said that the plots in question were available property to be disposed of under R.P. Scheme. According to the learned counsel, case of "Abdul Hameed and another" (supra) relied upon by the learned counsel for the petitioner is distinguishable on facts inasmuch as the case relates to the disposal of the property under Settlement Scheme NoNIII paragraph 21 whereof itself provides that in case of failure to pay bid amount within a period of 30 days, the auction shall automatically stand cancelled but no such provision is found in terms and conditions of auction in question therefore, if a property is purchased in auction in Scheme No.VI unless and until it is proved on record that the. auction-purchaser was notified about the demand in arrears and also about his default, and is proved that he wilfully failed to pay the balance auction amount, it cannot be said that he is a defaulter and as such the; law declared in the above case is not at all applicable to the facts and circumstances of this case. According to the learned counsel, the case is fully covered by the law declared in case of Muhammad Afzal. v. Muhammad Yousuf, etc. (1984 SCM R 296), J Sher Muhammad and others v. Settlement Commissioner and others (1988 SCM R 576) and case of Sughran Begum v. Nawab Din, etc. (1986 CLC 819), which lay down that unless and until the property is resumed in accordance A with Settlement Scheme No.Vlll with a prior notice issued to the alleged defaulter, the property in question cannot be resumed and cannot be said to be available property for the purpose of disposal under R.P. Scheme and as admittedly in this case there is neither a valid order of cancellation of the auction nor is there an order of resumption, the petitioner could not claim disposal of the property in his favour under Settlement Scheme No.Vlll, hence the order passed by the learned Notified Officer is quite valid and lawful.
Regarding contention of the learned counsel for the petitioner that the petitioner has abandoned his rights, learned counsel has contended that there is no estoppel against a statute and as the auction was approved and mandatory demand notice was never served penal consequences could not flow as there cannot be estoppel against a right guaranteed by a statute. Reliance in this behalf has been placed by the learned counsel on case of "Sher Muhammad and others" (supra) wherein at page 579 of the report it has been held as under:- "The penal consequences ensue only in case of default after such notice as is provided in para. 3 of the Scheme. On the record, there is no material to hold that the demand notice was sent by para No.2 to entail its penal consequences, that is, of this case squarely fall within the dictum of this.
Court laid down in Muhammad Afzal v. Muhammad Yusuf and others 1984 SCM R 296, wherein it was held that there cannot be a resumption without a demand notice. This being the legal position there was no valid resumption of the open plot so as to render it available for auction. The fact in Mst. Zarina Rauf Butt's case are, however, distinguishable as therein paragraph 2-A of the Settlement Scheme No.VIII was pressed into service which is not the case here. The High Court, however, relied on his consent as a piece of conduct disentitling him to get the equitable relief which otherwise was based on a technicality, that is, that he was entitled to a demand notice under para. 2 of Settlement Scheme No.VIII. The High Court in holding so fell into an error as there cannot be an estoppel against a statute nor the lapse in giving notice can be regarded as a procedural error and therefore a mere technicality. The giving of the demand notice was mandatory without which no penal consequence could flow. The Notified Officer was also in error to hold that the cancellation and the resumption was automatic." and also in case of Muhammad AIM v. Muhammad Yusuf, etc. (1984 SCM R 296). Learned counsel has rather argued that having confirmed the auction, the Settlement Authorities have waived their right to cancel the auction in question or to resume the property in dispute as the principle of waiver is applicable against them, as held in case of "Muhammad Afzal" (supra) at page 49 of which report, it has been held as under:-- "The learned counsel for the appellant while candidly conceding that there was no compliance of para 2 of Settlement Scheme No.VIII, contended that the auction was not valid in favour of the first respondent as he did not deposit 1 /4th of the auction money with the fall of the hammer. This argument was not raised before the High Court nor leave was granted to consider it. If at all this stipulated amount was not deposited, it was open to the Settlement authority not to confirm the bid, but their having done so, it amounted to waiver."
Regarding third contention raised by the learned counsel for the petitioner to the effect that the notice required to be served under Settlement Scheme No.VIII is to be served upon the transferee and is not to be given to the auction-purchaser, learned counsel contends that this argument is also misconceived inasmuch as the auction having been approved in favour of the respondents, they shall be deemed to be the transferees under the law for the purpose of service of demand notice for payment of the balance bid amount.
5. 1 have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Admittedly, the plots in dispute were purchased in open auction by respondent No.3 and Ghulam Hussain deceased respondent, predecessor-in-interest of other respondents Nos.4 to 11, on 7-3-1963. This auction was admittedly confirmed by the learned Additional Settlement Commissioner on 14-6-1963. This auction was never cancelled by the Settlement Authorities, it was rather confirmed after expiry of period of 30 days in spite of non- deposit of balance auction price. Admittedly, no notice under the provisions of Settlement Scheme No.VIII was ever served upon the respondents for resuming the property in question which in fact has never been resumed. The net result is that till the time of filing of B.S. Form by the petitioner, the plots in question were not available property for the purpose of disposal under the R.P. Scheme.
