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Petitioner: Mst. Bilqis Bano and another VS Respondent: Pakistan Defence Officers Housing Authority and others
Court Name: Sindh High Court Judge(s): Adnan Iqbal Chaudhry Title:Mst. Bilqis Bano and another vs Pakistan Defence Officers Housing
Authority and others Case No.: Suit No. 1808 of 2016 Date of Judgment:2018-07-17 Reported As: 2019 P Cr. L J 962, 2018 SHC 825 Result: N/A Judgment ADNAN IQBAL CHAUDHRY J. - 1. The plaintif f No.1 (Bilquis Bano) claims to have purchased Bungalow No.75/I, Khayaban-e-Hafiz, Phase VI, DHA, Karachi, from its previous joint owners namely Hina w/o Muhammad Raza and Shabnam Raza w/o Ghulam Raza vide a registered Conveyance Deed dated 16-09-2006. The plaintiff No.2 (Fatima Bai) claims to have purchased the adjacent Bungalow No.75/II from its previous joint owners namely Muhammad Raza and Ghulam Raza vide a registered Conveyance Deed dated 11-11-2006. The said Bungalows are hereinafter collectively referred to as "the Suit Properties". In the records of the defendants 1 to 3 (the Defense Housing Authority - DHA, the Military Estates Officer - MEO and the Cantonment Board Clifton - CBC), the Suit Properties still stand in the name of the said sellers, the previous owners. 2. The grievance of the plaintiffs is that the defendants 1 to 3 (DHA, MEO and CBC) have refused to mutate the Suit Properties from the names of the previous owners to the names of the respective plaintiffs, thereby effectively restraining the plaintiffs from selling/transferring the Suit Properties. Per the plaintiffs, the refusal by the defendants 1 to 3 to mutate the Suit Properties, disclosed to the plaintiffs in March 2016, is on the pretext that certain legal proceedings are taken/pending against the previous owners under the Customs Act, 1969 and the National Accountability Ordinance, 1999 (NAO 1999). It is the case of the plaintiff No.1 that no such legal proceeding has ever been taken against the previous owners of Bungalow No.75/I (Hina w/o Muhammad Raza and Shabnam Raza w/o Ghulam Raza). Whereas, it is the case of the plaintiff No.2 that no such legal proceeding had been taken against the previous owners of Bungalow No.75/II (Muhammad Raza and Ghulam Raza) on 11-11-2006 when the plaintiff No.2 had purchased it from them, and that in any case the said previous owners were subsequently acquitted of the charges against them. Further, it is the case of the plaintiffs that no order has ever been passed either under the Customs Act, 1969 or under the NAO 1999 to attach/freeze the Suit
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Properties. The NAB has been arrayed as the defendant No.4 and the investigating agency of the Customs, has been arrayed as the defendants No.5. The concerned Sub-Registrar of properties has been arrayed as the defendant No.6. 3. The plaintiffs' prayer in the plaint is as follows: "(a) Declare that the Plaintiff No.1 is the lawful, bona fide owner of the property i.e, Bungalow No.75/1, Khayaban- e-Hafiz, Phase VI, measuring 983.32 Square Yards, Defence Housing Authority ,Karachi together with the construction of double story bungalow purchased by her from its previous joint owners Mrs. Hina wife of Muhammad Raza and Mrs. Shabnam Raza wife of Ghulam Raza through a registered Conveyance Deed dated 16.09.2006 for a hefty consideration thus protected under Articles 8, 9, 10, 10A, 14, 18, 23 and 24 of the Constitution and Sections 41, 53 read with Section 105 of the T ransfer of Property Act; (b) Declare that the Plaintiff No.2 is the lawful, bona fide owner of the property i.e. Bungalow No. 75/II, Khayaban-e-Hafiz, Phase-VI, measuring 983.33 