1991 PLP 265 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑This judgment would dispose of two appeals as common questions of facts and law are involved. 2.. The two appeals have been filed due to the fact that the appellant and respondent No,2 filed two separate Writ Petitions in the High Court against the order of the Settlement Commissioner dated 8‑10‑1959 whereby the case was remanded to the Deputy Settlement Commissioner for a fresh decision. The appellant claimed that the house in question should have been transferred to him whereas the case of the respondent No.2 was that she was entitled to the transfer of the house. The learned High Court accepted the Writ Petition filed by the respondent No.2 and the order of remand was set aside and the auction of the house made in favour of respondent No.2 was approved. The Writ Petition filed by the appellant was dismissed. Leave to Appeal was granted to consider why the Deputy Settlement Commissioner auctioned the house in spite of the direction of the Additional Settlement Commissioner. The facts in brief, are that the property in dispute is situated in Village Mandhiali, District Sheikhupura. The appellant claimed that he was allotted 35 acres of agricultural land on 23‑6‑1959. The house in question was also occupied by him. On 26‑5‑1965, the Additional Settlement Commissioner advised the Deputy Settlement Commissioner that auction of houses in rural area, even if more than Rs.10,000 was not called for but despite this advice, the Deputy Settlement Commissioner auctioned the property on 29‑6‑1965. The property was purchased by the respondent No.2 in auction for Rs.13,

400. The Additional Settlement Commissioner on 13‑10‑1965 passed another order that the property stood deleted and should not have been auctioned. The succeeding Settlement Commissioner accepted the auction on 12‑2‑1968. This order was challenged in appeal before the Settlement Commissioner who in Para 13 of the judgment stated as under:‑ "From the facts stated above, it is evident that the material points for determination in this case are whether or not the house in dispute was rural building within the meanings of Clause (4) of Paragraph 2 of Scheme VII, and if so, whether, it was available for auction under Clause (d) of paragraph 5(2) of the said Scheme? Under the said Scheme, rural building has been defined an evacuee residential or business premises of the value of less than . Rs.10,000 situated outside the urban limits as defined in subsection (13) of Section 2 of the Act, or as fixed by the Chief Settlement Commissioner from time to time. Admittedly the house in dispute is situated in rural area, and is not within the urban limits. However, its value does not appear to have been determined in accordance with the procedure, laid down by the learned Chief Settlement Commissioner for evaluating such properties in rural areas .... The Revision petition was disposed of in the following terms:‑ "I, therefore, accept the revision petition to the extent that the confirmation of auction is set aside and the case is remanded back to the Deputy Settlement Commissioner, Sheikhupura, to hold a further inquiry into the matter and to decide after hearing the parties, as to what is the correct price of the said house in accordance with the assessment formula, approved by the learned Chief Settlement Commissioner and whether or not the petitioner was allottee of the said house and of Khasra number on which the house in dispute was situated, and to submit the auction proceedings to the learned Additional Settlement Commissioner alongwith his report. The learned Additional Settlement Commissioner should decide the question of acceptance of auction afresh, after hearing the parties in the light of the above observations, taking into consideration the report to be submitted to the Deputy Settlement Commissioner." . The learned High Court itself proceeded to examine the facts of the case and then decided the matter in favour of respondent No.2. The case was remanded to the Deputy Settlement Commissioner on two points: viz. (i) who is in occupation of the disputed house; and (ii) what is the price of the house in question. Both these points are question of fact which were to be determined by the authority to whom the case was remanded. The High Court should not have recorded its finding on such questions as they required investigation and inquiry. Therefore, it was not open to the High Court to exercise its extraordinary jurisdiction to upset the order of the Additional Settlement Commissioner on a finding of fact. The appeals are accepted; the judgment of the High Court in these appeals is set aside and the order of the Settlement Commissioner dated 18‑10‑1969 is restored. There will be no order as to costs. AA./A‑796/S Appeals accepted.