1. ' This constitution petition has arisen from the facts and circum stances which are briefly stated as follows. The controversy between the parties is over a residential house bearing No.1-A/11 situating in Moro, District Nawabshah. The disputed house originally belonged to Lekhumal, who sold the same to his brother Nenumal under a registered sale-deed dated 26-1-1931. On death of Nenumal the said house devolved on Mst. Rukmani Bai his widow and Reloomal, his son. Following the establishment of Pakistan the disputed house was treated as evacuee property and was ultimately acquired by the Central Government alongwith other evacuee properties under section 3, Displaced Persons (Compensation and Rehhabilitation) Act, 1958. On such acquisition the evacuee interest in the said property was extinguished and vested in the Government free from all charges and encumbrances.
2. ' On application of the petitioner the said house was transferred to him and P. T. D. dated 12-3-1970 was issued in his favour. Meanwhile on 6-1-1965 Reloomal who had inherited the house in dispute from his father and who is since deceased, made an application to the Deputy Settlement Commissioner Nawab Shah for deletion of the House No.1-A/69 situating at Moro from the auction list, thinking the said house to be the same he had inherited from his father. The Deputy Settlement Commissioner by his order dated 17-5-1967 deleted the house from the auction list as being non- evacuee property. Subsequently it transpired that the correct number of the disputed house was 1- A/11 and not 1-A/69. Accordingly deceased Reloomal once again approached the Deputy Settlement Commissioner for the necessary rectification. This time the Deputy Settlement Commissioner refused to oblige him. He, therefore, took the matter in appeal to the Additional Settlement Commissioner who while dismissing the appeal directed that the Custodian authorities be moved for the desired relief.
3. ' Thereafter application was made by Reloomal and his mother to the Deputy Custodian Khairpur Division at Sukkur for declaration that the house bearing No. 1-A/11 be declared as non evacuee property. By his order dated 8-2-1977 the Deputy Custodian allowed the application, declaring that the property No.1-A/11 was non evacuee property belonging to the applicants aforesaid. This order was confirmed by the Custodian vide his order dated 29-11-1973. As the case file was not traceable the petitioner, despits his best efforts could not get a copy of the impugned orders until he was informed by letter dated 28-11-1974 that the file relating to the case was in the Office of the Custodian Evacuee Property. On receipt of such intimation he could obtain the certified copy only in November 1974. Thereafter he fell ill and was confined to bed for about 2 months. On his recovery he lost no time to file the present petition No.249/75 with prayer that the order of the Deputy Custodian dated 8-2-1974 and that of Custodian dated 28-11-1973, declaring the disputed house as non-evacuee property be set aside as being without lawful authority and of no legal effect.
4. ' After hearing the learned counsel for the parties the petition was allowed with no order as to costs by short order dated 10-12-1984 for reasons to be recorded separately. Following are the reasons in support of the short order.
5. ' The learned counsel for the petitioner has assailed the impugned orders on the following grounds:--
(1) That the said orders were passed without giving notice to the petitioner.
(2) That said orders are based on wrong assumption of facts that the disputed house has not been transferred to any ones.
(3) That the disputed house was treated as evacuee property prior to 23rd September 1958 and as such in view of S.3-A, Pakistan Administration of Evacuee Property Act 1957 it could not be declared as non-evacuee property.
(4) That while passing the impugned orders, neither Deputy Custodian nor Custodian has taken into consideration the impact of section 3-A referred to above on the merits of the cases.
6. ' Taking up the first objection of the learned counsel for the petitioner that no notice was given to the petitioner before passing of the impugned orders, it may be pointed out that according to principle of natural justice no one can be condemned unheard. Therefore no order adverse to person or property of any body can be passed without A giving him an opportunity of hearing. In the instant case the petitioner has produced two documents, namely, a true copy of Enquiry Form (Annexure-'A') from the Custodian's record showing that he has been in occupation of the disputed house since August 1948 and P.T.D. (Annexure-'B') disclosing that the house in dispute has been permanently settled on him and he has become owner of the same. Thus, the petitioner is not only shown to be occupying the house in dispute but he has also acquired proprietary rights in the said house. Therefore before passing of the impugned orders which obviously affected his rights in the said house, the petitioner was entitled to notice.
