P L D 1984 Karachi 205 (PLP)

The petitioner challenges the cancellation of shop No. A/101/1, Shahi Bazar, Tando Bago by the impugned orders passed on 4th April, 1967, rOth November, 1972 and 6th June, 1973 by the respondents Nos. 1 to

3. The petitioner has also challenged the subsequent transfer of the said shop at public auction in favour of the respondent No. 4 and has prayed for issuance of direction to the respondents Nos. l to 3 to adjust the transfer of price of the shop in question from the duplicate Compensation Book of the petitioner lying with them and has also sought direction for issuance of P. T. D. in his favour. The brief facts stated are that on 31st May, 1960 the petitioner gave the highest bid (Rs. 625) for purchase of the above-mentioned shop at an unrestricted public auction held by the Settlement Authorities. For the price, on the same date he deposited his Compensation Book in the office of the respondent No. 3 which fact was acknowledged in the receipt No. 8111 dated 31st May, 1960 issued to him. The offer made by the petitioner was confirmed by the Additional Settlement Commissioner of which fact he was informed by the Deputy Settlement Commissioner by his letter dated 6th July, 1960 (Annexure 'G' to the petition). The petitioner was put in possession of the said shop and P. T. O. was issued to him on 22nd May, 1962 (Annexure 'H' to the petition). It appears that the above-mentioned Compensation Book deposited by the petitioner was lost in the office of the Deputy Settlement Commissioner/ Respondent No. 3 who by his letter dated 16th January, 1965 wrote to the petitioner as follows :- "The above Compensation Book, alleged to have been deposited with the auction party defunct centre No. 11 in May, 196U despite search is not available. You may apply to the Additional Settlement and Rehabilita?tion Commissioner (A & R), I1-Egerton Road, Lahore for duplicate, if so desired." The said officer also wrote a letter to the Deputy Settlement Commissioner (Audit and Record), Lahore on 3rd June, 1965 wherein after admitting the fact that the petitioner had deposited his Compensation Book for adjustment of price for the property purchased by him at the auction held in May, 1960 stated .- "The Compensation Book in question has not yet been returned to the claimant and it is not now traceable despite best efforts. It is, therefore, suggested that duplicate Compensation Book may be issued to him. Form A File including white copy of Compensation Book is enclosed." A copy of the above letter was also endorsed to the petitioner.

2. While the petitioner was pursuing the matter for issuance of the duplicate Compensation Book, it appears that the aforementioned shop was put to auction on 28th September, 1967 when the respondent No. 4 purchased the same for Rs. 230 for which P. T. D. was finally issued in his favour in the month of December, 1971.

3. According to the petitioner he was neither given any notice to make payment of price nor any resumption order was served upon him, and that for the first time while making inquiries in the office of the Settlement Authorities about his own matter, he learnt about the above-mentioned subsequent auction held on 28-9-1967 and the transfer of the said-shop in favour of the respondent No. 4 whereupon he filed an appeal before the respondent No. 2/the Additional Settlement Commissioner. The said appeal however was dismissed by order, dated 10-11-1972. A revision petition was then filed but that was also dismissed by the respondent No. 1/the Settlement Commissioner by his order, passed on 13th June, 1973. The petitioner also approached the Minister of Revenue, Sind for redress of his grievance in respect of the above-mentioned shop. The Minister declined to interfere with the disputes on the administrative side, in view of the case having been decided against the petitioner by the Settlement Authorities on the judicial side. Such an information was given to the petitioner by the Deputy Settlement Commissioner by his letter, dated 2nd May, 1975.

3. In the above circumstances the petitioner has invoked the Constitu?tional jurisdiction of this Court under Article 199 of the Constitution of 1973. 4. 1 heard the learned counsel for the petitioner. The Settlement Authorities have intimated that they are not defending the case, while the respondent No. 4 though served by publication in spite of intimation of date of hearing sent to him by registered post (A. D.) has chosen to remain absent.

5. The facts stated above and the perusal of the record show that at the auction sale held on 31st May, 1960 the petitioner purchased the shop in dispute for Rs. 625 that he deposited his Compensation Book on the same date with the Settlement Department, that the amount shown ' in the Compensation Book was sufficient to adjust the entire price payable for the said shop, and that the bid given by the petitioner was duly approved and P. T. O. was also issued in his favour on 2nd May, 1962 (Annexure 'H' to the petition). It is also proved by the material on the record, as admitted by the departmental authorities as well, that the said Compensation Book deposited by the petitioner on the very day of the auction, was lost in the office of the Settlement authorities and that even the Deputy Settlement Commissioner himself requested the concerned officer at Lahore for issuance of a duplicate compensation book to the petitioner. In view of the above state of affairs it cannot be urged with any justification that the petitioner had committed any delay or default in payment of the price in respect of the shop in dispute.

