This Constitutional petition is directed against order dated 24.10.2012 (impugned order), by the Additional District Collector , Bhakkar (respondent No.1), whereby application / representation of the petitioners was not entertained, filed after dismissal of Constitutional Petition No.3497 of 2010. Respondent No.1 had advised the petitioners, in view of the facts and circumstances of the case, to approach concerned Notified Officer Sargodha Division for redressal of alleged grievances. Through this petition, petitioners have sought declaration of illegality against the impugned order and implementation of the orders dated 30.10.1956 and 23.01.1957 of Deputy Custodian and Additional Custodian Evacuee Property , respectively , in the revenue record.
2. It is noted that petitioner had earlier filed W .P. No.3497 of 2010, which was dismissed in following terms;
4. "It is not understandable why petitioners remained silent for a long period for implementation of Custodian orders. If petitioners have any case, it requires recording of evidence which exercise could not be taken in the constitutional jurisdiction of this court and as such petitioners may approach the appropriate forum, if so desired, for redressal of their grievance.
5. "In view of above, this petition is not maintainable and consequently is dismissed'.
3. Briefly the facts necessary for adjudication of the lis at hand, are that deceased Ghulam Hussain (predecessor- in-interest) of the petitioners claimed to have had purchased land measuring 37 Kanals - Khata No.34, Khatuni No.97, Khasara No.517/min, situated at Mauza Bhakkar Daggar (hereinafter referred as "property") from Thakardas son of Moti Ram (Evacuee person) through unregistered deed of sale dated 24.06.1947 - which deed was not placed on record of this case. The case of the petitioners is that their predecessor-in-interest desired recording of factum of purchase in the revenue record in its name, which required requisite certificate. The deceased applied by filing application under section 18 of the Pakistan (Administration of Evacuee Property)
Ordinance (XV) of 1949 (referred hereinafter as Ordinance-1949), for seeking certificate and declaration that status of property was not evacuee, which application was allowed on 30.10.1956 by Deputy Custodian, and confirmed by Additional Custodian on 23.01.1957. The alleged claim of predecessor-in-interest of the petitioners remained obscured, till the filing of W.P.No.3497 of 2010. In the meantime, the property was allotted to Akbar Ali and Muhammad Ismail against their alleged claims in terms of RL-II No.10, dated 23.10.1962; in the share of 28 Kanals and 06 Marlas and 08 Kanals and 14 Marlas, respectively . Later on, allotment was declared as bogus and cancelled vide order dated 17.05.1976 by Additional Commissioner Land Revenue - having powers of Chief Settlement Commissioner Sargodha - apparently on petition filed by one Ishfaq Ahmad on 26.06.1974 (before the repeal of Evacuee and Settlement Laws with effect from 1st July 1974). It is noted that original allottee Akbar Ali filed suit for declaration and impugned the order of cancellation, which suit was dismissed for non-prosecution on 28.03.1978. The respondents No.7 to 12 - claimed to be the legal heirs of deceased Muhammad Aslam, who allegedly acquired property from original allottee (Akbar Ali) measuring 18 Kanals 6 Marlas through decree of the court in terms of Mutation No.45 dated 29.07.1984 and Mutation No.53 dated 03.01.1985. It is alleged by the respondents No.7 to 12 that their predecessor-in-interest, Aslam Khan, filed civil suit on 24.01.1995, which was decreed ex-parte on 23.02.1997, having the consequence of setting-aside order of cancellation of allotment dated 17.05.1976 and affirming alleged ownership of decreased Muhammad Aslam. The petitioners impugned the order of dismissal of representation - dated 24.10.2012 by respondent No.1 through this petition, which was earlier allowed vide judgment dated 20.06.2014, and later on said judgment was set-aside on 11.03.2015, while allowing application of respondents No. 7 to 12, filed under Section 12(2) of the Code of Civil Procedure, 1908 ('the Code').
Respondents No.7 to 12 were not impleaded as party when this petition was filed.
4. Learned counsel for the petitioners contends that Notified Officer had no jurisdiction to address the grievance of the petitioners, as the property was not evacuee, as already declared by the Custodian on 23.01.1957. Per learned counsel, respondents No.7 to 12 are not eligible to claim any right in the property by virtue of ex-parte decree in favour of deceased Aslam Khan, as the Civil Court lacked jurisdiction in terms of section 41 of the Pakistan (Administration of Evacuee Property) Act (XII) of 1957 (referred hereinafter as Act). Further submits that original allottee had earlier filed suit, which was dismissed and later on, subsequent vendee, Aslam Khan was not entitled to file suit in the year 1995 to question cancellation of allotment order of 17.05.1976. Adds that after declaration by the Custodian, the property was not available for allotment by the Rehabilitation Authorities under Settlement laws.
