2017 PLP 432 (YLRN)

MUHAMMAD JUNAID GHAFFAR, J.

This is a Suit for Declaration and Injunction wherein the Plaintiffs have sought the following reliefs-- "A) To declare that the Plaintiffs are lawful owners of the Property fallen in Survey No. 227(6-16 Acres) and Survey No. 228(7-33 Acres) situated at Deh Drigh Tappu Malir, Taluka and District Karachi (East) having been purchased by them from its original owners through Registered Instruments of Transfer i.e. Sale Deed No. 4382 dated 4.4.1979, Sale Deed No. 6573 dated 7.6.1979, Sale Deed 281 dated 15.1.1980, Sale Deed No. 91 dated 12.1.1964, Sale Deed No. 4143 dated 15.12.1985 with the permission/NOC of defendants Nos. 1, 3, 4, 5 Vide letter No. Rev/769/79 dated 26.2.1979, Letter No. Rev/ 1846/79 dated 10.5.1979, Letter No. Rev/3267 dated 23.8.1979, Letter No. 7346/1983 dated 21.12.1983, Letter No. 5784/ 1985 dated 8.12.1985 and mutated in the names of the plaintiff by the defendants Nos. 1, 3, 4, 5 in their Record of Rights. B) it be declared that the ex parte order dated 3.9.2002 of the Defendant No. 2 is illegal, ultra vires, void, ab initio, nullity in eyes of law, mala fide, collusive, without jurisdiction, without lawful authority having no legal effects and not binding on the Plaintiffs by which the Plaintiff's rights to the extent their properties in question have been abridged, curtailed and or abrogated in any manner by any means as the Defendant No. 2 being Notified officer had no jurisdiction / authority to decide / declare the issue of Evacuee or Non-Evacuee property by passing fresh order on 3.9.2002 after repeal of all Evacuee Laws including Act, XVIII of 1958 on 1.7.1974 particularly when it was neither subject to any claim or proceedings anywhere nor there was any remand order. C) To grant Permanent Injunction thereby prohibiting the Defendants Nos. 1, 3, 4 and 5 from acting upon the unlawful, without jurisdiction ex-parte impugned order dated 3.9.2002 of the Defendant No. 2 by which Plaintiff's rights to the extents of their properties in question have been abridged, curtailed and abrogated in any manner by any means. D) Any other relief or relief(s) this Hon'ble Court may deem fit and proper under the circumstances of this case be granted in favour of the Plaintiffs against the Defendants in the interest of justice. E) Cost of the suit be allowed to the Plaintiffs."

2. It is the case of the Plaintiffs that they are the lawful owners of the property as mentioned in prayer Clause (a) of this Suit by virtue of Sale Deeds duly mutated in the name of the Plaintiffs by Defendants Nos. 1, 3, 4 and 5 in the record of rights. It is further stated that thereafter the Plaintiffs announced a Housing Project on the said property by obtaining approval of layout plan pertaining to individual plots demarcated in the said property, vide Numbers from R-1 to 168/3 from defendant No. 3 (KDA Wing) Karachi Development Authority, vide Letter No. URP. 42.167/MP and EC/88/UD-917/1353 dated 7.11.1989 issued by the defendant No. 3 (KDA Wing)/Assistant Director (U.D) Master Plan Environmental Department KDA to 358 allottees by way of Registered Lease Deed / instrument of transfer which properties have changed several hands and thereafter the Lessees and Sub-Lessees have constructed their respective houses. It is further stated that subsequently, a Notice dated 17.10.2002 was issued by Defendant No. 5 with direction to personally produce relevant documents of the property falling in Survey Nos. 227 and 228 as the son of Defendant No. 6 applied for mutation and physical possession of land measuring 28 ghuntas situated in Survey No. 227/1 and 228/1 Deh Drigh Tappu Malir, Taluka and District Karachi (East) which was replied by the Plaintiffs and they also personally appeared before Defendant No. 5 by producing relevant documents in respect of the ownership. It is further stated that the Plaintiff for the first time came to know through said notice that Defendant No. 6 is claiming his right over a portion of their property allegedly purchased by Defendant No.6 through public auction on 2.10.1969 and 11.10.1970 being an Evacuee Property. It is further stated that thereafter an order dated 3.9.2002 was passed by Defendant No. 2 in favour of Defendant No. 6 which was impugned through Constitutional Petition bearing No. 148/2003 which was dismissed vide order dated 6.5.2004 on the ground that there are two contradictory contentions with respect to the ownership of the property in question which cannot be decided in the Constitutional Jurisdiction and the Petitioner may take appropriate proceedings in accordance with law. After passing of the aforesaid order instant Suit has been filed wherein the aforesaid prayers have been made.

