1980 PLP 1608 (CLC)

Gulzar Ahmad Qureshi for Petitioner. Akhtar Hussain Siddiqui for Respondents Nos. 2 and

3. Date of hearing : for 17th October, 1979. Dispute in this case relates to a portion of Property No. SV-7-S-2, Dhobi Mandi, Lahore. It is a huge building and divided into 14 sub-units, by the Deputy Settlement Commissioner who initially dealt with the case of transfer of this property in favour of the applicant. Petitioner was transferred Portion No. 9 being occupant of two rooms out this portion. There is no dispute as regards the transfer of this portion to the petitioner.

2. Petitioner entered into an agreement of association with one Mvt. Kubra Begum for the purposes of payment of transfer price of this portion. She agreed to allow the petitioner to utilise Rs. 6,227.32 from her compensation book bearing No. 188683/LHR-I-4241. This association was approved by the Deputy Settlement Commissioner on 31st July, 1963. Petitioner then in May, 1971 paid the settlement fee and was awaiting for the issuance of P: T. D. to him.

3. Petitioner instead of having been issued the P. T. D. was given a notice on 24th May, 1978 by the Deputy Settlement Commissioner calling upon him to appear in his Court on 31st May, 1978. He then learnt that property stood resumed from his name vide order dated 5th August, 1975. This preceded a demand notice, allegedly, issued to the petitioner on 31st June, 1975. Petitioner then on 29th June, 1978 moved an application for soiling aside the order of resumption dated 5th August, 1975. It apperi5 that respondents Nos. 2 and 3, contested these proceed ings as they had by then filed a form for the transfer of the disputed portion under the scheme for the Management and Disposal of Available Urban Property on the basis that their father was, also, in possession of one room in this portion. Petitioner's application was rejected by the order of the Deputy Settlement Commissioner/Deputy Administrator Residual Properties, dated 30th September, 1978. He took the view that as the petitioner had not challenged the order of resumption by way of appeal, the disputed portion was available for transfer under the new scheme. Order of resumption dated 5th August, 1975 and the order dated 30th September, 1978 by which application for. setting aside the resumption order was rejected, have been questioned in this constitu tional petition

4. It is argued that the proceedings culminating in the order dated 5th August, 1975 were mala fide and manipulated at the instance of .he contesting respondents against whom ejectment proceedings were pending in the Court of the Rent Controller. No demand notice was even served upon the petitioner before passing the impugned order. On the contrary the fact that payment of the settlement fee was accepted, would show that the departmental authorities had all along acted on the association deed submitted by the petitioner for payment of the transfer price through compensation book of Mst. Kubra Begum. He then argued that, for argument sake, if there was any defect in the association deed or the amount sought to be adjusted from the compensation book of the associating claimant was not available, petitioner could have been called upon to make payment in Lash. The order of resumption therefore is liable to be set aside on these grounds. He then argued that the Deputy Administrator had not held a proper inquiry to find out if the amount secured by the petitioner from the compensation book was or was not available to be adjusted towards the transfer price of the portion in dispute. The petitioner had supplied the address of the attorney through whom he had utilized the compensation book of Mst. Kubra Begum and had also given to the office of the Deputy Settlement Commis sioner the address of the associating claimant but no attempt was made to serve either of them. Order dated 30th .September 1978 is bad for the reason that proper inquiry into the matter had not been conducted. 5: Learned counsel for the contesting respondents, oft the other hand, argued that in the event the order of resumption remains in the field, his clients have interest an the property in dispute a,, their applica tion for transfer under the new scheme is pending disposal. On the merits he argued that as the petitioner was not present. demand notice was pasted on the door of his house in the presence of the witnesses and this was a proper service in the eye of the law. The resumption order, similarly was sent to the petitioner through post. The petitioner, there fore, not having challenged the order of resumption in time, could not be permitted to question the same by this constitutional petition. The petitioner has also filed a certified copy of the application with diary Number dated 31st July, 1963 under which the compensation book and deed of association were submitted to the Deputy Settlement Com missioner. The settlement fee amounting to Rs. 29 was paid by the A petitioner in the year 1971. Strange enough no steps were taken till 1975, requiring the petitioner to make payment of the transfer price if the: compensation book as alleged now, was not on the file The petitioner admittedly resides in the same house. In the petition also he has given his address as "No. S-V-7-S-2, Dhobi Mandi, Purain Anarkah. Lahore". Notwithstanding this, notices of demand issued to ham, were not served. The endorsement on the final notices issued to the petitioner is to the following effect :-- "Mr. Inam Elahi was not present. A copy of notice has been pasted on the door in the presence of the following witnesses." This shows that no attempt was made to locate the petitioner and the notices were shown to have been pasted at his door. Petitioner's appli cation for setting aside the order of resumption was, moreover, disposed of in a summary way. The officer found that the compensation book was not "forth coming". therefore, "the associatee namely Inam Elahi was directed to produce the claimant or to file any documentary proof that he had filed the compensation book alongwith the association deed but in spite of several opportunities he had failed to prove that compen sation book was tendered' alongwith the association deed". He there fore, concluded that, "it appears that no adjustment was mad-, doe to the fact that C B was not tendered by the transferee". The circumstance that the petitioner had not appealed against the resumption order, has, also, been used adversely.

6. There could be more than one reasons as to why the compensation ion book associating was not available on the record of this file. The claimant after having tendered the agreed amount for adjustment towards the price of this property night have received back' the same for utiliz ing the deferred amount still available in the book. The onus, also, did not lie solely on the petitioner to produce the compensation book or the holder of the compensation book. The factum could have been verified from the office copy of the compensation book available in the Central Record Office. The officer, moreover, was not conscious that demand notices were issued after the repeal of the evacuee laws ; so also the order of resumption and therefore, question of filing of any appeal against ` the resumption order did Lot arise. As the demand notices were issue by the Deputy Settlement Commissioner as a notified officer, he was competent to set aside tits order of presumption on having been shown that the transfer price had already been paid.

7. In the circumstances this petition succeeds. Order of resumption dated 5th August, 1975 and the subsequent order dated 30th September, 1978 are set aside as having been passed without lawful authority and of no legal effect. Case is seat hack to the Deputy Settlement Commissioner/ Deputy Administrator or an officer notified under section 2(2) of the Evacuee Property and misplaced Persons Laws (Repeal) Act, 1975, to deal with such cases, a dispose of the matter afresh after affording the petitioner an opportunity of hearing in the light of the observations made above.

8. There will be no order as to costs. K. M. A. Petition accepted