1. ' This judgment will dispose of Writ Petition No, 47 of 1977 and Writ Petition No, 75 of 1980, as the same have arisen from the same order. I will first take up Writ Petition No, 47 of 1977, filed by Sh.
2. Salahuddin Iqbal. It is mentioned by him in the Writ Petition that Rai Bahadur Roocha Ram was his grandfather. He died in 1922 and was survived by four sons, namely, Sardar Lakhmi Singh (Petitioner's father), Rai Bahadur Parma Nand, Raj Pal Singh and Lakhmi Chand. The property of Rai Bahadur Roocha Ram was thus owned by his four sons as joint Hindu Family property. It appears that meanwhile Lakhmi Singh, petitioner's father, also died and thereafter in 1922 partition of the property took place in the family resulting in an award dated 26-5-1942 which was made the rule of the Court and was duly registered at Abbottabad. According to the award, certain houses, shops and agricultural land fell to the share of the petitioner and his brother Jatinder Singh in equal shares. The widow Mst. Amar Kaur of Sardar Lakhmi Singh (i. e. The mother of the petitioner) was also then alive but as according to the Hindu Law, the widow could not inherit in the property of her late husband, Mst. Amar Kaur was not awarded any property.
3. ' In the events that happened, in 1947, this Sub-Continent was partitioned into India and Pakistan as Independent States, therefore, Hindus living here left for India. According to the petitioner, he had already secretly embraced Islam in 1945 and before conversion to Islam his Hindu's name was Harinder Singh and was named Salahuddin lqbal, He disclosed his conversion as Muslim for the first time in the month of Ramazan in 1947. It is stated by the petitioner that he had kept it secret and it was known to his family members when they were leaving for India. His family members persuaded him to accompany them to India. His mother Mst. Amar Kaur had already gone to India, therefore, he at the suggestion of his family members accompanied them to India in order to secure the consent of his mother about his conversion to Islam. The petitioner adds that he returned to Pakistan in 1948 leaving his mother greatly displeased and upset. On his return to Pakistan he made an application before the Hon'ble Acting Custodian, Evacuee Property for the restoration of his share in the joint Hindu Family Property. Late Mr. Justice Sh. Muhammad Shafi, the then acting Custodian of N.-W. F. P. Heard the application and passed an order on 13-2-1950 directing that the petitioner be given possession of his share in the property of the joint Family and the rest be given to him on lease. Copy of this order is Annexure 'A' to this petition and the relevant portion therefrom may be reproduced.
4. "Strictly speaking Salahuddin Iqbal went to India on account of setting up of the Dominions of Pakistan and India or on account of communal distrubances or the fear of such distrubances ; and is therefore, an "evacuee" within the meaning of "section 2, subsection (2)". The property can only be restored to him under section 19 of the Pakistan (Administration of Evacuee Property)
5. Ordinance, 1949. He has, however, urged that he never went to India of his own free will and accord, but on the other hand went there under the pressure of his mother and his brother. He returned to Pakistan in June, 1948, and since then has been living here. I have been given to understand by Professor Abdul Rahim whom I have no reason to doubt that Salahuddin has married in a Muslim family in the N.-W. F. P. Under the circumstances, I think he should be given the possession of his share of his father's property and the lease of the share of his brother and mother in the said property. If he has genuinely embraced Islam and honestly wishes to settle down as its true and loyal citizen, I do not see any reason why should we be so hard on him. I, therefore, order that Salahuddin should be given possession of his shale in the property and the rest, if there is no serious objection, should be given to him, on lease."
6. ' It is to borne in mind that the learned Acting Custodian has not doubted the petitioner's claim that he has embraced Islam in 1945. His order shows that he was influenced by his claim and in the circumstances he passed an order that possession as regards his share in the property left by his family be given to him ; his brother and mother were also held owners in the property of his father and it was directed that if there was no serious objection, the rest of the property be given to him on lease.
7. ' It appears that in compliance with the order of the learned Acting I Custodian, the Government passed and sent it to the Deputy Custodian Hazara for implementation, vide memo. Dated 24-2- 1960, Copy is Annexure 'B'. It further appears that for one reason or the other the above orders of the Acting Custodian and the Provincial Government could not be implemented and according to the petitioner considerable portion of joint s family property was then in occupation of the refugees and he was in possession of such property already in his possession for over 26 years.
