SHER MUHAMMAD Versus SETTLEMENT COMMISSIONER

MUHAMMAD HALEEM, C.J.- -This appeal, by*4eave, arises from the judgment of the Lahore High Court, Lahore, dated 23rd of February, 1977, by which Writ Petition No.248-R of 1977 was dismissed in limine.

2. Leave to appeal was granted to consider whether the plot in dispute was legally resumed having regard to the dictum laid down in Mst.Zarina Rauf Butt etc. v. Malik Aziz Ahmad etc. P L D 1982 f SC 272 so as to enable its auction as available property.

3. The appellant is now represented by his legal representatives, who are in possession of the open plot measuring 9 Marlas and 112 sq ft. comprised in Khasra No.3329, situate in Tilak Nagar, Badami Bagh, Lahore. He had raised a Pacca construction thereon and on the basis of his possession and construction applied for its transfer under Settlement Scheme No.VI which was duly transferred to him on or about 31st of August, 1962. On 25th of February, 1966, the transfer price of the open plot was duly intimated to him, but he took exception to it and appealed to the Additional Settlement Commissioner who accepted the appeal by order dated 27th of September, 1967, holding that as he was the allottee he could not be charged the additional price of 50 per cent. However, while remanding the case, it was ordered as under:

"The appellant has however, not made any payment so far. He should be told the correct transfer price which he shall pay within one month from today. The appellant agrees to this. "

However, the desired letter intimating him the price was issued on 28th of October, 1967, which was received by him on 11th of November, 1967. Instead of Rs.5,000 the price was fixed at Rs.3,800. On the same day, he deposited Rs.1,000 which left a balance of Rs.2,800. In the meantime, as he had failed to pay the price within one month from the date of the order of the Additional Settlement Commissioner.

The disputed plot was listed for auction in the 2nd week of November, 1967 and auctioned on 28th of November, 1967, in favour of the contesting respondents. The appellant on coming to know of it filed an appeal before the Additional Settlement Commissioner on 9th of December, 1967, praying therein that he should be allowed to pay the balance of the price in lump sum and the plot be restored to him. But the Additional Settlement Commissioner rejected the appeal by his order dated 19th of February, 1968 on the ground that it could not be restored on humanitarian grounds without noticing that he had also offered to deposit the transfer price in lump sum. Aggrieved by this order, the appellant went in revision and repeated the same prayer. During the pendency of this revision, he deposited the remaining amount on 11th of May, 1968. The revision was allowed by the Settlement Commissioner on 30th of May, 1968 and the plot was restored to him as the entire price had been deposited. Nonetheless, the respondent filed a miscellaneous application before the Settlement Commissioner on 5th of September, 1972, seeking to have the order set aside on the ground that he was not heard which application was allowed on 12th February, 1974 and the revision was re-opened for being dealt with on merits. Again the Settlement Commissioner by order dated 22nd of January, 1976, dismissed the miscellaneous application which was earlier granted by order dated 12th of February, 1974, and maintained his earlier order dated 30th of May, 1968.

4. Against this order the respondent invoked the writ jurisdiction of the High Court and succeeded as by order dated 26-4-1976, the case was remanded to the Settlement Commissioner for due implementation of the order dated 12th of February, 1974. The Settlement Commissioner passed on the matter to the Deputy Settlement Commissioner notified under the Act for disposal. The Deputy Settlement Commissioner thereafter by order dated 24th of January, 1977, held, firstly, that no demand notice was necessary; and secondly that there was automatic resumption and cancellation of the plot. The result was that the appellant's revision was dismissed. The appellant challenged this order in writ jurisdiction but failed as it was dismissed.

5. The learned counsel for the appellant contended that in the absence of the demand notice, the property would not be resumed and auctioned as available property. This also was not possible without prior cancellation after notice to the appellant. Undoubtedly as from the date mentioned in the order of the Additional Settlement Commissioner dated 27th of September, 1967, the entire transfer price was not deposited. The failure to do so was by and large due to the reason that the intimation for the amount payable as transfer price was received by the appellant on 11th of November, 1967, much after the expiry of a month and in that event it was not possible to stress that the default was mainly on his part as he had agreed to pay the full transfer price within a month from the date on the order of the Additional Settlement Commissioner. Be that as it may, it is also obvious that even after the receipt of the letter he did not immediately deposit the entire price, but eventually deposited the full price during the pendency of his revision application before the Settlement Commissioner.

6. As to the effect of the default, Para 24 of the Schedule will not be applicable as no instalments were granted to the appellant for the payment of the price. Nor Para 25 of the Schedule will be applicable as he did not seek any further period for the payment of the price. The only provision applicable in his case is Para 2 of the Settlement Scheme NO.VIII, which requires due compliance in the payment of the outstanding amount provided its procedure was duly complied with. The penal consequences ensue only in case of default after such notice as is provided in para.3 of the Scheme. On the record, there is no material to hold that the demand notice was sent as required by para 2 to entail its penal consequence, that is, resumption in case of default. The facts of this case squarely fall within the dictum of this Court laid down in Muhammad Afzal v. Muhammad Yusuf and others 1984 S C M R 296, wherein it was held that there cannot be a resumption without a demand notice. This being the legal position there was no valid resumption of the open plot so as to render it available for auction. The facts in Mst . Zarina Rauf Butt's case are, however, distinguishable as therein paragraph 3-A of they Settlement Scheme No.VIII was pressed into service which is not the' case here. The High Court, however, relied on his consent as a piece of conduct disentitling him to get the equitable relief which otherwise was based on a technicality, that is, that he was entitled to a demand notice under Para 2 of Settlement Scheme NO.VIII. The High Court in holding so fell into an error as there cannot be an estoppel against a statute nor the lapse in giving notice can be regarded as a procedural error, and, therefore, a more technicality. The giving of the demand notice was mandatory without which no penal consequence could flow. The Notified Officer was also in error to hold that the cancellation and the resumption was automatic.

7. Accordingly, we set aside the impugned order of the Notified Officer and that of the High Court and allow the appeal, but with no order as to costs. A writ will issue as prayed for by the appellant

M.I./S-100/S Appeal allowed.