1987 PLP 1056 (SCMR)

MUHAMMAD HALEEM, C. J.‑‑ The sole point for consideration in this appeal is whether "as between the claimants and Settlement authorities the law of Contract or the law of Rehabilitation will prevail in respect of transfer of evacuee properties." The facts which have given rise to this appeal are that an evacuee industrial concern known by the name of Karamshee Shamshee Cotton Factory, Sargodha was put to an unrestricted auction on 11th of September, 1959, for which Messrs Abdul Ghani, Hilal Ahmad and Khawaja Ghulam Sadiq gave the highest bid of Rs.11,00,

000. The bid was, accordingly, accepted, but the auction‑purchasers did not deposit the auction price with the result that the auction was cancelled by order of the Additional Settlement Commissioner (Industries) dated 4th of October, 1967. There was, however, protracted litigation between these auction‑purchasers and the department, and, therefore, the industrial concern could not be disposed of for a considerable period of time. During this interregnum Syed Iqbal Hussain Kirmani, one of the respondents, was appointed as Superdar of the Factory after its possession was resumed. On 16th of June, 1971, Syed Iqbal Hussain applied for the transfer of the factory on negotiation basis and ultimately agreed to pay Rs. 11,00,000 for it. This offer was in writing and signed by him on behalf of an alleged firm carrying on its business in the name and style of Syed Iqbal Hussain and Company. He also offered to pay the amount in cash. The offer was accepted on the express stipulation that the amount shall be paid in cash and that too within two weeks of the acceptance of the offer. The order of acceptance was conveyed to the firm by letter dated 22nd of May, 1972, calling upon it to deposit the sale price in cash within two weeks. Nonetheless the firm by letter dated 22‑5‑1972 requested for the extension of time by 15 days for the payment of the price in cash which was also accepted and the firm was allowed to pay the entire amount in cash by 25‑6‑1972, by letter dated 10th of June, 1972. However, instead of paying the amount, an application was filed on 22nd of June, 1972 wherein it was requested that the firm be allowed to pay a sum of Rs.1,05,000 in cash and the balance of Rs 9,95,000 through compensation books of the partners of the firm who were residents of Karachi. But the Chief Settlement Commissioner did not agree to it and by letter dated 5th of July, 1972, communicated to the firm that the order was withdrawn and the acceptance of the offer stood cancelled as it failed to deposit the price in cash. The property was there after ordered to be auctioned. In the meantime the firm made representations for the acceptance of the price through compensation books to various higher authorities, but nothing came out of them. The property was, accordingly, sealed before its proposed auction on 22nd of July, 1972, although the residential portion remained in the unauthorized possession of Syed Iqbal Hussain and the Deputy Settlement Commissioner was directed to eject him under section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The respondents next broke the seal of the factory on 7th of August, 1972, and the matter was reported to the police for the registration of a case under section 448/342, P.P.C. The seals were again affixed. The auction could not, however, take place as the respondents filed a Writ Petition No. 482‑R of 1972 in the Lahore High Court, Lahore, which was accepted by order dated 15th May, 1973. The High Court after referring to the provisions of the Schedule held that the Settlement authorities could not impose a condition of the payment of price in cash and that if the respondents desired to adjust it against the deferred payments available in their compensation books then the Chief Settlement Commissioner could not deny to them this right in violation of the provisions of the Act. Accordingly, the order canceling the offer was held to be without lawful authority. Despite the notices issued, the respondents have not cared to defend the appeal. Mr. Bashir Ahmad Ansari, learned counsel for the appellant, contended that the High Court failed to consider para 15‑A of the Schedule and the memorandum dated 24th of June, 1960, issued by the Central government, which permits the Chief Settlement Commissioner to require the transferee to pay the transfer price in cash or through compensation book, and that these provisions were not brought to the notice of the High Court while it decided the question of the payment of price through compensation books. Para. 15‑A of the Schedule reads:‑‑ "Notwithstanding anything contained in paragraph 15, the Central Government may make any order for the disposal of any class of Industrial concerns of Cinema houses in such manner as may be specified therein." The memorandum dated 24th of June, 1960, provides in clause (i) of the Notes appended to it that" in all cases where houses, shops, industrial concerns and building sites are transferred by negotiation, the transferees should be required to pay the transfer price within 30 days in cash or through compensation book." There is, therefore, a clear direction for the payment of the transfer price in cash. In this view of the matter, reading the Schedule and the memorandum together, there is no compulsion to accept the transfer price through compensation books as was held by the High Court after referring to the provisions of the Act. Para 15‑A, as worded, excludes the application of other provisions and leaves it to the Central Government to chose the manner of disposal of the industrial concern. Therefore, the High Court was in error to hold otherwise. The Settlement Commissioner acted in accordance with law while conditionally accepting the offer of payment of the price in cash and subsequently in withdrawing the acceptance of the offer for default. In the result, the order of the High Court is set aside and the writ is recalled. The appeal is, accordingly, allowed, but with no order as to costs. M.I. /C‑3/S Appeal allowed.