1998 PLP 2039 (SCMR)

ZIA MAHMOOD MIRZA, J.

This is a petition for leave to appeal against the judgment of Lahore High Court Rawalpindi Bench dated 30-3-1995 whereby Writ Petition No.854-R of 1970 filed by the petitioner was dismissed.

2. Evacuee shop bearing Property No.B-III-83-C situated in Campbellpur City was purchased in auction by Azfar Hussain, the predecessor-in-interest of the respondents on 11-5-1960. Azfar Hussain deposited compensation book containing deferred amount of Rs.7020 which was adjusted towards the transfer price of Rs.13,

800. Balance amount of Rs.6,780 was sought to be paid through another compensation book of one Pir Muhammad Amir which was found to be bogus. A notice was accordingly issued by the Deputy Settlement Commissioner to Mansab Hussain son of Azfar Hussain on 10-2-1965 informing him that "compensation book has been found to be bogus" and he was "directed to clear the transfer price/Auction price of the following properties within 15 days of the receipt of this notice, failing which your transfer will be cancelled under due forfeitures." This was followed by a number of other demand notices issued to Azfar Hussain and or Mansab Hussain and finally a Memo. dated 21-10-1967 was addressed to Azfar Hussain through Mansab Hussain informing him that due to non-payment of the transfer price, "property mentioned above is hereby cancelled from your name and resumed under rules for fresh disposal. " The shop in dispute was then transferred in favour of the present petitioner by the Deputy Settlement Commissioner vide his order dated 29-1 I-1967.

3. Legal heirs of Azfar Hussain who, it is stated, had died on 10-2-1963 preferred an appeal against the resumption of the shop in dispute which was accepted by the Additional Settlement Commissioner vide order dated 12-1-1968 holding that notice issued to a dead person i.e. Azfar Hussain was of no avail and that after the death of Azfar Hussain, Mansab Hussain was no longer his attorney and, therefore, any notice issued to him could not affect the rights of his brothers and sisters. Resumption order passed by Deputy Settlement Commissioner was accordingly set aside, legal heirs of Azfar Hussain were substituted in his place and allowed to clear the arrears within one month. Revision petition filed by the present petitioner bore no fruit and was dismissed by the Settlement Commissioner on 19-4-1968. Petitioner then approached the High Court in its Constitutional Jurisdiction but with no better result as the same was dismissed vide the impugned judgment.

4. Learned counsel appearing in support of this petition has submitted that the notice dated 10-2-1965 addressed to Mansab Hussain (available at page 57 of the Paper Book) was received by him on 20-2-1965. Reliance is placed on the entries in the Peon-book photo-copy whereof is available at page 58 of the paper book. He has further pointed out that another notice dated 30-1-1967 though addressed to Azfar Hussain was received by his son Akbar. He has also referred to some other demand notices which were sent through registered post A.D. and are shown to have received by Mansab Hussain. Learned counsel has pointed out with reference to the General Power of Attorney (available at page 94-96) that P' Mansab Hussain was appointed General Attorney of his brothers and sisters on 28-1-1966. Grievance made by the learned counsel is that these documents have not been attended to by the Settlement Authority as also by the learned Judge in the High Court. In the submission of the learned counsel, these documents quite clearly show that the demand notice was properly served on Azfar Hussain in his lifetime and after his death, on his son Mansab Hussain who was the General Attorney of his brothers and sisters.

5. In view of the points raised by the learned counsel for the petitioner, we grant leave to appeal against the impugned judgment of the High Court and direct that the original settlement record together with the record of appeal filed by the respondents against the cancellation/resumption of the shop in dispute shall be requisitioned and made available at the time of hearing of this appeal. Parties shall maintain status quo of the shop in dispute. A.A./A-50/S Leave granted.