MUHAMMAD ISHAQ AND Another vs ABDUL HAQUE AND Other

ORDER

1. SALAHUDDIN AHMED, J,-The dispute between the parties is over shop bearing No. B-IX-13-S-128 situated in Khand Bazar, Gujranwala. The property was purchased by Abdul Shakoor, predecessor- in-interest of the respondent No. 1, at an auction held on the 13th of September 196! For Rs. 44,100.

2. Abdul Shakoor deposited --th of the auction price, and was subsequently issued the Provisional Transfer Order on the 22nd of June 1962. About five years later, on the 23rd of August 1967 a demand notice under Settlement Scheme No. VIII was issued to Abdul Shakoor for payment of Rs.33,600 being the balance of the price of the shop within one month. Abdul Shakoor had died on the 4th of August 1966 and the notice was consequently received by a son of Abdul Shakoor. As the demand notice was not complied with, the Deputy Settlement Com--missioner by his order dated the 4th of October 1967 cancelled the transfer of the property in dispute from the name of Abdul Shakoor and placed it in the compensation pool. A notice was accordingly issued and it was received by Ikram-ul-Haque, son of Abdul Shakoor deceased, on the 6th of October 1967 and he made an endorsement on the notice that his deceased father had already paid the entire price of the property to the department and therefore the notice should be taken back.

3. Petitioner Muhammad Ishaque filed an N. C. S. Form on the 7th of October 1967 for the transfer of property in dispute on the ground that he was in possession of the same at the relevant time. The property was accordingly deleted from the auction list by an order of the Deputy Settlement Commissioner on the 22nd of November 1967. The afore--said Ikram-ul-Haque by his application dated the 20th of January, 1968 informed the Deputy Settlement Commissioner that the entire payment had already been adjusted against the various compensation books put in by his father Abdul Shakoor deceased. Nevertheless the Deputy Settlement Commissioner by his order dated the 24th of June 1968 held that the said compensation books were bogus and that the property had accordingly been rightly resumed. Thereafter on the 24th of July 1968 the Deputy Settlement Commissioner, transferred the property under Settlement Scheme No. VIII to petitioner Muhammad Ishaque. Ikram-ul-Haque moved an application before the Chief Settlement Commissioner and made serious allegations against the Deputy Settlement Commissioner in transferring the property in dispute to the petitioner. Ultimately, the matter was sent to the Settlement Commissioner. The Settlement Commissioner exercised his revisional jurisdiction suo motu and after having heard both the parties, held that the aforesaid orders dated the 4th of October 1967 and 5th of July 1968 were illegal. The Settlement Com--missioner remanded the case to the Deputy Settlement Commissioner for a fresh decision in the light of the observations made by the former.

4. On a Constitution petition filed by the petitioner the High Court held that the demand notice could not be served upon a dead person namely, Abdul Shakoor and therefore, the order of resumption of the property dated the 4th of October 1967 was a nullity. The High Court further found that the petitioner did not file any claim form for the transfer of the shop under Settlement Scheme No. I, and he was therefore not legally in the field for the transfer of the shop. As regards the question whether the auction-purchaser namely, Abdul Shakoor deceased had actually deposited Rs.44,100 as claimed by the respondents, the learned Single Judge of the High Court held that it was not the normal function of that Court in the exercise of its writ jurisdiction to decide such question as it involved an enquiry into disputed question of facts. The writ petition was accordingly dismissed.

5. We are unable to accept the contention that the auction-purchaser had failed to pay the entire price of the property. There High Court was right in not entertaining this contention and there the matter ended.

6. The Settlement Commissioner has remanded the case to the Deputy Settlement Commissioner and the petitioner will be at liberty to raise all questions that be is entitled to raise and the Deputy Settlement Com--missioner will proceed to dispose of the matter in accordance with law unhindered by any observations that might have been expressed by the learned Single Judge of the High Court on the merits of the case. The petition is dismissed.