This judgment will dispose of Writ Petition No. 1058 of 1977 (titled Ravi Dutt Kapur v. Deputy Commissioner/Collector, Jhang) and Writ Petition No. 17645 of 1995 (titled Mst. Shahida Parveen and others v Member (Colonies) Board of Revenue and others.
2. The established facts are that Property No.159/62-63 Ward No. 15, Muslim Bazar, Chiniot District Jhang, consisting of shops and residential portion was originally owned by one Rai Sahib Lal Basant Lal Kapur. Although being Hindu, he did not migrate to India, after Pakistan was established. The Custodian Evacuee Properties vide order, dated 19-3-1953 subsequently confirmed on 15-4-1953, declared his properties as non-evacuee. The said owner died in 1960 and according to the petitioner Ravi Dutt Kapur, left behind Shrimati Parkash Wati Kapur as widow anal two sons Pritam Lai Kapur and Parshotam Lal Kapur. While the widow remained with the owner in Pakistan and died here in 1975, the two sons shifted to India and always remained there. Pritam Lai Kapur is stated to have died in India and petitioner Ravi Dutt Kapur claims to be the son of said Pritam Lal Kapur. One Dr. Muhammad Ismail claims to have remained in possession of the property as a tenant since 1939 and it was further his case that under some arrangements with the original owner he used to collect the rent from the other tenants. The said owner mostly remained in Dera Ismail Khan, where it is stated that he owned some more properties.
3. After the death of the owner in 1960, somewhere in 1969, one Gulzar Ahmad filed an application before the Collector, Jhang intimating him that with the death of the original owner the property should be taken over as escheat, since there was no case available in Pakistan to claim the property. As noted one Dr. Muhammad Ismail was intermeddling with the property and he, therefore, also joined the proceedings before Deputy Commissioner/Collector. Vide order, dated 3- 12-1975 the respondent-Collector declared the property to be an escheated property and directed that it should be taken over by Assistant Commissioner. He also directed that henceforth the rent will be recovered by the Assistant Commissioner and deposited in the treasury. He further directed that Dr. Muhammad Ismail be asked to account for the rent which he had recovered and pay the same. This order was challenged by Dr. Muhammad Ismail in Writ Petition No. 162 of 1976, which was allowed on 16-2-1976, and the case was remanded. Against the order, dated 16-2-1976 L.P.A. No.30 of 1976 was preferred but was dismissed. On remand, the Deputy Commissioner again heard the parties and vide order, dated 17-3-1976, maintained the earlier order, dated 13-12-1975, holding the property to have escheated in favour of the State.
4. Somewhere in July, 1976 the petitioner Ravi Dutt Kapur, acting through Dr. Muhammad Ismail filed an application to the Deputy Commissioner (copy Annexed "E") praying that property be desealed and handed over to him as he was the legal claimant to the same on the basis of some will, executed by the widow of deceased owner. This application was again duly heard by the Deputy Commissioner in presence of the concerned parties and vide order, dated 2-11-1976, he dismissed this application holding that there was no ground to recall the earlier order, dated 3-12-1975. It is against these two orders that the petitioner has filed this Constitutional petition, once again through Dr. Muhammad Ismail the alleged special attorney.
5. In the other Writ Petition No. 17645 of 1995, the claim of the petitioners is that for the purposes of expansion of a public library, which was established in Gulzar Palace, the 10 Marlas property of the petitioners was taken over acid demolished on the promise that the petitioner would be given 3 Marlas of land in exchange, out of the disputed property subject-matter of Writ Petition No. 1058 of 1977, after the decision of Writ Petition No. 1058 of 1977. Since the exchange in question was not being implemented, the petitioners, therefore, filed an application in the connected writ petition and were impleaded as respondents. The petitioners also have filed their own independent Writ Petition No. 17645 of 1995 praying that action of respondents in taking over and demolishing the property of the petitioner in September, 1990 be declared as illegal and in any case they be directed to pay compensation/damages as well as alternative land as promised and as agreed to by the Board of Revenue vide exchange deed vide letter, dated 27-9-1992 (Annexure "E") permitting the exchange.
6. It is stated by Rana Muhammad Sarwar, Advocate, learned counsel for the petitioner that in giving the decisions, dated 3-12-1975 and 2-11-1976, respondent-Collector/Deputy Commissioner has failed to refer to and discuss important documents, which are annexed with this petition as Annexures "G", "G-I" and "G-II". He has argued that as is shown by these documents it is wrong to state that the original owner died without leaving any heir and as such the order of escheat is bad.
