The property in question is a plot measuring 2 Marlas 56 sq. Ft. In Mohallah Resulpura, Gujranwala.
One Muhammad Sharif was in occupation of this plot and had already built a house on it when he applied for transfer of this plot on 18-11-1959 under Settlement Scheme No.VI. Subsequently he sold the superstructure to Ilam Din and entered into a deed of association with Ilam Din. On 7-6-1965 the property was transferred to Ram Din by the Deputy Settlement Commissioner, Gujranwala. Ilam Din was asked to pay Rs.594 as the transfer price of this property on 21-1-1966. Ilam Din died on 7- 7-1966. A demand notice of the abovementioned amount is said to have been served on Ilam Din on 22-4-1968. No payment was made by Ilam Din and on I-7-1968 an order was passed resuming the property. On 25-7-1968 the order of cancellation was served on Ram Din, and the very next day the property was put to auction the respondent Nawab Din offered the highest bid of Rs.700. Within 5 days of the auction the transfer price of Rs.594 was deposited in the bank with the permission of the Deputy Settlement Commissioner. The petitioner applied for restoration of his P.T.D. And a Deputy Settlement Commissioner actually recommended it in a note recorded in February, 1970, but the Additional Settlement Commissioner did not agree. At that time respondents bid had not been accepted but subsequently on 25-11-1970 P.T.D. Was granted to the respondent. The petitioner, who is a daughter of Ram Din went in revision to the Settlement Commissioner saying that her father had died on 7-7-196E and that the service of notices on him in 1968 is bogus. The Settlement Commissioner dismissed the revision petition on 13-3-1976 rejecting the death certificate as doubtful on account of certain overwriting on and also on account of the fact that Ilam Din had himself made the payment on 1-8-1968. This brought the petitioner to the High Court
2. The case of the petitioner is that Ilam Din her father had actually died on 7-7-1966 and that this fact was correctly mentioned in the Register of Deaths of year 1966 and that the learned Settlement Commissioner had no reason to reject this document. As regards the payment made on 1-8-1968, it was made only on behalf of Ham Din b~ the petitioner, as the petitioner had not been brought on record then.
3.The learned counsel for the petitioner states that even if it I assumed that Ram Din was alive, the department is guilty of violating the mandatory provision of para. 2 of Settlement Scheme No.VIII as n notice was sent by registered post acknowledgment due. He has contender that in view of the violation of the mandatory provisions of para. 2 the notice itself will be illegal and any further proceedings based of that notice will be void. In this connection he has referred to the case of Muhammad Latif and 7 others v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and others 1982 CLC 490. The learned counsel has also produced a certified copy of the order of the Court in the case of Abdul Hakim v. Deputy Settlement Commissioner etc. W.P.
No.238/R of 1976 disposed of on 28-10-1985.
4. It is not denied that the notice was not served in the manner provided for in para. 2. The importance of this procedure stands out in the present case with greater emphasis than perhaps in other cases. The requirement of para. 2 is that the notice be served through registered post acknowledgment due and the acknowledgment due receipt be pasted on the file when received back. In the present case the order of resumption was passed on 1-7-1968 but was communicated t Ilam Din on 25-7-1968. The auction was held the very next day i.e 26-7-1968. Had the notice been given to Ilam Din through post, the receipt of acknowledgment due by the department, and, its pasting o the file could give a margin of few days to the defaulter so as to make the payment. This payment is visualised in para. 3-A where a default can apply and make payment within 30 days of the order of resumption In the present case the notice appears to have been served in perso on Ram Din on 25-7-1968 and the property was put to auction on 26-7-1968. There appears to be no reason for this undue haste. Coupled with this is the important fact that within six days from 25-7- 1968 the total price was paid on behalf of Ilam Din or by Ram Din. Himself, in case he is assumed to be alive on that date. This payment was made long before the bid of Nawab Din was accepted. The Deputy Settlement Commissioner had actually recommended the restoration of the P.T.D. Of Ram Din in a note recorded on 5-2-1970 and he has clearly mentioned that bid had not been confirmed by then. This note does no appear to have been considered by the Settlement Commissioner who rejected the revision petition on 13-3-1976 on the ground that the death certificate could not be accepted as there was overwriting on it.
5. The question of death of Ilam Din also has not received the attention it deserved. The Settlement Commissioner could have asked for the Register of Deaths if he found that the death certificate was unacceptable on account of overwriting on it. He could have asked for other evidence in this regard and in fact affidavits were produced by the petitioner regarding death of her father Ilam Din. The Settlement Commissioner makes no reference to the affidavits but has been persuaded by the challan form of 1968, to hold that Ilam Din was alive on that date whereas it might well be true that money was deposited only on his behalf by his daughter Sughran Begum. The disposal of the question of death of Ham Din on 7-7-1966 can only be described as slipshod disposal of a very important question.
6.In view of the above considerations the orders of resumption and the subsequent orders cannot be sustained. These orders are, A therefore, of no legal effect. The writ petition is allowed. There shall be no order as to costs.
H. B. T.Writ issued.