1986 PLP 410 (MLD)

‑‑‑ Paras. 2 & 3‑‑Resumption of property‑‑Demand notice Resumption order, held, must be preceded by a valid Demand Notice and copy of resumption order was to be sent by post to person found to be defaulter. Muhammad Hassan Jafri for Petitioner. Munir Ahaad for Respondent No.2. Date of hearing: 28th October, 1985. The facts are that the plot in dispute was transferred to the petitioner under Settlement Scheme No.VI by the Deputy Settlement Commissioner, vide his order, dated 18‑5‑1965. However, on the assumption that demand notice under, Settlement Scheme No.VIII, issued to the petitioner requiring him to pay the transfer price, was, ignored by him, the Deputy Settlement Commissioner on 26‑10‑1970 (Annexure 'E') declared the petitioner as a defaulter, cancelled the transfer and resumed the property, which later on was disposed of through auction (Annexure 'G') in favour of respondent No.2, against sale price of Rs.1,300 only. These orders have been assailed through this writ petition.

2. I have heard the learned counsel for the parties and examined the available record. In the report submitted by the Department in compliance with the orders of this Court, it is said:‑ " ....A notice under Settlement Scheme No.VIII for payment of the transfer price was issued to him on 14‑10‑1966 which according to record does not seem to have been served upon him and afterwards the plot was resumed on 26‑10‑1970 due to non‑payment of the price. The resumption order was also not conveyed to the petitioner as per record ." It is obvious that no demand notice envisaged by para. 2 of the Settlement Scheme No. VIII was served on the petitioner. In law, the resumption order must be preceded by a valid demand notice. Under para. 3 of the Scheme, the copy of the resumption order, has to be sent by post to the person found to be a defaulter. This requirement has also not been complied with. As the mandatory, provisions of law have been violated, the resumption order and the subsequent auction of the property, rested on the resumption order cannot be sustained.

3. The learned counsel for the petitioner submits that this is a case for further enquiry and if the writ petition is to be accepted the matter may be sent back to the Settlement authorities to pass a fresh order after holding investigation into the question of service of notice on the petitioner.

4. In view of the department's clear cut admission that the petitioner was not served, for the rebuttal whereof there is absolutely no material on the record, rather there are indications to the contrary, I do not feel persuaded to hold that any further enquiry is called for. As the petitioner has already deposited the transfer price, and other dues (Annexures 'B', 'C' and D'), the issue of a fresh demand notice shall merely be a redundancy.

5. This writ petition is, therefore, accepted and the impugned orders declared to have been passed without lawful authority. The parties are left to bear their own costs. M.Y.H Petition accepted.