2000 PLP 1497 (CLC)

Having been allotted by K.D.A., the house in dispute belonged to one Muhammad Niamatullah, who subsequently fell in the category of specified persons as defined in section 2(f) of the Abandoned Properties (Taking Over and Management) Act, 1975. The petitioner claims that before leaving Pakistan said Muhammad Niamatullah appointed his brother Muhammad Enayatuallah as attorney to deal with the said house, with authority to sell it. The alleged power of attorney was executed on 14‑9‑1973, and the petitioner claims to have purchased it from the attorney on 15‑12‑1974 for a consideration of Rs.35,000 with transfer of possession. The only document, relating to this transaction, in possession of the petitioner, is a receipt of payment of this consideration. In 1975, the Abandoned Properties (Taking Over and Management) Act was enforced aid by virtue thereof all abandoned properties belonging to specified persons, as defined in the Act were deemed to have vested in the Federal Government on and from 16‑12‑1971. These properties included any such property sold or transferred to, or placed under the supervision or control of, any other person on or after 16‑12‑1971. Thus, the house in dispute was affected by the enactment. A safeguard to the interest of a bona fide transferee of a property, however, was provided in sections 13 and 14 of the Act and the interest can be saved through confirmation by the Administrator of the Abandoned Properties. Accordingly, the petitioner approached the respondents for confirmation of the transaction in his favour, but they declined the request vide orders passed on 17‑12‑1977 and 24‑5‑1979. He, therefore, filed Constitution Petition No.D‑683 of 1980, which was disposed of by way of remand of the case with a direction to respondent to rehear the petitioner's application and allow him to produce evidence on the points which created doubt in the mind of the respondent and which were referred to in the impugned orders. In the second round, the Deputy Administrator, Abandoned Properties decided the case, in favour of the petitioner by his order, dated 30‑11‑1989, and held that bona fide transaction was made between the parties, and he referred the case to the Board of Trustees for approval as required under section 13(4) of the Act XX of 1975. It was not, however, confirmed and . the case was remanded to the Deputy Administrator for rehearing and fresh decision. Copy of order passed in Constitutional Petition No.F‑16 of 1996 has been placed on record. This Constitutional petition was also frled by the present petitioner because the matter was not being heard and decided .in accordance with the directions made in Constitutional Petition No.D‑689 of 1980. This order mentions that the matter was remanded by the Administrator, and not by the Board. On remand this time, the Deputy Administrator rejected the claim of the petitioner by his order, dated 3‑6‑1996. This is, mainly, the order that has been called in question by way of this petition. Mr. Mnneer.Malik, learned counsel for the petitioner, has referred to the receipt, the only document in possession of the petitioner in respect of the transaction, and submitted that the Division Bench of this Court, that decided Constitution Petition No.683 of 1980, has already held that this can be treated as agreement for sale. The observation in the said Constitution petition was that if a receipt contains full particulars of the property which is the subject‑matter of the sale and the amount of sale consideration and the agreement on the part of the vendor to sell, and if the receipt is genuine, it may constitute a sale agreement.‑ However, the matter was remanded for decision after evidence was produced on such points. On the other hand, Mr. Hisamuddin, learned counsel for the respondents, contended that the receipt relied upon by the petitioner, does not constitute an agreement of sale, but it is an acknowledgement of transaction of sale acid, since it was not registered, it did not legally transfer the title. He also disputed maintainability of the petition on the ground that an appeal under section 15 of the Abandoned Properties (Taking Over and Management) Act, 1975 was not filed. We may now take up the matter with reference to the prayers made in the petition, starting with clause (b). In this part of the prayer, petitioner seeks a declaration of the Court to confirm genuineness and existence of sale agreement, payment of consideration and entitlement to transfer of the property. These questions of facts cannot be determined in this petition and a civil suit before the Civil Court is the legal mode of remedy, where these issues may be decided on the basis of evidence. In part (c) of the prayer, the petitioner seeks a finding of