2002 PLP 722 (SCMR)

‑‑S.10(1)‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.10‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Constitutional petition‑‑‑Evacuee property was transferred through P.T.O. dated 28‑4‑1961 and P.T.D. dated 10‑6‑1965‑‑‑Deputy Administrator, Evacuee Trust Properties in year 1984 filed reference under M.L.R. 57 of 1983 stating therein that such property belonged to a Hindu Trust, thus, vested in Evacuee Trust Properties Board‑‑‑Chairman, Evacuee Trust Board cancelled the transfer in favour of respondent‑‑‑Constitutional petition tiled against such order was accepted by High Court holding that transfer of disputed property in favour of respondent stood validated in terms of S.10(1) of Evacuee Properties (Management and Disposal) Act, 1975, and as the same was "Sikni" and not agricultural, thus provisions of M.L.R. 57 were not attracted to it‑‑‑Validity‑‑‑None of the conditions enumerated in M.L.R. 57 of 1983 was applicable to disputed property‑‑‑Section ,10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, provided for validation of transfers made in good faith by Settlement Department, and transfer of disputed property fell within the framework of such provisions‑‑ No legal flaw could be pointed out by petitioners in impugned judgment, which was well‑reasoned and well‑founded, to which no exception could be taken‑‑‑Supreme Court refused to grant leave to appeal in circumstances. M.G. Dastagir, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners. S. Nasir Hussain Jafri, Advocate‑on‑Record for Respondent. Date of hearing: 6th August, 2001. MIAN MUHAMMAD AJMAL, J.‑‑‑Leave to appeal is sought against the judgment of the High Court of Sindh, Karachi dated 24‑11‑1998, whereby C.P. D.61/1995, of the respondent was dismissed. Resume of the case is that a plot measuring 847 sq. yards situated in Deh Thano Tapo Malir, District Karachi‑East, an evacuee property, was purchased by one Abdul Rashid through open auction in 1961. P.T.O. was issued in his favour and subsequently on 10‑6‑1965, P.T.D. was also issued to him. He sold the said land to Mst. Khairunnisa, who transferred it to one Sajjad Hussain, who thereafter, sold the same to the respondent, Abdul Majid. In 1984, Deputy Administrator, Evacuee Trust Properties, Karachi petitioner No.3 filed reference before petitioner No.2, Chairman, Evacuee Trust Properties Board, Lahore, under Martial Law Regulation 57 of 1983 stating therein that the plot in question belonged to Desdhaer Bhai Pregjy Dharamsala Trust and vested in the Evacuee Trust Properties Board. It was alleged that land bearing Survey No.781 was agriculture in nature and belonged to the Trust which was illegally transferred to the respondent by the Settlement Department. It was sought that the transfer in favour of the respondent and the transfer documents be cancelled and the property be restored to the petitioner. Notice was issued to the respondent, in response whereof he appeared before petitioner No.2, who, vide its order dated 14‑1‑1985 cancelled the transfer in favour of the respondent and also cancelled the transfer documents holding that the respondent failed to prove that the land was not trust property. It was also ordered that the respondent be ejected and the property be restored to the Board. The above order was assailed before the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The learned High Court vide its judgment dated 14‑10‑1985 held that the land in question was ' Sikni' and not agricultural, therefore, the provisions of MLR‑57 were not attracted to it. Moreover it was held that the transfer, in favour of the original transferee Abdul Rasheed, through whom the respondent was claiming ownership, had been admittedly effected through P.T.O: dated 8‑5‑1961 and P.T.D. dated 10‑6‑1965 and stood validated in terms of section 10(1) of the Evacuee Trust Properties (Management and Disposal) Act, 1975. The writ petition was allowed and the order dated 14‑1‑1985 impugned therein was declared to be without lawful authority and of no legal effect. Feeling aggrieved, the petitioners filed Petition for Leave to Appeal No. 150‑K of 1985 before this Court, which was dismissed on 26‑8‑1986 as barred by 79 days. They then moved an application under section 12(2), C.P.C. on 26‑11‑1986 before the High Court, alleging therein that its judgment dated 14‑10‑1985 was without jurisdiction but that too, was dismissed on 16‑5‑1989: This order was challenged before this Court through petition for leave to appeal wherein leave was granted. This Court vide its judgment dated 13‑1‑1993 allowed the appeal and remanded the case to the High Court for fresh adjudication on merits. After remand, the learned Division Bench of the High Court vide its impugned judgment dated 24‑11‑1998 dismissed the application under section 12(2), C.P.C. We have heard the learned counsel for the parties and have perused the record. .Admittedly, the property in dispute was transferred to Abdul Rashid in 1961 as a building site through an open auction for an amount of Rs.27,600 and was issued P.T.O. dated 28‑4‑1961. Thereafter, P.T.D. was issued to him on 10‑6‑1965, whereafter he transferred the said property to one Mst. Khairunnisa in .1969, who onward transferred it to the respondent in 1970. It may be noted that none of the conditions enumerated to MLR 57 of 1983 was applicable to the plot in dispute, hence it was rightly held by the learned High Court that the said Regulation was not attracted to the present case. Section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 provides validation to certain transfers made by the Settlement Department in good faith. The transfer made in the instant case falls within the framework of section 10 ibid as discussed in detail by the learned High Court in its impugned judgment. No legal flaw could be pointed out by the learned counsel for the petitioners in the impugned judgment which is well- reasoned and well‑founded, hence no exception thereto can be taken. Consequently, this petition is dismissed and leave is refused. S.A.K./S‑152/SC Petition dismissed.