2005 PLP 861 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

This appeal is directed against the judgment of learned Judge of Lahore High Court, Rawalpindi Bench, dated 3-11-2000 vide which appellant's Constitutional Petition No.44/R of 1981 was dismissed and the orders of Additional Settlement Commissioner dated 2-7-1964 cancelling the shop, subject-matter of this appeal from appellant's name as also the order, dated 20-9-1978 allotting the same to respondent No.1 were upheld.

2. Facts in brief are that Shop No.117 situated at Lower Bazar, Murree was transferred to the appellant by the Rehabilitation Authorities on 28-12-1959. His N.C.H. Form for the transfer of the shop was accepted and Appendix IX was issued in his favour. The price of the shop was determined as Rs.8,

400. He made part payment of Rs.2448 and for the balance amount of Rs.4952 (as per the case of respondent) a final notice was issued to him on 20-7-1963. Meanwhile he was issued P.T.O. on 26-7-1963. On a report submitted to the Additional Commissioner to the effect that despite two notices appellant had failed to deposit the balance amount, the transfer order in appellant's favour was cancelled by the Additional Settlement Commissioner on 2-7-1964. Thereafter, on the application of respondent Aftab-ul-Haq the shop was allotted to him for the stated reason that the same was available property of which he was in possession. Having failed in his attempt before the Settlement Authorities to have his allotment restored appellant filed Constitutional Petition No.44/R of 1981 which was dismissed vide the impugned judgment, dated 3-11-2000. The learned High Court observed as under:-- " . Petitioner was clearly a defaulter in spite of notice, has not paid the balance price. No application for extension of time was ever submitted before respondents Nos.2 and

3. In these circumstances, the question for extension of time in clearance of balance in the instant case does not arise. For the aforesaid reasons, this judgment does not apply to the case of petitioner "

3. Learned counsel for the appellant in support of this appeal submitted that appellant was proceeded ex parte, that there was nothing on record to show that service had been effected on the appellant, that it is repellent to common sense that the appellant having known about the notice could have kept him quite purposely, that even after cancellation of the allotment the appellant had the right to have it restored under Settlement Scheme No.1 and the High Court fell in error in not adverting to this aspect.

4. Learned counsel for respondent on the other hand defended the impugned judgment by submitting that appellant had been issued two notices, that he purposely avoided to appear, that service was effected on one Naseem, that the respondent is a bona fide purchaser that under Settlement Scheme No.IX and that the concurrent findings of the Courts below do not merit interference.

5. We have gone through the impugned judgment, the documents annexed with the appeal and have given anxious consideration to the submissions made at the bar.

6. Admittedly the appellant was an allottee of the shop in dispute. He had made part payment and only a sum of Rs.4,952 remained to be paid. There is neither anything on record to indicate nor it has been so held by the High Court that the service of two notices issued dated 23-6-1963 and 10-6-1964 was ever personally effected on the appellant. No notice through post under acknowledgment due was ever sent to the appellant either. The learned High Court having checked the record of the Settlement Department has made an observation that service was effected on one Naseem. This is no service in the eyes of law because it is nobody's case that said Naseem was either an heir of the appellant or he was so intimately connected with the appellant to raise a presumption that the service was effected on the appellant. It is repellent to common sense that if service had been effected or he knew about the notice in question, the appellant could have kept quite and faced the ultimate consequence i.e. cancellation of the transfer order. The very fact that he deposited an installment of Rs.1,000 on 6-7-1968 shows that he was not aware of the cancellation order nor the department informed him ever. The cancellation being arbitrary is not sustainable in law.

7. Coming to the allotment of the shop to the respondent we find an application of respondent at page 33 of the paper book which reads as under:--

8. A bare reading of the afore-referred application indicates that respondent on his own showing was a tenant of the appellant and he had been paying yearly rent to him as far back as 19-5-1978 when the application was made to the Settlement Authorities for allotment. By the time this application was moved Settlement Scheme VIII had been enforced vide Notification No.FI.(1)65-65-SP dated 17th June, 1965. The property in question was allotted to the respondent on the afore-referred application vide order, dated 20-9-1978 considering it to be an available property within the meaning of section 1 of Settlement Scheme No.VIII. But what is an "available property" within meaning of the Scheme in question? Section 1(1)(1-A) of the said Scheme defines 'available property' as under:-- "1. . (1) . (1-A) 'Available Properties' means houses, shops, building sites, industrial concerns and cinema houses (whether allotted by the Industries Rehabilitation Board or not) and big mansions and hotels which have not yet been transferred to any person or which may in future become available for transfer on resumption to be made under Chapter II of this Scheme."

9. The property subject-matter of this appeal could only be "available property" if it had yet to be transferred to anyone or it had been resumed from an allottee lawfully. Since the very cancellation of the appellant's allotment had been found to be not sustainable in law for reasons given in para.7 above the property could not be classified as "available property" within the meaning of the Scheme and this could not be allotted.

10. There is yet another aspect of the matter. The factum of respondent Aftab-ul-Haq being a tenant of the appellant is not disputed. His claim for allotment of the shop under Settlement Scheme No.VIII on the basis of his possession was misconceived because he was not in possession of the shop of his own right but was a tenant. The constructive possession was that of the appellant in his capacity as owner/landlord of the shop. That being so, the condition precedent for allotment under the afore-referred scheme i.e. possession of the respondent/applicant was missing and it could not have been allotted. The order, dated 20-9-1978 passed in favour of respondent, therefore, besides being arbitrary is unjust and cannot be allowed to countenanced. The learned High Court has misread and non-read material evidence on record in pronouncing the finding that the service of the notice issued to the appellant for clearing the default stood served. The very fact that even respondent in his application dated 19-5-1978 seeking allotment of the shop himself admitted that he had been paying rent to the appellant till the date of his application by itself indicates that the factum of cancellation was not in the knowledge of the appellant as he admittedly had been receiving the rent till 19-5-1978.

10. For what has been discussed above, this appeal is allowed, the impugned judgment, dated 3-11-2000 and as also the order dated 20-9-1978 are set aside with no order to costs.

12. In the peculiar facts and circumstances of this case, as the respondent was tenant of the appellant and that he has not paid the rent after 1978, and as the party has suffered protracted litigation, we direct the respondent to hand over vacant possession of the shop to the appellant within a period of six months from today i.e. by or before 9th September, 2005. M.H./Z-25/S Appeal allowed.