PAKISTAN And Another vs SHAH BAHRAM IRANI
This matter arises from a petition for leave to appeal filed by Pakistan against the judgment of the Sind High Court, which had set aside federal notifications vesting the property share of an enemy in the Custodian of Enemy Property. The respondent, Shah Bahram Irani, had challenged the notifications on the ground that no opportunity of hearing was granted prior to the deprivation of property rights. The High Court allowed the petition, declaring the notifications illegal. Before the Supreme Court, the Deputy Attorney-General contended that even if a pre-decisional hearing was required pursuant to precedent, a post facto opportunity of hearing ought to be granted, expressing willingness to provide the same. The Supreme Court found the point worthy of consideration, granted leave to appeal, and directed the joinder of subsequent purchasers of the property upon application.
- Whether a notification vesting property in the Custodian of Enemy Property without a pre-decisional hearing is lawful?
- Can a post facto opportunity of hearing be granted where a pre-decisional hearing was omitted in property vesting matters?
- Whether subsequent purchasers of property subject to enemy property vesting notifications are necessary parties to the appeal?
- Rule 185(1)(b), Defence of Pakistan Rules
- Rule 185(2), Defence of Pakistan Rules
- Rule 181(1), Defence of Pakistan Rules
- Section 2, Enemy Property (Continuance of Emergency Provisions) Ordinance 1977
1. ABDUL KADIR SHAIKH, J.--Facts of this case briefly state('. Are that Mrs. Doulat Boman Irani, sister of respondent herein, Shah Behram Irani, inherited 5/21 share in property bearing Survey No. 271, Sheet A.M. Victoria Road, Karachi, after the death of her parents. On 28-8-1974 Mrs. Doulat Boman Irani gifted her share in the property to respondent through a registered deed. Later, by notification, dated 24-3-1977 the Federal Government in exercise of powers under clause (b) sub-rule (1) of rule.185 of the Defence of Pakistan Rules directed that the share of Mrs. Doulat Boman Irani, an enemy, in the Paradise Theatre, 271 Victoria Road, Karachi shall vest in the Custodian of Enemy Property for Pakistan. Mrs. Doulat Boman Irani approached the Federal Government for the discharge of the "vesting order", but her request was rejected under communication, dated 18-10- 1977. Afterwards, in supersession of the earlier notification, dated 24-3-1977, the Federal Government issued two Notifications Nos. S.R.O. 1119(1)/78 and S.R.O. No.1120(1)/78 dated 19-9-1978, under rules 185(2) and 181(1) read with section 2 of the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1977 whereby not only the gift made by Mrs. Doulat Boman Irani was declared void, but also the share of the property covered by the said gift was vested in the Custodian of Enemy Property.
2. Respondent challenged both these notifications in a Constitution Petition in the Sind High Court which was allowed by the judgment, dated 2-10-1984 on the ground that no opportunity of hearing having been granted to the respondent before she was deprived of her right in property, the notification cannot be sustained in law and are therefore, illegal, and without lawful authority.
3. Petitioners now seek leave to appeal from the judgment of the High Court, and it is inter alia submitted by Mr. Liaquat Merchant, learned Deputy Attorney-General that even if the view of the learned Judges in the High Court, which is based on the judgment of this Court in Saiyyid Abul Ala Maudoodi and others v. Government of West Pakistan and another PLD 1964 SC 673 is to prevail, they ought to have held, in terms of that judgment, that post facto opportunity of hearing should be granted to the respondent. In this behalf, learned Deputy Attorney-General states that petitioners are willing to afford such post facto opportunity of hearing to the respondent.
4. The aforesaid point amongst others raised in support of the petition deserves consideration. We, therefore, grant leave to appeal and allow the petition.
5. Mr. A.A. Fazeel, learned counsel for the respondent states that since the respondent has sold the property in question to a third party, it is necessary that the new purchasers should be joined as a party to the appeal. Learned Deputy Attorney-General states that he will apply for the joinder of the new purchaser of the property after ascertaining the name from the learned counsel for the respondent who has undertaken to do so.
6. The appeal will be heard on the present record, but it is open to the parties to file additional documents, if any.