1. Shop No. S. E. II.31.S-12, in Naulakha Bazar, Lahore, is evacuee trust property. It was in possession of Muhammad Yaqoob as tenant of the Evacuee Trust Board, Lahore. Originally the rent of the premises was Rs. 10.50 p. m. On re-assessment it was enhanced to Rs. 200 p. m. w. e. f. 1-7-1969. In this connection notice was issued to Muhammad Yaqoob which was received by him on 5-1-1970.
2. He filed a written reply to that. Thereafter, number of notices were issued, the last being on 20-10- 1975, which was returned with the report that Muhammad Yaqoob died on 13-10-1975 and the shop was in possession of Asif Mahmood, his son, who is respondent No. 4 in this petition. Asif Mahmood, appeared before the Deputy Administrator (Urban) Lahore, and submitted that notice be sent to him but the Deputy Administrator (Urban) was of the view that unless the tenancy was transferred to him he was not entitled to receive the notice. However, rent was fixed at the rate of Rs. 100 p. m.
3. With effect from 1-7-1969 and further assessment w. e. f. 1-7-1974 was to be made later on. The officer further observed that "Asif Mahmood can make a separate application for the transfer of tenancy rights to the heirs of his deceased father Muhammad Yaqoob". (Underlining* is mine). This order was passed on 22-10-1975 by the Deputy Administrator (Urban), Lahore.
4. The said order was ex parte vis-a-vis Asif Mahmood, therefore, the Deputy Administrator directed that a copy of the order be sent to him.
5. Asif Mahmood filed an appeal in the Court of Administrator, Evacuee crust Property, Northern Zone, Lahore, which was allowed by order dated i-3-1976 and the case was sent back to the Deputy Administrator (Urban) evacuee Trust Property for fresh decision. While remitting the case, the administrator made two observations t first that the order impugned was gassed against a dead person and that the premises had not been transferred o the legal heirs of the deceased.
6. On 28-6-1976, the Deputy Administrator (Urban) transferred the tenancy rights in the name of respondent No. 4 subject to payment of rent at the rate f Rs. 50 p. m. w. e. f. 1-1-1975. The transferee was further directed either to sublet the property nor enter into partnership with anyone.
7. Maqsooda Bano, mother of respondent No. 4, challenged the aforesaid order before the Administrator, Evacuee Trust Property, Northern Zone, Lahore, in appeal, which was decided on 13- 9-1976, with the following observation .
8. "The best course was that the heirs should have joined together and nominated one of themselves as a representative of them all as tenants. In the instant case the applicant being mother of the respondent as well as other heirs, may be a better representative of them all, as she will be just and fair in the protection of the rights of all the heirs and this may also be workable proposition so far as the Board's interest regarding recovery of rent is concerned. As the remaining heirs have neither been made a party in the proceedings before the Deputy Administrator nor in appeal, the case is therefore remanded to the Deputy Administrator for fresh decision after affording full opportunity of being heard to all the heirs and keeping in view the interest of the Board also."
9. On remand, the Deputy Administrator, Evacuee Trust Property, Lahore, by his order dated 20-11-1976 observed :- "Since the dispute is between a son and a mother and the best course is to transfer the tenancy rights both in the names of Mst. Maqsooda Bano widow of Muhammad Yaqoob Butt who has already been nominated by her other sons and daughters and in the name of Mr. Asif Mahmood Butt (respondent) to avoid further dispute. Both will be considered the tenants of the evacuee Trust Property Board and if any one of them will become a defaulter or will sublet the property to any other person his or her tenancy rights will be cancelled at once and transferred to other partner."
10. It is important to note that the said order was not challenged by respondent No. 4 but Maqsooda Bano went in appeal against it before the Administrator, Evacuee Trust Property, Northern Zone, who by his order dated 17-5-1977 modified the order of the Deputy Administrator, dated 20-11-1976 observing thereby : "There will be nothing wrong if one half of the shop is given to the respondent and the other half to the appellant. This is the on amicable solution, which much depends on its practicability than on the extent of legal eligibility of the parties. Hence, the appellant and respondent are directed to have the shop partitioned into two equal parts with the assistance of the Deputy Administrator, Evacuee Trust Property. Lahore, or on their own, within two months of the passing of this order, failing which the shop shall be put to auction on rent by the Deputy Administrator after due publicity."
11. Muhammad Asif filed revision petition against this order under section 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975), before the Federal Government, Islambad. This was decided on 20-5-1978 by the Joint Secretary who ousted Maqsooda Bano and Asif Mahmood was considered to be the sole tenant of the shop is dispute.
12. Maqsooda Bano felt aggrieved by the aforesaid order, hence this constitutional petition.
2. Learned counsel appearing in support of this petition contended that the affidavit, reference of which has been given in the impugned order, was not filed by the petitioner. It was a forged document and on the bass of it, the petitioner could not be ousted. It was next contended that the order dated 20-11-1976 passed by the Deputy Administrator, Evacuee Trust Property, Lahore, was not challenged by the respondent which meant that he was satisfied with it, therefore, it had become final for all intents and purposes. Last of all learned counsel submitted that in the initial order passed on 22-10-1975 by the Deputy Administrator (Urban), a direction was given to respondent No. 4 to apply for the of tenancy on behalf of all the legal heirs of his deceased father.
