P L D 1980 Karachi 399 (PLP)

FAKHRUDDIN G. EBRAHIM, J.-The facts giving rise to this petition are that the subject property was purchased on 10-6-1966 by one Alam Khan for Rs. 11,500 from its owner Mushtak Farooq. On 15-12-1972, Alum Khan agreed to sell the property to Noor Muhammad for Rs. 13,715Alam Khan acknowledged the receipt of this agreed price and executed a sale deed in favour of Noor Muhammad but this sale deed was not registered. Alam Khan also granted a general power of attorney in favour of Noor Muhammad authorising him to sell the subject property on his behalf. On 15-5-1973, Noor Muhammad purporting to act as attorney of Alam Khan executed a sale deed in favour of Ahmed Ali for Rs. 14,000 which sale deed was duly registered. On 13-9-1973, Ahmed Ali sold the subject property to the petitioner under a registered sale deed for Rs. 22,500.

2. On coming into operation of the Abandoned Properties (Taking Over and Management) Act, 1975, the petitioner moved the Administrator under section 13 of the Act to confirm the transfer of the subject property in his favour. The Administrator rejected this application on the ground that Noor Muhammad had no right to sell the property to Ahmed Ali, the predecessor of petitioner and with that will fall the sale deed executed by Ahmed Ali in favour of the petitioner, the Administrator did not accept the general power of attorney on the grounds that it was ineffective after the coming into operation of the said Act for the subject property became vested in the Federal Government and that even otherwise it was not understood why Alam Khan should have granted the power of attorney in favour of Ahmed Ali, who was described as a "self" styled attorney.

3. The petitioner went in appeal under section 15 of the Act. The Appellate Authority took the view that there was no title in the petitioner in the subject property for his predecessor lacked the same, and that on the terminal date I.e. 16‑12‑1971, the property stood in the name of Alarn Khan, and he being "a specified person" within the meaning of the Act, the property rightly became vested in the Federal Government under the Act. Before parting the Appellate Authority observed that though the sale, after the terminal date in favour of the petitioner was invalid, accepted the fact that the petitioner was a bona fide purchaser for value and therefore, created a charge of Rs. 22,500 on the property in favour of the petitioner.

4. The first thing is to be noticed in this case is that the said Act which was promulgated on 17th February, 1975 made ineffective creation of transfer of any right like interest in abandoned property on or after the sixteenth day of December, 1971 unless such transfer was confirmed by the Administrator under its section

13. Under this section the Administrator is bound to confirm the transfer or creation of interest if the transaction was entered into in good faith or adequate consideration or if for any other reason it ought not be confirmed. The reason given by the Administrator for not confirming the sale deed dated 13‑9‑1973, was that he doubted the genuineness of the power of attorney given by Alam Khan to Noor Muhammad for according to him there was no reason for grant of such a power. The Administrator overlooked the fact for there was every reason for grant of this power inasmuch as Alam Khan had received from Noor Muhammad full consideration of Rs. 13,750 and also executed a unregistered sale deed of Noor Muhammad. The other reason for rejecting the power was that it became ineffective after promulgation of the said Act. The power was granted on 15‑12‑1972 and transfer made in pursuance thereof was capable of being cured under section 13.

5. Coming to the appellate order it does not even state as to how Noor Muhammad was not competent to execute the sale deed in favour of Ahmed Ali under his power of attorney from Alam Khan. In other words the factum of grant of power or that it was in pursuance of receipt of price of Rs. 13,750 was not questioned by the Appellate Authority. Sin the appellate authority also accepted the fact that sale in favour of t petitioner was bona fide and for adequate consideration and has not advert for any other reason which justified the denial of its confirmation, the petitioner has made out a case for confirmation under section 13 and the impugned orders, therefore, cannot be sustained in law and are accordingly set aside. These is also no bar to the exercise of our jurisdiction and Article 199 for finality given to order, made under the Act under its section 23~ cannot affect our Constitutional jurisdiction.

6. This petition is, therefore, allowed but in the circumstances there will be no order as to costs. K. M. A.???????????????????????????????????????????????????????????????????????? Petition allowed.