' This Constitutional petition has been filed to call in question the legality of the order dated 28-7- 1976 passed by the Deputy Settlement Commissioner, Rawalpindi whereby he held the disputed property to have been transferred to Ghulam Muhammad respondent No,1, as one unit.
2. Briefly stated the facts of the case are that the plot bearing No, A/416-18 owned by the evacuee owner Dewki Devi was auctioned by the Deputy Settlement Commissioner, Rawalpindi on 30-5- 1975. The petitioner turned out to be highest bidder. He offered the bid of Rs,30,000 which was accepted by the Deputy Settlement Commissioner and the petitioner deposited Rs,8,000 in cash immediately after acceptance of his bid. The Deputy Settlement Commissioner submitted it for confirmation to the Settlement Commissioner on 20-6-1975. Ghulam Muhammad Khan respondent No,1 challenged the auction of the property by way of a revision petition before the Settlement Commissioner on the ground that the property already stood transferred to him under its number A/416-18(a) and was not available for auction. The Settlement Commissioner dismissed the revision petition vide his order dated 29-11-1975 holding that Ghulam Muhammad Khan respondent No,1 was transferee of property No,A-416-18(a) along with house No, A/445. He further observed:---'
"He has not been able to put forth the case warranting deletion of the suit property from the auction list and a declaration that he was its transferee also."
' He added, "before however, bestowing approval on the proceedings of auction taken on 30-5- 1975 I would like the D.S.C. To "sort out the matter" and then send the case to the competent Settlement Authority for approval of the proceedings of auction". The order dated 29-11-1975 passed by the Settlement Commissioner was not challenged by any party and it attained finality.
3. As mentioned above, in his order dated 29-11-1975, the Settlement Commissioner had made an observation requiring the D.S.C. To sort out the matteratid then send the case to the competent Settlement Authority for approval of auction. He treated the above-referred part of the order as a remand order and took up the case for a fresh decision. He heard arguments of learned counsel for the parties and passed the impugned order dated 18-7-1976 holding that the disputed evacuee property was owned by evacuee owner Devki Devi and was transferred in favour of Ghulam Muhammad respondent No,1 in the shape of built up property and that auction of property No, A/416-18 as a plot in favour of the petitioner was not proper. The legality of the said order has been challenged through the present petition.
4. The petitioner strenuously urged that respondent No, I was transferee of property No, A/416- 418(A) belonging to Bhagwan Singh while the other property bearing No, A/416-418 owned by Devki Devi, was rightly auctioned and purchased by the petitioner. He being the highest bidder, had deposited 1/4th auction price and had locus standi to file the present petition. In this connection, he relied on the judgment in the case of Mian Fazal Din v. Lahore Improvement Trust etc. PLD 1969 SC
223. He urged that the order dated 20-6-1975 passed by the D.S.C. Shows that there were two separate properties and not one property as held by the Settlement Commissioner in the impugned order. He submitted that the order dated 29-11-1975 passed by the Settlement Commissioner dismissing the revision petition filed by respondent No,1 had attained finality and could not be challenged by respondent No,1. Mr. Khalid Iqbal Qazi who was since passed away had addressed arguments on behalf of respondent No,1 on 28-3-1996. He had urged that the disputed property was only one having the total area of 12872 sq. Ft. Which was in occupation of respondent No,1 as built up property and that no plot bearing No, A/416-418 existed at the site; that the evacuee owner of the disputed property was Devki Devi and not Bhagwan Singh, that respondent No,1 was transferee of the property owned by Devki Devi and Permanent Transfer Deed was also issued to him for the same, that even if it is presumed for the sake of argument that there were two properties bearing Nos.A/416-418 and A/416-418(A); one belonging to Devki Devi and the other Bhagwan Singh, the property offered for auction in the auction list was owned by Devki Devi which already stood transferred in favour of respondent No,1 and was not available for auction; that the Settlement Laws stood repealed with effect from 1-7-1974 and no scheme for disposal of urban properties existed when the property was illegally auctioned by the D.S.C. On 30-5-1975; that the auction dated 30-5-1975 and the subsequent orders including the one passed by the Settlement Commissioner on 29-11-1975 were nullity in the eye of law and that the petitioner was only trying to take advantage of some confusion created by D.S.C. Showing existence of two properties in his report. In reply the petitioners submitted that even after repeal of Settlement Laws the Provincial Government was competent to dispose of the property notwithstanding the fact that the scheme for the said purpose had not been prepared. In support of his contention, he has placed reliance on the following judgments:---
(i) Jehangir Mirza, S.S.P., Lahore and another v. Government of Pakistan through Secretary, Establishment Division and others PLD 1990 SC 1013.
