1988 PLP 339 (MLD)

(e) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 199‑‑Constitutional jurisdiction‑‑Plea of fraud‑‑Plea was taken previously by respondents but it failed on all occasions‑‑Plea could not be reagitated and presumption could be raised that orders passed previously were taintless and binding upon respondents. Mian Saeed‑ur‑Rehman Farrukh for Petitioners. Ch. Nazir Ahmad for Respondent No.

1. Ch. Khurshid Ahmed for Respondent No.

2. Nawab Saeed Ullah Khan for Respondents Nos. 3 to

10. Dates of hearing: 28th, 29th March; 4th, 5th, 6th April; 15th and 18th June, 1988. This judgment will also dispose of Writ Petitions Nos. 1464‑R of 1976, 1562‑R of 1976, 1575‑R of 1976, 655‑R of 1981, 669‑R of 1981, 670‑R of 1981, 671‑R of 1981, 672‑R of 1981 and 673‑R of 1981 as in all of them the same common question of law was involved.

2. Without going into minor details of facts of each individual petition, the basic question in all of them was whether or not Khasras Nos. 749, 750, 762, 763, 769 to 771, 781 and 782 were evacuee property. The admitted fact was that these numbers with quite a few others formed a joint Khata owned both by Muslim and non‑Muslim evacuees. The petitoners claim was that the Khata was partitioned vide mutation dated 30‑4‑1956 in accordance with the order dated 3‑10‑1955 of the D.R.C. (Land) made on an application of the Muslim owners filed in 1955; Khasras Nos. 762, 673, 769 to 772, 780 and 781 were allotted to Mubarik Ali Shah etc. while Khasras Nos. 761, 764, 749, 750, 767 and 730 were given to Khan Bahadur Abdul Rashid etc; the partition was assailed before the Deputy Custodian but he confirmed it on 23‑7‑1957 as also on 11‑11‑1967 when Muhammad Hussain, Tehsildar's application against it was dismissed; and in the meantime after purchasing from the owners they raised buildings thereon. Respondent No.2 Begum Ruqiyya Ehsan . Ullah Khan Tiwana, however, purchased in auction House No. 9=A, situate in Khasra No. 749 but laid claim to Khasra No. 750 as well stating that servant quarters of the house were located in. it. She moved the Deputy Custodian for a declaration that this Khasra number was evacuee property; was able to get it so declared vide his order dated 20‑9 1972; but the learned Custodian namely Mr. Justice Zaki‑ud‑Din Pal set it aside in revision on 27‑5‑1974 holding that 'the earlier partition dated 3‑10‑1955 (wrongly quoted. as 23‑7‑1957) was effected by D:R.C: (Land) as his delegatee and could not be reviewed by the Deputy Custodian: The lady preferred writ petition‑ No. 1223‑R of 1974 to challenge the Custodian's order but simultaneously moved the Enforcement Staff for verification and ultimately the matter came up before Mr. Walayat‑Ati Shah, Settlement Commissioner, who, in the impugned order dated 21‑6‑1975, allegedly without notice to the petitioners held that' Khasra Nos. 749, 750, 762, 763, 769 to. 771; 781 and 782 were evacuee property. He directed cancellation of mutations till. then, passed in favour of the petitioners in relation to this land and issuance of Transfer Order in favour of the lady. The reason for this. conclusion according to him was that Muslim predecessors‑in‑interest of Mubarik Ali Shah and Khan Bahadur Abdul Rashid etc. etc. had sold away their interest in the Khata to Hindus by various registered sale deeds but those transactions were not incorporated in the Revenue record and thereby the land was wrongly shown still, belonging to Muslim vendors.

