P L D 1967 Karachi 834 (PLP)

This petition under Article 98 of the Constitution challenges the validity of the order of the Additional Settlement Com missioner, Karachi, Mr. Matin Siddiqui, passed on 29‑8‑62 and a further order passed by the Settlement Commissioner Mr. Rauf Chowdhry on 28‑5‑63 in two appeals, one by the present petitioner Haji Suleman and the other by Haji Mir Husain Ali who is a petitioner in the connected Petition 555/63.

2. The material facts may be briefly stated. One Ismailjee Abdul Radar Motiwala and his wife Mst. Amina Bai purchased the property in dispute namely the bungalow bearing survey No. J.M. 2/327 situated at Jamshed Quarters, Karachi, from the Hindu owners by a registered sale‑deed. The deed is dated 16‑2‑48 and it was registered on 13‑7‑

49. This transaction was confirmed by the Custodian by his order dated 22‑11‑50, upon an application made in that behalf. Ismailjee died on 4th June 1951. It is the case of the petitioner Suleman that this property was gifted to him by Mst. Amina on 5‑5‑52 and he accepted the gift and got into possession and he has been in possession of a part of the property ever since. A copy of the gift deed has been filed in the petition and at the bearing the original registered gift deed was produced before me. It purports to have been executed by Mst. Amina Bai Ismailjee as donor. The acceptance is by the petitioner Suleman and there are two witnesses, one Dawoodbhoy Ismailjee Motiwala, presumably a son of Amina Bai and another person who is perhaps also a Motiwala but whose signature on the original gift deed is not quite clear. It is stated in the gift deed by the donor that she was the real owner of this property and that her husband's name was nominally 'added in the sale‑deed as a co‑purchaser and that the latter had no right, title or interest in the said property. This gift deed which was made on 5‑5‑52 was registered with the Sub‑Registrar, Karachi on 1‑6‑

53. This was followed by the mutation of name in the city survey records and the Karachi Municipal Corporation where the name of the petitioner was brought in as the owner. The matter rested here. until for the first time in September 1957 a notice was received by the petitioner from the Assistant Custodian who had evidently received information that this property was a hidden evacuee property.. The petitioner was asked to show cause. He appeared and showed cause. No action was taken by the said Custodian and when ‑an application was made to him in that regard on behalf of the petitioner he was informed by the said Assistant Custodian that the case regarding the said property No. 327 had been filed under the orders of the Custodian, Evacuee Property passed on 3‑9‑

57. Again on 18‑2‑60 a notice was issued by the Additional Settlement Com missioner to the petitioner at his business address, vie., Mandvi Trading Company, Gowardhandas Market, Karachi. It is the case of the petitioner that he appeared in answer to this notice dated 18th February 1960 and the matter was dropped. For the last time a notice was issued but this time it was published in the English 'Dawn' newspaper on 12‑8‑

62. This notice was addressed not to the petitioner whose address was with the Settlement Department but to the original purchasers of this property, namely Ismailjee and Mst. Amina Bai. Nobody appeared on 20th August 1962 which was the date fixed in the said notice and on 29th August 1962 the Additional Settlement Commissioner passed an order which was somewhat unusual in its content. There are five small paragraphs in the beginning commencing with the word 'whereas' and this is followed by the recitals and then follows the conclusion :‑ "I, therefore, hold that the said property continues to be an evacuee property within the meaning of Act XII of 1957 and forms part of the compensation pool and, I, therefore direct that the said property be disposed of under the pro visions of Act XXVIII of 1958." This is followed by another para stating that "whereas the said hidden evacuee property had be‑n detected by the applicant, namely Sahibzada Hamid Muhammad, Sahibzada Afzal Muhammad and Her Highness Musarrat Jehan Begum, the same be transferred to them on evaluation price."

3. This order was passed in too much haste. No attempt was made to find out as to who was in actual occupation of this property and whether the records still showed the original purchasers to be the owners of it, nor was a notice given to the petitioner Haji Suleman who had on previous occasion appeared to assert his claim in respect of this property, upon which previous proceedings had been dropped. It may further be stated that the learned Additional Settlement Commissioner passed this sole order without any inquiry. He merely acted upon the application, where in the first paragraph it was alleged that this was a Con hidden evacuee property. Having said this he added that this Kar property was not being managed or supervised by a person whose authority or right to do so has been approved by the Custodian. He then went on to add that as the respondents, namely Ismailjee and Mst. Amina Bai, both of whom were in fact dead on the date on which this order was passed, had failed to appear and contest the proceeding, he was proceeding to pass the order. The petitioner having come to know of this went to the office of the Additional Settlement Commissioner and found that such an order had been passed. He, therefore, filed an appeal before the Settlement Commissioner. Another person namely. Haji Mir Hussain Ali, who had tiled a form for the transfer of this property, also filed a revision. The Settlement Commis sioner by his order dated 28‑5‑63 dismissed both the appeal of Haji Suleman as well as the suo moto revision of Haji Mir Hussain Ali. Haji Mir Hussain Ali had claimed to be a tenant in a part of the house and his case was that the property had all along been treated' as non‑evacuee property and it was for this reason that he had not filed any form for its transfer, but now having come to know that this property is being treated as evacuee property he was entitled to its transfer as a person in possession .in preference to the three respondents who were merely informants. Mir Hussain Ali's claim was rejected by the Settlement Commissioner upon the ground that he was not the tenant of the original owner and that his claim was being challenged‑by Haji Suleman who had filed an appeal and who claimed to be the donee of the property. With regard to the appeal of the present petitioner Haji Suleman, the learned Settlement Commissioner went on to give a finding on the validity of the aforesaid gift. He held that the said gift dated 5‑5‑52 did not confer any legal title in respect of the bungalow in favour of the petitioner because the widow could not legally make such a gift as she was not the only legal heir of her late husband and, secondly, because a property belonging to an Indian national could be treated as a non‑evacuee property only if it was managed by an agent or attorney whose power was duly approved by the Custodian of Evacuee Property. In view of these findings he upheld the transfer in favour of the present three respondents. Haji Suleman has challenged the legality of both the orders in this petition.

4. Mr. Wasim Rizvi, the Departmental Representative, relying upon a Division Bench judgment of this Court in the case of Nazar Ali v. Secretary, Ministry of Rehabilitation (P L D 1963 Kar. 575) and the judgment of the Supreme Court in Civil Appeal No. K‑12/64 which had been filed by Nazar Ali against the said judgment of the High Court, urged that the present case was covered by the said decisions. His contention was that in so far as this property was not being managed or occupied by a person whose authority had been approved by the Custodian it was an evacuee property on the date when the notification under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was issued, whereby all the evacuee property was acquired by the Central Government and vested into it free from all encumbrances. That being so, it was contended that the Additional Settlement Commissioner and the Settlement Com missioner' were right in transferring this property to the respondents. I have carefully examined the two judgments and it appears to me to be plain that the facts of the case of Nazar Ali were very much different from the facts in the present case. In that case, admittedly Nazar Ali was a person resident in India and having purchased the property in question had gone back to India, which property was being managed by his agent whose authority had not been approved by the Custodian. In that case, an application for the approval of authority had been made to the Custodian and bad been rejected. It was upon this admitted position that it was held that the said property was an evacuee property which had passed into the settlement pool upon the issue of the notification under section 3 of the Act. The facts in the present case are entirely different. After this property had been purchased by Ismailjee and his wife Mst. Amina this sale was confirmed on 22‑11‑

