1. ' MAQBOOL BAQAR, J.---The petitioner, through this petition, has assisted judgment dated 27-1- 2007, passed by the Board of Trustees of Abandoned Properties Organization, Islamabad (A.P.O) in an appeal, filed by the petitioner under section 15(1) of the Abandoned Properties (Takingover and Management) Act, 1975 (The Act) against the order dated 24-9-2003 passed by the learned Deputy Administrator, APO, Karachi in respect of Plot No,R-10, Block-9, Federal B Area, Karachi (the subject property).
2. ' The brief facts of the petitioner's case are that in May, 1975, the petitioner purchased the subject property through a registered Conveyance Deed (annexure-C to the petition) from its owner Mrs. Shamsunnahar Khannum wife of Abdul Rehman Khan (the seller) for the total sale consideration of Rs,19390, out of which, a sum of Rs,14,000 was paid by the petitioner to the seller at the time of execution of the sale agreement dated 3-2-1970 (annexure-F to the petition), receipt whereof was acknowledged by the seller, whereas, balance sale consideration of Rs,5390, in terms of clause 2 of the aforesaid sale agreement was to be paid by the petitioner to the HBFC directly. On the very date of the sale agreement i.e, 3-2-1970 and at the request of the petitioner and in terms of clause
(10) of the agreement, the seller also executed a registered irrevocable general power of attorney in favour of the petitioner's husband Mirza Muhammad Tariq (annexure-E to the petition). In pursuance of the said agreement, the possession of the subject property was handed over to the petitioner on 4-2-1970. However, since at the time of the agreement, the subject property was mortgaged with HBFC to secure a loan obtained by the seller from HBFC and was redeemed through a redemption deed dated 16-4-1974 only, the sale-deed could not, therefore, be executed earlier. However, by order dated 24-9-2003, Deputy Administrator, APO, declared the subject property as an abandoned property' under the Act. An appeal, filed under section 15 of the Act before the Board of Trustees of APO Islamabad was dismissed by the Board vide the impugned judgment.
3. ' Mr. Shahenshah Hussain, the learned counsel for the petitioner submitted that neither at any point in time, the subject property belonged to any "specified person" as defined by section 2(f) of the Act nor can it be described as an abandoned property in terms of section 2(a) of the Act and as such, the APO had no jurisdiction and/ or authority to declare the subject property as an abandoned property. The learned counsel referred to the definition of abandoned property as mentioned in section 2(a) of the Act:-- "(a) abandoned property" means any property, movable or immovable (including 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 supervisions or control of, any other person after the sixteenth day of December, 1971, but does not include any ornaments of wearing apparel or any cooking vessels or other house-hold effects in the immediate possession of a specified person, not exceeding a total of rupees one thousand."
4. ' He further submitted that there is nothing on record to show that the seller or the subject property was an "specified person" as defined in terms of section 2(f) of the Act, which reads as under:-- "(f) "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."
5. ' The learned counsel submitted that as evident from the agreement to sale and the receipt both dated 3-2-1970, executed between the petitioner and the seller, the petitioner on the date of the agreement paid to the seller a sum of Rs,14,000 towards the total sale consideration of Rs,19390 and the balance payment of Rs,5390 was to be made through a payment to the House Building Finance Corporation for the redemption of the subject-matter. He submitted that in part performance of the said agreement, the seller handed over the physical possession of the subject property to the petitioner on 3-2-1970 along with its title documents being a registered lease deed dated 5-11-1960 (annexure-D to the petition) and also executed an irrevocable General Power of Attorney in favour of Mirza Muhammad Tariq, the husband of the petitioner. However, since, the property was under mortgage in favour of House Building Finance Corporation, the sale-deed in respect of the subject property could only be executed and registered after the property was got redeemed by the petitioner upon payment of House Building Finance Corporation's dues as mentioned earlier. He submitted that the agreement to sell was in fact acted upon by the seller much before the crucial date i.e, 16-12-1971 by delivery of possession and the title documents and execution of the registered irrevocable General Power of Attorney by the seller. In support of the contentions, Mr. Shahenshah Hussain, referred to a Supreme Court judgment in the case of Muhammad Rafiullah v. The Board of Trustees for Abandoned Properties and another (1987 M LD 558), wherein their lordships held that the citizen of Pakistan 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 and in terms of the same section 2(f) as amended on 12-2-1975, a 'specified person' would mean a person who on or after the specific date had ceased or ceases to be citizen of Pakistan. He submitted that though the notice dated 8-7-2003 claims that from the investigation carried out by A.P.O, it appears that the said property is an abandoned property, however, no material is placed on record to establish that the seller in fact was a 'specified person' in terms of section 2(f) of the Act. Furthermore, the factum of payment by the petitioner to the seller and towards the repayment of House Building Finance Corporation loan and the execution of agreement of sale and of the General Power of Attorney and so also the fact that the seller handed over possession of the subject property to the petitioner along with the relevant lease deed has not been controverted. He contended that the impugned notification as well as the impugned judgment have been passed without jurisdiction and are void ab initio' liable to be set aside and prayed that the petition may be allowed.
6. ' On the other hand, Syed Tariq Ali, learned Federal Counsel whilst supporting the impugned judgment, submitted that the fact that not only the sale-deed in respect of the subject property was executed in favour of the petitioner as late as on 26-5-1975 but the petitioner did not approach the city District Government Karachi or the erstwhile KDA for transfer/mutation of the property upto 10-10-2003 and approached the City District Government Karachi for transfer of property only after the first legal notice dated 8-7-2003 was served upon the occupant of the property, who is a sister of the petitioner and further that she does not possess the allotment orders. An advertisement inviting objection against the impugned declaration was also published in daily 'Jasarat' Karachi on 2-9-2003, clearly establishes that the property which was owned by a Bangoli was an abandoned property and has been rightly declared so.
7. As noted above, in terms of section 2(a) of the Act an abandoned property means a proprety belonging to a 'specified pergon' 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, whereas, under section 2(f) 'specified 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 put of, or to be allowed to leave, the territories of Pakistan, and in terms of the said section as amended on 12-2- 1975, means a person who, on or after that day has ceased or ceases to be a citizen of Pakistan.
8. However, neither is there any material to show that the seller in this case was domiciled in the Province of East Pakistan or that she has left the territories of Pakistan or has in any manner ceased to be a citizen of Pakistan and as such it cannot be said definitively that the subject property in fact belonged to a 'specified person' as defined by the Act. Even otherwise, as noted above, the agreement to sell between the petitioner and the seller in respect of the subject property was executed much before the specified date i.e, 3-2-1970, on which date, as evident from the agreement as well as the receipt of the same date, not only a major part of the sale consideration amount of Rs, 19390 being Rs, 14,000 was paid by the petitioner but the seller also executed an irrevocable General Power of Attorney in favour of the husband of the petitioner, so that, he may execute a sale-deed in favour of the petitioner after having the property redeemed by paying the House Building Finance Corporation's dues in addition to the above the seller also handed over possession of the subject property and its title documents being a lease deed to the petitioner. The delay in the registration of the sale-deed has been satisfactorily explained by the petitioner as the property could be conveyed only after it has been redeemed. The fact of the execution and that date of the execution of the agreement to sell, execution of power of attorney and payment of House Building Finance Corporation's dues and so also the factum of delivery of possession and the relevant lease deed have not been denied by the respondent. In the case of Muhammad Rafiullah (Supra), the Honourable Supreme Court held that where the agreement for sale of a property between the parties was executed before the specified date i.e, 16th December, 1971, and part thereof was acted upon by delivery of possession, such property cannot be deemed as an abandoned property, their Lordships further held that the declaration of such property as an abandoned property is illegal, without jurisdiction and of no effect.
9. In view of the foregoing, we were/are of the view that the impugned declaration as well as impugned judgment was rendered without jurisdiction and in disregard of the facts and circumstances of the case and the same being violative of the rule laid down by the Honourable Supreme Court in the afore said noted case, we, set aside the declaration as well as the impugned judgment and allowed the above petition vide short order dated 19-5-2009.