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Writ Petition No. 1105 of 1967, decided on 26th April, 1986.

‑‑ S. 24‑Notice for payment of outstanding price‑Auction- purchaser depositing one‑third price initially and taking possession of land‑Outstanding price not deposited by auction‑purchaser Notices, held, clearly satisfied requirements of law and were duly served‑Auction‑purchaser's appearance before Collector, in pur suance of such notice requesting for instalments, would belie objection of non‑service of requisite' notice‑Auction‑purchaser in spite of undertakings failed to pay balance despite several notices Plea of validity of show‑cause notice would not merit consideration in view of undertaking of petitioner/purchaser to pay the balance price within specified time but failing to fulfil same‑‑Grievance of non‑hearing would not be sustainable in circumstances.

‑‑ Art. 199‑Colonization of Government Lands (Punjab) Act (V of 1912), S. 24‑Constitutional . jurisdiction, exercise: of‑Auction purchaser's persistent refusal to pay balance price noted by Board of Revenue who declined to grant relief because of ‑conduct of such auction‑purchaser‑Same conduct of petitioner's noticed by High Court while granting status quo on condition of payment of balance amount which such petitioner undertook to pay bait failed to pay resulting in withdrawal or status quo order‑Such conduct of

petitioner, held, would not entitle him to discretionary relief in constitutional jurisdiction of High Court.

‑‑ Art. 199‑Colonization of Government Lands (Punjab) Act (V of 1912), S. 24‑Constitutional jurisdiction, exercise of‑Resumption of land‑Validity of‑Resumption of land, would not suffer from illegality muchless any jurisdictional defect in view of petitioner's conduct of persistent default despite opportunities granted to make requisite payment‑Petition dismissed in circumstances.

Mian Abdus Sattar Saleem for Petitioner.

Tassaddiq Hussain Jillani. A. A.‑G. for Respondents Nos. 1 to 3.

Nasim Muhammad for Respondent No. 4.

Dates of hearing : 16th and 22nd December, 1985.

This order will dispose of the following four writ petitions as common questions of facts and law are involved in all of them :‑

(1) W. P. No. 1105 of 1967. (2) W. P. No. 1106 of 1967.

(3) W. P. No. 1107 of 1967. (4) W. P. No. 1108 of 1967.

2. Facts necessary for the disposal of these petitions, briefly stated, are that four lots of land bearing Nos. 1, 2, 4 and 6 situate in Chak No. 123/7‑ER, Tehsil Khanewal, District Multan (now District Khanewal) were purchased by the petitioners in an open auction held in 1955. Details of the lots purchased by the petitioners in each petition are as follows :‑

"(i) Lot No 1 measuring 5 acres in Square No. 46 was purchased by Allah Bakhsh, petitioner in W. P. No. 1105‑1967.

(ii) Lot No. 2 measuring 4 acres in Square No. 47 was purchased by Allah Bakhsh and Noor Muhammad, petitioners in W. P. No. 1107 1967.

(iii) Lot No. 4 measuring 2 acres and 3 Kanals in Square No. 47 was purchased by Allah Bakhsh, his brother Waryam and three others, petitioners in W. P. No. 1106‑67.

(iv) Lot No. 6 measuring 8 acres in Square No. 60 was purchased by Allah Bakhsh petitioner in W. P. No. 1108‑67."

3. Admitted position is that the petitioners had paid only 1/3rd of the auction price in each case at the time of auction and took over possession of the lots in dispute but failed to deposit the balance price. Their lots were consequently cancelled by the Collector vide order dated 25‑7‑1960. Appeal against this order was dismissed by the Additional Com missioner but the petitioners succeeded before the learned Member (Colonies), Board of Revenue, who accepted their revision petitions by order dated 8‑3‑1961 on the ground that the breach alleged was rectifiable. Notice issued to the petitioners did not fix reasonable time therein for rectification. Owing to this defect in the notice, resumption order passed by the Collector was set aide and the Collector was directed to give a proper notice to the petitioners in terms of section 24 of the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred to as the Act).

4. After the remand, fresh notices under section 24 of the Act were issued to the petitioners but they continued to remain defaulters with the result that their lands were once more resumed by the Collector vide order dated 11‑2‑1965. Petitioners tiled. appeals before the Additional Commissioner but without any success. They then preferred revision petitions before the learned Member, Board of Revenue. It appears that part of the land in dispute had, in the meantime, been allotted to respon dent No. 4, who was impleaded as respondent in the revision petitions. It was urged by the petitioners before the learned Member that the resumption of the lands had been ordered in contravention of the mandatory provisions of section 24 of the Act ; that non‑payment of the balance amount was rectifiable breach and the petitioners should have been allowed to deposit the amount and that no notice was served on the petitioners. Learned Member after hearing the learned counsel for the parties found that "a regular and legal notice under the Act has been served. The petitioners were given an opportunity of being heard in person and when they appeared before the Collector on 30‑10‑1964, they made categorical statements that they were prepared to make the payments. The Collector agreed to accept the payments with penal interest and a fine of Rs. 1.00. The petitioners did not pay this amount, and a number of notices were sent. The notice was served on Baqar Ali who has been established to be the brother of the petitioners Allah Bakhsh and Waryam. Uptil today the petitioners have not made any payment and they are thus not before the Board of Revenue with clean hands. The land was sold in 1955, after making the advance payment, they took the possession of the land, and since then they are enjoying the produce of the land, without payment of any single penny to the State." Learned Member also took note of Condition No. 1 I of the Statement of Condi tions governing the sale of the land in dispute whereunder the Collector was empowered to rescind the contract in case of default by the purchaser in payment of any sum due from him. Learned Member came to the conclusion that the petitioners did not intend to make the payment but were trying to hold on the land on one pretext or the other without making any payment. In this view of the matter, learned Member, dismissed the revision petitions vide order dated 17‑5‑1967.

