JUDGMENTIRSHAD HASAN KHAN, J.- This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against the order dated 9.2.1976 of the Deputy Settlement Commissioner (Plots), Lahore.
2. The dispute in this case relates to a piece of land comprising Khasra Nos.8596, 8600 and 8611, measuring one Kanal,situated in Uttarn Nagar, Lahore. The petitioner claims to be in possession of the disputed premises since 1957. He allegedly raised a construction over it and applied for the transfer of the same on 30-11-1959 on B.S. Form under Settlement Scheme No.VI. It is also alleged that in the year 1962, the premises in dispute were assessed to House Tax by allotting it No.S-XVI- SS-18 by the Lahore Municipal Corporation. The petitioner alleges that the entire plot in dispute is bounded by a boundary wall. He also got electricity installed therein in 1963.
3. The grievance of the petitioner is that without disposing of the BS form filed by him, one of the Khasra numbers, namely, 85% measuring 14 Marlas 40 sq.Ft.Was put to auction on 18.6.1966 by showing it as a vacant piece of land and the same was purchased by Sardar A.I, respondent No.1, since dead, and whose legal representatives have been brought on record. The auction was confirmed by the Additional Settlement Commissioner, Lahore, by order dated 25.6.1966. Thereafter, the respondent Sardar A.I made an application to the Settlement Department for delivering possession of the disputed plot. In consequence, the Deputy Settlement Commissioner, Lahore, by order dated 27.5.1967, issued a notice of ejectment to the petitioner and others under Section 29 of the Displaced Person (Compensation & Rehabilitation) Act, 1958. The petitioner challenged this orde in appeal which was accepted by the Additional Settlement, Commissioner, Lahore by order dated 3.1.1974. The case was remanded to the DSC (Plots) Lahore with the direction to inspect the spot and to make a thorough inquiry into the matter. If it was found that the petitioner had filed BS Form and made permanent construction over it before the prescribed date, the auction would stand cancelled and the DSC(Plots) Lahore should consider the entitlment of the petitioner for the transfer of the same in accordance with law. In consequence, the DSC summoned the parties for 6.11.1975 and thereafter adjourned the case for recording evidence on 24.11.1975. The case was later adjourned from time to time, but eventually instead of recording evidence of the parties, the DSC by his interim order dated 6.2.1976 adjourned the case for arguments to 9-2- 1976 on which date after hearing the argument, in view of the evidence available on the record and in the light of the spot inspection, the Deputy Settlement Commissioner (Plots), Lahore, by order dated 9.2.1976 recorded a finding of fact that no construction was raised by Muhammad Iqbal petitioner at the time when the plot was put to auction. Accordingly, the petitioner's Form was rejected and the auction in favour of Sardar A.I was upheld.
4. Mr. R.A. Zafar, learned counsel for the petitioner contended that the Deputy Settlement Commissioner has not complied with the remand order in latter and spirit, inasmuch as, no opportunity was granted to the petitioner to lead any evidence in support of his claim. The contention is not tenable. No prejudice has been caused to the petitioner for non-production of evidence, inasmuch as, whatever evidence the petitioner wanted to adduce before the Additional Settlement Commissioner, the same has been placed on the record of this Court, which is documentary in nature. Th first document relied upon by learned counsel for the petitioner is an extract of the assessm ent register of the Lahore Municipal Corporation for the year 1962, according to which property No.S.XVI-8-s-18, Samanabad, Lahore, is assessed to property tax at an annual of Rs.270/-. Nature of the property is shown as Shamalat and the occupier as Muhammad Iqbal. This document, however, does not show that the requisite construction was raised on the disputed plot at the relevant time. The next document is an uncertified memorandum No.27626/R.O./1142 dated 8.12.1973 from the Revenue Officer-I, Electricity WAPDA, Lahore, certifying that the security amount of Rs.30/-was deposited with the Department on 7.9.1963 against account No.F- 97713. In the first instance, this document being uncertified is not admissible in evidence and even if it is taken into consideration, it does not prove the claim of the petitioner that requisite construction was built by him. The third document is the site plan prepared by the petitioner himself, according to which out of the total area of the disputed plot, the built-up area comes to five marlas. The petitioner failed to produce this plan before the Deputy Settelement Commissioner at any stage during the course of the proceedings. Furthermore, it is contrary to the finding of fact recorded by the Deputy Settlement Commissioner after spot inspection that no construction was raised by the petitioner at the relevant time. Additionally, at the time of arguments, the petitioner did not raise any objection as to why he was being denied the opportunity to lead evidence neither he made any written application before the Deputy Settlement Cmr.Iniasioner that he be permitted to lead the evidence.
