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Civil Appeal No. 281 of 1977, decided on 13th May, 1984.

(From the judgment and order dated 10th October, 1977 of the Baluchistan High Court passed in Petition No. 82 of 1975).

‑‑‑ Art. 185 (3)‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10‑Settlement Scheme No. VIII, para. 2‑Leave to appeal granted to examine whether defaulting trans feree had been properly served before cancellation of P.T.D. issued in her favour.

‑‑‑ Paras. 2 & 3‑A‑General Clauses Act (X of 1897), S. 27‑Cancella tion of P. T. D. on ground of default‑Notice sent to defaulter trans feree having been returned unnerved‑Such defaulter transferee, held, could not be said to have been served thereby and case clearly called for resort to substituted service envisaged under para. 2 of Settlement Scheme No. VIII‑Neither substituted service properly effected nor such transferee was informed of cancellation of P. T. D. so that she could invoke provisions of para. 3‑A of Settlement Scheme‑Order of Board of Revenue that transferee had not been served nor given proper opportunity was, therefore, unassailable and not open to interference in constitutional jurisdiction of High Court‑Provisions of S. 27, General Clauses Act, 1897, not attracted as notice was returned unserved.

Muhammad Ali v. Member, Board of Revenue 1981 S C M R 852 and Muhammad Afzal v. Muhammad Yusuf 1984 S C M R 296 ref.

M. S. Mahboob, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record (absent) for Appellant.

S. M. Abbess, Advocate‑on‑Record absent for Respondent No. 1.

Date of hearing : 13th May, 1984.

‑Leave to appeal was granted in this case to examine whether the transferee, Mst. Amines, appellant, had been properly served before cancellation of the P. T. D. issued in her favour.

2. The house in dispute bearing No. 3‑11/14 (presently No. 3/11/5A) situate on Mitha Mal Road, Quetta was transferred in favour of Mst. Amina appellant and P. T. O. issued in her name on 12‑6‑1964. She paid the transfer price through compensation books, whereupon a permanent transfer deed was issued in her favour on 24‑7‑1964. However, the compensation books were later found to be bogus and accordingly a notice, per registered post A. D., was sent to her on 8‑1‑1968 calling upon her to pay Rs. 14,288'40 on account of the transfer price within 15 days, failing which, besides other penalties, the P. T. D. issued in her name would be cancelled. The notice was received back unserved with the report of the postman that the addressee was not found at the given address. However, the P. T. D. was without any further proceeding, cancelled and the property was resumed on 22‑2‑1968 and later auctioned in favour of Abdul Qadir respondent on 16‑8‑1969, which auction was confirmed in due course. The appellant came to know of the cancellation of her P. T. D. when a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1968 was received from the respondent on 30‑3‑1970. She promptly appealed on 10‑4‑1970. The Settlement Commissioner, who treated the appeal as revision, not being satis fied with the service of the demand notice on Mst. Amines, remanded the matter to the Deputy Settlement Commissioner for deciding the matter according to law after giving full opportunity to both the parties. The Deputy Settle ment Commissioner, vide his order dated 25‑5‑1974 passed in remand, repelled Mst. Amina's plea that she had not been served, holding that if she did not receive the notice, the Department could not be blamed, that the notice had been broadcast on the radio from Quetta and that it had also been displayed on the notice board of the Department. The Settlement Commissioner, before whom Mst. Amines went in revision, observed that the Deputy Settlement Commissioner had not applied his mind to the point whether substituted service bad been effected, whether the necessary notice had been affixed in a conspicuous place in the Court house and whether the same had been pasted on a part of the house of Mst. Amina. He, therefore, by his order dated 13-6- 1974 once again remanded the case for a fresh decision. In view of the change in the law the matter was heard by the learned Member, Board of Revenue, who felt "convinced' that the notice had not been duly served upon Mst Amines in accordance With the provision of Settlement Scheme No. VIII and that she not been Oven proper opportunity required under the Law. He also noticed the readiness of Mst. Amina to pay the full price of the house in cash. He, therefore, by his order dated 5‑5‑1975 accepted her appeal and allowed her time up to 15‑5-1975 to deposit the transfer price, with which She complied. Respondent Abdul Qadir, however successfully challenged the Decision in a constitutional petition before the high court of Baluchistan. The learned Chief Justice of the High Court vide his order dated 10-10-1977, held that the requirement of paragraph 2 of Settlement Scheme No. VIII had been complied with and Mst. Amines was also "deemed to have been effectively served" in view of the provision of section 27 of the General Clauses Act.

3. Under paragraph of Settlement Scheme No. VIII, a Demand Notice has to be served per registered post A. D. upon the transferee of a property who has failed to pay the transfer price and the acknowledgment receipt when received back from the addressee is to be pasted on the file of the Demand Notice. The rule further provides that "Where necessary, substituted service of Demand Notice, as provided for in the Code of Civil Procedure, may be made". In the event of cancellation of the transfer for non‑payment of the dues as specified in the Demand Notice, the defaulter can move the Deputy Settlement Commissioner under paragraph 3‑A of the Scheme within thirty days of the cancellation for permission to pay the entire balance due in lump sum. The concerned appellate authority has also the power to allow the defaulter to pay the amount due in one lump sum within ninety days from the date of the cancellation if the property has not, in the meantime been put to auction and upon such payment, the order of cancellation and any other order made shall stand withdrawn.

4. The notice in question sent to Mst. Amines having been returned unserved, she cannot be held to have been served thereby and the case clearly called for resort to substituted service envisaged under paragraph 2 of Scheme No. VIII. No such substituted service was properly effected. Nor was she informed of the cancellation of her P. T. D. so that she could invoke the provision of paragraph 3‑A of the Scheme. In Muhammad Ali v Member Board of Revenue (1981 S C M R 852) this Court had approved the view taken by the High Court that it was necessary to inform the defaulter transferee of an order of resump tion if passed so that he could take advantage of the provision of paragraph 3‑A which has created a valuable right and that the Settlement authorities ought to have examined the plea of the defaulter for permission to make payment of the transfer price. Again, in Muhammad Afzal v. Muhammad Yusuf (1984 S C M R 296) this Court, while construing paragraphs 2 and 3 of the Scheme, had reiterated :

"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 P L D 1964 S C 536 while construing section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In its absence the penal consequences cannot flow as it is the failure on the part of defaulter which gives power to the, Deputy Settlement Commissioner to resume the property."

In the circumstance the finding of the learned Member, Board of Revenue, that Mst. Amines had not been served nor given proper opportunity was unassailable and not open to interference in the constitutional jurisdiction of the High Court. Nor was the provision of section 27 of the General Clauses Act attracted in the case as the notice had returned unnerved.

5. In the result, the appeal is allowed, the impugned order of the High Court is set aside and the order of the learned Member, Board of Revenue, dated 5‑5‑1975 restored. As none has appeared on the other side, we make no order as to costs.

M. Z. M. Appeal allowed

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