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Constitutional Petition No. D-924 of 1979, decided on 23rd February, 1987.

---S.2(f) [as amended by Abandoned Properties (Taking Over and Management) (Amendment) Act (XLV of 1976)]--"Specified person"- Connotation of, before, and after amendment--Citizen of Pakistan, held, could only be adjudged as a "specified person" who had left or leaves or had expressed his desire to be taken out of, or to be allowed to leave, the territories of Pakistan--"Specified person" after amendment, would mean who on or after the specific date had ceased or ceases to be citizen of Pakistan.--[Words and phrases].

Hakim Muhammad Anwar Babri v. Federation of Pakistan through Secretary to the Government of Pakistan, Ministry of Foreign Affairs, Islamabad P L D 1974 Lah. 33 ref.

---S.3--Abandoned 'properties, vesting of--All abandoned properties were to vest and deemed always to have vested in the Federal Government on and from sixteenth day of December, 1971--Citizen of Pakistan domiciled in the Province of East Pakistan, held, had ceased to be a citizen of Pakistan from the specified date.

---Art.199--Abandoned Properties (Taking Over and Management) Act (XX of 1975), S.2 (a)--Execution of agreement between parties before specified date--Effect--Where agreement between parties vas executed before specified date i.e. 16th December, 1971, and part whereof was acted upon by delivery of possession, such property, held, could not be deemed as abandoned property--Action of declaring such property as abandoned property was illegal, without jurisdiction and of no legal effect--Petitioner having obtained good title by execution and registration of document of exchange would be entitled to relief claimed--High Court would be competent to grant such relief to petitioner in exercise of its constitutional jurisdiction.

---S.47--Abandoned Properties (Taking Over and Management) Act (XX of 1975), S.18--Registration of document--Requirement and operation of--Registered document, held, was required to be presented within three months after same had been first received in Pakistan while stamping thereof, within such period was not the necessary requirement--Registered document would operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration.

A I R 1928 P C 86; A I R 1935 Rang. 132; A I R 1960 Andh. Pra. 616; A I R 1958 Pat. 193 and A I R 1933 Cal. 212 ref.

Muhammad Sharif for Petitioner.

S.M. Shahedul Haque for Respondents.

Dates of hearing: 17th and 18th February, 1987.

.--The relevant facts for the disposal of the present petition are that the petitioner was resident of Dacca. He was taken prisoner of war and repatriated to Pakistan in 1974 with the aid of Red Cross. The petitioner had a house at Dhanmandi Dacca comprising of an area of 1600 yards. It was a double storey house. One Sirajul Islam resident of Dacca was owner of house No.C/27, Block 'I' North Nazimabad, Karachi. This house comprised of an area of 600 yards and consisted of double storey. According to the petitioner in August 1971 the said Sirajul Islam went to Dacca on leave and put his nephew in possession of ground floor of the disputed house. On 3-9-1971 the petitioner and Sirajul Islam entered into an agreement of exchange of two houses (Annexure "A"). On 28-10-1971 Sirajul Islam got Income Tax Clearance Certificate (Annexure 'B'). In November, 1971 the petitioner put Sirajul Islam in possession of Dacca house and handed over Title Deed. It is averred that the said Sirajul Islam instructed his nephew Shamsul Haque to hand over possession of the disputed house and possession of a part of house was delivered in March, 1972. On 27-11-1971 Deed of Exchange was prepared on requisite non-judicial stamp paper in Dacca and the same was duly executed by both the parties. The Income Tax Clearance Certificate was also obtained by both the parties in November, 1971. However, the said Deed of Exchange could not be presented for registration before the fall of Dacca because after the execution of the said Deed it was presented to the concerned office for obtaining the Gains Tax Clearance Certificate and thereafter the general disturbances dislocated all normal working of offices. The Deed was however, presented for registration by Sirajul Islam on 29-12-1971 after the fall of Dacca but the same was not admitted for registration till 21-3-1977 until permission from the concerned Authority was obtained as required under the local Law. (Deed of Exchange is annexure 'C'). The petitioner then filed a suit for specific performance of contract against Sirajul Islam which is still pending in this Court. In the meantime Abandoned Properties (Taking over and Management) Act, 1975 hereinafter referred to as the Act, came into force in February, 1975. On 16-6-1975 the property in question was notified as abandoned property. The petitioner filed an application under section 14 of the Act which was heard by the Respondent No.2 who by his order, dated 30-7-1975 rejected the application. The order is Annexure 'D'. Against the said order the petitioner preferred an appeal u/s 15 of the Act before the Board of Trustees for Abandoned Properties, Respondent No.l who by his order, dated 23-10-1976 dismissed the appeal. The order is annexure "E". The petitioner then obtained the Deed of Exchange from Bangladesh in October, 1978 and thereafter approached the Federal Government u/s 28 of the Act for exemption of the property but by their letter, dated 20-1-1979 the Federal Government however, rejected the same. The letter is annexure "F". The petitioner, therefore, filed the constitutional petition in this Court and on 12-2-1985 and 13-2-1985 the petitioner sought adjournments to enable him to move the respondent No.2 for consideration of the Exchange Deed duly registered which was obtained subsequently to the passing of the order by the respondent No.2. The order, dated 13-2-1985 reads as under:

"We have heard Mr. Muhammad Sharif yesterday and also for some time today: Now Mr. Muhammad Sharif states that the hearing of the case may be adjourned to enable him to move respondent No.2 for consideration of the documents which he has obtained subsequent to the passing of the order impugned in this petition. Mr. Shahoodul Haq has no objection to adjournment. We, therefore, adjourn the hearing to a date in office after 6 months as requested."