3. Notices and summonses were issued in this matter whereafter written statements have been filed and matter was referred to learned Commissioner for recording of evidence wherein, it appears that plaintiff have failed to lead any evidence, whereas, Defendant No. 6 led its evidence whereafter the matter has been placed for final arguments. Vide order dated 11.5.2009 the following issues were settled:- "1) Whether the Suit is barred under the law? 2) Whether the legal heirs of Bachal could have sold the subject land to the Plaintiffs? 3) Whether the land bearing Survey No. 277/1 measuring 2 ghuntas Deh Drigh Tappo Malir exists, if yes, whether it was declared as an Evacuee property? 4) Whether the land bearing Survey No. 228/I measuring 28 ghuntas Deh Digh Tappo Malir exists, if yes, whether it was declared as an Evacuee property? 5) Whether the Defendant No. 6 was entitled to transfer of the aforesaid two pieces of land and for mutation of the same? 6) Whether the Plaintiffs have any right in land admeasuring 2 ghuntas bearing No. 227/1 and admeasuring 28 ghuntas Survey No. 228/I in Deh Digh Tappo Malir? 7) Whether Defendant No. 2 had jurisdiction in law to pass order dated 3.9.2002 after repeal of Evacuee Law? 8) What should the decree be?"

4. Learned Counsel for the plaintiff at the very outset has submitted that since no evidence was led on behalf of the Plaintiffs therefore, he will only confine his arguments to issue No.7 which is purely a legal issue as according to the Plaintiffs the property in question was never an Evacuee property and even otherwise, the Defendant No.2 had no lawful authority to pass the impugned order dated 3.9.2002. Learned Counsel has referred to order dated 1.6.2006 passed in this matter and has contended that this issue has already been decided by this Court through the said order, after a detailed discussion on the subject which order was never challenged any further, therefore, issue No.7 can be conveniently answered in favour of the Plaintiffs on the basis of the said order. Learned Counsel has further submitted that Defendant No. 2 had become functuous officio at the time when impugned order was passed and under the garb of order dated 27.3.2002 passed in C.P. No. D-1083/ 2001 filed by Defendant No.6 against the official Defendants, has assumed jurisdiction unlawfully as at the relevant time, neither the matter in respect of the ownership of Defendant No. 6 was a pending dispute before the said officer in terms of the provisions of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, ("Repeal Act, 1975") nor it was specifically remanded by this Court in its strict terms. Therefore, per learned Counsel the impugned order is without jurisdiction and nullity in the eyes of law, and it is for this reason no evidence has been led by the plaintiff as it is only a legal issue which already stands settled in a number of judgments and in support the learned Counsel has relied upon the case of Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner / Member, Board of Revenue, Punjab, Lahore and others (1999 SCMR 1719), Muhammad Hafeez (Deceased) through his legal representatives v. Muhammad Yousaf (Deceased) through legal representatives, and others (2001 PCr.LJ 130), Sharif and others v. Muhammad Hussain and others (2004 SCMR 80) and Rahim Khan v. Addl. Settlement Commissioner (1992 ALD 78(2)).