8. ' Meanwhile, in 1956, Major Sarwar Hussain, Deputy Settlement Commissioner Hazara, in the exercise of his suo motu powers, summoned him to satisfy him about the property in his possession. He accordingly appeared before him and was able to satisfy him. At the same time, the petitioner requested him that his share in the joint family property may, in compliance with the order of the learned Acting Custodian, be set apart and given possession thereof to him after partitioning the joint property. Major Sarwar Hussain, made a thorough inquiry in regard only to houses, shops and proposed a method of partition and thereafter submitted the case to the Addl. Settlement Commissioner for necessary approval, vide his report Annexure 'C'. In this report the learned Deputy Settlement Commissioner, Hazara, proposed as under :- "The property at Havelian consisting of 34 shops, 31 Balakhanas and 5 houses, mostly in occupation of refugees, will facilitate the settlement of displaced persons, if declared fully evacuee i. e. By adjusting the share of Sh. Salahuddin Iqbal in this property against his evacuee brother's share in Abbotabad and Nathia Gali property."
9. ' The learned Addl. Settlement Commissioner, however, returned the case to the Deputy Settlement Commissioner pointing oat that "the property at Havelian and Nathia Gali is not within the purview of the Compensation Act, 1958 at present". He directed the Deputy Settlement Commissioner to decide the case himself when the provisions of the Compensation Act were extended to those areas.
10. ' As the above order dealt with the built-up property, therefore, in November,- 1965, the petitioner also made an application to the Addl. Rehabilitation Commissioner Hazara, that he may, in full and final settlement of his share in the joint agricultural land, be allowed to retain as owner of 131.8 Kanals of land situated in Havelian and Malach-Nathiagali. This application after examination of the entire case was accepted and necessary orders in the form of communication were sent to the Assistant Rehabilitation Commissioner for implementation. It appears that the said orders were not executed and according to the petitioner, his efforts in this behalf did not materialise. He made an application to the Custodian of Evacuee Property, West Pakistan on 7-9-1967 praying therein as under :- "(i) that the property consisting of houses and shops may be divided according to the mode suggested by Major Sarwar Hazara Khan, Deputy Settlement Commissioner Hazara so that his share is finally separated and (ii) that he may be allowed, in full and final settlement of his share in agriculture land, to retain 131.8 Kanals of land situated in Havelian and Malach."
11. ' The above application was pending when the Province of West Pakistan was dissolved, therefore, the application was sent to the office of Custodian at Peshawar. This application was heard by the Addl. Custodian, Peshawar. As the respondents had raised objection against this application before the learned Custodian at Lahore, the learned Addl. Custodian Peshawar by his order dated 27-12-1975 Annexure `E' remanded the case to the Deputy Custodian, Hazara, for decision in the light of the following seven points formulated by him in his order.
12. "(1) To check the validity of the order of the Acting Custodian, Evacuee Property, N.-W. F. P. Dated 13- 2-1950 initiating the instant case.
(2) The actual properties of the joint family situated in Hazara District.
(3) Share of the petitioner in the joint property.
(4) The property already transferred to the petitioner by partition uptil now (Urban and Rural Properties)
(5) The land and Urban properties belonging to the joint family but transferred to refugees against their verified claims as well as to the locals in accordance with relevant Settlement Scheme.
(6) Compensation to the petitioner of the property belonging to him but transferred to the claimants and locals who have got P. T. Ds. And L. R. IL
(1) Recovery of the income of the joint family property from the petitioner who derived it."
13. ' The Deputy Custodian dealt with the application and rejected it holding that the petitioner was an evacuee and he would not be entitled to claim any property left by him in Pakistan when he went over to India in 1947, vide his order dated 14-12-1976 (Annexure `G'). It is this order by which the petitioner is aggrieved and has impugned it before this Court in the exercise of its writ jurisdiction with a prayer that the said order be declared illegal, void, without lawful authority and no legal effect and it be directed that the share of the petitioner be partitioned in terms of the order of Acting Custodian dated 13-2-1950.
