IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ 
 
 
MR. JUSTICE UMAR ATA BANDIAL 
 
 
MR. JUSTICE FAISAL ARAB 
 
 
CIVIL APPEALS NO.2215 TO 2222 OF 2006 
(On appeal from the judgment dated 2.12.2003 of the High 
Court of Sindh, Karachi passed in Const.Ps.No.D-680/1989, 
8-D/1991, D-452/1991 and D-2474/1995) 
 
AND 
CRL. ORIGINAL PETITION NO.31 OF 2008 
(Contempt matter/disobedience of the Court order) 
 
 
 
1. 
Younus Habib etc. Vs. Imranur Rashid 
etc. 
 
In C.A.2215/2006 
2. 
Mst. Zaibun Nisa Yaqoob etc. Vs. 
Zulfiqar Ali Agha etc. 
 
In C.A.2216/2006 
3. 
Muhammad Younus Habib etc. Vs. 
M.A. Baig Ghazi (decd.) through L.Rs. 
etc. 
 
In C.A.2217/2006 
4. 
Mst. Zaib-un-Nisa etc. Vs. Ali Ahmed 
etc. 
 
In C.A.2218/2006 
5. 
Evacuee Trust Property Board through 
its Chairman Vs. Imranur Rasheed 
(decd.) through L.Rs. etc. 
 
In C.A.2219/2006 
6. 
Evacuee Trust Property Board through 
its Chairman Vs. Zulfiqar Ali Agha 
(decd.) through L.Rs. etc. 
 
In C.A.2220/2006 
7. 
Evacuee Trust Property Board through 
its Chairman Vs. M.A. Baig Ghazi 
(decd.) through L.Rs. etc. 
 
In C.A.2221/2006 
8. 
Evacuee Trust Property Board through 
its Chairman Vs. Ali Ahmad etc. 
 
In C.A.2222/2006 
9. 
Ali Ahmed etc. Vs. NAB through its 
Chairman etc. 
In Cr.O.P.31/2008 
 
 
For the Appellant(s): 
(In CAs 2215-2218/06) 
Mr. Khalid Anwar, Sr. ASC 
Mr. M. Afzal Siddique, ASC 
Mr. Mehmood A. Sheikh, AOR 
Assisted by: 
Mr. Yousaf Nasim, Advocate 
Mr. Hamid Ahmed, Advocate  
Raja Ikramullah, Advocate 
CAs 2215-2222/06 
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Mr. A.I. Chundrigar, ASC 
Mr. Mehr Khan Malik, AOR 
Mr. Shehzad Sarwar, Manager 
Litigation, HBL 
 
(In CAs 2219-2222/06) 
Hafiz S. A. Rehman, Sr. ASC 
Raja Abdul Ghafoor, AOR 
Assisted by: 
Sheikh Rizwan Nawaz, Advocate 
 
 
(In Cr.O.P.31/08) 
 
Ch. Aitzaz Ahsan, Sr. ASC 
Mr. Gohar Ali Khan, ASC. 
Syed Feisal Hussain Naqvi, ASC 
Assisted by: 
Ms. Zonaira Fayyaz, Advocate 
 
 
For the Respondent(s): 
 
For private Respondents 
i.e. members of WCHS 
Ch. Aitzaz Ahsan, Sr. ASC 
Mr. Gohar Ali Khan, ASC 
Syed Feisal Hussain Naqvi, ASC 
Syed Rifaqat Hussain Shah, AOR 
 
 
For WCHS: 
Mr. I. H. Zaidi, ASC 
 
 
For KDA: 
 
For ETPB: 
 
 
For NAB: 
 
 
For Govt. of Sindh: 
 
For the Federal Govt.:  
Syed Jamil Ahmed, ASC 
 
Hafiz S. A. Rehman, Sr. ASC 
Raja Abdul Ghafoor, AOR 
 
Mr. Imran-ul-Haq Khan, Special 
Prosecutor NAB 
 
Mr. Shehryar Qazi, Addl. A.G. 
 
Mr. Aamir Rehman, Addl. A.G.P. 
 
 
Other respondents in CAs: 
Ex-parte 
 
 
Dates of Hearing: 
18.10.2017, 19.10.2017, 23.10.2017, 
24.10.2017, 08.11.2017, 09.11.2017 
and 14 to 16.11.2017 
 
JUDGMENT 
 
 
 
MIAN SAQIB NISAR, CJ.- These appeals are with the 
leave of the Court dated 6.11.2006. The dispute inter se the parties 
is in relation to the land measuring 32 acres and 30 ghuntas 
situated in the prime location of Deh Okewari, District Karachi 
East (Okewari), falling in Survey No.37 (18 acres and 3 ghuntas), Survey 
No. 160 (10 acres and 25 ghuntas) and Survey No. 161 (4 acres and 2 
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ghuntas). There appears to be no dispute that the aforesaid land was 
part of land originally owned by the Karachi Panjrapore 
Association (the Association). The land originally owned by the 
Association was registered on 25.04.1938 under Section 26 of the 
Companies Act, 1913, for the ‘protection and preservation of the 
cattle and other animals and to arrange for their feeding etc.’. The 
dispute before us is regarding the proprietary title of the disputed 
land. The appellants on the one hand are the purchasers from the 
haris (Haris) of the said land to whom certain leasehold rights have 
been granted by the Evacuee Trust Property Board (ETPB), whereas 
the contesting respondents i.e. allottees of the Works Cooperative 
Housing Society (WCHS) claim that the land has been transferred to 
WCHS by the Karachi Development Authority (KDA). The key 
questions involved in this matter are: 
(a) 
what was the status of the Association after the 
partition of the subcontinent; whether it remained 
active or did it become an evacuee; 
(b) 
whether the property in question was evacuee trust 
property or not; 
(c) 
whether the property had been validly acquired by the 
Federal Government for the purposes of establishing a 
police line, if so, to what extent and whether after 
shifting the Capital from Karachi to Islamabad such 
acquired land, which had validly vested with the 
Federal Government, had been lawfully given to the 
KDA and subsequently transferred by the KDA to 
WCHS; and  
(d) 
whether the land was factually and validly leased to 
the Haris by the Association or the ETPB, and they 
had validly transferred it to the appellants; and what is 
the status of the appellants.  
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2. 
 
