KHALILUR REHMAN Versus ASSISTANT CUSTODIAN (SURVEY), EVACUEE PROPERTY
1. This is Miscellaneous application filed by the applicant and prayed the following relief:‑‑
2. "That the bogus Letter No. A.C.S. 21/50/221(x, dated 29th November,. 1950 issued by Zamin Hussain be withdrawn."
3. The facts leading to the application are that Property No. 284 J.M., known as 'Jiwat Ashram' Custodian No. E.P. 846, D.S. No. VII‑256/1/2 Muhammad Ali Jinnah Road, Karachi was originally owned by two brothers namely Sobhraj and Mewaram in equal shares. On 14‑4‑1948 Sobhraj in his written statement, dated 14‑4‑1948 stated that he had transferred his half share in the above plot to his brother Mewaram by way of gift. This statement was filed before the Managing Committee of Thatha Housing Society. On the basis of this statement the C.D.C. by his order, dated 27‑4‑1948 sanctioned mutation of name in favour of Mewaram. On 5‑3‑1950 one Fazal Ahmed, a tenant of Jiwat Ashram filed an application before Mr. Akbar Hussain the then Custodian and prayed therein that half of Jiwat Ashram belonging to Sobhraj be declared as evacuee property on the ground that its transfer to Mewaram was without confirmation under section 16. On 8‑7‑1950 the then Custodian declared half share of Jiwat Ashram as evacuee property on the ground that its transfer to Mewaram was without confirmation under section 16. On 6‑10‑1950 the Additional Deputy Custodian in Case No. 834/50 confirmed partition undner section 16. The operative part of the order is reproduced below:‑
4. "The partition is thus confirmed."
5. The same day Mewaram applied for copy of Deputy Custodian's order, dated 6‑10‑1950, which was issued to him by one Mr. Jaffery. Zamin Hussain the then Assistant Custodian (Survey), vide Letter No. A.C.S.21/50/2215, dated 29th November, 1950 informed Fazal Ahmed that the share of Sobhraj was confirmed by Additional Deputy Custodian and the property was treated as non‑evacuee 'property. The applicant prayed that the letter be withdrawn.
6. The respondent No. 1 filed objections and stated therein that by virtue of section 2, subsection (1), clause (iii) of the evacuee Property and Displaced Persons Laws (Repeal) Act, no fresh proceedings can either be initiated, entertained or adjudicated upon under the said repealed Act
7. Before dealing with the application on merits it has first to be determined whether such an application could be entertained on 3‑7‑1976 after promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Section 2(2) of the afore said Act which reads as under: ‑
8. "2(2). Upon the repeal of aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed there under shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to arty such authority in the absence of such repeal shall be remanded tai the officers notified as aforesaid."
9. From bare reading of the above provisions it is apparent that the application could not be entertained by the undersigned whose appointment by Provincial Government is for disposal of pending proceedings in terms of subsection (2) of section 2 of the repealing Act. In relation to cases under the Pakistan? (Administration of Evacuee Property) Act, 1957 under which only two types. of proceeding were contemplated which could be transferred and disposed of namely (1) proceedings which immediately before repeal of the enactment may be pending before the authorities appointed under the Pakistan (Administration of Evacuee Property) Act, 1957; and (2) all cases decided by the Hon'ble Supreme Court or High Court after such repeal which would have been remanded to any such authority in the absence of such repeal.
10. I am a notified officer for disposal of pending proceedings or cases remanded by the Supreme Court or High Court. The miscellaneous application had been filed after the target date, the foundation for the assumption and exercise of jurisdiction was not laid. The latest dictum of the Hon'ble Supreme Court is that even in matters of fraud, the designated authorities under the repealing Act have no jurisdiction to reopen the matters which rare transaction past and closed. Reference may be made to the case of Sher Afzal Khan and others v. Haji Raxi A dullah and others 1984 S C M R 228. It was observed:‑
11. "We do not see hour, after the repeal of these laws, the authorities under the new dispensation that came into being under the repealing statute and under the new scheme promulgated in 1976, could undertake an enquiry in order to review and reopen such past and closed transactions. Even a case of fraud could be enquired into or adjudicated upon provided jurisdiction to exercise such power survives the repeal. No such provision was pointed out by the learned counsel. The exercise of jurisdiction was, therefore, palpably coram non judice and wholly incompetent."
12. I am of the humble opinion that I cannot enquire or adjudicate withdraw the letter, dated 29‑11‑1950 issued by Zamin Hussain as the jurisdiction to exercise such power does not survive after the repeal.
13. For the foregoing reasons I am of the humble opinion that this Application No. 16 of 1976 is incompetent and no action can, therefore be taken thereon by me. The applicant may pursue his remedy before any appropriate forum if he so advised.
14. A . A . Application dismissed.