1. ' This petition is directed against the order passed by Settlement Commissioner, Karachi, on 27.7- 1976 in respect of the property of Lahorimal of Kandhkot, District Jacobabad holding that since the so-called owner of these properties were in India since January, 1974, therefore, the properties were evacuee under section 3(2) (b) of Act XII of 1957 (by mistake section 2(3) (b) was mentioned by Settlement Commissioner), as these properties were not supervised by person whose authority to do so was approved by Custodian. The Settlement Commissioner further directed that application for transfer of these properties filed before 1-7-1974 should be finalised while other properties for which no application was filed should be included in the list of available properties under intimation to the Land Utilization Department of Board of Revenue, Hyderabad.
2. ' The petitioner has filed certain Annexures alongwith the petition. Annexure "A" is an order, dated 14-4-1960 passed by Deputy Custodian of Evacuee. Properties, Sukkur under section 22 of Act XII of 1957 holding that Lahorimal was a national of Pakistan and, therefore, the properties shown in chedules "A" and "B" of the application filed by Lahorimal were non-evacuee properties inherited and purchased by Lahorimal. Further direction made was that the properties have been inadvertently included in the earmarking list should now be deleted from the list by the D. SC.
3. Concerned. The said order was made subject to the approval of Custodian. Annexure "B" is the certified copy of order of Custodian of Evacuee Property West Pakistan, Karachi, dated 26-11-1960 whereby it was held that the property in dispute belonged to Lahorimal Petitioner predecessor of present petitioner) and that he was not an evacuee. The Custodian further confirmed the order, dated 14-4-1960 passed by Deputy Custodian Evacuee Properties, Sukkur.
4. ' Lahorimal is alleged to have 'died issueless in 1964 and his property devolved on his brothers Kesho Lal and Govand Ram. Govand Ram also died leaving behind Para's Ram and Pungumal as his heirs.
5. ' On 16.5-1974 Deputy Settlement Commissioner, Shikarpur and Jacobabad, at Shikarpur had considered an application of one Bharat Lal in respect of property D. S. No, 1-112 to 127 situated at Kandhkot and their deletion from Settlement record and held that the property in question was non-evacuee property belonging to late Lahorimal son of Topanmul and since the matter has been exhaustively and satisfactorily discussed in the orders of Dy. C. E. P. Sukkur, dated 14-4-1960 and Custodian. E. P. Of West Pakistan, Karachi, dated 26-11-1960, therefore, the Settlement Authorities have no jurisdiction to interfere or reverse the status of properties. And consequently the notices issued in respect of such properties were withdrawn which had been issued at the instance of present private respondents Nos. 2 and 3.
6. ' Respondents Nos. 2 and 3 made an application in 1978 before Settlement Commissioner, Sind asking that the property of Lahorimal should be transferred to them as Lahorimal had died issueless. On that application the impugned order was passed after notice to the Attorney of the petitioner namely Bharatlal. The purport of this order has been reproduced in the first para. Above.
7. ' Mr. Imam Ali G. Qazi has contended that the declaration about evacuee status of property was within the competent of Custodian and the property in dispute having been declared to be non- evacuee the Custodian of evacuee property in 1960, the same could not be treated as evacuee property in 1978 or even in January, 1974. Second submission was that after the repeal of evacuee laws from July, 1974 the Settlement Authorities had no jurisdiction to.Deal with the disputed property in any manner.
8. ' Mr. Muhammad Ali Shaikh replied that the Settlement Authorities can deal with the allotting of the property till 1974 and, therefore, the applications which were pending till 1974 could be ordered to be disposed of by the Settlement Commissioner. He further submitted that since the authority of the Attorney viz. The petitioner has not been approved by the Custodian of evacuee property, therefore, the case is covered by section 3 (2) (b) of (Administration of E. P. Act) of 1957 and hence the property could be dealt with by the Settlement Authorities. The correct position in respect of this property is that this had never been treated as evacuee property till 1-1-1957 and the Custodian of evacuee property had by a conscious order dated 26-11-1960 declared the property in question to be non-evacuee property and the owner thereof Laborimal as non-evacuee. Consequently provisions of section 3 (1) of Act XII of 1957 were fully attracted to this case and it could not be treated as evacuee property. The Settlement Commissioner has created the case as covered by section 3(2) (b) of Act XII of 1957 as a property which is occupied, supervised or managed by a person whose authorities or the rights so to do after 28-2-1947 has not been accepted or approved by the Custodian. He based his reasons on the point that the present petitioner had made a statement before him that the owner of these properties are in India since June, 1974. It was held in PLD 1974 Lah. 274 that mere vesting of property in Custodian or holding property on behalf of Custodian does not tentamount to treating such property was evacuee property and that there was vast difference between vesting of property and treating such property as evacuee property. It was further held in that case that section 3(2) (b) of A. E. P. Act XII of 1957 covers cases of only that property which is admittedly evacuee property. I respectfully agree with that view since the property in question had never been either treated as evacuee property or had not even been vested in the Custodian on 1-1-1957, therefore, it could not be treated 4 as evacuee property thereafter and section 3(2) (b) was not attracted to the facts of this case because the petitioner was the attorney of the owners of property which was not an evacuee property and, therefore, the power of attorney of the petitioner did not require approval of the Custodian. If the learned Settlement Commissioner had read the word "Property" as contained in section 3(2) (b) of Act XII of 1957 as referring to 'Evacuee Property' then this difficulty would not have arisen at all. The whole context of section 3 of Act XII of 1957 makes it very clear that the property should have been either treated as evacuee property or that action in respect of the same had commenced or any proceedings were pending before 1-1-1957 in respect of that property or such property was actually an evacuee property which was occupied or supervised or managed by a person whose authorities or right so to do after 28-2-1947 had not been accepted or approved by the Custodian.
9. No such situation was available in this case.
10. The learned Officer dealing with this case has lost sight of the facts that right from 28-2-1947 till 1964 this property was owned by Lahorimal who was a Pakistan national and was managing the property himself in Pakistan and it was on his death that his heir had come into being and their Attorney was managing the property and hence a property, which had remained as absolutely from any taint of being an evacuee property or its owner being an evacuee, could not suddenly transform itself into an evacuee property in 1974 by an order which was passed in 1978.
11. Even otherwise the Settlement Commissioner had no justification to grant the application of Bhajanmal respondent whose application had been dismissed on 6-5-1974 by a Deputy Settlement Commissioner. It is surprising as to how the respondent No, 1 has dealt with this matter as there was no application of any sort pending at the time of the repeal of the evacuee laws in July, 1974 and since there was no application pending, therefore, the same had not been saved by Act XIV of 1975 and even the Custodian could not declare this property as evacuee property, what to speak of the Settlement Commissioner who had hardly any justification for acting as the Custodian of evacuee property as he seems to have done.
12. Consequently the order of respondent No, 1 dated 27-7-1978 is declared to be without lawful authority and is hereby set aside and the Settlement Authorities or any other person acting in the capacity of a Settlement Authority is hereby restrained from interfering with the possession of the petitioner in respect of this property.