13. While dealing with the impugned order, learned counsel submitted that it was an arbitrary decision based on surmises and conjectures, therefore, it had no value in law and, as such, was without lawful authority.
3. Learned counsel for the respondent submitted that the affidavit of the petitioner was genuine. He drew my attention to the copy of a compromise which had been placed on the record as Annex. 'J' and submitted that it was the petitioner who backed oat of it. This fact was concealed in the petition by the petitioner, as such, she was not entitled to any relief B in the constitutional jurisdiction of this Court. In support of this learned counsel relied on Muhammad Shaft v. The Collector, SheikhupuraP L D 1968 Lah. 403 wherein it had been observed :- "Therefore, the contention on behalf of the respondents is not without force that the petitioner deliberately and dishonestly administered the wrong oath to Sher Muhammad. This being the case, the petitioner is not entitled to the grant of a relief in this discretionary jurisdiction, for he seeks relief on the basis of a wrongful and dishonest act committed by himself."
14. It was next contended that the petitioner was never in possession of the property, hence she was not entitled to the transfer of even a half portion of it.
15. Learned counsel also raised are objection about limitation and submitted that the appeal filed by the petitioner was barred by two days. This objection is not of much importance being of hyper technical nature.
16. Learned counsel further contended that when father of the respondent died. Respondent was under debt to the extent of Rs. 30,000. He by dint of hardwork not only stabilized the business but also cleared the debt. It was, therefore, respondent's right to retain the property exclusively.
17. Learned counsel further submitted drat justice demanded that the respondent should retain the shop and this would be in accordance with the mandate of Qur'an. In support of this be relied or: Aaiyat No. 58 of Surah An-Nisa in Paarah five, which is to the following effect : "Lo I Allah commandeth you that ye restore deposits to their owners, and, if ye judge between mankind, that ye judge justly. Lo I comely is this which Allah admonisheth you. Lo t Allah is ever Hearer, Seer."
18. (English Translation by Marmaduke Pickthall)
4. So far as the question of facts are concerned, whether the affidavit was genuine or not or it was the petitioner who backed out of the compromise, C I am not going to hold inquiry into this matter in the constitutional jurisdiction. I have to only examine whether the impugned order is in accordance with law and with lawful authority or not.
19. Admittedly, respondent No. 4 did not challenge order of the Deputy Administrator, Evacuee Trust Property, dated 20-11-1976, therefore, its legal effect was that it became final and I agree with the learned counsel for the petitioner that another inference which could be drawn from the conduct of the respondent in keeping quiet was that he was not aggrieved by the said order.
20. In the very fast order passed by the Deputy Administrator on 22-10-1975, a direction was given to respondent No. 4 to apply for transfer of tenancy in favour of all the legal heirs of the deceased.
21. This was an appropriate direction and in accordance with law. Nevertheless, the respondent never complied with that, obviously for his convenience and benefit. This was completely ignored by respondent No. 1 while disposing of revision petition because the impugned order is silent on this point. Some of the observations made in the impugned order are surmises.
22. The considerations which weighed with respondent No. 1 were of no legal consequence. This leaves me to deal with the last submission made by the learned counsel for the respondent in support of which he cited Aaiyat No. 58 of Surah An-Nisa from the Holy Qur'an referred to above. For that matter I may observe that the status and position of the mother is too well known to every Muslim, and it hardly needs any clarification. Even if it was to be conceded in favour of the respondent that the affidavit and the compromise was genuine then this would not go against the petitioner but would show motherly instinct, love and affection for her son to forego even her legitimate right.
23. As the learned counsel for the respondent wanted me to decide this case according to the mandate of Holy Qur'an, I must then also refer to the relevant verse from the Holy Book which deals with the duties and obligations of the children towards their parents : Aaiyats Nos. 23 and 25 of Surah Bani Israel in Paarah fifteen: "23. Thy Lord hath decreed, that ye worship none save Him, and (that ye show) kindness to parents.
24. If one of them or both of them attain to old age with thee, say not "Fit" unto them nor repulse them, but speak unto them a gracious word.
24. And lower unto them the wing of submission through mercy, and say : My Lord ! Have mercy on them both as they did care for me while I was little."
5. For the foregoing reasons, I am of the view that the best order passed in this case is that of the Administrator, Evacuee Trust Property, Northern Zone, Lahore, dated [17-5-1977, because it is not only legal and equitable but also in obedience to the command of Allah, for, by the said order "the deposits had been restored to their owners."
25. I, therefore, order that the order dated 17-5-1977 of the Administrator, Evacuee Trust Property, Northern Zone, Lahore, shall be implemented forthwith and half of the shop shall go to the petitioner along with the other legal heirs and the other half to respondent No. 4. No costs.