P L D 1969 Lahore 871 (PLP)

"(i) . . . . . . . . . . . . . . . . . . (ii) In one corner there is an open space in which fire‑wood has been stacked. (iii) Next to open space there is one shop the dimension of which are 12 ft. front, right side open having no door and it is roofed with wooden board which seem to be very old. (iv) Next to this shop there is another shop the front of which is 7J ft. and sides are 8 ft. and 5 ft. It has a door also. It is also roofed with wooden planks and wooden boards which also seem to be very old. (v) Next to this shop there is a shed which consists of pillars made of mud‑masonry. 'b he shed is covered by wooden planks of irregular shape made from lire wood. On wooden planks, Sarkandas are placed, which are covered with mud. (vi) Behind the above‑mentioned shops there is another shed which is also erected on pillars made of mud‑masonry. Some of the planks used in this shed are of regular shape and the rest are of irregular shape and have been made from fire wood. On the top there are also "Sarkandas" which are covered with mud plaster. The construction on this plot comprises of burnt bricks laid in mud‑masonry. A few patches of cement plaster were also observed, but only on the wall facing Baghwan Bazar. This plot has electricity connection too. The floors of the shops mentioned above are of bricks, covered with cement plaster. The entire construction is temporary and is in an extremely dilapidated condition. The shop was lying closed and the key of lock was as reported with some one else. However, the same was opened and it was observed that the shop had not been used for a long time past. So far as the so-called rooms shown in Annexure "A" are concerned there were none at the spot. As a matter of fact it is a big cattle shed resting on temporary pillars made of mud masonry. The roof of the shed is covered with wooden planks of irregular shape made from fire wood and on the wooden planks "Sarkandas" are placed which were covered with mud . . . . . . .

8. From the perusal of the order of Deputy Settlement Commissioner dated, the 8th of April 1960 it is clear that the petitioner was neither summoned nor heard before his Plot Form was rejected by learned officer. Therefore, it is obvious that the petitioner was not afforded any opportunity to establish his contention before the learned officer about the nature of construction which he might have raised on this plot. In the departmental report it is pointed out that the petitioner's father had also applied for the transfer of this property saying that he had constructed the boundary wall and was keeping his cattle therein but there is no order about the disposal of the form of the petitioner's ether. In the grounds of appeal before the Additional Settlement Commissioner, the petitioner had urged that he was afforded no opportunity to prove his case by the Deputy Settlement Commissioner about the permanent construc tion made of bricks and cement etc., on which be had incurred a sum of about Ks. 3,

000. This was repelled by the learned Additional Settlement Commissioner with the observation that it was not supported by the contents of the application signed by the petitioner. The learned Settlement Commissioner has also maintained the finding of the Additional Settlement Commissioner with the observation that there was no permanent construction on the plot as the petitioner had himself admitted in his application filed by him under Scheme No. VI that he had made no permanent construction but only a boundary wall. From these orders one using is abundantly clear that none of them had ever cared to make a spot enquiry about the nature of construction which was alleged to have been raised by the petitioner. They merely confined themselves to the interpreta tion of the entries in the Plot Form submitted by the petitioner under Scheme No. VI. The finding of fact arrived at by these Settlement officers should have been conclusive against the petitioner in case I was satisfied that the disposal of the Plot Form of the petitioner was done in accordance with law.

9. In order to find out in what circumstances the plot in dispute was pat to auction I called upon Mr. Hadayat Ullah Khan Mokal to produce the original file of the Depart ment regarding the disposal of this property in order to find out as to when this property was directed to be included in the auction list but the file is not available. The only docu ment which has been produced by the learned Settlement Commissioner (Legal) is the printed list which had been placed by the learned counsel for the respondent on record as Annexure 2 with his written statement. According to this list the auction was held on 16/17th of April 1960 and this property appears at Serial No. 19 showing the full particulars of the plot, the name of the petitioner as a person in occupation and nature of the construction as temporary. This plot was also shown as one of the non‑commercial plots in the list. It, therefore, transpires that some proceedings were initiated in the Department much earlier than the 16/17th of April 1960 in which it was decided that the nature of construction over this plot was temporary and it was a non‑commercial plot fin fact the petitioner was running his fuel wood shop on the spot).

