' The relevant facts giving rise to this petition are that Mushtaq Ahmad "hereinafter referred to as respondent" being claimant in possession of the shop in dispute (S1-104-S-25, Shah Abdul Moaali Road, Lahore) was transferred the same on 15-3-1960 by the Deputy Settlement Commissioner.
Appendix-X for payment of its price amounting to Rs.2,400 was also issued. The value of the shop was later on enhanced to Rs.4,800. He claims to have deposited the same in the year 1966 and applied for issuance of Permanent Transfer Deed, in his favour. On 30-4-1970 the transfer order of the shop, was however, cancelled as he failed to deposit its price despite the receipt of demand notice issued by the Deputy Settlement Commissioner. Lahore. The shop in question was resumed and sold through auction on 27-6-1970 for Rs.5,900 in favour of the petitioner. The amount of Rs.5,900 was deposited by the petitioner and the sale through auction was confirmed on 16-7-1970.
' It appears from the documents on the file that the respondent on 13-7-1970 moved an application to the Additional Settlement Commissioner for not confirming the sale of the property through auction, and its restoration in his favour. The Additional Settlement Commissioner on 14-7-1970, directed the Deputy Settlement Commissioner to hear the respondent and not to confirm sale through auction. Notwithstanding the aforesaid order the sale was confirmed on 16-7-1970, and the respondent's application was dismissed on 21-12-1970. The respondent challenged that order in appeal which was treated as revision petition and rejected on 31-8-1976 by Kh. Abdul Sattar, Additional Settlement Commissioner, Lahore. Aggrieved by aforementioned orders the respondent filed W.P. No. 1644/R-1976 which was allowed on 22-2-1986 by this Court with a direction for disposal of the revision petition in accordance with the law.
' On 1st January, 1987 the Notified Settlement Commissioner, vide the impugned order accepted the revision petition, cancelled the sale through auction and restored the transfer of the shop in question in favour of the respondent. Hence this petition.
2. Learned Counsel for petitioner contended that the notice of demand was served upon respondent on 30-3-1970. He failed to pay up the price of the shop. The transfer order in his favour was cancelled the shop was resumed and sold through auction. The respondent neither challenged the order of cancellation nor resumption of the disputed property, as such, his prayer to set aside sale through auction or restoration of the shop in his favour could not be granted. It was further submitted that the respondent made no payment towards the price of the shop in dispute.
The certificate showing payment of Rs.1,200 and the association deed allegedly executed by Qannat All claimant in his favour for adjustment of Rs.3,600 out of the compensation book are forged. It was also contended that the respondent No.1 in para 13 of the impugned order observed that the Deputy Settlement Commissioner was under legal obligation to trace the original agreement of association, the Bank challans for Rs.1,200 and Rs.25 and in case of their non- availability, he should have asked the respondent to file the duplicate documents to prove the execution and genuineness, thereof but he himself did not follow that course.
3. Mr. Khaliq Ahmad Ansari, Advocate for respondent entered appearance at the limine stage of this case, on the contrary, submitted that no demand notice was served upon the respondent before the transfer of the disputed shop was cancelled or resumed on 30-4-1970 by the Deputy Settlement Commissioner. It was also submitted that the respondent produced on the record certificate issued on 27-6-1966 by the State Bank of Pakistan for payment of Rs.1,200 as also challan showing deposit of Rs.25 as Rehabilitation fee and the association agreement with Qannat Ali for adjustment of Rs.36,000 through his Compensation Book No. 275732/LHR/V. The respondent offered to pay in cash Rs.3,600 in case the adjustment of the aforesaid price could not be made out of the Compensation Book.
4. I have considered the contentions raised by learned counsel for parties and have gone through the documents on the file. Mushtaq Ahmad respondent being claimant/transferee, in possession of the shop in dispute was entitled to retain the same unless it is stood established that he defaulted in payment of its price despite demand notice under paragraph 24 of Schedule to the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) read with paragraph 2 of Settlement Scheme No.VIII, under registered A/D was served upon him. Learned Notified Settlement Commissioner after perusing the relevant record found as of fact that there was no demand notice A.D., receipt, resumption order on the file. On the contrary he found certificate showing deposit of Rs.1,200 by respondent in the State Bank of Pakistan. Challan for deposit of rehabilitation fee of Rs.25 and a Compensation Book of Qannat Ali showing balance of Rs.3,600 available in the Compensation Book. The petitioner, filed copy of application dated 13-7-1970 Annexure 'H' containing prayer for cancellation of sale through auction and restoration in his favour. This application was received on 14-7-1970 by the Additional Settlement Commissioner. He passed thereon order to the following effect:- "DSC-I to please examine the case, hear the petitioner and take decision on merits. The auction may not be got confirmed in the meanwhile."
' The auction, however, was confirmed on 16-7-1970 on the plea that the order was received by him a day later. Copy of the demand notice purportedly issued against respondent (Annexure-D) shows that the same was received by him on 30-3-1970. There is no acknowledgment due receipt, on the record about the receipt of the aforesaid notice. There is, however, a copy of the acknowledgment due receipt (Annexure-F) on the file. This receipt is dated 6-5-1970. It could not possibly be proof of the receipt of damand notice. In the absence of the receipt of damand notice sent through registered A/D, the order passed on 30-4-1970 purportedly cancelling transfer of the disputed shop followed by resumption order had no legal basis. The acknowledgment due receipt dated 6-5-1970 could not have been A on the file on 30-4-1970 when the order was passed by the Deputy Settlement Commissioner. He having violated the mandatory provisions of law in cancellation and resumption of the property in dispute, his order was rightly set aside in revision by the Notified Settlement Commissioner. Service of notice under paragraph 24 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act,1958, upon the default in transferee and his failure to pay, was a condition precedent for lawful resumption of the property. The demand notice issued was for a sum of Rs.5,760 and not for Rs.4,800. The demand notice on that score as well was invalid, The confirmation of the sale through auction took place on 16-7-1970 when the operation of the order stood already suspended on 14-7-1970 by the Additional Settlement Commissioner. The cancellation of the transfer order in respect of the disputed property and its resumption being based on erroneous assumption of law and factual position, the property was not available for disposal under Settlement Scheme No.VIII. The subsequent transfer order in favour of the petitioner as also the B issuance of Permanent Transfer Deed, in his favour are, therefore, of no legal effect and conferred no valid title in respect of the disputed property on him.
5. For the foregoing reasons this petition has no merit and is accordingly dismissed.