To address these questions, it is expedient to consider 
the relevant facts, which can be categorized into four transactions 
which are pivotal to the required determination; namely, (1) the 
acquisition proceedings with regard to the 8 acres of the disputed 
land in the year 1954, (2) the decision of this Court in Madhavji 
Dharasibhai vs. Karachi Panjrapore Association (PLD 1957 SC 
83) declaring the Association to be ‘evacuee’ under Section 2(2)(d) 
of the Pakistan (Administration of Evacuee Property) Ordinance 
1949 as amended in 1951 (Ordinance of 1949) and directions to 
determine whether the land owned by it was ‘evacuee trust 
property’, (3) the issuance of the Martial Law Regulation No.57 
(MLR 57) in the year 1983, the application of which was limited to 
encroachments of ‘evacuee trust property’ under the ETPB, and (4) 
the issuance of lease dated 27.7.1990 (Lease Deed) for 99 years. 
Though the impugned judgment addresses these events, a brief 
overview of the same is given for further clarity. 
3. 
 
The partition of the sub-continent in 1947, marked the 
creation of a unique category of ‘evacuee’ persons and entities who 
needed to be adequately and justly dealt with under the law of the 
country. While ‘evacuee property’ has over the years been allotted 
to immigrants from the other side of the border or otherwise, the 
administration of ‘evacuee trust property’ i.e., the properties 
formerly owned by trusts was and remains an ongoing obligation of 
the government. The Ordinance of 1949 (later amended in the year 1951) 
was introduced to cater to both these categories of properties. 
Section 6 of the Ordinance draws a fine distinction between the 
treatment of the two types of property ibid: while subsection (1) of 
Section 6 provides that ‘evacuee property’ is to completely vest in 
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the Custodian, subsection (2) thereof provides that ‘evacuee trust 
property’ will only temporarily vest in the Custodian who was duty-
bound to appoint fresh trustees for the same and till such time 
that new trustees were appointed, he was to ensure that such 
property was utilized for the original purposes of the relevant trust. 
The Association was indeed a trust but it was only declared 
‘evacuee’ a decade after partition by this Court in Madhavji 
Dharasibhai’s case (supra). The Association owned huge chunks of 
property in the city of Karachi, which was at that time the Federal 
Capital of the Country; the disputed land was allegedly being 
utilized for agricultural purposes by the Haris (originally as lessees of the 
Association) who claim to be in possession of the same till date.  
Interestingly, 8 acres of the same land was also part of acquisition 
proceedings initiated by the Federal Government in the year 1954 
for the purpose of construction of Police Lines. Notifications under 
Sections 4, 6, 9 and 17 of the Land Acquisition Act, 1894 (the 
Acquisition Act) have been placed on the record in this regard.   
4. 
 
Mr. Khalid Anwar, learned Sr. ASC appearing on 
behalf of the appellants (in CAs No. 2215-2218/2006) commenced his 
arguments with a brief summary of facts. Placing his reliance on 
the judgment in Madhavji Dharasibhai’s case (supra), he 
submitted that the Association was conclusively declared ‘evacuee’ 
and thus the lands belonging to it including the disputed land was 
‘evacuee trust property’. In this context, he read out the definition 
of ‘evacuee’ in Section 2(2)(d) of the Ordinance of 1949. He further 
submitted that as per Section 8 of the ETP Act 1975, the Chairman 
is the ultimate authority for determining whether a property is 
evacuee trust property and the fact that the ETPB has time and 
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time again referred to the disputed land as ‘evacuee trust property’ 
meant that the Chairman (under Section 8 of the ETP Act 1975) had made 
such determination with regard to the disputed land. He submitted 
that the Haris, the predecessors of the appellants were tenants of 
the Association from pre-partition days and they had been 
cultivating the land and paying dhal to the Association. Thus, after 
partition in 1947 and once the property of the Association was 
declared evacuee trust property, which also included the disputed 
property, the Haris retained their rights of tenancy. Such rights, he 
stated, attained finality when suit No. 3611/1978 filed by the 
Haris was decreed in their favor on 30.5.1984 and on the basis of 
which through filing of execution No.5 of 1984, the executing court 
ordered the execution of a lease deed of 33 years on payment of 
Rs.769.56/- per acre. The Haris made the said payment and this 
had validly resulted in the extension of the lease to 99 years in 
favor of the Haris, who for sufficient consideration transferred the 
same in favor of the appellants. Learned counsel unequivocally 
submitted that MLR 57 would not apply to the disputed land as 
the acquisition of leasehold rights by the appellants and their 
predecessors was legal and valid for all purposes and the said MLR 
only applied to encroachments on ‘evacuee trust property’. On this 
basis he stated that the order of the Chairman, as authority, dated 
10.6.1985 was not applicable to the disputed land which had been 
validly transferred to his clients. He added that it was precisely to 
nullify this order that paragraph 6A was incorporated in MLR 57 
through an amendment in the year 1989 as clause (4) read with 
clause (1) of the said para specifically provides that the tribunal 
established thereunder will determine the scope of the application 
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of MLR 57, and evacuee trust properties falling outside it shall 
remain unaffected by MLR 57. Regarding the claim of the WCHS 
which rests on the acquisition proceedings in the year 1954, he 
submitted that there were certain insurmountable hurdles in the 
success of such a claim which were based on some critical aspects 
of these land acquisition proceedings which could not be ignored;  
(i) 
that the land acquisition proceedings of 1954 were 
initiated for the benefit of the Federal Government 
whereas the disputed land was evacuee trust property 
as confirmed by judgment in Madhavji Dharasibhai’s 
case (supra); since evacuee trust property already 
vests with the Federal Government hence the Federal 
Government could not acquire its own land for a 
public purpose.; 
 
(ii) 
that the purpose of these land acquisition proceedings 
was the construction of the Police Lines which was 
abandoned after Karachi was no longer the Federal 
Capital past the year 1960, thereafter the land could 
not be transferred to KDA and subsequently the WCHS 
unless prior approval of the Federal Government was 
obtained since the purpose for acquisition did not 
remain the same. He added that the transfer of said 
land to the WCHS for purposes of a housing society 
did not satisfy the test of a public purpose; 
 
(iii) 
subsequently, these acquisition proceedings were 
illegally continued by the Provincial Government and 
culminated in an award of compensation which was 
also invalid;  
 