Square Yards, Defence Housing Authority, Karachi with construction of ground plus one story purchased by her from its joint owners Muhammad Raza and Ghulam Raza both sons of late Akbar Ali through their lawful General Attorney Mrs. Shabnam Raza wife of Ghulam Raza through a registered Conveyance Deed dated 11.11.2006, thus protected under Articles 8, 9, 10, 10A, 14, 18, 23 and 24 of the Constitution and Sections 41, 53 read with Section 105 of the Transfer of Property Act; (c) To direct the Defendants specially Defendants No.1 to 3 to immediately mutate the properties i.e. Bungalow No. 75/I, Khayaban-e-Hafiz, Phase VI, measuring 983.32 Square Yards, Defence Housing Authority , Karachi and the property i.e. Bungalow No. 75/II, Khayaba n-e-Hafiz, Phase-VI, measuring 983.33 Square Yards, Defence Housing Authority in the names of Plaintiffs No.1 and 2 respectively in their respective record of rights; (d) Mandatory injunction, suspend the operation of the letter dated 06.11.2006 and 11.4.2014 issued by Defendants No.1 and 5 respectively and consequently restrain the official Defendants from taking any coercive action against the Plaintiffs or to dispossess or evict them from their respective bungalows; (e) Grant permanent injunction restraining the officials of the Defendants, their employees, subordinates, agents, representatives, attorneys, successors or any one claiming on their behalf, from taking any coercive action and to dispossess/evict the Plaintiffs from their respective properties in question or seal the properties i.e. Bungalow No. 75/I, Khayaban-e-Hafiz, Phase VI, measuring 983.32 Square Yards, Defence Housing Authority, Karachi and the property i.e. Bungalow No. 75/II, Khayaban-e-Hafiz, Phase-VI, measuring 983.33 Square Yards, Defence Housing Authority; (f) Consequential relief(s), ......... (g) Grant any other relief(s), (h) Costs ....." 4. The background and facts as gathered from the record and submissions of the learned counsels, are as follows: (i) Muhammad Raza and Ghulam Raza, who were the previous joint owners of Bungalow No.75/II, were accused along with Raja Muhammad Zarat Khan and others, of making and benefitting from fraudulent claims of Customs duty drawbacks and sales tax refunds while carrying on business under the umbrella of Bawan Shah Group of Companies. (ii) Proceedings under Section 179 of the Customs Act, 1969 for adjudication of duties, taxes and penalties by the relevant Customs Officer, and proceedings under Section 185-A of the Customs Act, 1969 for the trial of offences before the Special Judge (Customs and Taxation) Karachi, were initiated against the accused inter alia Muhammad Raza and Ghulam Raza. It was during investigation leading to the said proceedings that the defendant No.5 (I.O. Customs), vide letter dated 13-10 2006, sought information inter alia from the defendants 1 and 6 (DHA and the Sub- Registrar) as to properties held by Muhammad Raza, Ghulam Raza and their dependents. (iii) On receiving information from the DHA on 06-11-2006 that their record reflected the Suit Properties to be held by Muhammad Raza, Ghulam Raza and their spouses (the previous owners), the defendant No.5 (I.O. Customs) vide letter dated 16-11-2006, requested the defendants 2 and 6 (MEO and Sub-Registrar) not to transfer the Suit Properties on the ground that criminal cases against Muhammad Raza and Ghulam Raza under Section 185-A of the Customs Act, 1969 were pending before the Special Judge (Customs & Taxation), Karachi. Apparently, at the time, the record of the DHA had not been updated with the conveyance deeds dated 16-09-2006 and 11-11-2006 of the Suit Properties in favor of the plaintiffs.
