' SABIHUDDIN AHMED, J.--Through this petition, the petitioner has called in question the order of the respondent No,1 dated 22-6-1988, upheld in appeal by the respondent No,2, vide order dated 26-7- 1990, declaring the petitioner's mother Mst. Faizunnisa as 'specified person' for the purpose of Abandoned Properties (Taking over and Management) Act, 1975 (hereinafter referred as the Act) and upholding the declaration dated 14-2-1988 declaring Plot No,F-45, Block 8, Scheme No,5 to be 'abandoned property' for the purpose of the Act.
2. According to the petitioner, she is the only daughter of late Mst. Faizunnisa (hereinafter mentioned as deceased) who was found to be the highest bidder in an open auction for sale of the aforesaid plot measuring 2000 square yards held by the Karachi Development Authority and had deposited an amount of Rs,20,500 by way of part-payment being 25% of occupancy value.
According to the terms of the auction upon approval of the bid by the auction committee bidder was required to pay a further amount of 25% of the occupancy value whereupon the K.D.A. Would issue a possession order and the bidder would be permitted to construct on the plot. Physical possession was to be delivered within thirty days of the possession order. The bidder was required to pay the remaining fifty per cent. Of occupancy value within two years of obtaining possession and upon payment of the same within the aforesaid period and raising construction within the same time or such extended time as may be granted by K.D.A. The bidder would be entitled to a lease executed in her favour. The auction was apparently held on 27-8-1970 and the amount of Rs,20,500 deposited on the same day. However, there is nothing on record to indicate whether any further steps, i,e, balance payment, issuance of allotment/possession order etc. Ever took place during the lifetime of the deceased. In fact in para. 1 of the memo. Of petition the petitioner herself has contended:-- "It was one of the conditions that if the successful bidder fails to comply with the terms i,e, full payment in time, ground rent, non-utilization fee etc. The K.D.A. Was competent to resume that plot and refund the whole amount deposited. In other words the title of this plot was not passed to the purchaser but it remained with K.D.A. Till the formalities were completed."
3. There appears no factual controversy as to aspect of the matter. According to the petitioner she alongwith the deceased left Karachi for U.S.A. In February, 1972. Where the petitioner was being educated. In March, 1974 the K.D.A. Addressed a letter to the deceased at the address of Messrs Orr Dignam & Co. Advocates, Karachi, i,e, the address mentioned by her in the bid documents requiring her to make payment of balance amount. Apparently, the K.D.A. Was informed that Mst. Faizunnisa was in U.S.A. And would not be able to arrange payment within the given time but was required to extend the date of payment by few months. In February, 1978 petitioner alongwith the deceased came to Karachi on a visit and addressed a letter to the Director-General, K.D.A. Stating that the plot had been allotted to Mst. Faizunnisa and herself being the only child of the former requested him to apprise her of the outstanding payment. Apparently nothing happened thereafter till the demise of the deceased in Dacca in 1981 and the petitioner's return to Pakistan in 1987 after completing her studies. Upon such return she addressed a letter to the Director-General, K.D.A.
Stating that the K.D.A. Had issued possession letter dated 27-3-1972 in favour of her mother. She alongwith her maternal uncle Dr. Qazi M. Lqbal was only legal heir of the latter. Her uncle had relinquished all rights and interests in her favour; that the plot was in her possession and requested that the same be transferred in her favour. Subsequently, the petitioner paid an amount of Rs,2,47,000 and a transfer letter was issued in her name on 16-11-1987, followed by transfer of possession to her. There appears no controversy on this aspect of the matter inasmuch as K.D.A. Is not a party to this petition and the respondents have not filed any counter-affidavit to rebut the statement of facts made in the petition.
4. The real controversy in the present proceedings stems from the fact that by Notification dated 14-2-1988 the respondent No,1 i,e, Abandoned Properties Organisation, Government of Pakistan declared the aforesaid plot standing in the name of the petitioner's mother Mst. Faizunnisa (deceased) as abandoned property pursuant to section 11 of the Act. The petitioner upon coming to know the same submitted a petition under section 14(1) of the Act praying that her mother was not domiciled in the territory constituting erstwhile Province of East Pakistan, and had never ceased to be citizen of Pakistan. She could neither be treated as a specified person for the purpose of the Act nor could the plot be declared as abandoned property. The Administrator Abandoned Properties by a detailed order dated 22-6-1988, after taking into consideration the material adduced in support of the petitioner's contention as well as the material against such contentions, proceeded to hold that the petitioner's mother was domiciled in the territory constituting the province of East Pakistan and the petitioner had not been able to prove that she continued to retain her Pakistani nationality. Reliance, inter alia, was placed on a letter purportedly addressed by deceased to late General Ziaul Haque indicating that she considered herself a Bangladeshi national. Consequently, the petition was dismissed and an appeal against the same was also rejected by respondent No,2 i,e, Board of Trustees Abandoned Properties vide order dated 26-7- 1990.
