This judgment will dispose of W.Ps. 187-R of 1980 and 121-R of 1981, in that common questions of law and fact are involved therein.
2. The dispute relates to a piece of land measuring 2 Kanals, 13 Marals, forming part of Khasra No. 729, situate within the urban limits of Sialkot City, which according to the petitioners in W.P. No. 187- R of 1980 (hereinafter called the "auction-purchasers") is residental plot bearing No. 1/1298-A, validly purchased by them through auction. According to the petitioners in W.P. No.121-R of 1981 (hereinafter called the "allottees") it is agricultural land having been confirmed in the name of Sardar Ali, their predecessor-in-interest, against verified claim for urban agricultural land.
3. The order impugned in W.P. No. 187-R of 1980, moved by the auction-purchases, is dated 31-8- 1971 passed by the Settlement Commissioner (respondent No. 2) whereby the allotment of the property in question was restored in the name of the "allottee" as agricultural land.
In Writ Petition 121-R of 1981, moved by the "allottees" vires of the auction proceedings and the consequential issuance of transfer documents to the "auction-purchasers" has been questioned.
4. I have heard the learned counsel for the parties at length in both the writ petitions. Mr. Hamid Ali Mirza, Advocate, has assisted the Court as amicus curiae.
5. The dispute property bearing Khasra No. 729 was proposed along with few other Khasra numbers in the name of Sardar Ali "allottee" on 23-4-1960. On 4-5-1960 the Divisional Allotment Committee, headed by the Additional Settlement and Rehabilitation Commissioner, approved and confirmed the same proposal.
6. In 1960 Khasra No. 729 (area 5 Kanals and 8 Marlas) was carved out into two plots, viz. Plot No. 1/1298-A and Plot No. 1/1298-B with equal area of 2 Kanals, 14 Marlas, by the D.S.C. (Urban), Sialkot, and the same were included in the auction list. At that time, one Lal Din was in possession of the property in question and he-attempted to get it deleted from the auction list. Having failed in this regard, he filed a revision petition which was dismissed on 21-1-1970.
Thereafter, it was auctioned in favour of Sh. Muhammad Iqbal and Sh. Muhammad Afzal on 16-4- 1960 for Rs.37,000. The auction was conducted by Assistant Account Officer and the proposal of D.S.C. Dated 25-4-1960 for approval of the auction was accepted and formal approval was granted by the Additional Settlement Commissioner on the same day.
7. Subsequently Riaz Ahmed, son of the "allottee" applied for cancellation of the auction of the property in question on the ground that it stood allotted as urban agricultural land to the "allottee"
The DSC (Urban) appears to have different idea about it. He recommended on 13-8-1969 to the DSC (Land) that the property in dispute, being situate in predominantly residential area, and there being superstructure at the spot. Its allotment as agricultural land in the name of the "allottee" be cancelled. The matte was placed before the Additional Settlement Commissioner, who initiated proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act and issued notice in this behalf. Ultimately, on 31-3-1971, orders were passed by him cancelling the allotment of the disputed property from the name of the "allottee" as agricultural land.
The "allottee" filed W.P. No. 106 of 1971 in this Court abut - it was dismissed as withdrawn as, in the meantime, the impugned order of the Additional Settlement Commissioner had become, by change of law, revisable, and a revision had, in fact, already been filed.
8.During this period, the "auction-purchasers" had paid transfer price of the plot and obtained PTO on 7-12-1973. After the withdrawal of the writ petition the revision petition filed by the "allottee" was placed before the Settlement Commissioner. He had the parties, went through the record and also inspected the spot in the presence of the parties. He ultimately decided it through the order dated 31-8-1971, which is impugned herein. The Settlement Commissioner set aside the order dated 31-3- 1971 passed by the Additional Settlement Commissioner, inter alia, holding that the property in question was urban agricultural land and had been wrongly "auctioned. Thus the auction of the disputed property in favour of the "auction purchasers" was quashed and its allotment as agricultural land in the name of the "allottee" was restored.
9. On behalf of the legal heirs of the "auction-purchasers", it is urged that the property in question has been wrongly treated to be urban agricultural land and the auction in their favour was justified.
10. In my view, the order of the learned Settlement Commissioner dated 31-8-1971 is unexceptionable. He, besides going through the entire record, had paid a visit to the spot in the presence of the parties and recorded the following findings of fact:-- (i)the property in question is Baghicha Chahi measuring 2 Kanals, 10 Marlas and there are Kutcha huts over it covering an area of three Marlas; (ii)the finding of the Additional Settlement Commissioner that it is situate in predominantly residential area is not correct; and (iii)as per inspection, the property is agricultural land, there are fruit and other trees standing thereon and it cannot be treated to be Sikni land.
11. I am afraid, it will not be possible for me, in writ jurisdiction, to interfere with these findings of fact, as these are based on spot inspection, particularly so when the said findings of fact are borne out from the record and have not been demonstrated to be either perverse, arbitrary or capricious.
12. Learned counsel for the "auction-purchasers" has attempted to argue that according to the Revenue Record of pre-partition origin this property has been shown to be ' Ghair Mumkin Abadi', and in order to find out the nature of the property, the said record is of determinative character.
There is no cavil with the legal proposition as propounded. However, this exercise, in my view, is not called for, in the instant case, keeping in view its peculiar circumstances.
13. In my view the auction proceedings are a nullity. Reference to Annexure ' A' with W.P. No. 187-R of 1980 would show that the auction was conducted by an Assistant Accounts Officer. No other officer of the Settlement Department was present. Thus the auction carried little weight in the eye of law, inasmuch as the auction of building sites was to be conducted by the auction committee in terms of condition No. l (terms and conditions of auction of building sites under Settlement Scheme No.VI). I have asked Sh. Abdul Aziz, learned counsel for the "auction-purchasers" to explain as to under what provisions of law the auction conducted by an Assistant Accounts Officer could be held to be sanctified. He has not been able to satisfy me in this behalf. In this view of the matter, I would be justified in holding that no rights whatsoever accrued in favour of the "auction-purchasers" through the said auction. See Ch. Imdad Ali v. Settlement Commissioner (PLD 1975 Quetta 62).
Consequently they/their successors have no locus standi to question the restoration of allotment of the property in question, as urban agricultural land, in favour of the "allottee", in terms of the impugned order.
14. I may point out that the Settlement Commissioner focussed his entire attention on the determination of nature of the property in question and did not deem it necessary to give a finding about the legality or otherwise, of the auction, though this point was specifically urged before him and noticed in his order.
J
15. In `view of what has been stated above, W.P. No. 187-R of 1980 is dismissed and W.P. No. 121-R of 1981 is accepted.
Before parting with this case, I must place on record my appreciation of the assistance rendered by Mr. Hamid Ali Mirza, Advocate, as amicus curiae.
No costs in both cases