1988 PLP 623 (MLD)

'This appeal was heard on 8-9-1983 and was dismissed by a short order on E c :, am c date for reasons to be recorded later, following are the reasons. Originally the petition was filed by Assudi Bai who died during pendency of the petition. Hence she was substituted by her L. Rs. who are petitioners Nos. 1, 2 and i and are represented by their general attorney Mr. Rochi Ram. The case of Assudi Bai was that the urban property bearing C.S. Nos. 221 and 222 situated in Ward `B' Hirabad, Mirpurkhas belonged to her. This property was awarded to her by the Chief Court of Sind in First Appeal No. 10/1940, decided on 1-9-1942 which was subsequently amended by compromise decree dated 5-4-1946. She claimed that on 30-5-1950 she had been declared a non-evacuee under the Pakistan (Administration of Evacuee Property) Ordinance, 1949. However, two years later, that is, on 5-6-1952 Assistant Custodian Mirpurkhas declared her as intending evacuee. Against this order she -had preferred an appeal which was allowed by the Additional Custodian, Sind by his order dated 17-2-195?2 She claimed that her property had never been treated as evacuee property. Still the Settlement Authorities treated the disputed property as forming part of the evacuee pool under Section 3 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958. She, therefore, made an application to Deputy Commissioner Mirpurkhas for excluding the above property from the Settlement Pool. The Deputy, Settlement Commissioner vide his order dated 21-1-1961 allowed her application and declared that the property in question shall not be treated as evacuee property and as such it shall remain excluded from the Settlement Pool. This order of the deputy Settlement Commissioner was based on an earlier order of the Additional Custodian of E.P ,Karachi. The existence of this earlier order of Additional Custodian has not been accepted by the Settlement Commissioner (as will be shown later) who had set aside the order of the Deputy Settlement Commissioner (as will be shown later) who had set aside the order of the Deputy Settlement Commissioner vide his order dated 31-7-1973 which has been impugned in this petition. After the order of Deputy Settlement Commissioner dated 21-1-1961 the matter was taken up by Additional Settlement Commissioner on the application of Assudi Bai praying that the transfer of her property under the Settlement Scheme to the claimant may be cancelled. This application was allowed by the Additional Settlement Commissioner on 5-2-1962. Thereafter, one Nisar Ahmad filed an application before the same Additional Settlement Commissioner for treating the property as part of the evacuee pool, but the learned Additional Settlement Commissioner refused to review the order of his predecessor vide his order dated 26-1-1973. Thereafter, one Mushtaq Ahmad filed a Revision Application before the Rehabilitation Commissioner challenging the validity of the orders of Deputy Settlement Commissioner dated 21-1-1961 and the Additional Settlement Commissioner dated 26-1-1973 on the ground that these orders were without jurisdiction and nullity in the eyes of law. The learned Settlement Commissioner accepted this application and set aside the above two orders of the Deputy Settlement Commissioner and Additional Settlement Commissioner by the impugned order dated 31-7-1973. The grounds which weigh with the learned Settlement Commissioner in setting aside the two earlier orders were that the Settlement Authorities were not competent to declare any property as non-evacuee or to exclude a property from the evacuee pool. Only the Custodian or the authorities who exercise powers of the Custodian, were. alone competent to declare a property as non-evacuees. In taking this view the learned Settlement Commissioner had relied on the case of Mst. Hajiran Sughra v. The District Judge and Settlement Commissioner Hyderabad, reported in 1969 S C M R 686 in which it has been held that:-- "If the entries in the register of evacuee properties are correct then the fact that the Custodian Department had even assessed the rent to be realized from the evacuee occupant would show that the property in dispute had in fact, been used for the purposes of the Administration of Evacuee Property Act, 1957, consciously and would, therefore, amount to treating the property as evacuee property. The property could not be excluded from the compensation pool merely on the ground that its original owner had been declared a non-evacuee finally by the order of the Evacuee Property Enquiries Tribunal. The mere declaration of the owner as a non-evacuee is not sufficient for this purpose." It was held by the Settlement Commissioner that the two earlier orders being wholly without jurisdiction were