MUHAMMAD ASGHAR vs Mst. 1NAYAT BEGUM and another
This matter arises from a dispute concerning the transfer of a shop in Moti Bazar, Rawalpindi, originally purchased in an open auction by respondent Mst. Inayat Begum in May 1962. Due to an administrative failure to record the adjustment of a compensation book towards the transfer price, the Deputy Settlement Commissioner resumed the shop in December 1975 and subsequently transferred it to the petitioner under Scheme No. VIII. The respondent challenged the resumption via a constitutional petition before the Lahore High Court, which set aside the resumption and transfer orders, holding that since more than twenty-five percent of the price had been paid, the proviso to paragraph 2 of the re-constituted Scheme No. VIII barred resumption. An Intra-Court appeal having failed, the petitioner approached the Supreme Court. The core legal question was whether the Settlement Authority had the power to resume the property given the statutory protection against resumption. The Supreme Court dismissed the petition, holding that the resumption was illegal and without jurisdiction because the respondent was protected by the statutory provision prohibiting resumption when over twenty-five percent of the transfer price was paid.
- Whether the Settlement Authority has the power to initiate resumption proceedings when more than twenty-five percent of the transfer price has already been paid?
- Can discretionary relief in constitutional jurisdiction be denied on the ground of laches where the impugned order is illegal and without jurisdiction?
- What is the appropriate recourse for the Department in case of default in payment of the transfer price under Scheme No. VIII?
ORDER
' M.S.H. QURAISHI, J.-- The dispute relates to transfer of shop No,C-58/A in Moti Bazar, Rawalpindi.
This and the adjoining shop No,C-58/B had been purchased in open auction by respondent Mst.
Inayat Begum on 2-5-1962 for Rs,14,500 and Rs,15,000 respectively. She deposited her compensation book with a deferred payment of Rs,11,000 for adjustment against the transfer price of the shops. It appears that the entire amount available in the compensation book was adjusted towards the price of Shop No,C-58/B only and as no entry of payment had been made for the disputed shop, the Deputy Settlement Commissioner resumed the same by order dated 27-12-1975.
The petitioner being in possession of the shop, it was transferred in his favour under Scheme No, VIII on 23-7-1976. On coming to know of it, Mst. Inayat Begum moved an application for setting aside the resumption and for restoration of the shop but the same was rejected on 4-9-1977. She thereupon challenged the resumption order in the constitutional jurisdiction of the Lahore High Court. A learned single Judge of that Court found, after perusal of the record, that in fact one- fourth of the bid money had been adjusted from the compensation book of Mst. Inayat Begum against both the shops at the time of the auction. He, therefore, in view of the proviso to para. 2 of the re-constituted Scheme No,V111 held that the Settlement Authority had no power to resume the property from her name. On this view of the matter, the order of resumption dated 27-12-1975 as also the order of transfer of the disputed shop in favour of the petitioner was held to be without lawful authority and the Department was left to take steps according to law for realization of the outstanding amount for her. The petitioner brought an Intra-Court appeal but the same failed for precisely the same reason as expressed by the learned single Judge.
2. The proviso to para. 2 of the re-constituted Scheme No, VIII which was notified on 20-10-1973, reads: "Provided that, in cases where more than 25 per cent of the transfer price has already been paid, no resumption proceedings will be initiated, but transfer order, as provided under paragraph 11, will be issued."
' Under paragraph 11, no P.T.O. Or P.T.D. Is to issue but instead a Transfer Order shall issue. In case of default in payment of the transfer price, paragraph 17 empowers the Board of Revenue to effect the recovery as arrears of land revenue. It is, therefore, clear that the resumption of the disputed shop was not permissible on 27-12-1975.
3. Learned counsel for the petitioner, however, contended that no relief in the discretionary jurisdiction of the High Court should have been allowed to the respondent who was guilty of laches in not making payment of the price for nearly 13 years. The contention has no force because she derived her protection from a legal provision which had made the order of resumption illegal and without jurisdiction. In the circumstance no case is made out for interference with the orders of the High Court. The petition is dismissed.