' Plot Khasra No, 171 measuring 10 marlas 50 Sq.Ft. Situate in Pakki Thatthi, Multan Road, Lahore, is the subject-matter of dispute between the contesting parties to this petition. It is stated to be in possession of the petitioner since 1954. He raised construction thereon before 1958 and is stated to have filed a form on 15th January, 1960 for its transfer. There is, however, a controversy between the parties as to whether the form in question had been returned to the petitioner or if the same was sent to the Deputy Settlement Commissioner for consideration in accordance with law.
2. On 5th March, 1962, the property in question was auctioned without the disposal of the form allegedly submitted by the petitioner. The petitioner is also stated to have made several efforts for the consideration of his form but in vain. A copy of the last application made by him in this regard is placed on record as Annex. 'B' dated 15th July, 1967. A report by the Settlement Inspector on it shows that the plot had been sold. The report also admits that some construction had been raised by the petitioner.
3. The petitioner filed an appeal before the Additional Settlement Commissioner on 24th August, 1967 against the transfer of the plot, without the disposal of his form but the same failed on 14th May, 1969. A revision petition was also rejected on 31st May, 1971 and hence the present writ petition.
4. It is contended by the learned counsel that the plot in question could not have been disposed of in auction without disposing of the petitioner's form in view of the law laid down in Ch. Sardar Ali v.
Ch. Ali Mohammad (1), Sher Muhammad v. S. Jjaz Hussain Shah (L. P. A. 126 of 1965). The learned counsel also relied on Annexure 'A' to say that the form in question had never been returned and that the thumb-impression thereon could never be construed to that effect.
5. Sh. Ghias Muhammad the learned counsel for respondent No 3, submitted that the form in question is shown to have been sent to the Additional Settlement Commissioner though under Settlement ,Scheme No, VI, it should have been received by the Deputy Settlement Commissioner.
The reliance was placed on Annexure 'C' wherein it is shown that no form was pending with regard to the property when it was to be auctioned. The objection has, however, been met by the other side by saying that as the last date for the submission of forms fixed by the Chief Settlement Commissioner had already gone-by, the form was submitted by the petitioner to the Additional Settlement Commissioner for condonation of delay and for onward transmission to the Deputy Settlement Commissioner. It was pleaded that the last date for submission of such applications was 30th November, 1959 while delay could be condoned by the Additional Settlement Commissioner.
6. It may be noted that the question whether the form of the petitioner was pending or not has not been properly decided. The Additional Settlement Commissioner relied on the B. S. Form register to say that the form in question had been returned to the petitioner, Annex. 'A', which is a certified copy of that register does not show that it had ever been returned. The respondents have not placed any other document in support of the observation of the Settlement Authority. In the circumstances, it cannot be safely said that the form had been returned. The mere presence of thumb-impression also may not suggest that the form had been returned or received. The judgments relied on by the petitioner therefore, do support him in his submission. The Settlement Authority, must have given a categorical finding if the form submitted by the petitioner had been returned or otherwise disposed of failing which the same should have been considered. The order of the Settlement Authority on that score, therefore, cannot be condoned.
7. The learned counsel for the respondent then submitted that the petitioner had in fact raised no construction and that the report of the (1) PLD 1970 Lah. 647 Settlement Inspector in 1957 was not helpful to him. It was contended by him that as the property in question had been auctioned in 1962, the petitioner should have proved that the required construction had been raised by then.
Even this aspect of the case had not been considered by the Settlement Authority below. The contention of the learned counsel will be quite valid if it had been found that no construction had been raised by the petitioner at the time the property had been auctioned. In that case the case would not fall under Settlement Scheme No, VI and the auction under para. 14 of the Schedule to the Displaced Persons (Land Settlement) Act would be perfectly valid. If, on the other hand, the petitioner had raised some construction, the Settlement Authorities were obliged to consider the same in accordance with law.
8. The parties also raised certain other questions of law and facts but I would not like to go into the same as it might prejudice the case of the parties. As I have already held that the Settlement Authority below did not properly apply their mind to the contentions of fact and law raised by the parties, it is a fit case that should be sent back for first inquiry and its determination. The impugned orders are, therefore, declared to be without lawful authority and of no legal effect. The parties, shall, however, bear their own costs.
9. The concerned authority shall decide this case afresh in accordance with law and permit the parties to raise all objections that they may like to do under the law.