2012 C L C 287
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
Mst. JAMILA NARGIS ----Petitioner
Versus
SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY AFFAIRS
DIVISION, ISLAMABAD and 10 others ----Respondents
Constitutional Petition No.61 of 2001, decided on 30th November, 2011.
(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) ---
---S. 30 ---Scheme of Management and Disposal of Urban Evacuee Trust Properties, 1977,
Chapter III(B) & S.19 ---Constitution of Pakistan, Art.l99 ---Constitutional petition ---Plot
in question was allotted to father -in-law of the petitioner by order of Deputy Custodian,
Evacuee Trust Property, who constructed a shop on the said plot and rented out the same
to predecessor -in-interest of respondents ---Authorities, without carrying out the survey,
allotted said shop to the predecessor -in-interest of the respondents/tenant; which transfer
was challenged and finally the Supreme Court decided t he case in favour of predecessor -
in-interest of the petitioner ---After death of husband of the petitioner, she submitted
application for restoration of tenancy in her name and her request was acceded to and
District Magistrate directed to get the vacant po ssession of shop in question to the
petitioner ---Predecessor -in-interest of respondents, after lapse of about ten years, raised
an objection that under the Scheme of Management and Disposal of Urban Evacuee Trust
Properties, 1977, property in question coul d not be transferred in the name of the
petitioner, objection was allowed, which resulted in setting aside the tenancy and
direction for auction of the same ---Validity ---Matter having ultimately been finalized by
the Supreme Court while dismissing the peti tion filed by predecessor in-interest of
respondents, there was no ground available with the Authority to set aside the order
whereby, after death of husband of the petitioner, tenancy was restored to her ---Impugned
orders were in violation of judgment of the High Court and the Supreme Court ---Such
order was set aside and Administrator was directed to get shop vacated from private
respondents and put the petitioner into possession.
(b) Administration of justice ---
----Entire dispute between the parties should be decided on merits; and no one should be
allowed to take benefits of technicalities.
Syed Ayaz Zahoor for Petitioner.
Kamran Murtaza and Adnan Ejaz for Respondent No.3.
Saleem Ahmed Lashari for Respondents Nos.4 to 11.
Date of hearing: 2nd November, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- This constitutional petition under
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"),
is directed against the orders dated 22nd January, 2001 and 10 th July, 2000, respectively
passed by the respondents Nos. 1 and 2, with the following prayers: ---
(i) Declaring that the orders dated 22 -1-01 and 10 -7-2000, passed by learned respondents
Nos.l and 2, are totally illegal, improper, without lanful authori ty and jurisdiction vested
in them, as 'well as in violation of the judgments of this Hon'ble Court as well as Hon'ble
Supreme Court and thus are of no legal consequence..
(ii) Any other relief deems fit and proper in the circumstances of the case may al so be
awarded, along with the cost'of petition, in the interest of justice. "
2. The relevant facts for filing of the petition are that the plot bearing Municipal No.2 -
39/22 situated at Masjid Road, Quetta was a burnt plot, which was allotted to the fath er-
in-law of the petitioner by the order of Deputy Custodian, Evacuee Trust Property,
Quetta, after physical inspection of the site in the year 1948, who, after construction of
superstructure of a shop, rented out the same to one Chaudhry Aziz ud-Din (pred ecessor -
in-interest of respondents Nos.4 to 10) at a monthly rent of Rs.20, pertaining to the
superstructure of the shop in question:
3. In the year 1976, the official respondents, without carrying out the survey, allotted the
shop in question to the pre decessor -in-interest of the respondents, which was challenged
and finally the fate of the litigation was decided by Hon'ble Supreme Court of Pakistan
vide order dated 6th March, 1998. The relevant portion of the order is as under: -
"4. Mr. Muhammad Munir Paraeha, learned counsel for the petitioner vehemently argued
that notwithstanding the fact that the petitioner is a sublettee, he was entitled to the
allotment of the shop in dispute under one of the scheme framed in pursuance of section
30 of the Evacue e Trust Properties (Management and Disposal) Act, 1975. When asked to
pinpoint the paragraph of the Scheme whereunder he was entitled to claim the shop in
dispute, he was unable to quote one. Be that as it may, the High Court, after perusing the
material a vailable on record, was right in holding that substantial justice has been done
and the order passed by the Chairman, Evacuee Trust Property Board, Lahore, did not
suffer from any legal infirmity.
Resultantly, petition is dismissed and leave is refused"
4. After the death of petitioner's husband in the year 1992, she submitted an application
for restoration of tenancy in her name and her request was acceded to by respondent No.3
by means of order dated 20th June, 1992 and the then District Magistrate di rected the
EAC -1, Quetta for providing assistance to respondent No.3, in getting the vacant
possession of the shop in question by means of letter dated 22nd May, 2000.
5. It was the predecessor -in-interest of private respondents, who, after the lapse of about
10 years, raised an objection that under the Scheme of Management and Disposal of
Urban Evacuee Trust Properties 1977 (the Scheme of 1977), the property/shop in question
could not be i transferred in the name of the petitioner by means of filing of an appeal
before respondent No.2, which was allowed through order dated 10th July, 2000, which
resulted in setting aside the tenancy and direction for auction of the same. The petitioner
then filed revision petition against the said order before respondent No.1, which was
dismissed by means of order dated 25th January, 2001, hence this petition.
6. Heard Syed Ayaz Zahoor, Advocate, for the petitioner, M/s Kamran Murtaza and
Adnan Ejaz, Advocates, for respondent No.3 and Mr. Saleem Ahmed Lashari, Advocate,
for private respondents Nos.4 to 10.
