KARACHI: High Court allows state’s plea in allotment case
By Our Reporter
KARACHI, Dec 13: A division bench of the Sindh High Court has allowed the state’s application in a land allotment case and held that the earlier order of the High Court, dated July 7, was without jurisdiction, so it recalled the said order.
The bench comprised Justice Sabihuddin Ahmed and Justice Zahid Kurban Alavi.
Justice Sabihuddin Ahmed authored the judgment in an application under section 12 (2) of CPC moved by the Member Land Utilization Board of Revenue Sindh, seeking to call in question the order of this court dated 7. 7. 1997 disposing of the above petition.
Seven petitioners had filed claims, before 1975, for allotment of properties under the Evacuee Properties and Displaced Persons Laws. Apparently no allotments were made in favour of the petitioners till the repeal of the law.
Abdul Hafeez Pirzada, counsel for the applicants, emphatically argued that 769 acres of urban land vesting in the provincial government had been fraudulently allotted by officers of the Board of Revenue to the petitioners, and through concealment of factual and legal position a stamp of legality was sought to be conferred through the impugned order.
The petitioners were displaced persons in terms of the Registration of Claims (Displaced Persons Act 1956 (since repealed by the Act of 1975) and they had submitted their claims under section 5 of the Act. Such claims in respect of urban properties and agricultural lands were verified by the authorities concerned.
Against the above back ground the first important question to be decided was whether any proceedings were pending in terms of Section 2 of the repealed Act in respect of which orders of allotment could be passed by the secretary (RS & EP) Board of Revenue.
Mr Pirzada referred to the words that “this case shall be deemed to be a case pending in the department,” contained in the orders passed by this officer. He argued that the word “deemed as” had been held in a number of pronouncements of the superior courts which presupposed that a state of the affairs did not actually exist, but it was assumed to exist through a legal fiction.
Nevertheless, Mushtaque Ahmed Memon, counsel for the petitioners, strenuously argued that pending proceedings for the purpose of section 2 (2) of the repealed Act did not necessarily mean judicial or quasi-judicial proceedings before the settlement authorities and even executive proceedings seeking allotment of properties were covered by the expression.
On the other hand, however, Mr Pirzada contended that the view that subsequent judgments of the Supreme Court, including those rendered by larger bench, did not upheld the right of a person to the allotted land after the enforcement of the repealed Act.
Under the circumstances, in view of the several subsequent pronouncements of the Supreme Court, including one delivered by larger bench, the bench observed that the observations relied upon by Mr Memon could not be treated as good law.
In any event the mere fact that certain produce index units were unutilized against the petitioners verified claims at the time of the enforcement of the 1975 Act, could not bring their case within the scope of the expression “pending” and entitled them to allotment of land.
Mr Pirzada argued that all available urban evacuee land had been declared building sites even before the enforcement of the 1975 Act, so it could not be disposed of in any manner, except open auction even under the unrepealed laws.
The bench observed that a notification to such effect was issued by the Chief Settlement Commissioner Punjab on May 16, 1973, and had been discussed in the case of Muhammad Ramzan and Ali Muhammad referred to above. Nevertheless, since no similar notification in Sindh had been brought to the court’s notice, the bench refrained from dilating on this question.
Then bench was, therefore, of the view that the order dated July 7, 1997, passed by this court was “without jurisdiction, and as such we are constrained to allow this application and recall the same order.
However, since Mr Memon wished to approach the Supreme Court and seek interim relief, the SHC ordered that this order should take effect after three weeks from the day of pronouncement, December 12, 2001.
