Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Constitutional Petition No. 22 of 1976, decided on 14th October 1976.
-- S. 2-Enquiry as to whether property in dispute is evacuee property or not Held, such proceedings could not be initiated by Settlement Authorities after repeal of Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958).
Maroof Ali Khan for Petitioner.
Muhammad jafer Naim for Respondents.
Date of hearing : 7th October 1976.
In this petition the dispute is in respect of seven shops and godown consisting of four rooms situated on Eidpur Road, Lasbella. Prior to the partition of the Sub-continent this property belonged to Mengharaj, since an evacuee. It is urged that in the month of March. 1944 this property was sold out to the present petitioner for a consideration of Rs. 25,000 and as provisions of Registration Act did not extend to the Princely State of Lasbella, therefore according to the custom pravalent in the then Lasbella State the .c entry about this transaction was made in the 'Bandi' of the petitioner. It is f alleged that the entry was made in the hand-writing of Mengbaraj the sellers of the property himself. Petitioner further urges that throughout the period from 1944 to 1961 this property was never treated as Evacuee, although other properties belonging to the same evacuee owner were treated as such and were disposed of through auction.
2. On 7th May, 1974 one Badiuz Zaman made an application to the Deputy Commissioner-cum-Deputy Settlement Commissioner, Lasbella to the effect that the property in question was evacuee and as such it was liable to be disposed of in manner provided by the settlement laws. The Deputy Settlement Commissioner deputed an Inspector of his Department to submit a report. The report was accordingly submitted on 22nd May, 1974 and in the light of that report the Deputy Settlement Commissioner conducted a detailed inquiry. He examined the petitioner, one Haji Mohammad Ishaque, Uttomal and Maulana Haji Ahmad. The net result of this inquiry was that the property was held by him to be non-evacuee and belonging to the peti tioner vide order dated 19th June, 1974.
3. After the aforementioned orders had been passed by the Deputy Settlement Commissioner same Badiuz Zaman submitted another appli cation on 13th January, 1975 to the Deputy Settlement Commissioner requesting for a fresh inquiry. The Deputy Settlement Commissioner prepared the summary of the case and submitted it to the learned Member, Board of Revenue for the orders. He requested the learned Member, Board of Revenue to allow him to conduct fresh inquiry as the sale transaction had not been registered in accordance with the provisions of Registration Act. On 18-1-1975 the learned Member, Board of Revenue directed the Deputy Settle ment Commissioner. Lasbella to hold fresh inquiry in the case. Simultaneously be passed an order dated 14th April, 1975 whereby the property in question was ordered to be taken over by the Settlement Department.
It is against the order dated 14th April, 1975 that this petition has been filed by the petitioner.
4. The main-point urged by the learned counsel in support of his case is that after 1st July, 1974 the date on which Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 was promulgated no proceedings could be initiated or continued against any person in respect of any evacuee property due to bar of subsection (2) of section 2 of the said Ordinance. Section 2 is reproduced below for convenience of reference:-
"2. Repeal of certain laws.-(1) The following Acts and Regulations are hereby repealed, namely:-
(i) the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956),
(ii) the Pakistan Rehabilitation Act, 1956 (XLII of 1956),
(iii) the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957),
(iv) the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIR of 1958),
(v) the Displaced persons (Land Settlement) Act, 1958 (XLII of 1958).
(vi) the scrutiny of Claims (Evacuee Property) Regulation, 1961, and
(vii) the Recovery of Price of Evacuee Property and Public Dues Regulation, 1971.
(2) Upon the repeal of the aforesaid Acts and Regulations all proceed ings which immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Govern ment in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."
A perusal of the above cited section shows that it repealed the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and therefore no fresh proceedings within the perview of Displaced Persons (Compensation and Rehabilitation) Act could be initiated before any Court or authority. However subsection (2) of this section saved pending proceedings or the proceedings in cases which had been remanded to the Settlement Organization by the Supreme Court or the High Court. In the last-mentioned categories of cases the Settlement Authorities could validly continue the proceedings. The Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 was subsequently repealed by Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Section 2 of this Act which is in pari materia with section 2 of Evacuee Property and Displaced Persons Laws (Repeal) Ordinance. 1974 and which is reproduced below also indicates that Displaced Persona (Compensation and Rehabilitation) Act, 1958 stood repealed by virtue of this Act.
"2. Repeal of certain laws. (1) The following Acts and Regulations are hereby repealed, namely:--
(i) the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956);
(ii) the Pakistan Rehabilitation Act, 1956 (XLII of 1956);
(iii) the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957);
(iv) the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1858);
(v) the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958);
(vi) the Scrutiny of Claims (Evacuee Property) Regulation, 1961; and
(vii) the Price of Evacuee Property and Public Dues (Recovery) Regula tion, 1971.
(2) Upon the repeal of the aforesaid Acts and Regulations, all proceed ings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Govern ment in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."
From the perusal of the aforementioned provision of law it is quite apparent that Displaced Persons (Compensation and Rehabilitation) Act, 1958 stood repealed by virtue of the promulgation of this Act. The proceedings of any nature could not therefore be initiated within the meaning of last-mentioned Ac Because for all purposes it was a dead statute. However, Act XIV of 197 also makes a concession in respect of the proceedings pending before the Settlement Authorities on the date of coming into force of this Act, or in cases which were referred to the Settlement Organization by the Supreme Court or the High Court. It is thus settled position of law that fresh inquiry could not be held by the learned Member, Board of Revenue or the Deputy Settlement Commissioner in the instant case.
The learned counsel appearing on behalf of the learned Member, Board of Revenue has contended that no fresh proceedings were initiated by the learned Member, Board of Revenue and that the proceedings in question were continuing since before the promulgation of the above-said Statutes. Accord ing to him these proceedings were initiated on an application made much earlier to the coming into force of the said Ordinance and Act and therefore the bar of this provision of law did not come into effect as far as this case is concerned. He, however, concedes that the inquiry could be held only by the Custodian and not by any settlement authority including the Member, Board of Revenue, who is also functioning in the capacity of Chief Settlement Commissioner. According to him the Member Board of Revenue has now been designated as Custodian as well. Since the case did not fall within the ambit of jurisdiction of the learned Chief Settlement Commissioner and, it could, if at all necessary, be inquired into by the Custodian alone for the purposes of knowing as to what was the status of the property, therefore it is quite clear that the proceedings taken by the Settlement Authorities which culminated into the passing of the order dated 14th April, 1975 were illegal and without jurisdiction. Even otherwise this order has been passed behind the back of the petitioner and it is liable to be set aside being violative of the principles of natural justice.
5. For the foregoing reasons, I allow the petition and set aside the order of the learned Member, Board of Revenue dated 14th April, 1975. The parties are left to bear their own costs. It may further be pointed out that this order will not create any bar to the initiation of proceedings by the Custodian, it necessary, in order to determine the status of the property in question.
S. Q. Petition allowed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer