' AYESHA A. MALIK, J. --- This single judgment decides upon the common issues arising in the WP No,s 6990 and 9234 of 2011.
2. Through these petitions, the Petitioners have impugned the action of the Respondents of trespassing on to the Property of the Petitioners measuring 29 Kanal, 1 Marlas and 187 Sq.Ft. Known as 34 Lawrence Road, Lahore (Property) and demolishing the superstructure built thereof and taking possession of the same.
3. The facts of this case are that the Petitioner is WP No,. 6990/2011 and the preform Respondents are the children of Col. (R) Dr. Ilahi Bakhsh and Begum Usma Abida Sultan. The dispute relates to the Property measuring 29 Kanals, 19 Marlas and 187 Sq.Ft known as 34 Lawrence ( Road, Lahore.
The Property was purchased from the Custodian by Begum Usman Abida Sultan. The sale was approved by the Ministry of Rehabilitation, Government Pakistan under Section 25(2)(s) of the Pakistan (Administration of Evacuee Property) Act, 1957 (Act of 1957 on 18.2.1959. The value of the Property was assessed a Rs, 144,000/- which amount was duly paid by Col. (R) Dr Ilahi Bakhsh and his wife Begum Usman Abida Sultar through two cheques dated 17.8.1959. The Deed of conveyance was executed by the Custodian of Evacuee( Property, West Pakistan, Lahore (Custodian) in favour of Begum Usman Abida Sultan. This Deed of Conveyance dated 12.12.1959 was registered on 15.12.1959. The Property was used for the purposes of Ilahi Clinic, which provided free medical treatment. The hospital was run by Dr Ilahi Bakhsh for many years. However after his death, his children moved away and sometime later the hospital became disfunctional, but the Property continued to be used in connection with medical services and facilities, such as Zeenat Laboratory and other Medical Laboratories.
4. On 28.3.2011, the Respondents No,. 1-5 under the garb of an anti-encroachment drive trespassed into the Property of the Petitioners and demolished the superstructure built there and took possession of the Property. No, notice or prior warning was given to the Petitioner or the proforma Respondents or the occupants of the medical facilities on the Property. This act of the Respondents has been impugned in the instant writ petition. Learned counsel for the Petitioner also argued that Col.(R) Dr. Ilahi Bakhsh is buried on this Property and his shrine (mazaar) is standing there and has not been damaged by the Respondents.
5. WP No,. 9324/2011 has been filed by The Medical Laboratories (Pvt.) Ltd. On the ground that they are tenants of the Petitioner in WP No,. 6990/2011 and the proforma Respondents 6-12. They have challenged the Impugned Action as tenants of the Petitioner in WP No,. 6990/2011.
6. Learned counsel for the Petitioners argued that the Impugned Action is illegal and in violation of the principles of natural justice. No, notice or opportunity of hearing was given. Learned counsel argued that there was no reason or justification for demolishing the Property of the Petitioner and the proforma Respondents. The Petitioners and the proforma Respondents have been deprived of their Property in violation of the law. The Petitioners and the proforma Respondents in WP No,.
6990/2011 are not encroachers of the Property as they are the owners in possession of the Property and the Petitioner in WP No,. 9324/2011 is their tenant and the Respondent No,. 1 have illegally demolished their Property and claim to be the owners of the said Property. Learned counsel for the Petitioner has relied upon the Deed of Conveyance of the Property which shows that Begum Usman Abida Sultan was the absolute owner of the Property alongwith building and vacant Property being 34-Lawrence Road, Lahore. He argued that the transfer in favour of Begum Usman Abida Sultan was approved on 18.2.1959 under Section 25(2)(s) of the Act of 1957. He argued that a valid Deed of Conveyance was executed in favour of Begum Usman Abida Sultan which cannot be cancelled without a proper decre'e from the competent court. The Respondent No,. 1 through the Impugned Action simply grabbed possession of the Property of the Petitioner and the proforma Respondents and claim it to be their own Property. Learned counsel for the Petitioner argued that the registered Deed of Conveyance in favour of Begum Usman Abida Sultan is still an effective legal document on the basis of which the Petitioner and the proforma Respondents are the owners of the Property. In this regard, he has placed reliance on the cases titled 'Mrs. Sultana Ahmed v. Sindh Industrial Trading Estate Ltd. Through Managing Director and 2 others' (2003 YLR 1760) and 'Mst. Fazeelat Tahira v. Aftab Ahmad etc.' (2000 UC 91). Learned counsel for the Petitioner also argued that the registered Deed of Conveyance prevails over the revenue record and the same cannot be cancelled or nullified through the revenue record. Learned counsel argued that after the Impugned Action the Respondent, Government of Punjab had the Property mutated in its favour which in itself is an illegal act. Learned counsel for the Petitioner argued that the Property was transferred to Begum Usman Abida Sultan and is a past and closed transaction which cannot be reopened and transferred by a notified officer. Learned counsel places reliance on the cases titled 'Ussama Tariq v. Administrator (Residual Properties)/Additional Commissioner (Revenue), Lahore Division, Lahore and 3 others' (2003 SCMR 616), 'Mst. Badshah Begum and others v. The Additional Commissioner (R), Lahore Division and others' (2003 SCMR 629) and 'SheraAfzal Khan and others v. Haji Razi Abdullah and others' (1984 SCMR 228). Learned counsel further argued that this is a complete transfer in favour of the Petitioner and the proforma Respondents and the Respondent No,. 1 could not have taken the possession and mutated the Property in its favour. He further argued that due process was never followed, hence the Impugned Action is illegal. Learned counsel further argued that the proprietary rights of the Petitioner and the proforma Respondents are protected under the Constitution of Islamic Republic of Pakistan, 1973 and under the law. He further argued that the Petitioner and the proforma Respondents are entitled to restoration of their possession through the instant writ petition. In this regard he has placed reliance on the cases 'Aitzaz Ahsan and 2 others v.