In the circumstances, failure to grant opportunity to the petitioner to lead evidence, was a mere irregularity which was not material. It was within the domain of the Settlement authorities to determine whether any construction was raised or not and its extent and who was in possession of the same at the relevant time. In the instant case, the Deputy Settlement Commissioner has recorded a finding of fact which is adverse to the petitioner. The same is not open to challenge in writ jurisdiction.
5. It is next contended that BS Form filed by the petitioner relates to entire piece of land comprising all the three Khasras No.8596 was put to auction in favour of the respondent Sardar A.I and, therefore, there was no justification for rejecting the BS Form of the petitioner for the remaining two Khasras which have not been auctioned in favour of the respondent. In this context, it is contended that the Deputy Settlement Commissioner has failed to apply his mind while passing the impugned order,as he was not even conscious of the fact that the auction purchaser purchased only one Khasra number in auction and that the entitlement of the petitioner regarding two other Khasra number was also to be consider. The contention is devoid of any force. The Deputy Settlement Commisioner has recorded a specific finding of fact that no construction existed on the plot. The petitioner has also failed to show that the requisite construction was raised at the relevant time.
6. Learned counsel for the petitioner next placed reliance on Gul Muhammad Vs. Settlement Commissiner, Karachi (PLD 1968 Karachi 669), to contend that where an applicant submits a Form for transfer of the evacuee properly, the same cannot be auctioned without disposing of his claim.
There can be no cavil with the proposition advanced by learned counsel for the petitioner and I respectfully agree with the ratio laid down in the precedent case, but this does not help the petitioner in the instant case, inasmuch as, in post-remand proceedings, the Form of the petitioner has been duly considered and rejected.
7. Learned counsel also placed reliance on Muhammad Bashir and another Vs. Mst. Naziran and another (PLJ 1987 SC 306), to contend that where on remand the case is not disposed of in terms of the remand order and in accordance with law, the same is liable to be quashed. This authority does not advance the case of the petitioner. Here there was no violation of the remand order and the impugned order is just, fair and in accordance with law.
8. It may also be mentioned that Dr. Abdul Basit, learned counsel for the respondent raised a preliminary objection that Muhammad Iqbal has sold all the rights in the disputed plot in favour of Muhammad Hussain son of Ilam Din. The petitioner has entered into deed of association with the aforesaid Muhammad Hussain on 31.3.1971 and according to Clause 5 of the agreement, Muhammad Hussain was the exclusive owner of the plot. Mr R.A. Zafar, learned counsel for the petitioner submitted in rebuttal that the deed of association is a forged document. It was neither filed before the Settlement authorities and in any case no question arose of the execution of the document before it was transferred to the petitioner. He also placed reliance on Mst. Amina Begum Vs. Additional Settlement Commissioner. Lahore (1981 SCM R 228), to contend that there cannot be any lawful agreement of association unless the statement of the parties are recorded. The preliminary objection raised by Dr. Abdul Basit involves a factual controversy which Cannot be examined in these proceedings. Be that as it may, the petitioner has not been able to make out a case on merits for the acceptance of the writ petition.
In view of the above, the writ petition fails and is hereby dismissed, but there shall be no order as to costs.