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Writ Petition No. 976‑R of 1969, heard on 25th March 1971.

Chap 11, paras 2 & 3 Resumption of property‑Issue of Demand Notice under para. 2 condition precedent to cancellation of transfer and resump tion of property‑Provision regarding service of notice cannot be dispensed with ‑ Notice should be addressed transferee and in case of his death on his legal representatives ‑Notice (despite knowledge of death of transferee) not served on son or widow but addressed in name of deceased and served on brother‑in‑law of deceased‑Held, no valid service‑Cancellation under para. 3, in circumstance, held, without lawful authority.

E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536 ref.

Sched., Part IV, paras. 15(3) & 21‑Industrial concern in occupation of displaced person‑Rigour of immediate payment of market value not inflicted on transferee under para. 15(3)‑Transferee, a claimant and surrendering his compen sation book for adjustment against price of factory in part -payment‑Department, held, duty bound to adjust amount from compensation book and thereafter inform transferee about balance payable by him and the amount of each installment he had to pay over a period of 3 years‑Settlement authorities failing to adjust amount from compensation book as well as failing to inform trans feree about amount of each installment that he had to pay and instead calling upon transferee to make full payment of purchase price‑Held, neither the transferee nor his legal representatives (after his death), in circumstance, could be saddled with any liability for non payment and no notice under para. 2 of Settlement Scheme No. VIII could be served.

Hakim Muhammad Sardar Khan for Appellant.

Sh. Abdur Rahman for Respondent No. 4.

Dates of hearing: 3rd, 4th and 25th March 1971.

This petition arises out of a dispute relating to the transfer of Nathu Ram Floor Mill, Gojra. Mehnga son of Rahim Bakhsh was the allottee of this factory. He was a claimant displaced person and his claim for industrial property abandoned in India was verified for a sum of Rs. 11,678. He was held to be entitled to a deferred payment of Rs. 6,783 under this head. Since he could not apply for its transfer to him in time, the property was included in the Auction List. On his application, however, Mr. Naseer‑ud‑Din, Deputy Settlement Commissioner, deleted it from the list by an order passed on 26‑3‑1960 as would appear from page 323 of the Settlement file which has been brought by Sardar Hidayat Ullah Khan Mokal, Settlement Commissioner (Legal) under my orders.

2. The proposal to transfer the property to Mehnga was approved on 5‑4‑1960 by the Additional Settlement Commissioner and by a letter dated 12‑4‑1960 he was so informed by the Department. The information is contained in a memorandum No. A.S C.‑LYP/2369 bearing the date mentioned above and informs Mehnga that he has "been found eligible under sub -para. (3) of paragraph No 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958" for the transfer of Nathu Ram Floor Mill, Gojra "at market value, which would be determined in due course". On 17‑5‑1961, the market value of the property was assessed at Rs. 22,733 by the Additional Settlement Commissioner.

3. On 29‑5‑1963, Mehnga died without having paid the price. He had, however, surrendered his compensation book to the Department and a sum of Rs. 6,783 available as deferred payment under Schedule No. 3 was adjusted against the price of the factory transferred to him.

4. On 31‑5‑1963, Muhammad Siddique son of Mehnga received a letter addressed to his deceased father regarding the payment of the transfer price. He sent an application on 31‑5‑1963 to the Additional Settlement and Rehabilitation Commissioner praying that the price of the factory be properly assessed after taking into consideration its condition and that the same may be intimated to him for further action. He also asked for certain details about the property and its price. His application was, however, rejected and he was asked by letter dated 12th of June 1963 to inspect the file if he wanted to do so.

5. Meanwhile Muhammad Siddique succumbed to injuries received by him in a clash at the mill. On 5‑9‑1963, Hussain Bibi herself filed an application complaining about the extremely dilapidated condition of the building and the machinery and praying that the property be transferred to her in consideration of the amount of deferred payment already surrendered by her. This application was also rejected and she was so informed on the 23rd of October 1963. Another notice was addressed to Mehnga deceased on 8‑3‑1965 requiring him to make the pay ment of the sum of Rs. 22,735 failing which the transfer would be cancelled. It was sent by registered post and was received back because of insufficient address. In fact, Mehnga had already been dead for more than a year and the Department had been already informed by his son and later on by his widow and still for some unknown reasons the notice was addressed to the deceased. Another notice was, therefore, sent through the Deputy Settlement Commissioner, Lyallpur. The report of the process‑server endorsed on the back of the notice shows that Mehnga had died long ago and one of his sons was employed at Lahore while the other had been killed in the mill. His widow Mst. Hussain Bibi was in possession of the Floor Mill, but she was not available and she had gone to the Chak. It further states that a copy of the notice was given to Akhtar Hussain, brother of the widow, who had informed him that the Compen sation Book had already been deposited with the Settlement Department and that the balance would be paid in due course. This was treated as due service of the notice upon Mehnga deceased.