(ii) Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Co. Ltd., Rawalpindi PLD 1991 SC 14.
5. There is considerable force in the argument raised by learned counsel for respondent No,1 that the disputed property was provisionally transferred to respondent No,1 on 31-12-1959 and thereafter, on full payment of the transfer price, the PTD was issued in his favour some time during the year 1965. The name of the evacuee owner mentioned in the PTD is Devki Devi and not Bhagwan Singh as alleged by the petitioner. The property shown in the auction list is A/416-418 owned by the evacuee owner Devki Devi and in occupation of Ghulam Muhammad respondent No,l. Although wrong property number was mentioned in the auction list, yet the fact that it was shown to be owned by evacuee owner Devki Devi and that the same was in occupation of Ghulam Muhammad, respondent No,1, was sufficient to establish that the property already transferred to and occupied by Ghulam Muhammad was again offered for auction. On 30-5-1975 the D.S.C. Had no jurisdiction to auction the disputed property because the Settlement Laws had already been repealed and only the Notified Officers were competent to decide pending or remanded cases by virtue of the provisions of section 2 of the Evacuee Properties Repeal of Laws Ordinance, 1974. Under section 3 of the same Act the Provincial Government was competent to dispose of available urban property under a scheme. However, no scheme had yet been prepared by the Provincial Government and the D.S.C. Unilaterally decided to auction the property. His act was wholly without jurisdiction and nullity in the eye of law and conferred no right or title whatsoever on the petitioner.
Since the auction was void, the subsequent orders dated 20-6-1976 and 29-11-1976 passed by the D.S.C. And the Settlement Commissioner, respectively after the repeal of Settlement Laws are also void and without jurisdiction. The argument raised by the petitioner that even in the absence of rules, the competent authority could alienate the property, even if accepted, cannot help him in the present case because auction of the property was never ordered by the Provincial Government.
The judgments relied upon by the petitioner are also distinguishable. In the case of Chairman, Regional Transport Authority the legal question related to maintainability of applications submitted by the respondent Insurance Company under sections 67 and 49 of the Motor Vehicles Ordinance before the Chairman, Regional Transport Authority for the purposes of issuing a stage carriage permit to its policy-holders in connection with the fulfilment of object of section 67 of the West Pakistan Motor Vehicles Ordinance, 1965. Section 69 of the Ordinance specifically authorised the Provincial Government to make rules for purpose of carrying into effect the provisions of the Chapter including section 67 and section 49. No rules were framed by the Government and the question arose whether the applications submitted by the insurance company could be entertained by the Transport Authorities. In this background it was held: "It is true that in the absence of the Rules, the enacted law of the Legislature contains no provision with regard to filing of an application. Such an omission in the substantive law is understandable. In any case, the law does not prohibit the party from filing such application. Article 4(2)(b) of the Constitution guarantees to the citizen that no person shall be prevented from or to be hindered in doing that which is not prohibited by law. It is not for the statutory authority to call upon the respondent to show which provision of the law provides for the filing of such an application, but to deal with it and show itself the law which prohibits making of such an application. The authority was passing on its own burden to beneficiary of that power."
' Obviously this judgment is distinguishable and has no relevancy to the facts and circumstances of the present case.
' In Jehangir Mirza's case the controversy related to the powers of the President of Pakistan or a person authorised by him to make appointment to All Pakistan Services in the manner prescribed by the rules. It was held that in case the rules were not framed the designated authority's power to make appointment was neither curtailed nor postponed till the framing of the rules. In the present case as discussed above the power of alienation was not exercised by the competent authority i,e, the Provincial Government. Therefore, the rule laid down in Jehangir Mirza's case is not applicable in the case.
For the foregoing discussion, I do not find any merit in this petition which is liable to be dismissed.
The petitioner may claim refund of the amount paid by him to the department by way of earnest money and also take any other action permissible under the law against the functionaries of the Settlement Department for the loss sustained by him.
' The writ petition is dismissed with the above observation.