MANSHA KHAN vs Syed MUHAMMAD SADIQ SHAH AND OTHER
The dispute in this matter relates to the transfer of an evacuee shop in Rawalpindi. The petitioner, a local, had been in possession of the shop since 1949 under an allotment order. The shop was later put to auction in 1960 and knocked down in favor of respondent No. 1, who failed to clear the balance of the auction price after utilizing a bogus compensation book. Consequently, the auction was cancelled by the Deputy Settlement Commissioner, and under the newly applicable Scheme No. VIII, the shop was ordered to be transferred to the petitioner. Respondent No. 1 challenged the cancellation and transfer through belated departmental appeals and revisions, which were dismissed, but subsequently succeeded in a constitutional writ petition before the High Court, which set aside the settlement authorities' orders. The Supreme Court considered the petition for special leave to appeal against the High Court's judgment. The Supreme Court held that questions of fact regarding notice and cancellation could not be re-examined by this forum, particularly when the High Court remanded the matter back to the settlement authorities for decision in accordance with law, and that the issuance of a P.T.D. remained subject to the final outcome of the pending litigation. The petition was accordingly dismissed.
- Whether the issuance of a P.T.D. bars the settlement authorities from dealing with a property when the cancellation of a prior auction is sub judice?
- Can questions of fact regarding the service of notice and ex parte cancellation be reopened before the Supreme Court under special leave to appeal?
- Whether an auction purchaser who submits a bogus compensation book is entitled to retain rights in an evacuee property?
1. HAMOODUR RAHMAN, C. J.-The dispute in this case relates to an evacuee shop No: V/473 situated in Namak Mandi, Ralwalpindi.
2. The petitioner, who is a local, was in possession of this shop from the 5th of July, 1949 under an allotment order, but as at that time locals were not entitled to the transfer of a shop, the premises were put to auction on t-11-1960. The respondent No. 1 was declared the highest bidder at Rs. 29,100.
3. He adjusted the deferred amount of his compensation book amounting to Rs. 12,500 against the price and the auction in his favour was confirmed.
4. For the balance or Rs. 16,600 he submitted a deed of association for Rs. 16,000 on 7-3-1962. This was adjusted on 21-8-1962 still leaving a balance of Rs, 600. In the meantime, however, it was fund that the compensation book submitted by him along with the deed of association was a bogus compensation book as nothing was outstanding on this book. Hence on 3-12-1965 a notice of payment was issued .To him calling upon him to clear tae balance. He failed to do so. A second notice was, thereafter, issues: in July, i967 aria tile said respondent personally appeared before the Deputy Settlement Commissioner in reply to the said notice. His explanation was found unsatisfactory but no order was made that day to his presence. The order cancelling the auction was actually made on 24th August 1967, when he was not present. An intimation of such cancellation was given on the 5th of September 1967 when the shop was also ordered to be put to fresh auction.
5. In the meantime Scheme No. VIII had come into force under which locals were also entitled to the transfer of a shop. . The petitioner, accordingly, applied -for deletion of .The shop from the auction list and for the transfer of the shop to him along with an application for condonation of the delay.
6. On this application The whole case was ordered to be put up before the Deputy Settlement Commissioner and notice was issued on 1-11-1967 to both parties to appear on 9-11-1967. On 9-11- 1967 the matter was adjourned to 23-1 t-1967, when an order was announced transferring the shop to the petitioner.
7. The respondent, it is alleged, appeared before the Deputy Settlement Commissioner on 9-11-1967 but raised no objection regarding the transfer of the shop to the petitioner nor did he ever pay up the balance due under the first auction. This order was actually signed on the 24th November 1967.
8. It was only after this that the respondent filed a time barred appeal on 6-1-1968. The appeal was dismissed or, 6-8-1968 as being barred by time. From this the respondent went up in. Revision which was also dismissed by the Settlement Commissioner on 14-10-1968.
9. It was from this order that the respondent went up to the High Court at Lahore in the writ jurisdiction. A learned Single Judge of the High Court has allowed the petition and set aside all the orders of the Settlement authorities from the order of cancellation of the first auction on 24-8-1967.
10. It has been found by the High Court that under Scheme No. VIII a notice of payment had to be issued by registered post acknowledgment due. There was no evidence that this has been done, on the other hand the authorities seem to have acted assumption that such a notice of payment had been issued to the petitioner. It was also found that the order of cancellation was actually made ex parse and only intimation thereof was sent on 5-9-1967. This intimation was received by the petitioner only on 9-9-1967, but even on this receipt the signature of the petitioner appeared to be different from the signatures on the bid sheet and on the back of the P. T. O. Again on 23rd November 1.967, when the order transferring the shop to the petitioner was actually made, the respondent was not present. The view of the High Court, in the circumstances, was that the finding of the settlement authorities was based on no evidence at all and they had failed to consider several relevant circumstances.
11. The petitioner now seeks special leave to appeal. He has raised a number of points in support of t5is petition both on question of fact as well as of law. So far as the legal points are concerned, it has also been urged that since a P. T. D. Had been issued in .His favour on the 20th December 1967, the property had gone out of the compensation pool and the Settlement authorities would have no further jurisdiction to deal with the matter. This argument, as pointed out by the High Court, could not assist the petitioner because if the dispute with regard to the cancellation of the first auction was still Finding, then the P. T. D. Was subject to any final order in the litigation.
12. So far as the other questions of fact are concerned we do not think that this is the appropriate forum in which this question can be raised, particularly since he High Court has, after setting aside those orders, sent the case back to the Settlement authorities to proceed in accordance with law.
13. All these questions of fact can, therefore, be thrashed out before the Settlement authorities who, we have no doubt, will now proceed in the matter on noticed to both sides. In these circumstances, this petition is dismissed.