P L D 1966 (W (PLP)

Date of hearing: 10th January 1966. This writ petition is directed against the order of the Settlement and Rehabilitation Commissioner in Miscellaneous Application No. SCR/Misc. 170 of 1963. By this order the learned officer declined to pass an order for restoration of the properties belonging to the petitioners.

2. The facts material for the decision of the petition may be shortly stated: Petitioners 1 to 3 are Pakistani nationals. On 31st August 1950, they were declared as non‑evacuees by the Central Government as disclosed in the order of the Custodian of Evacuee Property, Sind and Federal Capital, Karachi dated the 31st August 1950, The status of petitioners 1 and 2 were further determined as non‑evacuee by Mr. Riasuddin Ahmad, the then Additional Custodian (Judicial) by order dated the 7th December 1954. This order was confirmed by the Custodian on 19th March 1956. The non‑evacuee status of petitioner No. 3 was likewise further confirmed by the Custodian by order dated the 10th November 1954. The petitioners claim interest in 1385.13 acres of land situated in District Sanghar. In some of these lands Dhalumal, Wadhumal and Khemchand, who are evacuees, have also shares. In February 1962, the petitioners, therefore, made an application to the Settlement and Rehabilitation Commissioner who directed by his order dated the 20th March 1962, the Assistant Rehabilitation Mukhtiarkar and A. S. C. (L) District Sanghar, Shahdadpur to partition the lands of the petitioners and the above‑mentioned non‑evacuee persons. Accordingly the Assistant Rehabilitation Mukhtiarkar by order dated 8th September 1962, partitioned the lands of the petitioners.

3. Respondents Nos. 2 to 26, who are allottees of most of the lands in dispute, challenged this order before the Deputy Commissioner and Deputy Settlement Commissioner (L), Sanghar District in appeal. The learned Officer by order dated the 29th April 1963, advised the petitioners to get an order for the restoration of their lands to them from the competent authorities. Thereupon, the petitioners in the month of May 1963 filed an application under section 7 (2) of the Pakistan Rehabilitation Act before the Settlement and Rehabilitation Commissioner for cancellation of the allotment orders of the respondents and for restoration of their lands to them. The learned officer by order dated 12th June 1963, rejected the said application on the following observations:‑-- "Seen the observation of Deputy Commissioner and Deputy Settlement Commissioner (Lands) Sanghar dated 29‑4‑63 in which he rightly pointed out that these applicants should have first obtained a judicial order for restoration of the land claimed by them as non‑evacuee property and then moved for partition. I concede that the administrative permission which I accorded for partition is infructuous without an order 'for restoration of the non‑evacuee share to the Hindu owners who are found to have taken no steps in time for implemen?tation of Custodian declaration which they obtained ex parte in 1956. Now so late in the day I can pass no order for restoration in pursuance of a declaration made nearly 7 years ago." The petitioners have challenged this order in this writ petition. Mr. Naimuddin, learned Advocate appearing for the petitioners, has urged that the Settlement and Rehabilitation Commissioner was not justified in law to reject the application of the petitioners for restoring their properties to them. In support of his contention learned counsel has referred me to section 8 (6) of the Rehabilitation Act, 1956. He has further referred me to section 23 and section 25 of Act XII of 1957. It is not disputed that the Custodian has delegated his powers under section 25, sub‑clause 2 to Rehabilitation Authorities by Notification dated the 18th September 1958. Reference to this effect is made in the order of D. R. C. referred to above at page 41 of the record. It is in these circumstances that the petitioners moved the Chief Settlement and Rehabilitation Commissioner to restore their property to them.

4. Mr. Naimuddin has further referred me to the decision of the Supreme Court of Pakistan in the case of Yousaf Ali v. Muhammad Aslam Zia and 2 others (P L D 1958 S C 104). It was held by their Lordships at page 116 of this decision as under:‑ "There can be no doubt that the property "Mandviwala Building" was allotted to the respondents as evacuee property and that property lost the character of being evacuee property by operation of the law which makes a tenancy for a fixed period expire on the termination of the period fixed. Section 9 of the Rent Restriction Act was never applicable to the respondents' possession of this property and the Deputy Custodian completely misdirected himself when, assuming a jurisdiction which never vested in him, he fixed, as one of the terms and conditions of occupation by the allottee the condition that on the expiry of the period of the lease the relation of the owner and the allottee would be governed by the ordinary law relating to the fixation of rent and eviction of tenants by the Rent Controller. The subsequent order of the Rehabilitation Board and the Central Government's order in revision were influenced by this decision of the Deputy Custodian which itself was null and void. We have no doubt that but for the complication introduced by the Deputy Custodian's order the plain position would have been clearly understood by the Rehabilitation Board and the Central Government that the Mandviwala Building having ceased to be evacuee property it was the duty of the authority which put the allottee in possession to remove him from possession if he did not willingly surrender possession and to restore the property to the original owner who was not an evacuee." He also referred to a decision of Faruqui, J. in the case of Haji Dawood v. Abdul Qawi (P L D 1964 Kar. 161). It was held in those cases that when a property is allotted as evacuee property and that property has lost the character of evacuee property, it is the duty of the authority which put the allottee in possession to remove him from possession if he did not willingly surrender possession and restore the property to the owner who was not an evacuee. In these circumstances, the contention of the petitioner's counsel that the learned Settlement Commissioner has fallen into an error A in declining to restore the property is fully substantiated in this case. There is no time limit provided in law for restoration of non‑evacuee property.

5. It was contended by learned counsel appearing for the contesting respondents that the shares of the evacuee have not been properly separated. In this connection the learned counsel referred me to the observations of the Deputy Commissioner and D. S. C., Sanghar in his order dated the 29th March 1963, to the following effect:‑-- "I do not know whether this order of the then Custodian has been appealed against and whether the status of two sons of Jianmal who migrated to India has been finally determined by the appellate authority, as no evidence was produced before me from the respondents side on this issue. In case, the above‑mentioned order of Mr. Mansoor Alam has not been reversed, then Jianmal is not entitled to get 1/3rd share from the joint Hindu property." In my opinion these observations cannot come in the way of the petitioners to obtain the order of restoration of the property. It is open to the Deputy Settlement Commissioner, while considering the appeal pending before him against the partition order passed by the Assistant Rehabilitation Mukhtiarkar, to consider whether the evacuee share has been properly separated or not. It will be open to him to consider the share of the evacuee owners and to partition the lands in dispute, after taking into consideration their share. But that does not mean that the petitioners are not entitled to the restoration of their non‑evacuee property. I would therefore, quash the order of the Settlement Commissioner dated the 12th June 1963 and direct him to pass an order for the restoration of the lands belonging to the petitioners. After a proper order is passed in this behalf, the matter will again be considered by the Deputy Commissioner, Sanghar in Appeals Nos. 12, 13, 14, 15, 16, 20, 21, 22 and 24 of 1963 pending before him for consideration whether the order passed by the Assistant Rehabilitation Commissioner for partition of the property is in accordance with the shares of the non‑evacuees and evacuee owners in the property in dispute.

6. In the result, subject to the above remarks, the petition is allowed with costs. K.B.A.???????????????????????????????????????????????????????????????????????????????????? ??????????? Petition accepted.