Full Judgment Text & Judicial Ruling

2020 C L C Note 23 [Lahore] Before Asim Hafeez, J GHULAM HURR and 2 others---Petitioners Versus DISTRICT COLLECTOR BHAKKAR and others---Respondents Writ Petition No. 11875 of 2014, decided on 30th December, 2019. (a) Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949)--- ----Ss. 6, 8, 16, 17 & 18---Pakistan (Administration of Evacuee Property) Act (XII of 1957), S.41---Pakistan Administration of Evacuee Property Rules, 1950, R. 12---Transfer of Property Act (IV of 1882), S. 41---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 3---Civil Procedure Code (V of 1908), S. 12(2)---Evacuee property---Cancellation of allotment being bogus---Declaration by Custodian of Evacuee Property (Custodian)---Rights of subsequent purchaser--- Unregistered sale deed---Predecessor-in-interest of petitioners had purchased evacuee property which was purchased by predecessor-in-interest of respondents---Allotment of property was cancelled in favour of predecessor-in-interest of petitioners and predecessor-of-interest of respondents remained in possession of property---Validity---Case of petitioners fell within S. 16 of Pakistan (Administration of Evacuee Property) Ordinance, 1949 and not S. 18 of the said Ordinance---Unless alleged transfer of rights by evacuee was confirmed, no registration was permissible under S. 17 of Pakistan (Administration of Evacuee Property) Ordinance, 1949 which otherwise was essential as deed of sale was unregistered and remained so, despite lapse of statutory time provided for registration---Despite erroneous declaration extended by Custodian, deed of sale was not registered nor it became eligible for registration without seeking confirmation---Alleged rights were not recorded in revenue record---No claim for possession or alleged rights was raised and there was no plausible justification for delaying the filing of application under S. 18 of Pakistan (Administration of Evacuee Property) Ordinance, 1949 apparently filed in year 1954---There was deliberate withholding of information from custodian regarding possession, control and management of evacuee property as essentially required under S. 8 of Pakistan (Administration of Evacuee Property) Ordinance, 1949---Custodian while making declaration had not dilated upon issue of limitation which was a crucial matter---Claim of petitioners regarding transaction of sale was devoid of any lawful basis---Such transaction neither created nor conferred any right on property unless statutory conditions were fulfilled---In absence of grant of confirmation no rights could be claimed for property which remained evacuee for all intent and purposes and vested in government after repeal of Evacuee and Settlement laws---Orders passed by Custodian were void, of no legal effect and devoid of lawful authority---Once allotment was cancelled being bogus and unsuccessfully challenged by original allottee, civil court had no jurisdiction in law to adjudge claim of subsequent vendee claiming rights of a bona fide purchaser---No rights of bona fide purchaser could be claimed under S. 41 of Transfer of Property Act, 1882---Respondents were not eligible to claim any alleged rights in property and claim of petitioners with respect to property was already declared as void and of no legal effect---Property in question vested in government and same was required to be dealt with in accordance with mandate of S. 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Constitutional petition was dismissed in circumstances. [Paras. 14, 17, 18, 20, 22, 23, & 24 of the judgment] Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and others 1996 SCMR 1901; Shoukat Hayat Jumani v. The Province of Sindh through Secretary Rehabilitation Department and others 1991 SCMR 580; Muhammad Anwar and 2 others v. Khuda Yar and 25 others 2008 SCMR 905; Sh. Shajar Hussain v. Haji Abdul Majeed and others 2006 SCMR 913; Muhammad Sadiq (deceased) through L.Rs and others 2011 SCMR 239; Ahmed and another v. Muhammad Shafi and others 1982 SCMR 68; Member BOR Punjab and another v. Mst. Siddiqan through LRs and others 2015 SCMR 1721; Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 2003 Lah. 441; Azizuddin v. Muhammad Ismail and others 1985 SCMR 666; (1) Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan and Karachi (2) Sardar Battan Singh Haranam Singh, (3) S. Ishwar Singh Harnam Singh , (4) S. Amar Singh Ishwar Singh, Rashid Merwari Irani and (6) Khuda Dad Ardsher Irani PLD 1964 SC 236; Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489 and Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549 ref. (b) Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949)--- ----S. 18---Evacuee property---Declaration by Custodian---Scope---No right can be claimed in property merely on basis of declaration under S. 18 of Pakistan (Administration of Evacuee Property) Ordinance, 1949. [Para. 19 of the judgment] Haji Ashfaq Ahmad Khan and 4 others v. The Custodian, Evacuee Property (Pakistan), Karachi and 10 others PLD 1973 SC 134 and The Commissioner of Income Tax N.C.A. Circle Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others and Muzaffar Ali (through his Heirs) PLD 1973 SC 406 rel. (c) Civil Procedure Code (V of 1908)--- ----S. 9---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S. 3---Evacuee property---Civil court, powers of---Any act in law, which is nullity, coram non judice or devoid of jurisdictional competence can be impugned before civil court, including an action of Settlement Officer passed after repeal of Evacuee and Settlement laws. [Para. 20 of the judgment] Pakistan Transport Company Ltd. v. Walayat Khan through Legal Heirs 2002 SCMR 1470; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Sami Ullah Khan and others v. Sheikh Taj Muhammad through Legal Heirs and others PLD 2015 Pesh. 175; Faizuddin Ahmad v. Muhammad Yousaf and another 1988 SCMR 1289 and Muhammad Sarwar and 5 others v. Muhammad Ali and 18 others 2002 SCMR 829 rel. (d) Constitution of Pakistan--- ----Art. 199---Judicial review---Jurisdiction of High Court---Object, purpose and scope---High Court in exercise of judicial review cannot ignore any illegal and unlawful exercise of jurisdiction by court merely for reason that such decree or order is not directly challenged through subject matter of judicial review in collateral proceedings---Failure to exercise judicial review when it was essentially required to rectify apparent jurisdictional defect in proceedings, would tantamount to aiding injustice, unfairness and to perpetuate retention of illegal gains. [Para. 21 of the judgment] Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 rel. Naveed Shaheryar Sheikh assisted by Ms. Humaira Bashir Chaudhry for Petitioners. Rana Muhammad Naeem Khan for Respondents Nos. 7 to 12. Sardar Qasim Hussain Khan, Assistant Advocate General for Respondents Nos. 1 to 6. ORDER ASIM HAFEEZ, J.---This Constitutional petition is directed against order dated 24.10.2012 (impugned order), by the Additional District Collector, Bhakkar (respondent No.1), whereby application/ representation of the petitioners was not entertained, filed after dismissal of Constitutional Petition No.3497 of 2010. Respondent No.1 had advised the petitioners, in view of the facts and circumstances of the case, to approach concerned Notified Officer Sargodha Division for redressal of alleged grievances. Through this petition, petitioners have sought declaration of illegality against the impugned order and implementation of the orders dated 30.10.1956 and 23.01.1957 of Deputy Custodian and Additional Custodian Evacuee Property, respectively, in the revenue record. 2. It is noted that petitioner had earlier filed W. P. No. 3497 of 2010, which was dismissed in following terms; 4. "It is not understandable why petitioners remained silent for a long period for implementation of Custodian orders. If petitioners have any case, it requires recording of evidence which exercise could not be taken in the constitutional jurisdiction of this court and as such petitioners may approach the appropriate forum, if so desired, for redressal of their grievance. 5. "In view of above, this petition is not maintainable and consequently is dismissed'. 3. Briefly the facts necessary for adjudication of the lis at hand, are that deceased Ghulam Hussain (predecessor-in-interest) of the petitioners claimed to have had purchased land measuring 37 Kanals - Khata No.34, Khatuni No.97, Khasara No.517/min, situated at Mauza Bhakkar Daggar (hereinafter referred as "property") from Thakardas son of Moti Ram (Evacuee person) through unregistered deed of sale dated 24.06.1947 - which deed was not placed on record of this case. The case of the petitioners is that their predecessor-in-interest desired recording of factum of purchase in the revenue record in its name, which required requisite certificate. The deceased applied by filing application under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance (XV) of 1949 (referred hereinafter as Ordinance-1949), for seeking certificate and declaration that status of property was not evacuee, which application was allowed on 30.10.1956 by Deputy Custodian, and confirmed by Additional Custodian on 23.01.1957. The alleged claim of predecessor-in-interest of the petitioners remained obscured, till the filing of W.P. No.3497 of 2010. In the meantime, the property was allotted to Akbar Ali and Muhammad Ismail against their alleged claims in terms of RL-II No.10, dated 23.10.1962; in the share of 28 Kanals and 06 Marlas and 08 Kanals and 14 Marlas, respectively. Later on, allotment was declared as bogus and cancelled vide order dated 