6. On 9‑6‑1965, Hidayat Ullah, the other son, again applied for the reduction of the price. This application was rejected on the 30th of June 1965 (pages 331 and 333 of the Settlement file). It seems that nothing happened thereafter till the 2nd of March 1968 when a notice under paragraph No. 24 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and paragraph No. 2 of Scheme No. VIII was issued to Mehnga deceased informing him that a sum of Rs. 22,735 was still payable by him which was to be deposited in installments and that the same had not been deposited by him. Although the first installment was due on a date not mentioned in it, he was directed to pay the arrears within thirty days from the receipt of notice. This notice was also not served upon Hussain Bibi.

7. Another notice was addressed to Mehnga deceased on 2‑9‑1968 this time informing him that the property had been resumed under Settlement Scheme No. VIII and his entitlement to it had been cancelled. On 18‑9‑1968, Hidayat Ullah filed an application for deletion of the property from the auction list. It was dismissed on 2 5‑9‑1968 by the Deputy Settlement Commissioner although Hidayat Ullah held an endorsement from the Settlement Commissioner (Industries) whereby the file had been requisitioned by the head office.

8. The property was put to auction on 28‑9‑1968 and nobody bid for it. The auction was repeated on the 28th of January 1969 with the same result one Haji Allah Ditta offered to pay a sum of Rs. 22,800, i.e. Rs. 47 more than the reserved price on 29‑1‑1969 (page 381 of the Settlement file). The amount was raised to Rs. 23,000 on the request of the Deputy Settlement Commissioner and a P. T. D. was issued on 5‑3‑1969 in favour of Haji Allah Ditta.

9. Muhammad Hidayat Ullah filed an appeal before the Additional Settlement Commissioner who vide his order dated 13th of February 1969 directed that documentation regarding the property be withheld till the disposal of the appeal. The appeal was rejected on 22‑2‑1961. A Revision Petition filed against this order was rejected on 4.4‑1969 by the Settlement Commissioner. Hence this petition.

10. It will be seen from the narration of facts made above, that at all stages notices in respect of the property were issued to Mehnga who had died long before the issuance of these notices, a fact which was within the knowledge of the Settlement Department, as is clear from the record referred to by me above. Notices addressed to a dead man are not of any consequence, whatsoever, and have no force in the eye of law. The mere fact that sometimes a notice reached a brother of the widow of the deceased would not be enough compliance with the law. Resumption of property under Scheme No. VIII is provided for in Chapter No. 2. Paragraph 2 of this Chapter requires the Additional Settlement Commissioner (Industries) or the Deputy Settlement Commissioner concerned to serve a "demand notice upon a transferee of a property who has failed to pay two consecutive installments or if no installments have been allowed to him has defaulted in payment of transfer price due from him requiring to pay the whole of the outstanding amount". The transferee in this case had died long ago and the notices should therefore, have been issued to his legal representatives whose names again were known to the Department, as is clear from the file. Nobody, however, bothered to issue any notice at any stage to any one of them and, therefore, the order of cancella tion of the property passed by the Settlement Department could not have been passed under the said Scheme as the condition precedent of serving a notice upon Hidayat Ullah or Hussain Bibi was never complied with. In the case of E. A. Evans v. Muhammad Ashraf (PLD 1964 S C 536) notice was taken of the maxim‑expressum facit cessare taciturn (if doing of a particular thing is made lawful doing of something in conflict of that will be unlawful). Their Lordships were stealing with a case in which the transferee of the property in dispute had not served any notice under section 30 of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958 upon Evans who was in occupation of the property but "the appellant had by himself first approaching the respondent offering to pay rents to him waived such notice. It was also admitted that the appellant had been since regularly paying the rent". Although the purpose of serving a notice is only to make the tenant aware of his responsibility and of the fact of transfer of the property in favour of the new landlord, their Lordships held that "the service of the notice is, therefore, not merely a formality for acquainting the tenant of the transfer of the premises nor merely in the nature of a notice of attornment but it is designed to fix the terminus a quo of the period of protection". Their Lordships found it difficult to accept the proposition that implied notice or information received aliunde could constitute a notice for the purposes of section 30. In the present case also, the giving of a notice under paragraph 2 01 Scheme VIII is a condition precedent to and is for the purpose of laying a foundation for canceling the transfer of the property under paragraph 2 of the same Scheme. A notice could, there fore, not be dispensed with and had to be addressed to and serve upon the person who was the transferee, in the present case his legal representatives, and not the dead person. Their Lordships went on to hold that‑

"We are inclined, therefore, to take the view that reading the provisions of the Act as a whole section 30 was not intended to protect private rights, for, mere allottees did not by the allotment alone acquire any right in the property but were designed as a matter of public policy to give general protection to such occupants not only as to irremovability for a reasonable period but also as to occupation upon payment of a reasonable rent.

Apart from this the rule generally adopted in construing such legislation giving general protection pro bono publico is to prefer the construction which will add force to the protection tend suppress subtle inventions and evasions".