(iv) 
each of the two notifications in the year 1954 under 
Sections 4 and 6 of the Acquisition Act which were 
produced on the record related to only 8 acres out of 
Survey No.37 and the rest of the disputed land could 
not be covered under the same land acquisition 
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proceedings: in fact even to this extent he submitted 
that it was not a valid acquisition since evacuee trust 
land cannot be acquired. The notifications dated 
12.1.1956 regarding Survey No. 161 were not 
produced and hence cannot be relied on without 
examining the contents thereof; 
 
(v) 
the entire land acquisition proceedings of 1954 are 
based on the false assumption that the disputed land 
was non-evacuee; 
 
(vi) 
the acquisition proceedings can only be concluded if 
the steps of such acquisition have been completed in 
accordance with the provisions of the Acquisition Act, 
and since the respondents have been unable to 
produce any evidence to the effect that any payment of 
award was made with regard to the land acquired, nor 
can possession be said to have transferred to them as 
per Section 16 of the said Act, thus these proceedings 
were incomplete and cannot be relied on.  
 
5.  
 
He explained that as notices under Sections 9 and 10 
of the Acquisition Act were sent to the Association instead of the 
Custodian Evacuee Property therefore this adds another lacuna to 
the 1954 land acquisition proceedings. Elaborating on his 
argument, he submitted that the ETPB was constituted for the first 
time by virtue of Section 3 and 4 of the ETP Act 1975 and on 
03.05.1978 the Deputy Administrator, ETPB wrote to the KDA 
categorically pointing out that evacuee trust lands can neither be 
compulsorily nor unilaterally acquired for any Scheme sanctioned 
by the KDA and that the alleged acquisition by the KDA of the 
same had no legal validity. This letter also provided that under the 
ETP Act 1975, there is no statutory bar on the sale of evacuee trust 
lands provided that such sale is made with the prior approval of 
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the Federal Government. He clarified that the notification  dated 
15.06.1964 cannot be deemed to be an approval of the Federal 
Government for the transfer of acquired land since the said 
notification was merely sanctioning the approval of the KDA 
Scheme No.24/Town Expansion Scheme. He pointed out that 
although an offer was made by the Deputy Administrator for the 
KDA to approach the ETPB and agree on sale at the prevailing 
market rates, KDA failed to avail this gracious offer. Learned 
counsel also stated that although various other illegal acquisitions 
by the KDA were retrospectively validated by the ETPB but such 
validation 
expressly 
excluded 
the 
property/lands 
of 
the 
Association. He further stated that once the purpose of the land 
acquisition proceedings is abandoned, as was the case in these 
1954 acquisition proceedings, they inevitably become void. In 
support of this the learned counsel relied on Union of India v. 
Nand 
Kishore 
(AIR 
1982 
Dehli 
462) 
and 
Industrial 
Development 
& 
Investment 
ah 
47 
Corp. 
v. 
State 
of 
Maharashtra (IR 1989 Bombay 156). With regard to his 
contention that the fact that possession is taken by the 
Government as per Section 16 of the Acquisition Act is essential to 
the conclusion of acquisition proceedings, he relied on the 
judgments of Saradar Begum v. Lahore Improvement Trust (PLD 
1972 Lah 458) and Nand Kishore’s case (supra). He stressed that 
it is admitted by the KDA that the possession till date remains with 
the Haris who are the predecessors of the appellants and in this 
regard he referred to the letter of the KDA dated 4.6.1989.   
6. 
 
The learned counsel clarified that even if the award for 
compensation and the 1954 acquisition proceedings with regard to 
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8 acres of the disputed land are assumed to be legally valid, there 
is still the hurdle of illegality of the transfer of the said land by the 
Central Government to the KDA, sanctioning of town expansion 
Scheme No. 24 of the KDA [President Order No. 5 of 1957] vide 
notification dated 15.06.1964 wherein the KDA is directed to honor 
the commitments made by it inter alia to the WCHS with regard to 
“Block 8 & 9 of the land originally reserved for the Police 
Headquarters”. He continued that it is pertinent to note that 
neither can such sanctioning by the Federal/Central Government 
be seen as an approval by the Federal Government for the transfer 
of the land acquired by it for the Police Lines to the KDA, nor can it 
be used to conclusively determine the right of the WCHS to the 
disputed land since the said commitment was to be honored “as far 
as practicable” and hence no obligation was created on the KDA. 
He submitted that soon thereafter when the KDA attempted to 
resile from this commitment, the WCHS and KDA went into 
litigation which was settled in the two judgments of Works 
Cooperative 
Housing 
Society 
v. 
Karachi 
Development 
Authority (PLD 1969 SC 391) and Karachi Development 
Authority v. Works Cooperative Housing Society (1978 SCMR 
307). He further pointed out that in both the aforementioned 
judgments of 1969 and 1978, neither the Evacuee Custodian nor 
the ETPB were ever made party to the proceedings and therefore 
the judgements cannot be binding on them and must be 
disregarded completely to the extent of the present matter. Learned 
counsel pointed out that yet another critical point to note was that 
the WCHS itself later abandoned the prospect of claiming any land 
in Blocks No. 8 and 9 of KDA’s Scheme no.24 and instead accepted 
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alternative land. In this backdrop, learned counsel concluded his 
arguments by pointing out the irregularities in the impugned 
judgment which inter alia included the irregularity that a writ 
petition in the Sindh High Court cannot lie against a consent order 
or against an order in a revision petition which was itself decided 
by the Sindh High Court. In support of this contention he relied on 
Muhammad Baksh v. Ghulam Hussain (1989 SCMR 443), 
Muhammad Khan v. Mst. Ghulam Fatima (1991 SCMR 970), 
and Faizur Rehman v. Rahman-ud-Din (1997 SCMR 1301). 
Another irregularity was that the appellants in the impugned 
judgment were allottees of the WCHS who derive their title from the 
KDA, however the KDA itself had never challenged the decision of 
the revision petition, neither did the WCHS, and these appellants-
allottees therefore could not have challenged the same. Regarding 
the legality of the Chairman’s order dated 10.6.1985, he referred to 
the decision of the tribunal which the KDA had approached for the 
ratification of the Chairman’s order, whereby the tribunal 
categorically held that the Chairman had gone beyond his powers 
in issuance of the said order in its judgment dated 28.8.1989.    
7. 
 
