MUNAWAR ALT QADRI vs CHAIRMAN, ETP BOARD and 3 others
This matter arises from a petition for leave to appeal against a High Court judgment holding that a constitutional petition filed by a vendee had abated under Martial Law Regulation No. 57. The petitioner had purchased property from an auction purchaser, Mst. Amina Begum, who had acquired it from the Settlement Department in 1964 and obtained a Permanent Transfer Deed. Subsequently, the Chairman of the Evacuee Trust Property Board declared the property to be Waqf property under the Evacuee Trust Properties (Management and Disposal) Act 1975, and cancelled the transfer deed as bogus, rendering subsequent sales void. The petitioner challenged this order through a constitutional petition prior to the promulgation of Martial Law Regulation No. 57. The Supreme Court granted leave to appeal, observing that an order passed prior to the enforcement of Martial Law Regulation No. 57 by an authority other than one designated under the said regulation does not cause the constitutional petition to abate under paragraph 4 thereof, and that finality cannot attach to an order where factual determinations were improperly made.
- Whether a constitutional petition challenging an order passed prior to the enforcement of Martial Law Regulation No. 57 abates under paragraph 4 of the said regulation?
- Can finality attach to an order of the Chairman Evacuee Trust Property Board if the decision on facts has not been properly taken?
- Must the designated authority under Martial Law Regulation No. 57 take a decision after the enforcement of the regulation before sanctity can be pleaded for it?
- Act XIII of 1975
- Section 8, Evacuee Trust Properties (Management and Disposal) Act 1975
1. ' SHAFIUR RAHMAN, J.--The petitioner, a vendee, from an auction purchaser from the Settlement Department, seeks leave to appeal against the judgment of the High Court of Sind dated 16-12- 1986 whereby the Constitutional petition filed by him was held to have abated under Martial Law Regulation No, 57.
2. ' The admitted facts of the case are that Mst. Amina Begum (respondent No, 4) purchased plots in dispute in open auction held by the Settlement Department after proper advertisement and P.T.D.
3. Was also issued to her, in or near about 1964. Martial Law Regulation No, 57 was promulgated on the 22nd of June, 1983. It authorised the designated persons to determine whether the land specified in the Schedule had been "acquired, entered upon or taken possession of by any person illegally or by fraud, misrepresentation or otherwise" then that person had the power to cancel such acquisition or as the case may be, order the ejectment of such person and order that the said property shall forthwith be restored to the Evacuee Trust Property Board free from all encumbrances.
4. ' Prior to the enforcement of Martial Law Regulation No, 57, Mst. Amina Begum had moved the Chairman Evacuee Trust Property as required under Act XIII of 1975 for validation of transfer in her favour. Before the Chairman, the Deputy Administrator Evacuee Trust Property took up the plea that "Settlement Department and their action in auctioning the property to Mst. Amina Begum was a mala fide one and may be set aside." The report of the Settlement Department on the other hand showed that according to their records this property had not been disposed of till 1973. The Chairman Evacuee Trust Property, disposed of this tripartite controversy by an order as hereunder:- "The property is, therefore, evidently Waqf property and is declared as such under section 8 of Evacuee Trust Properties (Management & Disposal) Act of 1975.
5. ' As regards the request of Mst. Amina Begum that its transfer in her name may be validated as it had taken place much before the specified target date, it is stated that the PTD produced shows that the property was transferred to Mst.
6. Amina Begum on 30-4-1964. As against it there is the report (Exh. P/5) produced from the Settlement Record saying that the property had not been transferred till 8-10-1973. It is, therefore, obvious that if the Settlement record says that the property had not been transferred till 8-10-1973, the question of issuance of any PTD in respect of the property on 30-4-1964 cannot arise. Under the circumstances, the PTD dated 30-4-1964 appears to be a bogus one and is, therefore, hereby cancelled. The natural result of cancellation of PTD would be that the subsequent sale of this property to Mr. Munawar Ali, respondent No, 2, would also be considered as void."
7. ' It was this order of the Chairman Evacuee Trust Property Board which was challenged in the Constitutional petition and this was done prior to the enforcement of Martial Law Regulation No, 57.
8. After hearing the learned counsel for the petitioner we consider that the following questions of law, amongst others, require examination in this case:--
(i) The Order challenged in the Constitutional petition being of a date prior to the enforcement of Martial Law Regulation No, 57 could not be taken to be by an Authority designated under Martial Law Regulation No, 57, nor a challenge to it by a Constitutional Petition could be considered as a challenge filing within para. 4 of M.L.R. 57 resulting in abatement.
(ii) If the decision on facts had not been properly taken by the impugned order of the Chairman Evacuee Trust Property Board, then finality could not attach to it.
(iii) The designated Authority under the M.L.R. Had to take a decision after the enforcement of the Regulation before any sanctity could be pleaded for it.
9. ' The petition is shown by the Office to be barred by one day. Leave is being granted subject to the objection with regard to limitation. Security shall be in the sum of Rs, 5,000. Status quo with regard to property and possession over it. To be heard on present record with liberty to the parties to file additional documents.