Find a Lawyer

Civil Petition for Special Leave to Appeal No. 564‑K of 1984, decided on 6th February, 1986.

‑‑‑Art. 185(3)‑‑Enemy Property (Continuance of Emergency Provisions) Ordinance (XXXIV of 1977), S. 2‑‑Enemy property‑‑Notification vesting enemy property in Custodian issued without affording opportunity of hearing to person deprived of his property by such notification‑‑Such notification declared by High Court as illegal and without lawful authority‑‑Leave granted to consider plea that High Court ought to have, held, that post facto opportunity of hearing should be granted to respondent which petitioners were willing to afford.

Saiyyid Abul Ala Maudoodi and others v. Government of West Pakistan and another P L D 1964 S C 673 ref.

Liaquat Merchant, Deputy Attorney‑General for Pakistan instructed by Muzaffar Hassan, Advocate‑on‑Record for Petitioners.

A.A. Fazeel, Advocate Supreme Court and S.M. Gharib Nawaz, Advocate‑on‑Record for Respondent

Date of hearing: 6th February, 1986.

‑Facts of this case briefly state('. are that Mrs. Doulat Boman Irani, sister of respondent herein, Shah Behram Irani, inherited 5/21 share in property bearing Survey No. 271, Sheet A.M. Victoria Road, Karachi, after the death of her parents. On 28‑8‑1974 Mrs. Doulat Boman Irani gifted her share in the property to respondent through a registered deed. Later, by notification, dated 24‑3‑1977 the Federal Government in exercise of powers under clause (b) sub‑rule (1) of rule.185 of the Defence of Pakistan Rules directed that the share of Mrs. Doulat Boman Irani, an enemy, in the Paradise Theatre, 271 Victoria Road, Karachi shall vest in the Custodian of Enemy Property for Pakistan. Mrs. Doulat Boman Irani approached the Federal Government for the discharge of the "vesting order", but her request was rejected under communication, dated 18‑10‑1977. Afterwards, in supersession of the earlier notification, dated 24‑3‑1977, the Federal Government issued two Notifications Nos. S.R.O. 1119(1)/78 and S.R.O. No.1120(1)/78 dated 19‑9‑1978, under rules 185(2) and 181(1) read with section 2 of the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1977 whereby not only the gift made by Mrs. Doulat Boman Irani was declared void, but also the share of the property covered by the said gift was vested in the Custodian of Enemy Property.

Respondent challenged both these notifications in a Constitution Petition in the Sind High Court which was allowed by the judgment, dated 2‑10‑1984 on the ground that no opportunity of hearing having been granted to the respondent before she was deprived of her right in property, the notification cannot be sustained in law and are therefore, illegal, and without lawful authority.

Petitioners now seek leave to appeal from the judgment of the High Court, and it is inter alia submitted by Mr. Liaquat Merchant, learned Deputy Attorney‑General that even if the view of the learned Judges in the High Court, which is based on the judgment of this Court in Saiyyid Abul Ala Maudoodi and others v. Government of West Pakistan and another P L D 1964 S C 673 is to prevail, they ought to have held, in terms of that judgment, that post facto opportunity of hearing should be granted to the respondent. In this behalf, learned Deputy Attorney‑General states that petitioners are willing to afford such post facto opportunity of hearing to the respondent.

The aforesaid point amongst others raised in support of the petition deserves consideration. We, therefore, grant leave to appeal and allow the petition.

Mr. A.A. Fazeel, learned counsel for the respondent states that since the respondent has sold the property in question to a third party, it is necessary that the new purchasers should be joined as a party to the appeal. Learned Deputy Attorney‑General states that he will apply for the joinder of the new purchaser of the property after ascertaining the name from the learned counsel for the respondent who has undertaken to do so.

The appeal will be heard on the present record, but it is open to the parties to file additional documents, if any.

M. I. Leave granted

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.