This observation of their Lordships applies to the present case with full force. No notice having been served upon either of them, the condition precedent for cancellation of the transfer was not fulfilled and the order of cancellation was, therefore, devoid of all lawful authority.

11. It is only after a valid cancellation of the transfer that according to paragraph 4 of the aforesaid Scheme "the property will be available for disposal as hereinafter provided". The property, therefore, did not become available for transfer in the circumstances of this case.

12. Disposal of available property is dealt with in Chapter 3. The subsequent auction of the property in dispute was also, therefore, without any legal basis and this petition can be accepted on this score alone.

13. That is, however, not all. The property was transferred to the petitioner's father under paragraph No. 15 (3) of the Schedule to the Act. This paragraph deals with the transfer of an industrial concern to a displaced person or local who is in occupation of it, and the same has under this sub‑paragraph to "be transferred to him on payment of its prevailing market value minus the investment, made, if any". The other sub‑paragraphs of paragraph 15 are differently worded. In so far as in the case of a person covered by those paragraphs, the property has to be "transferred to him on payment immediately of the prevailing market value minus the investment made, if any". It is, therefore, clear that the transferees under sub‑paragraphs 2 and 4 have to pay the prevailing market value of the property immedi ately while the rigor of immediate payment is not inflicted upon a transferee under sub‑paragraph 3. And, of course, the petitioner belongs to the latter category.

14. Paragraph 21 provides that a claimant to whom any property is transferred under this Act shall pay the amount due from him after adjustment of the total amount of deferred payment admissible to him as follows

(i)

(ii) if the property is transferred to him on payment of the prevailing market value within three years in equal monthly installments, unless such payment is required under the other provisions of the Act to be made immediately.

In the present case the petitioner or his father, while he lived was never sent any intimation as to how much money was due from them after the adjustment of the deferred payment admissible to them. It should have been finally calculated by adding rent and subtracting public dues by the Settlement Department when as in the present case, they received the Compensation Book from the transferee. After the calculation and adjustment of this amount the transferee had to be informed of the amount due from him and the amount of each installment that he was required to pay. No such thing was ever done by the Depart ment and even when notices were issued to a dead man, I.e. 1vlehn#a deceased, the full amount of Rs. 22,735 was always demanded without making any adjustment. In the notice referred to above, the columns pertaining to the adjustment of deferred payment, the amount of each installment and the time when each installment fell due were all left blank. Not having been ever told how to pay when to pay and how much to pay, the transferee or his legal representatives could not be saddled with the liability for non‑payment.

15. My conclusions, therefore, are that‑

(1) In the case of industrial concerns transferred unde paragraph 15 (3) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it is the duty of the Department to compute the prevailing market value of the property, to calculate the amount of investment made by the transferee in It and accepted by the Department and then to arrive at the sale‑price by deducting the latter from the former;

(2) because the transferee under paragraph No. 15 (3) has to be a Claimant, it is the further duty of the Department to adjust the total amount of deferred payment admissible to the transferee against the aforesaid sale‑price ;

(3) it is the duty of the Department to then distribute the sale‑price over 36 equal installments ;

(4) it is the duty of the Department to intimate to the transferee the result of the calculations referred to above and he should be notified of the amount thus found due from him and the amount of each installment that he is required to pay.

Unless these steps are taken, n3n‑payment of the transfer price by the transferee cannot be used to dub him as having "failed to pay two consecutive installments" or to have "defaulted in payment of transfer price".

(5) No notice under paragraph 2 of Scheme No. VIII can be served upon the transferee unless the aforementioned steps have been taken;

(6) the notice under Scheme No. VIII has to be served upon the transferee or his legal representatives and unless the notice is so served, the property will not be "available for disposal" under paragraph 4 of the Scheme No. VIII;

(7) the amount of deferred payment not having been adjusted and the total amount due not having been worked out, the amount of each installment not having been calculated and no intimation in respect of any of them having ever been given to the legal representatives of the deceased transferee, they could not be saddled with the responsibility for non‑payment ;

(8) notices of demand having been sent to a dead man were no notices in the eye of law and the provisions of paragraph No. 2 of Chapter II of Scheme Vill having thus not been complied with, the cancellation of the transfer of . the property under paragraph 3 was without lawful authority ;

(9) there being no lawful cancellation of the transfer, the property did not become available for disposal under the Scheme in accordance with the provisions of paragraph 4;

(10) the property not being available for disposal under the Scheme, its purported transfer by way of negotiation to Allah Ditta respondent was devoid of all lawful authority and was of no legal effect.

16. This petition is, therefore, accepted, the impugned cancellation of the transfer of the property as well as its transfer to Allah Ditta are declared to be without lawful authority and of no legal effect. Since, however, Allah Ditta is not responsible for the auction of the property, he shall not be saddled with the costs of this petition. The Settlement Depart ment shall pay costs both to the petitioner and to Allah Ditta respondent. The same are fixed at a sum of Rs. 500 (Rupees five hundred only) @ in each case.

K. B. A.

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