Mr. Aitzaz Ahsan, Sr. ASC for respondents No.1 and 6 
(respondents), submitted that he represents the allottees of WCHS. 
He commenced his arguments by submitting that the WCHS 
derives its title to the entirety of the disputed land (Surveys No. 37, 160 
and 161) through the KDA who admittedly allotted the said land to 
the WCHS; while 8 acres of the Survey No. 37 were validly acquired 
by the Government through the land acquisition proceedings in 
1954 which were later validly transferred to the KDA, the rest of 
the 24 acres and 3 ghuntas of the disputed land were also validly 
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acquired by the KDA as this remaining land was notified to be part 
of the KDA Scheme No.24 and later the ETPB, through 
negotiations with the KDA, regularized this land in favor of the 
KDA as evidenced in various minutes of meetings of the ETPB. 
Regarding the 8 acres of land acquired through the 1954 
acquisition proceedings, learned counsel for the respondents 
submitted that in the year 1954, the land acquisition proceedings 
for acquisition of evacuee trust property land were in accordance 
with Section 12 of the Ordinance, 1949 (as amended by Act of 
XXXI of 1951), clause (b) of subsection (3) of which specifically 
provides that nothing contained in the provisions of the Ordinance 
of 1949 shall affect the powers of the Central (Federal) and 
Provincial Government to requisition or acquire evacuee property, 
provided that the consent of the Federal Government is acquired 
prior to exercise of such powers. In response to the contention of 
the appellants’ counsel that evacuee trust property cannot be 
acquired, he referred to A.R. Niazi v. Pakistan (PLD 1968 SC 
119) wherein it was clarified that evacuee trust property is only a 
sub-specie of evacuee property. Elaborating on the said contention 
he submitted that these 8 acres of the disputed land were acquired 
by the Federal Government for the purposes of construction of the 
Police Lines. In this regard, he referred to the following 
notifications which fulfilled the requirement of a valid acquisition 
for public purpose under the Acquisition Act: 
- 
Notification dated 21.5.1954 under Section 4 of the 
Acquisition Act (pg. 25 of CMA No. 2659/2007); 
 
- 
Notification dated 21.5.1954 under Section 9 of the 
Acquisition Act (pg. 28 of CMA No. 2659/2007);  
 
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- 
Notification dated 8.6.1954 under Section 6 of the 
Acquisition Act (pg. 36 of CMA No.2659/2007); and 
 
- 
Notification dated 8.6.1954, and 21.5.1954 under 
Section 17 of the Acquisition Act (pgs 25 and 36 respectively of 
CMA No.2659/2007) which according to the learned counsel 
directs the taking over of possession. 
 
He submitted that in pursuance of the abovementioned direction 
regarding possession, possession was taken over by the Police and 
an award was made by DC, Karachi, for the compensation of the 
acquired land; as such Rs. 16,06,559.20/- was paid by the KDA. 
Thus, he submitted, the acquisition of 8 acres of the disputed land 
in Survey No.37 had been validly completed and acquired by the 
Federal Government which had subsequently been transferred to 
the KDA for Scheme N.24.  
8. 
 
Regarding the remaining 24 acres and 3 ghuntas of 
the disputed land, he candidly conceded both in his written as well 
as oral arguments that no separate acquisition proceedings were 
ever carried out under the Acquisition Act, however the ETPB had 
accepted the KDA’s request for acquisition of evacuee trust land 
falling within the boundaries of Scheme No.24.  
9. 
 
Furthermore, he submitted that the Chairman’s Order 
on 10.6.1985 in his capacity as Authority under MLR 1957 was 
conclusive in determining the fate of the disputed land and it was 
never challenged in this regard and it is settled law that even a 
void order must be challenged on a timely basis as per the law laid 
down in the judgment of Pervaiz Musharaf v. Nadeem Ahmed 
(PLD 2014 SC 585). Hence the said order has now attained 
finality. He also vehemently asserted that the appellants’ counsel’s 
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claim that the WCHS had abandoned its claim to the disputed land 
is absolutely incorrect and such claim has never been abandoned 
by the WCHS. Further added, that in all, the KDA Scheme No.24 
constitutes 2662 acres in Karachi, and hence setting it aside now 
will adversely affect tens and thousands of land allottees/owners. 
On the other hand, he submitted that the entire claim of the 
appellants stems from a Lease Deed dated 27.7.1990 which lacks 
any legal standing as determined by the Chairman’s order dated 
10.6.1985.  
10. 
 
The learned counsel for the KDA and the ETPB 
appeared before this Court and chose to adopt the arguments of 
Mr. Aitzaz Ahsan, the learned counsel for the allotees of the WCHS.  
11. 
 