14. ' We now turn' to deal with the Writ Petition No, 75 of 1980 filed by Dolu. It may be mentioned that after the writ petition of Sheikh Salahuddin Iqbal was admitted to regular hearing on 8-2-1977, he
(Dolu) applied for impleadment as respondent. His application was granted by order dated 15-11- 1977. Notwithstanding this, he (Dolu) filed a separate writ petition (i,e, W. P. No, 75/1980). His case is that he is a claimant-refugee from India and although considerable units are pending in his name but he has not yet been allotted any agricultural land. He applied under sections 10 and 14 of the Displaced Persons (Lands Settlement) Act, 1958, before the Addl. Settlement Commissioner (Land Hazara) for the allotment of land comprised in Khasra Nos. 1149, 1150, 1151, 1152, 1153, 1154, 1156 and 1157 measuring 75 Kanals and 8 Marlas situated in Havelian, Tehsil and District Abbottabad. This land, it may be pointed, is a part of the property which is the subject matter of Writ Petition No, 47 of 1977.
15. The above application was however, rejected on 14-7-1976 on the ground that his case does not come within the purview of sections 10 and 14 ibid. Meanwhile, the Deputy Custodian of Evacuee Property, Abbottabad, by his order dated 14-12-4976 held that the petitioner Saluhuddin Iqbal in Writ Petition No 47 of 1977 is an evacuee and not entitled to any land owned by him in Pakistan. It appears from para. 6 of the Writ Petition (No, 75 of 1980) that the petitioners filed allotment applications for the allotment of the land in question before respondent No,
1. He alleges that although Salahuddin Iqbal was held evacuee and was not held entitled to the land left by him in Pakistan and for that matter he was eligible for the allotment of the land in question, yet his efforts in this behalf did not fructify. His grievance is that respondent No, 1 (Addl. Settlement Commissioner Land Hazara) was not behaving well with him, therefore, he approached the Settlement Commissioner with power of Addl, Custodian Hazara Division for the transfer of his allotment applications. The Settlement Commissioner, Hazara Division, by his order dated 17-11-1976 transferred the applications from respondent No, 1 to respondent No, 3 (Deputy Settlement Commissioner Abbottabad). However, in disregard of this transfer order, respondent No, 1 dismissed his allotment applications by order dated 29-7-1980. It is in this background that the petitioner (Dolu) has filed the present Writ Petition bearing No, 75 of 1980 alleging that his claim for the allotment of the land mentioned in his writ petition for which he had applied before the Authorities was not processed according to law. It is, therefore, prayed that he may be held to be entitled to the allotment of the land in question against his pending units, that the order of respondent No, 1 (Addl. Settlement Commissioner Land Hazara) he declared without lawful authority and of no legal effect and consequently a mandatory injunction/order be issued restraining respondent No, 1 from allotting the said land to any body else.
16. ' We have heard the learned counsel for the parties in both the writ petitions and perused the various materials brought on the record. I take up first for disposal Writ Petition No, 47 of 1977 of Sh.
17. Salahuddin Iqbal. I consider that the order of the learned Addl. Custodian Peshawar dated 27-12- 1975 Annexure `E' and the subsequent order of the learned Deputy Custodian dated 14-12-1976 Annexure 'B' were wholly unlawful and of no legal effect. The learned Acting Custodian had resolved the matter as far back as 13-2-1950 by which he held that the petitioner is entitled to his share in the joint property. No step by any body was taken to question the propriety of this order, therefore, it became final. I, therefore, hold that any order passed subsequently against the spirit of the order of the Acting Custodian, dated 13-2-1950 will be coram non judice and will have no legal validity whatever.