10. According to the instructions of the Chief Settlement Commissioner as contained at page 365 of the Settlement Manual (Old Edition) auction programmes of suitable lots of plots were to be advertised by the. Additional Settlement Commissioners of the area in leading local newspaper and/or by issuing posters etc., at least 10 days before the actual date of auction. It is thus clear that if at all there was any advertisement as required by the above instructions it was issued sometimes on or about 5/6th April 1960 on behalf of the Additional Settlement Commissioner, Lahore. Keeping in view the normal course of events and practice as it usually obtains in the Government Offices I can safely conclude that the plot in dispute was ordered by some one to be included in auction for 16/17th of April 1960 much earlier than 8th of April 1960 as the list had to appear at least 10 days in advance. The preparation of the list and the inclusion of this plot in auction according to the recommendation of the local officers must 'lave reached the Additional Settlement Commissioner much curlier than the 5/6th of April 1960. Mr. Hadayatullah Khan Mokal was also of the view that the report and recommendation of the Deputy Settlement Commissioner must have been sent to the Additional Settlement Commissioner at least one month in advance to enable the learned officer to auction this property on 16/17th of April 1960. This leaves no doubt in my mind that the learned Deputy Settlement Commissioner of the area concerned or some other officer had decided the case against the petitioner ex parte much before the 8th of April 1960 on which date the Form of the petitioner is alleged to have been disposed of by Deputy Settlement Commissioner vide his order Annexure "C".

11. From the auction list another thing which comes to light is that a decision had been taken earlier than the 8th of April 1960 about the nature of the construction that it was temporary because in the printed list it is shown that the construction on the spot was of temporary nature. This all was done without disposing of the form of the petitioner which had been filed before the Deputy Settlement Commissioner on the 25th of November 1959. The ex parte order of 8th of April 1960, therefore, is no order in the eye of law as in fact it is nothing but the repetition of earlier recommendation of the Deputy Settlement Commissioner or some other officer about which I have pointed out earlier.

12. I am not inclined to uphold the findings of the Addi tional Settlement Commissioner and the Settlement Commissioner that the nature of construction raised on the spot is temporary, because this question has been determined by them without any spot inspection and with reference to the entries in the form. The spot inspection done by Mr. Mokal under the order of this Court shows that the petitioner has constructed some shops and cattle shed and the entire plot is surrounded by a pacca boundary wall, this he had been insisting throughout but all the officers decided against him without adverting to the list of auction mentioned above and without examining the validity of the auction order made in this case.

13. No doubt it is not obligatory for the Deputy Settlement Commissioner to inspect the spot according to the procedure laid down under Settlement Scheme No. VI in every case but in view of the fact that the existence of construction was admitted by the Department even according to the auction list, it was necessary that spot inspection should have been done in order to verify the nature of construction before it was declared temporary. The report of the local Commissioner also supports the contention of the petitioner to the extent that the construction raised by him is not new and is old one in the shape of small shops and cattle shed. It might have been the employment of incorrect phraseology on the part of some semi‑illiterate petition‑writer that these small shops and cattle shed have been mentioned as rooms, the existence of construction of boundary sheds cannot be destroyed by an incorrect narration in the application. In these circumstances I am, of the opinion that the rejection of the petitioner's form on the basis of the entries alone is not a judicial determination of the petitioner's entitlement under para. 13 of the Schedule read with Settlement Scheme No. VI.

14. In the Departmental report the learned Additional Settlement Commissioner has pointed out that the petitioner has done some illegal alterations and amendments after the decision of his case by the Additional Settlement Commissioner on the 13th of February 1963. There is some force in this argument of the learned counsel for the petitioner that this report is incorrect because the petitioner had raised all necessary contentions in his grounds of appeal Para. 3 before the Addi tional Settlement Commissioner which were filed by him as early as 2nd of May 1960 that he had raised pacca structure made of bricks and cement over it and the built up area is more than 7 marlas on which he had spent about Rs. 3,

000. If the interpolation and forgeries as alleged by the Department were made by the petitioner after the decision of the appeal as stated in the report of the Additional Settlement Commissioner it would not have been mentioned in the memo. of appeal mentioned above.

