1984 PLP 1291 (CLC)

Art. 9-Writ jurisdiction -Laches-Mutation made in favour of petitioner by Revenue Office cancelled by Collector on 5th April, 1982-Appeal against cancellation of mutation dismissed by Additional Commissioner on 8th June, 1982--Writ filed in 1983 Held, petition suffered from laches.-[Laches]. --Art. 9 read with Defence of Pakistan Rules 1971, r. 185 (1) (b) Property declared enemy property by West Pakistan Enemy Property Management Board by Notification No. S. R. O. 347 (K) (72), dated 24th February, 1972-Petitioner applying on 22nd January, 1974 to Custodian Enemy Property Management Board for appointment as supervisor for collection of rent on ground that he was fully conversant with affairs of property-Petitioner, held, fully conscious of properties having been declared as enemy property and as such a case of acquiescence disentitling petitioner from challenging Notifica tion. --Art. 9-Writ jurisdiction-Conduct of petitioner-Want of bona fide-Effect-Petitioner suppressing factum of Notification of Federal Government of 1972 declaring property as Enemy Property getting mutation sanctioned in his favour in respect of part of said property from Revenue Officer-Conduct of petitioner, held, was sufficient to disentitle him from discretionary relief-Petitioner, held further, precluded from attacking Notification after 11 years in writ petition. Zia Mahmood Mirza, Standing Counsel for the Respondent No.

1. This writ petition has been filed by the petitioner to avoid the effect of a notification issued by the Central Government declaring the properties of late Lala Balak Ram as enemy property vide notification, dated 24th February, 1972.

2. The case set up by the petitioner is that he was the servant of the late Lala Balak Ram, a Hindu gentleman who owned extensive property in Pakistan including one building known as National Pharmecy, Anarkali, Lahore, another building known as - National Laboratory, Abkari Road, Lahore, etc., as also land measuring 93 Kanals 16 Marlas situated in Chak Jia Musa, Lahore. He relies on a photostat copy of a will of late Balak Ram. The petitioner claims to be an employee of said Lala Balak Ram. The will was said to have been registered with the Sub-Registrar, Lahore on 7th June, 1965. According to this copy of the will, after the death of Lala Balak Ram, all the properties were to go to the petitioner. 3. 1t is the case of the petitioner that Lala Balak Ram went to U. S. A. for treatment from where he proceeded to India and it is there that he died. It is further the case of the petitioner that Lala Balak Ram throughout remained a Pakistani national and had not become an Indian subject.

4. Vide Notification No. S. R. 0.-347 (K) (72), dated 24th February, 1972, the West Pakistan Enemy Property Management Board, in exercise of the powers conferred by clause (b) of sub-rule (1) of rule 185 of the Defence of Pakistan Rules, 1971, read with the Government of Pakistan, Ministry of Communications' Notification No. S. R. 0.-189 (K) (72), dated 15th January, 1972, directed that properties known as `National Labora tories and `National Pharmacy' Lahore owned by Lala Balak Ram Metha an enemy citizen in terms of clause (b) of rule 164 of the Defence of Pakistan Rules, 1971, alongwith all assets, movable and immovable and other properties vested in or belonging to him, shall vest in the Additional. Custodian of Enemy Property for West Pakistan. Thereafter, the property was managed by the Custodian or through his agent duly appointed by him. Lately, National Police Foundation was given the administration of the property vide Notification, dated 26th February, 1976.

5. I had ordered a pre-admission hearing in this case and accordingly Mr. Zia Mahmood Mirza, Advocate appeared for the Federal Government alongwith Mr. Muhammad Anwar, Assistant Custodian (Law) on behalf of respondent No. 2, Custodian of Enemy Property, Lahore. It was pointed out from the record that after the property bad been taken over by the Custodian Enemy Property, the petitioner had applied to them for being taken into service as he was an old employee and fully coversant with the affairs of the said property. The petitioner was confronted with this document and he admitted that he had given this application, dated 22nd January, 1974.

6. The petitioner thereafter, in the year 1981, approached the Tehsil dar, Lahore, who on the basis of the will, sanctioned Mutation No. 2441, dated 25th August, 1981 in favour of the petitioner in respect of the land in Mouza Jia Musa, Lahore after holding that Lala Balak Ram had died in the year 1975. On coming to know of these facts, the National Police Founda tion gave an application before the Assistant Collector Grade-I, Lahore, dated 24th February, 1982 for the review of the mutation sanctioned by the Assistant Collector, Lahore on the allegation that this mutation had been got sanctioned on the basis of forged will, dated 7th June, 1965. It was further explained that since 24th February, 1972 the property was being managed by the Custodian or through his agent duly appointed by him and that these functions had been taken over by the National Police Foundation vide notification, dated 26th February, 1976. It was further stated that the petitioner Mirza Abdul Salam was fully aware of the fact that the property was handed over to the National Police Foundation by late S. L. Satnagar, Manager, National Pharmacy Anarkali, Lahore, who was holding the property as agent of the Custodian Enemy Property for Pakistan. The Collector granted permission for review on 3rd March, 1982 after becoming cognizant of the fact that the property stood declared as enemy property vide notification, dated 24th February, 1972. The mutation was thus reviewed and cancelled.

