1985 PLP 325 (MLD)

The subject-matter of this petition is agricultural land bearing Survey No. 150 (9 Acres and 7 Ghuntas) situated in Deh Khahi, Memon Taluka, Naushero Feroze. In this land 10 Annas 8 Paisa share belonged to the following Hindu evacuees : (1) Gobind Ram. (2) Roopchand. (3) Lohomal. (4) Mohchand. (5) Darpan. (6) Lachmi Bai. (7) Motoram. Except Gobind Ram and Lachmi Bai all were minors. The property was treated as an evacuee property and was acquired by Notification issued under section 4 of the Displaced Persons (Land) Settlement Act, and it was transferred to Pir Dost Ali, (1.32 Acres) (2) Ghulam Muhammad (4-15 Acres) and (3) Lal Khan, Hadi Hassan and Suieman (3-0 Acres), Ghulam Muhammad sold his share to Sadiq who in turn sold to Dhani Bakhsh. Other transferees also sold their land to him. The petitioner by a registered sale-deed purchased the entire land from Dhani Bux and her name was mutated in the records of rights. The proceeding was first initiated on 19/21st July, 1960 when respondents Sohrab, Long, Umed Ali and Nadir Bakhsh filed an application under section 20 of the Act XII of 1957 for confirmation of sale of these lands in their favour. It was stated in the application that they have purchased 10 Annas 8 Paisa share in Survey No. 150 through a registered sale-deed, dated 23-12-1947 for consideration which they have fully paid to the Hindu owners. It was alleged that they had filed an application in 1949 bearing No. 715/49, but as their Advocate was appointed a Judge the papers were not traceable. The respondents filed certified copy of the records of rights, list of witnesses, registered sale-deed and affidavit. This application was considered by the Additional Custodian (II) Evacuee Property, Hyderabad who by his order dated 11-10-1960 observed that the respondents were not presenting necessary documents to show that Hindu evacuee owners were entitled to sell the property. It is pertinent to note that out of 7 Hindu sellers two were majors and 5 were minors and these two majors acting on behalf of minors owners had sold the property. The learned Additional Custodian observed as follows:- "The case is incomplete, as it is essential to know that the respondent had right to sell the property. If the applicant produces a certified copy of Form No. 6 within 15 days, the case should be re-opened and decided on its merits, by the Deputy Custodian Nawabshah, falling which the case should be considered as dismissed. The case be consigned to record room." In this order the learned Additional Custodian had also referred to the order dated 21-7-1960 passed by the Deputy Custodian, who had condoned the delay in filing this application. It also seems that at the time when the order was passed the Advocate for the respondent applicant was present before the Additional Custodian. The respondent had the knowledge of this order, but the appeal was filed before the Additional Custodian somewhere in the year 1967, who by his order dated 11-5-1967 observed that the appeal was filed after nearly 61 years from the date of the 'order and the condonation was sought on the ground that village Form VI could not be obtained earlier but this plea was not accepted. However, the learned Additional Custodian held that he cannot sit in judgment over the order passed by an Additional Custodian, and dismissed the appeal. The respondents then filed a Revision application before the Custodian Evacuee Property Sind, who by the impugned order dated 3-12-1973 ordered that the declaration as sought for is granted'. In the impugned order it has been mentioned that the registered sale-deed was sufficient to entitle the respondent for the declaration that the property is a non-evacuee property. Mr. Arif Hussain the learned counsel for the petitioner has amongst other contentions contended that after the issue of notification under section 4 of the Land Settlement Act all the rights in the land vested in the Government and the Custodian had no jurisdiction to pass an order for confirmation of sale or for declaration of property as a non-evacuee property. Mr. Qureshi the learned counsel for the respondents on the other hand contended that as the application for confirmation had been filed as far back as in 1949 which was pending the Custodian was bound to exercise jurisdiction over the matter. From the statement of fact, and perusal of the record, it seems clear that the application for confirmation of sale was made on 19/21-7-1960 In this application a reference has been made to Application No. 715/49, but it seems that nobody knows about the fate of that application, whether it is pending or it has been disposed of. The fact that the Deputy Custodian at one stage condoned the delay in filing the application under section 20 shows that this application was treated as a fresh application, end the entire proceedings culminating the impugned order was initiated on the basis of application filed on 19-7-1960. This being the facts on record, tile question arise whether the respondent No. 1 had the jurisdiction to pass the impugned order. Mr. Arif Hussain the learned counsel has referred to P, L D 1973 S C 451 which is completely applicable to the present case. There it was observed as follows:- "We must uphold the preliminary objection raised on behalf of the respondent and rule that after the acquisition of the lands under section 4 of the Displaced Persons (Land and Settlement) Act, 1958 the learned Custodian of evacuee property had no jurisdiction to confirm the sales in favour of two appellants." This observation equally applies to the facts of present case where the respondent had assumed jurisdiction to declare the property as non-evacuee, although such a declaration was not sought by the respondents Nos. 3 and 5 and in passing such an order he has manifestly acted without jurisdiction. A persual of the impugned order will show that the respondent No. 1 has not considered the facts on record as the appeal by the respondents Nos. 3 to 5 was filed after 6 years and was patently time-barred. This fact ought to have been noticed by the respondent No. 2 which he has completely ignored. I may point out that earlier this petition was disposed of by Fakhruddin G. Ibrahim J. (as he then was) on 2-5-1978, but as the learned counsel for the respondent was absent that judgment was set aside, and this matter has been fixed for re-hearing. In that judgment also my learned brother had observed as follows: "I am constrained to point out that the order appears to have been passed in a hurry without applying mind by the learned Custodian, and so much so that he had. not even referred to the fact that the appeal filed by the respondents Nos. 3 to 6 was hopelessly barred by time." In the result the petition is allowed. The impugned order declared to have been passed without lawful authority and is of no legal effect. There will be no order as to cost. H . B . T .