5. On the other hand, learned Counsel for Defendant No. 6 has contended that the property in question was purchased by them on 11.8.1970 through a proper auction and thereafter, the Mukhtiarkar was approached for mutation and transfer which was refused against which a petition bearing C.P. No. D-1083/2001 was filed before this Court and vide order dated 27.3.2002 the matter was remanded to Defendant No.2, who has thereafter passed the impugned order in favour of Defendant No.6. Insofar as Defendant No.3 is concerned, he has adopted the written statement on behalf of Defendant No.2 and it is contended that the order was passed after the matter was remanded to them in accordance with law. Issue No.7

6. I have heard all the learned Counsel and perused the record. The precise case of the Plaintiffs as discussed hereinabove is premised only in respect of the authority of the officer i.e. Defendant No. 2 to pass the impugned order dated 3.9.2002 as a notified officer under Section 2(2) of the Evacuee Properties and Displaced Persons Laws (Repeal) Act, 1975 whereby, the said officer has confirmed that Suit land was an Evacuee Property and was auctioned properly and after coming to such conclusion directions have been issued for mutation of Khata in favour of Defendant No.

6. The Plaintiffs claim that the Suit land was purchased by them through different parties vide Registered Conveyance Deed(s) and thereafter the Suit land was mutated in their names in the records of rights, whereas, they have been in physical possession of the said land since its purchase. They further averred that subsequently, a project was launched on the Suit land and after demarcation was allotted to various allottees and registered Lease Deeds have been executed in their favour, whereas, the property has changed several hands and various allottees have even raised construction. It is their case that the impugned order dated 3.9.2002 has been passed without jurisdiction as neither the matter was remanded by the Court vide order dated 27.3.2002 passed in C.P. No. D-1083/2001 nor any issue was pending before Defendant No. 2 at the time of passing of the Repeal Act, 1975 and therefore, no cognizance could have been taken in respect of the property which was never an Evacuee Property. It is their case that the Defendant No. 2 has misconstrued the order of this Court dated 27.3.2002 as after 1.7.1974 the notified officer had no jurisdiction to decide the status of this property as the matter was never pending before him at the time of repeal of Evacuee Laws. On the other hand, the Defendant No. 6 claims that the property was purchased in auction in 1970 and thereafter the same was not mutated in their names despite several reminders and lastly in 2001 the aforesaid petition was filed wherein, the said order was passed and the officer was directed to decide the case of Defendant No. 6.

7. To have a better understanding of the controversy in hand, it would be advantageous to refer to Section 2 of the Repeal Act, 1975 which reads as under:- "

2. Repeal of certain laws. (i) The following Acts and Regulations are hereby repealed, namely:-- (i) The Registration of Claims (Displaced Persons) Act, 1956, (ii) The Pakistan Rehabilitation Act, 1956, (iii) The Pakistan (Administration of Evacuee Property) Act, 1957, (iv) The Displaced Persons (Compensation and Rehabilitation) Act, 1958; (v) The Displaced Persons (Land Settlement) Act, 1958, (vi) The Scrutiny of Claims (Evacuee Property) Regulations, 1961, and (vii) The Price of Evacuee Property and Public Dues (Recovery) Regulations, 1971. (2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid." (Emphasis supplied)

8. In terms of subsection (2) of Section 2 of the Repeal Act, 1975 the Notified officer after 1.7.1974 had jurisdiction to decide only those cases which were either pending before the Settlement or Rehabilitation Authorities or were received by way of remand from any Court. In this matter, therefore, the only question which requires adjudication is that whether order dated 27.3.2002 whereby, C. P. No. D-1083/2001 was disposed of should be treated as an order of remand in terms of Subsection (2) of section 2 of the Repeal Act, 1975, which empowered the Notified Officer to pass any order(s) even after passing of the Repeal Act, 1975. In fact it is the only issue which has been pressed upon on behalf of the plaintiffs. The said petition bearing No. D-1083/ 2001 filed against the official defendants contained the following prayers:-- "a) A declaration that the failure of the Respondents in exercise of jurisdiction towards delivery of the subject land to the Petitioner is arbitrary, discriminatory and violative of Constitutional rights of the Petitioner. b) A mandatory injunction directing the Respondents to issue necessary title documents and deliver possession of the subject land to the Petitioner or to grant and deliver an alternate land of the equivalent measurements and the same value and utility. c) Cost of the petition be awarded. d) Any other/further relief which the nature and circumstances of the case may require be granted." The said petition was disposed of vide order dated 27.3.2002 in the following terms: "The Petitioner may approach the Secretary (RS&EP) Board of Revenue Sindh where his application will be considered and decided in accordance with law."