We have heard the learned counsel for the parties and 
perused the record. The claim of the appellants is that on account 
of the judgment in Madhavji Dharasibhai’s case (supra) declaring 
the Association as ‘evacuee’, all the properties belonging to the 
Association became evacuee properties and thus acquisition 
proceedings were void ab initio, having no bearing on the 
determination of the title of the disputed land. The respondents on 
the other hand claim that the said acquisition proceedings are 
valid and conclusive. In order to determine the status of the 
Association and ultimately the status of the land owned by it and 
also the status of the Haris and the appellants, it would be 
advantageous to consider the background and functioning of the 
Association prior to and post partition, which has been highlighted 
in detail in Madhavji Dharasibhai’s case (supra). Around the year 
1866, some of the Hindu citizens of Karachi formed the Association 
for the protection and preservation of cattle and, on 25.4.1938, 
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under a licence granted by the Central Government, it was 
registered under the Indian Companies Act, 1913 in conformity 
with section 26 thereof. The Association continued to work, but 
during the 1947 partition the Hindus migrated in large numbers 
from Karachi. In 1949, an application was made to declare the 
property belonging to the Association as “evacuee property”, which 
was so declared on 28.1.1950, by the Additional Custodian 
(Judicial) Evacuee Property, Sind and Federal Capital, Karachi. 
The Association went in revision to the Custodian of Evacuee 
Property Sind and Federal Capital Karachi, which was allowed by 
the order dated 18.7.1950, holding that: “The fact that the bulk of 
the members of the Managing Committee are now evacuees, does 
not affect the character of the property because they have ceased to 
have any right or interest in the property”. The result was that the 
Association was not an “evacuee” and the property belonging to it 
was not “evacuee property”. On account of amendments made in 
the Evacuee law by the Act of 1951, another application was 
presented in which it was alleged that the Association had become 
a defunct body and, therefore, the property owned by it should be 
declared “evacuee property”. The enquiries made by the Assistant 
Rehabilitation Commissioner in regard to the working and 
management of the Association revealed that the whole Association 
had collapsed and the management was being carried on by 
persons who had no authority to manage and supervise the affairs 
of the Association, nor was any general meeting of the Association 
held since 1947. The Association was given an opportunity to rebut 
the facts ascertained during the enquiry and the allegations made 
in the application. In this connection the statement of Seth 
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Jethanand Biranand, President of the Association, was recorded on 
21.1.1950. It was stated that out of the members of the Managing 
Committee mentioned in the report of 1946, only 5 remained in 
Pakistan. The last annual meeting of the Association was said to 
have been held on 27.10.1947. Its minutes were recorded in the 
Proceedings Book, but they had not been confirmed or signed. In 
1948, there was no annual general meeting. There was no record of 
the proceedings of the meeting claimed to have been held since 
1947. In view of these facts, the Deputy Custodian (Judicial), 
Evacuee Property, Karachi, by order dated 18.8.1953, came to the 
conclusion that the Association had become defunct and by reason 
of the definition of “evacuee” given in Section 2(2)(d) of the 
Ordinance of 1949, the Association was declared an “evacuee” and 
its property “evacuee property”. A revision petition filed by the 
Association was dismissed on 19.4.1956 by the Custodian, with 
the observation that the Association had ample opportunity to 
produce evidence before the Deputy Custodian in support of its 
plea that it had not ceased to function wholly or partially, but no 
such evidence was produced and on the evidence on the record, 
the conclusion was inescapable that the Association had at least 
partially ceased to function and the Association must, therefore, be 
held to be an “evacuee”. On 22.5.1956, a petition under Article 170 
of the Constitution of Pakistan, 1956 for the issuance of a writ was 
filed in the High Court of West Pakistan, Karachi Bench. It was 
prayed therein that the order of the Custodian be quashed and the 
Association be declared as “non-evacuee” and its properties be 
restored. The said petition was dismissed vide order dated 
12.11.1956, wherein the finding of the Custodian was upheld. It 
CAs 2215-2222/06 
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was also held that there was no doubt that the authority of the 
persons who were managing the Association at that time had not 
been approved by the Custodian. The said order was challenged 
through a petition for special leave to appeal by the Association 
which was allowed. Another petition for the issuance of a writ was 
also made to this Court by Madhavji Dharasibai and others (for 
themselves and on behalf of the members of the Hindu community who had made 
endowments and paid contributions for the objects of the Association) under Article 
22 of the Constitution of Pakistan, 1956. It was alleged that the 
Fundamental Rights guaranteed by Article 15 thereof with respect 
to the protection of property rights and Article 18 thereof with 
respect to their right to establish, maintain and manage their 
religious institutions had been violated by the order of the 
Custodian. This Court while declaring the Association as an 
“evacuee” observed that “As a matter of fact, under section 76 of the 
Companies Act, a company is under a statutory obligation to 
convene a general meeting once at least in every calendar year and 
not more than 15 months after the holding of the last preceding 
general meeting, and Associations, like the appellant-Association 
registered under section 26 of the Companies Act, are also subject to 
the same obligation under subsection (3) of section 26. This could not 
be done for a number of years and the Association has, therefore, 
ceased to function, wholly or partially, as mentioned in clause (d) of 
subsection (2) of section 2 of the Pakistan (Administration of  
Evacuee Property) Ordinance, 1949. At this point, it might 
conveniently be mentioned that the alleged, functioning of the 
Association, after it ceased to function in accordance with the 
Companies Act, and its Articles of Association, was clearly under the 
CAs 2215-2222/06 
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control of persons, who could not derive their authority from the 
aforesaid instruments, and whose authority therefore required the 
approval of the Custodian, if the Association were not to fall within 
the definition of “evacuee” cited above. It is quite clear that the 
approval of the Custodian was neither sought nor recorded at any 
time.” However, after observing that “no step was ever taken to find 
out that property was held in trust; for religious or charitable 
purposes; for according to subsection (2) of section 6, the custody of 
the Custodian over such property is only a temporary one and the 
income has to be applied for carrying on the purposes of the trust. It 
appears that this aspect of the case was not pressed before the High 
Court, Karachi Bench, nor is there anything to show that at any 
stage did the Custodian ever apply his mind to it, though in view of 
the allegations of the appellants such a determination was 
necessary”, the High Court was directed to issue a writ of 
mandamus to the Custodian to take such action as is provided by 
section 6 (2) aforesaid in respect of any property or properties of 
the Association which he may find, after enquiry, to be “property 
held in trust for religious or charitable purposes”.  
12. 
 
From the above it is clear that after independence, the 
Association became evacuee and as such its properties also 
became evacuee property. Now we come to the second question 
whether the properties of the Association were held in trust for 
religious or charitable purposes. In this regard it is to be noted 
that no specific order of the Custodian in this regard has been 
produced by either of the parties, before this Court or before the 
forums below, thus, we have to consider other material available 
on the record. In this regard it is to be noted that in the Schedule 
CAs 2215-2222/06 
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appended with MLR 57 in terms of Paragraph 1 thereof the 
property of the Association was mentioned as the evacuee trust 
property under the Evacuee Trust Property Board. For reference, 
Paragraph 1 alongwith the relevant portions of the Schedule is 
reproduced below:  
1.  
Martial Law Administrator Zone ‘C’ or any other person or 
authority, authorised by the Chief Martial Law Administrator in this 
behalf, may, if he or it is of the opinion that any part of the agricultural 
land specified in the Schedule to this Regulation and belonging to the 
defunct Evacuee Trusts so specified and now vesting in the Evacuee 
Trust Property Board has been acquired, entered upon, or taken 
possession of by any person illegally or by any person illegally or by 
fraud, misrepresentation or otherwise by order cancel such acquisition or 
as the case may be, order the ejectment of such person and further order 
that the said property shall forthwith be restored to the Evacuee Trust 
Property Board free from all encumbrances. 
THE SCHEDULE 
[See Paragraph 1] 
Name 
 
   
of Deh 
 
       Area of land 
      Survey No. & Area 
 
(1) Pinjrapur Trust            Acres, Ghuntas 
…. 
2. Deh Okewari Distt        608,  02  
….. 
_37_ , _160_,  
 
 
 
 
 
 
 
18-03      10-25 
 
 
 
 
 
 
 
….. 
…… 
_161_ 
 
 
 
 
 
 
 
 
 4-02 
A perusal whereof makes it clear that the property in issue was 
mentioned as the property belonging to the defunct Association 
and its supervision was vesting in the ETPB.   
13. 
 
