1983 PLP 2023 (CLC)

2. After the above proceedings, petitioner No. 1 served notice under section 30 of the then Displaced Persons (Compensation and Rehabilitation) Act of 1958 upon the respondent Shaukat and others intimating about the transfer and calling upon them to pay rent to him. Since no rent was paid, petitioner No. 1 filed an application for ejectment (Case No. 194/62) in the Court of the Rent Controller for eviction of occupants/respondents Nos. 2 to

6. The ejectment case was contested by these respondents who claimed to be the owners of the property in question. On an issue framed as to the existence of the relationship of landlord and tenant between the parties, the learned Rent Controller dismissed the said application with the observation that title was in dispute and that the relationship of landlord and tenant between the parties was not proved.

3. At this stage, I would like to mention here that according to the petitioner in 1951 the property was surveyed by the Custodian authorities when the predecessor of respondents Nos. 2 to 6 signed the inquiry form of the office of the Custodian of Evacuee Property, as an occupant. Certified copy of the said inquiry form has been produced which according to the petitioners, was signed by the occupant Wali Muhammad, son of Sadaturio. Thereafter, the abovementioned property was included for disposal according to earmarking scheme as the occupant had not applied for its transfer. In the earmarking list, this property is shown at S. No. 216 as bearing Municipal No. 354, name of the owner is shown as Bhopaldas Jethanand and the occupant thereof is shown to be Wali Muhammad Sadatorio. Copy of the relevant entry wherein the property is shown as included in the earmarking list, has been produced as Annexure `B' to the petition. According to the petitioner the properties however were not disposed of under the earmarking scheme but were ultimately offered for sale by public auction which took place on Ist May, 1960 at which the petitioners were the successful bidders. P. T. D. issued on 2nd May, 1965 showed the properties bearing No. II-354 and 360 transferred to the petitioners Nos. 1 and 2 respectively.

4. Subsequent to the order of the Rent Controller referred in para. 2 above, appeal bearing No. Additional Settlement/KHP/71-73 was filed before the Additional Settlement Commissioner, Kbairpur Division, by Shaukat Hussain and others, the L. Rs. of Wali Muhammad Sadatorio, claiming to be the owners of the properties and for cancellation of the transfer of the above-mentioned properties in favour of the petitioners, on the plea that the said properties are private properties owned by Wali Muhammad, son of Sadaturio. Certain evidence was produced and site was also inspected by the Additional Settlement Commissioner who held that claim of Wali Muhammad that the House No. 2239 corresponding to D. S. No. II C-331 was his private property, could not be accepted. It was further held that the Custodian department undertook the survey in 1951 when Wali Mohammad, signed the inquiry card and thus subscribed to the fact of the property being evacuee property. It was also held that the same was the position in respect of departmental survey No. I1-C-360 which corresponds to the Property No. 2241 in Municipal record with these observations the Additional Settlement Commissioner dismissed the appeal as misconceived. It was also observed that their property is situated elsewhere and they should get their property located by the City Survey Office. This order was passed on 1st February, 1963.

5. After passing of the above order no action was taken by respon dents Nos. 2 to 6, the legal representatives of Wali Muhammad son of Sadaturio, until 12th September, 1964 when an application under section 22 of the Pakistan Administration of Evacuee Property Act of 1957 was filed for declaration that the full share in the houses mentioned above situated in Shabdadpur are non evacuee properties belonging to the applicants/respondents Nos. 2 to 6 and that their rights are not affected by the transfer of the said houses in favour the petitioners. In this application the respondents while contending that the above-mentioned pro perties belonged to their ancestor Wali Muhammad' Sadaturio who died in 1959, submitted that the same were not evacuee properties. Reliance was placed upon documentary evidence which consisted of Municipal record and the tax paid to the Municipality by them. According to the said respondents as pleaded in para. 2 of the said application, owing to some misunderstanding and error the two houses were considered as evacuee properties left by Hindu owners and were put to auction by Deputy Settlement Commissioner, Nawabshah and were purchased by petitioners Nos. 1 and 2 respectively. According to the respondents they came to know for the first time of such a transfer in favour of the peti tioners through a notice dated 29th July, 1963 sent by petitioner No. t through his Advocate informing them of the transfer whereupon they moved the Deputy Settlement Commissioner, Nawabshah praying for cancellation of the transfer of the two houses made in favour of the petitioners but the said application was disallowed. Thereupon appeal was preferred by them to the Additional Settlement Commissioner Khairpur Division but the same was dismissed on 1st February, 1963 with the observations and instructions to approach the Custodian authorities to get the, declaration that the properties involved are non-evacuee properties. The respondents also pleaded that due to wrong advice given by their counsel and under a bona fide mistake of law and mistaken belief instead of seeking their remedy before the Custodian authorities they filed revision application before the Settlement Commissioner, Khairpur which was probably transferred to Settlement Commissioner, Sukkur where the last date of hearing was 19th July, 1963 but they could not know the fate of the said revision petition and probably the petition was decided ex pane in their absence on that date or on some other date thereafter and that no copy of the said order could be obtained in spite of their efforts as the record was shifted to Karachi. Accordingly it was contended that in the circumstances, the above application under section 22 of the Act No. 12 of 1957 was moved on 12th September, 1964 "taking cause of action from the order dated 1st February, 1963 passed by the Additional Settlement Commissioner" and requesting for condonation of delay in filing the application. Notices were issued to the present petitioners who appeared before the Additional Custodian Evacuee Property before whom Shaukat Hussain one of the L. Rs. of the deceased Wali Muhammad Sadatorio (the present respondent No. 2) was examined and cross-examined. The Additional Custodian. after recording evidence produced on behalf of the L. Rs. of Wali Muhammad Sadatorio and hearing the Advocates for the parties held that they failed to prove their ownership of the properties in dispute and that the same were rightly auctioned by the Settlement Authorities. It was further observed that the application was barred by time, there was no sound. reason to condone the delay as applicants/ respondents Nos. 2 to 6 were specifically directed to seek declaration as far back as 1st February, 1963 by the Additional Settlement Commissioner and there was no proof that they had filed written objections before the Settlement Commissioner, Khairpur. The application was thus dismissed.

