The dispute relates to shop bearing No. B-VI-S-12-260, measuring an area of 3/4 marlas, situate at Sheikhupura.
2. The shop, in dispute, was included in the list of burnt properties by order, dated 15th October, 1959, of the Deputy Settlement Commis--sioner, Sheikhupura (Annexure "M"). The petitioner claimed to be an allottee of this burnt shop, in dispute. He re-constructed- it at his own expense and started his business there. The petitioner submitted an application for the transfer of the property, in dispute, under paragraph 13 of the Schedule to the Displaced Persons (Compensation and Rehabilita--tion) Act, 1958 (Act XX VII I of 1958), read with Settlement Scheme No. VI: The Chief Settlement Commissioner reportedly forwarded the application to the Deputy Settlement Commissioner for disposal, in accordance with law. Notwithstanding the pendency of the said application, the property was included in the auction pool. An application, dated 5th October, 1960, was submitted by the petitioner on 11th October, 1960, before the Deputy Settlement Commissioner, Sheikhupura, requesting therein for deletion of the property from the auction list (Annexure "A"). In consequence, the confirmation of proposed auction was held in abeyance till the final disposal of the form of the petitioner, by order, dated 13th October, 1960, of the Deputy Settlement Commissioner, Sheikhupura (Annexure "B"). The property was put to auction on 13th October, 1960, in favour of the father of respondent No. 1 for Rs. 13,000 and even--tually, the Deputy Settlement Commissioner, by his order, dated 17th December, 1960 (Annexure "C") transferred the property to the petitioner under the Settlement Scheme No. VI on the ground that it was a burnt property during 1947 and the same was allotted to the petitioner who re--constructed it at his own expense.
The bid of the auction-purchaser was not approved. The father of respondent No. I challenged this order before the learned Additional Settlement Commissioner, Lahore Division, Lahore, who accepted the appeal by his order, dated 16th December, 1961. The petitioner filed revision petition against this order which was also rejected by the Settlement Commissioner by order, dated 12th June, 1962. The petitioner challenged the aforesaid order by means of Writ Petition No. 1406/62 in this Court. The Writ Petition was accepted. The orders impugned therein were set aside. The case was remanded to the learned Additional Settlement Commissioner for disposal afresh in accordance with law. On remand, the learned Additional Settlement Commissioner, Lahore Division, Lahore, by order dated 25th February, 1967 (Annexure "F") accepted the appeal of the predecessor-in-interest of respondent No. I with the observation that although the property, in dispute, could be classified as one having been burnt, yet the petitioner was not entitled to its transfer because of the belated application filed by him for transfer of the same and the Chief Settlement Commissioner had not condoned the delay in filing the same. The revision filed by the petitioner against this order was also dismissed by the Settlement Commissioner by order dated 5th January, 1968 (Annexure "G"). The petitioner challenged the aforesaid order before this Court by means of Writ Petition No. 17 0/11/68. The writ petition was accepted by order dated 4th February, 1972 passed by the learned Single Bench of this Court. The case was remanded for decision afresh inter aria with the observations that form filed by the petitioner could not have been rejected on account of delay as no time limit has been prescribed for the entertainment of 'such form. The other conten--tions raised by the learned counsel for the parties were not adhered to and the parties were allowed to raise their respective contentions before the Additional Settlement Commissioner at the time of hearing of the appeal, in pursuance of the remand order. In consequence of the remand order, the learned Settlement Commissioner, Lahore Division, Lahore, by order dated 13th August, 1976 accepted the appeal of respondent No. 1 on the ground that it was not proved on record that the shop, in dispute, was completely burnt property and the same was re-built by the petitioner. It was further observed that even if it is assumed to be a burnt property, it was not possible for the petitioner to reconstruct it with a meagre amount of Rs. 1,100. He, thus, came to the conclusion that the property, in dispute, was never re-constructed by the petitioner and. The same was validly auctioned in favour of Din, Muhammad, the predecessor-in-interest of respondent No. 1.
3. Learned counsel for the petitioner contends that the order dated 17th December, 1960 (Annexure -IC") of the Deputy Settlement Commis--sioner transferring the property, in dispute, in favour of the petitioner as burnt property was not open to appeal at the instance of the predeces--son-in- interest of respondent No. 1 in whose favour the auction was never confirmed by the competent authority and he was merely a proposed auction-purchaser. Reliance is placed on Munshi Muhammad and another v. Faizan-ul-Hag and another (1971 SCMR 533) where it was held that auction bidders in the absence of final approval of their bids are not clothed with any right in auctioned properties and had no locus standi to ask for their transfer. it is correct that the auction proceedings having remained unconfirm--ed, no vested right accrued in favour of the predecessor-in-interest of respondent No. 1 on account of being the highest bidder.
It is, however, equally true that the transfer order obtained by the petitioner in his favour before confirmation of the auction proceedings, was the result of ex pane order passed by the Deputy Settlement Commissioner taken behind the back of the respondent. The parties have contested this matter in this Court in two previous rounds of litigation and on each occasion this Court remanded the case to the Settlement Authorities for fresh determination of the rights of the parties in the light of their respective contentions and in accordance with law. The petitioner never took up this point in the, earlier rounds of litigation. He is, therefore, estopped by his conduct to take up the plea after the case was remanded for the second time by the High Court. This being so, no exception can be taken to the impugned order on this legal plane. This view finds support from Mst.
