1. ' This is a petition under Article 199 of the Constitution whereby the order dated the 11th May 1974, passed by the Deputy Settlement Commissioner, Quetta, has been impugned by the petitioner.
2. The material facts giving rise to this petition are: ' Respondent No. 1 who is a local is in possession of a plot of land bearing Khasra No, 7496, measuring 6006 sq. Ft., and according to the finding of the Settlement Department, has made some constructions thereon. In the year 1965, respondent No. 1 applied for transfer of the plot of land on 'P' Form and the Deputy Settlement and Rehabilitation Commissioner, Quetta by an undated order found him to be entitled to the transfer of the same at the assessed price plus 50 per cent.
2. ' The Deputy Settlement Commissioner calculated the price of the plot of land at Rs, 8,250 by his order dated the 18th March 1965. According to the petitioner, a demand notice (Annexure `E') was issued to respondent No. 1 on the 20th March 1975, which was allegedly received by him and in token whereof he allegedly put his signature on the despatch register. However, respondent No. 1 had denied receipt of the notice. By this demand notice, respondent No. 1 was directed to arrange for payment of transfer price of the plot of land, being Rs, 8,250 within a fortnight, failing which he was informed that the plot of land would be put to auction in the forthcoming auction. On the failure of respondent No. 1 to pay the price according to the terms of notice, the plot of land was put to public auction and the bid of the petitioner of Rs, 8,400 being the highest, was accepted by the Additional Settlement Commissioner and it was confirmed on the 12th May 1966. However, in the year 1969, when respondent No. 1 came to know of this transfer, he preferred an appeal to the Additional Settlement Commissioner, Khairpur Quetta and Kalat Divisions at Sukkur, Camp Quetta but the same was dismissed by him on the 30th June 1969. Thereafter, respondent No. 1 filed a Constitutional Petition in this Court which was allowed by the Court by its order dated the 29th July 1971, and the order of the Additional Settlement Commissioner was set aside and the case was remanded to him to determine the question whether the notice as shown in the comments of the Settlement Department was served upon the petitioner or not and the Additional Settlement Commissioner was further directed that in case it was established that no notice was served on respondent No. 1, the transfer in favour of petitioner should be treated as cancelled and the transfer in favour of respondent No. 1 should be treated as restored and that he should be called upon to pay the transfer price within a reasonable time and in case he failed to pay the price within that period or within such period as might be extended from time to time, the position prevailing on the date of the order would be maintained. Since this order was not implemented by the Additional Settlement Commissioner, respondent No. 1 filed another Constitutional Petition, being Petition No, 67 of 1971, which was allowed by his Lordship Dorab Patel, J. (now a Judge of the Supreme Court of Pakistan) and a direction was given to the Deputy Settlement Commissioner to hold an enquiry on the question whether the petitioner had received the statutory notice for payment of transfer price of the plot of land in dispute and he was further directed that after holding the enquiry, he should carry out order of this Court dated the 29th July 1971. The Deputy Settlement Commissioner was further directed to complete the proceedings by the 30th November 1973. However, the case was taken up by Mr. Faiz Mohammad Khan, the then Dputy Settlement Commissioner on the 1st April 1974 and was adjourned to the 11th April 1974 as the despatch register of the year of 1965 was not available and was taken away by the Special Police, Quetta who had not produced the same though summoned by the Deputy Settlement Commissioner. It may be mentioned here that the Deputy Settlement Commissioner has explained the reasons for not carrying out the order of this Court in his order dated the 1st April 1974 (Annexure M). However, the case was not taken up even on the 11th April 1974, but was taken up on the 11th May 1974 by another Deputy Settlement Commissioner, namely, Mr. Abdul Rashid Khan who had then succeeded Mr. Faiz Mohammad Khan and who by his order of the same date found that the demand notice was not served on respondent No. 1. Therefore, in pursuance of the order of the High Court, he directed respondent No. 1 to pay the price of the property in lump sum by the 31st of May 1974 which has been paid by him within the time allowed by the Deputy Settlement Commissioner.
