1984 PLP 2367 (CLC)

Date of hearing : 6th February, 1984. This Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, was filed on 12th December, 1978 questioning the demand notices, dated 13th August, 1978 and 22nd October, 1978 issued by the Deputy Administrator f Evacuee Property Trust, Karachi whereby the petitioner has been directed to pay the rent of the house bearing No. IV‑B‑227/G‑1, R. S. 4/4, Barness Street, Ramswami, Karachi. The relevant facts are that petitioner Abdul Aziz Chohan filed C. H. Form on 10th November, 1959 for the transfer of the above house but Deputy Settlement Commissioner rejected his prayer on the ground that it is a trust property. He filed an appeal before Additional Settlement Com missioner who allowed his appeal by an order, dated 28th November, 1961 and set aside the order of the Deputy Settlement Commissioner and held that house in question is not a trust property. Consequently on 6th August, 1962 a Provisional Transfer Order (P. T. O.) was issued in favour of the petitioner and then on 13th August, 1965 Permanent Transfer Deed (P. T. D.) was issued. The petitioner paid the entire price amounting to Rs. 9,

600. This amount was transferred from his compensation book. The Evacuee Trust Property Board filed an application before the Addi tional Custodian, who while rejecting their application ordered the Trust Board to approach a civil Court. On the application of Trust Board Settlement Commissioner by order, dated 28th February, 1966 declared the property to be as trust property. The petitioner then filed an appeal under section 4(4) of Displaced Persons (Compensation and Rehabilitation) Act, 1958, in High Court. The High Court by order, dated 12th February, 1970 (in Miscellaneous Application No. 44/1966) held that disputed property is trust property attached to the institution known as `Dakshini Brahman Sabha'. This case has been reported in P L D 1971 Kar.

662. On 18th June, 1971 Chief Settlement Commissioner, Pakistan issued Circular/ Notification No. 1052/P. O. L./71, dated 17th June, 1971 whereby it was directed as per policy of the Government the properties which have been transferred to the claimant prior to June, 1968 will not be disturbed on the condition that price of such property received by the Settlement authorities be transferred to the Trust Board. The petitioner moved an application on the basis of the circular before the Deputy Settlement Com missioner, Karachi, who by an order, dated 21st December, 1972 dismissed the application and ordered the petitioner to surrender P. T. D. for cancel lation. The petitioner being aggrieved with the order of Deputy Settle ment Commissioner, filed Revision Application before the Settlement Commissioner who has accepted his revision and set aside the order of the Deputy Settlement Commissioner. Mr. Abdul Majeed Khan, learned counsel for the applicant contended that applicant is in possession' of this house since 1947‑48, P. T. O. and P. T. D. were also issued in his favour in the year 1962 and 1965, respec tively. Therefore, in view of circular and under section 10(b) of Evacuee Trust Property (Management and Disposal) Act, 1975 his rights are protected. Mr. A. T. Mahmood, learned counsel for the respondent has admitted the fact mentioned in the petition to be correct, but stated that circular is not binding and has relied on under section 31 of the Evacuee Trust Property (Management and Disposal) Act, 1975. Mr. Abdul Majeed Khan has cited the series of authorities, 1982 S C M R 557, P L D 1981 Lah. 725 and P L D 1978 Kar.

125. I have perused the record and find that the petitioner was all along seek ing remedies in various forums and finally he succeeded in getting relief on the basis of circular mentioned above. The fact that P. T. O. and P. T. D. have been issued to him before 1968, are not denied. It is also admitted that the payment of Rs. 9,600 was made by the petitioner and after that the above two documents were issued in his favour. He is in possession of the house in question and there is no other claimant. The property was declared to be Trust Property by the orders of the High Court, dated 12th February, 1970. Section 10(b) of the Act XIII of 1975 of the above Act reads as under :‑

"(b) If situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968. Shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner and the sale‑proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool." This very section gives protection to the persons in whose favour Permanent Transfer Deed has been issued prior to June, 1968. The case of the petitioner comes under the purview of this section. In a case of Khalid Mahmood and others v. Ch. Ghulnm Muhammad (1982 S C M R 557), held that permanent transfer deed issued before June, 1968 and remain operative notwithstanding property having been Evacuee Trust Property. In another case reported in P L D 1981 Lah. 735, it has been held that when P. T. D. in respect of disputed property issued prior to June, 1968 the claimant can get benefit under section 10(b) of the Act XIII of 1975. Moreover, nobody from Trust Board has appeared before the Settlement Com missioner to contest the application of the petitioner. The order has been passed in favour of petitioner in 1973 and this notice after lapse of 5 years when the matter was finally decided is not warranted by law. I, therefore, declare that notices, dated 13th August, 1.978 and dated 22nd October, 1978 issued by the Deputy Administrator, Evacuee Trust Property, Karachi are without lawful authority and are consequently of no legal effect. The petition is disposed of with no order as to costs. M‑ B. A. Petition accepted.