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(iv) In his reply dated 22-11-2006, the defendant No.2 (MEO) informed the defendant No.5 (I.O. Customs) that Bungalow No.75/I had been transferred by its previous owners (Hina w/o Muhammad Raza and Shabana w/o Ghulam Raza) to the plaintiff No.1 vide a conveyance deed dated 16-09-2006, whereas Bungalow No.75/II stood in the name of Muhammad Raza and Ghulam Raza. Apparently, at the time, the record of the MEO had not been updated with the conveyance deed dated 11-11-2006 of Bungalow No.75/II in favor of the plaintiff No.2. (v) On 08-11-2006, the defendant No.5 (I.O. Customs) made a complaint to the defendant No.4 (NAB) of the fraud allegedly committed by Raja Muhammad Zarat Khan and others of Bawan Shah Group of Companies, including Muhammad Raza and Ghulam Raza, in claiming inadmissible Customs rebate, misuse of the DTRA scheme and sales tax refunds. On the said complaint, the defendant No.4 (NAB) initiated an inquiry on 21-11-2006. Therefore, per the defendant No.5, their entire record pertaining to the cases against the said accused persons was transferred by the defendant No.5 to the defendant No.4 (NAB) in January 2007. Subsequently, in March 2007, the criminal cases pending against the said accused persons under Section 185-A of the Customs Act, 1969 before the Special Judge (Customs & Taxation) Karachi, were also transferred to the Accountability Court at Karachi pursuant to Section 16-A of the NAO 1999 where these were registered as Reference No.s 13, 14, 15, 16 and 17 of 2007. (vi) Raja Muhammad Zarat Khan, who was the principal accused in the NAB References, had assailed his arrest by the NAB before this Court in C.P. No.D-1008/2007. The judgment in that case is reported at PLD 2007 Karachi 597 (Raja Muhammad Zarat Khan versus Federation of Pakistan). From the case diaries of NAB's inquiry reproduced in that judgment, it appears that it was on 19-12-2006 that the defendant No.4 (NAB) asked the defendants 1 and 2 (DHA and MEO) not to transfer properties of persons under NAB' s inquiry . However , as discussed infra, there was no order passed under Section 12 NAO 1999 to freeze the Suit Properties. (vii) The aforesaid inquiry by the defendant No.4 (NAB) was converted to an investigation on 30-05-2007, and eventually on 07-08-2007 Reference No.46/2007 was filed before the Accountability Court at Karachi against Raja Muhammad Zarat Khan and others, including Muhammad Raza and Ghulam Raza, which Reference was in addition to Reference No.s 13, 14, 15, 16 and 17 of 2007 which were already pending before the Accountability Court on transfer from the Special Judge (Customs & Taxation) Karachi. (viii) On 30-12-2008, the Accountability Court acquitted a number of accused persons in Reference No.17/2007, including the principal accused Raja Muhammad Zarat Khan, but not including Muhammad Raza and Ghulam Raza. On 30-03 2009, the Accountability Court acquitted a number of accused persons in Reference No.46/2007 including the principal accused Raja Muhammad Zarat Khan, but not including Muhammad Raza and Ghulam Raza. Therefore, the plaintiffs' contention that Muhammad Raza and Ghulam Raza too had been acquitted in Reference No.s 17 and 46 of 2007, is not borne from the record. Against the said acquittal orders it is said that appeals are pending before this High Court. 5. Contention of the defendant No.4 (NAB): Both in its written statement and by way of CMA No.6007/2018 under Order VII Rule 11 CPC, the defendant No.4 has objected to the maintainability of the suit against it on the ground that the suit is barred by Section 36 NAO 1999. On the merits, it is the case of the defendant No.4 that the plaintiffs are related to the accused Muhammad Raza and Ghulam Raza; that the plaintiffs hold the Suit Properties as benamidars of Muhammad Raza and Ghulam Raza; and that since References, appeals and other investigations under the NAO 1999 against Muhammad Raza and Ghulam Raza are pending, the plaintiffs are prohibited by Section 23 NAO 1999 from transferring the Suit Properties. 6. Contention of defendant 5 (investigation agency Customs): The defendant No.5 has also objected to the maintainability of the suit against it on the ground that it is barred by Section 217 Customs Act, 1969. Per the defendant No.5, in the proceedings under section 179 Customs Act, 1969, duties, taxes and penalties were adjudged inter alia against Muhammad Raza and Ghulam Raza in March 2007 and those are still outstanding. However, as regards the criminal cases against the said accused persons, the defendant No.5 has conceded in its written statement that after the transfer of such cases from the Special Judge (Customs & Taxation) Karachi to the Accountability Court at Karachi in the year 2007 "the Directorate General has no legal authority to deal with the matter any more". 7. Contention of the defendant No.3 (CBC):
