MIAN BURHANUDDIN KHAN, J.-- Leave was granted to the appellant vide order of this Court dated 6- 8-1983 on the ground that the Settlement Commissioner had erred in treating the rejection of the earlier form submitted by the appellant to be a hurdle in the way of the second form filed by him; and the learned High Court should have interfered with the same.
2. Facts relevant to this appeal are that the appellant had filed L.S. Form on 14-10-1966 for the transfer of Shop No, 6/49-A Sadar Bazar, Mandi Bahauddin, District Gujrat under Scheme No, VIII but the same was rejected on 14-4-1967 for the reason that the shop was not available as it had already been auctioned on 29-8-1960. The appellant filed revision which failed vide order dated 25-11-1967. The shop was, however, resumed on 1-10-1969 due to non-payment of its price and the appellant again applied for its transfer on 2-10-1969 and it is his case that a Transfer Order was issued in his favour on 1-12-1960 and he was also served with a notice on 31-3-1970 for payment of the balance price of Rs, 765/12 alongwith Rs, 96 as property tax which was complied with vide challans as per Annexure 'D' (pages 23 and 24 of the paper-book) in pursuance of order of the Deputy Settlement Commissioner, Gujrat dated 1-12-1969. He, however, came to know that the shop had in the meanwhile, again been allotted in favour of Masoodul Hasan on 27-8-1970.
3. The appellant filed an appeal before the Additional Settlement Commissioner which was dismissed vide order dated 1-10-1970 on the ground that the shop could not be transferred to the petitioner as the case of the petitioner has already been rejected. The petitioner, therefore, filed revision petition before the learned Settlement Commissioner, Rawalpindi which was dismissed vide order dated 31-3-1972. Feeling aggrieved by the order of the Settlement Authority the petitioner filed Writ Petition No, 382/R/72 which was dismissed by a learned Judge of the Lahore High Court vide the impugned judgment.
4. Learned counsel for the petitioner thereafter filed a petition for leave to appeal and leave was granted vide order of this Court dated 6-8-1983 on the ground that the learned Settlement Commissioner had erred in treating the rejection of the earlier form to be a hurdle in the way of the second form filed by the petitioner and that the High Court ought to have interfered with the same.
5. The learned counsel contended that the order dated 1-12-1969 passed by the Deputy Settlement Commissioner was non-existent. As a matter of fact the order was on the record and had been appended as Annexure- D/3 to the writ petition; that the learned Judge has based his entire judgment on a premise which is founded upon no evidence; it was assumed that the auction must have come to the notice of the petitioner and the learned Judge based his entire finding on this fact alone; that the learned Judge has not gone into the irregularities and illegalities of the proceedings below, in particular, in respect of the following, among other, aspects:
(i) that the Settlement Courts below ignored the fact that the dismissal of earlier L.S. Form of the petitioner is not a bar for the transfer of the shop to the petitioner after the property had been resumed from the auction-purchaser, as at the time of rejection of the earlier L.S. Form of the appellant the shop was not available for transfer;
(ii) that the Settlement authority also ignored the fact that the appellant deposited the price of the shop as well as the Settlement Fee after the receipt of notice from the respondent No,2 which is appended as Annexure 'C' to the writ petition, and the detachment of the papers of the petitioner from the Settlement file was not the fault of the petitioner. A very valuable right accrued in favour of the petitioner which could not be taken away after the transfer of the disputed property and deposits made by the petitioner;
(iii) that under Settlement Scheme No, VIII the appellant was entitled to the transfer and had been wrongly held by the Settlement authority that it was not so; and
(iv) that the Settlement authorities below have misconstrued the provisions of law laid down in Settlement Scheme No, VIII.
6. We have examined the record of the Settlement authorities and find that the contentions raised by the learned counsel for the appellant have been substantiated. The order of the learned Deputy Settlement Commissioner, Gujrat dated 1-10-1969 shows that he had gone through the Office Note carefully and had found that Shop No, 6/49/A stands resumed as per order dated 1-10-1969 and was thus available for transfer. He further ordered that the shop is transferred to the sitting occupant Abdul Aziz appellant who had applied for the same under Scheme No, VIII because the auction-purchaser Rahimullah had failed to make any response in respect of the service of notice through publication in the Press and it seems that he had no more interest to retain the shop.
Furthermore, payment made by the appellant in compliance with the order of the Settlement Authority also shows that he was called upon to deposit Rs, 765/12 and Rs, 96 as balance price etc. For the relevant period. The two challans referred to above also confirm the stand of the appellant that the amounts were deposited by him vide Annexures 'D-I' and We, therefore, find that it is correct statement of fact and accordingly we accept the appeal and remand the case to the Notified Officer for disposal afresh in accordance with law, with no order as to costs.