MUHAMMAD NAWAZ ABBASI, J. -- The petitioner having filed an application under Sections 13 and 14 of the Abandoned Properties (Taking Over and Management) Act, 1975 before. The Deputy Administrator Abandoned Properties in 1998 sought a declaration that plot bearing No. 9 (Old No. 292) situated in street No. 17, Sector F/7-2, Islamabad was purchased by him from the original . Allottee namely D.H. Junaid in the year 1966. The petitioner claiming lawful owner of the said plot sought direction for deletion of the plot from the pool of Abandoned Properties. The claim of the petitioner is that he purchased the plot in dispute from D.H. Junaid a Bangle Deshi in the year 1966 for a consideration of Rs.40,000/- vide agreement dated 20.10.1971. The petitioner while placing on record the special power-of- attorney of allottee and his affidavit dated 18.5.1987 duly attested by a Magistrate Ist Class, Dacca and sent to the petitioner through the Embassy of Pakistan in Dacca which were delivered to him in Pakistan through Ministry of Foreign Affairs, Government of Pakistan, Islamabad pleaded the ownership of the plot. According to the petitioner initially he applied for transfer of plot in his name to C.D.A. And subsequently on coming to know that the plot was in the pool of Abandoned Properties he approached the concerned authorities dealing the Abandoned Properties under Section 13 of the Abandoned Properties (Taking Over and Management) Act, 1975. The Deputy Administrator Abandoned Properties having scrutinized the claim of the petitioner informed him through letter dated 14.10.1998 that his application under Sections 13 and 14 of the ibid Act was not maintainable. The petitioner being aggrieved of said order preferred an appeal before the Board of Truste.e under Section 15 of the Abandoned Properties (Taking Over and Management) Act, 1975 and the Board vide order dated 18.3.1999 remanded the case to the Deputy Administrator (APO) with direction for holding an inquiry into the claim of the petitioner under Section 13(4) of the Abandoned Properties Act, 1975. In consequence to the direction of the Board of Trustees, the Deputy Administrator (APO) having hold an inquiry recommended for the confirmation of the sale of plot in favour of petitioner. However, the Board of Trustees during the scrutiny of the claim come to the conclusion that same was not genuine rejected the application of the petitioner under Section 13/14 of Abandoned Properties (Taking Over and Management) Act, 1975. The petitioner being aggrieved of the rejection of his claim filed a writ petition bearing No 140/2000 in the Lahore High Court, Rawalpindi Bench which was disposed of vide order dated 7.2.2001 in the following terms:- "4. Having heard the learned counsel for the parties, I find that more than one mixed question of law and fact need adjudication which would require decision after detail scrutiny of record but such exercise cannot possibly and conveniently be undertaken by this Court in its Constitutional jurisdiction. Unfortunately, the Appellate Authority in the present case without providing an opportunity of hearing to the petitioner decided the mixed question of law and facts against him and thereby condemned unheard. I, therefore, without expressing myself on the merits of the the order dated 25.11.2000 passed by the Board of Trustee and dispose of this petition with the direction to the Board of Trustees for decision of the application of the petitioner under Sections 13 and 14 of the Abandoned Properties (Taking Over and Management) Act, 1975 afresh after providing him proper opportunity of hearing within one month from the receipt of this order. This may be directed that pending disposal of the matter by the Board of Trustees, the property would not be disposed of in any manner adverse to the interest of the petitioner. This petition stands disposed of in the above terms."
The Board of Trustee in the light of the direction given by this Court in Writ Petition No. 140/2001 after providing a proper opportunity of hearing to the petitioner through his counsel rejected his claim with the following findings:- "10. No doubt the learned Advocate for the petitioner could safely take the protection of Section 14 in case the property in question was legally transferred to the petitioner under a valid document prior to the cut of date. Unfortunately the sale agreement on which he could claim his title is neither registered nor entered into with a competent person. It does not disclose that he had agreed to sell the plot to Mr. Hassan Jameel in the sum of Rs. 40,000/- and that Hassan Jameel had agreed to purchase it in the sum of Rs. 40,000/-. Not only this but from the perusal of the National Identity Card of Mr. Hassan Jameel it appears that he was a minor person of the age of 5 years when this alleged agreement was executed between him and Mr. D.H. Jonaid. No doubt an agreement can be made with a minor but certainly through his guardian or next friend because the minor of the age of 5 years is neither competent nor capable to make such transaction. Nowhere in the agreement there is any mention of any guardian or next friend of the minor Mr. Hassan Jameel through whom he had entered into this agreement with Mr. D.H. Jonaid and paid him the sum of Rs.
