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Civil Petition for Special‑Leave to Appeal No. 143‑P of 1974, decided on 30th January 1975.

(On appeal from the judgment. and order of the Peshawar High Court, Peshawar dated the 19th June 1974, in L. P. A. No. 22 of 1969).

‑‑‑ Sched, Part-II read with Permanent Transfer (Houses and Shops) Rules, 1961, r. 4‑‑Cancellation:of transfer‑P. T. D. holder protected only when P. T. D. properly issued by competent authority in accordance with law after regularly and timely payment of auction Price petitioner failing to make payment of price for almost seven years resulting in resumption of shop‑Shop, held, justifiably resumed.

S. Anwar Hussain Sani v. Sarfraz Ahmad P L D 1971 S C 669 ref.

S. Safdar Hussain, Advocate‑on‑Record for petitioner.

Nemo for Respondents.

Date of hearing : 30th January 1975.

Sh. ‑Abdul Latif petitioner purchased in open auction Shop No. C/118, Shakar Bazar for a sum of As. 13,800 on 25‑5-1960.The compensation books offered by him for adjustment of Price were found to be bogus and consequently the Deputy Settlement Commissioner, Mardan, sent to him a notice on 9‑5‑1965 calling upon him to deposit the price within 15 days on pain of resumption of the shop. On his failure to comply with the notice and having waited for almost two years, the Deputy Settlement Commissioner made an order of resumption on 8‑9‑1967 when Faqir Muhammad respondent also filed an L.S. Form for the transfer of the shop under Scheme No. VIII as revised. This appears to have activated the petitioner who approached the Deputy Settlement Commissioner for permission to pay the price and the withdrawal of the resumption order which was done on 9‑1‑1968. This order was unsuccessfully challenged by respondent No. 4 in appeal but he succeeded in revision before the Settlement Commissioner as the withdrwal of the resumption order was found to be bit by Notification No. 5605‑POL/66, dated 15‑12‑1966. This position was upheld by the High Court which dismissed the petitioner's writ petition as also his L. P. A.

2. Learned counsel is vain tried .to argue that the petitioner had no notice of the date of hearing of the L. P. A. and although the counsel appointed by him teas M. Sardar Khan, Advocate, the case was argued on his behalf by another Advocate, Mr. Ali Hussain Kazilbash. No affidavit sworn by Mr. Sardar Khan, Advocate, has been placed on the record to show that he had not requested for authorized Mr. Kazilbash to appear on his behalf. Relying on P L D 1971 S C 669, learned counsel next contended that a P. T. D. once issued could not be cancelled except on ground of fraud and since a P 'C D had already been issued in favour of the petitioner on 18‑6‑1968. the Settlement Commissioner had no jurisdiction to cancel the same. The argument is misconceived. The principle laid down by this Court in the above authority could be legitimately invoked by the petitioner only if the P T D had been properly issued to him by the competent authority in accordance with law after regular and timely payment of the auction price. The petitioner failed to make pay ment of the price for almost seven years resulting in the resumption of the shop. In the meantime, respondent No. 4 who claimed to be in possession of it filed his L. S. Form. As stated earlier, the withdrawal or the order of resumption by the Deputy Settlement Commissioner was in contravention of Notification No. 5605‑P O L/66, dated 15‑12‑1966 and therefore, illegal. The petitioner has only himself to blame for his failure. No fault can be found with the judgment of the High Court. The petition is, therefore, dismissed.

Petition dismissed.

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