6. It is the case of the petitioner that at no time he was given any notice calling upon him to pay the price of the shop and that no order of resumption of the property/shop was ever served upon him. In rebuttal nothing on record t has been produced either by the official respondents of the respondent No. 4 to show that the facts stated as above by the petitioner are not correct. NoI counter-affidavit has been filed by any of the respondents. I may here refer to the certified copy of the impugned resumption order, dated 4-4-1967 which has been produced by the petitioner. In the said order after mentioning that the petitioner was served with notice by registered post (A. D.) under Settlement Scheme No. Vill for payment of transfer price of the above-mentioned shop within one month of the notice, the Deputy Settlement Commissioner proceeded to state that :- "The notice was duly served upon the transferee and A. D. Card received which is at page

of the file. The transferee failed to pay the transfer price within the time allowed." It was then stated :- "Accounts Branch has also reported that no payment has been made nor any agreement of association for payment of transfer price has been filed upto 30-6-1966. Default in payment of transfer price is established. Accordingly, the transfer of shop No. A/101/1 is hereby cancelled and the same resumed for disposal as provided under para. 3(1)(a) of Chapter II of Settlement Scheme No VIII." From the reading of the above resumption order, the relevant portions where of have been reproduced above, it would be observed that the concerned officer was unable even to mention in the page where the alleged "A. D. Card" ~ appeared in the file. This clearly lends support to the petitioner's case that no such notice as mentioned in the alleged resumption order, dated 4th April, 1967 was ever served upon him. The alleged report of the Accounts Branch that no payment had been made nor any agreement of association for payment -of transfer price was filed, is also factually incorrect. The admission of the Deputy Settlement Commissioner himself supported by documentary evidence on record conclusively prove that the petitioner had deposited his Compensa?tion Book with the Settlement Department on the very day when the auction was held. Thus, the very basis on which the alleged resumption order was based disappears. The allegation that there was delay or default in payment of price, on the part of the petitioner, on the face of the record was unwarranted and based upon clear and manifest misreading of evidence, and is liable to be interfered with in exercise of the Constitutional jurisdiction by the High Court (Nawaza v. Additional Settlement & Rehabilitation Commis?sioner (PLD 1970SC880) ).

7. The discussion as above shows that the requirements of the law laid down under para. 2 of Chapter 2 of Settlement Scheme No. VIII, were not complied with before passing the impugned order to resume the property. In fact no valid ground existed for passing the said order as no notice of demand' has been shown to have been served upon the petitioner. In the absence of service of demand notice and the property obviously could not have been resumed. ????????? In the view taken as above I find support from the case of Muhammad Ali v. The Member, Board of Revenue and 7 others (1981 S C M R 852). In the said case the learned Judge of the High Court of the Baluchistan quashed the order of resumption of property passed by the Deputy Settlement Commissioner and declared the same as not valid in law for the following reasons :? ????????? "It appears that after the publication in the newspaper no resumption order bad been passed, as no such order has been placed on the record. If no order of resumption had been passed and the publication in the newspaper was considered to be a resumption order, even then it was necessary that the petitioners must have been informed of this order. ????????? It is more necessary as within 30 days of the date of order of cancella?tion, the defaulter may apply to the authorities to allow him to pay in lump sum the whole of the transfer price payable by him. Paragraph 3 has created a valuable right and this cannot be taken away simply by the fact that the submitted service had been effected. Apart from it, after remand of the case, the petitioners have specifically stated that they are prepared to pay the transfer price ; but the Deputy Settlement Commissioner did not care to examine this plea of the petitioners and entered into the controversy of the service. Similarly Member, Board of Revenue had the authority under pargaraph 3 (a) (2) of Chapter II of the Scheme to allow a defaulter to pay the transfer price. The Member, Board of Revenue did not exercise this discretion. It may be said that paragraph 3 (A) would be attracted only if no other person has applied for the transfer of the same ; but this provision is subject to the rule ????????????????????? that second notice must have been given to the petitioners." The above observations of the learned High Court were approved by the Honourable Supreme Court in the above cited case wherein it was held :? ????????? "No exception can be taken with these views, and since the basic order of resumption of property has been rightly held to be invalid in law, the subsequent orders directing disposal of the property by auction and its transfer in petitioner's favour, including the P. T. D. issued to him, cannot assume any legal validity. The plea that the respondents being the successors-in-interest of an associate of the original transferee had no locus standi to seek relief through Constitutional means is totally baseless, for as mentioned earlier. P. T. D. had been issued to Inayat Hussain and he died while be was continuing litigation in respect of his valuable rights in property, and on his death his legal representatives could rightfully continue to seek further redress in accordance with the ?????? law." ?????????