40,000/-. An agreement is always made between two parties but in this agreement there is no mention of the second party i.e. Purchaser. Besides, no address of the witnesses is mentioned in the agreement. From the perusal of the Stamp Papers on which the agreement of sale and power-of- attorney are written, it appears that both these documents were purchased from the same vendor on 20.10.1971 but surprisingly the serial number of the stamp paper on which the agreement of sale is written, is mentioned as 1420 and the serial number on the stamp paper on which the special power-of-attorney is written is mentioned as 14019, thus showing the difference of more than 13000 on the very same day on which both these stamp papers are said to have been purchased for the transaction in question.
11. The affidavit which is said to have been sworn in by Mr. D.H. Jonaid on 18.9.1987 and attested in the Pakistan Embassy Dacca shows that it was signed in Bengali language by Mr. D.H. Jonaid but on the earlier documents he did not sign in Bangali language. It is an after-thought that on the Affidavit where the signature is in Bengali language a circle has been made by a pen over that Bangali signature and on left side thereof again the same signature in English has been made, by the same person in the name of D.H. Jonaid. No clarification/reason has been assigned on the Affidavit for making this circle over the Bangali signature. The signatures in English in the name of D.H. Jonaid are shown to have been made on 20.10.1971 and 18.9.1987 but all the 3 signatures tally with each other and there appears no variation in the signatures of 20.10.1971 and 18.9.1987, which is hardly possible because with the passage of 16 years from 1971 to 1987, the signatures are bound to vary and in any case these signatures could not be free from variation after such long period of 16 years.
12. The Board has very carefully perused the documents by the petitioner. On the face of it, the documents do not appear to be genuine. Since the documents are dubious in nature and no legal transfer of title was effected in the name of petitioner prior to 16.12.1971, therefore, the property in question belonged to a specified person and vested in the Federal Government on 16.12.1971 on promulgation of the Abandoned Properties (Management) Act, 1975. Therefore, no interest is created in favour of the vendee under Section 13 or 14 in the said property.
13. In view of the afore-mentioned facts and circumstances, the claim of the petitioner is rejected.
Sd/- (M. Salee,m Siddiqui)
Chairman Board of Trustees
1. Mr. Khalid Saeed, Chairman (CDA), Sd/- Islamabad. Trustee
2. Mr. Sarfraz Ahmad Mirza, D.G. Pak. PWD, Sd/- Islamabad. Trustee"
The copy of the order under challenge was made part of the record after filing the writ petition.
2. The learned counsel for the petitioner has argued that the plot was purchased by the petitioner vide agreement dated 20.10.1971 about two months prior to the target date i.e. 16.12.1971 and that in support of the transaction of sale vide agreement in question, the power-of-attorney of the allottee and his affidavit sent by him through Embassy of Pakistan and delivered to the petitioner in Pakistan through Ministry of Foreign Affairs, Government of Pakistan were available on record. The learned counsel contended that the genuineness of. The document being not questionable, the sale of the property by the allottee in favour of the petitioner before the target date stood proved. The learned counsel submitted that the delivery of possession and the payment of sale consideration having been proved, the sale was complete and the petitioner would be deemed to be the absolute owner of the property. The learned counsel submitted that since the petitioner moved an application for transfer of plot to the CDA within the time specified tinder Abandoned Properties Act, 1975 therefore, notwithstanding the moving of formal application under Sections 13 and 14 of the Abandoned Properties Act, 1975 beyond the said period, the claim of the petitioner would be deemed to have been filed within the time and the recommendation made by the Deputy Administrator for acceptance of the claim vide order dated 25.11.2000 was unexceptional. The learned counsel submitted that the Board of Trustee without disputing the genuineness of the documents produced by the petitioner arbitrarily having ignored the recommendation of the Deputy Administrator rejected the claim of the petitioner without any lawful justification. In nut-shell the argument of the learned counsel is that the title of the property having passed before 16.12.1971 the same being owned by the petitioner was not an Abandoned Property. The learned counsel while placing reliance on /nayat Hussain Naqvi Vs. Board of Trustees and another (PLD 1980 Karachi 399) and 1987 M LD 558 submitted that the refusal of the declaration being sought by the petitioner through the rejection of this application was without lawful authority.