2. We have heard the learned counsel for the parties. The admitted position is that Bangladesh was recognised by Pakistan on 8-7-1973. National Assembly adopted such resolution. Upto that time Bangladesh was considered to be the part of Pakistan. In this context we may refer to the case of Hakim Muhammad Anwar Babri v. Federation of Pakistan through Secretary to the Government of Pakistan, Ministry of Foreign Affairs, Islamabad P L D 1974 Lahore 33. However, this fact is not very material for the disposal of the present petition. In the Act 'abandoned property' has been defined under section 2(a) as under:

"'abandoned property' means any property, movable or immovable (including share in industrial units and firms, investments, deposits, policies of insurance and all other interests and rights in or to or arising out of any such property), belonging to a specified person and includes any such property sold or transferred to, or placed under the supervision or control of, any other person on or after the sixteenth day of December, 1971, but does not include any ornaments or wearing apparel or any cooking vessels or other household effects in the immediate possession of a specified person; not exceeding a total of rupees one thousand."

Under Section 2(f) "specied person" means a citizen of Pakistan domiciled in the territories which immediately before the sixteenth day of December, 1971, constituted the province of East Pakistan who has left or leaves or has expressed his desire to be taken out of, or to be allowed to leave, the territories of Pakistan and includes company registered in the said territories the registered office of which has not been shifted in pursuance of the Companies (Shifting of Registered Office) Ordinance,'1972 (V of 1972).

By Act XLV of 1976 the definition of 'specified person' was substituted as under:

"specified person means a person who, at any time before the sixteenth day of December 1971, was a citizen of Pakistan domiciled in the territories which before the said day constituted the Province of East Pakistan and who, on or after that day has ceased or ceases to be a citizen of Pakistan, and includes a company registered in the said territories the registered office of which has not been shifted in pursuance of the Companies (Shifting of Registered Office) Ordinance, 1972 (V of 1972)".

Thus according to the definition of the unamended Act a citizen of Pakistan can only be adjudged as a specified person who has left or leaves or has expressed his desire to be taken out of, or to be allowed to leave, the territories of Pakistan but after the amendment specified person means who on or after that day has ceased or ceases to be a, citizen of Pakistan.

Under Section 3 of the Act all abandoned properties shall vest and shall be deemed always to have vested in the Federal Government on and from the sixteenth day of December, 1971. It is, therefore, clear that it has to be seen that a citizen of Pakistan domiciled in the province of East Pakistan has ceased or ceases to be a citizen of Pakistan, but this fact is also not material for the disposal of the present petition. It is the case of the petitioner that he had entered into an agreement with Sirajul Islam on 3-9-1971 and on 27-11-1971 Deed of Exchange was executed. In November, 1971 the possession of Dacca House was delivered to Sirajul Islam. The agreement was valid and in lieu of such agreement part of possession of the house was given to the petitioner in March, 1972. The petitioner is admittedly in possession of the disputed property. As the agreement between the parties was executed before 16th day of December, 1971 and part of the agreement was acted upon as the possession was delivered to Sirajul Islam in 1971, therefore, the property in dispute cannot be called as abandoned property, therefore, the action of the respondent in declaring this property as abandoned property is illegal, without jurisdiction and of no legal effect.

3. The order of the respondent No.2 is based on the sole ground that the agreement, dated 27-11-1971 is not sufficient to complete the exchange transaction which requires registration under Transfer of Property Act and there is no proof that the applicant had executed a registered conveyance deed in favour of specified person. The recital of the order shows that the execution of the agreement is not disputed but the claim of the petitioner was rejected on the sole ground that the same was not registered. The respondent No.1 rejected the appeal and confirmed the finding of the respondent No.2. It has been observed that so called agreement, dated 3-9-1971 does not confer any rights of ownership on the appellant for the simple reason that it was never acted upon. This observation is contrary to the record as it is the case of the petitioner and not controverted by the respondent that Sirajul Islam had taken the possession of the house of the petitioner situated in Dhanmandi Dacca. In para 23 of the Counter-affidavit, dated 26-3-1986 the execution of the document has not been disputed but it is stated "that the Exchange Deed was executed in Dacca on 27-11-1971 and registered on 21-2-1977. The copy of the said Exchange Deed was obtained on 26-3-1985 but no plausible explanation was given as to its delay in production in 1985 at Karachi." Thus not only the execution of the document but its registration has been admitted. After the passing of the order by the Respondent No.1 the petitioner had challenged the same in the constitutional petition. During the pendency of this petition the petitioner sought time to produce the document before the Respondent No. 1. The petitioner has explained the delay as the petition was pending in this Court and thereafter ho approached the respondent No.1 as such delay has been explained.

