1984 PLP 296 (SCMR)

MUHAMMAD HALEEM, ACTG. C. J.‑Muhammad Yousaf, the first respon dent herein, gave the highest bid of Rs. 20,000 in public auction held on the 24th of June, 1965 for property bearing No. 2858, Qissa Khani Bazar, Peshawar City, which bid was duly confirmed. In all a sum of Rs. 4,820 lay to his credit with the Settlement Department which was adjustable against the 1/4th of the price payable at the fall of the hammer, and on the 26th of June, 1965, a Provisional Transfer Order was issued in his favour. The first notice for the payment of Rs. 20,000 was issued by the Deputy Settle ment Commissioner, Peshawar, on the 30th of July, 1965 failing which it was stated that the auction would be cancelled and that further he would be liable to pay a penal equivalent to 1/4th of the bid money. In reply thereto the first respondent intimated the Deputy Settlement Commissioner by letter dated 2nd of August, 1955, that a sum of Rs. 4,820 was lying to his credit which should be adjusted as part payment of the price. There after on the 9th of January, 1966, another notice was sent to him by the Deputy Settlement Commissioner, Peshawar, for the payment of the entire sum within 30 days failing which amongst other penalties it was again reiterated that the P. T. O. would be cancelled. This was followed by another notice dated the 4th of March, 1966, the receipt of which was acknowledged by one Inamul‑Haq on his behalf. By letter dated the 29th of December, 1966, the first respondent informed the Deputy Settlement Commissioner that he had entered into an agreement of association with one Habibur Rehman for the adjustment of Rs. 10,000 from his com pensation book and it was requested that this amount should be adjusted towards the part payment of the price. On this letter there appears to be an endorsement of the Deputy Settlement Com missioner dated the 9th of January, 1967 to the effect that the first respondent should be asked to deposit 1 /4th of the balance in cash within two weeks failing which the agreement should be "consigned to record". Thereafter by letter dated the 4th of February, 1967, the Deputy Settlement Commissioner, Peshawar, informed him that the agreement of association was incomplete and he was asked to comply with certain other formalities. The compensation book was thereafter sent to Sialkot for verification by the Deputy Settlement Commissioner, Peshawar, vide his letter dated the 8th of March, 1967, and it transpired that compensation book was not genuine and thereupon the Deputy Settlement Commissioner, Peshawar, by his letter, dated the 28th of November, 1967, informed him that he should deposit Rs. 10,000 in cash within 15 days failing which the transfer of the property "shall be treated as cancelled" and the same would be put to auction. The first respondent thereupon wrote to the Deputy Settlement Commissioner stating that the amount lying to his credit had not been adjusted towards 1/4th of the total price payable and that further he had deposited another sum of Rs. 3,795 on the 20th of February, 1967, in the State Bank of Pakistan, Peshawar. As for the deposit of Rs. 10,000 in cash he expressed his inability to do so and he sought permission to file another agreement of association. He repeated this request through another letter dated the 6th of January, 1968, and the endorsement thereon of the Deputy Settle ment Commissioner shows that he should be informed that such association was not permissible. Again by letter dated the 5th of March, 1968, the respondent informed the Deputy Settlement Commissioner that he had approached the Minister for Rehabilitation, West Pakistan, Lahore, who had recommended his case to the Chief Settlement Commissioner, hence no punitive action could be taken till the decision of his case. That the Deputy Settlement Commissioner by his order dated the 23rd of April, 1968, resumed the property, and ordered that it should be auction ed. It appears that the appellant who was in possession of the shop, as an allottee, submitted his L. S. form for the transfer of this shop on the 26th of April, 1968; and as it was an available property for disposal, after its cancellation, it was transferred to him on the 28th of May, 1968, at a price of Rs. 4,968 which he paid. The Settlement Commissioner (Policy) West Pakistan, Lahore, it seems, sent a letter to the Deputy Settlement Commissioner, Peshawar, on the 3rd of June, 1968, informing him that he request of the first respondent for the payment of the transfer price of the shop through an agreement of association had been referred to the Central Government for orders and till then status quo should be maintained. The Settlement Commissioner subsequently informed the first respondent that the Central Government had not accepted his request by letter dated the 18th of September, 1968, but through another subsequent communication he was given the facility to deposit the amount of Rs. 10,000 in ten monthly installments of Rs. 1,000 each. On the 25th of August, 1969, the Deputy Settlement Commissioner ordered that a P.T.D. be issued in favour of the appellant as the first respondent had failed to comply with the orders .of the Chief Settlement Commissioner, Lahore. The first respondent was, however, informed of the transfer of the shop in favour of the appellant by .a letter of the Deputy Settlement Commissioner dated the 13th of September, 1969, and he thereupon moved the Chief Settlement Commis sioner who directed the Settlement Commissioner to examine the issue in the exercise of his revisional powers. The Settlement Commissioner by order dated the 9th of January, 1974, held that there was no illegality or impropriety in the impugned order. The first respondent thereupon invoked the writ jurisdiction of the Peshawar High Court, Peshawar, and succeeded as it was held that the Settlement authorities had not complied with mandatory requirement of Demand Notice as provided in para. 2 of Settlement Scheme No. VIII. Leave to appeal was granted to consider as to whether para. 24 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, would be applicable as the auction had taken place before the' promulgation of Settlement Scheme No. VIII or para. 2 of this Scheme as a condition precedent for the resumption of the property. At the outset we may note here that although by the order of resump tion it was directed that the shop should be disposed of by auction it nonetheless was treated as available property for disposal and transferred to the appellant under Settlement Scheme No. VIII. This being so it could not now be urged that it was paragraph 24 which was applicable. The High Court also dealt with this issue from this angle while examining the legality of the resumption order as is obvious from the submission made before the High Court that para. 2 of Settlement Scheme No. VIII was complied with as demand notices were sent from time to time to the first respondent asking him to pay the full price failing which the property would be cancelled, but the High Court did not regard it as due compliance of the mandatory requirement of para. 2 of the Settlement Scheme. On this view of the matter, it held the impugned order to be without lawful authority. 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 (PLD 1964 SC 536) while construing section 30 of the Displaced Persons (Compensation and Rehabilitation). Act, 1958. In its absence the penal con sequences 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 resump tion in accordance thereto and its treatment as available property. The learned counsel for the appellant while candidly conceding that there was no compliance of para. 2 of Settlement Scheme No. VIII, contend ed that the auction was not valid in favour of the first respondent as he did not deposit 1/4th of the auction money with the fall of the hammer. This argument was not raised before the High Court nor leave was granted to consider it. If at all this stipulated amount was not deposited, it was open to the Settlement authority not to confirm the bid, but their having done so, it amounted to waiver. There is, therefore, no merit in this appeal and while maintaining the order of the High Court, we dismiss it, but with no order as to costs. S. Q. Appeal dismissed.