Property No,S-65-R-15 Known as \ Balkishan Chopra Building, Roberts Road, Lahore, a big mansion which was put to auction on 10-3-1964 and fetched the highest bid of Rs,12 lacks given by the contesting respondents/their predecessors, is the subject-matter of dispute in this petition. The petitioner herein who claims to be in occupation of a portion thereof, has assailed the issuance of T .0. (Transfer Order), dated 17-6-1987. His case, after stating the background of the contest, couched in paragraph No,6 of the writ petition is "that the petitioner being in occupation of the property for all the time has been understanding that the- property was not available property, .hence they could not ask for its transfer. It is only:now when learning that some fraud has been committed and that forged documents have been procured by respondents Nos,9 and 10, on the basis of 'which a transfer order has: been got issued by respondent No,1 and also now agreements have issued in favour of respondents Nos,11 to 14; the petitioner challenges the Transfer Order issued by the respondent No, 1 . He has, thus, sought the setting aside of the Transfer Order dated 17-6-1987 and asks for transfer thereof to him.
2. In support of the petition, it is contended by the learned counsel that though the highest bid of S. Abdul Aziz, S. Abdur Rehyim, S. Abdul Majeed and S. Muhammad Nazir sons of S. Muhammad Din and S. Muhammad Din son of Mehtab Din was approved and accepted by the Chief Settlement Commissioner yet the entire price or the bid money having not been paid in time, the property stood cancelled and resumed; the same became available which was to be dealt with as such under the Reconstituted Settlement Scheme No, VIII. According to him, the petitioner being in occupation of a portion thereof, he was entitled to its transfer. It is further contended that respondent No,1 acted illegally in permitting the association and issuing the transfer order, dated 17-6-1987. It is contended that no agreement of association could be entertained or accepted after 28-2-1972. Relies upon a judgment by a earned single Judge of this Court rendered in rit Petition No,165-R of 1993.
3. The learned counsel for the contesting respondents has questioned the locus standi of the petitioner in the matter of transfer of the property that after the property had been put to auction and highest bid had been accepted, the matter of payment of price was between the transferee and the department which cannot be agitated by the petitioner. It is contended that no cancellation or resumption order was ever passed by the Settlement Authorities, automatic resumption cannot be assumed and the property being not available, the petition is misconceived.
It is contended that writ petition filed in September, 1990 grossly suffers from laches and should be dismissed for that reason also. Relies upon Mst. Majeeda Begum v. Deputy Settlement Commissioner-II and others (1980 SCM R 827), Nawab Din and another v. Mst Haseem un Nisa and others (1980 SCM R 798), Istar Ahmed and others v. Member, Board of Revenue/Chief Settlement Commissioner, Lahore and another (1997 SCM R 1559) and Mst. Qudrat Bi and 9 others v. Senior.
Member Board of Revenue, Balochistan, Quetta (1998 SCM R 2528). The Department is represented by their learned counsel. He had to make available the relevant record which, however, despite opportunity granted, has not been produced. According to the learned counsel, he took up the matter with the learned Member Board of Revenue/Cheif Settlement Commissioner and the Secretary concerned but, his efforts have remained fruitless., The report and the written statement, however, filed by respondent No,1 are on the record wherein the entire transfer price is stated to have been received by the Department and Transfer Order issued accordingly.
4. There is no dispute that the property was put to auction as big mansion on 10-3-1964 and the highest bid of Rs,12 lacs given by the auction purchasers, was accepted by the Chief Settlement Commissioner. In his letter. dated 27-4-1964 addressed to the auction purchasers, the Additions Settlement Commissioner (Industries) communicated the acceptance of the bid on behalf of the Chief Settlement Commissioner. It was acknowledged therein that 1/4th of the bid money had already been paid and the balance was to be paid within thirty days. In response thereto, some correspondence ensued. From letter, dated 24-5-1965 of the Additional Settlement Commissioner (Industries), it appears that the auction purchasers on submission of the books for the adjustment of the price, had asked for issuance of PTD and they were informed that they could either submits fresh compensation books of Rs,3,30,039 for the outstanding transfer price or deposit the said amount in cash or furnish a bank guarantee covering the said amount." These options were given in view of the dispute about the genuineness of 13 compensation books of the value of the above mentioned amount. They were informed that PTD will be issued on compliance of any of those conditions. Letter, dated 21-5-1966 issued from the office of Chief Settlement Commissioner by the (Additional Settlement Commissioner (Industries) would show that compensation books covering total auction price had been tendered by the auction purchasers but books representing approximately 25% of the auction price were under investigation by the enforcement police in some other case. They were, thus, informed that "pending finalization of the case by the enforcement police you will be treated to be provisional transferee of 75% of the property only."
