Haji NOOR MUHAMMAD AND 2 OTHERS vs Syed MUHAMMAD NAQVI AND ANOTHER
The petitioners sought leave to appeal against the dismissal of their writ petition by the High Court, which had upheld the Settlement Commissioner's order rejecting the petitioners' N. C. H. Forms for transfer of an evacuee property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The core legal question concerned the validity of the Deputy Settlement Commissioner's order dismissing the forms for default of appearance and the effect of an alleged lack of intimation of said order. The Supreme Court held that the Deputy Settlement Commissioner's order was legally correct and that the failure to send intimation of the order did not impact its validity, particularly since third-party rights had accrued to the auction-purchaser in the meantime due to the petitioners' default. Consequently, the Court laid down that a legally valid order of dismissal for default is not vitiated by a failure to formally intimate the defaulting party, and a bona fide auction-purchaser's vested property rights cannot be disturbed to accommodate a negligent party. Leave to appeal was accordingly refused.
- Does the failure to send intimation of an order dismissing a transfer application for default affect the legal validity of that order?
- Can property rights acquired by a bona fide auction-purchaser be disturbed due to subsequent indulgence shown to a defaulting applicant?
- Whether an appellate authority can set aside a legally correct order of a Deputy Settlement Commissioner merely on the ground of lack of formal intimation of the order to the applicant?
- Section 10, Displaced Persons (Compensation and Rehabilitation) Act, 1958
- Section 11, Displaced Persons (Compensation and Rehabilitation) Act, 1958
ORDER
' MUHAMMAD YAQOOB AL!, J.-The petitioners filed N. C. H. Forms for transfer of portions of Property No, N. P. 13/94 situated in Bhagnari Street, Juna Market, Karachi, under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The Deputy Settlement Commissioner rejected the forms on the finding that the house in question was not entered in the register of evacuee properties. On appeal by the petitioners the Additional Settlement Commissioner held the property to be evacuee and remanded the case to the Deputy Settlement Commissioner for disposal of the petitioners' N. C. H. Forms on merits.
' It appears that in spite of repeated notices the petitioners did not put in appearance before the Deputy Settlement Commissioner whereupon the property in question was put to auction and purchased by respondent No,
1. The petitioners thereupon filed a belated appeal which was allowed by the Additional Settlement Commissioner, but on further revision by the auction- purchaser the Settlement Commissioner set aside the order of the Additional Settlement Commissioner and upheld the rejection of the petitioners' N. C. H. Forms by the Deputy Settlement Commissioner.
' The petitioners then filed a writ petition in the High Court calling in question the order of the Settlement Commissioner as without lawful authority. The grounds raised in the petition did not find favour with a learned Judge who agreed with the Settlement Commissioner that the petitioners were in default and that the appeal filed by them before the Additional Settlement Commissioner was barred by time. The writ petition was accordingly dismissed.
' The petitioners seek leave to appeal from the order of the High Court precisely on the same grounds on which the writ petition in the High Court was made. We have heard the learned counsel for the petitioners and find no error in the order of the Deputy Settlement Commissioner by which he rejected the petitioners' N. C. H. Forms for default of appearance. The Additional Settlement Commissioner did find that notices were served on the petitioners and that they had omitted to put in appearance on two occasions, but he set aside the order of the Deputy Settlement Commissioner on the erroneous ground that intimation of the order was not given to the petitioners. If the order rejecting the N. C. H. Forms was legally correct, the failure to send intimation to the petitioners of that order had no impact on the validity of the order passed by the Deputy Settlement Commissioner. It had also to be borne in mind that due to the default of the petitioners the property was put to auction and purchased by respondent No,
1. The latter could not, therefore, be deprived of his property rights by showing indulgence to the petitioners.
' We accordingly see no reason to interfere with dismissal of the petitioners' writ petition by the High Court and refuse leave to appeal.