7. ' The learned counsel for the private respondents argued that since the petitioner is shown to be a party in the impugned orders it is presumed that notice must have been issued to him. He further submitted that the objection with regard to notice is belated and it cannot be permitted to be raised at this stage. No doubt the petitioner is cited as a party in both the impugned orders.
8. However there is absolutely no indication in either of the orders that notice was issued to the petitioner or in response to any such notice he or his counsel had appeared. Accordingly it would not be safe to draw presumption from bare mention of the petitioner's name in the title of the orders that notice must have been issued to him. It is true that want of notice has not been taken as a ground in the memo. of the petition. In my opinion mere omission to mention about he notice in the petition does not justify prohibiting the learned counsel for the petitioner from raising the objection with regard to notice in course of his arguments. Whether the petitioner was given notice or not before passing of the impugned order is an important issue having great bearing on decision C of the case. If it were proved that the impugned orders were passed without giving notice to the petitioner, the said orders could be struck down as being without lawful authority even on the solitary ground of want of notice. Therefore it would neither be just nor proper to place a bar on raising of that question in course of his arguments. As stated above there is absolutely no evidence to rebut the argument raised on behalf of the petitioner that no notice was given to him D before passing of the impugned orders.
9. ' As for the next argument that the impugned orders are based on wrong premise of facts, it is pertinent to refer to the relevant portion of the Deputy Custodian's order, dated 8-2-1973. It reads as under:-- "It is also proved from the record received from the Deputy Settlement Commissioner, Nawabshah that the property No.1-A/11 is not in dispute as the same has not been transferred to any one ', ' Obviously the factual position stated above in the Deputy Custodian's order is not is conformity with actual facts. The fact of the matter is that the house in dispute had been transferred to the petitioner long ago under the P. T. D. dated 12-3-1970. Thus, the learned Deputy Custodian while passing the impugned order seems to have been influenced by wrong statement of facts that the house in dispute has not been transferred to any one. Therefore, his order is defective also on the above ground.
10. ' The last point that needs to be considered is whether the disputed house was treated as evacuee property before 23-9-1958 and if so what is the effect of S.3-A of Pakistan Administration of Evacuee Property Act 1957 on such treatment of the property. It appears that section 3-A was introduced by an Amending Act promulgated on 23-9-1958. It reads as under:- "(1) Notwithstanding anything contained in this Act, no person or property treated as evacuee or as evacuee property immediately before the commencement of the Pakistan (Administration of Evacuee Property) (Amendment) Act, 1958, shall be declared to be non-evacuee or, as the case may be non-evacuee property, on or after such commencement.
(2) Nothing in subsection (1) shall apply to any evacuee in respect of whom or to any evacuee property in respect of which any action has commenced or any proceedings are pending immediately before such commencement as aforesaid for treating such evacuee as non-evacuee or such evacuee property as non-evacuee property".
11. ' As required by subsection (1) of above section the property which has been treated as evacuee property immediately before 23-9-1958 on which the above section was introduced by an amendment, cannot be declared as non-evacuee after the said amendment. Since the power to declare any property as evacuee or non-evacuee vests in Custodian under section 22 of the 1957 Act, it is for the Custodian to consider whether the property in question has been treated as evacuee property prior to the date of the amendment of 1957 Act referred to above and whether such property could be declared as non-evacuee after coming into force of the said amendment. On persual of the impugned orders, it appears that neither the Deputy Custodian nor Custodian has discussed the case from that angle. Not even a casual reference has been made by them in their orders to the treatment of the disputed property as evacuee property and the effect of section.3-A referred to above on such treatment of the property. For that purpose the aforesaid authorities have also not considered the two important documents produced by the petitioner in this case, one showing the petitioner's possession of the disputed house since August 1948 and the other disclosing the transfer of the said house to him on permanent basis.
12. ' For above reasons the impugned orders passed by the Deputy Custodian and Custodian are without lawful authority and of no legal effect and as such both the orders are hereby set aside.
13. The case is however remanded to the custodian, Evacuee Properties Sind, Karachi for fresh decision, after giving reasonable opportunity of hearing to the parties including the petitioner and keeping in view the exceptions taken to the impugned orders as discussed in the foregoing paragrahps.