C.M.No.3 AND 4 OF 2025.
These applications seek permission to place certain documents on record and dispensation thereof, which documents are taken on record subject to all just and legal exceptions.
MAIN CASE
2. Instant Constitutional petition assails order dated 08.06.2015, whereby respondent No.1 [Member Judicial-III/Notified Officer, Board of Revenue Punjab) confirmed the allotment of Gul Muhammad, predecessor of respondents, made vide PTO No.791467 dated 26.07.1961 and directed for issuance of transfer order of the property under reference. Order was passed on the application of successors of Gul Muhammad.
Instant petition was instituted in March 2018 which manifest delay of almost three years in filing petition, which on its face attracts laches.
Since petition is pending since long and otherwise raises substantial legal question(s), therefore, I proceed to decide it on merits.
3. Facts essential for understanding the context of present litigation are that application of successors of Gul Muhammad was taken for hearing / consideration by respondent No.1 in light of the observations noted in the order dated 27.11.1988 of Hon ble Supreme Court of Pakistan while dismissing Civil Appeal No.220 of 1978, which are reproduced hereunder: "During arguments of learned counsel for the appellant, it was submitted that the matter was still pending adjudication before the Settlement Authorities. If it is so, then it would be open to the appellant to avail of such pleas which the law entitles him to raise and the authority concerned shall decide the same in accordance with law".
4. Muhammad Hassan and Muhammad Saleem were alleged joint owners of the property. Share of Muhammad Saleem was auctioned for execution of mortgaged decree and same was purchased by a Non-Muslim. Upon partition, declaration was sought for declaring of the property as non- evacuee property, which declaration was made Deputy Custodian, Evacuee Property vide order of 18.11.1949, which was confirmed by the Custodian on 16.02.1950. In due course property was allotted to one Gul Muhammad and it was confirmed by Deputy Settlement Commissioner on 26.07.1961, whereafter allottee remained unsuccessful before the authorities against orders dated 18.11.1949 and 16.02.1950. Gul Muhammad brought civil suit but said proceedings ended in failure in wake of the jurisdictional bar envisaged in terms of section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957, and Civil Appeal No.220 of 1978 clinched this jurisdictional question - however observation was recorded with reference to pending application with the Settlement Authorities. And respondent No.1 picked up the issue from there and decided the matter. Hence, this petition.
5. Learned counsel for petitioner submits that declaration by the Custodian that property was non- evacuee was conclusive, which past and closed transaction cannot be re-visited and respondent No.1 had no jurisdiction to reverse or set-aside the declaration, since he was not exercising the jurisdiction of Custodian and nor such jurisdiction could be otherwise assumed after promulgation of Evacuee Property Displaced Persons Laws (Repeal) Act 1975 (Act of 1975).
On previous dates of hearing, learned counsel of the petitioner is asked to differentiate the factual narration in the decision of Supreme Court, dated 27.11.1998 and to controvert adverse findings recorded at paragraph 13 of the order of respondent No.1, who sought time to produce documents of title to disprove that ownership of Hassan and Saleem ended by virtue of the transfers / mortgage decrees, referred in the orders of the Supreme Court of Pakistan and respondent No.1.
Permission to produce documents was allowed, which pertained to the year 1912 but none of it affirm that ownership of the property was in the name of Hassan or Saleem, immediately before partition - none of the documents controvert the factum of transfers / mortgage decree(s) and acquisition by Non-Muslims. Relevant portion from paragraph 13 of the order of respondent No.1 is reproduced for ease of reference and understanding: "The instant case has been taken up in pursuance of above-mentioned order of August Supreme Court of Pakistan dated 17.11.1988. I have gone through the property file and record available in the file. Before partition, the facts of the case are that Muhammad Hassan and Muhammad Saleem, the predecessor of present respondents was owner of impugned property No. i.e. 1326-B Bhatti Gate, Lahore. Muhammad Saleem sold out his share to Ram Dass Kidhar Nath Bankder in year 1937-38 and Muhammad Hassan, predecessor of present respondents mortgaged his share in favour of Balaki Mal and Sons Bankers, Due to nonpayment of mortgaged money, Balaki Mal and Sons Bankers filed a civil suit before Main Jalal-ud-Din, Civil Judge, Lahore in year 1937, which was decreed and property was put into auction and purchased by Balaki Mal. This fact was established that the whole of the property went in the possession of evacuee owner and was not Muslim Property. This fact has also been verified from assessment certificate of Municipal Corporation for the year 1950, which shows that the owner of the property was Balaqi Mal. Ram Das and Sons and Gul Muhammad, predecessor of present petitioner. After partition, Gul Muhammad, predecessor of present petitioner migrated to Pakistan and enters in the impugned evacuee property. On promulgation of Settlement Act, 1958, Gul Muhammad, predecessor of present petitioner field CH form for allotment of impugned property and same was allotted to him vide PTO No.791467, dated 26.07.1961, Transfer price of impugned property was assessed as Rs.8640/-, which was adjusted through CB No.355289/LHR-III/11018. The said CB was issued to Gul Muhammad, predecessor of present petitioner in pursuance of order dated 25.06.1960 passed by Claims Officer, Lahore To verify such fact, Verification Clerk was summoned, who produced register CSC-V Volume No. B-2, page No.78, which shows that transfer price and settlement fee was adjusted through above referred CB. The title document of impugned property could not be issued in favour of predecessor of present petitioner due to the reason that Muhammad Hassan, predecessor of present respondents obtained order dated 18.11.1949 passed by Deputy Custodian declaring therein that the half of the property is Muslim Property. The actual fact is that all of the property is evacuee property and predecessor of present respondents was owner of the impugned property till 1937 arid same was purchased by Balaki Mal and Sons Bankers and Ram Dass Kidhar Nath and Sanad Sultan was issued in their favour".
