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Civil Petition for Special Leave to Appeal No. 1419 of 1980, decided on 8th December, 1980.

(On appeal from Order of the Lahore High Court, dated 25‑5‑1980 in Writ Petition No. 1037‑R of 1979).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 199‑‑Settlement Scheme No. IX‑‑Transfer of property‑‑Petitioner making application for transfer of property in dispute as a residual one‑‑Original transferee of property unable to pay price and order passed for cancellation and resumption of property‑‑Record showing that case of reduction of price was still pending and service of notice prior to cancellation had not been effected in accordance with law‑‑While application of transferee for reduction of price was under consideration property could be resumed for non‑payment of price‑‑Property not 'available' property and it still stood transferred‑‑No other material was available before High Court to arrive at a contrary conclusion while dismissing writ of petitioner‑‑Petition, held, was rightly dismissed.

Bashir A. Mujahid, Advocate with Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner.

Date of hearing: 8th December, 1980.

The petitioner who has been unsuccessful in obtaining the transfer of the shop in his possession under Scheme No. IX, seeks leave to appeal against the judgment of the Lahore High Court, dated 25‑5‑1980 whereby the Constitutional petition filed by him was dismissed.

2. The case, as set out by the petitioner, was that Property Nos. 81, 82 Block No. 8, Khanewal, District Multan, was a huge double storey building. The father of the petitioner was an allottee in possession of one shop in it. The whole of the property was transferred to Mst. Saeeda Khatoon and on her failure to pay the price it was cancelled from her name and became an available property. It was listed for auction but its disposal could not take place. The father of the petitioner made an application for transfer of that property as a residual one. The department, however, refused to transfer to the petitioner or other such applicants on the ground that the property stood transferred to Mst. Saeeda Khatoon was not available property and its disposal to others could not be considered. The petitioner challenged this by a Constitutional petition. His case was that it had been properly and legally resumed and was available.

3. The learned Judge dealing with the Constitutional petition examined the record of the case and came to the conclusion that the case of reduction of the price was still pending, the service of the notice prior to cancellation of the transfer had not been effected in accordance with law and that the transfer in her name stood. Hence the petition was rejected.

4. The learned counsel for the petitioner has contended that the mere fact that an order of resumption was passed was sufficient to make the property available for future disposal. The illegality of the order of resumption would not stand in the way of the rights of the petitioner with regard to the transfer of the property as a residual available property. As regards the merits of the cancellation order, it is said that it was passed after notice to the party and in accordance with law and the view taken by the department was not sustainable.

5. It is not disputed that an application had been moved by the transferee for reduction of the price. it had been forwarded to the Settlement Commissioner (Policy) in the office of the Chief Settlement Commissioner. It had not been disposed of. While that application was under consideration the property could not be resumed for non‑payment of the price. Similarly, the department on examining its own record came to the conclusion that service of notice as required under the law had not been effected on the transferee before cancelling the property. There was no other material before the High Court to come to a contrary conclusion. The learned counsel for the petitioner states that the record of a registered notice having been sent was there but he was unable to obtain and place the same along with his Constitutional petition. It is not on our record either. In the absence of any such material before the High Court the conclusion drawn by it with regard to a fact about which a finding had already been recorded by the department cannot be said to be erroneous or liable to interference on any legal ground as such.

6.We find no merit in the petition and, the leave asked for is refused.

M . Y . H . Leave petition dismissed.

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