JUDGMENT SABIHUDDIN AHMAD, J.- The subject matter of these proceedings appear to be a plot of land measuring 847 Sq. Yards, located in Deh Thano Tapo Malir, District Karachi East, (Now Malir).
This plot which appeared to be Evacuee Property, was purchased by one Abdul Rashid through an auction in 1961. A P.T.O, was issued in his favour and a P.T.D, was also issued subsequently on 10.6.1965. The aforesaid Abdul Rashid sold the plot to one Mst. Khairunnisa, who subsequently transferred it to one Sajjad Hussain and thereafter the petitioner bought the same from the aforesaid Sajjad Hussain. The names of all subsequent purchasers appear to have been recorded in the record of rights. In any case there seems to be no controversy on this aspect.
2. However, on 19.5.1984 the respondent No. 3 filed a reference before the respondent No. 2 under Martial Law Regulation 57 of 1983, stating that the plot in question belonged to one Desdhai Pregiy Dharamshaia Trust and by operation of law vested in the Evacuee Trust Property Board, constituted under the Evacuee Trust Properties (Management and Disposal) Act, 1975. It was alleged that the petitioner had not lawfully occupied the property belonging to the Trust and may be ejected therefrom in the exercise of powers conferred upon the respondent by Martial Law Regulation No. 57 published in the Gazette dated 22.6.1983. Notice was issued to the petitioner who appeared before the respondent No. 2. The aforesaid respondent by his order dated 14.1.1985 confirmed that the petitioner has been unable to establish that the property in question did not belong to the trust.
Moreover, it was held that though the land in question was described as sikni land in the Trust deed, reading the document as a whole indicated that it was for all intents and purposes agricultural land and its disposal by settlement authorities was illegal. Accordingly it was held that the possession of the petitioner was illegal and the property be restored to the Board.
3. The above order was assailed before this Court under Article 199 of the Constitution and this Court by judgment dated 14.10.1985 held that the land in question was Sikni and not agricultural land and therefore, the provisions of MLR-57 were not attracted to it. Moreover, it was held that the transfer in favour of the original allottee Abdul Rashed (through whom the petitioner was claiming ownership) has been admittedly effected through PTD dated 8.5.1961 and P.T.D. Dated 10.6.1965 and stood validated in terms of Section 10(1) of the Evacuee Trust properties (Management and Disposal) Act, 1975. It was further held that the original transferees having not been heard, the impugned order of the respondent No. 2 was also violative of die principles of natural justice.
Accordingly the petition was allowed and the impugned order was. Declared to be without lawful authority and of no legal effect.
4. The respondents preferred a belated Civil Petition No. 150-K of 1985 .Against the aforesaid judgment before the Supreme Court which was summarily dismissed as being barred by 79 days.
Thereafter they moved an application under Section 12(2) CPC on 26.11.1986 contending that the impugned judgment had been passed without jurisdiction which came to be dismissed by an order dated 16.5.1989. This order was called in question before the Honourable Supreme Court and after granting leave to the respondents their Lordship allowed the appeal vide judgment dated 13.1.1993 and remanded the case to this Court for fresh adjudication on merits. In the aforesaid judgment their Lordship observed that the question of jurisdiction ought to have been examined on the touchstone of Article 15 of the then Provisional Constitution Order 1981 which barred jurisdiction of the Court to examine orders passed under Martial Law Regulations and remanded the matter to this Court with a direction to consider the extent of the bar as laid down in GHULAM MUSTAFA KHAR v. FEDERATION OF PAKISTAN 1989 S.C. 26) and the provisions of MLR-57 itself.
5. At this stage it might be necessary to state that in our humble view in terms of the order of the Honourable Supreme Court we are not called upon to adjudicate the entire controversy between the parties, for the judgment dated 14.10.1985 had indeed attained finality after a petition for leave to appeal against the same had been dismissed by the Honourable Supreme Court. Indeed it could be set aside under Section 12(2) CPC which also applies to Constitutional Petitions on grounds of fraud, misrepresentation or want of jurisdiction and only the last ground had been urged by the respondents. Therefore, we are required to adjudicate the controversy on merits to a limited extent and determine whether the judgment dated 14.10.1985 suffered from want of jurisdiction. It may be observed with profound respects that while dismissing the respondents application under Section 12(2) CPC a Division Bench of this Court observed that the question of jurisdiction had not been raised before the Bench hearing the original petition. It appears from the order dated 14.10.1985 that MLR-57 was in fact found to be not applicable because the same only related to agricultural lands whereas the land in dispute in their Lordships opinion was only Sikni land. The Honourable Supreme Court however, observed that once the provisions of MLR-57 had been referred to the question of jurisdiction ought to have been considered and that MLR- 57 declares certain properties in the Schedule annexed thereto as agricultural lands and the Schedule also covers land in dispute. In the circumstances in deference to the observations of their Lordships of the Honourable Supreme Court we would hold that the land in dispute was deemed to be treated as agricultural land in view of the specific stipulation i.e the Martial Law Regulation for the purpose of the aforesaid Regulations and proceed to determine the question of jurisdiction accordingly.