6. On merits petitioner had no case. Now I deal with jurisdictional question raised that respondent No.1 had no authority to confirm allotment of Gul Hassan, which declaration made vide impugned order had the effect of rendering the declaration of the Custodian ineffective and of no legal effect.
7. Submissions are misconceived. Firstly, respondent No.1 had assumed and exercised jurisdiction in light of the observations recorded by Supreme Court of Pakistan in its order of 27.11.1998. There is no cavil that why those observations cannot be construed as a decision in terms of sub-section (2) of section 2 of Act of 1975, rendering status of proceedings before respondent No.1 as pending proceedings", thereby extending requisite jurisdiction to respondent No.1. There is another aspect of the matter. Supreme Court of Pakistan dismissed Civil Appeal on 27.11.1998, that decision was regarding merits of the claims or allotments, nor was it adjudication of the legality of the declaration by the Custodian, but those proceedings were concerned with the scope of jurisdiction of the Civil Court in context of section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957, which had barred the jurisdiction of the Civil Court.
8. Now scope of jurisdiction of respondent No.1 is discussed. In terms of sub-section (1) of section 2 of Act of 1975 various laws were repealed which included repeal of Pakistan (Administration of Evacuee Property) Act XII of 1957 - at serial (iii) thereof. Section 3 of Pakistan (Administration of Evacuee Property) Act XII of 1957 had conferred exclusive jurisdiction on the Custodian, which jurisdiction devolved / descended on respondent No.1 by operation of law. Sharper focus on sub- section (2) of Section 2 of Act of 1975 clinches the controversy. For reference sub-section (2) of section 2 of the Act of 1975, as it existed before the amendment made through Punjab Amendment Act XXI of 2022, is reproduced hereunder: "Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid".
9. It is by way of operation of law; that cases required to be heard by authorities before repeal are to be heard by the Notified Officer - jurisdiction of section 3 of Pakistan (Administration of Evacuee Property) Act XII of 1957 devolved upon respondent No.1, after promulgation of Act of 1975. It is reiterated that respondent No.1 proceeded to decide application in light of the observations of 27.11.1998 and it is not for me to declare that, pursuant to the observations in order of 27.11.1998, proceedings before respondent No.1 do not qualify the test of "pending proceedings". Scope of jurisdiction of the Notified officer is resolutely explained while deciding the case of Member BOR Punjab and another V. Mst. Siddiqan through L.Rs. (2015 SCMR 1721), relevant portion of the judgment is reproduced hereunder for better understanding:-.
"It is a settled principle of law that where a property is rightly or wrongly treated to be an evacuce property, such treatment of the property, can only be assailed through proceedings before the appropriate forum. In this case, the relevant law is the evacuee law and the competent forum created by such law namely, is the Custodian or his successor the Notified Officer. Reference is made to Azizuddin v. Muhammad Ismail (1985 SCMR 666). Reference can be made to the judgment dated 1.10.2014 of this Court passed in Civil Appeal No.514/2008 titled "Nasir Fahimuddin and others v. Charles Philips Mills son of Patrick Mills, resident of 4/2-A, Habib Ullah Road, Lahore and others"; besides the law laid down in Muhammad Din and 8 others v. Province of the Punjab through Collector and others (PLD 2003 Lah. 441), the relevant portion whereof reads as under:- "From the above, it stands settled that when there is a question about the evacuee nature and treatment of a property as such, the civil courts have no jurisdiction in the matter. In the instant case, not only that the property was treated as an evacuee property, but, the same had also been transferred and permanently settled in favour of the predecessor-in-interest of the petitioners, Noor Muhammad, predecessor-in-interest of respondent No.3, and Nazim-ud-Din. The Civil Courts in the suit, filed by the respondents, seeking declaration of their title on the basis of PTD, issued in their favour, had no jurisdiction to hold such transfer as void, because the property was non- evacuee and, therefore, its treatment and transfer to the petitioners could not be made.... Even if the property had been erroneously treated and transferred as evacuee, their right in the property, stood extinguished and they had no legitimate title, which could be passed onto Abdul Rashid by way of gift, from whom, respondents Nos.2 and 3 could acquire a lawful title, by stepping into the shoes of the original owners It has been settled till now that, where the property had been treated and transferred as an evacuee property, even if erroneously, and the non-evacuee owners did not seek their remedy under the law in force at the relevant time, their title to such property stood extinguished and they could not assert their right of ownership before the Civil Court, after the repeal of the evacuee/settlement law, on account of lack of jurisdiction."
I find no plausible ground to delve to review factual findings recorded in the order of respondent No.1 in terms whereof petitioner failed to establish their ownership of property immediately before partition. In these circumstances, no occasion arises for exercising constitutional jurisdiction.
10. Petition is without merits and same is, hereby, dismissed.