5. The admitted facts in respect of the controversy between the parties appear to be that the deceased was originally a resident of Calcutta (West Bengal) and migrated to Pakistan alongwith her first husband Mr. Muhammad Hussain (father of petitioner) in 1951. Apparently, she taught for some time in certain colleges in Karachi and also served as Assistant Educational Adviser under the Ministry of Education at Islamabad but spent a great deal of time outside the country in pursuit of higher education and in the course of teaching assignments. She was divorced by her husband in 1968 and thereafter, remarried Mr. Ahad Khan, a Senior Advocate and Partner of M/s. Orr. Dignam & Co. Dacca. The aforesaid Mr. Ahad Khan was unfortunately killed in Dacca in May, 1971. Thereafter, she came over to Karachi alongwith the petitioner in May, 1971, and both of them left for U.S.A. In February 1972. Latter, she visited Pakistan occasionally until her demise in Dacca in 1981.
6. To appreciate the legal contention whether the aforesaid Mst. Faizunnisa was a specified person for the purpose of Act, it may be pertinent to refer to the definition by this expression contained in section 2(t) of the Act as amended by Act XLV of 1976: "specified person means a person who, at any time before the sixteenth day of December, 1971, was citizen of Pakistan domiciled in the territories which before the said day constituted the Province of East Pakistan and who, on or after, that day has ceased or ceases to be a citizen of Pakistan, and includes a company registered in the said territories the registered office of which has not been shifted in pursuance of the Companies (Shifting of Registered Office) Ordinance, 1972 (V of 1972)."
A plain reading of the above quoted definition shows that for the purpose of treating a person as a specified person two conditions have to be fulfilled namely : --
(i) such person should be citizen of Pakistan domiciled in the territory constituting the Province of East Pakistan at any time before 16th December, 1971;
(ii) such person has on or after the aforesaid date ceased to be a citizen of Pakistan."
7. It may be pertinent to observe that though the expression "domicile", strictly speaking is relatable to a person's status as a citizen of Pakistan as observed by the Honourable Supreme Court in Muhammad Yar Khan, v. Deputy Commissioner PLJ 1980 SC 300, in the above statute however, when such expression has been used in juxta position with citizenship i,e, "a citizen of Pakistan domiciled in the territory constituting the province ", it is intended to be given a somewhat different connotation. Apparently it has been used in the context of some thing akin to permanent residence. It is settled law that while the question of citizenship of a person relates to her status and is a question of law, that of her permanent residence or ordinary residence is one of fact.
8. Indeed learned counsel for the petitioner vehemently urged that the deceased was never "domiciled" in the territories constituting erstwhile province of East Pakistan. However, a perusal of the orders passed by the two Tribunals below, clearly shows that a different conclusion was arrived at only after considering all her contentions, the material available and the fact that she was not able to furnish important documentary evidence. In any event, concurrent finding of fact recorded by the two Tribunals does not indicate that it was passed on no evidence or premised on misreading of evidence or was otherwise perverse. In the circumstances we find little justification for interference with such finding of fact in our limited jurisdiction under Article 199 of the Constitution.