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Both in its written statement and by way of CMA No.5388/2018 under Order VII Rule 11 CPC, the defendant No.3 has objected to the maintainability of the suit against it on the ground that the suit is barred by Section 273 Cantonment Act, 1924 which provision requires a prior notice of 2 months before filing suit. On the merits, the reason given by the CBC for not mutating the Suit Properties in its record to the names of the respective plaintiffs is stated in para 2 of its written statement as follows: "...the defendant No.1/DHA and defendant No.2/MEO did not transfer the said properties in the names of the plaintiffs due to the inquiries initiated by the NAB and other Government Authorities against the previous owners namely Mr . Muhammed Raza and Mr . Ghulam Raza . ...that after the intimation by the defendants 1 and 2, defendant No.3/Cantonment Board Clifton did not mutate the said properties in the names of the plaintiffs....the defendantNo.3/Cantonment Board Clifton already informed/intimated the plaintiffs way prior to filing of the instant suit that the transfer/mutation was stopped because of the NAB inquiries and proceedings against the previous owners before Government Authorities and it is necessary to mention here that the NAB proceedings are still pending." 8. Contention of the defendant No.1 (DHA): The written statement the defendant No.1 (DHA) states that in its record Bungalow No.75/I stands in the name of its previous owners (Hina and Shabana Raza) since 25-08-2003; that Bungalow No.75/II stands in the names of its previous owners (Muhammad Raza and Ghulam Raza) since 29-01-2002; that the said Suit Properties being held under a "B" Lease, the DHA has no control over their sale as the same can be effected by registering a conveyance deed with the defendant No.6 (concerned Sub-Registrar of properties). 9. The defendants 2 and 6 (the MEO and Sub-Registrar) have not contested the suit; they have not filed written statements despite service; therefore, I proceed against them ex-parte . 10. On a miscellaneous application moved by the plaintiffs in this suit, this Court on 17-8-2016 ordered that "Plaintiffs shall not be dispossessed without due course of law." Such order was confirmed on 28-2-2017 by consent of learned counsels for the defendants 1, 3 and 4 (DHA, CBC and NAB). Arguments on CMA No.11602/2016 were commenced on 09-04-2018 which is an application by the plaintiffs praying for a mandatory injunction directing the defendants 1 to 3 to mutate the Suit Properties to the names of the plaintiffs. During the hearing of the said application, CMA No.5388/2018 and CMA No.6007/2018 under Order VII Rule 11 CPC were moved by the defendants 3 and 4 respectively (CBC and NAB) and with the consent of learned counsels these application were heard for disposal along with CMA No.11602/2016. 11. While opposing CMA No.11602/2016 Mr. Abdullah Munshi, learned counsel for the defendant No.3, stressed on the point that the grant of mandatory injunction sought by the said CMA would amount to granting final relief, and that since the suit required evidence, such mandatory injunction should be decided after the recording of evidence. On the other hand Mr. Khawaja Sham-ul Islam, learned counsel for the plaintiffs argued that a mandatory injunction of the nature sought can be granted without evidence as the conveyance deeds of the Suit Properties in favor of the plaintiffs remain unchallenged. During the hearing of the listed applications, it was acknowledged by Mr. Akram Javaid, learned counsel for the defendant No.4 (NAB) that the Suit Properties were not yet subject matter of the NAB References nor has any order ever been passed under Section 12 NAO 1999 to freeze the Suit Properties. In view of such acknowledgment, Mr. Khawaja Shams-ul-Islam Advocate submitted that the parties remained at issue only on questions of law and therefore the plaintiffs did not desire nor need to lead evidence, and he prayed for final judgment on issues of