1985 PLP 2015 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑Both these petitions are directed against the consolidated judgment of Sind High Court, dated 18‑4‑1982 by which Constitutional Petition No. 111 of 1975 filed by the petitioner was dismissed and another petition being Constitutional Petition No. 103 of 1977 filed by Devraj and Hotchand respondents herein was allowed. This case has a long history of litigation which has been already noticed by the High Court in the impugned judgment, but, briefly stated, facts are that the property belonging to joint Hindu family of Ramchand Manpmal (hereinafter to be referred, for sake of brevity, as "joint family") situated in District Tharparkar was treated as evacuee property and was allotted to displaced persons and locals from time to time. On 2‑6‑1950 the Custodian of Evacuee Property, Mr. Akbar Hussain, at the instance of the member of the joint family declared them as non‑evacuees and their property as non‑evacuee property. Afterwards, the Rehabilitation Commissioner addressed a letter dated 2‑7‑1951 to the Custodian for reconsideration of his order dated 2‑6‑1950 and the Custodian treated this letter as a Review Application and it was registered as Review Application No. 652 of 1951. While this Review Application was pending, the Deputy Custodian of Evacuee Property (Mr. Irshad Hussain) by the order, dated 16‑1‑1952 declared the joint family as evacuees and their property as evacuee property. The aggrieved persons filed an appeal against this order which was allowed by the Custodian of Evacuee Property by the order, dated 20‑4‑1958 with the result that the order of the Deputy Custodian, dated 16‑1‑1952 was set aside. Learned Custodian also dismissed the Review Application No. 652 of 1951, and once again declared the members of the joint family as non‑evacuees and their property as non‑evacuee property. Against this order, the Central Government made a reference to the Evacuee Property Tribunal under section 43‑A of the Pakistan Administration of Evacuee Property Act, 1957. However, when the Evacuee Property Tribunal took cognizance of the above reference, the members of the joint family filed a writ petition in the Karachi Bench of the former West Pakistan High Court being Writ Petition No. 62 of 1960. The writ petition was dismissed and a petition for leave to appeal from the judgment of the High Court, being C.P.S.L.A. No. 20 of 1960, was also dismissed on 21‑11‑1960. However, before the Evacuee Property Tribunal on the reference of the Central Government could render any decision, the Tribunal was dissolved on 31‑12‑1960 with the result that reference proceedings were terminated. The members of the joint family then applied to the Rehabilitation Authorities for restoration of their property on the ground that they had been declared as non‑evacuees and their property as non‑evacuee property, and after promulgation of Martial Law Regulation No. 64, the land held by the joint family stood partitioned amongst the members of the joint family. This application was accepted by the Deputy Rehabilitation Commissioner by the order, dated 9‑1‑1961, with the direction that the allottees were to be engaged as Haris on the land. Sultan Khan and three others, the temporary allottees of the land, in Writ Petition No. 37 of 1961 in the same High Court, challenged this order but the petition was dismissed on 8‑5‑1961. Afterwards, the same allottees alongwith others filed another Writ Petition No. 266 of 1961 challenging the order of the Custodian of Evacuee Property, dated 2‑6‑1950 and 24‑2‑1958. This petition was summarily dismissed by the High Court on 21‑5‑1962. The judgment of the High Court in this petition was challenged before this Court in C.P.S.L.A. No. K‑57 of 1962, but this petition was also dismissed. Afterwards, the members of the joint family applied for possession of land from those allottees who were unwilling to work as Haris, but their request was refused, and they were directed to seek remedy before a Civil Court. Consequently, the members of the joint family filed Civil Suits Nos. 105 and 166 of 1964 for possession of their properties and mesne profits. Both the suits were decreed by the trial Judge in their favour, and the judgment and decrees were confirmed on appeal before the First Appellate Court. The decree in Suit No. 105 of 1964 was not challenged further, but that passed in Suit No. 166 of 1964 was questioned in Second Appeal No. 391 of 1967 before the High Court. The Second Appeal was also dismissed by the High Court by the judgment, dated 3‑12‑1968 . Some of the temporary allottees of the land in the meantime filed Constitutional Petition No. 352 of 1969 through the present petitioner challenging the order of the Rehabilitation Commissioner and the decrees of Civil Court, but the petition was dismissed by the High Court by the judgment, dated 26th May, 1969. Letters Patent Appeal No. 130 of 1969 filed against this judgment was also dismissed for non‑prosecution on 13‑10‑1970. While these proceedings were pending in different Courts as aforesaid, the Deputy Settlement Commissioner, Mirpurkhas issued a notice dated 31‑3‑1971 to the members of the joint family calling upon