1989 PLP 4339 (MLD)

SAEEDUZZAMAN SIDDIQUI, J.--This petition under Article 199 of the Constitution is filed by the petitioner to challenge notices dated 9-2-1984 and 28-9-1984 Issued to the petitioner by the Deputy Secretary, Land Utilization II in connection with a case relating to Plot No.140, Garden East-Quarters, Karachi. The following is the background of the present petition. Property bearing Survey No.14t), Garden East Quarters, Karachi was owned by a registered Society Known as Remarshana Math. The said Society, had its registered office at Delure Math District Howrah, Calcutta. One Mian Muhammad Rashid, the predecessor-in-interest of the present petitioner claimed to have purchased the above property from the aforesaid society through a registered sale-deed dated 24-7-1946. The petitioner claims that this registered Decd was confirmed by the Additional Custodian, Karachi in Application No.1718 of 1949 by a Judicial order dated 8-2-1959. It appears that the Custodian of Evacuee Property on a reference dated 16-2-1959, made to him by Additional Custodian (Survey) requesting for suo motu revision of the order of Additional Custodian (judicial) in case No.1710/1949 called for a report from Additional Custodian (E.P) Mr. Riazuddin in respect of properties bearing Nos.251, 252, 262, 140, and 258, Garden West, Lawrance Road, Karachi. Mr. Riazuddin the Additional Custodian Evacuee Properties in his report to Custodian of Evacuee Properties, dated 6-4-1960 opined that the said decd executed in favour of Mian Muhammad Rashid was not proper as the person who acted as attorney of the said Society was not holding a valid power of attorney executed in his favour and as such he was not competent to transfer the property on the basis of said power of attorney. The petitioner claims that the reference was finally rejected by the Custodian of Evacuee Properties by order dated 28-5-19tA0 and the notices issued to the petitioner by the Additional Custodian were vacated. The order of Custodian produced by the petitioner is dated 28-5-1960. However, the genuineness of the order of Additional Custodian dated 24-7-1948 and that of Custodian dated 28-5-1960 was not admitted by the respondents Nos.1 and

2. In fact the basis of doubting the genuineness of these orders, as frankly stated by the learned A.A.G., is the absence of the relevant record in the office of Respondent No.l. The petitioner has further alleged in the petition that in year 1970 a suit was filed against Mian Muhammad Rashid for recovery of loan, on the basis of a mortgage executed in favour of an Insurance Company for this property but the said suit was finally decided in favour of Mian Muhammad Rashid and the property was released from the mortgagee. It is also claimed by the petitioner that after the death of Mian Muhammad Rashid the property was mutated in the name of the present petitioner who is legal heir of Mian Muhammad Rashid. It appears that respondent No.2 made a representation to the Deputy Settlement Commissioner (respondent No.l) for transfer of a portion of property bearing Survey No.140 can the allegation that this property is still undisposed of and is available for transfer under the provisions of the: Displaced Persons (Comp & Rehb) Act, 1958. On the basis of this representation the respondent No.1 addressed a letter to the Deputy Secretary Board of Revenue recommending that on examining the record it has come to light that the above property is still undisposed of which may be included in the list of the available properties for disposal to the persons entitled to its transfer under the scheme. On the basis of the above letter of Deputy Settlement Commissioner the Deputy Secretary issued the impugned notices to the petitioner to appear before him and produce the original documents in support of his case. Comments in this case were called for our respondent No.1 and in his comments the respondent I has stated that in the record of Evacuee Property Register the properly is shown as purchased but there is no entry in the relevant record with regard to the order of confirmation of sale by the Custodian. It is also stated in the comments submitted by respondent that there is no record available with them with regard to the confirmation proceedings and therefore they are not in a position to accept the genuineness of the document produced by the petitioner alongwith the petition. However, in their comments they have stated that the averments regarding suo motu revision arc not denied. The contention of the petitioner in the case is that in view of the order of confirmation of sale by the Additional Custodian and the subsequent order of the Custodian Masood Ahmad, holding that the sale was validly confirmed in favour of the petitioner and vacating the notices issued by the Additional Custodian no further jurisdiction was left with the Settlement Authorities to start any probe in respect of the property in dispute. It is also contended by the learned counsel for the petitioner that after the repeal of evacuee laws by Ordinance 15 of the 1974 only those cases could be proceeded with by the settlement department which were either pending on the date of promulgation of the Ordinance or which came on remand to the authorities concerned as a result of the order passed by the High Court or Supreme Court in the proceedings which were pending at the time of enforcement of the said Ordinance. It is accordingly contended by the learned counsel that as there were no proceedings pending in any Court or authority in respect of the property m dispute on the date of promulgation of Ordinance 15 of 1974 the respondents had no jurisdiction to issue any notice in respect of the proceedings initiated on the basis of a letter addressed by respondent No.l on 14-6-1982. The legal position canvassed by the learned counsel for the petitioner is not open to any exception. However, the contention of the learned counsel for the respondents including the Asstt. A. G. "-no represents respondents Nos.1 and 2, is that there is no record available to support the contention of the petitioner that the orders, dated 8-2-1959, and 28-5-196,0 were passed by the Additional Custodian., Judicial and the Custodian of Evacuee Property, West Pakistan, Karachi, respectively in respect of the disputed property. The petitioner has produced photo copies of the certified copy of the above order in this petition which shows that sale transaction in respect of disputed property was confirmed by the Custodian. The fact that such proceedings were lodged by Mian Riazuddin before the Custodian of Evacuee Property is also supported by the simple copy of the comments of Additional Custodian (Judicial) Mian Riazuddin dated 6-4-1960, which has been filed in this Court along with counter affidavit of Mst. Allah Rakhi and which is admitted as correct by all the parties. The copy of the comments of Mian Riazuddin dated 6-4-1960 clearly shows that the property was allegedly sold by the Society through attorney in favour of Mian Muhammad Rashid which was confirmed by the Additional Custodian and the subsequent Additional Custodian had recommended for withdrawal of that order on the ground that the person who had executed the sale-deed in favour of Mian Muhammad Rashid was incompetent and did not hold valid power of attorney. On the face of this record it is not possible in these proceedings to hold that the orders dated 8-2-1959 and 2h-5-1960 passed by the Additional Custodian, Judicial and the Custodian of Evacuee Property, Judicial and the Custodian of Evacuee Property, Karachi respectively are non-existent. In these circumstances the contention of the learned counsel for the respondents that these documents are not genuine as there is no record available in the relevant Department cannot prevail. We are accordingly of the view that so long these two orders of Custodian authorities are in the field the respondents will have no jurisdiction in the matter. Accordingly we declare the notices dated 9-2-1984 and 28-2-1984 issued on behalf of Respondent No.2 as wholly without jurisdiction and lawful authority. However, it is clarified that by holding that the respondents had no jurisdiction to issue the impugned notices it should not be construed that we have held the documents relied by the petitioner as genuine. It is, therefore, open to the Government or the respondents if it is available to them under the law to take any proceedings for determination of the genuineness or otherwise of these documents and depending upon the result of such enquiry they are at liberty to take such action against the person found guilty which is permissible under the law. With these observations the petition is allowed but there will be no order as to costs. H.B.T./A-624/K