NIZAMUDDIN And 2 Others vs CHAIRMAN, EVACUEE TRUST PROPERTIES BOARD

ORDER

SAIDUZZAMAN SIDDIQUI, J.---The petitioners are seeking leave to appeal against the judgment dated 12-6-1993 rendered by a Division Bench of High Court of Sind in Constitutional Petition No.D- 45 of 1986.

2. The relevant facts of the case are that agricultural land bearing Survey No .178, Deh Gujro, Taluka Karachi (East), hereinafter to be referred to as the suit land belonging to Karachi Pinjrapore Association, was put to public auction under the provisions of Displaced Persons (Land Settlement)

Act, 1958 (hereinafter to be called as 'the Act' only) and was purchased by the petitioners on 7-4- 1962. The auction in favour of the petitioners was duly confirmed and upon payment of the transfer price a Permanent Transfer Deed dated 20-6-1962 was issued in their favour. The Chairman, Evacuee Trust Property Board under M.L.R. 57 examined the transfer of the suit land in favour of the petitioners and after hearing them held that the suit land was never declared as building site by the Chief Settlement Commissioner and therefore its transfer in favour of the petitioners was ab initio void. The petitioners were also directed to be ejected from the suit land by order dated 30-12- 1984 of the Chairman, Evacuee Trust Property Board. It appeal that before passing of the above order by the Chairman, the Settlement Commissioner on 29-3-1978 held the transfer of suit land in favour of the petitioners as illegal and accordingly declared the transfer documents issued in their favour as void. The petitioners instituted a civil suit bearing No.2080 of 1980 to challenge the validity of the order issued by the Settlement Commissioner on 29-3-1978. While the said suit was still pending, the order of Chairman of Evacuee Trust Property Board dated 30-12-1984 passed under M.L.R-57, was challenged in Constitution Petition No. D-45 of 1986 before the High Court of Sind. The learned Judges of the High Court dismissed the Constitutional petition filed by the petitioners on the ground that the order was challenged after a lapse of about to years without impleading Nisar Ahmed or Mst.Naimat Bibi who were interested in the disposal of the suit land. It was also noticed by the learned Judges of the Division Bench that the civil suit on the. Subject was already pending and as such the petition was not maintainable.

3. In seeking leave to appeal, the learned counsel for the petitioners contended before us that there was no inordinate delay in filing the petition before the High Court and in any case the petitioners had given in detail the reasons for not filing the petition earlier in the Memo. Of petition which were not at all considered by the learned Judges. It is further contended that the delay simpliciter in the circumstances of the case was not sufficient to dismiss the petition. The learned counsel next contended that the controversy involved in the Civil suit instituted by the petitioners was different from that which was raised in the Constitution petition in the High Court. It is also contended by the learned counsel that the order passed by the Chairman, Evacuee Trust Property Board under M.L.R.-57 could not be brought under challenge before the Civil Court. It is lastly contended by the learned counsel for the petitioners that to any case the property having been transferred in favour of the petitioners and a Permanent Transfer Deed having been issued on 20-6-1962, the transfer in favour of petitioners could not be cancelled on the ground that it was an evacuee trust land as such transfers were protected under section 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975. The contentions raised by the learned counsel for the petitioners require examination and we, accordingly, grant leave to appeal to consider the same.