Hussain Bibi v. Haji Muhammad Din and 3 others (1976 SCMR 208) and S. Shari) Ahmad Hashmi v.
Chairman, Screening Committee, Lahore (1978 SCMR 367). Reference may also be made to H. M.
Saya, and Co., Karachi v. Wazir Ali Industries and another (PLD 1969 SC 65), where it was held that in terms of sections 96 and 104 of the Code of Civil Procedure (V of 1908), a stranger to a suit or proceedings is come patent to file an. Appeal if he is adversely affected by order passed in such suit or proceedings. In my humble view this principle is equally applicable to appeals filed under the Evacuee Laws. It is, therefore, difficult to hold that the Settlement Commissioner had no jurisdiction to adjudi--cate the controversy brought before him. Munshi Muhammad's case cited by the learned counsel for the petitioner is distinguishable and not attract--ed to the facts of the present case.
4. It is next contended that the property in dispute could not have been auctioned unless and until the form filed by the petitioner was disposed of in accordance with law. It is true that the property was not available for auction owing to the pendency of the form filed by the peti--tioner. Ordinarily, no right could, therefore, accrue in favour of respondent No. 1 on the basis of auction held during the pendency of the said form. The petitioner is. However estopped by his conduct to raise this point, inasmuch as in pursuance of an application made by the petitioner, the Deputy Settlement Commissioner refused to stay the auction proceed--ings and merely held in abeyance the confirmation of proposed auction by order dated 13th October, 1960. The petitioner did not challenge this order before any competent forum and the same, therefore, attained finality. In any event, a finding of fact has been recorded by the Settle--ment Commissioner that the property in dispute was neither completely a burnt shop nor it was re-constructed by the petitioner and therefore, failure to dispose of the form filed by the petitioner prior to the holding of auction has not occasioned any prejudice or injustice to the petitioner.
5. It is next contended that the findings of fact arrived at by the Settlement Commissioner to the effect that the property in dispute was neither completely burnt nor re-constructed by the petitioner, is in disre--gard of the order dated 15th October, 1959, of the Deputy Settlement Commissioner, which was never challenged in any proceedings nor set aside by any competent authority and, therefore, had attained finality. It is further contended that the learned Settlement Commissioner has mis--construed and misread the order dated 10th November, 1954 of the Commissioner, Lahore Division, Lahore and, therefore, the finding of fact recorded by him is open to scrutiny by this Court. The precise sub--mission of the learned counsel for the petitioner is that the Commissioner, Lahore Division, Lahore /Rehabilitation Commissioner vide his orders dated 10th November, 1954 (Annexure "L") in spite of the report dated 27th, octobbr, 1953 of the Rehabilitation Inspector referred to by respon--dent No. 2 in his impugned order dated 13th August, 1976 bad not refuted the petitioner's claim about the shop in dispute having been burnt during the riots of 1947 and re-constructed and had accepted the same by observe--ing "there is some force in this argument" and ordered the investigation of the petitioner's claim to have spent Rs. 1,100 on re- building the burnt shop (and not the investigation of as to whether the shop was burnt and re-built by the petitioner) and adjustment of the said claim to be made against rent of this shop and refund the balance, of the amount of the claim in case the petitioner chose to leave the sop in dispute and retain the shop No. 100. Learned counsel for the petitioner submits that as the petitioner retained the shop in dispute and abandoned Shop No. 100, question of investigating the petitioner's claim of having spent Rs. 1,100 on rebuilding the burnt shop did not arise in terms of said order Annexure "L" of the Rehabilitation Commissioner which respondent No. 2 has misread and misconceived and on that account has erroneously observed that neither there was any investigation nor any move was made by the petitioner for having the investigation made in that behalf.
6. The above plea taken by the learned counsel for the petitioner is devoid of any force. The matter relates to appreciation of evidence which cannot be undertaken by this Court in the exercise of writ jurisdiction. It may be pointed out that my learned brother Inam Ullah Khan, C. 1. (as he then was) while earlier remanding the case by means of Writ Petition No. 1406-R/1962 (Annex. "E") held that it was open to the Settlement Commissioner to have ignored these orders after considering them. In the instant case, the learned Settlement Commissioner after carefully examining the record, written arguments, different judgments of the Settlement Courts and of the High Court delivered in this case, gave a finding of fact against the petitioner. It is well settled that the High E Court cannot interfere with the findings of the Settlement Authorities even if upon the same facts a different view could be taken. The Settlement Commissioner held that the property in dispute was not a building site within the purview of Paragraph (2) of the Settlement Scheme No. VI as the same was neither completely demolished nor reconstructed by the petitioner. This finding cannot be interfered with in writ jurisdiction. The impugned order of the Settlement Commissioner is based on cogent reason and does not suffer from any legal infirmity.