' CH. MUHAMMAD ARIF, J.---Private parties herein have been litigating between themselves before the Settlement Department in relation to transfer of evacuee property No.SE-XXII-5-S-14 Hari Nagar, Lahore which consists of 17 shops and 17 residential units. This property was included in the auction list and shown at Serial No.163 which comprised of 11 shops, One Abdul Rashid offered highest bid in auction, dated 7-11-1960 and, after its confirmation on 7-12-1960, the same was reflected in his PTO, dated 8-5-1965 as also in the subsequent PTD. As he was betrothed to Mst.
Parveen Nasir, he gifted the property in her name on 30-3-1970 although her marriage took place on 13-4-1970. She was divorced and the same became effective on 15-8-1978. He failed in having the gift cancelled through a suit before the Civil Court at Lahore as also in proceedings before the Settlement Department for: (1) cancellation of auctior, proceedings and (2) Transfer Deeds. He applied to DSC-IV on 20-3-1979 stating that he had purchased 11 shops but paid only Rs.4,700 although he has learnt that the reserve price was Rs.84,680. He is not willing to pay Rs.84,680 and requests that the auction be cancelled and similar treatment be meted out to his PTO and PTD.
Some other proceedings were also pending before the Settlement Authorities concerning the disputed property, at the instance of Ghulam Muhammad and others.
2. To cut a long story short, the then Additional Settlement Commissioner entrusted the enquiry to DSC who issued following directions on 18-6-1981:-- "a fresh notice to the auction-purchaser Mian Abdul Rasheed and Mst. Parveen Nazir be issued with the direction that they should deposit a sum of Rs.47,000 against the balance auction price which has become recoverable against the auction price of ten shops whereas the PTD has been issued to him after recovery of Rs.4700 as auction price which is auction price of only one shop as clarified by the Settlement Inspector vide his reports, dated 8-6-1981 and 10-6-1981. In case the auction- purchasers fail to deposit a sum of Rs.47,000 within 30 days from the receipt of the notice, otherwise his PTD should be considered to have been issued for one shop only as against the recovery of Auction Price of Rs,4,700 for the shop in possession of Khushi Muhammad only."
' After obtaining report from the Settlement Inspector and after holding that the balance price was not paid either by Abdul Rasheed or by Parveen Nazir, the Department treated the transfer order and PTD as cancelled. As the occupants of the shops the petitioners were transferred the shops in question against the payment of R3.2,875 each. This happened on 29-4-1982.
3. Respondent/Mst. Parveen Nazir succeeded in her Writ Petition No.2-R of 1985 before the High Court with, amongst others, the following observations on 6-7-1998:-- "After the order of Deputy Settlement Commissioner, dated 18-6-1981, the department merely acted on the application of Abdur Rasheed who is alleged to have been stated that he was not willing to retain these shops nor ready to pay the balance of auction price and proceeded to treat the transfer and PTD as cancelled. This was obviously an erroneous approach to the matter inasmuch as Abdur Rasheed had already alienated the property in favour of the petitioner and had thus no interest whatsoever in the same. The only person who had right or interest in the property was the petitioner, who was totally unaware of the proceedings being conducting in her absence. She was entitled to the registered notice acknowledgement due, before the resumption and treating the property as available for disposal. No such notice is proved to have been sent or served on her. The resumption of the property was thus contrary to the mandatory requirements of law and the departmental functionaries proceeded illegally in treating the same as resumed property. The property, thus was not at all available for transfer to any other person.
16. Respondents Nos.2 to 12, who claim to have been transferred the respective shops can only base their claim if the property was legally resumed and available for transfer to them. Since the basic order of cancellation and resumption of the property from the petitioner in violative of the mandatory requirements of law and void ab initio, the property was not "available" to be dealt with as such. The principle is firmly established and needs no citation of the judgments that when the basic order is unlawful and void, the superstructure raised in pursuance thereof also falls to the ground. The transfers made to respondents Nos.2 to 12 thus have no valid basis and foundation.
17. In view of the above factual and legal position obtaining in the matter, since no lawful resumption of the property has taken place, the order of learned DSC IV, dated 29-4-1982 transferring the property to respondents Nos.2 to 12 is without lawful authority and of no legal effect. The department, may, however, raise a demand from the petitioners for the balance price in accordance with law ".
' Hence this petition for leave to appeal against judgment of the Lahore High Court, Lahore dated 6- 7-1998.
4. Learned counsel for the petitioners has inter alia contended that the petitioners obtained the shops in question strictly in accordance with the law on the subject and that initial order dealing with as many as 11 shops as one item at a paltry sum of Rs.4,700 was duly noticed by the competent authorities and wrong done to the petitioners was remedied through order, dated 29- 4-1982. The private respondents are sans any entitlement to lay claim to these shops transferred to the petitioners. It is also argued that as necessary parties had not been impleaded in Writ Petition No.2-R of 1985, same was liable to be dismissed and that the case was not finally closed before the learned Judge in Chamber as learned counsel for the petitioners was allowed time to obtain documents from the Settlement Department and in the event of their refusal to do the needful, the record will be summoned. Nothing seems to have happened thereafter with the result that the impugned judgment/order cannot be equated with a proper or lawful order to advance the cause of justice.
5. Leave to appeal is granted to consider the above pleas. Interim order, dated 27-7-1998 shall continue in operation, meanwhile.