TALIB HUSSAIN Versus SECRETARY, EVACUEE PROPERTY

This petition under Article 199 of the Constitution is filed by the petitioner to challenge the order of Deputy Custodian, dated 16‑3‑1974 and that of Custodian, dated 13‑6‑1974 by which alleged oral sales in favour of the respondents Nos. 3 to 8 were confirmed.

2. The petitioner in his petition has alleged that agricultural land bearing Survey Nos. 16, 63, 64 and 249 situated at Deh Warwala Taluka Ubauro, District Sukkur, to the extent of 8 Annas belonging to Hindu Lahru Mal were allotted under the provisions of Displaced Persons (Land Settlement) Act, 1958 to claimant Abdul Majid, against his verified claim. This land was sold by a registered pale‑deed on 17‑4‑1968 by the said claimant Abdui Majid to one Fazal Karim. The said Fazal Karim again sold this land on 6th January, 1968 to the petitioner try s registered sale‑deed. The name of the petitioner was duly recorded in the record of rights as a result of sale in his favour. However, on 24‑1‑1975 the petitioner received a notice from the Deputy Commissioner in which he was required to appear before the said officer in connection with all application filed by the respondents Nos. 3 to 8 for mutating the land in their favour. It is alleged that the petitioner then for the first time came to know that the property in dispute has been allegedly confirmed in favour of respondents Nos. 3 to 8 by the Custodian and he accordingly obtained certified copies of the orders of the Deputy Custodian as well as that of Custodian confirming the sale in favour of respondents Nos. 3 to 8.

3. Learned counsel for the petitioner contends ' that' the" order of the Deputy Custodian, dated 16‑3‑1974 and that of Custodian, dated 13‑6‑1974 are wholly without jurisdiction as on the date the property was confirmed the property was no more available to be adjudicated upon by the Custodian as it was acquired in the compensation pool under section 4 of the Displaced Persons (Land Settlement) Act, 1958. Alternatively it is contended that the property having been permanently transferred in favour of the claimant and thereafter having been sold to the petitioner, the petitioner was a necessary party in the proceedings and was entitled to a notice in the proceedings which were allegedly pending before the Custodian. It is specifically mentioned in the petition that the orders of Deputy Custodian and that of Custodian were passed without hearing the petitioner in the proceedings. Although it is mentioned in the order of the Deputy Custodian that the petitioner remained absent in spite of service of notice but the learned Addl. A.‑G. who is representing the official respondents in this case is unable to place any record before me to show that such a notice was served on the petitioner in the proceedings which culminated in the orders, dated 16‑3‑1974 and 13‑6‑1974. The point otherwise remains to be considered that whether on 16‑3‑1974 when the Custodian passed the order it still had the jurisdiction to pass such an order as there is nothing on record to show that on the date the notification was issued under section 4 of the Land Settlement Act, 1958 acquiring all evacuee lands any proceedings in respect of the property were pending before the Custodian for confirmation of the sale. I accordingly accept this petition and declare the orders passed by the Deputy Custodian and Custodian of Evacuee Property, dated 16‑3‑1974 and 17‑6‑1974 as orders without lawful authority and jurisdiction. As a result of this declaration the case will now be deemed to be pending before the notified officer who will decide the application pending before him for confirmation of sale of land in favour of the respondents Nos. 3 to 8 after notice to the petitioner. There will be no order as to costs.

4. After I dictated the order Mr. Gulab M. Rang, counsel for respondents Nos. 3 to 8 made a request that an order be passed for maintenance of status quo until the disposal of application before the notified officer. It will be open to the parties to move such an application before the authority concerned who may consider it on its merits.

H . B . T . Petition accepted.