1980 PLP 1258 (CLC)

M. Rashiduddin for Respondent No.

4. Late of hearing : 7th August 1978. This constitutional petition is directed against an order passed in revision by the learned Settlement and Rehabilitation Commissioner on 2nd October 1972, where by he allowed the revision application preferred by respondent No. 4 herein against the order of the learned Additional Settlement Commissioner who had refused to revoke the order of cancellation of the transfer documents in favour of respondent No. 4 on the ground that since the cancellation P.T.D. in respect of the property in dispute had been issued in favour of the petitioner.

2. The dispute in this case relates to a shop bearing C.S. No. B-6s. situated in Sanghar town. This was an evacuee property which way auctioned in October 1964, in favour of respondent No. 4, who gave the highest bid of Rs. 12,

100. It would appear that the said responders deposited his own claim book of the value of Rs. 3,225 and for the balance he deposited the claim books of other persons which admittedly remained throughout with the Settlement Authorities. He, however, does not file any agreement of association and accordingly, after notices were sent to him by post, regarding payment of the balance of the amount, the auction sale to his favour was cancelled on 4th June 1965, by the Deputy Settlement Commissioner and the said property was transferred to the petitioner on his N.S.C. form under Scheme No. VIII on 20th October, 1966. The petitioner thereupon paid the entire transfer price for the property in question and P.T.D. was issued in his favour on 8th July, 1967. After the issuance of the P.T.D., respondent No. 4 approached the Deputy Settlement Commissioner for withdrawal of the order or cancellation of transfer in his favour on the ground that no notice had been issued to him prior to the cancellation. The Deputy Settlement Commissioner, however, rejected his representation mainly on the ground that P.T.D. having been issued in favour of the petitioner herein, no power remained with the Deputy Settlement Commissioner to review or modify the earlier order. The respondent went up in appeal against the aforesaid order to the Additional Settlement Commissioner but the appeal was unsuc cessful and the Additional Settlement Commissioner agreed with the learned Deputy Settlement Commissioner that the Settlement Authorities had: become functus officio on account of the issuance of the P.T.D. in favow of the petitioner herein. Against the said order, respondent No. 4 filer: revision application to the Settlement Commissioner, who held that. since the notices to the respondent No. 4 had been sent by ordinary post. and not by registered post, acknowledgement due, as required by law, and further as there was no evidence that the said notices had beer received by the said respondent, the cancellation order dated 4th Jun;, 1965, was not maintainable, The learned Settlement Commissioner remanded the case to the Deputy Settlement Commissioner for examination of the contentions whether respondent No. 4 had deposited the claim book of other claimants, as contended by him, and further whether the petitioner herein was in possession of the property in question on or before the 20th December, 1958. On both these points the learned Deputy Settlement Corn, missioner had held in the affirmative but still maintained the transfer in favour of the petitioner on the ground that respondent No. 4 was not prepared to pay in cash the outstanding dues relating to the property, which he was, required to pay, as no agreements of association had been filed by him anti furthermore the time for filing such agreements had elapsed. On appeal to the learned Additional Settlement Commissioner, the order of the Deputy Settlement Commissioner was maintained. Against this order, a revision was filed before the Settlement Commissioner. who has passed the impugned order. In that order, the learned Settlement Commissions has held that as according to the order of the Settlement Commissioner dated 2nd October 196P, the cancellation order dated 4th June 1965. whereby the auction sale in favour of respondent No. 4 was revoked was legally not maintainable, the transfer under Scheme No. VIII of the property in question in favour of the petitioner obviously could not also be maintained and hence has to be set aside. 3. 1 have heard Mr. K. A. Ghani, the learned counsel for the petitioner, and Mr. Rashid-ud-Din, the learned counsel who appeared for respondent No. 4.

4. Mr. K. A. Ghani conceded that cancellation of a transfer under the Settlement Law for failure to pay instalments when due or any arrears falling due could be legally done only if due notices calling upon the defaulter to pay the sums dues as. also notice of cancellation of transfer were sent to the defaulter. He submitted that in the instant case, such notices were sent to respondent No. 4 as has been held by the Settlement Commissioner in his order dated 2nd October 1969.

5. Mr. Rashiduddin, the learned counsel for respondent No. 4, on the other hand, submitted that the learned Settlement Commissioner had held that then-- notices were not in accordance with the law, as the notices were required to be sent by registered post, and accordingly he held the cancellation. order to be not maintainable. The learned counsel further sub mitted that this order of 2nd October, 1969 was not challenged by the petitioner and has accordingly attained finality. This would appear to be the position. Even otherwise, no exception can be taken against this finding of the learned Settlement Commissioner as under section 27 of the General Clauses Act, a presumption regarding due service by post will &rise only in these cases where the service is effected through registered post. In the instant case, admittedly, no notices were sent by registered post, and since receipt of the notices was denied by respondent No. 4, the learned Settlement Commissioner rightly, came to the conclusion that there was no evidence regarding due service of the required notices upon respon dent No. 4 and consequently the cancellation of the auction sale in his favour was not maintainable.

6. No doubt, respondent No. 4 was required at least when he applied to the Deputy Settlement Commissioner for revocation of the order of cancellation of his transfer documents to pay the outstanding dues, and it would appear from the order of the Deputy Settlement Commissioner, dated 13th June, 1969, that he was not prepared to pay in cash the outstanding dues, but since the first order of cancellation, dated 4th June, 1965, had been set aside by the learned Settlement Com missioner, by his order of 2nd October, 1969, and no fresh order of cancellation of transfer had been made, it was open to the Settlement Commissioner at the time of hearing the revision to permit respondent No. 4 to pay up the balance of the dues. Mr. Rashiduddin stated at the Bar that respondent No. 4 has since paid up all the dues in respect of the property and that the P. T. D. has been issued to him.

7. In the circumstances, the order of the learned Settlement Commis sioner would appear to suffer from no legal infirmity and cannot be inter fered with in the exercise of the Constitutional jurisdiction of this Court. The petition is accordingly dismissed with costs. M. A.K. Petition dismissed.