18. ' The learned counsel for the respondent contended that at the time of the Partition of the Sub- Continent, the petitioner Sheikh Salahuddin Iqbal left for India, therefore, legally he became an evacuee and would not be entitled to any property left by him in Pakistan even if he had come back after migration to India. In support of this contention, he relied upon an authority reported in the case of Narainds and 2 others v. Pakistan, Ministry of Rehabilitation and 2 others. This authority was also relied upon by the learned Addl. Deputy Custodian, Abbottabad, vide his order dated 14- 12-1976 (Annexure 'D' to Writ Petition No, 75 of 1980 filed by Dolu). I am clearly of the view that this authority is not attracted to the facts and circumstances of this case. I have already observed that the order of the Acting Custodian dated 13-2-1950 was not challenged before any law forum, therefore, his order became final and the authorities were left with no power to frustrate its finality.
19. The learned counsel for the respondents conceded that this order was never agitated before any competent authority in appeal or revision or review or in other legal proceedings, therefore, the1 Deputy Custodian had acted without jurisdiction and his order to annul the order of the Acting Custodian dated 13-2-1950 would be coram non judice and would carry no legal sanctity.
20. ' I have already discussed the case in this judgment, while dealing with the factual position given in Writ Petition No, 47 of 1977 of Sh. Salahuddin lqbal. The clear position is that in compliance with the order dated 13-2-1950 of the Acting Custodian, the case was to come up before one authority or the other for the determination of the share due to Sh. Salahuddin Iqbal petitioner and not for the resolution of any other point. In this behalf, as already noted, the petitioner moved the Custodian of Evacuee Property, West Pakistan, through application, dated 7-9-1967, that his share in the built-up area may be finally separated according to the order of the Deputy Settlement Commissioner, Hazara, and that in full and final settlement of his share in agricultural land, he may be allowed to retain 131.8 Kanals of land situated in Havelian and Malach. This application was pending when the Province of West Pakistan was dissolved and thereafter the matter came up before the Addl.
21. Custodian Peshawar before whom on the objection of the respondents the Addi. Custodian referred the matter to the Deputy Custodian, Hazara, inter alia, on the question whether the order of the Acting Custodian, Evacuee Property, N.-W. F. P. Dated 13-2-1950, holding the petitioner entitled by his share in the joint property was valid, vide his order dated 27-12-1975. The Deputy Custodian held that the petitioner Sh. Salahuddin Iqbal on migration to India became evacuee and was not entitled to any property left by him in Pakistan in view of the authority reported in 1975 SCMR I have already observed that the order of the Acting Custodian dated 13-2-1950 was never challenged before any forum of law and as this position is not disputed by the learned counsel for the respondents, therefore, there was no justification for the Addl. Custodian Peshawar to ask the Deputy Custodian, Hazara, to check the validity of the order of learned Acting Custodian, Evacuee Property N.-W. F. P. Dated 13-2-1950. The learned counsel for the respondents conceded that the order of the learned Acting Custodian dated 13-2-1950 was in the field for implementation before various authorities and its legality was never challenged by the Department before any competent forum. It is also conceded that the petitioner Sh. Salahuddin Iqbal had approached the Custodian Department through an application for the implementation of the order of the Acting Custodian dated 13-2-1950. In this state of record there would be an occasion for the Addl. Custodian, Peshawar as well as Deputy Custodian Hazara to intereves with order of the acting Custodian which was passed in favour of the petitioner as far back as 13-2-1950.
22. ' Even otherwise, the learned Acting Custodian, by his order, dated 13-2-1950 had not held that the petitioner had migrated to India as Hindu and had returned to Pakistan as Hindu. What he has observed in this behalf is that : ".If he has genuinely embraced Islam and honestly wishes to settle down as its true and loyal citizen, I do not see any reason why should we be so hard on him. I, therefore, order that Salahuddin should be given possession of his share in the property and the rest, if there is no serious objection, should be given to him, on lease."
23. ' These observations will show that the petitioner was not doubted that he has embraced Islam. I consider that in the facts and circumstances of the case, the petitioner had already embraced Islam before he visited India at the time of Partition to see his mother. After migration, he came back to Pakistan and married a Muslim woman. In the cited authority, the appellant had not claimed that they had embraced Islam and as they had migrated to India as Hindu and had returned as Hindu, they were held evacuees. In the ' present case, this is not the position. The petitioner Sh. Salahuddin lqbal claimed having already embraced Islam and it was not brought on record that by faith he was Hindu and in order to restore his property to himself, he was professing himself to have embraced Islam. I, therefore, feel that he cannot be declared a Hindu. In the facts and circumstances of the case, I am satisfied that he had gone to India at the time of Partition as Muslim and had returned to Pakistan as Muslim.
