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Civil Petition for Special Leave to Appeal No. Q-20 of 1980, decided on 30th March, 1981.

(On appeal from the judgment of High Court of Baluchistan dated 9th July, 1980 to Constitutional Petition No. 8 of 1975).

Chap. II, para. 3 (2)---Resumption of property-Mandatory re quirement of provisions contained in para. 3(2) of Chap. II of Scheme not complied with-Order of Deputy Settlement Commissioner resum ing property, held, not valid in law.

The main reason that prevailed with the Judges in the High Court was that the mandatory requirements of the provisions contained in paragraph 3(2) of Chapter 11 of the Settlement Scheme No. VIII were not complied with and therefore the order of the Deputy Settlement Commissioner resuming the property was not valid in law. "The relevant portion of the judgment reads as follows. "It appears that after the publication in the newspaper no resumption order had been passed, as no such order has been placed on the record. If no order of resumption had been passed and the publication in the news paper was considered to be a resumption order, even then it was necessary that the petitioners must have been informed of this order. It is more necessary as within 30 days of the date of order of cancellation, the defaulter may apply to the authorities to allow him to pay in lump sum the whole of the transfer price payable by him. Paragraph 3 has created a valuable right and this cannot be taken away simply by the fact that the substituted service had been effected. Apart from it, after remand of the case, the petitioners have specifically stated that they are prepared to pay the transfer price ; but the Deputy Settlement Commissioner did not care to examine this plea of the petitioners and entered into the controversy of the service. Similarly Member, Board of Revenue had the authority under paragraph 3(A) (2) of Chapter 11 of the Scheme to allow a defaulter to pay the transfer price. The Member, Board of Revenue did not exercise this discretion. It may be said that paragraph 3 (A) would be attracted only if no other person has applied for the transfer of the same but this provision is subject to the rule that second notice must have been given to the petitioners.

Held : No exception can be taken with these views, and since the basic order of resumption of property has been rightly held to be invalid in law, the subsequent orders directing disposal of the property by auction and its transfer in petitioner's favour, including the P. T. D. issued to him, cannot assume any legal validity.

O. XXII, r. 3---Legal representative, representation by-Permanent Transfer Deed issued to plaintiff and he dying while continuing litigation in respect of his valuable rights in property-Deceased plaintiff's legal representatives, held, could rightfully continue to seek further redress-Contention that successors-in-interest of plaintiff, associate of original transferee, had-no locus stand to seek relief through Constitu tional means, held further, totally devoid of force.

Talmiz S. Burney, Advocate Supreme Court and A. Aziz Dastgir. Advocate-on-Record (absent) for Petitioner.

Date of hearing : 30th May, 1980.

The dispute between the parties relates to transfer of House No. 5-6/4, Moti Ram Road, Quetta 'which was originally transferred to Mst. Sibtain Begum. She surrendered her rights in property in favour of Inayat Hussain, predecessors-in-interest of respondents 3 to 8, under an Agreement of Association dated 10th February, 1965 and after he paid the transfer price, through a compensation-book, P.T.D. was issued in his favour on 16th July, 1965. In 1969, it was noticed that the compensation book submitted by Inayat Hussain was bogus, and the Deputy Settlement Commissioner, therefore, issued notice dated 4th March, 1969 requiring him to pay the transfer-price. The notice was returned unserved with the remark that the addressee was not available as he had gone to Karachi. The Deputy Settlement Commissioner thereupon directed that Inayat Hussain be served through substituted mode of service by publication in the newspaper Qasid Quetta, and he finally cancelled the P.T.D. issued in his favour by the order dated 8th March 1970 and resumed the house, which was afterwards purchased by the petitioner in an open auction and P. T. D, was issued to him on 6th July, 1970. .

Inayat Hussain's appeal against the order of the Deputy Settlement Commissioner was allowed by the Additional Settlement Commissioner and he remanded the case to the Deputy Settlement Commissioner, Quetta for fresh decision. On remand, the Deputy Settlement Commissioner came to the conclusion that the property had been validly resumed, and he accordingly by the order dated 5th June, 1974 upheld the transfer in petitioner's favour. Since, in the meantime Inayat Hussain died, his legal representatives, the respondents 3 to 8, filed revision application against the order of the Deputy Settlement Commissioner, but it was dismissed by the Member, Board of Revenue, Baluchistan. The respondents then successfully challenged these orders in Constitutional Petition No. 8 of 1973 before the High Court of Baluchistan and the petitioner now seeks special leave to appeal.

Mr. Talmiz Burney, learned counsel for the petitioner submitted that respondents 3 to 8 being the successors-in-interest of an associate of the original transferee had no locus standi to file constitutional petition and as such it should have been dismissed on this ground alone. Learned counsel then submitted that since the P. T. D. leas been issued to the petitioner, the remedy of the respondents 3 to 8, if any, was by way of Civil Suit, and not the Cons titutional Petition. Learned counsel finally argued that in any case the learned Judges in the High Court have illegally and arbitrarily interfered with the concurrent findings of the Deputy Settlement Commissioner and the revisional authority that the property had been validly resumed after service of notice to Inayat Hussain.

The main reason that prevailed with the learned Judges in the High Court was that the mandatory requirements of the provisions contained in paragraph 3 (2) of Chapter II of the Settlement Scheme No. VIII were no complied with and therefore the order of the Deputy Settlement Commissioner resuming the property was not valid in law. The relevant portion of the judgment reads as follows :-

"It appears that after the publication in the newspaper no resumption order had been passed, as no such order has been placed on the record. If no order of resumption had been passed and the publication in the newspaper was considered to be a resumption order, even then it was necessary that the petitioners must have been informed of this order. It is more necessary as within 30 days of the date of order of cancella tion, the defaulter may apply to the authorities to allow him to pay in lump sum the whole of the transfer price payable by him. Paragraph 3 has created a valuable right and this cannot be taken away simply b the fact that the substituted service had been effected. Apart from it, after remand of the case, the petitioners have specifically stated that the are prepared to pay the transfer price ; but the Deputy Settlement Commissioner did not care to examine this plea of the petitioners an entered into the controversy of the service. Similarly Member, Boar of Revenue had the authority under paragraph 3 (A) (2) of Chapter I of the Scheme to allow a defaulter to pay the transfer price. The Member, Board of Revenue did not exercise this discretion. It may b said that paragraph 3 (A) would be attracted only if no other person has applied for the transfer of the same ; but this provision is subject to the rule that second notice must have been given to the petitioners.

No exception can be taken with these views, and since the basic order of resumption of property has been rightly held to be invalid in law, the sub sequent orders directing disposal of the property by auction and its transfer petitioner's favour, including the P. T. D. issued to him, cannot assume any legal validity. The plea that the respondents being the successors-in-interest of an associate of the original transferee had no locus stands to seek relief through Constitutional means is totally baseless, for, as mentioned earlier, P. T. D. had been issued to Inayat Hussain and he died while he was continuing litigation in respect of his valuable rights in property, and on his death his legal representatives could rightfully continue to seek further redress accordance with the law.

For these reasons there is no merit in the submissions advanced by the learned counsel in support of the petition.

It is dismissed in limine.

Petition dismissed.

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