Municipal Committee, Gujrat' (1994 CLC 255), Ijaz Ahmed and others v. The State and others' (PLD 2001 Lahore 94), 'Mussarrat Afza v. Shaukat lqbal, Deputy Commissioner, District Mandi Bahauddin and 4 others' (1998 CLC 733), 'Muhammad Aslam v. Assistant Commissioner/Collector, Khanpur, District Rahim Yar Khan and 4 others' (1998 CLC 1596) and 'Muhammad Aslam v. Station House Officer and others' (1993 MLD 152).
' Learned counsel on behalf of the Petitioner in WP No,. 9324/2011 adopts the arguments of the learned counsel for the Petitioner and states that the Petitioner being tenant has been paying the rent regularly and that the Respondent No,. 1 has unlawfully dispossessed the Petitioner from the Property.
8. Report and parawise comments have been filed by the Respondents No,. 3 and 4. In terms of the report and parawise comments filed, this Property has been transferred in the name of the Provincial Government and now belongs to the Provincial Government vide mutation No, 7661 dated 14.4.2011. The Provincial Government intends to build a Kidney Transparent and Dialysis Centre. The Deed of Conveyance dated 15.12.1959 is a void document as the Federal Government acquired the Property on 17.3.1959 after which the Custodian had no authority to transfer the Property and execute the Deed of Conveyance. The Property was mutated in favour of the Federal Government on 15.6.1963 through mutation No,. 3581, hence there was no transfer ever made in favour of the Petitioner or the proforma Respondents. The approval letter being relied upon by the Petitioner dated 18.2.1959 is a bogus document as it is totally in contravention to Section 3 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 (Act of 1958). Learned Law Officer argued that even otherwise the Property was given to the Petitioner for a specific purpose. Hence it was a conditional sale. Since the purpose for which the sale took place was not being carried out, the Government of Punjab took the Property from the Petitioners and the proforma Respondents.
9. Report and parawise comments have been filed by the Respondent Administrator (Residual Properties), Board of Revenue, Punjab who is Respondent No,. 14 in WP No,. 9324/2011. The report and parawise comments have been signed by the Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore who is represented through two counsels Mr. Ghazanfar Khalid Saeed and Mr. Mehmood A. Sheikh, Advocates. The case of the Respondent No,. 14 is that the Property became part of the compensation pool through notification issued under Section 3 of the Act of 1958.
Therefore it is their case that the Custodian had no jurisdiction with respect to the Property and could not have sold the same. Learned senior counsel has relied upon the cases titled 'Sher Muhammad and others v. Azmat Ali' (PLD 1968 Lahore 1171), 'Mehra v. Zahur Ahmad' (PLD 1971 Lahore 834), 'Maj. Mehtab Khan v. The Rehabilitation Authority and another' (PLD 1973 SC 451) and 'Talib Hussain v. Secretary, Evacuee Property and 7 others' (1986 CLC 2536) to urge the point that the Custodian could not have sold the Property to the Begum Usman Abida Sultan. The case of the Respondent Chief Settlement Commissioner is that the Property was notified and formed part of the compensation pool. Thereafter mutation No,. 3581 was issued in favour of the Federal Government on 15.6.1963.