the Court on the fact that he is holding possession of the property in dispute, in part performance of the sale agreement. This finding obviously needs evidence, which can be adduced in a civil suit that can be filed for the purpose. Such a finding cannot be given in exercise of Constitutional jurisdiction. By part (d) of the prayer, the petitioner seeks injunction to restrain the respondents from treating the said property as abandoned property within the meanings of Act XX of 1975. By operation of law viz. The Abandonen Properties (Taking Over and Management) Act, '1975 (Act XX of 1975) the property became an abandoned property.. This injunction cannot, therefore, be granted. However, the petitioner can seek relief under sections 13 and 14 of the said Act, viz. Act XX of 1975, which he is doing. The only prayer that can be considered in these proceedings is that in part (a). This prayer seeks annulment of two orders of the respondents one is the order of the Board of Trustees Abandoned Properties passed in the meeting held on 10th/11th January, 1980. This order mentions that the Board did not confirm the transfer of House No.R‑113/14, Federal ' B' Area, Karachi, on the grounds mentioned in the order. In the petition, it has been stated that this order was passed by respondent Board in its 87th meeting on 10th/11th January, 1990. The other order challenged in this petition was passed by respondent No,2, Deputy Administrator, Abandoned Properties on 3‑6‑1999. The Deputy Administrator declined confirmation of the transaction, but it was not on the ground that the Board had already rejected the confirmation. If the impugned order of the Board was passed in January. 1980, it lost force in view of the decision of this Court in Constitution ,Petition No.683 of 1980 whereby the matter was remanded for rehearing and fresh decision by the respondents. If it was passed in January, 1990, then too., it was not acted upon because the Deputy Administrator entertained and decided the matter in 1996‑ without considering this earlier decision of the Board. The decision made on 3‑6‑1996 by the Deputy Administrator was in pursuance of the remand order passed in Constitutional Petition No.683 of 1980, on 5‑12‑1988. The impugned order passed by the Board is, therefore, of no legal consequence. The other impugned order was passed by the Deputy Administrator on application under sections 13 and 14 of the Abandoned Properties (Taking Over and Management) Act, 1975. The approach to the question before him, as reflected by the impugned order shows that the Deputy Administrator assumed the jurisdiction and role of the Civil Court. Under section 13 of the said Act, the administrator has only to confirm that the creation or transfer of any right or interest in the abandoned property was in good faith and for adequate consideration. The extent or nature of the right or interest, or its B legal validity can only be determined by the Civil Court. It was irrelevant for the purpose of respondents whether the alleged receipt was a sale agreement or an acknowledgment of a complete sale transaction. If the receipt is genuine, it definitely created some interest or right in favour of the petitioner. If the transfer was not legally complete, the confirmation could have been made subject to appropriate conditions, under the same provision of law. Section 13 of the Act (XX of 1975) does not provide that a complete 8 transfer of title can only be confirmed. The impugned order is not maintainable because the authority passing the order travelled beyond this jurisdiction. Regarding challenge to the maintainability of the petition on the ground that an appeal under section 15 of Act XX of 1975 has not been filed, suffice it to say that the impugned order passed by the Deputy Administrator was absolutely without jurisdiction because it was on remand by the Administrator and not by the Board. Under the Act, the Administrator has no powers to remand such a case. The earlier order, passed on 30‑11‑1989 in pursuance of the remand vide order in Constitutional Petition No.683 of 1980, ought to have been referred to the Board for approval, as contemplated in section 13(4) of Act XX of 1975. There is nothing on record to show that the order passed on 30‑11‑1989 was placed before the Board for approval. As discussed above, both the impugned orders passed by the respondents, are without jurisdiction and of no legal effect. They are set aside accordingly. The petition stands allowed to this extent and the case is remanded to the respondent No. l for consideration of the order passed by the Deputy Administrator in this case on 30‑11‑1989, for finalization under the Act. No order as to costs. Listed application also stands disposed of. Q.M.H./M.A.K./A‑8/K Order accordingly.