P L D 1960 (W (PLP)

SAJJAD AHMAD JAN, J.‑--Writ Petitions Nos. 77 of 1960 and 96 of 1960 to be disposed of by this order raise a common point of law calling in question the competency of the reference made in each case by the Central Government under section 43‑A of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) as amended by Pakistan (Administration of Evacuee Property) (Amendment) Ordinance, 1959 (XXII of 1959), which are pending adjudication by the Evacuee Property Inquiries Tribunal set up under the aforesaid Act.

2. To appreciate the legal point involved in the petitions a brief summary of the facts, which have given rise to them, may be stated. In Writ Petition No. 77 of 1960, the petitioner, Parsumal, owned 2451 acres of agricultural land and his two sons, petitioners Tikamdas and Sirumal, were residing with him in village Paroomal, taluka Sanghar in the district of Sanghar. In the year 1949, a question arose as to the evacuee nature of the petitioners' property and on the matter subsequently coming in appeal (No. 50 of 1949) before Mr. Akbar Hussain, the then Custodian of Evacuee Property (South Zone), West Pakistan, Karachi, it was referred to the Central Government which declared on the 12th of February 1950, under section 3 of Ordinance XV of 1949 that Persumal was a non‑evacuee, This was followed by an order of Mr. Akbar Hussain dated the 24th of February 1950 allowing the petitioners' appeal pending before him in the following terms:‑ "Persumal is held not to be evacuee and the appeal is allowed accordingly."

3. It appears, however, that on the 20th November 1951, the Assistant Custodian, Evacuee Property, Mirpurkhas, re‑opened the case to determine the status of Persumal as an evacuee. No notice of the proceedings was served on petitioners Nos. 2 and 3, i.e. Tikamdas and Sirumal but an Advocate appeared for the petitioner, Persumal, to contest the proceedings taken by the Assistant Custodian. The Advocate, however, failed to put in appearance on the date fixed for evidence and, therefore, evidence was recorded ex parte. Persumal thereafter moved a transfer application to the Custodian of Evacuee Property, Sind, and the later on the 23rd of September 1952, trade an order calling for the record of the case and staying the proceedings. In spite of this, it seems that the record was not sent and the learned Assistant Custodian, who had. :in the meanwhile been promoted as Deputy Custodian, passed his ,final order on the 13th of March 1953, declaring the petitioners as evacuees and their property as evacuee property.

4. The order of the Deputy Custodian was challenged by the petitioners in a revision petition before the Custodian of Evacuee Property, Karachi (Revision Application No. 287 of 1953). The then learned Custodian of Evacuee Property, Mr. Mansoor Alam, allowed the application holding that the order of the Deputy Custodian was a nullity having been passed during the subsistence of a stay order made by a superior Court. As this order of the Custodian of Evacuee Property is being challenged before the Evacuee Property Inquiries Tribunal by a reference, which is the subject‑matter of one of the, present writ petitions, the relevant extract from the Custodian of Evacuee Property's order bearing on the point may be reproduced in his own words:‑ "It appears that by an order dated the 23rd September 1952 my predecessor ordered a stay of further proceedings in the case and as such the learned Deputy Custodian was not competent to pass final orders in the case so long as the stay order was in force. It is well settled that once a stay order is passed by a superior Court, it takes effect immediately and any order passed by a subordinate Court in defiance of the stay order is a nullity." The other point, on which the order of the Deputy Custodian was reversed, may also be mentioned. This was that the order of the Deputy Custodian placed reliance on certain facts which had taken place prior to the passing of the order by the Central Government under section 3 of the Ordinance, which had been considered by the Custodian of Evacuee Property, while making the reference and his own appellate order which followed it and that, therefore, the re‑opening of the case by the Deputy Custodian, amounted to sitting in judgment on the orders of the Custodian of Evacuee Property, who was his superior officer,

5. In Writ Petition No. 96 of 1960, the facts on which the impugned reference proceeds, are as follows. The petitioners are members of a joint Hindu family. They claimed to have remained in village Paroomal, district Sanghar, throughout since Partition as Nationals of Pakistan. Some of their properties, however, were allotted to certain refugees, whereupon they moved the Custodian Department and got a declaration from Mr. Sayed Hussain, Assistant Custodian of Mirpurkhas, on the 2nd of February 1950, that they were non‑evacuees and their pro perties were rat evacuee properties. The order of the Assistant Custodian was affirmed by Mr. Akbar Hussain, the then Custodian of Evacuee, Property, Sind And Federal Capital, Karachi, on the 24th of June, 1950.

