2018 C L C 1399
[Balochistan]
Before: Muhammad Ejaz Swati and Abdullah Baloch, JJ
Mst. POPALZAI and others ---Petitioners
Versus
MUHAMMAD ASIF KHAN and 33 others ---Respondents
C.P. No.15 of 2000, decided on 30th March, 2018.
(a) Pakistan Administration of Evacuee Property Act (XII of 1957) ---
----Ss. 20 & 22 (2) ---Balochistan (Administration of Evacuee Property) Regulation, 1950, S. 17--
-Evacuee property ---Allotment of ---Sale---Confirmation of ---Scope---Petitioners purchased suit
property already allotted as evacuee land and thereafter sought confirmation of sale effected in
their favour ---Application for confirmation of sale was dismissed by the Member Board of
Revenue ---Validity ---Allottees were not made party nor the allotment order made in their favour
was challenged ---Order of Rehabilitation Authority and mutation were in field when question of
confirmation of sale was taken up ---Such application was to be made within the prescribed
period and by party to the transaction or by any person claiming under such party ---Custodian of
Evacuee Property was required to hold a summary inquiry in the prescribed manner and reject
the application if prescribed conditions were not satisfied---Nothing was available on record with
regard to any inquiry by the Custodian of Evacuee Property ---Transaction in favour of
petitioners had been made contrary to law ---Father of applicants had died long after the
ownership of property had vested in the Government ---Application should have been filed within
thirty d ays from the prescribed date ---Predecessor of petitioners did not apply for confirmation
of sale before competent forum during his life time ---Application for confirmation of sale being
time barred, Petitioners had no locus standi to file the application--- Member Board of Revenue
had passed the impugned order after proper appreciation of record--- Legal heirs of allottees
could seek proper remedy with all just and legal exceptions ---Disputed questions of fact raised
by the petitioners could not be resolved under constitutional jurisdiction ---Constitutional petition
was dismissed in circumstances.
Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330 rel.
(b) Constitution of Pakistan ---
---Art. 199---Constitutional jurisdiction of High Court--- Scope--- Disputed questions of facts
could not be entertained under constitutional jurisdiction of High Court.
Jameel Ahmed Babai for Petitioners.
Khushnood Ahmed for Respondents Nos.1 to 10.
Adnan Bashara for Respondents Nos.11 to 23.
Khalid Ahmed Ka kar or Respondent No.33.
Mrs. Sabira Islam, Additional A.G. for Official Respondents.
Date of hearing: 21st March, 2018.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ----Two pieces of land bearing Khasra Nos. 490, 491,
596, 541, 543 and 658 situated in Mohal Karez L andhi, Mouza Gul Muhammad, Tehsil and
District, Quetta originally belonged to Laxmi Narain. The Extra Assistant Commissioner (EAC)
Cum Assistant Rehabilitation Commissioner, Quetta Sub -Division vide order dated 17th
September 1960, allotted 6 acres 1 rod a nd 20 poles out of Khasra No.490 to Abdul Salam Khan,
the allottee No.1, (predecessor of respondents Nos.1 to 10). Similarly, an area of 21 acres 0 rod and 26 poles (land in dispute) was allotted/transferred to Abdul Rahim Hashmi, the allottee No.2 (predec essor of respondents Nos.24 to 32) against his verified claims vide order dated 11th
October 1960 and vide final order dated 18th August 1962. Thereafter, these properties were mutated in the revenue record vide mutation No.18 dated 6th December 1962, on t he name of the
allottees, but possession of the same was not given to them. The petitioners along with the respondents Nos.11 to 23 are legal heirs of late Khan Bahadur Khudai Rahim (K.B Khudai Rahim) (the purchaser). It was alleged on behalf of the purcha ser that during his lifetime, late
K.B Khudai Rahim purchased the property bearing Khasra Nos. 490, 491 land 496- Min,
measuring 28 acres 3 rods 26 poles from Seth Haveli Shah and Seth Lachmi Narain (now evacuee in India) vide documents dated 16th March 1947 and 25th March 1947 attested by Tehsildar. Quetta and possession was also delivered to him, who developed the same by raising a garden/orchard and spent lac of rupees. Late K.B Khudai Rahim died in the year 1960, leaving behind 5 sons namely: (1) Gul Muhammad (predecessor in interest of petitioners), (2) Sher Ali (died issueless), (3) Hassan Jan (died issueless), (4) Muhammad Ali (predecessor in interest of respondents Nos.11 to 14) and (5) Musa Jan (predecessor in interest of respondents Nos.15 to 23), w hereas one of the legal heirs of the purchaser namely Malik Sher Ali Khan had filed an
