1. ANWARUL HAQ, J.-The dispute in this case concerns a shop situate in Sargodha. By an order made on the 20th of February 1960, it was held by the Deputy Settlement Commissioner that the petitioner Muhammad Ashraf, as a local occupant, was not entitled to its transfer but the Deputy Settlement Commissioner then erroneously proceeded to place the shop in the earmarking list.
2. However, on 22-8-1960 it was disposed of by open public auction and purchased by respondent No. 1 Mohammad Hanif and his brother Muhammad Zahir. The auction was confirmed by the Additional Settlement Commissioner on the 30th of August 1960.
3. The transferees, thereafter, served upon the petitioner Mohammad Ashraf a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and on his failure to pay the rent due, they filed an ejectment application against him on 22-7-61. In those proceedings a compromise was reached between the parties and the same was recorded by the learned Rent Controller on 31-3-62, as a result of which the petitioner was allowed to continue in possession on payment of the agreed rent of Rs. 25 per month.
4. The petitioner however, started agitating for the transfer of the shop on the publication of a press note on the 3rd of May 1960 by the Chief Settlement Commissioner concerning the transfer of converted properties. The petitioner asserted that he had converted the shop into an industrial premises. There is a difference between the parties regarding the date on which the petitioner submitted his application in this behalf. The petitioner asserts that hemade the necessary application on 7-5-60 whereas at one stage it was held by the Deputy Settlement Commissioner that the application was made on 18-10-60. The application was however rejected .On 22-3-61 by the Deputy Settlement Commissioner on the ground that the property had already been transferred to the respondents before the application was made by the petitioner. In appeal the learned Additions' Settlement Commissioner remanded the case for further consideration and report. The Deputy Settlement Commissioner reported in favour of the petitioner and the shop was transferred to the petitioner on 18-4-62 under -the orders of the Additional Settlement Commissioner. Aggrieved by the order the respondent Mohammad Hanif filed a revision petition but the same was dismissed by the learned Settlement Commissioner on the 20th of March 1965 on the ground that it was barred by time.
5. The orders of the Settlement authorities were challenged by respondent No. 1 by means of a constitution petition in the High Court, which was accepted by a learned Single Judge by his order dated the 21st of February 1973. The learned Judge held that the transfer of the shop made in favour of respondent Mohammad Hanif and his brother Mohammad Zahir had become final, that it had been accepted as such by the petitioner Muhammad Ashraf when he agreed to attorn to the respondents as a tenant, and that ,the Deputy Settlement Commissioner as well as the Additional Settlement ,Commissioner who agreed to transfer the property to Muhammad Ashraf had failed to deal with the findings earlier recorded by the Deputy Settlement Commissioner in his order of the 22nd of March 1961 in which he had clearly held that the petitioner had not applied for the property until 18-10-1960, by which date the property was no longer available for transfer, having been earlier disposed of in open public auction in favour of the respondent Mohammad Hanif and his brother. On this view of the matter, the learned Judge has set aside the orders made by the Settlement authorities and restored the transfer of the shop in favour of the respondents.
6. Leave to appeal is sought on the grounds that the auction in favour of the respondents was illegal as there was no specific order passed by the Deputy Settlement Commissioner in this behalf, and instead the only order in the field was to place the property in the earmarking list; that on the date of the auction the petitioner's application for the transfer of the shop as a converted industrial concern was pending with the Deputy Settlement Commissioner and accordingly the shop could not be disposed of without a prior adjudication on the petitioner's application.
7. There is no merit in these submissions. It will be seen that the earmarking scheme relates only to evacuee houses and not to shops. The Deputy Settlement Commissioner could not, therefore, place the property in the earmarking list, and it could only be disposed of by open public auction once the petitioner, as a local occupant, was not found to be entitled to the transfer of the shop.
8. The shop was, therefore, rightly disposed of by auction in favour of Mohammad Hanif and his brother.
9. When the transferees started ejectment proceedings against the petitioner, he never took up the plea that he was agitating for the transfer of the property as a converted industrial concern, but instead entered into a compromise to attorn to the transferees as a tenant. From these facts, it appears that the petitioner's application for the transfer of the shop as a converted property was not in the field at that time and he had accepted its disposal by auction in favour of the respondent Mohammad Hanif and his brother. The Settlement authorities could not proceed to dispose of the property once again, without first setting aside, in proper proceedings, the auction already confirmed in favour of the respondents. This was, however, never done. The auction having been confirmed by an Additional Settlement Commissioner by his order dated the 30th of August 1960, another officer of equal or concurrent jurisdiction had no authority to transfer the same property in favour of the present petitioner.
10. We also find that there is substance in the conclusion reached by the High Court that the Deputy Settlement Commissioner having once found by his order dated 22nd of March 1961 that the petitioner had applied for the property only on the 18th of October 1960 i.e., after the confirmation of the auction, this finding could not simply be by-passed by another Deputy Settlement Commissioner and the Additional Settlement Com--missioner without recording any reasons.
11. However no reasons were at all given for departing from the previous finding in this behalf. We also notice that while arguing the matter before the Additional Settlement Commissioner on 27-12-1961 a dishonest statement was made on behalf of the petitioner that the property was still un- disposed of, although he fully knew of its transfer in favour of the transferees and the ejectment proceedings taken by the transferees against him.
12. For all these reasons, it appears to us that the High Court was right in holding that the transfer of the shop, by way of auction, in favour of respondent Mohammad Hanif and his brother Zahir was still intact, and the subsequent transfer in favour of the petitioner was without lawful authority.
13. Accordingly, no justification is made out for our interference, in the matter. The petition is, therefore, dismissed.