3. Since the order affected various persons, they brought the' present writ petitions asserting mainly that it was passed without notice to their as also without jurisdiction inasmuch as the D.R.C. (Land)s' order of partition dated 3‑10‑1955 as delegatee of the Custodian had finally clinched the matter .in their favour and its subsequent affirmation by the Custodian (Mr. Justice Zaki‑ud‑Din Pal) did not leave behind any iota of doubt about its efficacy and finality: They averred further that in face of the Custodian's decision Mr. Walayat Ali Shah in his capacity as Settlement Commissioner was not competent to hold otherwise about the nature of the property. They alleged that the relevant record was deliberately destroyed or pilfered with a view to suppress truth and that the property once competently held to belong to Muslims, could not be branded to be evacuee after the deadline of 1‑1‑1957 laid in Section 3 of the Pakistan (Administration, of Evacuee Property) Act, 1957.

4. Writ Petitions Nos. 669‑R of 1981 to 673‑R of 1981 were not contested. The private respondents in these petitions were proceeded against ex parte as they did not appear to oppose them. It was clamed that they were fictitious persons having had no entity. The impression may not be very wrong as they consistently remained indifferent. The other respondent was Settlement Department but they in their comments conceded these petitions. Even otherwise Mr. Shahzad Jahangir representing them, quite graciously admitted that the Settlement Commissioner (Syed Walayat Ali Shah) had no jurisdiction on 26‑6‑1976, and no less even before the repeal of laws, to declare the land in question to belong to the evacuees, much less in a case where it had already been declared otherwise by the Custodian in his exclusive jurisdiction conferred upon him by Section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 in his order dated 27‑5‑1974 which in turn was protected from scrutiny by any Court under section 41 of the Act. He did not dispute the proposition that under section 3 of the said Act, Officers of the Settlement Department were precluded from treating the land in question as evacuee property after 1‑1‑1957 and expressed, inability to defend the impugned order of the learned Settlement I Commissioner.

5. These writ petitions are accordingly allowed, of course, ex pane, against respondents other than the Settlement Department and the aforesaid order is declared null and void against the interests of the respective writ petitioners.

6. Writ Petition No. 655‑8 of 1981 was also conceded by Mr. Shahzad Jahangir, Advocate on behalf of the Settlement Department, but it was contested seriously by Mst. Ruqiyya Ehsan Ullah Khan Tiwana who being party in two others namely W.P. Nos. 1497‑R of 1976 and 1575‑R of 1976 tried to defend the impugned order. The remaining four writ petitions viz. 1464‑8 of 1976, 1497‑R of 1976, 1562‑R of 1976 and 1575‑R of 1976 were all contested by the Settlement Department through another counsel, Ch. Muhammad Nazir Ahmad, Advocate who as well attempted to show that the impugned order was validly passed and that it could: not be set aside in writ jurisdiction. Mst. Ruqiyya Ehsan Ullah Khan Tiwana, however, requested in the alternative that in case her plea did not find favour with the Court, her own Writ Petition No. 1223‑R of 1974 brought to challenge the order dated 27‑5‑1974 of the Custodian, but later withdrawn‑‑on getting relief through the impugned order, be revived/restored for disposal on merits.

7. It may have become clear from the above resume that the posture adopted by the respondent‑‑Settlement Department in the two sets of writ petitions under consideration was mutually inconsistent. Mr. Shahzad Jahangir in six of them conceded that the impugned order could not be defended at law whereas Ch. Muhammad Nazir Ahmad, Advocate in the remaining four in his own way claimed that it was validly passed, especially on the ground of fraud and that it could not be interfered with by the High Court in writ jurisdiction.

8. My own impression is that the partition of the joint Khata under the orders of the D.R.C. (Land) dated 3‑10‑1955 treating the Khasra numbers in question as belonging to Muslims was final in all respects. He was exercising the powers under section 20(2)(o) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, as the Custodian's delegatee in ordering the partition of the Khata so as to set apart the share of the evacuees. Although this order was B assailed two times before the Deputy Custodian yet without any success. There was no occasion for Mst. Ruqiyya Ehsan Ullah Khan Tiwana to have again taken the matter to the Deputy Custodian to get a contrary order from him on 20‑9‑1972. It was not open to him to review his predecessor's order dated 3‑10 1955 whereby the present land was held to belong to Muslims. The Custodian rightly set it aside by his order dated 27‑5‑1974 in the exercise of revisional powers and that was the finale of the entire controversy. Reliance was placed on Nazeer Ahmad etc. v. Ghulam Mehdi and others (1988 S C M R 824) for this view and indeed rightly.