There is no change in the aforementioned position till now. Order of cancellation of auction in question was for the first time shown to have been passed in the papers on 3-2-1980 by the D.S.C.
The record shows that on 3-2-1980, the order passed by the D.S.C. was to summon the parties but strangely enough on a side of the order sheet another order of the same date has been written showing cancellation of the allotment. That is why after the perusal of the record, Administrator R.P. respondent No.l in his order dated 29-9-1981 has held that the order of cancellation of the auction is fake and forged one. Learned counsel for the petitioner has also conceded the above factual position and further that so far neither the auction has been expressly cancelled nor the property has been resumed under Settlement Scheme No.VIII. His case is that due to default in payment of balance auction price, the bid .automatically stands cancelled. Plots in question were put to unrestricted auction under Settlement Scheme No.VI which is governed by its own terms and conditions. Terms and conditions Nos.10 and 11 which have been reproduced above clearly show that the auction can be cancelled if there is a default in payment of balance bid amount or the instalments. It is admitted position that the respondents were never asked to deposit the balance bid amount in toto or in instalments, rather the auction was confirmed three months after the same was held. Consequently, the presumption would be that the respondents were not considered to be the defaulters by the departmental authorities. Therefore, the auction in question having not been cancelled and having rather been approved, the respondents have acquired a right of transfer of the property in question and it could only have been made available for disposal under R.P. Scheme if a demand notice was issued under the Settlement Scheme No.VIII and the property was resumed in accordance with law due to lapses or default on the part of the respondents if any. This was not done. The case of Abdul Hameed and others v. Fazalur Rehman and others (1989 SCM R 120) relied upon by the learned counsel for the petitioner is distinguishable on facts inasmuch as in that case the property was put to auction under Settlement Scheme No.VIII and cancellation thereof had to take place under paragraph 21 of the Scheme which is reproduced as under:-- "21.--If the successful bidder fails to pay the balance within 30 days as aforesaid the acceptance of his bid shall stand cancelled and the amount of earnest money and the other amount equal to twenty-five per cent of the bid money shall also stand forfeited. If the defaulter is a claimant necessary debit entries will be made in his Compensation/Rehabilitation Book in accordance with the procedure laid down in para. 19." .
The auction in question was not governed by the said scheme and stood confirmed/approved even prior to the coming into force of Scheme No.VIII which came into force in the year 1966.
Consequently law declared in the above-noted judgment shall not apply to the facts and circumstances of this case which is covered by the law declared in cases of Muhammad Afzal v.
Muhammad Yusuf; etc (1984 SCM R 296), Sher Muhammad and others v. Settlement Commissioner and others (1988 SCM R 576) and Mst. Sughran Begum v. Nawab Din etc. (1986 CLC 819).
Consequently, I hold that the property in question was not available for disposal under the R.P.
Scheme whereunder the petitioner sought its transfer.
Argument of the learned counsel for the petitioner that the respondents are not entitled to claim any right in the property in question on the basis of the auction in their favour, under the principle of estoppel or abandonment is also misconceived. They were entitled to the issuance of a notice if the auction had to be cancelled or the property in question had to be resumed, in the first situation under the principle of natural justice and in the second situation under the Scheme. In this case neither is there an order of cancellation, nor an order of resumption, therefore, there is no question of estoppel or abandonment of their rights by the respondents. Even otherwise, keeping in view the law declared in case of "Sher Muhammad and another" and case of "Muhammad Afzal" (supra), the principle of estoppel and abandonment will not apply in this case. It is rather the Settlement Authorities who have waived their right to dispose of the property under any other Scheme in favour of any other person in view of the law declared in case of "Muhammad Afzal" referred to supra and law declared in case of Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others (PLD 1991 SC 546).
Last argument of the learned counsel for the petitioner to the effect that the respondents are not transferees, hence they were not entitled to the issuance of notice before resumption of the property in question is also misconceived, firstly, for the reason that the property in question has never been resumed and secondly, for the reason that the auction in favour of the respondents having been confirmed the word "transferee" used in Settlement Scheme NO.V11I shall have to be given ordinary dictionary meaning and as such they shall be deemed to be transferees for the purpose of issuance of notice of resumption in case the authorities so intended to do but in the case in hand there being neither any proceedings for cancellation of auction or resumption, argument of the learned counsel has neither any relevancy nor efficacy. Hence the same is repelled.
Resultantly, I am of the view that the order passed by the learned Notified Officer is unexceptionable and no interference is called for therewith. This writ petition, hence, has no force, the same is dismissed, with no order as to costs.