6. Mr. M.G. Dastgir, learned counsel for the respondents, in support of their application under Section 12(2) CPC argued that the aforesaid Regulations conferred plenary powers upon the Evacuee Trust Property Board to take possession of the properties vesting in such Board and no order passed under the Provisions of the Regulations could be called in question before any Court including this Court under Article 15 of the Provisional Constitutional Order 1981 which was then in force. Hence this Court had no jurisdiction to entertain the petition. Learned counsel is correct to the extent that the jurisdiction of the Court was barred to examine legality of orders passed under Martial Law Regulations but in view of the law declared by the Honourable Supreme Court in GHULAM MUSTAFA KHAR V. FEDERATION OF PAKISTAN (PLD 1989 S.C. 26) which has also been referred to in the judgment of the Supreme Court remanding the case, it needs to be seen whether the impugned order strictly falls within the four corners of the Regulations. It may therefore, be pertinent to reproduce paragraph 1 of the Regulation 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 Trusts 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.
7. It may be observed that three pre-conditions for exercise of power under the above quoted provisions which required i.e.:-
(i) the land should be agricultural land specified in the Schedule to the Regulations.
(ii) It should have belonged to defunct evacuee trust so specified an<^ should now be vesting in the Board.
(i.e) It should have been acquired, entered upon or taken possession of by any person illegally or by fraud, misrepresentation or otherwise.
8. Evidently if an order of cancelling such acquisition or ejecting the person in possession is passed in respect of any land fulfilling the above conditions it would be within the scope of the powers conferred by MLR- 57 and immune from being challenged in Court. On the other had when an order is gassed in relation to land which does not fulfil the aforesaid preconditions the same would be beyond the jurisdiction conferred by MLR-57 and no ouster of jurisdiction of this Court could be claimed on the principles laid down in Khar's case. The crucial question to determine therefore, would be whether these conditions were fulfilled in the instant case.
9. With respect to the first precondition Mr. Ali Ahmad Patoli learned counsel for the petitioner argued that the aforesaid Regulation did not apply to all the land specified in the Schedule to the Regulation but only to agricultural land so specified and a finding of fact had been recorded by this Court to the effect that the land in dispute was not agricultural but. Sikni land and such finding had achieved finality. Prima facie there seems to be force in the contention particularly in view of the fact that the word agricultural prefixed to the word land indicates that not the entire land in the Schedule but only that part which is used for the purpose of agriculture is the subject-matter of the Regulation. Nevertheless, Mr. M.G. Dastgir learned counsel for the respondents contended that for the purpose of the Regulations the entire land specified in the Schedule is deemed to be agricultural land. Mr. Dastgir's contention seems to be supported by the following observations of the Honourable Supreme Court.
However, it may be noted that MLR-57 declares properties in the Schedule annexed to it as agricultural land."
In view of the above observations we are inclined to take the view that the disputed land for the purpose of application of MLR-57, ought to be treated as agricultural land and would be covered by the aforesaid MLR.
10. As regards the second precondition, it is not seriously disputed that the land did in fact belong to a defunct Evacuee Trust. The important question, however, would be whether it came to be vested in the Evacuee Trust Property Board, so as to attract the jurisdiction of the Chairman of the Board to order ejectment of a person in possession. This question in our view is required to be determined on the basis of the law under which the property vests in the Board and only if it is found that it does so vest the provision of MLR 57 would be attracted. Therefore, it will be necessary to consider the provision of the Evacuee Trust Properties (Management and Disposal) Act, 1975 and the statutes preceding it.
11. Under the two statutes relating to management and disposal, of Evacuee Properties enacted in 1958, namely, the Displaced Persons (Compensation and Rehabilitation) Act 1958, and the Displaced Persons (Land Settlement) Act, all Evacuee Properties including those attached to Religious Charitable or Educational Trust (hereinafter mentioned as Trust Properties) Vested in the Federal Government. Both these Acts envisaged creation of separate Compensation and Trust Pools and . Trust Properties were to be kept in the Trust Pools. A separate scheme for management and disposal of Trust Properties under both the Acts were framed by the Chief Settlement Commissioner under the powers delegated by the Federal Government. The Power to determine whether a particular property was part of a religious, charitable or educational trust was vested in the Chief Settlement Commissioner. In 1974 the Evacuee Trust Properties (Management and Disposal) Ordinance, was promulgated and was subsequently adopted as an Act of Parliament (Act XII of 1975). Under this Ordinance/Act all Trust Properties came to be vested in the Evacuee Trust Properties Board. Nevertheless it was found that some Trust Properties had been disposed of by the Settlement authorities under the assumption that they formed part of the Compensation Pools in the absence of a declaration by the competent authority that they were part of Trust Pools.
