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Civil Appeal No. 57 of 1976, decided on 8th March, 1981.

(From the order of this Court dated 13-7-1973 in C. P. S. L. A. No. 354 of 1972).

---- S. 18-Appeal--Order confirming auction sale reading: "approved provided property is available for transfer"-Held: Such order purely an administrative order and also a conditional order Property subject of auction having been permanently settled in favour of appellant and thus being not "available for transfer", order confirming auction sale could not be set up as a bar to disqualify subordinate settlement authority from bearing case on judicial side as appellate authority and order passed on hearing thereafter not in nature of review of earlier order of such authority.

Abdul Jabbar Khaa v. Additional Settlement and Rehabilitation Commis sioner P L D 1964 Kar. 365 and Muhammad Rashid v. Chief Settlement and Rehabilitation Commissioner P L D 1962 Lah. 217 ref.

Art. 199--Writ jurisdiction---Conclusive finding of fact by Settlement authority holding disputed land not to be an urban building site and being rightly allotted to appellant against his verified claim for urban land, held, nut liable to interference in writ jurisdiction by High Court.

A. R. Shaukat, Senior Advocate Supreme Court and Inayat Hussain, Advocate-on-Record for Appellant.

Raja Said Akbar, Advocate Supreme Court and Raga Maqbool Ahmad Qadri, Advocate-on-Record (absent) for Respondent No. 1.

Respondent No. 2: Ex parte.

Date of hearing: 12th October, 1980.

The dispute in this appeal, by special leave concerns 14 marlas of land, being part of Khasra No. 9206/4084, measuring I kanal, 7 marlas and 6 sarsais, situate on Chaklala Road, Rawalpindi. This Khasra along with certain other area was temporarily allotted to the appellant in September, 1960, in satisfaction of his verified claim for urban land, and the allotment was confirmed under Martial Law Regulation No. 89.

On 29-9-1966 the disputed area was put to auction, as a building site, under an order passed by the Deputy Settlement Commissioner, and it was transferred to respondent 1 as the highest bidder. The auction was then confirmed by he Additional Settlement Commissioner, Mr. Wali Muhammad Khan Nagar on 6-10-1969. Appellant challenged the order of the Deputy Settlement Commissioner placing the disputed land in the auction list and its disposal through auction in an appeal to the Additional Settlement Commissioner. The appeal was allowed by the order dated 22-5-1972 on the ground that the disputed area being urban agricultural land, and not a building site, could not be disposed of by auction, and moreover it had been validly transferred earlier to the appellant. Respondent 1 challenged this order in revision to the Settlement Commissioner, who however, upheld the view of the Additional Settlement Commissioner and dismissed the revision application. Respondent 1 then filed a petition under Article 199 of the Constitution in the Lahore High Court seeking to challenge the orders passed against him. Learned Single Judge of Lahore High Court who heard the case took the view that the Additional Settlement Commissioner, Mr. Wali Muhammad Khan Nagar, had himself confirmed the auction by the order dated 6-10-1969 and the subsequent appellate order passed by him dated the 22-5-1972 tantamount to review of his earlier order and since the Additional Settlement Commissioner was not competent in law to review his earlier order the order passed by him on 22-5-1972 was wholly without jurisdiction, and the fact that this order was upheld by the Settlement Commissioner in revision could not confer validity to it. On this view of the case, learned Single Judge remanded the case to the Settlement Department with the direction that appeal filed by the appellant against auction of the disputed land which must be deemed to be pending be heard and decided afresh, by an Additional Settlement Commissioner, other than Mr. Wali Muhammad Khan Nagar who had confirmed the auction in favour of respondent 1.

Special leave to appeal against the judgment of the High Court was granted in order to examine the question whether the view of the learned Single Judge in the High Court was correct that the order passed by Additional Settlement Commissioner dated 22-5-1972 was in the nature of review of his earlier order dated 6-10-1969, confirming the auction in favour of respondent 1.

Mr. A. R. Shaukat, learned counsel for the appellant submits that the order of the Additional Settlement Commissioner dated 16-10-1969 confirming the auction sale was purely an administrative order, passed in routine, and moreover it was a conditional order and, therefore, Additional Settlement Commissioner was not disqualified from hearing the appeal on the judicial side.

The order of the Additional Settlement Commissioner dated 16-10-1969 reads:-

"approved provided the property is available for transfer."

There can be no doubt that this is purely an administrative order passed in routine, and moreover it is a conditional order of approval of auction, subject to the property being available for transfer. Subsequently, on examination of the record, in the course of hearing of the appeal filed against the order by which the disputed land was put to auction, learned Additional Settlement Commissioner reached the conclusion that the disputed land was not available for transfer in view of the fact that it has been permanently settled in favour of the appellant and its disposal as an urban land was totally illegal. Since the order of the learned Additional Settlement Commissioner dated 16-10-1969 was a condition order and by its very character and in its essence it was an administrative order, it cannot be set up as a bar to disqualify the Additional Settlement Commissioner from hearing the case on the judicial side as an appellate authority under section 18 of the Displaced Persons Compensation and Rehabilitation) Act. In similar situation Wahiduddin, J. (as he was then) in Abdul Jabbar Khan v. Additional Settlement and Rehabilitation Commis sioner (PLD 1965 Kar.365), observed asunder:

"The third point raised by the learned counsel that the Additional Settlement Commissioner was not competent to set aside the auction as in doing so he was in effect reviewing the order of his learned predecessor about the confirmation of the auction has also not impressed me. In my opinion, if any property is auctioned at a time when the applications of the persons claiming it are still pending, the auction cannot bind the rightful claimant. If later on, on the application of such a person the auction is set aside it will not be considered to be an order passed in review jurisdiction. On the other hand it will considered to have been passed in the appellate or revisional jurisdiction as the case may be. It is needless to point out that the approval of an auction by Additional Settlement Commissioner is only in the nature of an administrative order."

Similarly in Muhammad Rashid v. Chief Settlement and Rehabilitation Commissioner (P L D 1962 Lah. 217) S. A. Mahmud, J. observed that an order of acceptance or refusal of a bid at an auction is neither judicial nor quasi-judicial in character and is not open to interference unless it is opposed to the provisions of the Act.

The view that prevailed with the learned Single Judge in the High Court that the appellate order passed by the Additional Settlement Commissioner dated 22-5-1972 was in the nature of a review of his earlier order dated 6-10-1969 is therefore clearly erroneous, and cannot be sustained in law.

Moreover, the conclusive finding of fact that the disputed land was not an urban building site, and was therefore rightly allotted to the appellant against his verified claim for urban land, left no scope for the High Court to interfere with the order passed by the learned Settlement Commissioner or for that matter the one passed by the Additional Settlement Commissioner dated 22-5-1972.

For these reasons, the appeal succeeds, and is accordingly allowed, with the result that impugned judgment of the High Court is set aside. In the circumstances, the parties are left to bear their own costs.

Appeal allowed.

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