50. Ismailjee died on 4th June 195r. On his death Mst. Amina made a gift of the whole house on 5‑5‑52 in favour of the petitioner Haji Suleman and it was stated in the gift deed that she was the sole owner of this property and that her husband's name had been nominally entered into the sale‑deed. This gift was accepted by Haji Suleman and he took possession of the property. This was followed by mutation in the city survey records and the Karachi Municipal Corporation. Haji Suleman thus claims to be the owner of the whole house by virtue of the said gift. His occupa tion or management of the said property was not on behalf of Mst. Amino or the other heirs of the deceased Ismailjee assuming that he was a co‑owner in the said property as it was shown in the sale‑deed. This property admittedly was never treated as evacuee property by the Custodian or by anyone else. Not only this but when a notice was issued by the Assistant Custodian in September, 1957 Haji Suleman had appeared and shown cause and the Assistant Custodian thereafter informed him in writing that the Custodian of Evacuee Property had passed an order on 3‑9‑57, whereby the proceedings had been dropped. The inference would be that the Custodian did not consider that any pro ceedings under the Administration of Evacuee Property Laws were required to be taken in respect of this property. How in the face of these facts was it open to the Additional Settlement Commissioner or the Settlement Commissioner to embark upon an inquiry as to the character of the property or as to the claim of Haji Suleman as being the full owner of the property by virtue of the registered deed of gift. As far as the Additional Settle ment Commissioner is concerned he had passed an ex ‑parte order but when the matter came before the Settlement Com missioner he assumed jurisdiction to determine the status of the property and the claim in respect of it of Haji Suleman. In my opinion, he had no jurisdiction to do so. Here was a case in which the property had never been treated as evacuee property and was being partly occupied by a person who was claiming it to be full owner upon the basis of registered deed of gift, yet the Settlement Authorities made an order of its transfer in dis regard of the claim of the petitioner and upon the assumption that this property had passed into the settlement pool. There was no legal basis or material for such an assumption and considering the nature of the claim that was made it seems to me that that claim could only be determined by the Custodian and not by the Settlement Commissioner. Section 41 of the Pakistan (Administration of Evacuee Property) Act of 1957 bars the jurisdiction of any authority in this respect. It provides:‑ "

41. Jurisdiction of Courts barred.‑(I) Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction‑ (a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee had in any such property." From a plain reading of this provision it will follow that when a question properly arises as is mentioned in clause (a) of sub section (1) no Court or authority would have any jurisdiction to determine it. The only way in which they can act in such a situa tion is to make a reference under subsection (2). As a result of the notification under section 3 of the Compensation Act of 1958 it is the interest of the evacuee which is extinguished in the property and it then vests in the Central Government. The notification would, therefore, affect only evacuee property. But if the Settlement Authorities proposed to deal with a property and the question is raised that this was not an evacuee property at all, it is difficult to see how the Settlement Authorities could, in the absence of any provisions in the Act, proceed to enquire into the character of the property. Their jurisdiction depends upon the property having been vested in the Central Government. But if such a vesting itself is questioned then the jurisdiction to give a declaration in that respect must remain with the Custodian so long as Act XII of 1957 is on the statute book and a Custodian continues to function. Of course, there may be a case when upon the admitted facts a certain property was an evacuee property at the material time and came to be acquired by the Central Government by virtue of the notification. In such a case it could easily be said that a question as to the character of the property did not properly arise so as to attract the jurisdiction of the Custodian. That, however, is not the position in the present case as has been shown above. My conclusion, therefore, is that the impugned orders of the Additional Settlement Commissioner and of the Settlement Commissioner were without jurisdiction and of no legal effect. In this view of the matter it is not necessary to go into the question whether the res pondents as mere informants were entitled to the transfer of the property.

5. Before parting with the case I would like to mention that Mr. Hamid Hussain Faruqui, the learned counsel appearing for the respondent‑transferees, had drawn my attention to a copy of a letter dated 14th March 1959 alleged to have been written by one A. E. Motiwala from Bombay to the City Survey Officer, Karachi, stating that on the death of Ismailjee his heirs, whose names are given; should be recorded as the owners in the record‑of‑rights. This letter was written in 1959 though admittedly Ismailjee died on 4th June 1951. However, if this is a genuine claim it would be for the Custodian to consider it if he decides to initiate proceedings in this regard.

6. For the reasons given this petition is allowed. I will, however, leave the parties to bear their own costs. K. B. A. Petition accepted.