3. ' It may be useful to reproduce the material part of the order of the Deputy Settlement Commissioner which reads as follows: "A comparison of the signatures of the petitioner affixed on the Despatch Register of the Deputy Settlement Commissioner's Office with those available on the record of the case has revealed that there is a significant difference in them. It has also been observed during the course of inquiry that the procedure laid down in Chapter II (pages 420-21) of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958 for the issuance of Demand Notice was not followed in letter and spirit and, instead, a new method of obtaining the signatures on office Despatch Register adopted.
4. In these circumstances I have come to conclusion that the Demand Notice was not served on the petitioner."
3. I have heard Mr. Hanafi, the learned Advocate for the petitioner and Mr. S. H. Jafri the learned Advocate for respondent No. 1. The Settlement Department is not defending the petition.
4. Mr. Jafri has raised before me two-fold contentions and they are:
(i) That the petitioner was not given due hearing by the Deputy Settlement Commissioner, as much as his request to examine the clerk who had made the entry in the despatch register and who had delivered the notice to respondent No. 1 was completely Ignored and his further request to send the despatch register to a handwriting expert for examination was also turned down, and, therefore, the order is vitiated by violation of the principles of Natural Justice.
(ii) That the order passed by his Lordship Dorab Patel, J., dated the 28th September 1973 has not been complied with as his Lordship had ordered an enquiry and not the comparison of the signatures.
5. However, I find no merit in both the contentions of the learned counsel for the petitioner.
6. Mr. Abdul Rashid Khan who was holding the post of Deputy Settlement Commissioner on 1-4- 1965 and 11-4-1965, and who is presently Secretary, Governor's Inspection Team, Baluchistan, has filed a counter-affidavit on behalf of respondent No, 2 stating therein that Chaudhry Mohammad Arshad, Advocate who was then appearing before him on behalf of the petitioner did not press before him that the disputed signature of respondent No. 1 on the despatch register should be sent to a handwriting expert for comparison with the admitted signature of respondent No. 1 and that Chaudhry Mohammad Arshad also did not make any request to him to summon the clerk who had made the entry in the dispatch register. Not only Mr. Abdul Rashid Khan has denied the allegations made by the petitioner but respondent No. 1 has also denied the same in his counter-affidavit. I may mention here that respondent No. 1 had filed his counter-affidavit and supplied a copy thereof to Mr. Hanafi, as admitted by the latter but the same was not available on the record of the Court.
5. Therefore, I allowed him to place a copy thereof on the record. However, in the absence of any application on the record of the Settlement Department to support that any such request as alleged now, was made before the Deputy Settlement Commissioner on 1-4-1974 or thereafter, it is not possible to accept the bare statement of the petitioner or his Advocate who was appearing before the Deputy Settlement Commissioner, particularly when the same have been controverted by an officer who is no more in the Settlement Department and has had no personal interest in the matter. In any case, if such a request was made and not acceded to by Mr. Abdul Rashid Khan, nothing prevented the petitioner to repeat his request at least after the 11th April 1974 or on the 11th May 1974 when the matter came up before another Deputy Settlement Commissioner, and it is not the case of petitioner that he made any such request before Mr. Faiz Mohammad Khan, the Deputy Settlement Commissioner who passed the impugned order. Therefore, the petitioner's grievance is not legitimate.
