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Constitutional Petition No. 627 of 1974, decided on 6th April, 1982.

‑‑ Art. 199 read with Pakistan Administration of Evacuee Property Rules, 1950, Rr. 12 (5) & 13 (4)‑Non‑compliance of Rules‑Effect‑ Petitioners claiming to be transferees/owners of evacuee agricultural land ‑Deputy Custodian Evacuee Property declaring respondent and his property (said agricultural land) non‑evacuee‑Additional Custodian remanding case for fresh decision, after giving full opportunity to all parties‑Custodian, Evacuee Property however confirming order of Deputy Custodian‑None of said Authorities issuing notice to Rehabilitation Authority‑‑Custodian failing to appreciate that Deputy Custodian passed order without giving any opportunity of being heard or notice to show cause to interested parties‑Order of Deputy Custodian and Custodian being in viola tion of mandatory requirements of Rules, held, cannot be sustained.

Nasrullah Awan for Petitioners.

Date of hearing : 6th April, 1982.

This petition has been filed challenging the order dated 18th May, 1974 passed in Revision Application No. 29 of 1973 by the Custodian of Evacuee property of Sind.

1. For the purposes of disposal of this petition it would not be necessary to go in details of the proceedings leading to the passing of the impugned order. Suffice it would be to state that the petitioners claim to be the transferees/owners of agricultural land bearing Survey Nos. 422 A/702, A/703, A/481, A/484 (entire 16 annas shares) arid 8 annas share in Survey No. A/485, A/488, A/493 (A/490, A/491 allotted in 1957 to Respon dent No, 4 and from whom Mst‑ Zubaida Begum purchased) and 5‑4 annas share in Survey No. A/492 allotted to Petitioner No. 1 in 1957 and A/494 and 3‑I1 annas share in Survey No. 419 situated in Deb Mori, Taluka and District Khairpur,

Respondent No. 1 Danomal, after setting up of Pakistan migrated to India. He however returned to Pakistan after some time and filed an applica tion under section 18 of Ordinance XV of 1949 before the Custodian Khairpur State which was registered as Miscellaneous Application No. 48 of 1950. It is alleged that no order on the said application was passed and ultimately the matter came up before the Deputy Custodian Evacuee Property, Respondent No. 3, who by order passed on 22nd September, 1973' on an application moved under section 22 of the Act No. XII of 1957 by the Respondent No. I (Danomal) declared him and his property shown above as non‑evacuee subject to the approval by the learned Custodian, Evacuee Property, for Sind.

2. An appeal against the aforementioned order was filed before the Additional Custodian who by order dated 27th November, 1973 allowed the same and set aside the order dated 22nd September, 1973 passed by the Deputy Custodian on the ground that the said order had been passed without hearing the necessary parties mentioned in the order. The case was accordingly remanded to the Deputy Custodian for deciding the application for Danomal afresh after giving full opportunity of hearing to all the parties specified in the said order. The learned Additional Custodian further observed that he was not touching the merits of the case except observing that the Deputy Custodian should carefully consider the import of the state ment dated 17th April, 1950 allegedly made by the Respondent, Danomal.

3. Against the above‑mentioned order passed by the Additional Custodian, revision application was filed by Danomal, Respondent No. 1 before the Custodian Evacuee Property who by the impugned order date 18th May, 1974 set aside the order of the Additional Custodian, allowed the Petition and declared Respondent No. 1. Danomal and his properties as non‑evacuee and confirmed the order of Deputy Custodian. Against the above‑mentioned order passed on 18th May, 1974 by the Custodian this Petition has been moved under Article 199 of the Constitu tion of 1973.

5. A perusal of the record shows that neither the Custodian who passed the impugned order on 18th May, 1974 nor the Deputy Custodian nor Additional Custodian who passed orders dated 22nd September, 1973 D and 27th November, 1973 issued any notice of the application to the Rehabilitation Authority as contemplated by rule 12 (5) read with rule 13(4) of the Evacuee Property Rules. It would be noted that rule 12 which prescribes procedure for confirmation of transactions mentioned 'An section 20 of Pakistan (Administration of Evacuee Property) Act of 1957, vide sub‑rule (5) lays down that :‑

"The Custodian shall cause a notice to be served on the respondent, and the Rehabilitation Authority of the area in which the property is situated, and on any other person likely to be interested in or affected by the result of the application, and may also cause a public notice to be published in a Newspaper at the expense of the applicant."

The requirement of service of notice, mentioned in sub‑rule (5) on the Respondent and Rehabilitation Authority of the area and on any other person likely to be interested in or affected by result of application has also been made applicable to applications in relation to claims under section 18 of Ordinance No. XV of 1949 (now section 22 of Act of 1957) by rule 13 (4) which reads as follows :‑

"The provisions of sub‑rules (4) and (5) of rule 12 shall apply mutatis mutandis to an application under subsection (1) of section 18."

6. The learned Custodian also failed to appreciate that the impugned order dated 22nd September, 1973 was passed by the Deputy Custodian with out giving any hearing or opportunity of being heard or to show cause to the interested parties as was rightly held by the Additional Custodian in his order passed on 27th November, 1973.

7. For the reasons stated above the order of the Deputy Custodian passed on 22nd September, 1973 as well as the order of the Custodian dated 18th May, 1974 passed in violation of mandatory requirements of law (Rules) cannot be sustained.

8. Thus the orders of the Deputy Custodian passed on 22nd September, 1973 as well as the order of the Custodian passed on 18th May, 1974 are quashed having been passed without lawful authority and as of no legal effect. Consequently the decision of the Additional Custodian dated 27th November. 1973 is upheld and the case stands remanded to the Deputy Custodian, as directed by the Additional Custodian, for decision of the application of Danomal afresh after giving full opportunity of hearing to all the necessary parties. I further direct that the Deputy Custodian shall also issue notice to the Rehabilitation Authority/ Authorised Officer of concerned area as required by the Rules and dispose of the matter on merits according to law.

In the circumstances of the case there shall be no order as to costs.

K. M. A. Order quashed and case remanded.

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