8. It is also admitted by the petitioner that he filed a suit before a learned Civil Judge at Lahore for a declaration with permanent injunction. The claim set up was that the plaintiff was the owner of Beli Ram building known as National Pharmacy, Lahore by virtue of the will and also relied on mutation sanctioned at No. 2441, dated 25th August, 1981. This suit was dismissed by the learned Civil Judge on 11th May, 1983. A perusal of the judgment would show that according to the averments of the petitioner it was claimed that he had approached the Manager of the National Pharmacy but he did not pay any heed. While claiming the relief that the plaintiff was the owner of the properties of Lala Balak Ram and that the Enemy Property Board had no title or right in the property, a permanent injunction was sought as a consequential relief that the defendants to the suit be restrained from interfering with the property. It was held that it was the admitted position that the property had been taken over vide notification issued in the year 1972 and that the notification was protected by the Defence of Pakistan Ordinance, 1971. The orders passed under the said law were held to be immune from challenge. The suit was, therefore, dismissed as already noticed on 11th May, 1983. (a) all properties taken over by respondent No. 2 in pursuance of the impugned notification be released by declaring the notification, dated 24th February, 1972 to be illegal, void, without lawful authority and inoperative ; (b) by declaring the Mutation No. 2441 sanctioned on. 25th August, 1981 to be unimpeachable by giving effect thereto with a direction to the respondents to deliver the properties as contained in the `will', dated 7th June, 1965 duly sanctioned and registered before the Sub-Registrar having attained finality to the petitioner ; (c) any other relief which this Court may deem fit and proper in the circumstances of the case.

10. I have considered the submissions made by the petitioner in this case but have been unable to find any merit therein. First of all, it may be observed that the petition suffers from laches inasmuch as against the order, dated 5th April, 1982 of the Collector reviewing the mutation in favour of the petitioner he had gone up in appeal before the Additional Commissioner (Revenue), Lahore. This appeal was dismissed on 8th June, 1982. The appellate Court had held that the Collector had merely given effect to the notification of the Federal Government declaring the properties of Lala Balak Ram, etc. as enemy property and in the proceedings on the revenue side the validity of this notification could not be challenged. Secondly, on 22nd January, 1974, the petitioner himself gave an application to the Custodian Enemy Property Management Board, Islamabad, requesting for appointment as a Supervisor for collection of rent and maintenance of proper record in respect of property of Balak Ram who had before proceed ing to India also given him a power of attorney. It is envious there from that the petitioner was fully conscious of the properties of Lala Balak Ram having been declared as enemy property as far back as the aforesaid date and had in fact sought an employment under the Custodian of Enemy' Property Management Board. It is, therefore, both a case of laches as well as of acquiescence. The belated plea of the petitioner that he was entitled to inherit these properties on the strength of an unproved will miserably lacks bona fides. It is thereafter in the year 1981 that he approached a Revenue Officer and got Mutation No. 2441, dated 25rh August, 1981 sanctioned while completely suppressing the factum of the notification of the Federal Government of the year 1972 declaring the properties of Lala Balak Ram as enemy property. The conduct of the petitioner, therefore, is approaching this Court is thus sufficient to disentitle him to discretionary relief and he is precluded from throwing a belated challenge to the notification of 1972 in the constitutional jurisdiction of this Court after a lapse of some 11 years. It is not a case of delay simpliciter but the interests of respondent No. 3 National Police Foundation have also intervened in the meantime.

11. The petitioner can hardly lay any claim on the basis of will the original of which he has been unable to produce or Mutation lo. 2441, dated 25th August, 1981 which was not sanctioned by him from the Revenue Authorities after completely suppressing the fact regarding the property which no more vested in Lala Balak Ram but was enemy property wasting in the Custodian of Enemy Property Management Board. The order of the Revenue Officer sanctioning the mutation in favour of the petitioner was thus void, ab inito and without jurisdiction.

12. The petitioner has thus no case for the exercise of constitutional jurisdiction. The writ petition, therefore, fails and is hereby dismissed in limine. M. H. A. Petition dismissed.