P L D 1958 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.--‑This is an appeal by special leave from the judgment of a Bench of the High Court of West Pakistan at Karachi, dismissing the appellant's application for writs of certiorari, mandamus and prohibition. The appellant is a national of India, permanently residing in Bombay. Since long before the Partition he had owned three immovable properties in Karachi which were being managed by an agent. The last agent in charge of the property was Kishan Chand who left Pakistan on 15th September 1949. The appellant however instantly appointed another agent, Daruwala, who resides in Karachi. Some time in 1950, a question arose as to these properties being evacuee property. The Assistant Custodian on 29th December, 1949, declared the appellant an evacuee. The appellant appealed to the Custodian who referred the matter to the Central Government. The terms in which the reference 'was made are not before us but the Government's order was as follows;

"I am directed to refer to your letter No. P. A. C. 3/98, dated 21st February 1950, and to state that D. H. Daruwala's appointment as Managing Agent of Tulsidas not having been approved by you, he would be an "unauthorised person" as defined in clause (9) of section 2 of Ordinance XV of 1949". On receipt of this order the Custodian, Mr. Akbar Hussain, passed the following order on 20th June 1950; "It will be just and proper in the circumstances of the case to recognize the local agent as an authorised person and to hold T. G. Khattau to be not evacuee. I order accordingly". Some three years later, another Custodian suo motu re‑opened issue and by his order dated the 9th June, 1953, reviewed the order of Mr. Akbar Hussain and held the appellant to be an evacuee. He also recalled the order of Mr. Akbar Hussain by which he had recognized Daruwala as an authorised person, managing the property in question. Against this order, the appellant applied to the High Court for an appropriate writ, but the application was dismissed on the ground of delay. The short issue requiring determination in this appeal is whether the officer who decided to review the order of Mr. Akbar Hussain had jurisdiction to do so and whether that jurisdiction was exercised in a proper manner, because in the circumstances stated in the petition relief could not have been refused to the petitioner merely on the ground of delay. The order under review was based on the assumption that the Central Government had declared the appellant to be an evacuee and that that order under section 3 of the Ordinance had become final and could not be altered by Mr. Akbar Husain. There can be little doubt that since Daruwala's authority or right to manage the property of the appellant had not been recognized by the Custodian after the first day of March 1947, until the reference was returned by the Central Government, Mr. Akbar Hussain, could, if he so liked, have declared the appellant an evacuee and the property in question as evacuee property. The Central Government had not declared the appellant to be an evacuee but had merely stated that since Daruwala's authority had not been accepted or approved by the Custodian he was an unauthorised person. This did not preclude the Custodian from recognizing his authority if he considered such recognition just and proper. This is precisely what the Custodian did, and in so doing he did not in any manner contravene the order of the Central Government. If before the reference, the Custodian had accepted or approved the agent's authority, it is obvious the Central Government's reply would have been entirely to the contrary. The power exercised by the Custodian in accepting Daruwala as the appellant's agent in possession and management of the property was a power which could be exercised by him at any time, and it makes no difference that he exercised it on receipt of the reply to his own reference to the Central Govern?ment, the Government having given no direction that the Custodian was not to exercise his power in this particular case. There is therefore no question of the Central Government's order becoming final. That order was final only in this sense that if the agency had not been approved by the Custodian, the Agent Would have been an unauthorised person, and it was an inevitable corollary from this order that if the Custodian accepted or approved the agency, the agent could no longer be an 1It,atitnonsed person in possession of the appellant's property. Thus the Custodian who reviewed Mr. Akbar Hussain's order was under a misapprehension when he construed the Central Government'' direction in the manner that he did. Of course a Custodian may at any time revoke his previous acceptance or approval of an agent. But this revocation must have some reference to and be based on the manner in which the property is being managed. The Custodian obviously, did no exercise the power for any such reason when he reviewed the order recognizing the agency of Daruwala because his order makes no reference to the manner in which the property as being managed. The order is one of revocation simpliciter. The Custodian without giving any reason whatsoever could not revoke an earlier acceptance or approval. No such power vests in the Custodian, and even if it did, it would not be a proper exercise of that power to revoke the agent's authority without informing him and his principal of the grounds on which it is intended to he exercised We accept this appeal with costs and set aside the Custodian's order dated the 9th June 1953, by which the earlier order of Mr. Akbar Hussain was reviewed and recalled. A. H.?????????????????????????????????????????????????????????????? Appeal accepted.