5. Feeling aggrieved with the aforementioned orders, petitioners approached this Court in writ jurisdiction.

6. I have heard the learned counsel for the parties and the learned Assistant Advocate‑General for the State. Learned counsel for the petitioners has contended that non‑payment of the balance price was a rectifiable breach for which a notice in terms of the proviso to section 24 of the Act should have been given to the petitioners requiring them to pay the outstanding amount within a period of not less than one month but no such notice was given to them and instead a show‑cause notice dated 30‑9‑1964 (copy Annex. E') was issued to the petitioners asking them to appear on 30‑10‑1964 to. show cause as to why their lots be not resumed. Learned counsel pointed out that this notice was similarly worded as was the previous notice which was found deficient by the learned Member, Board of Revenue, vide his order dated 8‑3‑1961 and the case was remanded with the direction that a proper notice in terms of the proviso to section 24 fixing a reasonable time being not less than one month for rectifying the breach be given to the petitioners. Learned counsel further contended that even the notice Annex. 'E' was not given by the competent authority, namely, the Collector and was issued by the S. D. O.. Khanewal‑ who was not authorized to issue notice under section 24 of the Act. Support for this latter contention was sought to b: drawn from the notification dated 13‑10‑1964 (Annex. G') whereby the then Sub‑Divisional Officer, Khanewal was empowered, inter alia, under, section 24(a) to impose a penalty not exceeding Rs. 100. It was argued that the show‑cause notice having been issued by an incompetent authority, order of resumption passed by the Collector could not be sustained.

7. Learned Assistant Advocate‑General, on the other hand, argued with reference to the original record that proper notice permitting the petitioners to rectify the breach of non‑payment was issued to them and that the petitioners sought and were granted a number of opportunities to pay the amount due from them but they deliberately persisted in their default with the result that their lots were resumed by the Collector.

8. In order to appreciate the respective contentions of the learned counsel for the parties, 1 have examined the original files of all the four lots. Perusal of these files shows that after the remand of the case by the learned Member, Board of Revenue, vide his order dated 8‑3‑1961, notices under section 24 of the Act were issued on 6‑2‑1964 requiring the petitioners to pay the auction price within one month of the receipt of the notices and to produce proof thereof on 10‑3‑1964. These notices are available at pages 71 and 73 of the file pertaining to Lot No. 1 and are shown to have been issued in respect of all the four lots and signed by the Collector, Lower Bari Doab Colony, Khanewal, District Multan. These notices are also shown to have been served through affixation. Allah Bakhsh and Waryam petitioners then appeared on 10‑3‑1964 and sought adjournment for producing other co‑purchasers. On the adjourned dated. 25‑3‑1964, Allah Bakhsh, Waryam and Rajad petitioners appeared alongwith their counsel and made statements wherein they explained the circumstances under which they were earlier unable to pay the balance amount and stated that they now wanted to pay the amount which may be permitted to be paid in three annual instalments. There are also available on the record two applications dated 9‑3‑1964, one in respect of Lots Nos. 1 and 6, and the other regarding Lots Nos. 2 and 4. These applications were made by Allah Bakhsh petitioner praying that the balance amount be not recovered in lump sum and be allowed to be deposited in two equal annual instalments. Matter appears to have been placed before the Collector, Multan who after hearing Allah Bakhsh petitioner on 15‑7‑1964 ordered that the balance amount plus 9 per cent. penal interest be paid. Thereafter, notices were issued to the petitioners requiring them to pay the balance price on 28‑8‑1964. Allah Bakhsh petitioner made four separate applications, one for each lot, on 28‑8‑1964 before the S. D. O., Khanewal, requesting for 2 months' time for paying the balance auction price. Matter was once more put up before the Collector. Multan, who by orders dazed 3‑9‑1964, passed separately on each file, turned down this request and directed that proper notice of resumption under section 24 of the Act be served on the petitioners. It was presumably in pursuance of this direction that the notice dated 30‑9‑1964 (Annex. E'), legality whereof has been questioned by the learned counsel for the petitioners, was issued. In fact, I find from the record that the notices in Lots Nos. 1 and 2 were issued on 30‑9‑1964 and. in the other two lots, notices were issued on 10‑10‑1964. These were the resumption notices whereby petitioners were called upon to show cause in the case of Lots Nos. 1 and 2 on 30‑10‑1964 and in the case of Lots Nos. 4 and 6 on 11‑11‑1964 as to why the lots in dispute be not resumed. Allah Bakhsh appeared on 30‑10‑1964 in the case of Lots Nos. 1 and 2 and made a statement chat the petitioners were ready to pay the balance auction price and sought permission to deposit the same which permission was granted to him on 6‑11‑1964. He made a similar statement regarding Lots Nos. 4 and 6 on 11‑11‑1964 and permission was granted to him on the same day. He further undertook to pay the entire balance amount of Lot No. 4 on his own behalf as also for his co‑purchasers. Notwith standing these commitments, petitioners did not pay the balance price of the lots in dispute. The departmental authorities gave three more notices but there was no response from the petitioners. A comprehensive note containing the entire background was then put in each case on 27‑1‑1965, copy of which is annexed with the written statements. It was stated in this note that the petitioners despite notices and undertakings were avoiding to pay the balance amount and, as such, their lots were liable to be resumed. Lots were accordingly resumed by the Collector on 11-2‑1965.