8. The principle laid down as above by the Honourable Supreme Court concludes the matter so far this case is concerned and accordingly the impugned orders passed by the Deputy Settlement Commissioner/the respondent No. 3 purporting to resume the shop in question and/or cancel the transfer earlier made in favour of the petitioner cannot be sustained as being without lawful authority and of any legal effect. The orders passed in ?????? appeal and revision by the respondents Additional Settlement Commis?sioner and Settlement Commissioner for the same reasons also fail and are hereby held to be liable to be quashed. ?????????

9. I may also mention here that the counsel for the petitioner relied upon ?????? the cases reported as Muhammad Hidayatullah v. Settlement 8c Rehabilitation Commissioner (P L D 1971 Lab. 31), Mst. Amina Begum v. Deputy Settlement Commissioner (P L D 1980 Lab. 571) and Mst. Hakima and S others v. Additional Settlement Commissioner (1982 C L C 571). Since however the law stand settled by the authoritative pronouncement of the Honourable Supreme Court in the case of Mahammad Ali v. Member, Board of Revenue, it is not necessary to reproduce again the principles laid down in these cases, which it may be stated also support the plea raised by the petitioner.

10. As regards the alleged non-payment of the price by the petitioner, in my opinion in view of the admitted fact that the Compensation Book with sufficient amount available therein for adjustment/payment of the price sh60 having been deposited with the respondent No. 3/the Deputy Settlement Commissioner, in whose office the said Compensation Book was lost, it is not open to the same officer to penalise the petitioner for the loss of the said Compensation Book in his own office. It is the default on the part of the Deputy Settlement Commissioner who ought to have been penalised for the loss of the petitioners Compensation Book and for alleged delay in payment or adjustment of the price from said Compensation Book. Obviously the petitioner could not be made to suffer on account of the default and negligence of the Settlement Authorities for losing or misplacing the petitioners Compensation Book duly deposited by him, on the very day when the auction was held. Significant fact to mention here is that the duplicate Compensation Book was received by the office of the Deputy Settlement Commissioner (Adorn.) Member Board of Revenue, Hyderabad who by his letter dated 3-12-1973 (Annexure `K' to the petition) addressed to the Deputy Settlement Commissioner, Hyderabad, while acknowledging the receipt of the Duplicate Compensation Book, forwarded the same to the said Deputy Settlement Commissioner, Hyderabad for further necessary action. In the circumstance the plea of non-payment of price by the petitioner has no force and could no have been made a ground for making demand for payment of price or t pass any order of resumption of the shop in question for any alleged non?payment.

11. As regards the subsequent auction in which the respondent No. 4 purchased the shop and P. T. D. was issued in his favour, it would suffice to refer here to the case of Muhammad All v. Member Board of Revenue an others (1980 S C M R 852) the . relevant principle has already been reproduced above. In vie the law laid down by the Honourable Supreme Court the subsequent auction held and the P. T. D. issued in favour of the respondent No. 4 must fail and the same cannot assume any validity.

12. For the reasons stated above this petition succeeds and accordingly the impugned order passed by the respondents Nos. 1, 2 and 3 purporting to resume the property and cancelling the transfer of the shop in question in favour of the petitioner, are declared to have bean made without any lawful authority and are held to be of no legal effect. It is further declared that the auction of the shop subsequently held on 30th June, 1967 when no bid was received and the auction thereafter held on 25th September, 1967 when the shop is dispute was transferred in favour of the respondent No. 4 and the! P.T.D. issued to him are quashed as having been made without lawful authority and of no legal effect. The respondents Nos. 1 to 3/their successors are directed to adjust the price payable by the petitioner from the Compensation Book (duplicate) and issue the requisite transfer document in his favour. I would have saddled the department with costs of this petition but for the reason that they have not contested the matter and the respondent No. 4 has also not appeared, I leave the parties to bear with their own costs. Petition accepted.