The Federal Government thereafter transferred the Property in favour of the Provincial Government vide mutation No, 7661 dated 14.4.2011. The Petitioners are therefore trespassers and encroachers upon the government property and the Impugned Action was strictly in accordance with law.
10. Report and parawise comments have also been filed on behalf of the Respondents No, 6-12 who are the legal heirs of Lt. Col. Dr. Illahi Bukhsh and they have essentially reiterated the case as argued on behalf of the Petitioners.
11. Heard the learned counsel for the parties and have gone through the record available on the file.
12. The Petitioner alongwith Respondents No, 6- 2 rely upon Deed of Conveyance dated 12.12.1959 registered on 15.12.1959 bearing Khasra Nos. 309, 310, 311 and 312 of Khasra lmrati of Mozang, Lahore as their title document on the basis of which they are owners of the Property. This Deed of Conveyance is between the Custodian and Begum Usman Abida Sultan wife of Lt. Col. Illahi Bukhsh.
The recital in the Deed of Conveyance provides that this was Lalas Haveli Shah and Sardari LaI sons of Rai Bahadur Sundardas, caste Khatri Hindu who became evacuees from Pakistan as they migrated from Pakistan and settled in India. The Property became evacuee property under the provisions of the Act of 1957. Consequently the Property vested in the custody of the Custodian. The Government of Pakistan through its letter dated 18.2.1959 addressed to the Custodian granted approval under Section 25(2)(s) of the Act of 1957 to sell and transfer the said Property to Begum Usman Abida Sultan as per the price assessed by the Custodian under Section 26 of the Act of 1957 and upon cash payment. Two other conditions were imposed, that the Property will be utilized for building a hospital and that it should be constructed and completed within two years' time. The value of the Property was fixed at Rs, 144,000/- which was paid through cheque No, 006953 dated 17.8.1959 and cheque No, 008982 dated 17.8.1959. Thereafter the Property was transferred to Begum Usman Abida Sultan through the Deed of Conveyance dated 12.12.1959.
13. The basic issue before this Court is whether the Custodian had the power to sell the Property under the Act of 1958. The Act 01 1958 came into force on 26.3.1958 whereas in terms of the Deed of Conveyance, the approval was granted by the Federal Government in favour of the Custodian under Section 25(2)(s) on 18.2.1959. It is the case of the Respondents that this Property became part of the compensation pool and could not have been sold by the Custodian. The Respondents have relied upon SRO No, 392, dated 17.3.1959 in their parawise comments to urge the point that the Property was acquired under Section 3 of the Act of 1958 and therefore could not be sold by the Custodian. However, they have not placed a copy of the said notification on the record nor was it produced during arguments. The Petitioners have placed a copy of SRO No, 392, dated 17.8.1959 on the record to show that SRO No, 392 is not relevant as it essentially notifies the Displaced Persons (Land Settlement) Rules, 1959. Therefore it appears that there is no specific notification issued under Section 3 of the Act of 1958 with respect to this Property. Under the Act of 1957, the Custodian is vested with all Evacuee Property with effect from 1.3.1947. The Custodian has the power under Section 25(2)(s) of the Act of 1957 to transfer any evacuee property, notwithstanding anything contained in any law or agreement to the contrary relating thereto. Section 26 of the Act of 1957 provides that the Custodian may determine the value of the Property vesting in him and Section 42 of the Act of 1957 provides that Every order purporting to be made or signed by the Custodian under this Act shall be presumed to have been made or signed by the Custodian until the contrary is proved. Therefore in terms of the Act of 1957, the property vested in the Custodian. The Custodian obtained permission to transfer the Evacuee Property to Begum Usman Abida Sultan on 18.2.1959 and thereafter received the consideration for the Property. The Deed of Conveyance was executed on 12.12.1959 in favour of Begum Usman Abida Sultan finalizing the transfer of ownership rights in her favour. To the mind of this Court a valid and legal transfer of proprietary rights in the Property was made by the Custodian in favour of Begum Usman Abida Sultan (the Petitioner and Respondents No, 6-12 being her legal heirs). The argument raised by the Respondents that the Property was part of the compensation pool and therefore the Custodian had no right to transfer the Property is not substantiated by any document. They have not been able to show any notification on the basis of which this Property was acquired by the Federal Government under Sections 3 and 4 of the Act of 1958. The Petitioners have relied upon a gazette notification No, U-8- 79/3113 dated 21.8.1959 which provides that any notification issued under Section 3 of the Act of 1958 will not be applicable to property for the acquisition or sale of which sanction of the Federal Government under the Act of 1957 has already been given. Therefore in order for the Property to be transferred under the Act of 1958 into the compensation pool, it was necessary that it was acquired under Section 3 of the Act of 1958. It appears that the Property was never acquired under Section 3 of the Act of 1958, hence never formed part of the compensation pool and the Custodian who had already taken permission for selling the Property from the Federal Government executed the Deed of Conveyance, being the competent authority. Furthermore Notification No, U-8-79/3113, dated 21.8.1959 read with the permission accorded on 18.2.1959 shows that the Property was never acquired under Section 3 of the Act of 1958 and it did not form part of the compensation pool.
