1983 PLP 1963 (CLC)

P L D 1981 Azad J & K 21 fol. A: F. M. Mokharam for Petitioners. Gulab M. Rang for Respondents. Date of hearing : 1.7th November, 1982. The petitioners have filed the above petition for declaring the order dated 27th June, 1974, of the learned Custodian of Evacuee Property, on respondent's appeal, filed against rejection of his application under section 22 of the Pakistan Administration of Evacuee Property Act (XII of 1957) by the learned Deputy Custodian. Evacuee Property, Khairpur Divi sion, at Sukkur, vide order dated 19th February, 1974, as illegal, null and void on the facts and grounds mentioned in the above petition.

2. However, the learned Advocate for the petitioners in support of the above petition submitted, that the respondent No. 1, while disposing of appeal No. 41/74, did not take into consideration the important legal fact, that the respondent's application moved before the learned Deputy Custodian of Evacuee Property, against the order dated 20th January, 197 was hopelessly time‑barred by period of nearly 2 years and as such ought to have been dismissed on the said ground alone.

3. The learned Advocate appearing for the respondent No. 2 on the other hand submitted, that the point of limitation was neither raised before the learned Deputy Custodian of Evacuee Property nor before the Custodian and as such the same cannot be raised in the above petition, as both the learned lower Courts have deemed to have condoned such delay, while disposing of respondents application and appeal on merits. In support of this contention, the learned Advocate for the respondent relied upon Full Bench decision of the High Court of Azad Jammu and Kashmir, reported in P L D 1981 Azad J & K

21. In addition to this the learned Advocate for the respondent No. 2 submitted, that the learned Custodian in his impugned order has clearly held, that the properties in question were acquired by respondent No. 2 in the year 1940, by Regis tered sale‑deed and as such the said transaction did not require confirmation. The learned Custodian has further held in his impugned order, that in the year 1959 Assistant Custodian, Nawabshah had held the respondent No. 2 as non‑evacuee and as such the properties' in question should not have been declared as evacuee and as a matter of fact the respondent No. 2' properties were not treated as evacuee properties before 1st January, 1957. The learned Advocate for the respondent No. 2 further submitted, that these are the questions of fact, which have been considered by the learned Custodian, while disposing of the respondent's appeal No. 41/74 and as such in the absence of any other illegality and/or material irregularity or want of jurisdiction in the impugned order of the learned Custodian, the said order which is also based on facts on record, cannot be interfered with in this writ jurisdiction. The learned Advocate for the respondent farther submitted, that the learned Advocate for the petitioners, except on the‑ point of limitation, was unable to challenge the order of the Custodian and as such the above petition is liable to be dismissed.

4. I have carefully‑ considered the above submissions made by the learned Advocates before me. I called upon the learned Advocate for the petitioners to point out to me any order or document by which respon dent No. 2's properties were treated and/or declared as evacuee before Ist January, 1957, but he was unable to point out any such document and/or order. In view of this and since the question of limitation regard ing the maintainability of respondent No. 2's application under section 22 of the Administration of Evacuee Property Act, XII of 1957 was not raised or agitated either before the learned Deputy Custodian or the Custodian Evacuee Property, in my opinion the same cannot be now considered by me in the above petition. In this view of mine, I am supported by the decision of Full Bench of High, Court of Azad Jammu & Kashmir P L D 1981 Azad J & K 21 and I am in respectful agreement with the said judgment for the reasons given in the said judgment and since I find n illegality in the impugned order of the learned respondent No. 1, I dismiss the above petition. However, in view of the facts and circumstances o the present petition, I would pass no orders as to costs. M. Y. M. Petition dismissed.