With regard to the validity of the acquisition 
proceedings of the 8 acres of the then evacuee land, reliance may 
be placed upon Section 12 of the Pakistan (Administration of 
Evacuee Property) Ordinance, 1949 (as amended by Act of XXXI of 
1951) which is reproduced hereunder: 
 
Chapter II 
Appointment of Custodians and Vesting and Possession of 
Evacuee Property  
 
12. Exemption from legal process.- (1) Property which has vested 
in, or of which possession has been taken by, the Custodian shall 
be exempt from all legal process, including seizure, distress, 
CAs 2215-2222/06 
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ejectment, attachment or sale by any officer of a Court, and no 
injunction or other order of whatever kind in respect of such 
property shall be granted by the Court or any other authority. 
 
(2) Upon the commencement of this Ordinance, any such legal 
process as aforesaid subsisting immediately before such 
commencement shall cease to have effect, and all evacuee property 
in custody of any Court, or receiver, guardian or other officer or 
person appointed by it, shall, upon delivery of the same being 
called by the Custodian, be delivered to the Custodian. 
 
(3) Nothing contained in the foregoing sub-sections shall— 
 
a) prevent a Registering Officer from ordering registering of a deed 
of sale or exchange relating to evacuee immovable, or a Civil 
Court from ordering specific performance of a contract of sale or 
exchange of any such property where the sale or exchange or 
contract of the same has been duly confirmed or approved by the 
Custodian and the required certificate has been granted by him; 
or 
  
b)  affect any power conferred on the Central Government or by or 
under any law for the time being in force to requisition or 
acquire property, and it is hereby declared that if by or under 
such law or any other law for the time being in force, a like 
power is conferred upon or delegated to a Provincial 
Government the Provincial Government may exercise the same 
in relation to evacuee property with and only with the previous 
approval of the Central Government and subject to such 
direction as the Central Government may at any time see fit to 
give.  
 
Hence in light of Section 12(3)(b) ibid, an exemption was granted to 
the Federal Government for the acquiring of evacuee land and 
hence the acquisition of the 8 acres of Survey No.37 of the 
disputed land by the Federal Government was in accordance with 
the law and hence the acquisition proceedings were validly 
initiated. 
14. 
 
In view of the above, the dispute remained that 
whether the disputed land being evacuee trust property could be 
acquired 
by 
the 
government 
under 
the 
land 
acquisition 
proceedings. It is an undisputed fact by the parties concerned that 
prior to the Madhavji Dharasibhai judgment in 1957, the 
lands/properties of the Association had not been declared as 
evacuee trust property and thus the notifications made under 
CAs 2215-2222/06 
-: 21 :- 
Section 4 and 6 of the Acquisition Act in this regard were valid. For 
purposes of convenience, relevant portions of these notifications 
are reproduced hereunder: 
 
Notification under Section 4 of the Acquisition Act; 
The Gazette of Pakistan 
May 21, 1954 
----------- 
Karachi 15 May, 1954 
No. 25/10/Rev 53.- Whereas it appears to me that land specified in the 
Schedule hereto are likely to be needed/to be taken by Government at the 
expenses of the Government of Pakistan, and for the purpose specified 
against it in the Schedule. 
 
It is hereby notified under the provisions of Section 4 of the 
Land Acquisition Act 1 of 1984, as amended by Act XXXVIII of 1923 
that the said lands are likely to be needed for the public purpose specified 
in the Schedule. 
 
Any person hereby interested in the said lands are hereby warned 
not to obstruct or interfere with any surveyors or any other persons 
employed on the said land for the purpose of the said acquisition. Any 
contract for the disposal of the said lands by sale, lease, mortgage, 
assignment, exchange or otherwise on any improvements made therein 
without the sanction of the Collector after the date of this Notification 
will under Section 24 (Seventhly) of the said Act be disregarded by the 
officer assessing compensation for such parts of the said land as may be 
finally acquired. 
 
………..If the acquisition is in part or wholly abandoned, the 
facts will be duly notified on the Pakistan Government Gazette.  
 
I further direct under Sub-Section (4) of Section 17 of the said 
Act that as the acquisition of the said land is urgently necessary, the 
provisions of Section 5-A of the said Act shall not apply in respect of the 
lands.  
************** 
Schedule 
Taluka: Karachi – District: Karachi  
Taluka  
Deh 
S.No. Area of S.No.  Approximate 
Purpose 
 
 
 
 
(in acres) 
area required   of 
 
 
 
 
 
 
(in acres)          acquis.. 
…… 
 
….. 
….. 
…….  
…… 
 
….. 
…… 
 
….. 
….. 
…….  
…… 
 
….. 
Karachi  
Oke- 
37 
18-3 
 
8-0 
 
For the     
 
 
wari 
 
 
 
 
 
construction of 
 
 
 
 
 
 
 
 
Karachi Police 
 
 
 
 
 
 
 
 
Lines etc. 
 
 
 
………… 
 
 
 
 
 
(Stamp of A.T. Naqvi 
Chief Commissioner, Karachi)  
              [Emphasis applied] 
 
 
Notification under Section 6 of the Acquisition Act; 
CHIEF COMMISSIONER’S SECRETARIAT  
(Revenue Department) 
CAs 2215-2222/06 
-: 22 :- 
 
No.25|10|Rev.53. – Whereas by notification in the Revenue Department 
No.25|10|Rev.53 dated 15th July 1954, it was notified that the lands 
specified in the schedule hereto were needed for the purpose stated in the 
said notification viz., for construction of Police Lines, etc., and whereas I 
am satisfied that the said lands are needed for a public purpose as 
specified above.  
 
