ZAKAULLAH LODHI ACT. C. J.-This Constitutional Petition arises out of the following facts: A plot of land bearing Khasra No. 7662, Ward No. 5, Quetta City measuring 41,493 .Sq. Ft. Situated on Jinnah Road, Quetta belonged to Sugni Chand, Hond and Nathuram jointly ; each sharing it equally as per Fard-e--lntikhab dated 26th November, 19:9 (referred to by Additional Settlement and Rehabilitation Commissioner, Khairpur, Quetta and Kalat Divisions in his undated order passed in Settlement Appeal No. 131 of 1965). Out of this land 14000 sq. Ft. Was allotted to the petitioner by the Deputy Rehabilitation Commissioner-cum-Deputy Custodian of Evacuee Property, Quetta vide his order-dated 26th August 1953 for raising -superstructure within six months in accordance with a plan duly approved by the Quetta, Municipality. The petitioner raised a hotel building covering about 12000 sq. Ft. And consisting of 21 residential rooms with equal number 'of dressing and bath rooms, six kitchens and nine servant quarters of type III during the year 1954-55 and since then he is running this hotel. After the I promulgation of M. L. R. 49 on 28th November 1958, the petitioner made a declaration, as required, furnishing the above-mentioned details which was duly certified by the District Rehabilita--petition Officer, Quetta. On 28th November, 1959, the petitioner claimed the transfer of the entire plot on the ground that settlement . Laws permitted the transfer of open area three times in size that covered area. Initially a P.T.O. And then after full payment of the price was made, a P.T.D. Was issued to him on 31st March, 1964.
2. The petitioner's case is that it was for the first time on 28th June, 1965 that he learnt through a notice published in Daily "Zumana", Quetta, that some proceedings with regard to this plot were pending in the Court of Additional Settlement and Rehabilitation Commissioner, Hyderabad. Since he could not attend the hearing at Hyderabad on 26th - June, 1965, he sub--mitted an application to the Local Deputy Settlement Commissioner that since be too was a party to the case, the Additional Settlement Commissioner, Hyderabad may be informed that he, as well as, the petitioner was desirous to contest the case and a suitable date may be fixed for this purpose.
There--after he made necessary inquiries which revealed that the respondents Nos. 2 to 5, of which first three sons of Seth Sugni Chand and the last named was his wife, had submitted an application to the Additional Settlement and Rehabi--litation Commissioner, Hyderabad to the effect .That they held an undivided share of 13831 sq. Ft. In the plot in dispute, and as their predecessor-in-interest who died on 12th October, 1963 at Rohri as a national of Pakistan had already. Been declared as anon-evacuee, therefore, the transfer order of the plot to the extent of late Sugni Chand's share may be cancelled. This application was, accompanied by another application under section 5 of the Limitation Act seeking the condonation of delay. The Additional Settlement and Rehabilitation Commissioner, Hyderabad treated this application as an appeal under section 19 of the Displaced Persons (Compensation and Rehabilita--petition) Act, 1958 (hereinafter referred to as "Act") and deferred the hearing after framing some issues so that the undivided share of the applicants in the property. ; legality or otherwise of the transfer of 41'493 Sq.
Ft. Of area to the petitioner and against the allotted area of 14000 sq. Ft. The question of parti-- petition of the property as also the effect of the two orders passed by the then Custodian of Evacuee Property dated 9th December, 1963 and 20th February, 1963 respectively could be ascertained. The case remained pending until after the repeal of the Act and was decided by the Member, Board of Revenue vide his order dated 26th-January, 1977 who held that the entire plot not being evacuee had wrongly been transferred to the petitioner as he was only entitled to 14000 sq. Ft. Of land for which he held allotment. He further held that once the petitioner had raised construction over an area in excess of the allotted area, therefore, another 13662 sq. Ft. May be offered to him for purchase under Settlement Scheme No. I of 1975, on payment of present market price. He accepted the claim of the respondents Nos. 2 to 5 that Sugni Chand having been declared non-evacuee, one-third of the land fell to their share. He further ordered the restoration of Sugni Chand's share to the said respondents. The petitioner has come up to this Court against this order.
3. Mr. Basharatullah, learned counsel for the petitioner has raised the following grounds for consideration :-
(a) The property to the extent of Sugni Chand's share could not be treated as evacuee property, and orders passed in this respect were ineffective ;
(b) the property had passed on to the Compensation Pool by virtue of the Notifications issued on 1st August, 1959 25th August, 1959 and 25th August 1961 under the Act and had lost non-evacuee character ;
(c) The treatment of the application of respondents Nos. 2 to 6 as an Appeal ; condonation of delay, and bearing of the case in their absence was illegal and improper ;
(d) the impugned order was passed in mala fide exercise of authority in--asmuch as the application treated to be an Appeal was not dismissed despite long absence of respondents Nos. 2 to 5 ;
(e) the respondents Nos. 2 to 5 having left Pakistan for India after the War of 1971, bad become evacuee and their property had also become evacuee property therefore, there was no occasion to upset the transfer in question; and (f ) the P. T. O. Having been issued to the petitioner, the , transfer was final and unchallengeable.
