1980 PLP 904 (SCMR)

SHAFI UR REHMAN, J‑The petitioner seeks leave to appeal against a judgment of the Lahore High Court dated 24‑7‑1974, whereby the Constitu tional petition challenging the resumption of the property from the petitioner for non‑payment of its price was dismissed.

2. The petitioner had obtained on transfer a shop in Ghallah Mandi, Jhelum. This shop is not in dispute. A shop adjacent to it was put to open auction on 4‑3‑1960 and the petitioner emerged as the successful bidder for it for Rs. 20,

000. He tendered his compensation book for adjustment. It had available a verified deferred amount of Rs. 11,512 and an additional amount of Rs. 1,829 in Schedule VI. Thereafter, admittedly he took no action till a registered notice under Settlement Scheme No. VIII threatening the resumption of the property was sent to him demanding a sum of Rs. 8,388 as the balance due. He forthwith filed an application disputing this amount but the property was resumed. The respondent Abdur Rashid who was occupying this shop had applied for the transfer of it even before its resumption from the petitioner and as it was found that his application had already been received the petitioner was not given the benefit of para. 3(a) of Settlement Scheme No VIII and its transfer to respondent No. 1 was upheld. The Constitutional petition challenged this act of resumption of the property from the petitioner on the ground that the notice which was required to be served by registered post had not been properly served on the petitioner, instead it was served on a minor son of the petitioner and that respondent No. 1 had, in a mala fide man ner, obtained the transfer of the same shop. The learned Judge in the High Court examined the terms on which the property had been auctioned and found that the petitioner was clearly in default. Further, it was found that he had received a proper notice of demand and had not within the prescribed period made up the default on his part and thereafter the interest of respondent No. I intervened. Hence that petition was dismissed.

3. The learned counsel for the petitioner has contended that undoubtedly the terms on which the petitioner had obtained the property in auction were onerous and he was in default in satisfying the terms requiring him to pay the balanced price within 30 days of the confirmation of the auction or in 12 instalments. It is said that nevertheless the Settlement Department had not chosen to invoke those onerous conditions of the auction for penalising the petitioner and therefore any reference to them was out of place. As the Settlement Department proceeded with a notice under Settlement Scheme No VIII before resuming the property it was bound to follow the procedure prescribed therein. It was required of the Settlement Authority that a notice by registered post shall be sent and got, served and the acknowledgment card shall be placed on the record. This service of the notice is said to be defective because it was served on the minor son of the petitioner who could not substitute for the petitioner and the notice mentioned an amount, which was patently incorrect and rectification was sought from the Settlement Authority.

4. The first defect with regard to the service of notice is actually of no avail to the petitioner because under section 27 of the General Clauses Act the presumption of service is against him. If he had received information from his son there was nothing more that could be done in so far as the Settlement Department was concerned for the notice was addressed properly and postage was prepaid and it was dispatched The petitioner got the notice of it and what is said to be a defect is not a defect at all. As regard the amount demanded the petitioner would have been certainly on a stronger' wicket if he had paid the price which he considered to be due from him and that was a substantial amount. He did not do so. The mere raising of a controversy would not enlarge the time available to him for making up the default once it is conceded by him that he was in fact in default appears therefore that when the Settlement Department proceeded to the property the petitioner was in default and he had not taken steps toy make up the default in spite of a notice to that effect. The resumption being proper he is left with no locus standi to challenge on various ground the transfer made in favour of the respondent. Even if the application was filed by the respondent transferee before the property technically became available on resumption it would not be fatal to his claim, The mere pendency of an application was sufficient to keep out a defaulting transferee from making up the default the facility otherwise provided under the scheme where no such application had been filed. The petition has no merit and is dismissed. Petition dismissed.