6. ' The comparison of disputed signature of a person with his admitted or proved signature by Court or jury or a competent witness called for the purpose is a lawful mode of proof in view of the provisions of section 73 of the Evidence Act. No doubt, it is unsatisfactory and dangerous to stake a decision in a case where there is a direct conflict of testimony between parties as to general character of a signature, on the correct determination of the signature by mere comparison with the admitted signature, especially without the aid in evidence of microscopic enlargements or any expert advice as held by the Privy Council in Kassarbai v. Jethabhai Jivan (1) but in the instant case there is no such conflict and in the absence of any positive evidence to the contrary and in the absence of any effort on the part of petitioner to prove that the disputed signature on the despatch register was of respondent No. 1, the opinion of the Deputy Settlement Commissioner on the genuineness of the disputed signature is not only according to law but also no fault can be found with it on the authority of the Supreme Court of Pakistan in S. M. Zahir v. {{FOOT NOTE}}
(1) AIR 1928 P C 227 {{FOOT NOTE}} ' Pirzada Fazal All Ajmeri (1) wherein his Lordship Anwarul Haq, J. Observed:- "As to the pronote and the receipt having become disputed documents, it is true that it would have been preferable for the learned trial Judge to examine expert evidence in this behalf, but there is no rule of law that this must be done in every case."
7. ' There are several other circumstances, which if taken into consideration, make it unbelievable that respondent No. 1 had received the notice by signing the despatch register. I have examined the despatch register. There are more than three thousand entries therein which show that communication were always made by post. The learned Advocate for the petitioner has been able to point out to me only seven entries in the despatch register out of more than three thousand entries therein where some person or the other appears to have received some letter, copy of the order or leave account etc. By signing the despatch register, and the entry in respect of respondent No. 1 is one of these seven entries. The efore, it will be seen that in the case of respondent No. 1 an unusual method of service of notice was adopted which B at least throws doubt on the claim of the petitioner that notice was received by respondent No. 1. The entry in respect of respondent No. 1 is in the green ink and his alleged signature is also in the same ink while it is not so in respect of many of the seven entries. This again creates a sort of doubt as to genuineness of the signature of respondent No. 1. Moreover, I have also compared the disputed signature of respondent No. 1 with his signatures on his applications available on the record of the Settlement Department. I have found marked difference between the disputed signature and the signatures on the applications.
8. The character of several letters of disputed signature is different from his admitted signatures on the record. Further there is one more circumstance which if taken into consideration, makes it quite doubtful whether respondent No. 1 had at all received the notice as alleged and it is this that the order determining the price was passed on the 18th of March 1965 and it is alleged to have been received by him on the 20th March 1965 by signing the despatch register. It is not shown when and how he came to know of the order or the notice. Tne despatch register could not have been taken to him for obtaining his signature thereon. It means that respondent No. 1 must have visited the office of the Deputy Settlement Commissioner to obtain the alleged notice. All this would show keenness on his part and if he was so keen, he would have naturally paid the price as promptly as he did after the passing of the order impugned in the petition. I am therefore, unable to accept the contention of the petitioner that he was not given due hearing and as such or otherwise, the principles of Natural Justice have been violated.
9. ' This brings me to the second contention of the learned counsel for the petitioner that the Deputy Settlement Commissioner failed to carry out the direction of his Lordship Dorab Patel, J. As he only compared the signatures which does not satisfy the requirements of 'enquiry' as directed by his Lordship. According to the learned counsel for the petitioner, the order passed by Ghulam Rasool, J.
10. On the 29th July 1971 in the first petition which gave direction to 'determine' whether the notice was served on respondent No. 1 or not, was modified by the order of his Lordship Dorab Patel, J. Who had directed the Deputy Settlement Commissioner to hold an 'enquiry' on the question whether the petitioner had received the statutory notice for {{FOOT NOTE}}
(1) 1974 SCM R 490 {{FOOT NOTE}} ' payment of the transfer price of the property. It is, however, agreed by Mr. Hanafi, that the Deputy Settlement Commissioner, in the absence of any direct evidence could 'determine' the question of service of the notice on respondent No. 1 by comparing his disputed signature on the despatch register with the admitted signatures. Further, it appears to me that his Lordship Dorab Patel, J. Did not intend to modify the order of Ghulam Rasool, J. By the use of a different word and the nature of direction with regard to the question of service of the notice on respondent No. 1 under both the orders remained the same, and I am not inclined to make any such distinction in the two orders as convassed before me by the learned Advocate for the petitioner.