9. Making a report to the Enforcement Staff and even referring it to the Settlement Commissioner (Mr. Walayat Ali Shah) was in the entire milieu a fruitless effort even though the basis for such a fresh scrutiny may have been the alleged fraud. The decision of the Custodian dated 27‑5‑1974, as already remarked, was a final stamp on the character of the disputed property. It could not have been overridden on any grounds whatsoever, for, section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957 made it immune in all respects. Maj. Mehtab Khan v. The Rehabilitation Authority and another (P L D 1973 S C 451 (457) supports this view. Even sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 could not be invoked on the ground of fraud because it enabled the authorities to intervene if evacuee property was obtained fraudulently by way of allotment. The petitioners did not get the land in question in any allotment whatsoever. They claimed to be its owners and as such could not be made the subject of the incidence of sections 10 and 11 ibid. Further, the present petitioners being vendees from the Muslim owners were not associated before passing such an adverse order against their interest. They had a right to be heard and denying them the same was fatal to the entire process adopted by Mr. Walayat Ali Shah, Settlement Commissioner in passing the impugned order. In Ejaz Ahmad Khan v. Chahat and others (1987 S C M R 192) a subsequent vendee under a claimant was held not entitled to notice but it may not apply to the petitioners who are not vendees under a claimant. They are owners in their own right claiming interest in non‑evacuee property and had every right to be heard before they could be made to lose what was their own proprietorship. Next, counsel argued that inquiry before the Enforcement Staff was not a pendency as contemplated by section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 because such staff was not shown to have been "appointed thereunder" i.e., under the repealed laws. The contention was not without force in that Enforcement Staff was not a Settlement Authority, nor were they appointed under any of the laws repealed by the said Act and, therefore, any proceedings under their contemplation would not be branded as a matter pending before the Settlement Authorities appointed under the Repealed Laws. 1n N L R 1980 CIVIL (Karachi) 720 it was emphasized that only those matters shall be deemed to be pending which were under consideration with the Settlement Authorities on the date of repeal. For this reason too the learned Settlement Commissioner could not pass the impugned order on 21‑6‑1975.

9. Ch. Khurshid Ahmad representing the lady mainly contended that the order of partition dated 3‑10‑1955 was based upon fraud and that the High Court should not revive it by striking down the order of the Settlement Commissioner as thereby it may tantamount to helping the petitioners in taking benefit of their own fraud. He placed reliance on Begum Shams‑un‑Nisa v. Said Akbar Abbasi P L D 1982 S C 413 and S. Sharif Ahmad Hashmi v. The Chairman, Screening Committee, Lahore and another (1980 S C M R 711 (717). 1 am afraid then is no substance in the arguments nor would the authorities referred to above, render him any assistance. The partition dated 3‑10‑1955 was unsuccessfully assailed before the Deputy Custodian two times and later it was affirmed by the Custodian. The plea of fraud now agitated previously failed on all those occasions and, therefore, could not be re‑agitated. A presumption would be that those orders were taintless and binding upon the respondents.

