This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the order of the Settlement Commissioner, Sargodha Division, Sargodha, dated 23-4-1975, whereby he held that the petitioner purchased only one shop in Property No.P/1, Ward No.7. Jhang Bazar, Faisalabad.
2. Briefly, the facts of the case are that the petitioner purchased Property No.P/ 1, Ward No.7, Jhang Barar. Lyallpur (now Faisalabad), in open auction from the Settlement Authorities on 6-11-1962 at a price of Rs.1,40,500 being the highest bidder. He deposited 1/4th of the bid money. In consequence, the P.T.O. Was issued to him on 10-4-19(3. When the balance price of the property in dispute was demanded from the petitioner, he raised an objection that the property which has been purchased by him in auction consists of five shops including the two shops already transferred to Mehr Din. In this background, he prayed to the Settlement Authorities that either all the five shops be transferred in his favour or he be allowed proportionate reduction in the auction price. His application was rejected by the Deputy Settlement Commissioner. In appeal, the Additional Settlement Commissioner, by order dated 8-1-1968, allowed proportionate reduction in the auction price. The petitioner then approached the Deputy Settlement Commissioner for implementation of the order passed in appeal. The Deputy Settlement Commissioner took objection to the legality of the appellate order and made a reference to the Chief Settlement Commissioner, whereupon the Settlement Commissioner in exercise of his suo motu revisional jurisdiction, vide order dated 14-12- 1973, held that the property auctioned in favour of the petitioner consisted of three shops and not five shops. The petitioner challenged this order in Writ Petition No.501-R-174. The learned Judge of this Court remanded the case to the Settlement Commissioner, Sargodha Division, Sargodha, for fresh decision in accordance with law, as to whether the description of the property in the auction list consisted of five shops or three shops. On remand, the learned Additional Commissioner (Revenue), exercising the powers of Settlement Commissioner, Sargodha Division, Sargodha who heard the appeal, after considering the submissions of the learned counsel for the parties and appreciating the documents, that is to say, Survey List, the Bid-sheet, the transfer order of the house made in favour of Mehr Din son of Ghulam Muhammad in 1948 consisting of one room vide order dated 12-1-1960, recorded a finding of fact that only one shop was ordered to be included in the auction by order of the Deputy Settlement Commissioner dated 4-12-1959 and thereafter rejected the request of the petitioner for the transfer of the residential portion in his favour. He also recorded a finding of fact that the petitioner has already paid Rs.48,000 against transfer price and that the remaining amount should be paid by him before issuance of the P.T.D.
3. Rana Abdur Rahim learned counsel for the petitioner vehemently contended that prior to the remand order, the Settlement Commissioner, vide his order dated 14-12-1973, after spot inspection, recorded a fording that there were five shops in Property No.P/1 Ward No.7. Two shops were found by him in possession of Mehr Din and, therefore, without inspecting the spot, the Settlement Commissioner could no have arrived at a finding contrary to that recorded in pre-remand proceedings, especially when a direction was given by the High Court to make a probe as to the description of the property and the number of the shops. The submission is that since the direction has not been complied with, therefore, the impugned order is without lawful authority.
4. I have given anxious consideration to the submissions of the learned counsel for the petitioner and have also carefully perused the material available on the record.
5. It is the case of the petitioner himself that the property which was purchased by him in auction was in occupation of Mehr Din and described as Sultan Hotel in the auction list, a copy of which, duly attested by Rana A. Rahim Khan, learned counsel for the petitioner, has been placed on the record, the relevant entries of which read as under:-
6. A bare perusal of the auction list, relied upon by the learned counsel for the petitioner, would show that only one shop was included in the auction list and not five shops, as alleged by the petitioner. The petitioner is, therefore, estopped by his own conduct to assert that five shops were included in the auction list which were purchased by him. Furthermore, learned Settlement Commissioner, after carefully appreciating the documents available on record, recorded a finding ---of fact that only one shop was ordered to be included in the auction by the order of the Deputy Settlement Commissioner dated 4-12-1959. This finding' s not open to challenge in the exercise of constitutional jurisdiction. The learned counsel has failed to point out any violation of any law or procedure as to evaluation of, evidence or any misreading of evidence warranting interference in writ jurisdiction.
7. As to the plea of Rana A. Rahim Khan, learned counsel for petitioner, that the findings recorded in the impugned order' are in conflict with the earlier finding of the Settlement Commissioner, in his order dated 14th December, 1983, after spot inspection, that the property auctioned in favour of the petitioner consisted of three shops and not five shops, suffice it to say that the order in question having been quashed by the High Court in the remand order, passed in Writ Petition No.501/R of 1984, no advantage can be claimed by the petitioner of any finding recorded therein. The learned Settlement Commissioner who passed the impugned order was not bound to follow the findings recorded by his predecessor which were set aside in the remand proceedings. He was to apply his mind independently regardless of any observations made in the order which was earlier set aside.
The impugned order is self-contained and based on cogent reasons. In any event, the findings of fact recorded in the impugned order are not assailable in these proceedings.
8. I also find no force in the argument of Rana A. Rahim Khan that the impugned order is violative of the order of remand passed by the High Court, inasmuch as, the Settlement Commissioner did not make any spot inspection. As' pointed out earlier, a bare perusal of the auction list itself would show that only one shop was included in the auction list and, therefore, there was no need of any spot inspection. In any event, even if it is assumed that the property which has been transferred to the petitioner includes two other shops which were in possession of Mehr Din, the writ petition cannot succeed, inasmuch as, in such an event Mehr Din, was a necessary party to the writ petition but has not been impleaded as such.