17.05.1976 by Additional Commissioner Land Revenue - having powers of Chief Settlement Commissioner Sargodha - apparently on petition filed by one Ishfaq Ahmad on 26.06.1974 (before the repeal of Evacuee and Settlement Laws with effect from 1st July 1974). It is noted that original allottee Akbar Ali filed suit for declaration and impugned the order of cancellation, which suit was dismissed for non-prosecution on 28.03.1978. The respondents Nos.7 to 12 - claimed to be the legal heirs of deceased Muhammad Aslam, who allegedly acquired property from original allottee (Akbar Ali) measuring 18 Kanals 6 Marlas through decree of the court in terms of Mutation No.45 dated 29.07.1984 and Mutation No.53 dated 03.01.1985. It is alleged by the respondents Nos.7 to 12 that their predecessor-in-interest, Aslam Khan, filed civil suit on 24.01.1995, which was decreed ex-parte on 23.02.1997, having the consequence of setting-aside order of cancellation of allotment dated 17.05.1976 and affirming alleged ownership of decreased Muhammad Aslam. The petitioners impugned the order of dismissal of representation - dated 24.10.2012 by respondent No.1 through this petition, which was earlier allowed vide judgment dated 20.06.2014, and later on said judgment was set-aside on 11.03.2015, while allowing application of respondents Nos. 7 to 12, filed under section 12(2) of the Code of Civil Procedure, 1908 ('the Code'). Respondents Nos.7 to 12 were not impleaded as party when this petition was filed. 4. Learned counsel for the petitioners contends that Notified Officer had no jurisdiction to address the grievance of the petitioners, as the property was not evacuee, as already declared by the Custodian on 23.01.1957. Per learned counsel, respondents Nos.7 to 12 are not eligible to claim any right in the property by virtue of ex-parte decree in favour of deceased Aslam Khan, as the Civil Court lacked jurisdiction in terms of section 41 of the Pakistan (Administration of Evacuee Property) Act (XII) of 1957 (referred hereinafter as Act). Further submits that original allottee had earlier filed suit, which was dismissed and later on, subsequent vendee, Aslam Khan was not entitled to file suit in the year 1995 to question cancellation of allotment order of 17.05.1976. Adds that after declaration by the Custodian, the property was not available for allotment by the Rehabilitation Authorities under Settlement laws. Learned counsel referred to the judgments reported as "Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and others" (1996 SCMR 1901), "Shaukat Hayat Jumani v. The Province of Sindh through Secretary, Rehabilitation Department and others" (1991 SCMR 580), "Muhammad Anwar and 2 others v. Khuda Yar and 25 others" (2008 SCMR 905), Sh. Shajar Hussain v. Haji Abdul Majeed and others" (2006 SCMR 913), "Muhammad Sadiq (decd.) through L.Rs. and others" (2011 SCMR 239), "Ahmed and another v. Muhammad Shafi and others" (1982 SCMR 68), "Member BOR Punjab and another v. Mst. Siddiqan through L.Rs. and others" (2015 SCMR 1721) and "Muhammad Din and 8 others v. Province of the Punjab through Collector and others" (PLD 2003 Lahore 441). 5. Learned counsel for respondents Nos.7 to 12 submits Civil Court has jurisdiction to entertain order of cancellation of allotment, as it was passed without hearing the person having beneficial interest in the property. Submits that decree of 23.02.1997 by the Civil Court had the effect of set-aside order of cancellation of allotment, which decree was not challenged and still holds field. Adds that predecessor-in-interest of respondents Nos. 7 to 12 was a subsequent purchaser of property for consideration, who being bona fide purchaser had no knowledge of order of cancellation of allotment, and same challenged it upon gaining knowledge. Adds that allottee was in possession since 1962 and thereafter respondents have uninterrupted possession of the property. 6. Arguments heard. And available record perused. 7. The questions raised inextricably involve determination of respective rights, allegedly claimed by the parties, qua the property - each claiming property in its own exclusive right. The existence and legitimacy of the claim of the respondents Nos.7 to 12 - having its alleged genesis in allotment made in terms of RL-II in the year 1962 and decree of the civil court - was inter-alia linked with the question of determination of validity and legitimacy of so-called declaration by the Custodian - declaring property as non-evacuee, as claimed by the petitioners. In view of the facts narrated and interplay of competing claims, undoubtedly Government is a major stakeholder, the one which is least concerned. It is evident that over-lapping rights and competing claims are deeply entwined and same, cannot, conveniently be adjudicated upon or determined in isolation or separately, therefore, all the claims against the property are adjudicated upon and determined through this judgment. 