NASIM HASSAN SHAH, J.-This petition for leave to appeal is directed against the order dated 11th February 1975, passed by a learned Single Judge of the Lahore High Court, whereby the writ petition filed by respondent No. 3 was accepted and the order of the Settlement Commissioner, Rawalpindi Division, dated 17th August 1972, passed in favour of the petitioners was set aside as also against the order of the said learned Single Judge dated 17th June 1975, whereby he rejected the review petition filed by the petitioners against his earlier order dated 11th February 1975.
2. The fact briefly err that Property No. 79 known as Buxley Lodge-situated in Muree was transferred ire favour of Mst. Aisha Habibullah in an open auction In lieu of her highest bid of Rs. 1,58,003. The auction price was deposited by Aisha Habibuilah through soma compensation books issued to claimants at Karachi. The auction-purchaser subsequently surrendered bet rights in the property in favour of Khawaja Abdur Rauf Butt (the predecessor-in-interest of the petitioners) and a P. T. O.
Was Issued In his favour on 18th October, 1962. It appears that one of the compensa--tion books deposited by Mst. Aisha Habibullah was declared bogus by the Settlement Authorities at Karachi and Khawaja Abdur Rauf Butt was called upon to make payment of the sum (stated to be Its.
19,658) covered by the aforesaid compensation book. Some correspondence was exchanged between Khawaja Abdur Rauf Butt and the Settlement Department on this issue. Ultimately a letter was sent by the Deputy Settlement Commissioner, Rawalpindi, dated 22nd of April 1972, calling upon Khawaja Abdul Rauf Butt to make payment of the amount in question in lump sum within one month. He was further informed that in default of payment the auction would be cancelled and the house resumed for disposal under settlement Scheme No. VIII. Khawaja Abdur Rauf Butt in reply, vide his letter dated 17th May 1971, requested for permission to pay the amount by 31st of December, 1971. This request was not granted and the Deputy Settlement Commissioner cancelled the transfer in favour of Khawaja Abdul Rauf Butt on the 16th of June, 1971.
3. Aggrieved by the above order Khawaja Abdur Rauf filed an appeal before the Additional Settlement Commissioner, Rawalpindi, on 14th September, 1971. However, in the meanwhile, the property was put to auction on 26th July 1971 and purchased by Malik Asia Ahmad (respondent No. 1 herein) for a sum of Rs. 36,500. This auction was confirmed on l0th August, 1971. When the appeal of Khawaja Abdul Rauf Butt came Lip for bearing subsequently, the learned Additional Settlement Commissioner conditionally accepted it by his order dated 6th November 1971, in terms that Khawaja Abdul Rauf Butt should pay the short fall within a period of one month from the date of the order and in case he did so the property would be restored in his favour and the auction considered as cancelled, otherwise the auction in favour of Mahk Azis Ahmad would be deemed to be intact. Shortly thereafter and before the expiry of the period stipulated for making up the amount due, Khawaja Abdur Rauf Butt died (on 21st November 1971) without having paid the amount. His successors-in. Interest (petitioners herein) also did not pay the amount duo within the said period. To avoid the consequence of the order of the Additional Settlement Commissioner they preferred a revision before Mr. M. A. A. Wasti, Settlement Commissioner, Rawalpindi and prayed for further extension of time for making the payment.
4. The learned Settlement Commissioner by his order dated 17th August 1972, accepted the revision petition observing that the request for extension of time was reasonable because the case of succession amongst the heirs of late Khawaja Abdul Rant Butt was pending In the civil Court and, furthermore, the amount of balance against them was "hardly of any significance as compared to the total price". Consequently, four months were allowed from the date of the order to the petitioners to make up the shortfall.
5. Dissatisfied with the aforesaid order of the learned Settlement Commissioner respondent No. 1 herein filed a writ petition in the Lahore High Court. The said writ petition came up for hearing on 11th February, 1975. On this data neither the counsel for the present petitioners (who were cited as respondents I to 5) nor any Representative of the Settlement Department (cited as respondents 6 and 7) was present. As tie case had appeared in the cause list, the learned Judge decided to hear it and after so doing proceeded to accept the writ petition. The learned Judge relied on pare. 3-A of Settlement Scheme No. VIII, which authorised the Deputy Settlement Commissioner to allow a person against whom an order of resumption has been made to pay in lump sum the whole of the balance of transfer price payable by him after such application is submitted within 30 days of the day of the order of cancellation. This provision also provided that relevant authority had the power to allow the payment of the balance of transfer price within 90 days of the date of the order of cancellation but this could be done only if no other person has applied for transfer of the property or if the property has not, in the meanwhile, been put to auction. In this case as the property had in the 7neinwyil- been put to auction it was held that the period for paying the outstanding amount could not be extended. Consequently, the order of the Settlement Commissioner dated 17th August 1972, extending the time for payment of the outstanding transfer price was held to be without lawful authority.