9. We have, however, examined the second question i,e, whether the deceased ceased to be a citizen of Pakistan, being a question of law, in some depth. Sections 14 and 14-A of the Citizenship Act, generally deal with deprivation of status as a Pakistan citizen and under the former dual citizenship is not permitted. However, with respect to persons "domiciled" or permanent resident of the erstwhile Province of East Pakistan, specific provisions were made by way of insertion of section 16-A in the Citizenship Act, through Ordinance XI of 1978, which may be reproduced in extenso:-- "16-A. Certain persons to lose and others to retain citizenship.--(1) All persons who, at any time before the sixteenth day of December, 1971, were citizens of Pakistan domiciled in the territories which before the said day constituted the Province of East Pakistan and who--
(i) were residing in those territories on that day and are residing therein since that day voluntarily or otherwise shall cease to be citizens of Pakistan;
(ii) were residing in Pakistan on that day but after that day voluntarily migrated to those territories shall cease to be citizens of Pakistan;
(iii) were residing in Pakistan on that day and are voluntarily residing therein since that day shall continue to be citizens of Pakistan;
(iv) were residing in those territories on that day but voluntarily came to Pakistan after that day with the approval of the Federal Government shall continue to be citizens of Pakistan: ' Provided that any person referred to in clause (I) whose repatriation to Pakistan has been agreed to by the Federal Government and who have not been so repatriated before the commencement of Pakistan Citizenship (Amendment) Ordinance, 1978, shall continue to be citizens of Pakistan.
(2) Any person who, at any time before the sixteenth day of December, 1971, was a citizen of Pakistan domiciled, in the territories which before the said day constituted the Province of East Pakistan and who, being under the protection of a Pakistan Passport, was on that day, or is residing in any country beyond those territories shall not be deemed to be a citizen of Pakistan unless upon an application made by him to the Federal Government in this behalf, the Federal Government has granted him a certificate that at the date of the certificate he is a citizen of Pakistan, which before the said day constituted the Province of East Pakistan and who, being under the protection of a Pakistan Passport, was on what day, or is residing in any country beyond those territories shall not be deemed to be a citizen of Pakistan unless upon an application made by him the Federal Government in this behalf, the Federal Government has granted him a certificate that at the date of the certificate he is a citizen of Pakistan."
9-A. Incidentally the above provision has also been reproduced in the order of respondent No,1 .
Evidently deceased was residing in Pakistan on 16th December, 1971, but did not voluntarily migrate to the territories then constituting the Province of East Pakistan, as such her case is not covered by sub-clause (ii) of clause (1). However, clause (2) would indeed be applicable to her inasmuch as it speaks of a person who was on that day or is residing in any other country. According to the petitioner eversince February, 1972 the deceased was residing with her in U.S.A. As such she was required to make an application to the Federal Government and could be treated as a citizen of Pakistan only if the latter had granted her a certificate in that behalf; otherwise who could not be deemed to be a citizen of Pakistan. It has not even been alleged in the petition that she had ever applied for such certificate or such certificate was granted to her. In view of the above we are of the opinion that the deceased had ceased to remain a citizen of Pakistan and, therefore, fell in the category of specified person as defined in the Act.
10. Mr. Mahmoodul Hassan, learned counsel for the petitioner in the alternative argued that the plot in question never came to be vested in the deceased during her life time and was in fact allotted to the petitioner in 1987. As such irrespective of the status of the deceased it could not be treated as abandoned property for the purpose of the Act. The expression an "abandoned property" has been defined in section 2(a) of the Act as under:-- "(a) 'abandoned property' means any property, moveable or immovable (including share in industrial units and firms, investment, deposits, policies of insurance and all other interests and rights in or to or arising out of any such property), belonging to a specified person and includes any such property sold or transferred to, or placed under the supervision or control of, any other person on or after the sixteenth day of December, 1971, but does not include any ornaments or wearing apparel or any cooking vessels or other household effects in the immediate possession of a specified person, not exceeding a total of rupees one thousand."
11. It may be observed that the aforesaid definition does not merely speak of title to property but also covers interests and rights therein. It is by now settled law that an allottee or highest bidder in public auction acquires specific interest in a property which is legally enforceable. What is more important however, is the fact that the petitioner obtained a transfer order and possession order of the plot in question on the basis of right acquired by her deceased mother. She never purchased the plot in question herself in an open auction. Indeed she cannot be allowed to blow hot and cold at the same time claiming a right in the property through inheritance from her mother and asserting that she was an independent allottee. In her letter addressed to the Director-General K.D.A. Seeking transfer of the plot she asserted that the same was in her possession whereas in the memo. Of petition it is contended that the possession was given to her after she made payment in 1987. Our jurisdiction under Article 199 cannot be exercised in aid of inequity. In the circumstances we find no force in this contention as well and are, therefore, constrained to dismiss this petition.
The petitioner may seek refund of the amount from K.D.A., as the latter not being a party in this petition, we do not feel inclined to issue any directions in this behalf.