' SAIDUZZAMAN SIDDIQUI, J.--The above appeal with the leave of this Court is directed against the judgment of a learned Division Bench of High Court of Balochistan, Quetta, dated 26-10-1991 whereby Constitution Petition No,255 of 1991 field by the appellants was dismissed. Leave was granted in the above appeal to consider the following contentions:- "Mr. S. Sharifuddin Pirzada, the learned counsel for the petitioners, pointed out that the learned Judge of the High Court have wrongly assumed that the petitioners had not complied with the direction of the High Court and further that the appeal under Order 43, Rule 1 was dismissed by order dated 4-3-1987. Reference had been made to the order dated 4-3-1987 reproduced above and it has been contended that the respondent had no intention to cancel the auction and the notice was issued only for realisation of the arrears which was paid before such cancellation. In these circumstances the respondent could not have cancelled the auction. It was further contended that the respondent had no jurisdiction under section 3(2) of the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975, or under Paragraphs 3 and 3(A) of Scheme No,VIII the respondent could cancel the auction. While referring to paragraphs 3 and 3(A) it was pointed out that if they were pressed in service, the petitioner was entitled within 30 days of the cancellation, to apply and pay the balance amount and as the amount had already been paid the question of application or cancellation did not arise.
5. The aforestated questions among other have been raised which require consideration. We, therefore, grant leave.
6. We further order that so far possession is concerned, the parties shall maintain status quo. The operation of the impugned judgment for issuing notice for Contempt of Court is stayed. Security Rs,5,000.
' We have heard the learned counsel for the parties.
2. Paradise Cinema, an industrial concern situated at Quetta, was put to public auction by the Settlement Authorities on 4-5-1961 against a reserve price of Rs,2,15,000. One Muhammad Rashid son of Muhammad Munir, predecessor-in-interest of present appellants, purchased the said industrial concern against his highest bid of Rs,8,30,000. The said Muhammad Rashid paid a sum of Rs,2,39,735 being 1/4th of the auction price which was confirmed in his favour by the Chief Settlement Commissioner on 3-5-1962. The possession of Paradise Cinema was consequently handed over to the said Muhammad Rashid by the Settlement Authorities on 7-5-1962. The industrial concern namely, Paradise Cinema, consisted of Cinema building and out houses. The said Rashid in January 1963 deposited compensation books for adjustment of the transfer price amounting to Rs,4,39,696 & Rs,30,000 and it is claimed that the said compensation books are still lying with the settlement department. It appears that by about the same time, when Muhammad Rashid had filed compensation books for adjustment of the transfer price of the Cinema, the Chairman, Municipal Committee, Quetta, started proceedings for cancellation of the lease of the land on which the above Cinema was constructed. The Chairman, Municipal 'Committee, Quetta, issued notice to the Custodian/Settlement Department intimating that the 2 plots on which the above Cinema was constructed, belonged to Municipal Committee Quetta which were leased to the evacuee and they were called upon to show cause why the said lease granted to the evacuee be not cancelled. It further appears that out of the land on which the above Cinema was constructed, land measuring 8935 Sq.Ft. Was leased out to one Khair Muhammad Tareen by the Chairman, Municipal Committee, Quetta, on 1-4-1963. The said Muhammad Rashid having come to know the above facts, filed an application before the Chief Settlement Commissioner Industries, Lahore, praying for grant of rebate in the transfer price as at the time of auction of the plot it was given out to them that the land on which the Cinema was constructed belonged to the evacuee owner of the Cinema. This was followed by a reminder from the appellants to the Additional Settlement Commissioner Industries for reduction of the price of the Cinema. The Additional Settlement Commissioner Industries instead of acceding to the request of the appellants cancelled the auction on 10-10-1967. The appellant filed a writ petition against the order of the Additional Settlement Commissioner cancelling the transfer in favour of the appellants which was dismissed by order dated 28-5-1988 on the ground that the appellants have an alternate remedy by way of a suit, available in the matter. Instead of filing civil suit, the appellants preferred an appeal before the Settlement Commissioner Industries, Lahore, against the order of Additional Settlement Commissioner Industries dated 10-10-1967. While this appeal filed by the appellants was still pending, one of the associates of the appellants filed Writ Petition No,37 of 1968 in the High Court which was allowed on 22-7-1971 and the order of the Additional Settlement Commissioner dated 10-10-1967, whereby auction in favour of Rashid was cancelled, was set aside. As a consequence of the acceptance of the Writ Petition No,37 of 1968, the appeal filed by the appellants before the Settlement Commissioner became infructuous. The case, thereafter, was sent to the Additional Commissioner Industries for reconsideration of the request of rebate in the auction price of the Cinema in view of the order of the High Court passed in the writ petition filed by one of the associates of the appellants. However, before any decision could be taken in the case one unit was dissolved and the case was sent to Additional Settlement Commissioner, Quetta, which was subsequently taken up by the Chief Settlement Commissioner, Balochistan, who rejected the request of the appellants for grant of rebate in the auction price of the Cinema. With the rejection of the request of the appellants for reduction in the auction, price of the Cinema, the Chief Settlement Commissioner on 21-8-1973 issued notice to the appellants to pay balance price of Rs,6,19,215 within 30 days of the receipt of the notice. It appears that the price was not paid within time and consequently by order dated 16-8-1973 the transfer in favour of the appellants was cancelled. The appellants challenged the notice dated 21-8-1973 as well as order dated 16-8-1973 in Constitution Petition No,942 of 1973 in the High Court of Balochistan. The aforesaid writ petition, after establishment of the High Court of Balochistan, was transferred to Quetta and was renumbered as 381 of 1978. This petition was finally dismissed on 8-9-1985. The operative part of the order of the High Court dismissing the writ petition was as follows:- "We have called upon the learned counsel for the petitioners to point out any provision of law or scheme framed thereunder which provides the filing of representation of the nature in which impugned order has been passed. He was unable to cite any provision of law or the scheme.
' In this view of the matter the petitioner's above representation was not competent in law. It was at the most an alleged breach of contract of sale in which petitioners might have right to claim damages through civil suit but Constitution petition is not competent. Even auction notice has not been produced before us on the basis of which it can be said that the Settlement Department had factually offered sale of the plot in addition to super-structure and machinery---We, therefore, dismiss the above petition with no order as to costs."
3. A petition against the order of the High Court of Balochistan dated 8-9-1985 before this Court also failed. The predecessor-in-interest of the appellants then filed a civil suit at Quetta in which he also applied for grant of interim injunction under Order 39, Rules 1 and 2, C.P.C. The application for grant of interim injunction was dismissed and this order was challenged before the High Court of Balochistan which was disposed of on 4-3-1987 as follows:-- "It appears that after notice, dated 21st August, 1973, no fresh notice for recovery of the arrears has been issued against the appellants by the respondents. The learned A.-G. Has taken stand that the respondents were not going to cancel the auction or to eject the appellants from the premises.
Moreover, he states that on the basis of the above said notice whereby, the department had directed them to deposit balance of Rs,6,19,215 within thirty days from the date of the above said notice intend to realize the arrears. However, at this stage as no fresh notice for the recovery has been issued the appeal is premature. When the appellants receive fresh notice for recovery of the arrears, then they move the lower Court afresh for stay of the above said action.
' In such view of the facts the appeal stands disposed of but with no order to costs."
4. It appears that on 3--12-190, the appellants sent a pay order for Rs,6,19,215 to the Members, Board of Revenue which was retained by Settlement Department. A reminder was sent by the appellants on 2-3-1991 but no action was taken thereon. The appellants were, thereafter, issued show-cause notice under para. 3 of the Settlement Scheme No,VII, dated 20-4-1991, calling upon them as to why the property should not be resumed and the pay order was also returned. A Senior Member, Board of Revenue on 28-9-1991, cancelled the auction of Cinema in favour of Rashid which was challenged by the appellants in the High Court of Balochistan by filing a writ petition, which was dismissed and against that order leave was granted by this Court as aforesaid.
