KARAMAT NAZIR BHANDARI J.- Through this petition, the petitioner calls in question the order dated 19-2-1979 passed by Mr. Masroor Ahmad Qureshi, Deputy Settlement Commissioner, Lahore and order dated 28- 11-1983 passed by D.S.C.-V Farid Kot House Lahore (respondent No.2) by which the disputed residential property No. S-xx5-S-44 Kanal Park, Lahore was transferred to respondent No. 1 after presuming that the disputed property has been validly resumed from the present petitioner.
2. The relevant facts as stated at the Bar are that the petitioner applied for transfer of the disputed property on CH Form and the same was transferred to her in 1960/. The transfer price was assessed at Rs. 15, 840/-. An amount of Rs. 2,380/- deposited from the compensation book on 3.8.1965. A sum of Rs. 3, 365/- was paid by the petitioner in cash on 26-12-1966. Apparently the disputed property was resumed from the petitioner on 5-11-1968 on the assumption that the petitioner had not paid the balance price inspire of notice. It seems that the resumption order was passed under settlement Scheme No. VHI. On an appeal by the petitioner, the Additional Settlement Commissioner ordered the deletion of the property in dispute from the auction list on the condition that the petitioner paid Rs. 5000/-. The Petitioner accordingly did so on 24-4-1969. Another amount of Rs. 2000/- was paid in cash on 12-9-1969. It is admitted even by the learned counsel for respondent No. 1 that out of the total price of Rs. 15,840/- the petitioner had paid a sum of Rs.
12,745/- as far back as 5-11-1968. The petitioner's appeal was allowed by the Additional Settlement Commissioner and it was directed that the remaining price shall be paid within 30 days. In the circumstances that followed it seems the balance of the price viz Rs. 3,095/- was not paid within 30 days but it is admitted to have been paid on 15-11-81. The petitioner also paid the settlement fee and other dues for obtaining the transfer order.
3. Respondent No. 1 a real brother of he petitioner's deceased husband alongwkh another brother Bashir Ahmad have also been trying to obtain the transfer of the disputed house and it is claimed that they filed a joint NCH Form, which was withdrawn during the course of proceedings before the Deputy Settlement Commissioner. The learned counsel for respondent No. 1, however, denies the assertion that NCH Form was withdrawn in favour erf the petitioner. As stated and in the events that followed, the Deputy Settlement Commissioner treating the property as available transferred the same to respondent No. 1 on 19- 2-1979. It is also to be noted that even after the so called transfer on 19-2-1979, the Settlement Department continued communicating with the petitioner and in fact had received the balance price of Rs. 3,095/- on 15-11-1981.
4. In support of the writ petition, the learned counsel has submitted that at the time of the order of the Additional Settlement Commissioner dated 26-3- 1970, the petitioner had paid about 80% of the total price and the failure to pay the balance price within 30 days would not entail consequence of automatic cancellation of the property from the petitioner's name or rendering it as available property so that the same could be subsequently transferred to respondent No.1. In support of the contention reliance is placed on section 29 of the Displaced Persons (Compensation and Rehabilitation Act XXVIH of 1958) read with proviso to para 2 and para 17 of the Settlement Scheme No.Vm. Reliance is also placed on the case of Mst. Majidan Beaum vs. Deputy Settlement Commissioner-II and others (1980 Supreme Court Monthly Review 827). It is also contended that under para 34 of the settlement Scheme No.1 the petitioner was entitled to pay the transfer price in 36 equal monthly instalments, and admittedly this statutory benefit was not extended to the petitioner. The learned counsel also referred to paragraphs Nos. 35 and 36 of the same Scheme to show that default in payment of he instalments does not automatically result in cancellation of the transfer and that the law demands strict compliance of the procedure laid down in paragraphs Nos. 35 and 36 of the Scheme before the property could be cancelled.