Therefore, Section 7 of the Act while defining the Trust Pool, proceeded to stipulate that not only properties immediately before the commencement of the Act form part of the Trust Pools under the 1958 Statutes, but also sale proceeds of any Evacuee Trust Property would also form part of the Pool. Section 10 expressly validated certain transfers made by the Settlement Authorities and it may be pertinent to reproduce the contents thereof:- "10. Validation to 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 i.e under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, 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.
(2) If a question arises whether a transaction referred to in subsection (1) is bona i.e or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(3) If it is decided that a transaction referred to in sub-section.
(1) is not bona i.e, the Chairman may pass an order cancelling the allotment or transfer of such property.
Provided that no decision under sub-section (2) or order under sub-section (3) shall be taken or passed in respect of any property without giving the person affected a reasonable opportunity of being heard."
12. From the documents and material on record there seems to be no declaration of the Chief Settlement Commissioner or any competent settlement authority to the effect that the property in question is Trust Property. On the contrary it appears that it was transferred to Abdul Rashed (predecessor of the petitioner) in 1961 as a building site through an open auction for a consideration of Rs. 27,600/-. The sale price was adjusted against his claim Book No. 121325/C477/xiv and P.T.O. Dated 28.4,1961, was issued to him. Subsequently a permanent transfer deed dated 10.6.1965 was also issued. After the issuance of P.T.D. Abdul Rashed transferred the same to Mst. Khairunnisa in 1967 and it came to the hands of the petitioner in 1970.
13. Mr, M.G. Dastgir, learned counsel for the respondent argued that the petitioner was not entitled to the protection of Section 10 on account of PTD issued on 10.6.1965, in as much as the property in question was agricultural land located in a rural area. Learned counsel pointed out that prosecution of Section it) was available to urban properties in respect whereof PTDs had been issued prior to June 1968 but as regards rural areas the target date was only June 1964.
Alternatively he contended that the power to determine whether a transfer affected by the Settlement authorities, was bom i.e or otherwise vested in the respondent No. 2 and the transfer of agricultural and as a building site under the Compensation and Rehabilitation Act was ah initio illegal and could not be deemed bona i.e. Learned counsel is correct to the extent that the date of validation under Section 10 of properties in rural areas is only upto June, 1964 and prima facie the land seems to be located in a rural area as defined in the Act.
14. The argument, nevertheless, overlooks the statutory provision whereby the requirement of issuance of permanent transfer deed is only relatable to properties in urban area in terms of clause (b) of Section 10 (1). As regards rural areas, the only requirement under clause (a) is that the property should be utilised bona i.e for an allotment against satisfaction of verified claims prior to June 1964. There is material on record to show that it was purchased by Abdul Rashed on 4.4.1961, in open auction, the auction was approved by the Settlement Commissioner on 15.4.1961 and the price was adjusted against his claim book as well as the settlement i.e on 27.3.1962. No material has been brought on record to rebut the same. It has also ben stated in the sale deed whereby Abdul Rashed transferred the property to one Khairunnisa, that the transfer was registered on 1 S.S'.
1963 Therefore, it cannot be urged that the allotment was not mace against the satisfaction of a verified claim prior to June, 1964.
15. Coming to the alternate contention of the learned counsel there seems to be no finding recorded by the respondent No. 2 to the effect that the transaction made by Settlement authorities was not bona i.e. All that has been said is that the property in question was agricultural land and could not be treated as sikni land. As discussed above, though the property in dispute may be liable to be treated as agricultural land for the limited purpose of exercising powers under MLR 57, the question whether the Settlement authorities were justified in treating it otherwise has to be determined with reference to the laws then operating. Section 2(3) of the Displaced Persons (Land Settlement) Act 1958 defines 'land' as Evacuee Property held for agricultural purposes or for purposes subservient thereto but expressly excludes such evacuee land as 'may be declared by the Chief Settlement Commissioner to be a building site. A notification declaring the property in dispute as building site dated 18.3.1966 issued by the Chief Settlement Commissioner was relied upon in the judgment dated 14.10.1985. Such notification also enjoys the protection of Section 32 of the 1975 Act. In any event the object of Section 10 appears to be to protect erroneous transfers made by Settlement authorities provided they are bona i.e. As long as the respondent No. 2 has not found the transfer in favour of the petitioner's predecessor to lack bona i.e the protection of Section 10 would be available and it cannot be assumed that the property came to be vested in the Board.
16. The third requirement of the application of MLR-57 is that possession should be entered upon illegally or by fraud, misrepresentation or otherwise. The Honourable Supreme Court in the judgment dated 13.1.1993 has read the expression otherwise as ejusdem generis i.e. Illegally and it has been explained that transfers obtained by using official position, political influence or in violation of or illegal relaxation of any law, rule, regulations, conditions or policy would be covered by the Regulations'. No such allegation has been attributed to the petitioner or any of his predecessors in interest. Therefore, the third condition for invoking the powers under MLR-57 has also not been satisfied.
17. For the foregoing reasons we find no substance in the respondent's application under Section 12(2) CPC and dismiss the same. The order dated 14.10.1985 will continue to remain operative.