5. Mr. Syed Sharifuddin Pirzada, the learned counsel for the appellants, contended before us that after enforcement of Revised Settlement Scheme No,VIII which came into effect on 13-8-1973, the resumption of the property on account of default in payment of transfer price was governed as provided under paragraphs 2 to 4 of the said Scheme, which read as follows:- "2. An Additional Settlement Commissioner (Industries), or the Deputy Settlement Commissioner concerned, as the case may be, will serve a Demand Notice upon a transferee of a property who has failed to pay two consecutive instalments or, if no instalments had been allowed to him, has defaulted in payment of transfer price due from him, requiring him to pay the whole outstanding amount within a period of thirty days from the date of issue of the Demand Notice. The Demand Notice will be issued by registered post acknowledgement receipts, when received from the addressee will be pasted on the file of the Demand Notice, as provided in the Code of Civil Procedure, may be made.
(3) (1) If payment is not made within the specified period, the competent Authority, without giving any further notice to the defaulter, will---
(a) cancel the transfer of the property,
(b) forfeit an amount not exceeding twenty-five per cent, of the transfer price of the property already paid by the transferee plus other dues, if any,
(c) resume the property for fresh disposal under Chapter III of the Scheme by ejecting the defaulter from the property forcibly', if considered necessary,
(2) A copy of the order made under sub-para. (1) will be sent to the defaulter by post within fifteen days from date of expiry of the period of Demand Notice, also refunding the excess amount, if any, to the defaulter within thirty days.
4. (1) The authority concerned may, on application made to him by the defaulter within fifteen days of the date of the order of cancellation as aforesaid allow him to pay in lump sum the whole of the transfer price payable by him within a period of thirty days from the date of order of cancellation or by monthly instalments not exceeding twelve as may be allowed on merit by the Additional Settlement Commissioner, if by then the property has not been transferred to any other person.
(2) The competent Authority may, on an application made to him in this behalf within 15 days of the date of order of cancellation as aforesaid, allow a joint transferee of a property to pay in lump sum the amount(s) due from the defaulter(s) immediately or within the period of thirty days from the date of order of cancellation or by monthly instalments not exceeding twelve as may be allowed on merit by the Additional Settlement Commissioner and obtain transfer of share(s) in the property cancelled from such defaulter(s) if by them the share(s) resumed has (have) not been transferred to any other person(s)."
7. The learned counsel contended that no Demand Notice as contemplated in paragraph 2 of Settlement Scheme No,VIII was ever served on the appellants. The learned counsel further contended that even if the notice dated 21-8-1973 is taken to be a notice within' the meaning of paragraphs 2 and 3 of the Settlement Scheme No,VIII, the appellants were never served copy of the order cancelling transfer in their favour as required under paragraph 3(2) of Settlement Scheme No,VIII. The learned counsel contended that in terms of paragraph 4(2) the appellants had a right to apply for restoration of the property within 15 days of the service of the order of cancellation which period could only start against them when a notice as required under paragraph 3(2) of the Scheme No,VIII was served on them. The learned counsel also contended that in view of the statement made by Advocate-General, Balochistan, before the High Court disposing of appeal arising from the order of the trial Court refusing to grant interim injunction, there was hardly any occasion for the Settlement Authorities to have cancelled the auction in favour of the appellants as after the disposal of appeal in terms of the statement of learned Advocate-General Balochistan, the entire balance price of the auction amounting to Rs,6,19,215 was paid to the Member, Board of Revenue through pay order and therefore,- the matter stood settled as stated by the learned Advocate-General in terms of the statement which was recorded by the High Court in the appeal on 4-3-1987. In support of his contention, the learned counsel for the appellants has relied on the cases of Majeed Begum v. Deputy Settlement Commissioner (1980 SCM R 827) and Israr Ahmad v.