15. In view of what I have said about mala fide inclusion of this property in the auction list for auction on 16/17th of April 1960 that the determination of the nature and right of the petitioner had taken place much earlier than the 8th of April 1960 by a different order which is not available on the record and all subsequent orders have been passed on that non -traceable void order. In these circumstances the subsequent orders of the Settlement authorities will be of no avail to the respondent.

16. From the report submitted by the Local Commissioner as well as from the contents of the auction list I am satisfied that there was some building on the spot in existence much before this property was put to auction in 1960. It was, therefore, necessary for the Deputy Settlement Commissioner to make an enquiry whether the building was permanent or otherwise and this could not be done without spot inspection. I think it was a fit case in which the Deputy Settlement Commissioner should have called upon the petitioner whose form was pending to prove his case about the nature of construction and if he was not satisfied he should have made spot inspection as required by para. 5 Chapter III, Settlement Scheme No. VI.

17. I am unable to agree with the learned counsel for the respondent that the words "where necessary" in paragraph 5 mentioned above are discretionary with the Deputy Settlement Commissioner and not obligatory upon him to do spot inspec tion in every case. In my opinion a claim in Plot Form under Scheme No. VI of a party on the ground that it has raised permanent building cannot be verified by a Deputy Settlement Commissioner while sitting in his office, where a claimant t asserts that he has raised permanent construction and the learned officer wishes to decide otherwise. He cannot in law and equity do so unless he has seen the building himself. The Words "where necessary" in such circumstances do sufficiently indicate that a spot inspection is a must before a Deputy Settlement Commissioner could give a finding that the construction on a given property is of temporary nature, contrary to the assertion of the applicant. The petitioners case falls under para. 13(3) of the Schedule as he is in unauthorised possession acid he claims to have constructed a permanent building upon it. There is no definition of what is a permanent building in the Act but it has to be determined with reference to the facts and circumstances of each case. The status of a party, its pursuits in life, the avocations it follows, its means of subsistence tend the use to which the property is put are the essentials which have to be taken into consideration by the Settlement authorities before a building or structure can be classified as temporary. A building or structure may be considered of temporary nature in one premises keeping in view various circumstance and the status of the building and its inmates. A comparison may also be made with the holding in the adjoining area and also the other building in the same compound. For example a cow shed or a garage temporarily raised by an owner of a bungalow, these may be permanent or temporary as the case may be according to the intention of the owner, but these structures may be deemed to be of permanent nature when made separately on an isolated, abandoned, evacuee plot of land which is inhabited by Gujjars. Tallwala or labourers. This depends upon the fact., and circum stances of each case and it is for the Settlement authorities to decide each case on its own merits. However I am not convinced with the argument that this power can be exercised by a Deputy Settlement Commissioner according to his whim and caprice while sitting in his office.

19. I may point out that the petitioner had made a statement in this Court that if it was found that 4 rooms were not there on the spot his petition may be thrown out but I am not inclined to act upon it because according to the report of Local Commissioner there are shops and cattle sheds on the spot which the petitioner may be either using for his living purposes or calling them as rooms in his own parlance. The Local Commissioner has also stated that the nature of construction is temporary but this finding is not acceptable to me as his assignment was to see whether there was any construction on the spot or not. The decision of this question lies exclusively with in the powers of Settlement Courts and the Local Commissioner could not arrogate those powers to himself.

20. As a result of the above discussion, I consider that in view of the facts that this property was directed to be put into auction by some officer much before the disposal of the form of the petitioner, it is a fit case which should remitted to the Deputy Settlement Commissioner of the area concerned. The result is that all Flee orders passed by the Settlement authorities are hereby quashed. The Deputy Settlement Commissioner is hereby directed to do the spot inspection and find out whether there is a permanent building on the spot or not without prejudice to the report submitted by Local Commis sioner (Settlement Commissioner (Legal). In case he comes to the conclusion that there is some permanent construction the right of the petitioner will be determined on that property but it will be confined to the area in his possession subject to any necessary rights for passage or other easements which are essential to the enjoyment of the property which is to be transferred to the petitioner. In case it is found that the nature of construction raised by the petitioner is temporary the auction in favour of the respondent will stand. The writ petition is, therefore, accepted and the case is remitted to the Deputy Settlement Commissioner accordingly. Costs to be borne by the contesting respondent. A. E. Petition accepted.