them to produce the schedule of the properties declared as non‑evacuee properties under section 22 of the Pakistan Administration of Evacuee Properties Act, 1957. This notice was challenged by the members of the joint family 3n the High Court in Writ Petition No. 150 of 1971. This petition was, however, later on dismissed as withdrawn on the basis of a statement made before the Court by the counsel for the members of the joint family. It appears that in the meanwhile proceedings which were pending for eviction of the allottees and cancellation of their temporary allotment of land belonging to the joint family came up for consideration before the Deputy Custodian, Tharparkar. He held by the order, dated 4‑6‑1975 that the properties belonging to the members of the joint family were non‑evacuee properties and he consequently cancelled the allotment made in favour of the allottees and directed that possession of the land be restored to the members of the joint family subject to the condition that the allottees shall continue to remain as tenants on the land. It was this order that was challenged by the petitioner in Writ Petition 111 of 1975. It appears that while these proceedings were pending, Deveraj and Hotchand, the two members of the joint family, received a notice, dated 30‑7‑1977 from the Deputy Rehabilitation Commissioner, Mirpurkhas calling upon them to show cause why action should not be taken against them for the alleged sale of evacuee properties belonging to the joint family. It was this notice that was challenged by Devraj and Hotchand respondents herein in Constitutional Petition No. 103 of 1977. After hearing the parties, learned Judge of the High Court who heard the case dismissed Constitutional Petition No. 111 of 1975 and allowed Constitution Petition No. 103 of 1977 by the impugned judgment dated 18‑4‑1984 for the reason which may be usefully reproduced hereunder: ‑ "Mr. Abdul Quddus Behari has once against attempted to agitate before me against the validity of the orders of Custodian Akbar Hussain, dated 2‑6‑1950 and Mr. Muhammad Baksh Memon, dated 24‑2‑1958. It is contended that in view of the order passed in Writ Petition No. 62 of 1960 and Civil Petition for Leave to Appeal No. K‑20 of 1960 and the order of L.P.A. Bench, dated 8‑5‑1970 in L.P.A. No. 130 of 1969 the properties of the joint family continued to remain as evacuee properties and, therefore, the order passed by Deputy Settlement Commissioner, Tharparkar, ordering cancellation of allotment and restoration of land to respondents 2 to 7 is an order without jurisdiction. It is further contended that in the absence of schedule of properties attached to the orders of Custodian, dated 2‑6‑1950 and 24‑2‑1958 all the properties belonging to joint family remained evacuee properties and, therefore, the temporary allotment of land in favour of allottees could not be cancelled: The question regarding non‑evacuee status of the properties belonging to joint family was considered more than once by the Custodian of Evacuee Properties and the orders passed by the Custodian has been upheld by the High Court in Writ Petition No. 266 of 1961 and Supreme Court in Petition for Special Leave to Appeal No. 57 of 1962. In these circumstances the question regarding validity of these orders and the non‑evacuee status of the properties of joint family cannot be allowed to be agitated now. In so far the order, dated 8‑5‑1970 passed by L.P.A. Bench admitting the L. P. A . No. 130 of 1969 to regular hearing is concerned, it will suffice to say that this order has no binding effect as the L. P. A was itself dismissed for default and no steps were taken by the parties to have the order of dismissal set aside which has become final. In so far the legality of the order, dated 4‑6‑1975 passed by Deputy Commissioner, Tharparkar is concerned, Mr. Abdul Quddus Behari was not able to point out any illegality in the said order. This order only reaffirmed the position which was prevailing at the time the order, dated 9‑1‑‑1961 was passed by Rehabilitation Authorities and which was unsuccessfully challenged in Petition No. 37 of 1961 by the allottees. In so far the order impugned in Writ Petition No. 103 of 1977 is concerned the notice, dated 30th July. 1977 issued by the Deputy Rehabilitation Commissioner, Mirpurkhas shows that it was issued in connection with the alleged illegal sale of the evacuee properties belonging to joint family. The properties belonging to joint family were already held to be non‑evacuee as far back as 2‑6‑1950 and 24‑2‑1958 and these orders have not been set aside so far. In these circumstances the Settlement Authorities had no jurisdiction to issue the impugned notice, dated 30‑7‑1977." The petitioner who appeared in person sought to raise the same points as were urged by him before the High Court. We have stated the facts of the case and have reproduced the relevant portion of the judgment of the High Court not only to show that these points have A been very rightly rejected by the High Court and have no force at all, but also that these petitions are totally frivolous. We have, therefore, no hesitation in dismissing both these petitions. Order accordingly. M.I Petitions dismissed.