ENTERIOR ENTERPRISES, ODROI AND EXPORT TAX CONTRACTORS Versus PROVINCE OF SIND

1. AJMAL MIAN, C.J.‑‑The above petition is directed against the order, passed on 23‑8‑1979, by respondent No.2, assessing the rent of the flat in dispute at Rs.300 per month and ordering the payment of 85,27,750, being the arrears of rent w.e.f 16‑12‑1971 at the rate of Rs.300 per month. The brief facts leading to the filing of the above petition are that the flat, bearing No.J‑73 situated on the fourth floor in Building No. "J" on sub‑plot No.ST.6‑J/1, Block 1, A1‑Azam Square, KDA Scheme No.16, Federal "B" Area, Karachi, (hereinafter referred to as the flat) belongs to one Fazlul Quader Muhammad Amjad Ali. son of late 11oulvi Muhammad Ali (hereinafter referred to as the vendor). He entered into a sale agreement with the petition on 18‑11‑1971 agreeing to sell the aforesaid flat for a sum of Rs.19,000. The vendor after receiving the full consideration inducted the petitioner into the flat. It appears that after the Indo‑Pak War in 1971, the vendor left Pakistan. The petitioner filed an application dated 29‑5‑1975, under sections 13 and 14 of the Abandoned Properties (Taking Over and Management) Act, 1975 (hereinafter referred to as the Act). It is the case of the petitioner that the above application remained pending for adjudication, but the impugned order was passed assessing the monthly rent at Rs.300 and directing the petitioner to pay the aforesaid sum of Rs.27,750 as the arrears. The petitioner has, therefore, filed the above petition.

2. In support of the above petition, Syed Saeed-ud-din, learned counsel for the petitioner, has vehemently urged that since the vendor had sold the flat and had put the petitioner into possession after receiving full consideration, the flat could not have been treated as an abandoned property of a specified person. In furtherance of his above submission, he has relied on section 53‑A of the Transfer o Property Act. It will suffice to observe that till the target date i.e. 16‑12‑1971, no sale‑deed was executed in favour of the petitioner and, therefore, the ownership had not been transferred to the petitioner in terms of the Transfer of Property Act read with the Registration Act. Admittedly, the vendor was a specified person who left Pakistan after inducting the petitioner into possession of_ the flat, in our view, the petitioner's application should have been adjudicated upon, and if it was bona fide transaction, the same should have been confirmed.

3. Mr. S.M. Shahudul Haq, learned Standing Counsel, appearing for, the respondents, has submitted that the aforesaid application filed by the petitioner was not proper, firstly, for the reason that it was filed prior to the declaration of the flat as abandoned property, and secondly, the requisite court‑fee stamp of Rs.5 was not affixed on the application. We have noticed that under section 11 of the Act, the Administrator is obliged to issue a notification in the official Gazette containing the list of abandoned property in any area. It does not provide that the vesting of the abandoned property will not take place till the issuance of the notification. On the other hand, section 3 of the Act provides that all abandoned properties shall vest and shall be deemed always to have vested in the Federal Government on and from the sixteenth day of December, 1971. It is, therefore, evident that the petitioner's above application was competent under sections 11 and 12 of the Act on the date when it was presented. However, the defect as to the non‑payment of the court‑fee stamp of Rs.5 could have been rectified by asking the petitioner to affix the stamp.

4. In our view, it will be just and proper to allow the petitioner to affix the above court‑fee stamp on the above application and thereafter the same will be decided by the respondent 1 after notice to the petitioner and after providing reasonable opportunity, till then the. impugned demand for the alleged arrears of rent will not be enforced (i.e. till the adjudication upon the above application).

5. The .petition stands disposed of in the above terms, with no order as to costs.

6. A.A./R‑77/K Order accordingly