It is hereby declared under the provisions of Section 6 of the Land 
Acquisition Act, 1894 (1 of 1894) that the said lands are needed for 
public purpose as stated above.  
 
…..He (Deputy Collector Land Acquisition), Karachi) is also directed 
under Section 7 of the said Act to take order for the acquisition of the 
said lands. 
 
And whereas the acquisition of the said lands is urgently necessary, I 
further direct under sub-section (1) of Section 17 of the said Act that the 
Collector shall on the expiration of 15 days from the publication of the 
notice relating to the said lands under sub-section (1) of Section 9 of the 
said Act, take possession of all the waste and arable lands specified in 
my notification aforesaid mentioned.  
.... 
…. 
************** 
Schedule 
Taluka: Karachi – District: Karachi  
Taluka  
Deh 
S.No. Area of S.No.  Approximate 
Purpose 
 
 
 
 
(in acres) 
area required   of 
 
 
 
 
 
 
(in acres)          acquis.. 
…… 
 
….. 
….. 
…….  
…… 
 
….. 
…… 
 
….. 
….. 
…….  
…… 
 
….. 
Karachi  
Oke- 
37 
18-3 
 
8-0 
 
For the     
 
 
wari 
 
 
 
 
 
construction of 
 
 
 
 
 
 
 
 
Karachi Police 
 
 
 
 
 
 
 
 
Lines etc. 
 
 
 
 
 
 
 
………… 
 
 
 
 
 
 
 
A.T. Naqvi 
Chief Commissioner, Karachi 
     
 [Emphasis applied] 
 
A perusal of the notifications above reveals that both were made 
under Section 17(1) of the Acquisition Act by virtue of which, on 
the expiration of 15 days from the publication of the notice relating 
to the said lands under sub-section (1) of Section 9 of the said Act, 
possession can be acquired by the Federal Government regardless 
of whether statutory award of compensation is made (as required under 
Section 11 of the Acquisition Act) to the persons entitled by such time. 
Needless to observe that the disputed land, to the extent of 8 acres, 
vested absolutely in the Federal Government once possession of 
CAs 2215-2222/06 
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the same was taken under Section 16 of the Acquisition Act, which 
is reproduced hereunder; 
 
16. Power to take possession.— When the Collector has made an award 
under Section 11, he may take possession of the land, which shall 
thereupon vest absolutely in the Government free from all encumbrances. 
[Emphasis supplied] 
 
Evidence of the taking of possession has been proved by the 
learned counsel for the respondents vide letter from the 
Mukhtiarkar to the Assistant to the IG Police dated 21.10.1954 
which provides that possession was taken over by the Police on 
21.10.1954. Although the learned counsel for the appellants has 
claimed that the disputed land is presently in possession of the 
appellants, he has failed to produce any evidence to controvert the 
fact that the possession was taken over under Section 16 by the 
Police, in effect completing the procedure of acquisition, or that at 
the time of acquisition, the Haris were occupying the disputed land 
and the same was not taken over by the Government. Once the 
land so acquired vested absolutely in the Federal Government, the 
Federal Government was competent to transfer the same to the 
KDA as there is no prohibition in the Acquisition Act in this regard, 
and this is in consonance with the law laid down in the judgments 
reported as Muhammad Hussain Beg v. Govt. of West Pakistan 
(PLD 1961 Lah 696), Syed Nazar Abbas Naqvi v. Commissioner 
Sargodha Division (PLD 1993 SC 455 at pgs 462-463), Asmat 
un Nisa v. Govt. of NWFP (2010 SCMR 480 at pg 490), and 
Rana Abdul Majid v. Faislabad Development Authority (1994 
MLD 1895). The approval of the Federal Government for such 
transfer was given vide notification dated 19.10.1963 made by the 
Basic Democracies Social Welfare and Local Government Dept., 
CAs 2215-2222/06 
-: 24 :- 
which is a department of the Federal Government, as such, it 
constitutes a valid transfer for all legal purposes.   
15. 
 
The amount of compensation to be awarded in this 
regard had been calculated as Rs.3000/- per acre according to the 
Award 
made 
by 
the 
Deputy 
Commissioner, 
Karachi 
vide 
notification dated 19.10.1963. The payment made by the KDA in 
this regard is evidenced in the challan dated 30.11.1964 (at pg. 82 of 
CMA No.2659/2007) referred to by the counsel for the respondents, the 
contents of which are reproduced hereinbelow; 
 
 
CAs 2215-2222/06 
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The acquisition proceedings which commenced in the year 1954, 
thus stood concluded after due payment made as evidenced above, 
which was in accordance with the market rate calculated in the 
award made by the Deputy Commissioner on 19.10.1963. 
16. 
 
As argued by the learned counsel for the respondent, 
the land acquired for a particular purpose can be subsequently 
used for a different purpose. Reliance in this behalf may be made 
to the judgments reported as Muhammad Hussain Beg v. Govt. of 
West Pakistan (PLD 1961 Lah 696), Syed Nazar Abbas Naqvi v. 
Commissioner Sargodha Division (PLD 1993 SC 455 at pgs 
462-463), Asmat un Nisa v. Govt. of NWFP (2010 SCMR 480 at 
pg 490), and the law laid down in Rana Abdul Majid v. 
Faisalabad Development Authority (1994 MLD 1895) whereby it 
was held that once land has been acquired by the Government, the 
title no longer vests with the original owners. Further, as held by 
this Court in the judgments reported as Pakistan v. Muhammad 
Ali (PLD 1960 SC 60 at pgs 60,64, 67-70) and Muhammad 
Ishaq v. Govt. of Punjab (2002 SCMR 1652 at pg. 1661) the 
acquisition of land for a housing society is recognized as a public 
purpose. In light of the above and the notification under Section 9 
of the Acquisition Act (pg. 28 of CMA No. 2659/2007), the said 8 acres of 
the disputed land are held to be validly acquired by the Federal 
Government under the 1954 acquisition proceedings.    
17. 
 
