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Constitution Petition No.214 of 1976, decided on 20th May, 1987

(a) Evacuee Property and Displaced ,Persons Laws (Repeal) Ordinance (XV of 1974)--

---S.2--Pakistan (Administration of Evacuee Property) Act (XII of 1957), S.22--Allotment of land--Order of allotment passed by Custodian Evacuee Property in favour of respondent on a date prior to the promulgation of Ordinance but after the date from which it was given retrospective effect--Order, held, nullity in law--Contention, that order of allotment created vested rights in favour of allottee which could not be taken away, repelled.

---S.22--Evacuee Property and Displaced Persons Laws (Repeal) Ordinance (XV of 1974), S.2--Pakistan Administration of Evacuee Property Rules, 1950, R.13--Allotment of land--Land in dispute declared as non-evacuee and mutated in favour of respondent by' order of Custodian passed on application of respondent--Record showing that application of respondent was filed by him after expiry of period of limitation, prescribed under relevant Rules, and was allowed without condoning delay and also order in favour of respondent was passed without giving proper notice to petitioner whose interest was directly affected by such order of Custodian--Order, held, was without jurisdiction and nullity in eye of law--Case remanded to Notified Officer for fresh disposal of case in accordance with law.

Fazle Ghani Khan for Petitioner.

Abdul Lateef Channa for Respondents.

Date of hearing: 21st April, 1987.

The petitioner had purchased land bearing Survey Nos.29/1 to 39/6 totalling seven acres and nine guntas, in Deh Goongo, Taluka Ubauro District Sukkur from its original allottees, namely Mumtaz Wali Khan and Mst.Shahjehan Begum. The land was duly mutated in the name of the petitioner vide entry made by the Mukhtiarkar Ubauro in record of rights, dated 22-9-1973. After sometime, in 1974, respondent Ghulam Mohammad son of Allah Dino filed an application under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 before the then Custodian Evacuee Property Sind, Hyderabad (Respondent No.1) requesting him to declare the petitioner's Survey Nos. as non-evacuee, as according to the respondent the same had been purchased by him in 1944 through a statement made by their Hindu owner before the Taluka Mukhtiarkar Ubauro. This application was allowed by the respondent No.1 vide order, dated 23-7-1974, and the land was declared as non-evacuee and ordered to be mutated in the Revenue records in favour of the respondent Ghulam Mohammad in pursuance of such order, the Deputy Commissioner Sukkur (Respondent N0.2) also ordered the mutation of the land to be made in favour of respondent Ghulam Mohammad and hence this petition.

The first argument of Mr.Fazle Ghani Khan, learned counsel for the petitioner, is that the order under challenge, dated 23-7-1974, is a nullity in law as Mr.Azizullah Memon, the then Custodian Evacuee Property Sind (Respondent No.1) had ceased to possess jurisdiction in the matter on account of coming into force of the Evacuee Property and Displaced persons Laws (Repeal) Ordinance, 1974 which repealed all the evacuee property laws with effect from 1-7-1974.

Although by 23-7-1974 when the impugned order was passed, the aforesaid Ordinance had not been promulgated and the learned Custodian Evacuee Property had purported to act under the provisions of section 22 of the Pakistan (Administration of Evacuee Property) (Act XII of 1957) but since the Ordinance was given retrospective effect, any order passed after 1-7-1974, in my opinion, became a nullity in law, but the argument of Mr.Abdul Latif Channa, learned counsel for the respondent has been that since the order was not a nullity on the date when it was passed by the Custodian it created vested rights in favour of respondent Ghulam Mohammad and such rights could not be taken away by the aforesaid Ordinance despite the fact that the same took effect from 1-7-1974. Although I am not inclined to subscribe to this view, because the legislative intent was clearly manifested' in the Ordinance, but assuming that Mr-Abdul Latif Channa is correct, there are other reasons for me to hold that the order passed by the respondent No.1 was without lawful authority.

First of all, as is evident from the learned Custodian's record, the application of respondent Ghulam. Mohammad was filed after the period of limitation prescribed therefore under the relevant rules had already expired. Although an application under section 5 of the Limitation Act supported by the respondent's affidavit had been filed but no order was passed thereon by the learned Custodian. According to rule 13 of the Administration of Evacuee Property Rules, 1950, an application in respect of any claim preferred by an interested person in respect of a right or interest in property treated by Custodian or Rehabilitation Authorities as an evacuee property could be preferred within sixty days of the cause of action having accrued to the applicant. Admittedly, the application of respondent Ghulam Mohammad had not been filed before the Custodian Evacuee Property within the prescribed period and the application was allowed by the respondent No.1 without condoning the delay. Another defect which has been pointed out by Mr.Fazle Ghani Khan and which is evident from the record is, that the order, dated 23-7-1974, was passed without giving proper notice to the petitioner whose interest is directly affected by the impugned order. Although from the order of the learned Custodian it appears that all the respondents had themselves chosen to remain absent before him during the proceedings in spite of service of notice, but the fact is that notice in respect of the proceedings sent to the petitioner under registered cover had been returned unserved by the postal authorities. Mr.Fazle Ghani Khan has pointed out that according to rule 10 of the aforesaid rules of 1950 one of the modes prescribed for service of notice or summons on a party was by registered post. Since evidently no notice in respect of the proceedings before the learned Custodian, Evacuee Property was received by the petitioner, the order passed by the respondent No.1 was without jurisdiction and a nullity in the eyes of law.

For the aforesaid reasons, I allow this petition and declare the order dated 23-7-1974 to be without lawful authority and of no legal effect. The case is, however, remanded to the Officer notified for the purpose under section 2(2) of Act XIV of 1975 for fresh disposal in accordance with law.

M.Y.H./M-221/K

Case remanded.

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