law. To that end, Mr. Khawaja Shams-ul-Islam Advocate also filed proposed legal issues for final judgment in the suit. In this view of the matter the following order was passed in this suit on 23-04-2018: "From the submissions of the learned counsels it transpires that the Plaintiffs are not accused in the NAB References No.13, 14, 15, 16 and 17-A, 2007, nor has the NAB nor the Accountability Court so far passed any order under Section 12 of the NAB Ordinance 1999 so as to put a hold or freeze on the suit property. This much is admitted by the learned counsels for the Defendants. In view thereof Mr. Kh. Shamsul Islam states that so sole issue that now remains is only a legal issue for which the Plaintiffs do not need nor desire to lead evidence. Therefore, he suggests that the suit be decided on the basis of the proposed legal issues. Learned counsels for the Defendants are put on notice to address this aspect of the case i.e as to whether the suit can be decided either ways on the basis of the legal issues proposed by the Plaintiffs,
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copy whereof is taken on record and is supplied to them by the learned counsel for the Plaintiffs. For such purpose to come up on 30.04.2018 at 8:30 a.m To the question raised in the order dated 23-04-2018 (supra), though learned counsels for the defendants conceded that they could not compel the plaintiffs to lead evidence if the plaintiffs chose to forgo it, they submitted that without evidence none of the reliefs claimed by the plaintiffs can be granted. 12. From the record and the submissions made by the learned counsels, the following emerged as the undisputed facts and features of the suit: (i) that title of the Suit Properties had been conveyed to the plaintif fs vide registered conveyance deeds dated 16- 09-2006 and 1 1-11-2006 by Muhammad Raza and Ghulam Raza and their respective spouses; (ii) that the conveyance of the Suit Properties to the plaintif fs was prior to the adjudication against Muhammad Raza and Ghulam Raza under section 179 of the Customs Act, 1969 for outstanding taxes, duties and penalties which came about in March 2007. Therefore, the Suit Properties were not attached under section 202(3)(a) of the Customs Act, 1969; (iii) that Muhammad Raza and Ghulam Raza were not convicted in proceedings pending against them before the Special Judge (Customs & Taxation) Karachi under section 185-A of the Customs Act, 1969 because these proceedings were transferred to the Accountability Court in March 2007 pursuant to section 16-A NAO 1999; (iv) that for the reasons mentioned in sub-paras (ii) and (iii) above, and for the reason that the defendant No.5 (investigating agency Customs) has admitted in its written statement that it has no further jurisdiction in the matter , the defendant No.5 is not relevant to these proceedings; (v) that though to-date none of the NAB References allege that the plaintif fs hold the Suit Properties as benamidars of the accused Muhammad Raza and Ghulam Raza, and though to-date there is no order under section 12 NAO 1999 to freeze the Suit Properties, References under the NAO 1999 are still pending against the accused Muhammad Raza and Ghulam Raza before the Accountability Court; (vi) that in the record of the defendants 1 to 3, the Suit Properties still stand in the names of the previous owners, and the defendants 1 to 3 have refused to mutate the Suit Properties and allow for their transfer on the ground that References under the NAO 1999 are pending against Muhammad Raza and Ghulam Raza. 13. Settlement of issues: The refusal by the defendants 1 to 3 to mutate the Suit Properties and allow for their transfer is in essence on the ground of Section 23 NAO 1999. The plaint manifests that the relief for declaration that the plaintiffs are "lawful, bona fide owners" of the Suit Properties has been sought to address Section 23 NAO 1999, and that the reliefs for injunction are consequential reliefs only. Therefore, in actuality, the question raised by this suit is whether Section 23 NAO 1999 by itself prohibits the transfer of the Suit Properties when these properties have not been frozen under section 12 NAO 1999 and when there is no allegation against the plaintiffs before the Accountability Court that they hold the Suit Properties as benamidars of the accused. As a necessary consequence, the foremost issue arising for determination in this suit is whether the jurisdiction of this Court as a civil court to decide the said question is barred by the NAO 1999. Thus, there being no question of fact triable by this Court, the following issues of law are settled : (i) Whether in the circumstances of the case, does this Court have jurisdiction to decide the question whether transfer of the Suit Properties is prohibited by the NAO 1999 ? or does that jurisdiction vest exclusively in the Accountability Court under the NAO 1999 ? (ii) Subject to determination of issue No.