9. Perusal of the aforesaid prayer clause clearly reflects that insofar as the petition in question was concerned, neither any action nor any order of the Settlement or Rehabilitation Authorities or the authorized officer was challenged nor they were arrayed as Respondents in the said petition. In the circumstances, the order of disposal of the said petition dated 27.3.2002 by no stretch of imagination can be termed as an order of remand of the case conferring any jurisdiction on the Notified officer as provided under Subsection (2) of Section 2 of the Repeal Act, 1975 and resultantly no order could have been passed by Defendant No. 2 under the garb of the order of this Court. It is not the case of Defendant No.6 that the matter was pending before the Settlement or Rehabilitation Authorities prior to 1.7.1974 as the contents of the petition reflects that the only prayer was to hand over possession and issue necessary title documents of their property purchased in auction.

10. The word remand has been defined in the 17th Edition of Black's Law Dictionary as "the act or an instance of sending something (such as a case, claim or person) back for further action". The judicial dictionary 13th Addition defines it as, to re-commit, send back a case to a lower Court for taking further evidence. From the above definitions, it can be safely concluded that remand always presupposes that a case has been decided which is being sent back by the superior Courts for a decision afresh on the terms and conditions as contained in the order through which the case is being remanded. In the instant matter admittedly, on 1.7.1974 no such case was pending before the Settlement or Rehabilitation Authorities, whereas, the Defendant No.6 has though led its evidence however, has failed to bring any such document(s) from which it could be ascertained that Defendant No. 6 had approached the Settlement or Rehabilitation Authorities prior to 1.7.1974 and his case was pending. It is only in the year 2001 that a petition was filed before this Court and the order passed therein has been treated as an order of remand by Defendant No.2 for assuming jurisdiction under the Repeal Act, 1975 for passing of the impugned order dated 3.9.2002. Perusal of the said order further reflects that the Defendant No. 2 on its own has observed that this case has been remanded by the Hon'ble High Court of Sindh vide order dated 27.3.2002 in C.P. No. D-1083/2001, whereas, the order was not exactly to that effect and it only directed the Petitioner to approach Secretary (RS&EP) Board of Revenue, Sindh where his application will be considered and decided in accordance with law. The directions were only to the extent of deciding the application (pending if any) which would mean that such application must have been pending before the Settlement or Rehabilitation authorities before the cut of date i.e. 1.7.1974, which is not the case of Defendant No.6 as clearly spelt out in Para No.3 of their petition bearing C.P. No. 1083/2001. The said Para reads as under.

3. That the petitioner made several applications/representa-tions. As a result whereof the various proceedings were held before each of the respondents for mutation in favour of and the delivery of possession to the petitioner. But the respondents Nos. 3 and 4 neither cause any mutation nor did deliver the possession of the aforesaid land to the petitioner for the reasons other then bona fide. Perusal of the above clearly reflects that the petitioner had firstly impugned the non-responsive attitude of respondents Nos.3 and 4 (The Deputy Commissioner, Karachi East and the Mukhtiar Kar, Karachi, East) and nowhere any allegation was made to the effect that their case was pending before the Notified Officer and is not being decided. In fact as stated the said Notified Officer was not even a party to the petition. Therefore, under no circumstances the order dated 27.3.2002 passed by the learned Division Bench could be construed so as to assume jurisdiction by treating the same as a remand order. Directions for merely deciding any pending application or redressal of grievance without any specifics cannot always be deemed to be a remand order. The same could only be treated as a remand order, if it has been passed while exercising appellate jurisdiction, or for that matter Constitutional jurisdiction, but again in respect of an order impugned, and not merely when inaction on the part of a Government functionary has been challenged before the Court. On the face of it, it appears that while passing the impugned order the Defendant No.2 has assumed such jurisdiction under the garb of the order passed by this Court in the aforesaid petition and in the circumstances, the same appears to have been passed without jurisdiction and any lawful authority.