6. An appeal against the aforesaid order was filed before the Custodian of Evacuee Properties under section 43 of the Act No. 12, e 1957. Before the Custodian, the respondents sought to produce certain documents a list of which was filed but according to the petitioners, in spite of the promise on the part of the Advocate for the respondents not copies were supplied to him though a reminder to that effect was sent in writing on 28th August, 1971 by the Advocate for the petitioners. The counsel for the petitioners further stated that on the date fixed of hearing he pointed out that no copies of the documents sought to be produced had been supplied to him and that it was argued by him that the applica tion made under section 22 was barred by time, that the property had gone out of the Evacuee/compensation pool and thus ceased to be evacuee property whereby the Custodian was left with no jurisdiction to declare the property as non-evacuee property. According to the learned counsel these pleas were totally ignored by the Custodian who by order passed on 11th February, 1974 allowed the said appeal and declared that the inclu sion of the property in the evacuee pool and its subsequent auction were illegal on the ground that the property never belonged to an evacuee. The order of the Additional Custodian was accordingly set aside and the revision application was allowed.

7. Aggrieved by the aforesaid order the petitioners moved this Court by filing the petition under Article 199 of the Constitution of 1973.

8. Having heard the learned counsel for the parties I find consider able force in the submission made by the learned counsel for the petitioners to the effect that before passing the impugned order dated 11th February, 1974 notice ought to have been issued by the Custodian to the Rehabilita tion authority. Rule 12 (5) of the Administration of Evacuee Property Rules. 1950, which is reproduced here in below provides that:- "Rule 12 (5).-The Custodian shall cause a notice to be served on the respondent, and the. Rehabilitation Authority of the area in which the property is situated, and on any other person likely to be interested in or affected by the result of the application, and may also cause a public notice to be published in a Newspaper at the expense of the applicant". While dealing with application made under section 22 (which corres ponded to section 18 of the repealed Ordinance of 1949), the Custodian similarly was required to cause notice to be served upon the parties interested and the Rehabilitation Authority, vide Rule 13 (4) of the' above mentioned Rules which provided as under:- "Rule 13 (4).-The provisions of sub-rules (4) and (5) of rule 12. shall apply mutatis mutandis to an application under subsection (4) of section 18." The learned counsel for the petitioners rightly urged that the omission on the part of the Custodian to give the notice as required by the above quoted rules and failure to give opportunity to them, to rebut the additional documentary evidence produced and taken into consideration without any formal proof, resulted in serious prejudice to the petitioner and vitiated the proceeding. There is yet another aspect of the case, which ought to have been taken into consideration by the Custodian while passing the impugned order. The Additional Custodian (J) while rejecting the application filed by the respondents, Nos.2 to 6 by order dated 30th April, 1965 whiles holding that they had` failed to prove their ownership of the property in dispute which had thus been rightly disposed by the Settlement authorities. also held that the application was barred by time and there teas no sound reason to condone the delay. The Custodian while entertaining and disposing of the appeal against the above order how ever did not even care to consider this important question involved in the a case, though urged by the Advocate for the present petitioners. Reference be here made to the judgment of the Honourable Supreme Court in the case of Ahsan Ali v. District Judge (P L D 1969 S C 167). Wherein repelling the contention that since the Additional Settlement Commissioner had entertained the appeal and decided it on merits it must be taken that he had also condoned the delay held :- "It is clear, therefore, that whether the plea of limitation was raised or not, it was the duty of the Settlement Court, to notice the point of limitation. A waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by a special or a local law. It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits."

9. Lastly reference may also be made to the case of Mehtab Khan v. Rehabilitation Authority (P L D 1973 S C 451). on which reliance was placed by the learned counsel for the petitioners in support of the plea that the Custodian was left with no jurisdiction to grant the declaration after the property in question had been acquired and had ceased to be evacuee property.

10. The above questions raised by the learned counsel for the petitioners no doubt are material and vital which go to the root of the controversy involved but were omitted from consideration while passing the impugned order. The learned counsel for the respondents Nos. 2 to 6 was unable to show anything which could justify the passing of the impugned order without first deciding the question of limitation and disposing of the other issues thus raised. In the circumstances following the case of Ahsan Ali. I set aside the impugned order dated Ilth February, 1974 passed by the Custodian and remand the case to the Custodian/authorised officer for disposal of the appeal in accordance with the law after giving notice to Rehabilitation Authority! notified officer adequate opportunity to the parties for adducing evidence on question of title as well as limitation and representing their case. The petition was disposed of by short order passed on 17th August, 1982. The above are the reasons for the same. K. M. A. Petition disposed of.