4. We would deal with the first two grounds pertaining to the character of the property first. It is undisputed that the plot in question was jointly held by Sugni Chand (the prodecessor-in-interest of respondents Nos. 2 to 5) Hond Raj and R.I Sabah, Natho Ram in equal proportion. The last mention--ed two,persons became evacuee and no claim to the contrary was ever preferred by them. Accordingly, 27,662 sq. Ft. Being 2/3rd of the land was evacuee while 13,831 sq. Ft. Belonged to Sugni Cband.
5. We have perused various orders passed in this regard by different Custodians of Evacuee Properties of which a brief mention would be necessary.
6. Sugni Chand had his properties in Sind also and on 7th September, 1949 the Deputy. Custodian of Evacuee Properties, Sukkur declared him as an Evacuee but this order was set aside by Mr. Akbar Hussain, the then Custodian on 22nd July, 1950 who declared him as a non-evacuee and all his properties as non-evacuee properties. Subsequently on 27th August, 1951 the Assistant Custodian, Sukkur issued him a notice to show cause why he should not be declared as an "intending evacuee" and in fact, declared him so. But in an Appeal filed by Sugni Chand Mr. Muhammad Bux Mernon, the then Custodian vide his order dated 6th July, 1957 held that as the provisions relating to the intending evacuees had been repealed, the proceedings against Sugni Chand had abated.
He further confirmed his status as a non-evacuee and his properties as non-evacuee properties.
This order was challenged before the Evacuee Property Inquiry Tribunal by the Central Government which referred all the cases raising dispute about Sugni Chand's status to the Custodian and Additional Custodian respectively. . The Tribunal's order was appealed against, but the appeal was dismissed by the Supreme Court on 6th June, 1961. The entire case was re-examined by Mr. Rahim Bux P. Munshi who vide his order dated 20th February, 1965 discharged the said notices and confirmed his-status as non-evacuee. It is thus clear that despite prolonged litigation, the status of Sugni Chand as non-evacuee declared on 22nd July, 1950 remained in the field and it is this order which would provide criterion for the disposal of the disputed property. We are not convinced by the arguments advanced by Mr. Basharatullah that Sugni Cband had been declared non-evacuee for the first time on 26th February, 1965 vide order heretofore referred and that the property having already come to the Settlement Pool in 1959 and then in 1961 i.e. Prior to the declaration of his non- evacuee status, the later declaration was of no avail to respondents Nos. 2 to 5. The details of the litigation referred to by us amply prove that the litigation about the status of Sugni Chand spreading over a period of thirteen years was initiated in the year, 1951 on the ground that he was an intending evacuee and after prolonged litigation the same were finally settled in his favour.
Accordingly the earlier order passed on 22nd July, 1950 occupied the field. In the face of this order it was not open to the Settlement Authorities to acquire the entire plot of land on the Settlement Pool and dispose it of under the Act. This was a-- callous act on the part of the Department for which the non-evacuee or his successors-in-interest cannot be made to suffer. In fact what should have been done at that stage was to wait for the final decision of the Custodian before treating the disputed property as evacuee. Section 32(a) of Pakistan (Administration of Evacuee Property) Act, 1957 (hereinafter referred to as Act XII of 1957) is clear on the point. It saves the properties under litigation. If the Department was in an anxiety to utilize this property for the compensa--petition pool, the other way out was to seek its partition in order to separate the non-evacuee share from the evacuee share and then exercise its jurisdiction A over the non-evacuee part of it. None of these two courses was adopted The order of transfer, therefore, sutlers from an inherent infirmity which should be corrected, and such correction could be taken in hand by a com--petent authority at any stage.
7. Next point raised by the learned counsel is manifold, .In it, that he firstly challenges the conversion of respondents Nos. 2 to 5 s application into appeal by the Additional Settlement and Rehabilitation Commissioner, Hyderabad, then objection is raised to the condonation of delay caused in the making of this application and, lastly the hearing of the case in the absence of the applicants themselves is seriously questioned. not come in way of the Court in such matters. We would only refer to Syed Qasim Shah v. Deputy Commissioner, Kachhi and another (PLD 1976 Quetta 42) on this point where the question of limitation was ignored in order to correct an inherent illegality apparent on the face of the order.
We are, thus of the view that the proceedings against void order can at any stage be entertained and such order quashed even though this initiation of proceedings was in: a form other than the prescribed form and was also belated. It was certainly with these considerations in mind that the application was treated as an appeal and the delay was condoned by the Additional Settlement and Rehabilitation Com--missioner ; and the same was justified as it promoted the ends of justice.