11. The Hon'ble Supreme Court in the case of Nawabzada Zafar Ali Khan (Supra) relied upon by the learned Counsel for the plaintiff has been pleased to observe as under:

30. Bare perusal of above provisions would disclose that only such matters which were either actively pending consideration before Authorities for final disposal or had been remanded by the High Court or Supreme Court were to be finalized by the "Notified Officers". The Settlement or Rehabilitation Authorities by express positive assertion have no jurisdiction to entertain any fresh petition or representation. In the present case undisputedly question of entitlement concerning agricultural property left over by Nawab Faiz Ali Khan in Patiala State was neither remanded by this Court in the above judgment, dated 19th July, 1962, nor any such directions were made by the High Court while dismissing the Petition No.121-R of 1989 on 11-2-1990, whereby notified officer on its strength could commence proceedings. Therefore, any petition or representation filed by the petitioners with regard to matter which otherwise stood finalized long back or even where aggrieved person may believe to have legitimate claim, same under the law could not be entertained by Chief Settlement Commissioner or Notified Officer or any other Settlement Authority by virtue of The Repealing Act'. Therefore, proceedings drawn by Settlement Commissioner which culminated in passing of order, dated 26-2-1992 were devoid of lawful authority and deemed to have no legal effect. Therefore, on the established principle of law entire edifice constructed over it shall automatically crumble and fall to the ground. There is plethora of case-law on this aspect, however, some of the reported judgments may be referred (i) Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104); (ii) Khuda Bakhsh v. Khushi Muhammad (PLD 1976 SC 208); (iii) Munsab Ali v. Amir and others (PLD 1971 SC 124); (iv) Maj. Syed Walayat Shah v. Muzaffar Khan (PLD 1971 SC 184); (v) PLD 1975 SC 450 (Sindh Employees' Social Security Institution v . Dr. Mumtaz Ali Taj) and (vi) PLD 1997 SC 351 (Province of the Punjab v. Dr. S. Muhammad Zaffar Bukhari)

31. Now adverting to the other aspect, it may be seen that after finalization of claim and grant of maximum land to Nawabzada Mumtaz Ali Khan matter connected with disposal of agricultural property of late Nawab Faiz Ali Khan had been finalized and closed. On promulgation of 'The Repealing Act' entire rural and urban evacuee property vested in Provincial Government by operation of law. Therefore, except to the extent of pending matters specified in above enactment, said property was not available to Settlement or Rehabilitation Authorities for disposal in any manner. In this behalf reference can be made to following observations in case PLD 1991 SC 1255 (Syed Saifullah v. Board of Revenue, Balochistan) Similarly in the case of Sharif and others (Supra) it has been held that;