They were, however, authorized to collect rent from the occupants of the building. The dispute about the said compensation books remained hanging and eventually became subject-matter of Criminal Revision No,748 of 1966 decided on 4-6-1975. There was another limb of litigation i,e, ejectment proceedings against the petitioner which became subject-matter of S.A.O. No,91 of 1973 which was decided on 3-3-1981 by a learned Single Judge of this Court taking the view that the statutory relationship of landlord and tenant between the parties had not been established. From the material on the record what has emerged is that out of the transfer price of Rs,12 lacs, the dispute was only with regard to an amount of Rs,3,30,039 which had to be adjusted from 13 compensation books. The genuineness whereof was in doubt. The matter remained pending with the Settlement Department and the enforcement police, but at no stage, the auction was cancelled or the property was resumed. No notice for cancellation or resumption of the property was issued. That is a mandatory requirement of law. There is no concept of automatic cancellation or resumption of a property for the non-clearance of the dues under the Settlement Laws. In Mufti Aman. Ullah and 64 others v. Settlement Commissioner (Industries) Peshawar Division, Peshawar and 4 others (PLD 1989 Peshawar 250) somewhat identical circumstances gave rise to a dispute about Kawatra building, a big mansion, situated in Peshawar Cantt. That was also a contest between auction purchasers and the occupants of the building. The occupants were seeking transfer of portions in their respective occupation in view of the enforcement of Reconstituted Settlement Scheme No,VIII that in view of non-payment of the auction price, the property had become available which should be transferred to them. The occupants had approached the Chief Settlement Commissioner and the Chief Minister of the Province who had ordered the exclusion of the property from the list of Big Mansions as the auction purchaser had not fulfilled the terms and conditions of the auction. The latter had ordered that the same be disposed' of by allotting each unit to the sitting tenants. The matter eventually came up before a learned Division Bench rejecting the plea of the occupants. Paragraphs Nos,11, 12 and 13 of the judgment having relevance to the subject-matter are reproduced hereunder:- "11. Actually under paragraph 21 of Settlement Scheme No,III, read with paragraph 25 of the Schedule to the Act, the Settlement Authorities could resume the property in default of payment of the bid money, however, such resumption was not automatic and the Settlement Authorities were required to make a specific order with regard to the extinction of the right of the auction- purchasers to remain in possession of the property and then they could resume the same by dispossession of the auction purchasers. It is also provided in paragraph 23 of the afore-said Scheme that the purchaser could within 60 days of dispossession make payment of the arrears due from him alongwith a penal interest and could apply to the Chief Settlement Commissioner for restoration of the property to him. This would also indicate that intention of the Act was rather to afford concession to the transferees of property in making payment of the transfer price rather than extinguishing their right to retain the same when they had failed to make payment within the statutory period.
12.The contents of the order, dated 12-4-1980 of the Settlement Commissioner (Industries), a copy of which is available in the record of the writ petition, would dearly indicate that the matter of adjustment of the bid money lingered on due to non-verification of the compensations books by the Settlement Authorities and little fault lay on the shmIders of respondents. Nos, 3 to 5 in this respect and for that very reason the learned Settlement Commissioner did not deem it proper to cancel the 'auction and we think he was right in doing so.
13.The position which emerges from the aforesaid discussion is that although the entire bid money should have been paid by the respondents Nos 3 to 5 within a period of four months of the conveyance of acceptance of auction proceedings in their favour by the Settlement Authorities but the non-deposit of the same within the aforesaid period cannot be made a ground to declare that the auction proceedings had become void and inoperative and the said property was available for transfer under Settlement Scheme No,VIII, as reconstituted on 16-9-1973. Since the Settlement.
Authorities had not cancelled the auction proceedings and had allowed further time to the respondents Nos,3 . to 5 to make payment of the bid money as also the fact that the fault in this case again lay more on the shoulders of the Settlement Authorities we are unable to agree with the learned counsel for the appellants that the said property was available for transfer. to the appellants." 'This judgment was upheld by the Hon'ble Supreme Court to Pakistan (Passages underlined by me for revance and emphasis).
There, thus, remains no doubt that there cannot be, any assumed automatic resumption for non- payment of outstanding dues. In Nawab Din and other's case (1980 SCM R 789) and Mst. Majeed Begum's case- (1980 SCM R, 827) it was held that where 25% of the transnsfesr price had been paid, the balance price could be recovered by adopting. legal course and not the cancellation of the transfer, In lsra Ahmed and other's case 1997 SCM R 1559) the receipt of balance price by theChief Settlement Commissioner/Member Board of Revenue pending the writ petition in the High Court was found to be just and proper.
The contention of the learned counsel- for the petitioner that the. Additional Settlement Commissioner (Industries) had no jurisdiction in the matter or that the association deed could not be accepted is not tenable in view of the amended provisions of 'Settlement Scheme No,VIII. It may be noted that vide amendment, dated 7-11-1973 in paragraph No,1 sub-paragraph (3), the Additional Settlement Commissioner (Industries) was designated as the competent Authority for such like. matters. Likewise paragraph No,9 of the reconstituted Settlement Scheme No,VIII would show that payment through association and compensation books was permissible, it reads as follows "The outstanding amount of transfer price/rent of properties already transferred or which may be transferred under this Scheme, may be paid in full by adjustment against the deferred value available in the Compensation/Rehabilitation Books of other claimants through association".
Thus, no illegality in permitting association had been committed. It appears that the above mentioned provisions were not brought to the notice of the learned Judge who decided Writ petition No,165-R of 1993.
5. It is thus, evident that the transfer of the property had remained intact in favour of the auction purchasers/respondents and were issued transfer order, dated 17-6-1987 on clearance of the dues, the property, thus, at .10 stage became available for disposal or transfer to the occupants. The petitioner cannot ask for the transfer of such a property.
For the reasons stated above, the petition has no merit and is dismissed accordingly. No order as to costs.