8. Learned counsel for the petitioners emphasized that allotment in the year 1962 was declared bogus, which order of cancellation of 15.07.1976 could not be impugned before the Civil Court under section 41 of Act-1957, hence decree dated 27.02.1997 suffered from jurisdictional defect and was of no legal effect. It is contended that declaration can be made against a void decree in this petition while determining the questions involved. I, first take the issue of legitimacy of claim of the petitioners. 9. The petitioners had sought implementation of declaration by the Custodian, which necessitates determination that whether such declaration constitutes valid and lawful exercise of jurisdiction by the Custodian. The declaration, by the Custodian in exercise of powers under section 18 of Ordinance-1949, declared that property was not evacuee property. Before determining the legality of such declaration in terms of section 18, ibid, it is expedient to reproduce section 18 of the Ordinance-1949, which reads as; 18. Claims by interested persons---(1) Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that - (a) the property is not evacuee property, or (b) his interest in the property has not been affected by the provisions of this Ordinance. (2) An application under subsection (1) shall be made within the prescribed period being a period of not less than thirty days from the prescribed date. (3) On receiving an application under subsection (2), the Custodian shall hold a summary in inquiry in the prescribed manner, and after taking such evidence as may be produced shall pass an order, stating the reasons therefore, rejecting the application or allowing it wholly or in part on such terms and conditions as he thinks fit to impose". [Emphasis supplied] 10. In terms of section 18 of Ordinance-1949, any person claiming alleged right or interest in the property - treated by the Custodian or Rehabilitation Authority as evacuee property - may file a claim and seek declaration that said property was not evacuee property or that Settlement Laws does not affect alleged right or interest therein. The Custodian may, after following the procedure provided therein, either accept the application or reject it, which decision would per-se determine the status of the person and the property, including alleged rights claimed therein. The expressions 'evacuee' and 'evacuee property' were defined in terms of subsection (2) and subsection (3) of section 2 of Ordinance, 1949. It is expedient to examine those, which are reproduced hereunder as; (2) "evacuee" means any person who- (i) on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves or has left any place in the territories now comprising Pakistan any place outside those territories, or (ii) acquires or has acquired, on or after the aforesaid date, in any manner whatsoever, any right to or interest in or benefit from any property which is treated as evacuee property under any law for the time being in force in India, or in any area occupied by India, or (iii) is resident in any place in the territories now comprising India or in any area occupied by India and who for that reason is unable to occupy, supervise or manage in person his property in Pakistan or whose property in Pakistan has, whether wholly or partially, ceased to be occupied, supervised, or managed by any person, or is being occupied, supervised or managed by an unauthorized person; (3) "evacuee property" means any property in which and evacuee has any right or interest, or which is held by or for him in trust, and includes- (a) any right of interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same, or (b) property obtained from an evacuee after the twenty-eighth day of February, 1947, until confirmed by the Custodian, but does not include- (i) any movable property in the immediate physical possession of any evacuee, or (ii) any property belonging to a joint stock company the head office of which was situated, before the fifteenth day of August, 1947, in any place in the territories now comprising India, and continues to be so situated after the said date; [Emphasis underlined] 11. A literal interpretation of definition of evacuee property would manifest that any property not coming within the scope of subsection (3) of section 2 of Ordinance -1949 would be treated and deemed as non-evacuee property, wherein evacuee person has no right or interest after 28th February, 1947. It is for the applicant to establish that property was not owned by evacuee person, hence, it was not evacuee property for the purposes of relevant Settlement Laws and disposal by the Rehabilitation Authorities. The predecessor-in-interest of the petitioners had claimed rights in the property