1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the auction-purchaser of a prior date to examine whether the High Court was justified in reopening the case of auction and transfer of the property to the appellant on a request made by the local occupant of the property, long after the auction was finalized, on the ground that auction had taken place without notice to him.
2. At serial No. 231 of the auction list to shops both shown in possession of one Ali Muhammad were listed for auction. The rental of the property so listed was shown to be Rs.144 per month. The auction took place. The highest bid was of the appellant. It was confirmed on 26-8-1960 in favour of the appellant. The P.T.O. Which issued in favour of the appellant on 8-2-1961 in the schedule of the property transferred mentioned as follows:- "Two shops." Serial No. 231-A and 231-B No. S-85-R-20, Bahawalpur Road, Lahore."
3. The respondent filed L.S. Form on 28-10-1966 under Settlement Scheme No. VIII claiming the shop in his possession in property No. S-85-R/20 Bahawalpur Road, Lahore. He then filed an application on 8-9-1967 requesting for the disposal of the form that he had filed. On 6th of March, 1968 the Deputy Settlement Commissioner after obtaining a report from the Settlement Inspector and hearing `the parties held that the P.T.D. For the shop claimed by the respondent had issued in favour of the appellant and that shop was not available for transfer to him and the form was rejected. An appeal was filed and the Additional Settlement Commissioner held "the appellant has absolutely failed to make out any case for himself" and rejected it. A revision was then filed and the Settlement Commissioner came to the following conclusion:- "I have looked at the original auction list to bid sheet and the certified copy of Survey Register. The name of the petitioner and Ali Muhammad jointly appeared in the column of occupants. Even otherwise all shops in property No. S-85-R/20, Bahawalpur Road, Lahore, have been disposed of by auction and no shop is available for disposal. The shop in possession of the petitioner has admittedly been sold in 1960 in favour of the respondent."
2. The revision petition was dismissed.
3. A Constitutional petition was thereafter filed in the High Court. The case set out in the petition was that the shop in his possession was not included in the auction list by the settlement organization and was not transferred to Muhammad Ismail, respondent No. 4 there and the basis for this assertion was that in the list of shops put to auction petitioner's name did not appear. The shop in possession of Ali Muhammad was shown to be a different one.
4. The learned Judge in the High Court held as regards the factual contention of the petitioner as follows:---- "Moreover the contents of the F.I.R. (Annex. G) clearly show that the petitioner in 1954 reported to the police about an at of theft in his premises and mentioned the venue of theft as shop in Nandlal Building. This entry has got immense value under the Evidence Act, as this came into being much before the dispute between the parties. Furthermore I find that there are to shops unnamed in this plane at Nos. 2 and 3 which leads to a strong inference in favour of the petitioner that these may be the shops which might have been the subject of auction. I am constrained to observe that the observation made in the impugned order by the learned Settlement Commissioner does not find any support from his own department when called upon to substantiate his stand."
5. The learned Judge thereafter laid down the following principle of law and applied it to the case:-- "The case of the petitioner is fully established from the record of the case and the Settlement Authorities had no right under the principles of natural justice to include his shop in the auction list which was in his exclusive possession, without serving notice of any sort to him."
6. The Constitutional petition was accepted on the ground that the writ petitioner had been condemned unheard and had been made victim of hurried proceedings by the Settlement authorities and his unit had been auctioned without any justification.
7. The learned counsel for the appellants has contended that no principle of law required that the occupant of the property entitled to its transfer or not had to be heard before the disposal of the property and to that extent the law laid down by the High Court needs correction. So far as the factual finding is concerned it has been urged that in spite of holding that the conclusions drawn by the Settlement authorities on facts did not get full support from the departmental record, the learned Judge came to the conclusion, that in fact this shop was included in the auction list and was auctioned but it was done without notice to the writ petitioner who was its occupant and that it was all done in extreme hurry thereby depriving him of his vested right. The finding of fact recorded by the settlement authorities was in fact affirmed that the shop in dispute stood disposed of by auction.
8. The learned counsel for the respondents was candid enough and conceded that his entire case in the High Court was that this property remained undisposed of till 1966 when he applied for its transfer. If it stood disposed of without notice to him on a date when he had no entitlement then he could not make a grievance of it and get the 5 auction reopened on the ground that a notice which was not required either on the basis of any statutory provision of principle of natural justice was not served on him. The controversy, therefore, for the purposes of the disposal of the appeal is confined to the factual question whether this property was in fact auctioned or not. The law point on which leave was granted recedes' into background -on such a concession.
9. In the Constitutional petition the respondent claimed that this property was not at all listed for auction. At the appellate stage the contention is not that. It is urged that it in fact was listed at serial No. 231 but it erroneously mentioned Ali Muhammad as the occupant of both the shops. It correctly mentioned the annual rental at Rs.144. What is contended by reference to the bid sheet and the other documents is that at the the of auction this listed property was divided into to separate shops--one given the number 231-A and the other 231-B, and that property No. 231-A was auctioned but 231-B was never auctioned and remained undisposed of. According to the learned counsel as the bid started from 2900 the reduction in the reserve price could also be assumed or inferred. On this basis it was contended that the property No. 231-B remained undisposed of, was in possession of the respondents and was available for transfer under Settlement Scheme No. VIII to the occupant.
10. The question raised in the Constitutional petition, as would appear from the recital in the Constitutional petition itself, and the arguments addressed before us, was purely a factual one. It had received the attention of all the concerned officers in the Settlement hierarchy. There was no omission on the part of those dealing with the controversy to ignore or misread any document as such. The contention of the respondent was that inference which he wanted to be drawn from the documents was not drawn by those officers. This would be a question of appraisement of the material available to the officers. In the absence of a clear order dividing the listed property at serial No. 231 and its separation, we would be reluctant to hold by a process of reasoning and inference that the property was divided and a portion remained undisposed of. It is not a matter of inference. It is a question of fact. We are not persuaded to agree that the question of fact decided in the Settlement hierarchy suffers from any such infirmity or defect as to merit interference in Constitutional jurisdiction. It appears that the learned Judge granting relief to the respondents also came to the same conclusion for there was no reversal of the finding of fact recorded by the Settlement authorities and the decision proceeded .On a view of the law which has not been supported by either party to the litigation and does not appear to be the correct one. The appeal is, therefore, allowed and the writ issued by the High Court is recalled. No order as to costs.