' AHMED ALI U. QURESHI, J.--This is a Constitutional Petition filed by the petitioner for declaration that the order passed by respondent No,2 on 14-12-1984 was without lawful authority and for permanent injunction restraining the respondents from implementing that order.
' The facts leading to this petition are that the plot in question bearing No, 781 measuring 849 sq.
Yards, in Deh Thano Tapu Malir Taluka Karachi which was Evacuee Trust Property was purchased by one Abdul Rashid from Settlement Authorities in the year 1961 and P.T.O. And P.T.D. Were issued to him. Abdul Rashid sold this plot to Mst. Khairun Nisa, who sold the plot to one Sajid Hussain, from whom the petitioner purchased the plot. All the transactions were duly entered by way of mutation in the village Form VII. This plot of land was sold by the Settlement Authorities as 'Sikini' plot to the original transferee/ purchaser. After the promulgation of M.L.R. 57, on reference from respondent No,3, notices were issued to the petitioner by respondent No,2 on 25-10-1984. Respondent No,2 by his impugned order, dated 14-12-1984 declared the land in question agriculture land and cancelled the transfer of the said plot to the petitioner holding the possession of the petitioner as illegal and unauthorised and directed that the said property be restored to Evacuee Trust Property Board free of all encumbrances.
3. We have heard the learned counsels for the parties at length.
' The facts of the case appear to be admitted by the parties. Only dispute is about the legality of the impugned order.
4. The order has been passed by the respondent No,2 under para.
(1) of the M.L.R. 57 which reads as under:-- '
1. Martial Law Administrator, Zone 'C' or any other person or authority, authorised by the Chief Martial Law Administrator in this behalf, may, if he or it is of opinion that any part of the agricultural land specified in the Schedule to this Regulation and belonging to the defunct Evacuee Trust so specified and now vesting in the Evacuee Trust Property Board has been acquired, entered upon or taken possession of by any person illegally or by fraud, misrepresentation or otherwise by order cancel such acquisition or as the case may be order the ejectment of such person and further order that the said property shall forthwith be restored to the Evacuee Trust Property Board free from all encumbrances."
3. It will be seen that the authority can pass an order under the said provision, provided the land is agricultural land belonging to the Evacuee Trust Property Board and has been acquired or entered upon or taken possession of by any person illegally or by fraud, misrepresentation or otherwise.
6. The learned respondent No,2 has based his opinion that the land is agricultural land on the ground that though land in question has been shown in the original trust document as 'Sikini land', but by reading whole document, it becomes clear that it is an agricultural land. He has further held that no notification has been produced declaring land building site by the Chief Settlement Commissioner. The learned counsel for the respondents has also advanced arguments that because land is shown in village Form VII, therefore it will be presumed that it is agricultural land.
The word Sikini is not defined anywhere, but it is generally used for the land used for the residential purposes. Village Form VII is only record of rights showing mutation in respect of all the village lands and it does not necessarily mean that it is record of rights only for the agricultural land. It may be pointed that unlike agricultural land, the area of this plot is shown in square yards also in the record.
7. The Evauee Trust Board was created by Ordinance No, XIV of 1974 and prior to that Evacuee Trust Property was also managed and disposed of by the Chief Settlement Commissioner. This Ordinance was repealed by Act XIII of 1975 (Evacuee Trust Properties Management and Disposal)
Act, 1975.
8. The learned counsel for the petitioner has produced Photostat copy of Gazette of West Pakistan, March 18, 1966 whereby the Chief Settlement Commissioner in exercise of power under section 2(3)
(b) of Displaced Persons (Land Settlement) Act, 1958 had declared certain survey numbers shown therein then incorporated in Karachi District as building sites. This list also includes the survey No, 781 which is subject-matter of this petition. It appears that this notification was not produced before the respondent No,2. In view of the Gazette notification mentioned above the finding of the respondent No,2 in 1984 that the land was agricultural land does not appear to be based on sound reasoning.
' The P.T.O. Issued by the Settlement Authorities in favour of Abdul Rashid clearly shows that the plot was Sikini land. This P.T.O. Has been produced alongwith petition as Annexure 'B' cnd is, dated 8th May, 1961. P.T.D., which is Annexure 'C' is a record of permanent transfers for house and shops and has been issued on 10-6-1965 in favour of original transferee Abdul Rashid.
10. Section 10(1) of Act No, XIII of 1975 provides:-- "Validation of certain transfers.--(1) An immovable evacuee trust property,--
(a) if situated in a rural area and utilised bona fide under any Act prior to June, 1964, for allotment against the satisfaction of verified claims; and
(b) if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claim in respect of which Permanent Transfer Deeds were issued prior to June, 1967, ' shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale-proceeds thereof shall be reimbursed to the Board and shall form part of the Trust Pool."
11.. At the relevant time the Settlement Authorities had the power to make such transfers. Admittedly the land has come in possession of the present petitioner through valid sale-deed for consideration from the purchaser of the land from original transferee. The purchase of the land by the petitioner could not be cancelled as illegal unless the transfer of the land by the Settlement Authorities to Abdul Rashid is held to be illegal. The original transfer by Settlement Authorities to Abdul Rashid has not seen held to be illegal. Under the circumstances possession of the petitioner cannot be considered as illegal or unauthorised. There is no evidence either on the record or apparent in the impugned order, that any fraud or misrepresentation was committed by the original transferee or by the petitioner on any authority. Even the original transferee has not been heard before the passing of impugned order by the respondent No,2. The petitioner, if deprived of land, can sue the original and subsequent transferees/sellers of the land for sale money and damages. The impugned order in fact adversary affects original transferee as well as the subsequent purchasers but they have not been heard before the passing of the impugned order.
This also militates against the principles of the natural justice.
12. Even if for the sake of argument it is accepted, that the land in question was agricultural land because it is mentioned in the schedule to M.L.R. 57, still the order of learned Chairman, Evacuee Trust Board does not show as to how he has come to the conclusion, that the possession of the petitioner to the property was illegal or unauthorised, in view of the fact, that the competent authority has transferred the land to the original transferee. The mere fact that the property was evacuee trust property would not make the transfer by competent authority under the provision of the law to be illegal. Even otherwise under the provision of S. 10(1) of Act No, XIII of 1975 the transfer of the land stands validated. Under the circumstances, we hold the impugned order of respondent No,2 to be without lawful authority and of no legal force and allow the petition but pass no order as to costs.