by virtue of deed of sale dated 24.06.1947, allegedly executed by Thakardas in favour of Ghulam Hussain, which date of transaction was after the cut-off date as indicated in clause (b) of subsection 3 of section 2 of Ordinance of 1949 - which was identified as 28th Day of February 1947. In view of the aforesaid, the property was 'evacuee property' for all intent and purposes, when interpreted in wake of definitions provided and it was for the petitioners to show that it was not so. 12. Learned counsel for the petitioners pleaded that property in question was not evacuee property as declared by Custodian, as it was purchased/acquired by their predecessor-in-interest - who was Muslim - through deed of sale, therefore, the property was non-evacuee property, and not available for allotment by Rehabilitation Authorities. This argument is misconceived and fallacious. The transaction of sale simplicitor, admittedly conducted on 24.06.1947 with evacuee person - which conspicuously was after the cut-off date, i.e. 28th February 1947, would not change the status of the property from evacuee to non-evacuee. The property has assumed evacuee status on 1st March 1947 and same stood vested in the Custodian by virtue of section 6 of Ordinance of 1949, which reads that "All evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the First Day of March 1947". The Custodian has no jurisdiction or authority to declare the property as non-evacuee, merely because it was purchased by a Muslim vendee from evacuee person, which admittedly was after the terminus quo date. The petitioners had not disputed the factum of purchase from evacuee person and failed to plead reasons that how property was non-evacuee property. The Custodian cannot alter, change or disregard the legislative intent and treat the property as non-evacuee when it assumed the status of evacuee property in the light of the conditions prescribed. Mere declaration, obtained by the alleged purchaser that he was non-evacuee, would not, per-se the property exclude from the category of evacuee property. Reference is made to decision in the case of "Azizuddin v. Muhammad Ismail and others" (1985 SCMR 666), relevant portion whereof is reproduced hereunder as; "The appellant, as already mentioned, had moved the Custodian authorities first in 1949 for confirmation of the sale of the land in his favour and again in 1953 for the grant of a certificate permitting registration of the sale and in both proceedings the Additional Custodian had held that the vendor not being evacuee, the question of confirmation of the agreement of sale did not arise. However, the decision given by the Additional Custodian cannot be pressed into service because if the owner be held to be non-evacuee, the same would not per se be sufficient to exclude his property from being treated as evacuee property as was held by the Court in Hajiran Sughra v. District Judge and Settlement Commissioner 1969 SCMR 686". [Emphasis supplied] Nothing was alleged or pleaded that property was erroneously or illegally treated as evacuee property in violation of the law. And merely, the acquisition of the evacuee property - after 28th February 1947 - from an evacuee - who left the territories of Pakistan after 1st March 1947 - would not entitle the petitioners to seek declaration qua status of the property under section 18 of Ordinance-1949. 13. Analysis of other provisions of Ordinance-1949 reveals that restrictions were placed on transfer of evacuee properties under section 16 of Ordinance-1949 [which restrictions are distinguishable from the prohibitions referred to in section 15 of Ordinance-1949]. Upon perusal of section 16, ibid, it is evident that creation of any right or interest in the property by evacuee on or after 1st March 1947 would be valid and effective only, once confirmation was granted by the Custodian. It implied that no transaction of transfer of rights in evacuee property, on after or 1st March 1947, would create any right unless it was confirmed accordingly, upon fulfilment of requirements provided under section 16 of Ordinance-1949. And such specific confirmation enables the beneficiary to seek registration of the instrument in accordance with the provisions of Registration Act 1908, in terms of section 17 of Ordinance - 1949. It is expedient to reproduce sections 16 and 17 of Ordinance - 1949, considering their relevance for the purposes of adjudication of the lis at hand, which read as; "16. Restriction on transfer by evacuees.-(1) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatever by an evacuee or by any person in anticipation of his becoming an evacuee or on behalf of the evacuee or such person on or after the first day of March, 1947, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party…

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