1971 PLP 769 (SCMR)

SAJJAD AHMAD, J.‑In this petition for special leave, the dispute relates to a house, bearing No. C. B. 1. 1‑146, situated on Paris Road, Pooran Nagar, Sialkot, which declared as non- evacuee property by the Custodian, by his order dated the 28th of November 1962. The said house originally belonged to a non‑Muslim named Wali Ram, who sold to one, Chooni Lai, on the 18th of March 1943. The latter in turn, sold it to Muhammad Sharif, the father of the respondents Nos. 4 to 9, and his brother, Allah Rakha, by execution of a sale deed dated the 29th of September 1947, executed at Nairobi, in East Africa. Chooni Lai, the afore‑mentioned, who was a resident of Sialkot, had left his home town in the year 1945 long before Partition and had settled down in Nairobi, where he took up the British citizenship. On the 30th of August 1954, Muhammad Sharif, aforesaid, had moved an application to the Deputy Custodian at Sialkot, under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, for a declaration that the property was non‑evacuee. This application was rejected by the Deputy Custodian, and an appeal preferred against his order was also dismissed by the Additional Custodian. However, on a revision petition, the learned Custodian, by his order dated the 28th of November 1962, declared that Chooni Lai was a non -evacuee and so was the house in dispute. The petitioners who are allottee‑transferees of the house in question from the Rehabilitation Department, challenged the order of the Custodian by a writ petition in the High Court, which has been dismissed, leading to the present petition. The learned Custodian and the learned Judges in the High Court have held that Chooni Lal was not an evacuee within the definition of that term, as contained in section 2 (2) of the Pakistan (Administration of Evacuee Property) Act XII of 1957, as, admittedly, he had never left any place in the territories now comprising Pakistan for any place outside that territory on or after the 1st day of March 1947, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances. It was also held that there was no evidence to show that after the aforesaid date, Chooni Lai had acquired, by way of allotment or otherwise, any right to or interest in or benefit from any property, which was treated as evacuee property in India. It was further held that Chooni Lai had, at no relevant time, resided or was residing at any time in the territory now comprising in India. Mr. Saeed Akhtar, the learned counsel for the petitioners, has contended before us that in answer to the interrogatories submitted by Chooni Lai, it was admitted by him that his brother had filed a claim in Bharat for the properties left by him in Pakistan. From this, he has tried to build an argument that it must be presumed that Chooni Lai had become an evacuee. The mere fact of Chooni Lai, or some one on his behalf, having filed a claim in Bharat, would not show that Chooni Lai had either acquired any interest from any evacuee property in India, or that he is a resident of any place in India. Mr. Saeed Akhtar, however, argued that from this factum of the filing of the claim, it must be inferred that Chooni Lai had left Pakistan on account of the setting up of the two Dominions of Pakistan and India, as contemplated by clause (a) of section 2 of Act XII of 1957. The argument on the face of it is fallacious and must be rejected. Mr. Saeed Akhtar also submitted that the application of Muhammad Sharif under section 18 was time‑barred, and should have been dismissed by the learned Custodian on that ground. As noted by the learned Single Judge in the High Court, the learned Custodian did take note of the delay in the filing of the application by Muhammad Sharif, but entertained it in spite of it, and there was no justification for interference by the High Court in the exercise of discretion. It was also argued by Mr. Saeed Akhtar that the Custodian ceased to have jurisdiction to declare the house in question as non‑evacuee at the time when he did so, because the house by then had become a part of the compensation pool; by a notifica tion issued by the Central Government on the 21st of August 1959, under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. This argument fails to take note of the fact that the notification afore‑mentioned had itself excluded from its purview properties, regarding which proceedings under Act XII of 1957 were pending on the date of the notification, as was the position in the present case. Muhammad Sharif had made his application, under section 18 of the 1949‑Ordinance, on the 30th of August 1954, which remained pending with the Deputy Custodian till the 27th of July 1961, and an appeal and a revision preferred against that order were not finally disposed of until the 28th of November 1962. We consider that both the Custodian and the learned Judges in the High Court, on the facts of the case, have rightly decided that Chooni Lai was a non‑evacuee, and the house in dispute, being of a non‑evacuee character, no exception could be taken to the sale of that house by Chooni Lal in favour of Muhammad Sharif. There is no substance in this petition, which is dismissed. Leave Refused.