non-existent in the eyes of the law and were liable to be ignored and that no time limit has been prescribed for setting aside such void orders. It has been urged on behalf of the petitioner that the deceased Assudi Bai was declared non-evacuee by Additional Custodian vide his order dated 17-12-1952 and that her property was also declared as non-evacuee as such the Settlement Commissioner had no jurisdiction to ignore that order and treat the property of the deceased as part of the evacuee pool. The main basis of the petitioner for challenging the validity of the impugned order is the order/so-called order of the Additional Custodian dated 17-12-1952, a photostat copy of which has been filed alongwith the petition as Annexure "G". The original of this document, that is, the actual certified copy has not been filed. Particulars of the property of the deceased lady which was declared non-evacuee, have not been mentioned in the said order of the Additional Custodian. From the record it transpires that several persons including the respondents Nos. 4 and 5 had filed an appeal before Additional Custodian, Karachi against the order of Deputy Custodian dated 27-11-1965 whereby the Deputy Custodian had excluded the disputed property from the evacuee pool. This appeal was allowed by the Additional Custodian by his order dated 6-8-1966. The order of the Deputy Custodian dated 27-11-1965 was set aside and the case was remanded to him for fresh decision on merit. The record does not show as to what happened after the order dated 3-9-1966 of the Additional Custodian whereby the case was remanded. On the record we have only the orders of Additional Settlement Commissioner dated 26-1-1973 which was passed after the said order, and the impugned order dated 31-7-1973 of the Settlement and Rehabilitation Commissioner. It is now settled law that once a property has been deemed to be part of the Settlement Pool, then the Settlement Authorities are not competent to exclude that property from the pool. It is only the Custodian who is competent to declare the property as non-evacuee and to direct the Settlement Authorities to exclude the same from the evacuee pool. The impugned order proceeded on the assumption that the original order of Deputy Settlement Commissioner dated 26-1-1961 was wholly without jurisdiction for the reason that he was not competent to exclude the property from the evacuee pool. So far as the earlier order of Custodian dated 17-12-1952 is concerned, it is of no help to the petitioner because details of the property have not been mentioned in this order. The petitioner has relied on a decree of the Chief Court whereby the property in dispute was awarded to deceased Assudi Bai. This decree is said to have been amended by compromise dated 31-10-19-16. The photostat copy of the compromise decree has been filed as Annexure "A", in which there are particulars of the property awarded to deceased Assudi Bai. She has also riled photostat copy of the decree in First Appeal No. lti/40 decided by Chief Court of Sind on 1-9-1942. From this decree it does not transpire that ownership of the survey numbers in dispute, has been conferred on deceased Assudi Bai. The decree is for possession only in favour of Assudi Bai in respect of property in dispute. It has further been ordered that the respondent No. 1 in the above appeal shall have the right of maintenance which right was made a charge upon the property which was subject-matter of the appeal, which also included the disputed survey numbers. From the perusal of the record I am unable to hold that the order of the learned Settlement Commissioner dated 31-7-1973 is without jurisdiction or l otherwise contrary to any law so as to justify interference by this Court. The respondents have produced the documents which prove that the survey numbers in question have been down in the record of Custodian Evacuee property. One such document is annexure "R-3" riled by respondent No.

3. This document was issued by Deputy Settlement Commissioner on .an application of Mr. A.R. Alvi, Advocate of Mirpurklias dated 14-3-1979 seeking information about the property of Assudi Bai. The Deputy Settlement Commissioner vide his letter dated 18-3-1979 replied that according to the record of Custodian which had been available in his office, the properties of the deceased lady have been entered in the register of the Custodian as evacuee property and the relevant entries have been signed in the register by the concerned Assistant Custodian. In view of the above factual position I am unable to interfere with the order of the learned Settlement Commissioner dated 31-7-1973 which has been impugned in this petition. The petition is consequently dismissed with no order as to costs. M.Y.H./2489/K Petition dismissed.