appeal against the allottee Abdul Rahim Hashmi before the Political Agent and Deputy Rehabilitation Commissioner, Quetta -Pishin on 8th December 1960 under section 43 of the
Pakistan Administration of Evacuee property Act -XII of 1957 (the Act -XII of 1957) against the
order dated 17th September 1960 passed by the Assistant Rehabilitation Commissioner, Quetta Sub- Division to declare the property non- evacuee. It is relevant t o mention here that the appeal
was filed only against Abdul Rahim Hashmi (late) (allottee No.2). The appeal was dismissed by the Political Agent and Deputy Rehabilitation Commissioner Quetta -Pishin vide order dated 31st
October 1962. The relevant whereof i s reproduced herein below:
"I have examined the record of the case and find out that according to "FARD HAQIAT" the land in dispute belongs to one Lachmi Narain son of Ganga Sahai an evacuee and the Assistant Rehabilitation Commissioner, Quetta had rightly allotted it to the respondent
against his verified claim. The counsel for appellant's plea is that the land is non- evacuee
and should therefore, be declared as such is quite a different issue and is not within the
competence of this Court, the appellant s hould move the Custodian of Evacuee Property
in this behalf if so advised. The counsel for the appellant conceded that the appropriate authority to be approached in this matter was the Custodian of Evacuee Property and the Settlement of the issue involved was outside the jurisdiction of this Court."
Thereafter, Malik Sher Ali Khan posing himself to be attorney of late Khudai Rahim
(purchaser) (but no power of attorney was filed) preferred an application under section 20 of the Act-XII of 1957 read with sec tion 17 of the Act -1 of 1950 before the Deputy Custodian of
Evacuee Property, Quetta -Kalat and Khairpur Region at Sukkar on 11th December 1962 only
against Abdul Rahim Hashmi and allottee No.1 was not impleaded as a party, however, in the
application, it w as mentioned that Khan Bahadur Khudai Rahim died on 21st November 1960,
seeking confirmation of unregistered sale deed dated 25th March, 1947 of agriculture land
bearing Khara Nos.490, 491, 496, measuring 10 acres 1 rod and 23 poles and 4 acres 0 rod 33 poles. The Deputy Custodian granted interim stay and called objections. Both the allottees filed objection as under:
(1) That the confirmation proceedings are misconceived as sale deeds are un -
registered.
(2) That the application is time barred.
(3) That the consideration is in- adequate.
(4) That it is a concealed evacuee property and the petitioner (Malik Sher Ali Khan) cannot approach the Court for confirmation of a transaction which in its present
form (un -registered) can be only an agreement to sell. At the best the Petitioner
can claim back his money from evacuee pool, if the documents are proved to be genuine.
(5) That the evacuee record shows that K.B. Khudai Rahim was only (Bazgar Occupant) tenant and documents are, therefore, fictitious.
(6) That the custodian had all along treated the evacuee share in the aforesaid Khasra
as subsisting and the Assistant Rehabilitation Commissioner Land Quetta had correctly allotted the evacuee share to the objectors.
(7) That applicant has been, without lawful ground, delaying handing over the
possession to the objectors.
(8) That the stay order be vacated."
2. During pendency of the application, on 21st May 1963, adjournment was granted to the
applicant Sher Ali, which was assailed by allottee No.2 (Late Abdul Rahim Hashmi) by way of
filing a Revision Petition before the Custodian of Evacuee Property West Pakistan and Karachi and the same was dismissed on 19th June 1963 with the observations that "prima facie Sher Ali and others, have submitted the application for confirmation of sale long after the properties had
been acquired by the Government. The Deputy Custodian will also take into consideration this
aspect of the matter while deciding this case. This application is however, dismissed."
3. The Deputy Custodian Evacuee Property, Sukkar vide order dated 18th November 1963
confirmed the sale dated 25th March 1947. The legal representative of allottee No.1 late Abdul Salam Khan (respondents Nos.1 to 10) filed an appeal under section 43(1) of the Act XII of 1957, while the allottee No.2 Abdul Rahim Hashmi (A.R Hashmi) (predecessor in interest of
respondents Nos.24 to 32) filed a revision petition under section 43(4) of the Act -XII of 1957
read with section 36(4) of the Act ibid against the order dated 18th Novembe r 1963 passed by
the Deputy Custodian Evacuee Property, Quetta -Kalat and Khairpur Division at Sukkar before
the Senior Member Board of Revenue Balochistan.
