' This constitutional petition is directed against an order passed revision by the learned Settlement and Rehabilitation Commissioner 2nd October 1972, whereby he allowed the revision application prefer by respondent No, 4 herein against the order of the learned Additional Settlement Commissioner who had refused to revoke the order of cancellation of the transfer documents in favour of respondent No, 4 on the ground that since the cancellation P.T.D. In respect of the property in dispute had been issued in favour of the petitioner.
2. The dispute in this case relates to a shop bearing C.S. No, B-68, Situated in Sanghar town. This was an evacuee property which was sanctioned in October 1964, in favour of respondent No, 4, who gave the highest bid of Rs, 12,100. It would appear that the said respondent deposited his own claim book of the value of Rs, 3,225 and for the balance he deposited the claim books of other persons which admittedly remained throughout with the Settlement Authorities. He, however, did not file any agreement of association and accordingly, after notices were rent to him by post, regarding payment of the balance of the amount, the auction sale in his favour was cancelled on 4th June 1965, by the Deputy settlement Commissioner and the said property was transferred to the petitioner on his N.S.C. Form under Scheme No, VIII on 20th October, 1966. The petitioner thereupon paid the entire transfer price for the property in question and P.T.D. Was issued in his favour on 8th July, 1967. After the issuance of the P.T.D., respondent No, 4 approached the Deputy Settlement Commissioner for withdrawal of the order of cancellation of transfer in his favour on the ground that no notice had been issued to him prior to the cancellation. The Deputy Settlement Commissioner, however, rejected his representation mainly on the ground hat P.T.D. Having been issued in favour of the petitioner herein, no power remained with the Deputy Settlement Commissioner to review or modify earlier order. The respondent went up in appeal against the aforesaid order to the Additional Settlement Commissioner but the appeal was unsuccessful and the Additional Settlement Commissioner agreed with the learned Deputy Settlement Commissioner that the Settlement Authorities had become functus officio on account of the issuance of the P.T.D. In favour the petitioner herein. Against the said order, respondent No, 4 filed mission application to the Settlement Commissioner, who held that the notices to the respondent No, 4 had been sent by ordinary post, not by registered post, acknowledgement due, as required by law, further as there was no evidence that the said notices had been grieved by the said respondent, the cancellation order dated 4th June 65, was not maintainable. The learned Settlement Commissioner handed the case to the Deputy Settlement Commissioner for examination he contentions whether respondent No, 4 had deposited the claim books other claimants, as contended by him, and further whether the petitioner in was in possession of the property in question on or before the 20th December, 1958. On both these points the learned Deputy Settlement Commissioner had held in the affirmative but still maintained the transfer in our of the petitioner on the ground that respondent No, 4 was not prepare pay in cash the outstanding dues relating to the property, which he was sired to pay, as no agreements of association had been filed by him and herm ore the time for filing such agreements had elapsed. On appeal the learned Additional Settlement Commissioner, the order of the Deputy settlement Commissioner was maintained. Against this order, a revision filed before the Settlement Commissioner who has passed the punned order. In that order, the learned Settlement Commissioner held that as according to the order of the Settlement Commissioner dated 2nd October 1969, the cancellation order dated 4th June 1965, whereby the auction sale in favour of respondent No, 4 was revoked was legally not maintainable, the transfer under Scheme No, VIII of the property in question in favour of the petitioner obviously could not also be maintained and hence has to be set aside.
3. I have heard Mr. K. A. Ghani, the learned counsel for the petitioner, and Mr. Rashid-ud-Din, the learned counsel who appeared for respondent No,4.
4. Mr. K. A. Ghani conceded that cancellation of a transfer under the Settlement Law for failure to pay instalments when due or any arrears falling due could be legally done only if due notices calling upon the defaulter to pay the sums dues as also notice of cancellation of transfer were sent to the defaulter. He submitted that in the instant case, such notices were sent to respondent No, 4 as has been held by the Settlement Commissioner in his order dated 2nd October 1969.
5. Mr. Rashiduddin, the learned counsel for respondent No, 4, on the other hand, submitted that the learned Settlement Commissioner had held that these notices were not in accordance with the law, as the notices were required to be sent by registered post, and accordingly held the cancellation order to be not maintainable. The learned counsel other submitted that this order of 2nd October, 1969 was not challened by the petitioner and has accordingly attained finality. This would appear to be the position. Even otherwise, no exception can be taken against this finding of the learned Settlement Commissioner as under section 27 of the General Clauses Act, a presumption regarding due service by post will arise only in these cases where the service is effected through registered post. In the instant case, admittedly, 'no notices were sent by registered post, and since receipt of the notices was denied by respondent No, 4, the learned Settlement Commissioner rightly, came to the conclusion that there was no evidence regarding due service of the required notices upon respondent No, 4 and consequently the cancellation of the auction sale in his favour was not maintainable.
6. No doubt, respondent No, 4 was required at least when he applied to the Deputy Settlement Commissioner for revocation of the order of cancellation of his transfer documents to pay the outstanding dues, and it would appear from the order of the Deputy Settlement Commissioner, dated 13th June, 1969, that he was not prepared to pay in cash the outstanding dues, but since the first order of cancellation, dated 4th June, 1965, had been set aside by the learned Settlement Commissioner, by his order of 2nd October, 1969, and no fresh order of cancellation of transfer had been made, it was open to the Settlement Commissioner at the time of hearing the revision to permit respondent No, 4 to pay up the balance of the dues. ,Mr. Rashiduddin stated at the Bar that respondent No, 4 has since paid up all the dues in respect of the property and that the P. T. D. Has been issued to him.
7. In the circumstances, the order of the learned Settlement Commissioner would appear to suffer from no legal infirmity and cannot be interfered with in the exercise of the Constitutional jurisdiction of this Court. The petition is accordingly dismissed with costs.