24. Now we will have to trace the legal definition of the word "evacuee" I consider that this word is only meant for a Hindu who at the time o B Partition migrated to India and after his return from India to Pakistan a Hindu, he will not be entitled to claim that he is not an evacuee and is a Hindu citizen of Pakistan. If a Hindu had migrated to India at the time of Partition and thereafter he chose to return to Pakistan, he can be held an evacuee within the definition of section 2-A of the Administration of Evacuee Property Ordinance. In the present case, Sh. Salahuddin Iqbal petitioner has never claimed that he had migrated to India as Hindu. His claim is that he had gone to India as Muslim and had come back to Pakistan as Muslim. The preponderance of evidence is in favour of this proposition and I hold that he was not an evacuee, the moreso as this question was never agitated by the Department before any legal forum after the Acting Custodian passed his order dated 13-2-1950, which has otherwise attained finality in the circumstance of the case.
25. ' Having held that the order of the Addl. Custodian Peshawar dated 27-12-1975 and the subsequent order of the Deputy Custodian dated 14-12-1976 have no legal basis and are unlawful and of no legal effect whatever and that the order of Acting Custodian, dated 13-2-1950, is enforcible in law, the matter presents no other legal difficulty to be resolved. It is clear that the order of the Acting Custodian, dated 13-2-1950 remains, as it is, and despite various efforts by the petitioner before the concerned authorities, the share due to him in the property in question has not yet been set apart.
26. It is a matter of record that some built-up property is in possession of the petitioner Sh. Salahuddin lqbal and according to him, his share in the agricultural property has not been given to him. Equity, therefore, demands that the built up area in possession of the petitioner, if amongst the built up property, it can fall to his share, the same should be allowed to be retained by him as owner. As regards his share in the agricultural property, the petitioner is also entitled to his share in the same and it is for the authorities to determine as to what would be his share in the agricultural land so that the same should be given to him.
27. ' This, however, is not the end of the matter. The petitioner Sh. Salahuddin lqbal has claimed that apart from his share, he is also entitled to hold on lease the rest of the property according to the order of the learned Acting Custodian, dated 13-2-1950. The learned counsel for the petitioner was unable to cite y law or proposition of law to show that legally the petitioner will have the monopoly of lease over the rest of the property. Even in his order the learned Acting Custodian has made it clear that if there is no serious objection, the remaining property should be given to him on lease. If in the circumstances, this course would not be possible to be followed, the authorities are not bound to lease out to the petitioner the rest of the property.
28. ' This brings me to the disposal of Writ Petition No, 75 of 1980, filed by Dolu. His submission is that he is a non-claimant refugee and he is to be given agricultural land against his pending units and that he has filed applications before the authorities in this behalf for the allotment of agricultural land comprised in Khasras Nos. 1149, 1150 1151, 1152, 1153, 1154, 1156 and 1157 measuring 75 Kanals and 8 Marlas situated in Hevelian, Tehsil and District Abbottabad. We have noticed that this land is a part of the agricultural property which is the subject-matter of Writ Petition No 47 of 1977 filed by Sh.
29. Salahuddin Iqbal petitioner. I have already held him entitled to his share in the said agricultural property. In view of this, the petitioner Dolu cannot claim any land in the said property unless Sh.
30. Salahuddin Iqbal petitioner is given his due share therein. It may, however be observed that after determining the share of Sh. Salahuddin Iqbal, if the rest of the land in the said agricultural property is found to have been allotted to other claimant-refugees and petitioner Dolu cannot be accommodated in satisfaction of his claim in that land, he may move the authorities for the allotment of other available land.
31. ' The upshot of the above discussion is that the Writ Petition bearing No, 47 of 1977, filed by Sh.
32. Salahuddin Iqbal is allowed in terms set out in this judgment and as regards the Writ Petition bearing No, 75 of 1980 of Dolu petitioner, the same is dismissed with the observation made above.