1. MUHAMMAD AFZAL ZULLAH, J.-- Leave to appeal has been sought from judgment dated 24-6- 1986 of the Lahore High Court; whereby petitioner's Constitutional Petition, arising out of an urban settlement case, was dismissed.
2. Two evacuee shops Nos. B-VIII.68 and B-VIII/113, according to facts given by the learned counsel for the petitioners, were with two locals--former with Rehmat Din father of Muhammad Nasim respondent No.2 and the other with his uncle Chanan Din. The shops were put to auction on 20-2- 1960 and purchased by the said respondent for Rs.8,000 and Rs 23,000 respectively. As alleged by the petitioner (but disputed by the respondents), Muhammad Nasim applied for cancellation of the auction and did not deposit the auction price beyond the earnest money, the auction was cancelled from his name and his earnest money forfeited on 16-3-1960. Reauction took place within 5 days on 21-3-1960. Shop No. B-VIII, 68 was purchased by Rehmat Din and No.B-VIII/113 by Mushtaq Muhammad Khan, petitioners' predecessor for Rs.13,000. The dispute now relates only to the Shop No.B-VIII/113. Its P.T.D. Was issued to the purchaser on 14-11-1966. Muhammad Nasim made an application, without making any reference to reauction, on 31-1-1968 that he had not received any intimation about confirmation of his auction nor any demand notice despite enquiries; and, that he be allowed to deposit auction price for obtaining the transfer documents. This application was made to a D . S . C . Who by order dated 3-2-1968 rejected it with the finding that the second auction might be void as there was no cancellation of respondent's confirmed auction, but he had no power to "undo the P.T.D.", issued to Mushtaq Muhammad Khan. The applicant was advised to seek proper remedy. Accordingly Muhammad Nasim respondent filed an appeal, which was dismissed by Additional Settlement Commissioner on ground of limitation and also on merits for presumption raised against him that he must have made application for "withdrawal" of the auction in his favour. Revision filed by the respondent was allowed by a Settlement Commissioner on 2-8-1969 with the order that reauction in Mushtaq Muhammad's favour was set aside and case remanded to examine whether auction in respondent's favour was sustainable, if not to dispose of the property. The petitioner's Constitutional petition having been dismissed, he has now sought leave to appeal.
3. It is necessary to notice here some other circumstances. Mushtaq Muhammad Khan obtained orders of ejectment against Chanan Din from the shop in dispute. The proceedings started on 25- 1-1961 and ended on 1-12-1969. It is in the order of the Additional Settlement Commissioner that Chanan Din himself asked for the transfer of this shop but without any success. Lastly, Muhammad Nasim had filed a suit on 16-11-1967 for declaration that his auction was intact while that of Mushtaq Muhammad Khan was void. The suit was dismissed for want of jurisdiction but the learned Civil Judge observed that the second auction was valid.
4. Learned counsel for the petitioner has contended that civil Court judgment should be given effect; that the P. T. D. Having issued in favour of petitioner's predecessor, the Settlement Commissioner could not annul the P.T.D. (nor the second auction) as the rules permitting the same had in the meanwhile been repealed; that no appeal was filed against the second auction; that respondent's appeal before Additional Settlement Commissioner was badly time-barred; and, that the respondent having sought cancellation of his auction his earnest money was lawfully forfeited on 16-3-1960, the cancellation of first auction was automatic though the order of cancellation and application in that behalf had been removed from the record by the respondent. Support was also sought from case law.
5. The order impugned in the High Court in its writ jurisdiction contains the following observations about the main points in controversy:-- "By appreciating the arguments by both the parties and from a perusal of the record of the case I am of the view that even though there may have been neglect on the part of the present petitioner in the pursuit of his interest as an auction-purchaser of the property yet it was not questionable both from the point of view of facts and law that without the cancellation of auction taking place in favour of the present petitioner, auction of the very property for the second time could not take place and the one in suit at present would surely be void. There could be no disagreement with the argument that after the disposal of the property in its first auction it was not available in the compensation pool for its disposal for the second time. As for the presumption that the auction would be deemed to have been cancelled by the act of forfeiture of the earnest money through some orders of the learned Dy. Settlement Commissioner, it would also not hold ground.
6. Cancellation of auction since confirmed could not take place at the hands of the Dy. Settlement Commissioner as he was not competent to do so under the law. Cancellation whereafter alone forfeiture could take place could in fact be made by the Addl. Settlement Commissioner in case it was so asked by the auction purchaser or before the next higher forum. On top of this, cancellation could not take effect legally without a notice to the auction-purchaser to show cause against cancellation. The point of limitation in such a case could not be allowed to be fatal to the cause of the present petitioner who held a valid right in the property. Orders of the Dy. Settlement Commissioner by which he declined to interfere in the matter would be of no consequence as for the right of either party because he did not hold any power in that behalf. Appreciation of the case by the learned Addl. Settlement Commissioner could not in any case find support on account of the aforesaid legal position, more so, because the facts concluded upon are more than based on a presumption--removal of documents."
7. We have examined the plea regarding removal of so-called withdrawal application and cancellation order. There is nothing to support it. The forfeiture order by D.S.C. Dated 16-3-1960, in absence of the application for withdrawal, is of doubtful existence and validity. Learned counsel remained unable to explain how reauction could take place within five days of the so-called forfeiture he could not deny that in this short period even barest formalities could not be gone through. The order of the Additional Settlement Commissioner could be set aside by the Settlement Commissioner on merits. And this is what was done and reauction was rightly held to be void. The revisional order having taken note of all the salient features of the case including limitation and the so-called question of cancellation of the first auction, could not be treated as without lawful authority. Condo nation of the delay was also within the jurisdiction of the Settlement Commissioner. What appealed to him is not at all irrelevant. The civil Court judgment was not in the field when the revisional order was passed. The respondent's suit was dismissed for lack of jurisdiction. The remarks made therein on merits of the case are of no help to the petitioner.
8. Similarly, the case regarding ejectment of Chanan Din cannot be treated as a determining factor in face of other serious infirmities in petitioner's case, particularly, when it seems Chanan Din's interest also at some stage, clashed with respondents because he wanted the transfer of the shop and also applied for it.
9. It is true that the P.T.D. Was issued in favour of Mushtaq Muhammad Khan. But the repeal of the rules relied upon by the learned counsel does not imply that the Settlement Authorities were by that deprived of their power under the statute to examine the propriety and legality of the orders which formed the basis of the P.T.D. If they were tainted with lack of jurisdiction, fraud and other reasons liable to be noted in appellate and revisional jurisdiction, the same could be examined.
10. After having carefully examined petitioner's contentions we do not find any merit in this petition.
11. It needs to be observed that we agree with the learned counsel that the remarks in the High Court judgment about petitioner taking benefit of remand order do not flow from the order of the Settlement Commissioner, who excluded him altogether'. Those remarks notwithstanding, the refusal of the High Court not to exercise its discretionary writ jurisdiction in this case is justified.
12. Leave to appeal is thus refused.