3. The learned counsel representing the Board of Trustee,s of the Abandoned Properties on the other hand contended that the Board of Trustee having scrutinized the claim of the petitioner in detail and provided full opportunity of hearing to him decided the matter and that the findings of fact arrived at by the Board of Trustees regarding the claim of the petitioner being not suffering from any misreading or non- reading of evidence or any other legal infirmity was not questionable. The learned counsel submitted that application under Sections 13 and 14 of the Abandoned Properties (Taking Over and Management) Act, 1975 was moved by the petitioner in 1998 i.e. With a delay of more than two decades and therefore the same was rightly rejected by the Board of Trustees. The learned counsel for the petitioner at this stage submitted that the application was made within the prescribed time under the ibid Act but the same was misplaced by the concerned officials which fact was found correct by the Deputy Administrator Abandoned Properties.
4. The learned counsel for Intelligence Bureau an official agency of the Federal Government, respondent No. 3 in the present petition contended that Intelligence Bureau was allotted the plot in question for the construction of the office building and the construction work was at an advance stage. The learned counsel submitted that notwithstanding the plot being part of the pool of the Abandoned Properties, the allotment of the same to the said respondent by the CDA under the direction of Federal Government was not questionable.
5. I have heard the learned counsel for the parties and gone through the record with their assistance. The claim relating to the bona fide transaction of sale of the property with a person who migrated to Bangla Desh, if entered before 16.12.1971 and was filed within the prescribed time would be acceptable. The petitioner admittedly did not move such an application under Sections 13 and 14 of the Abandoned Properties (Taking Over and Management) Act, 1975 till 17.8.1998. The above-said Act was promulgated on 17.2.1975 and the claim relating to the ownership of such properties was required to be filed within 30 days from the publication of Notification dated 6.4.1976 under the said Act. According to the petitioner initially he moved CDA for transfer of the plot on 5.9.1975 i.e. About six months after promulgation of Abandoned Properties (Taking Over and Management) Act, 1975 and subsequently on coming to know that the plot was being managed as Abandoned Property under the ibid Act, he moved an application to the authorities. The General power-of-attorney and affidavit of the allottee were obtained by the petitioner in 1987 i.e. after 12 years of the promulgation of the Abandoned Properties Act, 1975 and as per record of the abandoned properties the petitioner moved an application under Sections 13 and 14 of the Abandoned Properties (Taking Over and Management) Act, 1975 for the first time in 1998. This inordinate delay in obtaining the documents being relied upon and submission of application being not explainable, the mere fact that an application was moved to the CDA for transfer of plot and subsequently the documents were sent to the petitioner through the official agencies of Government of Bangle Desh and Government of Pakistan would not be a proof of genuineness of the transaction of sale. The Special power-ofattorney and the affidavit of D.H. Junaid would be of no consequence unless it would be proved that same were in the hand of allottee and that the sale book place before 16.12.1971. The attestation of those documents by a Magistrate at Dacca would also be not ipso facto an evidence of correctness of transaction of sale. The claim of the petitioner is that the plot was purchased by his father from D.H. Junaid a Bengali national before 16.12.1971 but except the agreement in question which was not proved as a genuine document no other document of title in the name of father of petitioner was produced. The agreement in question neither as such would be admissible nor would pass the title and the documents subsequently produced in confirmation of agreement in question would not establish the transaction of sale of plot. The despatch and delivery of these documents through the official agencies would also be not an evidence of genuineness of the claim of the petitioner without the proof of execution of, agreement of sale of plot before 16.12.1971 through the evidence and similarly the execution of supporting documents by the original allottee would require specific proof and in absence thereof the claim of sale of plot and the ownership of petitioner would not be proved. The essential fact relating to the genuineness of the transaction of sale having been not proved by the petitioner through the evidence, the findings of fact arrived at by the Board of Trustee being not suffering from misreading'and non-reading of evidence would not be challengeable before this Court in its Constitutional jurisdiction. The learned counsel without pointing out any illegality in the order of Board of Trustees while banking upon the recommendation of the Deputy Administrator sought reversal of findings of fact through appraisal of evidence. The controversy whether the documents in question were genuine or not and whether the plot was actually sold by D.H. Junaid to the father of the petitioner being a pure question of fact, the findings given by the competent forum in appeal even if erroneous would not be interferable by this Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
6. For the foregoing reasons, this writ petition having no substance stands dismissed.