The law governing evacuee trust property however 
underwent a sudden change in the year 1983, when MLR 57 was 
promulgated 
solely 
for 
the 
purposes 
of 
removing 
illegal 
encroachments (property acquired illegally or by fraud or misrepresentation or 
otherwise) by Government and private organizations on the evacuee 
CAs 2215-2222/06 
-: 26 :- 
trust properties, which lands were to be restored to the ETPB. The 
appellants, who are the successors in interest of the Haris, 
maintain that pursuant to lease obtained by them from the ETPB 
for 33 years, which was later extended to 99 years in the year 
1990, they were the rightful occupants of the disputed land and 
MLR 57 was not applicable to any evacuee trust land which was 
legally transferred to any person. The main thrust of the argument 
of appellant’s counsel was that since the said lease was granted to 
the Haris pursuant to the judgment of the learned Trial Court 
dated 30.5.1984, which was upheld in appeal vide judgment dated 
31.8.1988, therefore, the said Haris were lawful occupants of the 
disputed land.   
18. 
 
In this regard it is to be noted that Paragraph No.1 of 
MLR 57, reproduced hereinabove, makes it abundantly clear that 
the disputed land was conclusively declared to be ‘evacuee trust 
property’ and hence any such property would be ordered to be 
restored. Moreover, paragraph 5 of MLR 57, without making any 
exceptions of any kind, provides that all judgments or orders of 
any Court before the promulgation of MLR 57, shall abate. For 
purposes of reference, paragraph 5 is reproduced below:  
 
5.   
Every judgment or Order of any Court including the Supreme 
Court, High Court, Tribunal or authority given or made before the 
commencement of this Regulation, whether pending in the Supreme 
Court, Tribunal or authority shall abate. 
 
In light of the above paragraph, as rightly held by the learned High 
Court in its findings in the impugned judgment, since all judicial 
proceedings and orders pronounced by different Courts prior to the 
promulgation of MLR 57 stood nullified, it would be a useless 
exercise to go into details with regards to any such judgments. 
CAs 2215-2222/06 
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Needless to observe that when MLR 57 was promulgated, the 
appeal was pending before the appellate Court and as per above 
paragraph, the same stood abated, but the Appellate Court 
continued with the proceedings on the pretext that the Haris were 
lawful occupants of the same. Whereas, the fact that the Haris 
were lawful occupants had never been determined, which fact was 
determined by the Chairman, ETPB vide order dated 10.6.1985 
passed under MLR 57 in his capacity as Authority. Therefore, the 
land of the Association as detailed in the Schedule to MLR 57 was 
conclusively declared evacuee trust property and only a legally 
valid transaction, agreement, lease etc., acquired prior to MLR 57 
would be saved from the impact of paragraph 6 of the MLR. Thus, 
the remaining 24 acres and 3 ghunats of land, on account of the 
above, were saved from operation of paragraph 6 of MLR 57 which 
mandated that the land could be disposed of.  
19. 
 
With regard to the remaining portion of the disputed 
property measuring 24 acres and 3 ghuntas, it is to be noted that 
the ETPB, under Section 4(d) of the ETP Act 1957, was authorized 
to sell or transfer the evacuee trust property provided that prior 
approval of the Federal Government was obtained in this regard. 
The said land fell within the boundaries of Scheme No.24, as such 
its possession was taken over by the KDA. The ETPB had for the 
first time raised the issue of the purported illegal occupation of 
evacuee land in the year 1968, conceding that a detailed circular in 
this regard was issued by the ETPB vide Circular No. 
ETPB/68/4152 dated 13.06.1968, whereby the ETPB categorically 
stated that where evacuee trust lands had already been taken over 
by the KDA, compensation on reasonable rates would be decided 
CAs 2215-2222/06 
-: 28 :- 
upon and the matter henceforth would be disposed of. Subsequent 
to the issuance of the abovementioned Circular, the District 
Evacuee Trust Committee in its meeting held on 23.1.1969 (Minutes 
of Meeting reproduced in letter of the ETPB) resolved that the ETPB should 
be paid by the KDA for all of the land falling within KDA Scheme 
No.24 (2662 acres) on the basis of the compensation award in 1963 
and based on the market rate prevailing at the time, compensation 
payable for 268-13 acres (which according to the learned counsel meant evacuee 
land that was in addition to the 256 acres already paid for i.e. inter alia 8 acres of the 
disputed land) was calculated at Rs.13,17,216.24 which was inclusive 
of interest from 7.5.1965 to 30.6.1971. Full payment of this 
amount was made through cheque No.CCC-982502 dated 
30.7.1971, as evidenced in letter dated 15.9.1971, which is 
reproduced hereunder; 
 
 
Thus, at that point, all formalities were complete and the land, to 
that extent too, stood conclusively transferred to the KDA. 
CAs 2215-2222/06 
-: 29 :- 
20. 
 
As we have already held hereinabove 8 acres of Survey 
37 of the disputed land had validly been acquired under the 
acquisition proceedings of 1954 and the same were validly 
acquired by the KDA and transferred to WCHS. We further hold 
that the remaining 24 acres and 3 ghuntas, which was evacuee 
trust property for all legal purposes after the promulgation of MLR 
57, was legally and validly transferred/sold by the ETPB to the 
KDA in accordance with Section 4(d) of the ETP Act 1957.  
21. 
 
With regard to the question whether the land was 
factually and validly leased out to the Haris and thus whether they 
had validly transferred it to the appellants or not; suffice it to say 
that as mentioned above in detail, the bulk of the members of the 
Managing Committee of the Association left the country and the 
remaining members were insufficient in number to complete the 
quorum, and further the annual general meetings of the 
Association could not be held over a long period of time, as such 
the Association had become defunct and ceased to function. In 
such a situation, it is not conceivable that the occupation of the 
land of the Association by the Haris, even if it was on lease 
obtained from the then Management Committee, when it was 
functional, could by any stretch of imagination be considered to be 
valid when the said Committee had become defunct. So when the 
title of the Haris was not valid, obviously, they could not transfer a 
better title to the appellants.  
22. 
 
In light of the above, these appeals are dismissed. 
23. 
 
In the circumstances when the appeals have been 
dismissed, we do not want to further proceed with the contempt 
CAs 2215-2222/06 
-: 30 :- 
matter, resultantly, the same (Criminal Original Petition No.31 of 2008) is 
accordingly disposed of. 
 
 
 
 
 
CHIEF JUSTICE 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
Announced in open Court 
on 16.2.2018 at Islamabad 
Approved for reporting 
Waqas Naseer 
 
 
 
 
 
 
CHIEF JUSTICE