6. In November 1951, Mr. Irshad‑ud‑Din, an Assistant Custodian of Mirpurkhas, issued notices to petitioners Nos. 1 to 4 under section 23‑A as to why they should, not be declared "intending evacuees" and against petitioners loos. 5 and 6 as to why they should not be declared as evacuees. It seems that Mr. Irshad‑ud‑Din had issued similar notices to a host of other persons for declaring them "intending evacuees." On a complaint made against him, lie was transferred from Mirpurkhas to Larkana, but somehow 'he'' retained with himself the files of the case that had been started by him. On an application moved by the petitioners for the transfer of their case from Mr. Irshad‑ud -Din a stay order was obtained on the 12th of January 1953, from the Additional Custodian (Judicial) (Mr. S. Riaz‑ud‑Din Ahmed), who invited the comments of the Deputy 'Custodian regarding the allegations contained in para. 6 of the affidavit, filed with the transfer application and ordered that judgment in he case will not in the meantime be pronounced. In spite of this, Mr. Irshad‑ud- Din gave his judgment on the 17th of January 1953, holding petitioners Nos. 1 to 4 as "intending evacuees" under section 23‑A of Ordinance XV of 1949 and declared their properties to be evacuee properties and petitioner No. 6, Mst. Vissibai, widow of Sitaldas, as an evacuee with the necessary consequences. Against this, the petitioners went in appeal to the Additional Custodian, who made a reference to the learned Custodian. The latter, by his order dated the 24th August 1955; directed that the subject- matter of the appeal relating to the petitioners Nos. 1 to 4, who had been declared as "intending evacuee", was appealable but the remainder was not appealable, but that a revision could be filed. Consequently, while petitioners Nos. 1 to 4 pursued their appeal before the Additional Custodian (Judicial), a separate revision was moved before the Custodian of Evacuee Property by all the res pondents. The learned Additional Custodian, by his order dated the 13th of June, 1956, disallowed the appeal pending before him, while the Custodian, by his order dated the 6th of June 1957, in a short order disposed of the revision application jointly with several other applications pending before him on the same subject, holding that the provisions relating to the "intending evacuees" having been deleted from Act XII of 1957, all the proceedings pending thereunder had died a legal death. He held further that no further proceedings were to go on and all notices and orders stood discharged and vacated. The properties, which had been treated as evacuee properties, will no longer be treated as such and they will be non‑evacuee properties. It is this order of the Custodian of Evacuee Property which has been made the subject of a reference by the Central Government under section 43‑A of Act XII of 1957, as amended by Ordinance XXII of 1959, which in turn has, been challenged in the writ jurisdiction before us.

7. Subsection (2) of section 43‑A, which furnishes the foundation for a reference by the Central Government to the Evacuee Property Inquiries Tribunal, is in the following terms:‑ "if in any case, in which a Custodian has on or after the 1st day of January 1953, declared any evacuee or any evacuee property to be a non‑evacuee or non‑evacuee property, as the case may be, the Central Government may notwithstanding anything contained in this Act or in any other law for the time being in force refer the case to the Tribunal." The provision obviously postulates a declaration by the Custodian of Evacuee Property on or after the 1st day of January 1953, that an evacuee or an evacuee property is non‑evacuee or non -evacuee property, as the case may be. The contention raised by the learned counsel for the petitioners in both the writ petitions is that the orders of the Custodian challenged in these references do not come within the purview of this subsection, as the orders of the Deputy Custodian in each case disposed of, by the Custodian in revision were a nullity, having been made when a stay order by the superior Court was in force. The argument is that the orders of the Deputy Custodian, being void ab initio and there fore, non‑existent in the eyes of law, did not and could not affect the status of the property to make it evacuee property and the orders of the Custodian superseding it, whether by affirming it or reversing it, cannot give airy life to such an order and much less a legal sanctity. In our view, this contention is incontrovertible. The legal proposition does not admit of any doubt that an order passed by an inferior Court during the subsistence of a stay order made by a superior Court is an absolute nullity. A few authorities cited at the bar in this connexion may be referred to. In Syed Nazir Ahmad v. Syed Muhammad Saved and another (P L D 1955 Lah. 34), Kaikaus, J. expressed the view that the proceedings, which were taken by the lower Court after a stay order had been made by the High Court, were entirely without jurisdiction. In a Full Bench judgment of the Lahore High Court reported as Karam Ali and others v. Raja and others (P L D 1949 Lah. 100) in reference to a stay order made under Order XLI, rule 5 of the Civil Procedure Code, it was held as follows:‑ "* * * * * * * * it must be held that the jurisdiction of the Court to take further proceedings or execution proceedings under a decree appealed from is excluded the amount an order staying such proceedings is recorded, and that this exclusion does not depend on any thing other than the making of the order. * * * * * * * * * * * * * * * * When such order is made, the jurisdiction of the Executing Court in respect of the matters covered by that order is superseded and remains suspended as long as that order, exists. Such order is an order in the lis, by which the parties and the Executing Court are both bound and any order by the Executing Court inconsistent with that order is a nullity because ex‑hypothesi the order relates in the language of the constitutional law to a field that has already been occupied by the superior Court."

8. It seems to us that the orders of the Deputy Custodian in each case, on which the orders of the Custodian under reference proceeded, were a complete nullity and non‑existent in the eyes of law. The Custodian, while dealing with them, could not put any life into them to give them a legal existence. An order, which is void ab initio, cannot be quashed any more than it can be upheld, because a thing which has never existed is not capable even of destruction. In 'the recent judgment of the Supreme Court in the case of Muhammad Ayub Khuro v. Pakistan (P L D 1960 S C (Pak.) 237), it was held by their Lordships that "the proceedings, which are void ab initio, are not capable of any 'confirmation, because nothing is brought into life by a void order which may be con firmed by a confirmatory order." In this view of the matter, the orders of the Custodian of Evacuee Property, which are the subject‑matter of the references made by the Central Government and which being a nullity added to a nullity, do not declare any, evacuee to be non‑evacuee nor evacuee property to be non‑evacuee property, which is a pre‑requisite of a valid reference under section 43‑A. The basis of the reference in each case being thus removed, we issue a writ of prohibition in both the writ petitions against the respondents with a direction that the reference instituted before the Evacuee Property Inquiries Tribunal pending before them for inquiry and decision and challenged in these writ petitions should not be proceeded with. K. B. A. Writ issued.