7. According to Syed Ayaz Zahoor, Advocate, the _official respondents have passed non -
speaking orders in clear violation of order dated 6th March, 1998, passed by Hon'ble
Supreme Court of Pakistan. He contended that r espondent No.2, while accepting the
appeal of private respondents, had gone into mere technicalities of the case and the order
of transfer of leasehold rights in favour of the petitioners, after the death of her husband
on 20th September, 1992, was not in violation of the Scheme of 1977. He, lastly,
contended that, in fact the shop in question was a burnt evacuee plot, which was allotted
to petitioner's predecessor in-interest, namely, Syed Nazeer Hussain Shah by the orders of
Deputy Custodian Evacuee Trust Property, Quetta, after physical inspection of the site as
back as in 1948. The private respondents, in connivance with the department, raising a
dispute in one or the other way over the shop in question, have dragged the petitioner in
unjustifiable litig ation.
8. Oil the contrary, M/s Kamran Murtaza, Adnan Ejaz and Saleem Ahmed Lashari,
Advocates, supported the impugned orders by referring the provisions of section 19 of the
Management and Disposal of Evacuee Trust Property, 1977.
9. The record is ind icative of the fact that, in fact, the property in question was a burnt
evacuee plot, which was allotted to one Syed Nazir Hussain Shan (predecessor -in-interest
of the petitioner) by orders of Deputy Custodian Evacuee Trust Property, Quetta, after
physical inspection of the site as back as in 1948. Thereafter, with the prior I permission
of the competent authorjty, superstructure was raised and it was rented out to the
predecessor -in-interest of the private respondents at a monthly rent of Rs.20. The origin al
allottee was Syed Nazir Hussain Shah and not the predecessor -in-interest of the
respondents, viz; Ghaudhry Aziz -ud-Din, who, initially, raised dispute over the shop in
question and the matter went up to Hon'ble Supreme Court, which, ultimately, decided in
favour of the petitioner. The record further reveals E that both the impugned orders are
also outcome of the appeal made by the predecessor -in-interest of the respondents The
official respondents Nos.1 and 2, while passing the impugned orders, have over -sighted
the provision i.e. Chapter III (B) of the Scheme of 1977, which speaks as under: --
"Chapter III RESIDENTIAL/COMMERCIAL BUILDINGS AND PLOTS)
(B) On the demise of a tenant the tenancy of a unit/sub -unit shall be alienable in favour of
the legal heir(s); provided that: ---
(a) The conditions (a) and (b) mentioned in clause (A) above shall not be applicable to a
case of change of tenancy in favour of the 4 legal heir(s) as a deceased tenant;
(b) If the real brother(s) or father of the deceased tenant were/was sharing the business in a
commercial unit/sub -unit with the deceased tenant, they/he shall also be eligible for change
of tenancy along with other legal heir(s); and
(c) In case of change of tenancy in, favour of legal heirs on the demise of a tenant a
representative shall be nominated by the legal heirs from amongst themselves who shall be
responsible to pay the rent and to abide by all the terms and conditions of the tenancy,
individually and severely."
10. We are of the opinion that t he same facts and grounds were agitated by the private
respondents and the matter was, ultimately, finalized by Hon'ble Supreme Court, while
dismissing the petition filed by the predecessor -in-interest of private respondents,
therefore, there was no occasi on or any ground available with respondents Nos.1 and 2 to
set aside the order passed by the Assistant Administrator on 20th June 1992, whereby,
after the death of Syed Azhar Hussain, tenancy was restored in the name of petitioner
Mst. Jamila Nargis, thus, the impugned orders are in violation of the judgment of this
Court as well as Hon'ble Supreme Court.
11, We are conscious of the fact that under the provisions of section 19 of the Scheme of
1977, no government servant can be permitted to secure a tenan cy except for residential
purpose, but in the instant case, the tenancy could have been restored in the name of Syed
Waqar Azhar, who is the male sot, of the petitioner. It is the intention of law that the
entire dispute between the parties should be decid ed on merits and no Ii one should be
allowed to take benefits of technicalities. We have observed that it is a classical case of
hardship, where a widow has been dragged in an unjustified prolong litigation by the
respondents, knowingly that they are simpl y tenants in the disputed shop and the original
allottee was the predecessor -in-interest of the petitioner, who constructed the existing
structure of the shop at his own cost and had also been paying rent to the Board. The
respondents had no legal right to challenge the status of their landlord (petitioner's
predecessor -ininterest), who had given the shop in question to them as sub -lessee or
licensee, because once a tenant is always a tenant. In the instant case, the respondents'
possession over the shop i n question is not in their independent capacity, but through the
petitioner's predecessor -ininterest, to whom the superstructure belonged. Hence, neither
their possession could be regularized under any provisions of law, nor they can be
allowed to challen ge the status of their landlords. Similarly, the official respondents, at
the best what could be done, was to cancel the petitioner's tenancy in respect of the plot,
after paying her the cost of superstructure according to the market value and, thereafter,
to put the premises to auction on rent. Thus, the conclusion drawn by the respondents
Nos.l and 2 is one -sided. Further, as observed, it is the intention of the law that all the
disputes between the parties should be decided on merits and no one should be allowed to
take benefits of technicalities.
In view of the above, we accept this petition and set aside the orders dated 10th July,
2000 and 22nd January, 2001, respectively passed by the respondents Nos.2 and 1. The
respondent No.3 is also directed to vacate the shop in question from private respondents
and put the petitioner into possession within a period of two (02) months, positively.
H.B.T./164/Q Petition accepted.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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