P L D 1964 (W (PLP)

Naimuddin for Respondent No.

2. Date of hearing : 19th March 1964. The dispute in this writ petition is in respect of an evacuee house bearing survey No. C‑307, situate in Radhan Station, Taluka Mehar, District Dadu. This property was put to auction on 13th March 1960, by the Assistant Settlement Commissioner, Dadu in compliance with the provisions of para. 1(6) of the Schedule to Displaced Persons (Compensation and Rehabilitation) Act, 1958. One Mst. Malook Jan, being the highest bidder was declared as a successful bidder and purchased it for Rs.

600. At the time of auction she deposited Rs. 150 in advance and later on 18th June 1960 having been informed that the Additional Settlement Commissioner had approved the auction, deposited Rs. 450 balance amount, when a P. T. O. was issued to her. This lady died on 3‑8‑1960 and her heirs petitioners Nos. 1 to 3 have brought this application.

2. It appears that later on, Jan Muhammad respondent No. 2, who admittedly is in possession of the property in dispute moved the Settlement Authorities for setting aside the auction on the ground that being a local he was entitled to its transfer. The learned Deputy Settlement Commissioner by order dated 31st May 1961, rejected his appeal on the ground that he had not filed any L. H. Form and since the auction had been approved it could not be set aside. In revision, however, the learned Additional Settlement Commissioner by order dated 10th July 1961, set aside the auction as he was satisfied that respondent No. 2 had filed L. H. Form within the time‑limit though not traceable on the record. The last‑mentioned order is challenged in this writ petition.

3. Mr. Pesh Imam, the learned counsel for the petitioners has urged three grounds in support of the petition. Firstly, that the finding that respondent No. 2 had filed L. H. Form is not based on any reliable evidence ; secondly, that the auction could not be set aside in view of section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and thirdly, that the auction was not liable to be set aside in view of the instructions of the Department. None of the above points have any substance.

4. In support of his contention on the first point, the learned counsel has referred me to the grounds of appeal submitted by respondent No. 2 on 10th May 1961 at page 27 of the record. He referred to paragraph 7 of the appeal which is in the following words :‑ "That the appellant being illiterate was not aware of the purpose of submitting L. H. Form otherwise he would have observed the formalities." On this, the learned counsel contended that respondent No. 2 himself admitted that he had not filed any L. H. Form and the finding of the learned Additional Settlement Commissioner on this question is not borne out from the evidence on the record. A perusal of the memorandum of appeal submitted by respon dent No. 2, and the impugned order would show that the case of respondent No. 2 throughout was that he had been submitting applications for the transfer of the property in dispute under registered letters and no action had been taken on them by the Department concerned. It appears that in support of his case certain postal receipts were produced before the Additional Settlement Commissioner, which satisfied him that respondent No. 2 had filed L.H. Form but it was not traceable. It cannot be said, therefore, that this finding is not based on any evidence or is not borne out by the record. This being a finding of fact cannot be upset by this Court in writ jurisdiction particularly when it is based on documentary evidence produced by the parties.

5. In support of the second contention, the learned counsel has relied on a decision of the Peshawar Bench of this Court in Abdul Majid v. Settlement Commissioner, Peshawar (P L D 1962 Pesh. 40). This case is distinguishable because it was in respect of an industrial concern. In that case the Peshawar Bench was considering para. 8 of the Settlement Scheme No. II In respect of industrial concern. In the present case the dispute is about a house, which would be governed by the instructions contained a page 103 of the Settlement Manual. Under these instruction the property in dispute could not be auctioned unless the pending claim of the person in possession was disposed of.

6. The third point raised by the learned counsel that the Additional Settlement Commissioner was not competent to set aside the auction as in doing so he was in effect reviewing the order of his learned predecessor about the confirmation of the auction has also not impressed me. In my opinion, if any I property is auctioned at a time when the applications of the persons claiming it are still pending, the auction cannot bind the rightful claimant. If later on, on the application of such a person the auction is set aside it will not be considered to be an order passed in review jurisdiction. On the other hand, it will be considered to have been passed in the appellate or revisional jurisdiction as the case may be. It is needless to point out that the approval of an auction by Additional Settlement Commis sioner is only in the nature of an administrative order.

7. Mr. Naimuddin, the learned counsel for respondent No. 2 has referred me to a Lahore decision of this Court in Ch. Altaf Hussain v. Shabbir Hussain (P L D 1962 Lah. 449). In that case Masud Ahmed, J. held that in those cases where the Settlement Autho rities failed to dispose of the application for transfer of house and transferred the property in some other manner, such orders are liable to be quashed. I am in respectful agreement with these observations.

8. I, therefore, find no force in this Writ Petition and dismiss it with costs. K. B. A. Petition dismissed.