1972 PLP 627 (SCMR)

HAMOODUR REHMAN, C. J.‑This is a petition for special leave to appeal from the judgment of a Division Bench of the former High Court of West Pakistan, Peshawar Seat, dismissing in limine Letters Patent Appeal No. 50 of 1969. The said Letters Patent Appeal arose out of a petition under Article 98 of the Constitution of 1962 filed by the present petitioner to challenge the validity of an order of the Custodian of Evacuee Property condoning a delay of about; 13 years in the filing of an application, under section 22 of the Pakistan (Administration of Evacuee Property) Act No. XII of 1957, in exercise of the powers given by section 5 of the Limitation Act. A learned Single Judge of the High Court dismissed the petition in limine holding that there was no substance in the contention that the condonation of the delay had been made upon a misreading of the evidence adduced in support of the explanation for the said inordinate delay. The Letters Patent Bench agreed with this and hence the present petition. Learned counsel appearing in support of this petition contends that the discretion vested in the authority by section 5 of the Limitation Act to condone delay has to be exercised in a judicial manner upon sound legal principles. In this case the Custodian authorities had riot done so but had acted purely whimsically without noticing that there was evidence to the effect that one of the applicant, in the petition before the Custodian had himself participated in an auction conducted by the Custodian authorities in respect of the superstructures on the disputed land. The land, it appears, belonged to the late Nawab Akbar Khan of Hoti. On this was set up an oil mill by a Hindu tenant who had also built other superstructures thereon for the purposes of the mill. After the Hindu tenant migrated to India, the mill was treated as an evacuee property and the mill machinery was auctioned in 1948‑49 to one Abdul Qadir. The present petitioner purchased the machinery from the said Abdul Qadir in 1951. Thereafter, the mill premises, it is said, were allotted to one Khawja Ahmadullah in the same year as an evacuee property. The present petitioner then became a tenant under Ahmadullah. Later, in 1960, the superstructures standing on the premises were put to auction on the 16th or August 1960. At this auction, Muhammad Umar Khan, one of the heirs of Nawab Akbar Khan, participated but was unsuccessful, as the present petitioner outbid him and purchased the superstructures also. Nawab Agbar Khan, who was a very wealthy landlord possessing vast properties, died in 1952. There was a very heavy demand for death duty against his estate, and his heirs, It is said, got involved in this litigation. It was only after those litigations concluded that they began to take account from the various karindas of the late Nawab, and in the course thereof discovered that the premises in which the oil mill was set up by the Hindu tenant had also been treated as evacuee property by the Custodian authorities. It is in these circumstances that the heirs of the late Nawab applied on the 12th of April 1963, under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, for a declaration that the land measuring 14 marlas and the buildings thereon were not an evacuee property. This application was accompanied by another application under section 5 of the Limitation Act for the condonation of the delay in the filing of the application giving the explanation above mentioned. The Deputy Custodian accepted this explanation, because, no counter‑affidavit was filed by the present petitioner to rebut the averments contained in the petition under section 5 of the Limitation Act. The learned Custodian also agreed that there was "sufficient reason to believe that the petitioners (in the reference) were not aware of the fact that the property had been treated as evacuee property and transferred to the appellant". (present petitioner). On merits also both the Deputy Custodian and the Custodian found, after a careful examination of the evidence produced before there, documentary arid oral, that Khawaja Ahmadullah was, according to the Custodian's own records, only a "rental allottee" of the premises. But the Custodian Department erroneously treated the said Khawaja Ahmadullah as the allottee of the land as well and subsequently auctioned the structures on the same in 1960. The revenue records also, clearly established that Radha Kishan, the Hindu evacuee, was not the owner of the lane but only a tenant under the late Nawab Akbar Khan to the extent of 14 marlas. The land and the superstructures were, therefore, declared to be non‑evacuee Muslim property and the Department was directed to refund the auction money to the auction‑purchaser. In view of the above facts, there was abundant justification for the Custodian authorities to hold that the delay, though inordinate, had been satisfactorily explained, and there were sufficient grounds for holding that the heirs of Nawab Akbar Khan, who sought the declaration, were not aware of the fact that the premises had been treated as an evacuee property, until they were in a position to discover the same during the process oil checking the records of their officials. The High Court was, in our view, right in holding that the Custodian Authorities could not, in the circumstances, be said to have acted without lawful authority. We see no reason, therefore, to interfere. This petition is accordingly dismissed. Petition dismissed.