1988 PLP 993 (SCMR)

SAAD SAOOD JAN, J.‑‑The dispute in this petition for special leave to appeal relates to a house situate in Ramgali, Lahore. It was transferred to Nazir Hussasin, predecessor‑in‑interest of respondents Nos. 1 to 7 , on a C . H . Form. A P. T . O. was issued it his favour on 30‑2‑1960. The transfer price was assessed at Rs.11,244/‑. He paid the price by filing three compensation books with the Settlement Department. One of the compensation books which belonged to respondent No.1 and covered an amount of Rs.3,304 was lost in the department. Steps were then taken for the issuance of a duplicate compensation book. It seems that the department omitted to adjust the amount of the lost compensation book towards the price of the house. Nazir Hussain died in July/October, 1966.

2. The file relating to the transfer of the house to Nazir Hussain has been misplaced. It cannot therefore be said with any measure of certainty that any notice or notices were sent by the department to Nazir Hussain or his successors‑in‑interest to pay that portion of the price of the house which was covered by the lost compensation book. Similarly it is not known whether any formal order of resumption of the property was passed by a competent officer. However that may be the house was put to public auction on 26‑9‑1970. The petitioner gave the highest bid. The auction was confirmed on 12‑10‑1970 and a permanent transfer deed was issued to him on 10‑12‑1970. On 15‑12‑1970 respondents Nos.1 to 7 filed an appeal against the order of resumption and the auction of the house. The memorandum of appeal was also accompanied by an application for condonation of delay in the filing of the appeal. The Additional Settlement Commissioner dismissed the appeal both on merits and on the ground of limitation. The said respondents filed a revision petition before Settlement Commissioner which too was dismissed. They then invoked the constitutional jurisdiction of the High Court.

3. A learned Single Judge in the High Court who heard the constitutional petition came to the conclusion that as the compensation books of petitioner No.1 had been deposited with the department towards the transfer price of the house, the authority concerned could not resume the property for non‑payment of the amount mentioned therein. He also held that there was no formal order of resumption of the property and therefore it could not be put to auction.

4. After hearing the learned counsel we are not satisfied that the order of the learned Single Judge in the High Court suffered from any infirmity. It is not disputed that the three compensation books deposited by Nazir Hussain were sufficient to cover the entire transfer price. He could hardly be blamed or his successors penalized for the fault of the department in misplacing one of the compensation books. In any event a duplicate of the lost compensation book was got issued and it is no body's case that the duplicate book was utilized else where by respondent No.1. There is also no evidence that any demand notice or notices were issued by the department to Nazir Hussain or his successors or that an order of resumption was made by a competent authority. As already mentioned the relevant file has been misplaced by the department and it is merely a conjecture that it were the respondents who were responsible for its loss. In the circumstances, no case for interference with the order of the High Court has been made out. The petition is dismissed. M.I. /M‑399/5 Petition dismissed.