Member, Board of Revenue/Chief Settlement Commissioner (1997 SCM R 1559). In the first noted case, the property was resumed by the Settlement Authorities on account of default in payment of the balance of transfer price. The action of resumption of the property was supported by the appellants in that case on the ground that as the transferee had failed to pay the balance of transfer price after service of the notice, the cancellation was fully effective. The contention was not accepted by the Court and it was held as follows:- "8. 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,VIII on 30-10-1973 (See PLD 1974 Punjab Statutes 83) is read with para. 17 of that Scheme, it is clear that, where in case of transfer of a house, a 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 the 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. When confronted with the aforesaid provision of law, the learned counsel had no answer. Thirdly, it has been brought to our notice by the learned counsel for respondent No,2 that litigation about this property remained pending uptil 31-4-1978 when the name of his client was deleted from another Writ Petition bearing No,141-R of 1974. It was filed by one Abdul Hassan in the High Court impleading him also as a party. He submitted that until the clearance of title, his client would have been justified in withholding the payment but nonetheless he paid it in cash much earlier on 27-8-1977, reserving his right to claim the refund. Learned counsel for the petitioner submitted that payment subject to a rider of refund was no payment in the eye of law.
The contention has no force. If respondent No,2 reserved his right to claim refund, if permitted under the law, there is nothing wrong in that tender or payment. Looked at from whatever angle the reservation for claiming refund of payment could not constitute a default in payment of price on his part, and the objection put forward before us on this ground is hereby repelled, and it is held, that the property in the over all circumstances above explained never became available for transfer under Settlement Scheme No,VIII, and in the face of an already subsisting transfer in favour of respondent No,2, it could not have been transferred to the petitioner.
9. The result is that this petition has no merit and is dismissed hereby. Petition dismissed."
In the second noted case of Israr Ahmad, (supra), the effect of non-service of the notice as required under paragraph 3(2) of the Settlement Scheme No,III and the right which consequently accrued to a transferee under paragraph 4(1) of the Settlement Scheme No,III was considered, as follows:- "In the present case, the auction has been ordered to be cancelled on 213-1985 when reconstituted Settlement Scheme No,VIII was in force which mandatorily required service of notice before cancellation of the transfer on account of default in payment of the transfer price on the transferee. The record before us does not show that any notice of demand as required by para. 2 of the Scheme was served on the auction- purchaser before cancellation of the auction. Apart from it, under para. 3(2) of the Scheme, the Settlement Authorities were required to send to the transferee by post within 15 days from date of expiry of the period of demand notice, a copy of the order passed under para. 3(2) of the Scheme. It is nobody's case that the copy of order of cancellation of auction in favour of Abdur Rauf was despatched to him as required by para. 3(2) of the Scheme. In our view despatch of the copy of order of cancellation to a defaulter in terms of para. 3(2) of the Scheme was a necessary requirement as under paragraph 4(1) of the Scheme the transferee had the right to approach the concerned Settlement Authority for restoration of transfer, and the competent Authority had the jurisdiction even after cancellation of the transfer in favour of transferee on account of failure to pay transfer price, to allow him to pay the same either in lump sum or in monthly instalments not exceeding 12 as the merit of the case permitted within 30 days of the cancellation, if the property was not disposed of in the meantime. In the case of Muhammad Afzal v. Muhammad Yousaf (1984 SCM R 296), this Court while considering the non-compliance of the requirements of paragraphs 2 and 3 of the Scheme by the Settlement Authorities observed as follows:- 'Reading paras. 2 and 3 together, there is a mandatory requirement of a demand notice being sent by a registered post acknowledgement due and the acknowledgement receipt, when received back to be pasted on the file of the Demand Notice. The penal consequence flow only when the requirement of Demand Notice in not fulfilled, that is, the payment of the entire outstanding amount. There is no manner of doubt that para.2 has to be strictly complied with as was held by this Court in E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536) while construing section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In its absence the penal consequences cannot flow as it is the failure on the part of the defaulter which gives power to the Deputy Settlement Commissioner to resume the property. Here I may mention that if at all the Settlement Department was serious it should have cancelled the transfer of the property pursuant to para. 24 of the Schedule, but it did not do so in spite of the several notices' issued, and, therefore, the High Court was right in not treating the notices as a compliance of para. 2 of the Settlement Scheme on account of its resumption in accordance thereto and its treatment as available property'.