11. ' However, the direction of his Lordship Dorab Patel, J. Was to hold enquiry on the question whether the petitioner had received the 'statutory' notice for the transfer price of the property in dispute.
12. Therefore, the question is whether the alleged notice dated the 20th March 1965 could be said to be the statutory notice.
13. ' It is therefore, necessary to examine the relevant provisions of the Settlement Scheme No, VI and the Displaced Persons (Compensation and Rehabilitation Act, 1958). Under paragraph 5 of the Settlement Scheme VI, the Deputy Settlement Commissioner was required after he was satisfied that the applicant had raised permanent construction on the building site to communicate his order to him in form as in Appendix IX (meant for locals) of the Settlement Scheme No, I, which provides payment of the property transferred to locals by monthly instalments.
14. ' It is the case of respondent No. 1 as well as the finding of the Deputy Settlement Commissioner that no such appendix was issued to respondent No. 1. Moreover, under paragraph 22 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act of 1958 respondent No. 1 was entitled to pay the price within one year in 12 equal monthly instalments, and under paragraph 24 of the Schedule as substituted by Displaced Persons Laws Amendment Ordinance, 1964 (Ordinance XIII of 1964), if respondent No. 1 had failed to pay two consecutive instalments then the Deputy Settlement Commissioner could call upon him to pay up the arrears within thirty days together with such interest as might be determined by him and it was only after he had failed to comply with such a notice that the transfer of the property to him was liable to cancellation. But, in the present case, the alleged notice, even if it is assumed for the sake of argument, was served on respondent No. 1 was in utter disregard of the provisions of paragraphs 22 and 24 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
15. ' It will be useful to reproduce the material parts of the provisions in paragraphs 22 and 24 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, herein below:- "(22) any amount payable by a non-claimant displaced person or a local in respect of any property transferred to him shall be paid by him within one year in 12 equal monthly instalments.
(24) If any person to whom the benefit of payment by instalments has been granted under this Schedule fails to pay two consecutive instalments or does not pay the amount due from him in accordance with the terms and conditions on which any property has been transferred to him, the Chief Settlement Commissioner or an officer authorised by him in this behalf may give such a person a notice to pay up the arrears within 30 days together with such penal interest as may be determined by the Chief Settlement Commissioner or such officer, failing which the transfer of the property to such person shall be liable to cancellation and he shall be liable to ejectment."
16. ' It will also be of advantage if the contents of impugned notice are reproduced in extenso herein below: ' To ' Mumtaz Ali House No, 9-13/96 Quary Road, Quetta Memo. No, 548.
17. Dated Quetta the 20th March 1965.
18. Subject: Payment of transfer price of Plot No, 7496.
19. ' Reference your application dated 12-12-1960 requesting for transfer of above-mentioned plot.
20. ' You are hereby directed to arrange for payment of transfer price i,e, -Rs, 8,250 in respect of the plot in question within fortnight failing which the said plot will be put in forthcoming auction.
21. (Sd.)
22. ' 18-3.1965 ' Deputy Settlement Commissioner, ' Quetta/Kalat Region, Quetta."
23. ' It would be seen that the notice neither required the payment of any instalment if the same were in arrears nor did it give the statutory time of 30 days. It only directed the payment in lump sum and within a fortnight. Thus the alleged notice for cancellation of transfer was in complete disregard of the provisions of paragraphs 22 and 24 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act and therefore illegal, and as such, no statutory notice could be said to have been served on respondent No. 1 even if for the sake of argument, it is assumed that the notice dated the 30th March 1965 was served on him. It is also the finding of the Deputy Settlement Commissioner that not only that alleged notice was not served on respondent No. 1 but the same was also not a statutory notice.
24. ' I am, therefore, satisfied that directions of the Court dated the 27th July 1971 and the 28th September 1973 have been complied with in letter and spirit and the order impugned in this petition besides being lawful, is just and proper.
25. ' I, therefore, dismiss this petition with costs.