10. Ch. Muhammad Nazir Ahmad, Advocate representing the respondent- Department in the four writ petitions (Nos. 1462‑R of 1976, 1464‑R of 1976 1475 8 of 1976 and 1497‑R of 1976) adopted almost the same arguments as were advanced by Ch. Khurshid Ahmad: He submitted that the partition taking place in 1952 fell under Section 135 of the Land Revenue Act and that since Hindus were not represented before the Revenue Officer concerned, it was bad in law; secondly, the sales made in favour of Hindus by the Muslim owners were, suppressed in the Revenue record and that those were righty relied upon in terms of the‑rule laid down in Muhammad Idrees v. Mst. Safia Begum and others (1986 S C M R 795) by the Settlement Commissioner to hold that they had committed fraud ih~ obtaining the so‑called partition; thirdly, though Section 20(2)(o) of the .Pakistan (Administration of Evacuee Property) Ordinance, 1949 authorised the Custodian to permit a Rehabilitation Authority to partition a joint Khata, yet he himself could not‑do it; fourthly, a duty was cast upon the petitioners to have got their interest approved by the Custodian in that by suppressing it, they were committing an offence and could not be helped by this Court; fifthly, the land passed on to the pool after having been treated as evacuee property and that the Custodian as per Haji Sultan Muhammad and another v. Muhammad Siddiq (P L D 1973 S C 347) lost jurisdiction to hold it otherwise; sixthly, the petitioners being bogus vendees were saddled v ith the knowledge of the infirmity in the title of their predecessor and had in virtue of the ratio of Ejaz Ahmad Khan v. Chahat and‑others (1987 S C M R 192) no right to be heard. Lastly he canvassed that since a question of fact viz. of fraud etc. was involved, the High Court had no j'urisdictio'n to go into it.

12. A careful consideration of the points urged above, does not seem to lend any support to the , respondent‑Department. The partition was ordered by _D.R..C.(Land) in presence of the parties and they challenged it subsequently: The evacuees were represented, if not by anybody else, at least by the Rehabilitation Department itself, whose Officer was. exercising powers in that behalf. In fact the ordinary Revenue Courts were not competent to order partition of an "evacuee's interest"‑and the application was rightly made before the D.R.C. (Land). Section 20(2)(o) ibid itself provides a complete answer to it. The so‑called, Suppression of sales, as discussed elsewhere in this judgment, could not carry conviction, with, the D.R:C. (Land), the.' Deputy. Custodian and lastly the Custodian: Such' a plea was either not set up., or was not substantiated. Either way it could not be raked up subsequently when the Custodian's order had become final unquestionably: Similarly, the contention that the Custodian himself could not partition off the interest of the evacuees under above mentioned provision was not inspiring. If he could as principal permit his delegatee to carry it out, why could he ‑not do, it himself? The argument smacks of a contradiction in terms. Next, to expect the' petitioners to have got approval of their interest from the Custodian was indeed too much, for, what they were claiming was their own property as locals. At no stage they tried to claim evacuee property. Likewise the plea that the property had gone into pool after having been treated to belong to evacuees and was no more amenable to the jurisdiction of the Custodian, was equally uninspiring, for, it had been much earlier declared to be non‑evacuee. Review of such an old decision was not possible. The Custodian as last authority of the hierarchy had affirmed its, non‑evacuee nature. Lastly, there is nothing on the record to show that the petitioners were bogus vendees or that they had no right of being heard before their interest was treated to be evacuee property. No evidence was produced before this Court, nor indeed it could be to show that predecessors of the petitioners had already sold the land in favour of the Hindus. It was a question of fact and any finding by Mr. Walayat Ali Shah, Settlement Commissioner on it was hit by the principle of coram non judice. The respondent‑Department by simultaneously conceding half a number of the writ petitions and defending the rest appeared to be a house divided. Such an inconsistency on their part inevitably helped the petitioners in establishing their claim.

13. As a result, even the remaining four writ petitions namely, Nos. 669‑R of 1981 to 673‑R of 1981 are allowed, the impugned order is held to be void and ineffective against the interest of the petitioners. The prayer of Mst. Ruqiyya Ehsan Ullah Khan Tiwana to revive/restore her Writ Petition No. 1223‑R/1974 is declined because the matter has been discussed here thread bare. To discuss it once more in any other petition will be an exercise in futility. Parties shall bear their own costs. M.Y.H./K‑110/L Petitions allowed.