4. The learned Senior Member Board of Revenue Balochistan (SMBR) vide judgment dated
21st August 1999 (hereinafter the "impugned judgment") allowed the appeal and revision
petition and set aside the confirmation order dated 18th November 1963 passed by the Deputy Custodian and Mutation No.18 dated 6th December 1962 was restored.
5. Learned counsel for the petitioners and respondents Nos.11 to 23 contended that the
allottee No.2 Abdul Rahim Hashmi had not filed any appeal against the order of the Deputy Custodian; that he filed an application for impleading him as a party, but without passing any order, the learned SMBR contrary to the record observed that the appeal was filed on behalf of both the allottees; that on 25th April 1996, power was filed by the learned Advocate (late) Azizullah Memon, but the petitioners were unlawfully proceeded against ex -parte and thus, the
petitioners had been condemned unheard; that the property in dispute was purchased by father of the petitioners vide un- registered deed dated 25th March 1947 from Seth Lachmi Narain and at
that time, section 54 of Transfer of Property Act w as not applicable to Quetta District being
special area; that the witnesses of the sale deed appeared before the Deputy Custodian and affirmed its execution; that consideration for the land in question was paid Rs.15.00/ - per acre
was adequate according to the market rate prevalent in those days for the barren land having no
source of water; that at the time of purchase, 1947, the land in dispute was not cultivable; that the petitioners' predecessor in interest spent Rs.200,000/ - on Karez and Rs.100,000/ - for raising
garden on the land and all these facts were substantiated through witnesses. In respect of delay in filing confirmation application, the learned counsel for the petitioners attended that the Evacuee Laws for confirmation were not applicable to t he impugned sale i.e. 25th March 1947; that due to
bona -fide mistake, the legal heirs of late Khan Bahadur Khudai Rahim first approached the
Political Agent/Deputy Rehabilitation Officer, Quetta and soon after his order. application for confirmation of sel l was filed; that sale deed in question had not been disputed by the allottees
and only raised legal lapses, which were not attributed; that the learned SMBR had failed to consider the notification dated 21st August 1959, which excludes the agriculture land from the ambit of Government of West Pakistan and extends jurisdiction to custodian to entertain application under section 20 of the Act -XII of 1957, therefore, the question of jurisdiction has
been decided in wrong premises of law, as such the impugned judgment is liable to be set aside.
Learned counsel for the respondents Nos.1 to 10 and 24 to 32 contended that it was
concealed evacuee property, as such the proceedings for confirmation of sale were not maintainable; that on the basis of un- registered agreement to sell confirmation proceedings were
not permissible under the law; that the proceedings were time barred; that in the application
under section 20 of the Act -XII of 1957, two transactions/sale deed dated 16th March 1947 and
25th March 1947 resp ectively had been mentioned for confirmation of sale, but failed to
substantiate either of the same; that the order of allotment in favour of late Abdul Rahim Hashmi only was challenged by one of the legal representatives of Khan Bahadur Khudai Rahim namel y
Sher Ali Khan; that only initial transfer order dated 17th September 1960 was challenged, but he
neither challenged the final order dated 18th August 1962 nor allotment order dated 16th
November 1960 in favour of late Salam Khan; that the order of allotm ent in favour of the
allottees had not been challenged further, which attained finality.
6. We have heard the learned counsel for the parties and perused the record. Admittedly,
two pieces of disputed land originally belong to a Hindu owner namely Laxmi Na rain, who was
an evacuee. The Extra Assistant Commissioner Sub- Division vide order dated 17th September
1960, allotted 10 acres 1 rod 23 poles and 4 -0-33 poles of evacuee land to late Abdul Rahim
Hashmi, the predecessor in interest of the respondents Nos.24 to 32) against his verified claim. Similarly out of Khasra No. 490, an area of 6 acres 1 rod 20 poles was allotted to late Abdul Salam Khan (the predecessor in interest of respondents Nos. 1 to 10) vide order dated 11th October 1960. Thereafter, these la nds/properties were duly mutated in the revenue record vide
Intiqal No.18 in the name of Abdul Salam Khan and Abdul Rahim Hashmi on 18th August 1962. The legal representative of Khan Bahdur Khudai Rahim namely Sher Ali out of above orders only challenged t he order and transfer in favour of Abdul Rahim Hashmi by way of filing appeal
under section 43 of the Act -XII of 1957 only against the order dated, 17th September 1960,
which was dismissed vide order dated 31st October 1962 passed by the Political Agent an d
Deputy Rehabilitation Commissioner (D.R.C), Quetta -Pishin. In the aforesaid order, the D.R.C.
held that "the land in dispute belongs to one Lachmi Narain son of Ganga Sahai an evacuee and
the Assistant Rehabilitation Commissioner, Quetta had rightly allo tted it to the respondents
against his verified claim".