7. Learned Assistant Advocate-General on the other hand has contended that petitioner is a foreign national residing in India and filed this petition through Dr. Muhammad Ismail, the so-called attorney. He stated that the aforesaid attorney died in the year 1987 and with his death the authority of Rana Muhammad Sarwar, Advocate to prosecute this petition also came to an end. He, therefore, stated that this petition be dismissed on this ground alone. On merits he has justified the impugned orders by contending that petitioner's status as heir to the original owner is highly disputed and in the absence of any adjudication from proper Court the order of escheat will have to be held as correct. Messrs Malik Saeed Hassan and Mr. Abdul Wahid Chaudhry, Advocates appearing for Mst. Shahida Pervain etc. (petitioners in connected writ petition) have also defended the impugned orders and have added that out of the escheated property, their clients are entitled to 3 Marlas in view of the letter of Board of Revenue approving the exchange. They have added that relief to them is held up for non-decision of Writ Petition No. 1,058 of 1977.
8. Petitioner claims to be the grandson of the original owner and for claiming interest in the disputed property, petitioner relies on a will allegedly executed in his favour by widow of the original owner. The will brought onrecord is unregistered document and objection of Messrs Malik Saeed Hasan and Mr. Abdul Wahid Chaudhry, Advocates is correct that unless the will is duly acted upon in this country, it cannot create any right in favour of the petitioner. The documents allegedly ignored by the Deputy Commissioner (Annexures "G", "G-I" and "G-II") are communication from one S.P. Kapur Secretary to Mr. Justice J.L. Kapur, which has been addressed to Registrar, High Court of Judicature of Lahore, Pakistan in connection of Writ Petition No. 162 of 1976, filed by Dr. Muhammad Ismail. This letter informed the Registrar that Rai Sahib Malik Basant Lal Kapur was late brother of Mr. Justice J.L. Kapur and his deceased brother left behind two sons. It was further stated that one son Pritam La-1 Kapur also died, leaving behind the petitioner as one of the heirs. "G-I" is another letter from Mr. J.L. Kapur addressed to Dr. Muhammad Ismail, which reiterates that late Rai Sahib Malik Basant Lal Kapur left two sons. Rana Muhammad Sarwar, Advocate, therefore, on this material insisted that since it has been demonstrated that he left two sons, the order of escheat is illegal.
9. The argument can only be accepted on the assumption that under the personal law of the deceased the property vested in the heirs straightway. Rana Muhammad Sarwar, Advocate did not cite any law to show this. Besides the case of the petitioner is based on the will allegedly executed by the widow of the original owner in favour of the petitioner. It is well-established that the will has to be proved, taken out and implemented. For this elaborate procedure exists in law and no such procedure has been followed nor any right is shown to have been established on the basis of the so-called will. It has also not been shown that the widow could make a valid will. Under Article 172 of the Constitution, it is the "ownerless" property, which vests in the Provincial Government. Unless the petitioner takes out and gets the alleged will implemented according to the Laws of Pakistan, he cannot be said to be the "owner" of the disputed property. The argument of Rana Muhammad Sarwar, Advocate that as soon as there is an heir the property cannot be escheated has no force, even if the petitioner is taken to be the heir of the original owner. As noted, under Article 172 of the Constitution it is the "ownerless" property, which vests in the Provincial Government and not "heirless" property. On the present record, it cannot be held that petitioner is in any manner the owner of the disputed property. The impugned orders, therefore, are valid although the learned Deputy Commissioner was not pointed out the provisions of Article 172 of the Constitution and he proceeded to take action keeping in view of the provisions of Land Administration Manual, para.8.
10. The objection of Mr. Muhammad Amin Lone, learned Assistant Advocate-General as regards the absence of authority of Rana Muhammad Sarwar, Advocate is equally valid and has to be upheld.
Dr. Muhammad Ismail attorney having died in the year 1987, the authority of Rana Muhammad Sarwar, Advocate under the signatures of Dr. Muhammad Ismail, as Special Attorney on the Wakalatnama also came to an end.
11. For all the above reasons, Writ Petition No. 1058 of 1977 is hereby dismissed, leaving the parties to bear their own costs.
12. Learned Assistant Advocate-General has not disputed that the Board of Revenue vide Annexure "E", dated 27-9-1992 has approved the exchange of land as mentioned therein. The petitioners in Writ Petition No.17645 of 1995 are, therefore, entitled to claim implementation of the exchange.
Consequently upon the dismissal of Writ. Petition No. 1058 of 1977, Writ Petition No. 17645 of 1995 succeeds to the extent of a declaration that petitioners therein are entitled to the grant of 3 Marlas of land of the disputed property mentioned in Writ Petition No. 1058 of 1977. Respondent No.2 (Deputy Commissioner, Jhahg) is hereby directed to do so within three months. In this case also the parties will bear their own costs. Writ Petition No. 17645 of 1995 stands disposed of as above.