9. The aforementioned resume of facts based on perusal of the original record clearly shows that the notices were issued to the petitioner on 6‑2‑1964 requiring them to deposit the balance auction price up to 10‑3‑1964. These notices clearly satisfied the requirements of the proviso to section 24 which lays down that "if the breach is capable of rectification, the Collector shall not impose any penalty or order resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being lea than one month to be stated in the notice and the tenant has failed to comply with such notice". These notices were duly served and some of the petitioners including Allah Bakhsh appeared on 25‑3‑1964 and made statements that they were ready to pay the balance price through instalments. Allah Bakhsh petitioner also moved , applications dated 9-3‑1964 requesting for permission to make the payment in two equal instalments. In the presence of these facts, it cannot be believed that the petitioners were not served with the notice dated 6‑2‑1964 requiring them to rectify the breach. It may be pertinently pointed out that Allah Bakhs petitioner was the exclusive purchaser of Lots Nos. 1 and 6 and co‑purchase with others of Lots Nos. 2 and 4 and was, therefore, interested in all the lots.

10. As regards the argument of the learned counsel for the petitioner that the show‑cause notice dated 30‑9‑1964 (Annex. 'E') was not issued by the competent authority, suffice it to observe that, as noted above, the said notice was issued under the orders of the Collector. Even other wise, section 24 of the Act only requires that before ordering the resump tion of the tenancy, the Collector shall give the tenant "an opportunity to appear and state his objection." As stated above, petitioners were undoubtedly given the show‑cause notices on 30‑9‑1964 and 10‑10‑1964 and in pursuance of these notices, Allah Bakhsh petitioner appeared on 30‑10‑1964 and 11‑11‑1964 and stated that the petitioners were ready to pay the balance amount. His statements were recorded on the files and he was allowed to deposit the amount. No doubt, Allah Bakhsh petitioner appeared before the S. D. O., Khanewal and not before the Collector, Multan, but this omission is of no consequence because the petitioners had no objection to the payment. In fact, Allah Bakhsh petitioner expressed his willingness on 30‑10‑1964 and 11‑11‑1964 to pay the balance amount. It is not in dispute that notwithstanding these undertakings, petitioners did not pay the balance price despite several notices issued thereafter. Viewed in this background, argument of the learned counsel for the petitioners regarding validity of the show‑cause notices does not merit any serious consideration.

11. In view of the foregoing discussion, it is quite clear that the petitioners were not only given opportunities to rectify the breach by paying the balance amount but they were also afforded opportunity of hearing before the actual resumption but they failed to pay the balance C price. As the liability to pay the balance amount was accepted and even an undertaking was given in writing to pay the same, petitioners cannot make any legitimate grievance of non‑hearing by the Collector.

12. It is not denied that the petitioners paid only 1/3rd of the auction price on the spot and took over possession of the land in dispute. Thereafter, they have not paid a single penny till today. This conduct of the petitioners was taken note of by the learned member, Board o Revenue, who declined to interfere with the order of resumption in revisional jurisdiction. It may also be observed that in order to show their bona fides, it was canvassed on behalf of the petitioners at .the motion hearing that they have always been ready and willing to pay the balance amount of the sale price. It was, therefore, directed by this Court while admitting these petitions on 19‑7‑1967 that "the petitioner should deposit the arrears due from him in this Court within a fortnight from today subject to all just exceptions", and status quo was also ordered to be maintained, Petitioners, however, failed to deposit the arrears which fact was admitted by the learned counsel and consequently order of status quo was with drawn by this Court vide order dated 23‑1‑1968. This conduct of the petitioners also disentitles them to the grant of discretionary relief in writ jurisdiction.

13. Upshot of the above discussion is that the impugned orders of resumption of the lots to dispute do not suffer from any illegality much. less any jurisdictional defect and, in any case, in view of the petitioners' conduct of persistent default despite opp3rtunities granted to them to make the payment, it is not a fit case for interference in constitutional jurisdiction of this Court. These petitions are, therefore, dismissed but there shall be no order as to costs in the facts and circumstances of the case.

A. A. Petition dismissed.

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