5. Sh. Anwar-ul-Haq Advocate, the learned counsel for respondent No. 1 on the contrary contended that the petitioner having failed to comply with the appellate order of the Additional Settlement Commissioner dated 26-3-1970 and having not paid the balance price within 30 days, is not entitled to the benefit of para 17 of the Settlement Scheme No.VHI, which was amended/re-cast in 1973. He argued with some vehemence that the order dated 26-3-1970 having attained finality would debar the petitioner from making the payment subsequently and any -payment made beyond the period of 30 days of the order of the Additional Settlement Commissioner dated 26-3- 1970 would not in any manner improve the case of the petitioner. He also referred to document R- I/2 attached with the written statement of respondent No. 1, filed in the court today, to contend that the demand notice issued to the petitioner bears endorsement that the notice was pasted on the door as the petitioner refused to accept the same. The report is dated 3-10-1968 and the sum claimed in this notice is Rs. 10,095/-.
6. Mr. Hamid Ali Mirza, Advocate, the learned counsel for respondent No. 2 is of the view that the benefit of paragraph 17 which was amended on 30-10- 1973 can be extended to the petitioner inasmuch as the property by that time still stood in the name of the petitioner and no formal resumption order had been passed.
7. After hearing the parties at length and perusal of the record, I am of the view that the judgment referred to by the learned counsel for the petitioner clinches the issue. In the reported judgment of the Supreme Court of Pakistan, the property was cancelled by the DSC on the ground that the full price had not been paid. The High Court accepted the write petition and restored the property to the original transferee. In appeal against the judgment of the High Court, the Supreme Court observed and held as under:- "It was then argued that Muhammad Din had made default in paying the balance of the transfer price amounting to Rs. 4,215/- and therefore, the property was rightly resumed from him by the D.S.C on 4-3-1978. The contention has no force for various reasons. Firstly the total price was Rs.
22,800/- and the respondent paid Rs. 18,585 promptly, thus leaving only a balance of Rs. 4,215 for which we are satisfied after hearing the learned counsel for the parties that no proper demand notice was served on him and as such the cancellation of transfer without issuing a proper demand notice on the subject was without lawful authority. Secondly if 'proviso" as added in para. 2 of Settlement Scheme No. VIH on 30-10-1973 (See PLD 1974 Punjab Statutes 83) is read with para. 17 of that Scheme, it is dear that, where in case of transfer of a house, as transferee has paid 25% of the sale price, then if any arrears remain, the same are to be recovered as arrears of land revenue and the transfer on that ground is not to be set aside. The High Court in these circumstances was justified to quash the order of the D.S.C, dated 4-3-1978 for this reason as well. Learned counsel for the petitioner submitted that the aforesaid "proviso" was ultra vires of he powers of the C.S.C.
Because strictly speaking it will tantamount to transfer a property to a transferee without realising any price and at the same time not having any power to cancel the said transfer for default in payment of price. We drew attention of the learned counsel to para. 17 of the Scheme which was a complete answer to his submission inasmuch as it is laid down that the balance could be recovered as arrears of land revenue".
8. In the case in hand, it is admitted that more than 80% of the transfer price had been paid by the time of order of the Additional SettlementCommissioner dated 26-3-1970. It is also admitted by the learned counsel for respondent No. 1 that balance of the price amounting to Rs3,095/- was paid by the petitioner on 15-11-1981 and that nothing is due from her on account of transfer price. It is also on record that the petitioner had paid the settlement fee and other dues as well. On this score therefore, the dictum of he judgment of the Supreme Court is squarely applicable to the facts of the present case.
9. There is also force in the contention of the learned counsel for the petitioner that paragraph No. 34 of the Settlement Scheme No. 1 being couched in mandatory language, the benifit of instalment ought to have been extended to the petitioner and the department having not done so cannot subsequently try to foist any defalt upon the petitioner. If the Department does not comply with law, they cannot in fairness insist on the transferee to strictly abide by the terms of payment.
10. The learned counsel for the petitioner also contended that orders of transfer in favour of respondent No. 1 are forged and fabricated and are the result of conspiracy between respondent No. 1 and some officials of the DSC offence. The contention of course is denied with vehemannee by respondent No. 1.1 need not adjudicate this inasmuch as if the resumption is declared to be illegal then the subsequent orders of 1979 and 1983 automatically fall.
11. In view of he foregoing reasons, I accept this writ petition and declare the order dated 19-2-1979 and 28-11-1983 passed by respondent No. 2 in favour of respondent No. 1 as having been passed without lawful authority and therefore, of no legal effect. The property in dispute Shall be deemed to We been lawfully transferred to the petitioner. There will be no order as to costs.