1988 PLP 1253 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This is an appeal by leave from the order of a learned Single Judge of the Lahore High Court, dated 4th June, 1975, whereby the constitutional petition of the appellant was dismissed.

2. The facts, in brief, are that a portion of property No.S‑VI 25.5.37, Old Anarkali, Lahore, was transferred to one Karam Elahee, a non‑claimant displaced person, on 25‑4‑1960. He surrendered his entire rights in favour of the appellant and a P.T.O. was issued to the appellant on 20‑6‑1962. A demand notice under Settlement Scheme No.I for payment of a sum of Rs.21,680. was addressed to Karam Elahee, the original allottee, but it reached the hands of the attorney of the appellant. Consequently the appellant deposited his compensation book which carried a deferred amount of Rs.6,296 and also paid a sum of Rs.13,000 in cash. It seems that afterwards another demand notice was issued to the appellant and it was followed by a resumption order dated 19‑4‑1968. It is alleged that none of these notices was served upon the appellant. The property was later on put to auction with a sum of Rs.31,689 as its reserve price. The first auction did not attract any ‑bid but the second was knocked down at half the reserve price in the name of Umar Khan respondent. Subsequently P.T. D. was also issued in the name of Umar Khan respondent No.4. On coming to know about the auction, the appellant filed an appeal before the Additional Settlement Commissioner which was dismissed on 22‑12‑1970 as barred by time. His revision before the Settlement Commissioner and writ petition in the High Court were dismissed on 17‑8‑1971 and 4‑6‑1975, respectively. It was during the pendency of the present appeal that respondent No.4 sold the property to one Habib Ullah (respondent No.5).

3. Leave was granted to consider whether the property was resumed from the appellant in accordance with law.

4. We have heard the learned counsel for the parties. The sole question which requires determination in this case is whether any notice of demand and resumption as required under the law had been served upon the appellant before the property was put to auction. The fact that no demand notice or for that matter the notice for resumption of the property as required under the law had been served upon the appellant was taken before the Settlement Commissioner at the time of the hearing of the revision petition. He took note of the above contention and held‑‑ "I have perused the record and have come to the conclusion that in the absence of the receipt on the file it cannot be safely presumed that the instructions were complied with or that the subsequent notice was at all served on the petitioner." But he still held the petitioner as a defaulter and maintained the resumption order. The appellant is a claimant displaced person and has admittedly paid the bulk of the transfer price. The perusal of the record shows that the grievance of the appellant is genuine in that no demand notice or notice of resumption had been served upon him as required under the provisions of para.2 of Settlement Scheme No.VIII as amended up‑to‑date which are mandatory in nature. Therefore, the only conclusion that can be arrived at is that the resumption of the suit property and its subsequent auction in favour of respondent No.4 was absolutely illegal and without jurisdiction. Reliance in this respect is placed on Muhammad Afzal v . Muhammad Yusuf 1984 S C M R 296 wherein it has been held: "Reading paras. 2 and 3 together, there is a mandatory requirement of a 'demand notice' being sent by a registered post acknowledgment due and the acknowledgment receipt, when received back to be pasted on the file of the Demand Notice. The penal consequences flow only when the requirement of the Demand Notice is not fulfilled, that is, the payment of the entire outstanding amount. There is no manner of doubt that para.2 has to be strictly complied with as was held by this Court in E.A. Evans v. Muhammad Ashraf P L D 1964 SC 536 while construing section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In its absence the penal consequences cannot flow as it is the failure on the part of the defaulter which gives power to the Deputy Settlement Commissioner to resume the property. Here I may mention that if at all the Settlement Department was serious it should have cancelled the transfer of the property pursuant to para.24 of the Schedule, but it did not do so in spite of the several notices issued, and, therefore, the High Court was right in not treating the notices as a compliance of para.2 of the Settlement Scheme on account of ‑its resumption in accordance thereto and its treatment as available property."

5. In the result the appeal is accepted with costs and the order of the High Court dated 4‑6‑1975 and that of the Settlement Commissioner dated 17‑8‑1971 and the Additional Settlement Commissioner dated 22‑12‑1970 are set aside. M.Y.H./F‑50/S??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.