6. According to the petitioners they became aware of the order of the learned Judge of the High Court in the end of May 1975. There--after, on the 4th of June 1975, a review petition was filed by them in tae High Court. The learned Judge dismissed it observing that there was no ground for the non-appearance of the counsel for the petitioners on the date of hearing of the writ petition. He also expressed the opinion that even on merits ire petitioners bad no case. Consequently tike review was dismissed by him vide his order dated 17th June, 1965. In this petition for leave to appeal the order passed two the learned Judge on 11th February 197J and that passed on 17th June 1965, accepting the writ petition of respondent No.1 and rejecting the review petition of the petitioners respectively, have been questioned. An 'application has also been submitted for condotion of delay in filing the petition for leave to appeal against the order dated 11th February, 1975.
7. The learned counsel for the petitioners has submitted that the order of the High Court is illegal because out of the total auction price of Rs. 1,58.000 only one compensation book amounting to Rs.
19,658 was found to be bogus and the demand notice could only be issued for the recovery of this amount and not for the cancellation of the auction as a whole. Furthermore the petitioners were not allowed an opportunity to contest the proceedings before the Deputy Settlement Commissioner. Karachi, wherein the impugned compensation book has declared to be bogus. He has further submitted that neither the counsel for the petitioners nor that of respondents 6 and 7 was heard before the order dated 11th February 1975, whereby the writ petition of respondent No. 1 was accepted, was passed. He also submitted that the auction held in favour of respondent No. 3 on 26-7-1971 was a mockery and a valuable property had been disposed of for the paltry amount of Rs. 26,500. He pointed out that the very same property bad even about ten years earlier, fetched the price of Rs. 1,58,000. He has also urged that reliance on para. 3-A of Settlement Scheme No. VIII was not justified in the facts and circumstances of the present case.
8. We observe that the rights chimed by the petitioners flow out of the auction held on 24th September 1962 and are governed by the terms and conditions as laid down at that time, subject to the provision of para. 24 of the Scheme to the Displaced Persons (Com-3ensation and Rehabilitation) Act, 1958. Paragraph 24 as Substituted by Ordinance XIII of 1964 (which bas retrospective effect) lays down as follows :--- "(1) If any person to whom the benefit of payment by instalments has been granted under this schedule fails to pay two consecutive instalments or does not pay the amount due from him in accordance with the terms and conditions on which any property has beers transferred to him the Chief Settlement Commissioner or an Offices authorised by him in this behalf may give such person a notice to pay up tee arrears within 30 days together with such penal interest as may be determined by the Chief Settlement Commissioner or such Officer failing which the transfer of the property to such person shall be liable to cancellation and he shell be liable to ejectment;
(2) where the transfer of any property to a person is cancelled under sub-paragraph (1) the Chief Settlement Commissioner or the Officers authorised by him in this behalf may by order restore the property to such person after the amount due from him has been paid with such penal interest as may be specified in the order.
(3) Where transfer of any property to a person is cancelled under sub--paragraph (1) the Chief Settlement Commissioner or the Officer authorised by Lim in this behalf may forfeit such part of the amount paid by such person as may be prescribed and transfer the property to some other person."
8. It will be noticed that under sub-para. (2) of para. 24 the transfer of any property, which is cancelled for non-payment of the transfer price can be restored by the Chief Settlement Commissioner or any Officer authorised by him in this behalf at any time. It 13 only under para. 3-A which was added by Notification No. 565-P.1/66, dared 15th December 1966 to Settlement Scheme No. VIII, and even the said Scheme itself was introduced after the promulgation of Ordinance XIII of 1964, on 17th June 1965, that a restriction was placed on the power of the Settlement Authorities regarding the period of time within which the outstanding amounts could be paid from the date of cancellation of orders of transfer. No such restriction, as already observed, seas contained in para 24 of the Schedule to the Act. The question whether in the face of the provision of para. 24 of the Schedule the provisions of para. 3-A of Settlement Scheme No. VIII could be reified upon and the order of the learned Settlement Commissioner, passed in revisional jurisdiction, set aside on its basis, called for further consideration, We would accordingly grant leave to appeal for consideration. Inter alia, of the above question. The delay in filing the petition against the order dated 11th February 1975 is, however, condoned, subject to just exceptions. Further proceeding before the Settlement Authorities are stayed meanwhile. Security for costs Rs. 100.