7. The above determination had not been challenged by the legal heirs of Khan Badhur
Khudai Rahim, however, in the aforesaid order in respect of plea that land is non evacuee and therefore, be declared as such. It was observed that "the appellants should move the custodian of evacuee property in this behalf if so advised".
Malik Sher Ali one of the legal heirs of Khan Badhur Khudai Rahim had filed an
application under section 20 of the Act -XII of 1957 read with section 17 of the Balochistan
Administration of Evacuee Property Regulation No.1 of 1950, seeking confirmation of sale of property bearing Khasra Nos. 490, 491 and 496, measuring 10 acres 1 rod and 2 poles and 4 acres 0 rod and 33 poles situated in Mohal Karezh Landhi, Mouza Killi Gul Muhammad Tehsil
and District, Quetta. In the application under section 20 of the Act -XII of 1957, Malik Sher Ali
sought confirmation of sale only in respect of property allotted and transferred in favour of late Abdul Rahim Hashmi (predecessor in interest of the respondents Nos.24 to 32) and no relief was
sought in respect of the impugned allotment and transfer in favour of Abdul Salam Khan (predecessor in interest of the respondents Nos.1 to 10). In the application under section 20 of the Act-XII of 1957 at para No.7, Malik Sher Ali Khan alleged confirmation of two transactions,
which reads as under:
"That the property in question was purchased by the father of the applicant from its
previous Hindu owners Seth Haveli Shah and Seth Lachmi Narain against documents
dated 16.3.1947 and 25.3.1947 respectively. These documents have been validly attested
by the Tehsildar, Quetta. Certified copies of these are annexed herewith. The father of the applicant has raised a fruit g arden over this Khushkaba land by an expenditure of lakhs of
rupees and at present fruit growing trees are standing on it."
8. The application under section 20 of the Act -XII of 1957 was resisted by Abdul Salam
Khan and Abdul Rahim Hashmi by way of filing objections. The Deputy Custodian, Evacuee Property, Sukkar vide order dated 18th November 1963, while confirming the sale has neither dilated about the objection raised by the respondents/allottees nor question of limitation in filing
of application under section 20 of the Act XII of 1957 with delay nor the relevant provisions of
the Act XII of 1957 had been adhered, therefore, the learned SMBR vide impugned judgment set
aside the order dated 18th November 1963 and restored the mutation dated 6th December 1962 by resolving the points mentioned in the impugned judgment, which are reproduced herein below:
i) Whether or not the Deputy Custodian had jurisdiction to adjudicate upon the application of Malik Sher Ali on 11.12.1962, under section 20 of the Pakistan Administration of Evacuee Property Act XII of 1957 read with section 17 of the
Balochistan Administration of Evacuee Property Regulation No.1 of 1950 seeking
the confirmation of the sale of agriculture land?
(ii) Whether any sufficient grounds existed for the Deputy Custodian to condone the
delay or otherwise?
(iii) Whether the Registration Act was applicable to Quetta Tehsil 1 1947?(sic)
(iv) Whether the Sale Deed dated 25.3.1947 is a genuine document?
(v) Whether A.R. Hashmi had filed a separate Revision or Appeal against the order dated 18.11.1963 passed by the Deputy Custodian or not; And whether he was impleaded as a party in the case of Abdul Salam?
9. The learned SMBR attended the question of jurisdiction as under:
"Now the point arises as to whether Quetta Tehsil where the land situate comes within the
limits of Special Areas.
The answer to this point is available in the Constitution of Islamic Republic of Pakistan, 1956 which defines the limits of "Special Areas" as under: -
"Special Areas" means the areas of the Province of West Pakistan which immediately before the commencement of the Establishment of West Pakistan Act, 1955 were
(a) the Tribal Areas of Balochistan, the Punjab and the North West Frontier, and
(b) the States of Amb, Chitr al, Dir and Swat;.
The Tribal Areas of Balochistan were as under. --
"Zhob District, Lorali District (Excluding Duki Tehsil), Dalbandin Tehsil of Chagai
District and Marii Bugti territories."
From the above narration, it has been established that Quetta Tehsil in which the allotted
land is situated was not a Special Area (Tribal Area). Hence the Deputy Custodian had no jurisdiction on 11.12.1962 for the purpose of confirmation of sale to give a decision on the application seeking the confirmation of the sale ."