Learned counsel referred to the judgmen ts reported as "Syed WAJIH-UL-HASSAN ZAIDI v. GOVERNMENT OF PUNJAB and others" (1996 SCMR 1901), "SHAUKA T HAYAT JUMANI v. THE PROVINCE OF SINDH through Secretary , Rehabilitation Department and others" (1991 SCMR 580), "MUHAMMAD ANW AR and 2 others v.
KHUDA YAR and 25 others" (2008 SCMR 905), Sh. SHAJAR HUSSAIN v. Haji ABDUL MAJEED and others"
(2006 SCMR 913), "MUHAMMAD SADIQ (decd.) through L.Rs. and others" (2011 SCMR 239), "AHMED AND ANOTHER v. MUHAMMAD SHAFI AND OTHERS" (1982 SCMR 68), "MEMBER BOR PUNJAB and anothe r v.
Mst. SIDDIQAN through L.Rs. and others" (2015 SCMR 1721 ) and "MUHAMMAD DIN and 8 others v.
PROVINCE OF THE PUNJAB through COLLECT OR and others" ( PLD 2003 Lahore 441 ).
5. Learned counsel for respondents No.7 to 12 submits Civil Court has jurisdiction to entertain order of cancellation of allotment, as it was passed without hearing the person having beneficial interest in the property . Submits that decree of 23.02.1997 by the Civil Court had the effect of set-aside order of cancellation of allotment, which decree was not challenged and still holds field. Adds that predecessor-in-interest of respondents No. 7 to 12 was a subsequent purchaser of property for consideration, who being bona-fide purchaser had no knowledge of order of cancellation of allotment, and same challenged it upon gaining knowledge. Adds that allottee was in possession since 1962 and thereafter respondents have uninterrupted possession of the property .
6. Arguments heard. And available record perused.
7. The questions raised inextricably involve determination of respective rights, allegedly claimed by the parties, qua the property - each claiming property in its own exclusive right. The existence and legitimacy of the claim of the respondents No.7 to 12 - having its alleged genesis in allotment made in terms of RL-II in the year 1962 and decree of the civil court - was inter-alia linked with the question of determination of validity and legitimacy of so- called declaration by the Custodian - declaring property as non-evacuee, as claimed by the petitioners. In view of the facts narrated and interplay of competing claims, undoubtedly Government is a major stakeholder , the one which is least concerned. It is evident that over-lapping rights and competing claims are deeply entwined and same, cannot, conveniently be adjudicated upon or determined in isolation or separately , therefore, all the claims against the property are adjudicated upon and determined through this judgment.
8. Learned counsel for the petitioners emphasized that allotment in the year 1962 was declared bogus, which order of cancellation of 15.07.1976 could not be impugned before the Civil Court under section 41 of Act-1957, hence decree dated 27.02.1997 suffered from jurisdictional defect and was of no legal effect. It is contended that declaration can be made against a void decree in this petition while determining the questions involved. I, first take the issue of legitimacy of claim of the petitioners.
9. The petitioners had sought implementation of declaration by the Custodian, which necessitates determination that whether such declaration constitutes valid and lawful exercise of jurisdiction by the Custodian. The declaration, by the Custodian in exercise of powers under section 18 of Ordinance-1949, declared that property was not evacuee property . Before determining the legality of such declaration in terms of section 18, ibid, it is expedient to reproduce section 18 of the Ordinance-1949, which reads as;
18. Claims by interested persons- (1) Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that --
(a) the property is not evacuee property , or
(b) his interest in the property has not been affected by the provisions of this Ordinance .
(2) An application under subsection (1) shall be made within the prescribed period being a period of not less than thirty days from the prescribed date.
(3) On receiving an application under subsection (2), the Custodian shall hold a summary in inquiry in the prescribed manner , and after taking such evidence as may be produced shall pass an order , stating the reasons therefore, rejecting the application or allowing it wholly or in part on such terms and conditions as he thinks fit to impose".
[Emphasis supplied]
10. In terms of section 18 of Ordinance-1949, any person claiming alleged right or interest in the property - treated by the Custodian or Rehabilitation Authority as evacuee property - may file a claim and seek declaration that said property was not evacuee property or that Settlement Laws does not affect alleged right or interest therein. The Custodian may, after following the procedure provided therein, either accept the application or reject it, which decision would per-se determine the status of the person and the property , including alleged rights claimed therein.
The expressions 'evacuee' and 'evacuee property' were defined in terms of sub-section (2) and sub-section (3) of section 2 of Ordinance, 1949. It is expedient to examine those, which are reproduced hereunder as;
(2) "evacuee" means any person who-
(i) on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves or has left any place in the territories now comprising Pakistan any place outside those territories, or
(ii) acquires or has acquired, on or after the aforesaid date, in any manner whatsoever , any right to or interest in or benefit from any property which is treated as evacuee property under any law for the time being in force in India, or in any area occupied by India, or
(iii) is resident in any place in the territories now comprising India or in any area occupied by India and who for that reason is unable to occupy , supervise or manage in person his property in Pakistan or whose property in Pakistan has, whether wholly or partially , ceased to be occupied, supervised, or manag ed by any person, or is being occupied, supervised or managed by an unauthorized person;
(3) "evacuee property" means any property in which and evacuee has any right or interest, or which is held by or for him in trust, and includes-- (?) any right of interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same, or
(b) property obtained from an evacuee after the twenty-eighth day of February , 1947, until confirmed by the Custodian , but does not include-
(i) any movable property in the immediate physical possession of any evacuee, or
(ii) any property belonging to a joint stock company the head office of which was situated, before the fifteenth day of August, 1947, in any place in the territories now comprising India, and continues to be so situated after the said date; [Emphasis underlined]
11. A literal interpretation of definition of evacuee property would manifest that any property not coming within the scope of sub-section (3) of section 2 of Ordinance -1949 would be treated and deemed as non-evacuee property , wherein evacuee person has no right or interest after 28th February , 1947. It is for the applicant to establish that property was not owned by evacuee person, hence, it was not evacuee property for the purposes of relevant Settlement Laws and disposal by the Rehabilitation Authorities. The predecessor-in-interest of the petitioners had claimed rights in the property by virtue of deed of sale dated 24.06.1947, allegedly executed by Thakardas in favour of Ghulam Hussain, which date of transaction was after the cut-of f date as indicated in clause (b) of sub- section 3 of section 2 of Ordinance of 1949 - which was identified as 28th Day of February 1947. In view of the aforesaid, the property was 'evacuee property' for all intent and purposes, when interpreted in wake of definitions provided and it was for the petitioners to show that it was not so.
12. Learned counsel for the petitioners pleaded that property in question was not evacuee property as declared by Custodian, as it was purchased / acquired by their predecessor-in-interest - who was Muslim - through deed of sale, therefore, the property was non-evacuee property , and not available for allotment by Rehabilitation Authorities. This argument is misconceived and fallacious. The transaction of sale simplicitor , admittedly conducted on 24.06.1947 with evacuee person - which conspicuously was after the cut-of f date, i.e. 28th February 1947 -, would not change the status of the property from evacuee to non-evacuee. The property has assumed evacuee status on 1st March 1947 and same stood vested in the Custodian by virtue of section 6 of Ordinance of 1949, which reads that "All evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the First Day of March 1947 ". The Custodian has no jurisdiction or authority to declare the property as non-evacuee, merely because it was purchased by a Muslim vendee from evacuee person, which admittedly was after the terminus quo date. The petitioners had not disputed the factum of purchase from evacuee person and failed to plead reasons that how property was non-evacuee property . The Custodian cannot alter, change or disregard the legislative intent and treat the property as non-evacuee when it assumed the status of evacuee property in the light of the conditions prescribed. Mere declaration, obtained by the alleged purchaser that he was non-evacuee, would not, per-se the property exclude from the category of evacuee property . Reference is made to decision in the case of "AZIZUDDIN v. MUHAMMAD ISMAIL and others" (1985 SCMR 666), relevant portion whereof is reproduced hereunder as; "The appellant, as already mentioned, had moved the Custodian authorities first in 1949 for confirmation of the sale of the land in his favour and again in 1953 for the grant of a certificate permitting registration of the sale and in both proceedings the Additional Custodian had held that the vendor not being evacuee, the question of confirmation of the agreement of sale did not arise. However , the decision given by the Additional Custodian cannot be pressed into service because if the owner be held to be non-evacuee, the same would not per se be sufficient to exclude his property from being treated as evacuee property as was held by the Court in Hajiran Sughra v. District Judge & Settlement Commissioner 1969 SCMR 686 ".
[Emphasis supplied] Nothing was alleged or pleaded that property was erroneously or illegally treated as evacuee property in violation of the law. And merely , the acquisition of the evacuee property - after 28th Febru ary 1947 - from an evacuee - who left the territories of Pakistan after 1st March 1947 - would not entitle the petitioners to seek declaration qua status of the property under section 18 of Ordinance-1949.
13. Analysis of other provisions of Ordinance-1949 reveals that restrictions were placed on transfer of evacuee properties under section 16 of Ordinance- 1949 [which restrictions are distinguishable from the prohibitions referred to in section 15 of Ordinance-1949]. Upon perusal of section 16, ibid, it is evident that creation of any right or interest in the property by evacuee on or after 1st March 1947 would be valid and effective only, once confirmation was granted by the Custodian. It implied that no transaction of transfer of rights in evacuee property , on after or 1st March 1947, would create any right unless it was confirmed accordingly , upon fulfilment of requirements provided under section 16 of Ordinance-1949. And such specific confirmation enables the beneficiary to seek registration of the instrument in accordance with the provisions of Registration Act 1908, in terms of section 17 of Ordinance - 1949. It is expedient to reproduce sections 16 and 17 of Ordinance - 1949, considering their relevance for the purposes of adjudication of the lis at hand, which read as; "16.Restriction on transfer by evacuees.--(l) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatever by an evacuee or by any person in anticipation of his becoming an evacuee or on behalf of the evacuee or such person on or after the first day of March, 1947, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party unless such creation or transfer is confirmed by the custodian.
(2) An application for confirmation of such creation of a right or encumbrance or transfer as aforesaid may be made to the Custodian within the prescribed period by any party thereto, or by any person claiming under or lawfully authorized by such party .
(3) The Custodian shall hold a summary inquiry into the application in the prescribed manner , and--
(a) shall reject the application if the creation or transfer--
(i) was or is prohibited under any law for the time being in force, or
(ii) was not or is not covered by a certifica te from the prescribed income-tax author ity to the effect that no objection existed or exists to such creation or transfer;
(b) may reject the application if he is of opinion that the creation or transfer--
(i) was not or has not been entered into in good faith or for adequate consideration, or
(ii) ought for any other reason not to be confirmed.
(4) If the application is not rejected under subsection (3), the Custodian may confirm the creation -- of transfer either unconditionally or subject or subject to such terms and conditions as he thinks fit to impose.
17. Registration of documents.- (1) Notwithstanding anything contained in the Registration Act, 1908 (XVI of 1908), or in any other enactment for the time being in force, no registering officer shall register or accept for registration any document relating to any immovable evacuee property unless a certificate by the custodian permitting registration is produced, and such certificate may contain such conditions as the Custodian may see fit to impose and shall have effect subject to those conditions.
(2) If any question arises whether any document presented for registration relates to immovable evacuee property or not, the registering officer shall direct the parties thereto apply to the Custodian for a certificate that the document does not related to any immovable property , and the registering officer shall not accept for registration or register such document without such certificate.
14. The scope, ambit and object of both sections 16 and 18 of Ordinance of 1949 are different, independent and each was attracted to a particular set of facts, circumstances and peculiar situation. An applicant' s desire or choice qua determination of its rights by virtue of transaction of sale would not simply trigger the assumption or exercise of jurisdiction by the Custodian under section 18 of Ordinance - 1949 when there was no ground for making declaration qua status of the property as non-evacuee. If discretion is conferred on the applicant to pick between sections 16 or 18 of Ordinance - 1949 every one's, choice would be section 18, obviously to avoid performance of conditions in terms of section 16, ibid. In this case, the predecessor-in-interest of the petitioners were required to seek confirmation qua the transaction of transfer of rights in the evacuee property , acquired from evacuee after 1st March 1947, under section 16, ibid, subject to fulfilment of conditions prescribed. And if they seek declaration qua status of the property , they were required to plead reasons and grounds for declaration that property was not evacuee, which were conspicuous by their absence. The case of the petitioners fall within section 16 and not under section 18 of Ordinance - 1949. Unless alleged transfer of rights by the evacuee was confirmed, no registration was permissible under section 17 of Ordinance-1949 - which, otherwise was essential as the deed of sale was unregistered and remained so, despite lapse of statutory time provided for registration under the Registration Act 1908 [which default per-se renders the deed of sale ineffective and void]. The significance of section 16 cannot be undermined by extending superior role to section 18, which cannot be treated as substitute or replacement of section 16 of Ordinance-1949, each having distinctive contours and objects. It is imperative to meet the requirements / limitations under section 16, before seeking confirmation qua creation or transfer of rights in the property - which statutory compliances cannot be avoided in the garb of so-called declaration under section 18 of Ordinance-1949. It appeared from perusal of orders dated 30.10.1956 and 23.01. 1957, by Deputy Custodian and Additional Custodian Evacuee Property , respectively that no such certificate, as required under clause (ii) of sub- section (3) of section 16 of Ordinance - 1949, was produced nor alluded to while deciding the matter . In case of failure to produce such certificate(s), the application was liable to an outright rejection. The issue is that whether any such certificate was required with reference to agricultural property , as section 3 of Transfer of Property (Pakistan) Ordinance, IV of 1947 provided exemption qua the agricultural properties. It is expedient to reproduce Rule 12 of the Administration of Evacuee Property Rules, 1950 [framed under section 46 of Ordinance-1949 and published on 25th August 1950] and section 3 of the Transfer of Property (Pakistan) Ordinance, IV of 1947 to address the issue, which read as; "Rule 12 of Administration of Evacuee Property Rules, 1950, "12. Procedure for confirmation under section 16
(1) An application for confirmation under subsection (2) of section 16 shall contain full particulars of the property , the name of the transferor and his presen t address, if known, the nature of the transaction sought to be confirmed, and the consideration paid or deferred together with the date or dates on which paid.
(2) The application shall be presented within sixty days of the date of publication of these rules or the date of execution of the instrument effecting the transaction sought to be confirmed, whichever be later, and any period during which the completion of such transaction is prohibited by or under any law for the time being in force in the area in which the property is situate shall be excluded.
(3) The application shall be accompanied by a certificate in terms of section 3 of the Transfer of Property (Pakistan) Ordinance, 1947 from the Inspecting Assistant Commissioner of Income-tax of the area to which the property is situate or such other officer as may be duly appointed in this behalf, or in the absence of such certificate an affidavit declaring why such certificate is not attached, and by a duly attested copy of the instrument effecting the transaction sought to be confirmed and of such other documents as may be relied upon, and shall bear a court- fee stamp of rupees twenty or rupees ten according as the value of the consideration does or does not exceed rupees ten thousand.
(4) Where an application for confirmation is pending on the date of publication of these rules, the applicant, if necessary , shall amend the application and make up any deficiency in court-fee stamp in accordance with this rule within thirty days from such date, unless the Custodian, on sufficient cause being shown, extends the said period.
(5) The Custodian shall cause a notice to be served on the respondent, and the Rehabilitation Authority of the area in which the property is situate, and on any other person likely to be interested in or affected by the result of the application, and may also cause a public notice to be published in a newspaper at the expense of the applicant"
Section 3 of the 1947 Ordinance; "No Registering Officer , Revenue Officer , Custodian or other officer appointed to deal with property shall register any document, relating to property other than agricultural land, which is required to be registered under the provisions of clause (a), (B), (c) or (e) of subsection (1) of section 17 of the Registration Act, 1908 unless it is certified by an Income-tax Officer , in respect of every person whose right, title or interest in the property is or will be transferred, assigned , limited or extinguished under the terms of the document, either that such person is not liable to taxation under the Income-tax Act, 1922, the Excess Profits Tax Act, 1940 or the Business Profits Tax Act, 1947 or that he has either paid or made satisfactory provision for the payment of all existing or anticipated liabilities under any of the said acts."
[Emphasis supplied]
15. The requirement of procuring certific ate for the purposes of seeking confirmation in terms of section 16 of Ordinance - 1949 [which corresponds to section 17 Pakistan (Administration of Evacuee Property) Ordinance - 1956 and section 20 of Act - 1957] - notwithstanding agricultural character of the property - was reiterated in the judgment reported as "Haji ASHF AQ AHMED KHAN AND 4 OTHERS" v. THE CUST ODIAN, EVACUEE PROPER TY (PAKIST AN), KARACHI AND 10 OTHERS" (PLD 1973 Supreme Court 134), relevant portion whereof is reproduced hereunder as; "lt is correct to say that a certificate under section 3 is not required for registration of a sale deed of agricultural land, but it does not follow that such a certificate was not necessary for confir mation under section 20 of the Administration of Evacuee Property Act XII of 1957. It becomes clear by referring to rule 12(3) of the Administration of Evacuee Property Rules, 1950, which provides that the application for confirmation of transfer of an evacuee property shall be accompanied by a certificate as in terms of section 3 of the Transfer of Property (Pakistan)
Ordinance, IV of 1947 from the Inspecting Assistant Commissioner of Income-tax of the areas in which the property is situate or in the absence of a certificate an affidavit declaring why such certificate is not attached. The certificate has therefore to be in terms of section 3, namely , that the person whose right, title or interest in the property is or will be transferred, assigned, limited or extinguished under the terms of the document is not liable to taxation under the Income-tax Act, 1922, the Excess Profits Act, 1940, or the Business Profits Act. 1947, or that he has either paid or made satisfactory provision for the payment of all existing or anticipated liabilities under any of the said Acts.
However , if section 20 or rule 12(3) required that a No Objection Certificate under section 3 of the Transfer of Property (Pakistan) Ordinance, IV of 1947 shall be produced then the exception made in that section in respect of agriculture land would have been mean ingful. It is further evident that requirement in section 20(3) (a) (ii) for production of a No Objection Certificate by the prescribed Income-tax authority is confined to evacuee property and operates independently of the provisions of section 3 of the Transfer of Property (Pakistan) Ordinance, 1947, which apply to all kinds of properties. The words "in terms of" in rule 12(3) must, therefore, be given the meaning that the certificate shall be in the form laid down in section 3 as provided for in the Administration of Evacuee Property Laws and not in pursuance to the authority vested by Ordinance or in the Inspecting Assistant Commissioner of Income- tax, etc. We accordingly concur with the learned Judges of the High Court that the Additional Custodian was justified in refusing to confirm the sale of agricultural land comprised in the sale deed dated 31-7-1948 in favour of Haji Siraj Ahmad for non-production of the requisite No-Objection Certificate.
16. The significance of certificate was reaffirmed in the judgment reported as "THE COMMISSIONER OF INCOME- TAX N.C.A. CIRCLE, KARACHI AND ANOTHER v Haji ASHF AQ AHMAD KHAN AND 10 OTHERS AND MUZAFF AR ALI (THROUGH HIS HEIRS)" (PLD 1973 Supreme Court 406), relevant portion whereof is reproduced hereunder as; "It appears from the foregoing that certificate from the competent Income-tax Officer is required for two purposes.
One for the valid registration of the relevant deed under the Registration Act, 1908 , and the other for enabling the Custodian to consider the question of confirmation of the transaction under section 16 of the 1949- Ordinance corresponding to section 20 of the 1957- Act. Furthermore that a further certificate from the Custodian is necessary to enable the registering officer to register a deed required to be registered under the Registration Act, 1908."
17. Some material facts require reitera tion to discredit alleged claim of the petitioners. Despite erroneous declaration extended by the Custodian, the deed of sale was not registered - nor it became eligible for registration without seeking confirmation. Alleged rights were not recorded in the revenue record for reasons best known to Predecessor-in-interest of the petitioner s. No claim qua possession or alleged rights was raised till filing of constitutional petition - W.P. No.3497 of 2010. There was no plausible justification for delayed fling of application under section 18 of Ordinance-1949 - apparently filed in the year 1954 - and deliberate withholding of information from the Custodian regarding the posses sion, control or management of evacuee property , as essentially required in terms of section 8 of Ordinance-1949. The Custodian while making declaration has not dilated upon the issue of limitation, which is crucial matter as elucidated in judgment reported as "(1) ATA ULLAH MALIK v. THE CUST ODIAN EVACUEE PROPER TY, WEST PAKIST AN AND KARACHI, (2) SARDAR BATTAN SINGH HARANAM SINGH, (3) S. ISHW AR SINGH HARNAM SINGH, (4) S. AMAR SINGH ISHW AR SINGH, RASHID MER WARI IRANI AND (6) KHUDA DAD ARDSHER IRANI" (PLD 1964 SC 236). These facts are critical in determining credibility and seriousness of alleged claim of the petitioners, which extended no support to the rights claimed.
18. In these circumstances, it is clear that declaration by the Custodian, declaring the property as non-evacuee property , in terms of orders dated 30.10.1956 and 23.01.1957 - by Deputy Custodian and Additional Custodian Evacuee Property , respectively - was illegal, void and of no legal effect. No endorsement of effectiveness or confirmation qua rights claimed transaction of transfer could be conferred, allowed or acknowledged in the absence of requisite confirmation under section 16 of Ordinance-1949. The claim of the petitioners - regarding transaction of sale dated 24.06.1947 - was devoid of any lawful basis and said transaction neither creates nor confer any right qua the property , unless statutory conditions were fulfilled. In the absence of grant of confirmation, no rights can be claimed qua the property , which remaine d evacuee for all intent and purposes and vests in the Government after the repeal of Evacuee and Settlement Laws. The order dated 30.10.1956 and 23.01.1957 are declared as void, of no legal ef fect and devoid of lawful authority .
19. The judgments referred to by learned counsel for the petitioners - qua alleged rights in the property - may constitute authorities in view of the facts and circumstances involved therein, which judgments are distinguishable and do not apply to the facts and circumstances of this case. No right can be claimed in the property merely on the basis of declaration under section 18 of Ordinance-1949, when the status of the property was evacuee for all intent and purposes. The cases of Haji Ashfaq Ahmad Khan (supra) and Commissioner of Income-tax N.C.A. Circle (supra) aptly elucidate significance of confirmation under section 16 of Ordinance - 1949.
20. Now I proceed to determine alleged rights claimed by the respondents No.7 to 12, who questioned entitlement of the petitioners and also claimed alleged rights in the property on the basis of decree of Civil Curt and bonafide purchase of allotted property . The crux of the submissions of respondents No.7 to 12 are that their predecessor-in- interest [Aslam Khan] had validly acquired by the property for consideration, who allegedly had no knowledge of order of cancellation of allotment. It is alleged that ownership rights of Aslam Khan were affirmed through decree of the Civil Court dated 23.02.1997. The elemental question is that whether a bona-fide purchaser can claim any alleged rights in the property when original allotment was cancelled being bogus, and such cancellation was unsuccessfully challenged by said allottee. The judgments referred by the learned counsel for the petitioners regarding absence of jurisdiction are distinguishable and not apt for the circumstances of this case. There is no cavil that any act in law, which is nullity , coram-non-judice or devoid of jurisdictiona l competence can be impugned before the Civil Court, including an action of the Settlement Officer passed after the repeal of Evacuee and Settlement Laws. Reference is made to the judgments reported as "PAKIST AN TRANSPOR T COMP ANY LTD. v.
WALAYAT KHAN thorugh Legal Heirs" (2002 SCMR 1470 ), "MR. MUHAMMAD JAMIL ASGHAR v. THE IMPROVEMENT TRUST , RAWALPINDI" (PLD 1965 Supreme Court 698) and "SAMI ULLAH KHAN and others v. Sheikh TAJ MUHAMMAD through Legal Heirs and others" (PLD 2015 Peshawar 175). The exception created qua the jurisdiction of the Civil Court in above-noted judgments, is applicable when the order , to be impugned before Civil Court, is coram-n on-judice, without jurisdiction, nullity in law and seeped in malafides.
Whether such an exceptional situation / circumstances existed when the deceased Aslam Khan filed a suit before Civil Court in 1995 - to challenge order of cancellation of allotment. In this case there is no question of cancellation of allotment after the repeal of Evacuee and Settlement Laws, which fact alone brings the order of cancellation within the jurisdictional domain of the hierarchy created upon the repeal of Laws. The order of cancellation of allotment was not a nullity in law, coram-non-judice or devoid of jurisdictional authority . The entitlement / locus standi of the respondents No.7 to 12 to claim alleged rights in the property was lacking, hence, Civil Court has no jurisdiction to pass decree dated 23.02. 1997. Reference is made to the ratio in decision of case reported as "FAIZUDDIN AHMAD v. MUHAMMAD YOUSAF and another" (1988 SCMR 1289 ) and "MUHAMMAD SAR WAR and 5 others v. MUHAMMAD ALI and 18 others" (2002 SCMR 829). It is not disputed that deceased Aslam Khan (predecessor-in-interest respondents No.7 to 12) could not claim any right, better or superior as vested in the original allottee, whose allotment was declared bogus and accordingly cancelled. The decree by the Civil Court suffers from jurisdictional defect and inherently devoid of any legal basis, which had illegally and erroneously conferred ownership rights on deceased Aslam Khan, without acknowledging limitations / encumbrances placed by law on the claimants alleging purchase in good faith from the persons, having no legal right to affect transfers thereof. Once allotment was cancelled, being bogus and unsuccessfully challenged by the original allottee, the Civil Court had no jurisdiction in law to adjudge claim of subsequent vendee, claiming rights of a bona-fide purchaser .
No rights qua bona-fide purchaser can be claimed under section 41 of the Transfer of Property Act 1882.
Reference is made to an illustrative judgment reported as "MUHAMMAD YAMIN AND OTHERS v. SETTLEMENT COMMISSIONER AND OTHERS" (1976 SCMR 489) and "TALIB HUSSAIN and others v. MEMBER, BOARD OF REVENUE and others" ( 2003 SCMR 549 ), relevant portion whereof is reproduced hereunder as; "6. Now the next question is as to whether petitioners who are the vendees can enjoy the protection as it has been envisaged under section 41 of the Transfer of Property Act suffice it to observe that in respect of evacuee property no such protection is available to a vende e as it has been held in the judgments (1) Kanwal Nain and 3 others v.
Fateh Khan and others (PLD 1983 SC 53), (2) Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027 ), (3) Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCMR 491), (4) Ejaz Ahmad Khan v. Chahat and others (1987 SCMR 192), (5) Mst. Resham Bibi v. Mst. Elahi Sain (PLD 1991 SC 1034 ) and (6) Sufi Zaheer Ahmad (deceased) through Legal Heir v. Chief Settlement and Rehabilitation Commissioner and others (1993 MLD 195). It is important to emphasise that petitioner 's entitlement is based upon the entitlement of Syed Nizamuddin, therefore, petitioner either to have survive or sink depending upon determination of legal status of the property which was transferred to him and as now he has failed to keep his entitlement alive, therefore, petitioner 's claim is bound to be rejected".
All post-cancellation transfers and mutations - irrespective of having its source in the judgment of the court or based on purchase of rights without knowledge - are void and of no legal effect. No rights can be claimed by the respondents No.7 to 12, in the property , either by virtue of decree dated 23.02.1997 or being a good-faith purchase for consideration, without notice. Nothing has been alleged with respect to lack of authority , power and jurisdiction of Additional Commissioner Land Revenue - having powers of Chief Settlement Commissioner Sargodha to pass the order of cancellation of allotment dated 17.05.1976. The judgments with respect to lack of jurisdiction under section 41 of Act-1957 were not relevant to the facts of the case, as the question before the Civil Court was not with regard to determination of status of the property or adjudication of any declaration by the Custodian. It is significant that the property continued to maintain its status as evacuee property - notwithstanding declaration by the Custodian, which declaration is void - and vests in Government upon cancellation of order of allotment and repeal of Evacuee and Settlement Laws, which evacuee status of the property and repeal of Laws divest Civil Court of any jurisdiction to entertain and adjudicate upon the lis.
21. The question that whether this court can exercise jurisdiction to declare rights of the respondents No.7 to 12, void and of no legal effect. This court in the exercise of judicial review jurisdictio n cannot ignore any illegal and unlawful exercise of jurisdiction by the court, merely for the reason that such decree or order is not directly challenged though subject matter of judicial review in collateral proceedings. And failure to exercise judicial review jurisdiction, when it was essentially required to rectify apparent jurisdictional defect in the proceedings, would tantamount to aiding injustice, unfairness and to perpetuate retention of illegal gains. Guidance is solicited from the ratio of decision in cases reported as "Nawab Syed RAUNAQ ALI ETC. v. CHIEF SETTLEMENT COMMISSIONER AND OTHERS" (PLD 1973 Supreme Court 236) and "THE CHIEF SETTLEMENT COMMISSIONER, LAHORE v. Taja MUHAMMAD FAZIL KHAN AND OTHERS" (PLD 1975 Supreme Court 331). Relevant portion from judgment in 'Chief Settlement Commissioner , Lahore' (supra) is reproduced hereunder: "The question whether the High Court, acting in the exercise of its writ jurisdiction should have granted relief to the respondent merely on technical grounds, assuming that the order made by the Officer on Special Duty was factually well-founded, has to be answer ed in the negative in view of the opinion repeatedly expressed by this Court in several cases, namely , Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner (1), Tufail Muhammad v. Muhammad Ziaullah Khan (2), Merajuddin v. Director , Health Servic es (3) and Wali Muhammad and others v. Sheikh Muhammad and others (4). In all these cases it has been observed that the discretionary relief ought not to be granted by the High Court to help retention of ill-gotten gains by a party even if because of any technical reason an order made by a tribunal is not found justifiable, as the writ jurisdiction is not to be invoked in aid of injustice."
22. The claim of respondents No.7 to 12 have had to be necessarily adjudicated upon - who are usurpers and illegal occupants and benefiting themselves at the expense of Government' s land - and decided while determining the lis, relating to the alleged claim of the petitioners. In view of the above, respondents No.7 to 12 are not eligible to claim any alleged rights in the property by virtue of judgment and decree dated 23.02.1997. The claim of petitioners with respect to property is already declared as void and of no legal ef fect.
23. I hold that property in question vests in the Government and same is required to be dealt with in accordance with the mandate of section 3 of the Evacuee property and Displaced Persons Laws (Repeal) Act, 1975.
24. In view of the aforesaid, this petition is without merits, incompetent and same is, therefore, dismissed. The Deputy Registrar (Judicial) is directed to send copy of the judgment to Senior Member Board of Revenue, Punjab and the Notified Officer, Sargodha Division, Sargodha, who shall take appropriate measures for safeguarding rights of the Government in the property under reference.