6. We have heard parties counsel and have also gone through the impugned judgment carefully as well as earlier judgment passed by the Court as back as on 9th July, 1975, relevant portion there from has been reproduced hereinabove. There is absolutely no doubt that in pursuance of the judgment of this Court referred to hereinabove the cancellation of the land from the name of the petitioners was confirmed because the judgment of the High Court, dated 10th March, 1975 passed in Writ Petition No.806-R/1972 was operating against them and it was not set aside despite of the fact that specifically it was argued on behalf of the petitioners that under section 11 of the Act the decision of the High Court is in conflict. To strengthen the argument reference was made to PLD 1964 Lahore 469 and PLD 1972 Lahore 880. 'But this Court repelled the argument by making an observation to the effect that as regards second point is concerned, we do not think that the same needs to be decided. Therefore, no other conclusion can be drawn except that despite making favourable observations in favour of petitioners directing them to approach the Settlement Authorities, the latter was not asked to sell the property to the petitioners except observing that their request should be considered sympathetically. Therefore, we are of the opinion that the case was not remanded to the Settlement Authorities for redressal of grievance of the petitioners necessarily. This point if examined in view of the observations made by this Court in the case of Farhat Azeem (ibid) that under Article 189 of the Constitution of Islamic Republic of Pakistan the Supreme Court is the highest judicial forum in the country, it has to interpret the law while hearing appeals from the judgments of the High Court and the subordinate judiciary. Invariably such matters are considered by more than one Judges having long experience and thrash out the proposition brought before them in the light of the chain of judgments rendered on the controversy in issue and ensure that continuity of law is maintained as it is essential for good judicial administration. The subordinate judiciary should always give its utmost respect, regard and consideration to the judgments, decrees, directions and orders of the Supreme Court, for, it is necessary apart from the binding nature of the same for maintaining discipline in all ranks of judiciary, no other conclusion can be drawn that undoubtedly under Article 189 of the Constitution of Islamic Republic of Pakistan the judgments are required to be respected particularly if it has decided a question of law or enunciated a principle of law. We feel no hesitation in making observation that in the earlier judgment pronounced by this Court in C.P.S.L.A. No.342 of 1975 we have not remanded the case to the Settlement Authorities for doing the needful in favour of petitioners after setting aside the orders operating against them because our observations were that the claim of the petitioners can be considered sympathetically. Obviously the claim of the petitioners can only be considered if they succeed in establishing a legal right in their favour. Admittedly after the cancellation of land from the name of petitioners it was transferred permanently in favour of respondents, as back as in the year 1969 in terms of section 14A(1) of the Act, therefore, the land was not available for disposal in favour of the petitioners. Simultaneously the notified authority had no right to cancel the allotment from the name of respondents by recalling order, dated 1st September, 1969 which was passed under section 14A(1) of the Act because after allotment of land in favour of respondents a right has accrued in their favour in terms of of this Court in the case of Jehangir Khan and 9 others v. Mst. Begum (1996 SCMR 1504).

7. It may also be noted that the contention of the learned counsel that the observations favourably made to favour of petitioners tantamounts to remand the case to the notified authority is not acceptable because considering the case sympathetically means that he should be accommodated if possible but not at the cost of others, therefore, in our opinion the Assistant Commissioner erred in law in passing order in favour of petitioners on 17th March, 1976 for number of reasons out of which one could be that when there is no property available for transfer how the petitioners could be accommodated by considering their request sympathetically. Secondly the allotment of the cancelled land from the name of petition has already been confirmed in favour of respondents with effect from 1st September, 1969 and until and unless that order holds the field no subsequent sale of the property to the petitioners can take place. Therefore, we are of the considered opinion that this Court has not remanded the case to the notified authority/Assistant Commissioner a setting aside the order, dated 10th March, 1975 in Writ Petition No.806 of 1972 operating against the petitioners and because order of cancellation of excess land has been confirmed by this Court, therefore, Assistant Commis-sioner had no authority to pass fresh order in their favour causing serious prejudice/ injustice to the respondents who have acquired valuable rights in the property as held by this Court in the case of Jehangir and others (ibid). Thus under these circumstances learned High Court was quite justified in allowing the writ petition filed by respondents vide impugned judgment.

12. In view of hereinabove facts and circumstances of this case it can be safely held that order dated 3.9.2002 has been passed by defendant No.2 without any jurisdiction and lawful authority as the matter was never remanded by the learned Division Bench of this Court while disposing of petition of defendant No.6, whereas, admittedly it was not pending before the Notified Officer before 1.7.1974 so as to assume any jurisdiction in terms of subsection (2) of section 2 of the Repeal Act, 1975. Therefore issue No.7 is answered in negative, as a result whereof the other issues are not required to be answered. Issue No.8:

13. Accordingly instant Suit is decreed to the extent of prayer clauses (B) and (C) only. Office is directed to prepare decree accordingly. ZC/K-5/Sindh Order accordingly.