14. Even otherwise to the mind of this Court, the Federal Government as the owner of the Proper gave permission to sell the Property to Begum Usman Abida Sultan on 18.2.1959. The Respondents No, 1-4 have not challenged or questioned the permission given on 18.2.1959 or the Deed of- Conveyance dated 12.12.1959 to date before any 'forum. The Property has been in the possession of Begum Usman Abida Sultan and then her legal heirs since 12.12.1959 being more than 52 years. In all this time the ownership and possession of the Property remained in favour of Begum Usman Abida Sultan and her legal heirs which was never questioned or challenged by the Respondents No, 1-4 before any forum. However suddenly on 28.3.2011 the Respondent No, 1 on an anti- encroachment drive demolished the building and superstructure on the Property of the Petitioners on the understanding that they became owners of the Property vide mutation No, 7661, dated 14.4.2011. There is nothing on the record which explains this mutation or why the Federal Government effected mutation No,' 7661 in favour of Respondent No,
1. The Federal Government ceased to be the owner of the Property on 12.12.1959 when it executed the Deed of Conveyance through the Custodian in favour of Begum Usman Abida Sultan. Effectively the Federal Government entered into an agreement to sell with Begum Usman Abida Sultan through the Custodian on 18.2.1959 when they approved transfer of the Property in favour of Begum Usman Abida Sultan. The subsequent mutation in favour of the Federal Government on 15.6.1963 is of no legal consequence because the Property had already been transferred and sold in favour of Begum Usman Abida Sultan. Even otherwise mutation dated 14.4.2011 relied upon by the Provincial Government merely shows that property has been registered in the revenue record as being in the ownership of the Government of Punjab. However it does not show or prove title to the said Property. It is settled law that mutation simply records ownership but it is not a title document in itself. It is maintained for fiscal purposes and on the basis of mutation No, 7661, the Government of Punjab cannot claim to be the owner of the Property. Furthermore there is a registered Deed of Conveyance in favour of Begum Usman Abida Sultan which cannot be cancelled by a mere entry in the revenue record.
15. The Respondents No, 1-4 have raised several arguments to justify the Impugned Action. Learned Law Officer argued that this was at best a conditional sale where the Property in question had to be used for the purposes stipulated in the Deed of Transfer. Since the hospital was never built, the condition was violated, hence the Provincial Government had every right to demolish the buildings on the Property and take over its possession. This argument has no merit because in the first instance the Government of Punjab should have issued notices prior to any act of demolition explaining the reasons for demolition. Secondly they claim to be owners since 14.4.2011 yet the Impugned Action took place on 28.3.2011 prior in time to their own claim. Further they are not party to the Deed of Conveyance in which they alleged breach of conditions. For 52 years the Property has been in the ownership and possession of the Petitioners. The Federal Government has never objected to the sale, transfer or possession in their favour nor have they claimed any breach under the Deed of Conveyance. The Provincial Government has no right whatsoever in the Property and the mutation in its favour dated 14.4.2011 does not create any right in their favour. If at all the Government of Punjab lay any claim to the Property, due process should have been followed before are demolition or taking possession. The Impugned Action was taken without following due process and without any justifiable reasons. If the Respondents dispute title in favour of the Petitioners or even the documents in their favour then such a dispute should have been raised before the competent forum. Merely based on an entry in the revenue record, the Respondent No, 1 cannot claim to be the owner of the Property. Therefore Respondent No, 1 has taken illegal possession of the Petitioners' Property under the garb of its anti-encroachment drive. After hearing all the parties at length, it appears that the Government of Punjab acted without considering the rights of ownership and possession, due process and the principles of natural justice. The Respondent No, 1 with the help of its officers forcibly took possession of the Property from the Petitioners without any consideration of the law through a show of force which was totally unjustified and without the sanction of law.
16. Therefore for the afore-mentioned reasons, this writ petition is allowed. The Respondent No, 1 is directed to hand over the possession of the entire Property to the Petitioners within 24 hours. The Petitioners are at liberty to proceed against the Respondent No, 1 to seek damages for the loss that they have suffered on account of the illegal acts of the Provincial Government.