1987 PLP 1747 (SCMR)

MUHAMMAD AKRAM, J.‑‑This is a petition for special leave to appeal from the judgment dated 18th of October, 1976, passed by a Division Bench of the Lahore High Court at Lahore dismissing the writ petition No.1085 of 1975 filed by the petitioners herein against the respondents, in the circumstances stated as under:‑ On the death of Akbar Ali Khan in India his estate had devolved on Mst. Piar Bano as his widow allegedly under the customary law. She was thus, possessed of considerable landed property situated in East Punjab (India) which she had abandoned on her migration to Pakistan. She submitted her claim form which was verified by the Central Record Room in due course and in satisfaction of her verified claim evacuee lands situated in the Districts of Lyallpur (now Faisalabad) and Sheikhupura were allotted and confirmed in her name. She then transferred these lands by some alienations effected in favour of the petitioners herein and died afterwards in Pakistan in the year 1967. After her death disputes and differences arose between the petitioners as the transferees of these lands and respondents 3 to 21 claiming as the collaterals of Akbar Ali Khan deceased, the last male holder of the lands abandoned by his widow in India. Ultimately, respondents 3 to 21 were held not entitled to any share in the lands in dispute confirmed in her name. However, this Court in Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others P L D 1971 S C 791 had occasion to examine the question as to the nature of the estate taken by a female (recorded in the special jamabandi received from India as a limited owner under custom) in evacuee properties allotted to her, on migration to Pakistan, under the Rehabilitation Scheme, in lieu of the properties abandoned in India. The Court held that in such circumstances the refugee females were to be treated as having limited estate only in the lands thus allotted to them in Pakistan. But at the same time this Court observed that decision will not have the effect of re‑opening other past and closed transactions. In these circumstances, on the 31st of March, 1975, the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act XXV of 1975 was promulgated with the avowed object of extending the benefit of the said decision by the Supreme Court of Pakistan to the other aggrieved persons as well. In section 2 of the Act it is laid down that notwithstanding anything to the contrary contained in any other law for the time being in force, all decrees, judgments or orders passed in any suit, appeal or other proceedings by any Court or other authority treating refugee female allottee as full owner of the property allotted to her in lieu of the property abandoned by her in India or to which she was otherwise entitled, as a limited owner, shall be of no legal effect and such suit, appeal or other proceedings shall, on an application made by an affected person within one year of the commencement of this Act, be decided afresh. Section 3 of the Act however, further provides that any person aggrieved by an alienation or an order of succession with regard to any property allotted to a refugee female in lieu of the property abandoned by her in India or to which she was otherwise entitled as a limited owner under custom, and who could not challenge such alienation or succession, may call it in question in a Court or before any other authority within one year of the commencement of this Act. Section 4 of this Act further provides that any person who claims to have acquired any right or interest in property whether by alienation succession or otherwise, originally allotted to a refugee female limited owner, shall have no right to plead adverse possession against any lawful heir of the last male holder. On this respondents Nos. 3 to 21 submitted an application before respondent No.2 claiming entitlement to the lands in dispute on the basis that Mst. Piar Bano was holding them as the limited owner only and consequently these have devolved upon them on her death, as the collaterals of Akbar Ali Khan, the last male holder, under the customary law. The petitioners, therefore, instituted writ petition No.1085 of 1975 in the High Court at Lahore questioning the validity and the vires of the claim thus made by the respondents and the provisions of the Punjab Act XXV of 1975. But the writ petition was dismissed after hearing, by a Division Bench of the Court on the 13th of October, 1976. Hence, this petition for special leave to appeal from the judgment of the High Court. We have heard the learned counsel for the parties appearing before us in this petition. Before us the learned counsel for the petitioner has inter alia, challenged the vires of the Punjab Act XXV of 1975 on the following grounds:‑ (1) That section 2 of the Act has purported to reopen the orders passed by the Rehabilitation Authorities which had attained finality under the Central laws made for the rehabilitation and settlement of the refugees and the schemes made there under. The Punjab Act was ultra vires and hit by the provisions contained in Article 143 of the 1973 Constitution. (2) That in so far as section 3 of the Act enables the contenders to move the relevant authorities appointed thereunder, its provisions were repugnant to the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance XV of 1974 as the orders passed there under had attained finality by virtue of section 6 of the General Clauses Act and could not be reopened in this manner in contravention of the provisions contained in Article 143 of the Constitution. (3) That the Punjab Act by permitting the adjudication upon private rights of the parties constituted an unauthorised encroachment upon the judicial field and, therefore, suffers from constitutional invalidity. (4) That the persons having acquired rights in the lands in dispute on the hypothesis that the widow was a full owner their entitlement stood clinched by efflux of time under the Limitation, Act which is a central statute and this could not have been undone by the Punjab Act XXV of 1975.? (5) That the Punjab Act also enables the alienations in favour of bona fide purchasers for valuable consideration to be challenged in conflict with the provisions contained in section 41 of the Transfer of Property Act and other cognate matters forming the subject‑matter of the central statutes. We find that this case involves substantial questions of general importance pertaining to the interpretation of the constitutional provisions. We, therefore, grant leave to appeal to the petitioners. Security Rs.1,

000. M.I./A‑95/S???????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.