8. In the case before us, the order of cancellation of auction in favour of appellant was passed on 21-3-1985 by the Settlement Commissioner in suo motu revision, which was challenged in the writ petition filed before the Lahore High Court by the appellant, respondent and other 3 persons and as such the property was not transferred to any one in the meantime. It was during the pendency of the Writ Petition No,19-R of 1985 filed by the appellants challenging the order dated 21-3-1985 that the appellants represented to the Member, Board of Revenue/Chief Settlement Commissioner offering to pay the entire price in lump sum in cash which was accepted and he was allowed to pay the same. In these circumstances, the order of Chief Settlement Commissioner/Member, Board of Revenue restoring the transfer of the hotel on payment of entire transfer price in cash in lump sum did not suffer from any legal infirmity. Even otherwise, we are of the view that order passed by the Chief Settlement Commissioner/Member Board of Revenue restoring transfer of hotel in favour of appellants and allowing them to pay the transfer price, in cash in lump sum, in the circumstances of the case, was a just ,and proper order which did not justify interference by the High Court in exercise of its discretionary jurisdiction under Article 199 of the Constitution. As a result of the above discussion, we accept Civil Appeal No,244 of 1993 and set aside the impugned order and restore the order of the Chief Settlement Commissioner/Member, Board of Revenue dated 16- 7-1992. As a consequence of the above order, the appeal filed by the respondent (Civil Appeal No,245 of 1993) is dismissed but in the circumstances of the cases, we will make no order as to costs."
' The above case law cited by the learned counsel for the appellants fully supported the contention of the appellants.
8. Mr. Raja Abdul Ghafoor, the learned counsel for the appellants, however, contended that the appellants were duly served with notice under paragraph 2(3) of the Settlement Scheme No,VIII by the Chief Settlement Commissioner on 21-8-1963 but in spite of service of such notice, they failed to pay the amount and, therefore, the property was rightly ordered to be resumed by the Settlement Commissioner. In support of his contention, the learned counsel has relied on the case of Ghulam Mohyuddin v. Atharu Nisa (1994 SCM R 1951). The case cited by the learned counsel for the respondents is distinguishable on facts as in that case after acceptance of the bid, the auction purchaser had not deposited any amount with the Settlement Authorities while in the case before us 25% of the price was paid at the time of confirmation of auction, and the rest of the amount was offered by the appellants before issuance of the notice of resumption by the Member Board of Revenue, through pay order which was not accepted, though the pay order was retained by the Member, Board of Revenue. In addition to it, Mr. S. Sharifuddin Pirzada, the learned counsel for the appellants has drawn our attention to a consolidated order passed by the Senior Member, Board of Revenue in December 1994 whereunder as many as 47 evacuee properties, which were auctioned by the Settlement Authorities between the period from 1961 to 1964 and in which admittedly default had been committed by the auction purchaser, were restored and orders were passed for issuance of Permanent Transfer Deed to the transferees upon realisation of full reserve price which was less than the auction price of these properties. In these circumstances, we are of the view that the cancellation of auction in favour of the appellants was wholly without jurisdiction as the Authorities before cancellation, failed to comply with the provisions of paragraphs 2, 3 and 4 of the Settlement Scheme No,VIII. The appeal is, accordingly, allowed, the order passed by the Revenue Authorities cancelling auction of Paradise Cinema in favour of the appellants and directing resumption of the same, by the Board of Revenue is declared to be without lawful authority and of no legal effect. The appellants are allowed 30 days time, from the date of this judgment, to pay balance price. There will be no order as to costs.