(i), whether suit against the defendants 3, 4 and 5 (CBC, NAB and I.O. Customs) is barred respectively by Section 273 Cantonments Act 1924, by Section 36 NAO 1999, and by Section 217 Customs Act, 1969 ? (iii) To what relief, if any , are the plaintif fs entitled to ? and what should the decree be ? 14. Applications for rejection of plaint: Adverting first to the applications under Order VII Rule 11 CPC for rejection of the plaint, CMA No.5388/2018 is by the defendant No.3 (CBC) on the ground that the suit against the defendant No.3 is barred by Section 273 Cantonment Act, 1924. But that in my view is different from saying that the suit as a whole is not maintainable inasmuch as, the suit is not only against the defendant No.3 but also against other defendants. Thus, even if the suit is not maintainable against the
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defendant No.3 the plaint as a whole cannot be rejected. It is a settled law that a plaint cannot be rejected in piecemeal. Therefore, no case for rejection of the plaint is made out under CMA No.5388/2018 which is therefore dismissed. However, since the objection of Section 273 Cantonment Act, 1924 is also raised by the defendant No.3 in its written statement, an issue to that effect has been settled as above. As regards CMA No.6007/2018 moved by the defendant No.4 (NAB) the same raises two objections: (a) that the subject matter being a criminal matter, the jurisdiction of a Civil Court under Section 9 CPC is barred; and (b) that the suit against the defendant No.4 is barred by Section 36 NAO, 1999 . Objection (a) is covered by Issue No.(i) as settled above and will be decided in the course of this judgment. As regards objection (b), again, even if the suit is not maintainable against the defendant No.4 the plaint cannot be rejected in piecemeal. However , since the objection of Section 36 NAO 1999 is also raised by the defendant No.4 in its written statement, an issue to that effect has been settled as above. CMA No.6007/2018 is disposed of f accordingly . Determination of Issue No.(i): Whether in the circumstances of the case, does this Court have jurisdiction to decide the question whether transfer of the Suit Properties is prohibited by the NAO 1999 ? or does that jurisdiction vest exclusively in the Accountability Court under the NAO 1999 ? 15. The provisions of the NAO 1999 that are relevant to this issue are its Sections 12, 13 and 23. Under Section 12 NAO 1999 the Chairman NAB or the Accountability Court can by an order freeze property of the accused whether in possession of the accused or in possession of a third-party believed to be holding it on behalf of the accused: "12. Power to freeze property: (a) The Chairman NAB or the Court trying an accused for any offence as specified under this Ordinance, may, at any time, if there appear reasonable grounds for believing that the accused has committed such an offence, order the freezing of his property, or part thereof, whether in his possession or in the possession of any relative, associate or person on his behalf. (underlining supplied for emphasis) (b).... (c)... (d)... (e)..... (f)... (g)..." Section 5(d) of the NAO 1999 defines an "Associate" to also mean a "benamidar". Section 5(da) defines a "benamidar" as "any person who ostensibly holds or is in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused" The remedy against an order passed under Section 12 NAO 1999 is before the Accountability Court under Section 13 NAO 1999 as follows: "13. Claim or objection against freezing: (a) Notwithstanding the provisions of any law for the time being in force, the Court shall have exclusive jurisdiction to entertain and adjudicate upon all claims or objections against the freezing of any property under section 12 above. Such claims or objections shall be made before the Court within 14 days from the date of the order freezing such property. (b) The Court may for…
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