The reasons which prevailed with the Deputy Administrator in his order, dated 14-11-1985 are produced herein:

(1) The exchange deed is alleged to have been executed at Dacca on 27-11-1971 and registered on 21-3-1977. The copy of the said exchange deed was obtained on 26-3-1985. No plausible explanation is available as to its delay in production in 1985 at Karachi. The alleged deed of exchange was not attested by our Embassy in Bangladesh at the time of its presentation i.e. 12-3-1985 which was done subsequently during the fiction of case.

(2) The alleged document was not properly stamped at the time of its presentation to this Court on 12-3-1985 as per provision of the Stamp Act of 1899. Section 18 of the said Act provides that the document should be stamped within three months after it has been first received in Pakistan. The exact date of its receiving is not known. However, it is evident that it was received in Pakistan in February, 1985, as the applicant's counsel had made a statement in the High Court of Sind, Karachi for the consideration/ presentation of the alleged document to this Court. From this statement is established that the same was in his possession in February. 1985 and it was the duty of the applicant to get it stamped as per aforesaid Section. The applicant got it stamped on 27-10-1985 i.e. during the proceeding of this case.

(3) If it is admitted for the sake of argument that the alleged document was executed on 27-11-1971 even then the specified person has no authority to get it registered on 21-3-1977 as according to the provisions of the Abandoned Properties (Management) Act XX of 1975 he lost the citizenship of Pakistan w. e. f. 16-12-1971 and the property vests. in the Federal Government. Therefore, the said document is null and void in the eyes of law. All the acts done after 16-12-1971 have no legal weight in relation to the execution as all his rights, title or interest in the property in dispute ceased by the operation of law. Attempt has been made to produce the alleged deed of exchange at highly belated stage as the case was under litigation since 1975.

(4) The applicant has also failed to produce the original exchange deed but he managed to produce a copy of the same which is alleged to have been obtained on 26-8-1978 and produced on 12-3-1985 after a lapse of more than seven years for which no explanation of delay has been given.

(5) Finally, according to the provisions of the Act XX of 1975 this Court has no power to re-open the case particularly when the same has been decided even in appeal as well as by the Federal Government under section 28 of the said Act.

As regards ground No.1 the petitioner has given plausible explanation for delay. The document was registered on 21-3-1977. It was not necessary that the document should have been attested by the Embassy. As regards the second objection that the document should be stamped within three months after it has been first received in Pakistan: under Section 18 the document should be presented within three months of the execution to the Collector. Section 18 does not provide that it must be stamped within three months. But in this case original agreement was executed when Bangladesh was part of Pakistan. The document was a valid document, therefore, section 18 of the Stamp Act does not apply in this case. It was executed on 27-11-1971. The respondent No.2 is a party to the petition. He fully knew that the document had been filed in this petition in 1979. Even on merits the observation has no force because the document was not in possession of the petitioner for reasons beyond his control. As regards the objection that the document was registered on 21-3-1977 when the property has already vested in the Federal Government, suffice it to say that under Section 47 of the Registration Act a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. Apart from the above fact the document could not be registered as it was beyond the powers of the petitioner to get it registered as the disturbances had occurred and war of hostility had started. The petitioner became prisoner. of war. Section 47 of the Registration Act applies to the facts of the present case. According to section 47 a registered document takes effect from the date of execution and not from the date of registration. If any authority is needed we may quote A I R 1928 Privy Council 86, A I R 1935 Rangoon 132, A I R 1960 Andhra Pradesh 616, A I R 1958 Patna 193 and A I R 1933 Calcutta 212.

4. In substance the petitioner had obtained a good title, therefore, he is entitled to the relief claimed by him in the petition. The respondents have taken erroneous and illegal view both on facts and on merits. In such cases the Court has the jurisdiction to interfere under Article 199 of the Constitution to promote the cause of justice. Learned counsel for the petitioner has referred to the cases of (1) # Rahim Shah v. The Chief Election Commissioner of Pakistan and another. P L. D 1973 S C 24, (2) Messrs Foundation Engineering Ltd. v. The 4th Junior Labour Court, Karachi and 6 others P L D 1976 Karachi 98 and (3) The Presiding Officer v. Sadruddin Ansari and another PL.D 1967 S C 569.

The petition is accepted and the orders of the respondents, dated 30-7-1975, 23-10-1976 and 14-11-1985 are declared to be illegal, without jurisdiction and of no legal effect. The petitioner had become the owner of the property in dispute on 27-11-1971. Neither the property could be treated as abandoned property nor Sirajul Islam could be termed as a specified person within the meaning of the Act. There will be no order as to costs.

A. A./ M-96 /K Petition accepted

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