Of course failing to do so would have amounted to perpetuating an illegality and such an act would have been looked at by us with disfavour. It may however, be pointed out that it appears unusual that the proceedings be dragged on for a long time in waiting for the respondents and then decided in their favour in their absence. In normal course the learned Member, Board of Revenue should have dismissed the case in default and referred' the matter to the concerned authority to adjudicate the question as to whether this property still vested in the said respondents or that it vested in the State in case it was proved to their satisfaction that these respondents had migrated to India after the War of 1971. In fact this question occupied the attention of this Court at a stage when we were given to believe that the said respondents had left for India after the War of 1971. We therefore summoned the Custodian of Enemy Property in order to ascertain whether this property now vested in the Government by virtue of Article 172 of the Constitution being an ownerless property, attracting the operation of the rules made under the Defence of Pakistan Rules. Mr. Fazal Hussain, Advocate appeared for the Custodian of Enemy Property and submitted that the question of treating this property as enemy property would arise only if this Court held that the property in question was non-evacuee; as Rule 172 (4) of the said Rules did not extend to Evacuee properties. It appears to us that the attention of the learned Member, Board of Revenue was not invited to this legal position that in case of appel--lant's absence, their appeal should be dismissed and as he was of the view that this property to the extent of Sugni Chand's share was non-cvacuee, therefore, the matter should have been referred to the Custodian of Enemy Properties for further action: However, for this view we would not interfere with the order as that would complicate the matter further. Moreso, the facts of this case are before us and suitable orders can be made now.
8. Mr. Basharatullah, the learned counsel for the petitioner next contend--ed that the learned Member, Board of Revenue acted in a mala f de exercise ofauthority. Mala fides are always to be proved and only an allegation is never sufficient. His ground for blending this order with mala fides is that the proceedings were held in the absence of the applicants We have already made a reference to the peculiar nature of case and confusing circumstances in which the proceedings were held. At the most we can say that he pro--ceeded in an unusual manner to protect the State interest. But by no stretch of imagination mala fides can be conceived of in the circumstances of the case. This ground is also without any substance.
9. Mr. Basharatullah, learned counsel for the petitioner also tried to canvass that since the respondents Nos. 2 to 5 left for India after the War of 1971, therefore, the status of the property has become evacuee. Once again, the Legal position is that no property could be treated as evacuee property after 1st June, 1957. The properties not so treated did not fall in the category of evacuee properties. Accordingly if a non-evacuee left for India after this date he would not be treated evacuee or his properties as non-evacuee pro--perties. Anyhow, it was only in case of such evacuee who left for India after 1971 that the rule to which we have referred came into operation.
Evacuee status is to be judged with reference to Act XII of 1957 and not by any other law, and in this case it was declared as far back as 1950 that Sugni Chand was non-evacuee. Accordingly the migration of the respondents afterwards would not affect the non-evacuee status of the property.
This argument is also equally devoid of force.
10. Mr. Basharatullah, also contended that a P. T. D. Once issued could not be cancelled. He relied upon Bashir Ahmed v. Settlement Commissioner, Sind and 4 others (PLD 1979 Kar 53) wherein the earlier view that a P. T. D. Even if issued on the ground of fraud or misrepresentation was unquestionable was dismented from and it was held that mistakes such a clerical or arithmatical can be corrected at any subsequent stage. In this case the question of entitlement of the transferee was reopened on some flimsly ground which did not find approval of the Court. This case is not helpful to the learned counsel. The position of law .Is that an order made without jurisdiction can always be recalled and proper action taken by the relevant authority even in its suo motu exercise of authority. (See Chief Settlement Commissioner, Lahore v. Muhammad Fazil Khan and others (PLD 1975 SC 331)). In the instant case the position that emerges is that a property not vesting in the Settlement Pool was transferred by the Settlement authority under some erroneous impression, as such his order to such an extent was absolutely without jurisdiction and a nullity in the eyes of law and could be recalled or interfered with P. T. D. Is not all sacrosanct if it is baseless.
Mere fact that P. T. D. Had been issued did not debar the learned L Member, Board of Revenue from amending the same. Accordingly, this ground also fails.
11. We, however, find a patent flaw in the concluding portion of the impugned order therein it is held that only 14000 sq. Ft. Of land initially allotted to the petitioner could be transferred to him. It is not the disputed position under the Settlement Laws that three times the covered area of an open building site could be transferred to a person raising construction' in accordance with law. The claim for the transfer of the entire plot considering the same to be entirely evacuee property was not, therefore, illegal and its transfer, believing the property to be evacuee, was also not illegal.
Accord--ingly, we would uphold the transfer of the plot to the extent of evacuee shave in it and would modify the order to that extent only. As far as the non---evacuee share of 13871 sq. Ft. In the land is concerned, the Provincial Govern--ment shall make inquiries as to whether respondents Nos.. 2. to 5 had left for India and in case it was so proved, the property shall vest in the Provincial Government who would he entitled to dispose it of in accordance with law. However, it shall only be proper that the same is transferred to the petitioner as he has already raised construction over it and has enjoyed its possession for a long time. Another reason for leaning towards this view is that the petitioner should not stand. To suffer for the folly of the Settlement Department.
12. The petition is, accordingly dismissed subject to above observation. We would further direct proceedings be initiated in the matter in the light of rules made under Defence of Pakistan Rules to deal with Enemy Properties. There will be no order as to costs.
(1) PLD 1979 Kar. 534(2) PLD 1975 SC 331.