10. Whereas jurisdiction of the Deputy Custodian Evacuee Property, Sukkar is concerned,
the allottees were not made as party nor verified allotment order in favour of Abdul Salam Khan, was challenged. Besides, a right had also been created in respect of these properties i.e. by the
act of allotment in favour of the allottees by Rehabilitation authority and fully within the scope of the custodian protection power and it is admitted position that when the question of confirmation of sale under section 20 of the Act XII of 1957 was taken up, an order of Rehabilitation authority dated 17th September 1960 and 10th November 1960, which was further upheld by the appellate authority Political Agent and Deputy Rehabilitation Commissioner dated 31st October 1962 and mutation No 18 dated 6th December 1962 in favour of the allottees were in field and had not been challenged further, which had attained finality, therefore, the
jurisdiction of the Deputy Custodian dated 8th November 1963 was under cloud. Section 20 of
the Act of 1957 provides that "no creation or transfer of any right or interest in or encumbrance
upon any property made in any manner whatsoever on or after the first day of March, 1947, by or on behalf of an evacuee, or by or on behalf of a person who has become an evacuee after the date
of such creation or transfer, shall be effective so as to confer any right unless or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the
Custodian". For this purpose, a n application was to be made within the prescribed time and this
could be made by a party to the transaction or by any person claiming under such a party. The custodian was to hold a summary inquiry in the prescribed manner and was required to reject the application, if certain conditions were not satisfied i.e. if the transfer was in contravention of a
law, or if it was not covered by an NOC from the Income Tax Authorities. He had discretion to reject the application, if he found opinion that the transacti on was not entered into in good faith
or if it was for inadequate consideration. In the application under section 20 of the Act XII of 1957, Malik Sher Ali at Para No.7 of the application pleaded that the property in question was purchased by the father of the applicant from its previous owner Seth Haveli Shah and Seth
Lachmi Narain against document dated 16th March 1947 and 25th March 1947 respectively. Whereas the order of Deputy Custodian dated 18th November 1963, pertained un- registered deed
dated 25th March 1947, for Rs.478/ -, but the order is silent with regard to document dated 16th
March 1947, therefore, the summary inquiry conducted by the Deputy Custodian was inconclusive. Besides, sub- clause (a)(ii) of clause (3) of section 20 of the Act XII of 19 57
provides that custodian shall reject the application, if the creation of transfer was not covered by a certificate from the prescribed Income Tax authority to the effect that no objection exist to such creation or transfer. In absence of any finding of the Deputy Custodian in this respect makes the
transaction contrary to law.
11. The application for confirmation of alleged sale deed dated 16th March 1947 and 25th
March 1947 was filed on 11th December 1962 before the Deputy Custodian when according to
the applicant, the father of the applicant namely Khan Bandur Khudai Rahim died in the year
1960, long after the properties had been vested with the Government, therefore, the application
for confirmation was not within the prescribed time as provided under sub -clause (2) of section
22 of the Act -XII of 1957, which was thirty days from the prescribed date. Besides, Khan
Bahdur Khudai Rahim during his lifetime from 25th March 1947 till 1960 had also not applied
for the confirmation of sale before the competent forum, therefore, Malik Sher Ali had no locus -
standi to file the application under section 20 of the Act -XII of 1957 on 11th December 1962.
Reference in this respect is to be made to the case titled Abdul Haq and another v. Mst. Surrya
Begum and others 2002 SCMR 1330, wherein the Hon'ble Supreme Court of Pakistan observed as under: --
"Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to chall enge the
mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime."
12. The contention of the learned counsel for the petitioners that in the year 1947 when the
sale deed was ex ecuted, the law for confirmation of sale was not in field, is untenable, because
section 16 of the earlier law namely Ordinance (XV of 1949) was in field and in relevant respect, the law was not changed when the Act -XII of 1957 was passed to replace the Or dinance of 1949.
13. The learned SMBR after proper appreciation of record and law has passed the impugned
judgment. The other facts of disputed question raised by the learned counsel for the petitioners would not enter in exercise of constitutional jurisdi ction, therefore, the impugned judgment
warrants no interference.
The respondent No.33 i.e. Quetta Development Authority had been impleaded as a party
as respondent No.33, who in rejoinder to the petition submitted as under:
"That after having been acquir ed sub portion of the property, a scheme has been launched
known as Chilton Housing Scheme, during the year 1989, and construction has been raised upon various plots and those owners/occupants of the plots who have purchased the property in question has al so not been joined as necessary party".
In respect of above acquired properties, the legal heirs of allottees may seek their proper
remedy with all just legal exceptions.
In view of the above, Constitutional Petition No.15 of 2000 is dismissed.
ZC/36/Bal Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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