P L D 1973 Lahore 230 (PLP)

8. In these circumstances the petitioner filed the above writ petition In She. High Court, on the 16th of August 1960 challenging the validity of the impugned order dated the 4th of March 1960, passed by the Custodian of Evacuee Property, West Pakistan, Lahore. Before us the Custodian of Evacuee Property and the Settlement Authorities did not appear at the hearing and were not represented. Respondent No. 3, the State Bank of Pakistan, has filed its written‑statement in support of the petitioner. The legal representatives of respondent No.

4. Mst. Habiban Begum, were represented before us by their learned counsel who alone opposed this petition.

9. We have heard the arguments of the learned counsel for the parties represented before us. At first the learned counsel for the petitioner and respondent No. 3 both made a half hearted attempts to contend before us that the admission made by Raja Said Akbar Khan, learned counsel for the petitioner before Ch. Aziz Ahmad, Addl. Custodian of Evacuee Property to the effect that the majority of the Shareholders and Directors of the Punjab & Kashmir Bank Ltd. were evacuees, was factually incorrect. They maintained that it was based on no material and on no instructions. We are afraid these arguments cannot be allowed to be countenanced during the course of these proceedings in the exercise of our extraordinary writ jurisdiction and the findings of fact recorded by the competent authorities cannot be allowed to be reopened on this ground. The petitioner cannot be permitted to wriggle out of its own admissions in this manner.

10. The learned counsel for the petitioner and respondent No. 3 have next attempted to by‑pass the impugned order dated the 4th of March 1960, passed by respondent No. 1, by relying on Notification No. SRO‑805 (K)/61, dated the 30th of August 1961, issued under section 55 of the Pakistan (Administra tion of Evacuee Property) Act XII of 1957 'whereby' the Central Government decided to exempt the Punjab and Kashmir Bank Ltd. from the operation of all the provisions of the said Act. It is contended that this had the effect of altogether saving both the said Banks and its properties from the operation of the Act, and in consequence the property in dispute has ceased to be evacuee property vested in the Custodian, Evacuee Property. So that according to the petitioner this writ petition is liable to be accepted on this short ground alone.

11. But we find from the aforementioned notification that the Central Government has exempted the Punjab and Kashmir Bank Ltd., along with many other similar Banks enumerated in the sub‑joined Schedule, from the operation of all the provisions of the said Act under section 55 of the Pakistan (Administration of Evacuee Property) Act, 1957. This section lays down that the Central Government, may by notification, in the official Gazette exempt : "any person or class of persons" or "any property or class of property" from the operation of all or any of the provision of that Act. The notification in question to terms exempts the Banks only and not their properties from the operation of all the provisions of the Act. But the learned counsel for the petitioner has ventured to argue that it would be a sheer contradiction is term to draw any distinction in this respect and hold that although the Bank itself may be treated as non‑evacuee yet its property shall continue to retain the label of the evacuee property subject to the operation of the provisions of the Act. It was observed by Waheeduddin, J. (as he then was) in the Full Bench case of Syed Ali Iqtadar Shah Dara and others v. The Custodian of Evacuee Property, West Pakistan, Lahore (P L D 1964 Lah. 274) that if a person was declared as non‑evacuee his property could not be declared as evacuee property. But in our opinion there may be a situation such as is envisaged in subsection (3) of section 7 of the Act, to the effect that although a joint stock Company whose registered office is situated before the 15th day of August 1947 in any place in the territories now comprising in India cannot be ‑ regarded as an evacuee, yet its properties may continue to remain vested in the Custodian. Fortunately for us the Supreme Court of Pakistan has already interpreted this very notification under consideration in the Punjab Co‑operative Bank Ltd. v. The Republic of Pakistan and 128 others (P L D 1964 S C 616) and observed that : "The Act of 1957 not only deals with evacuee property but also with the status of persons as evacuees. Section 55 contemplates that the exemption that may be granted may be either in respect of any person or class of persons of any property or class of property. The notification of the 30th of August 1961 only exempts Banks as juristic persons from the operation of the said Act. It does not say anything about the properties of such exempted persons. It cannot, therefore, be said that this notification also excluded the properties of the appellant from the operation of the provisions of the Act of 1957." We are, therefore, of the view that this notification in question on which the petitioner has relied does not come to its rescue and it did not have the effect of exempting the property in dispute belonging to the Punjab and Kashmir Bank Ltd., from the operation of the Pakistan (Administration of Evacuee Property) Act, 1957. 11‑A. The learned counsel for the petitioner has pointed out that the property in dispute was never treated as evacuee property immediately before 1‑1‑1957 and, therefore, under the law the Custodian authorities had no jurisdiction at all to declare it as evacuee property at any time afterwards, In this connection section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957 lays down that:‑ 3.‑(J) Notwithstanding anything contained in this Act no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property on or after the said date. (2) Nothing in subsection (1) shall apply‑ (a) ... (b) to any property which is occupied, supervised or managed by a person whose authority or right so to do up to the 28th day of February 1947 has not been accepted or approved by the Custodian." In so far as the Punjab and Kashmir Bank Ltd., is concerned, on the 28th of November 1953, late Mr. Justice Shabir Ahmad had passed an order for its winding up and the State Bank of Pakistan was actually appointed as its Official Liquidator under section 15 of the Banking Companies Control Act XXII of 1948. Thereby all the properties belonging to the Punjab and Kashmir Bank were vested in custodia legis under the control of the High Court in the exercise of its powers as a Company Court under the Companies Act, 1913. All along neither the Bank in question nor its properties, including the building in dispute, were treated as evacuee or evacuee property immediately before 1‑1‑19:

7. It was not until the 19th of December 1959 that the Additional Custodian of Evacuee Property for the first time, on the aforesaid reference made by the civil Court, at the instance of the two tenants, under section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957 held the Bank to be an evacuee and its properties as evacuee properties. In the circumstances of this case this position on facts incontrovertible and was never denied before us. In this connection subsection (1) of section 3 has an overriding effect and lays down that : "Notwithstanding anything contained in this Act", no person or property not "treated" as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date.

12. In interpreting this section in Rais Ghazi Muhammad v. The Custodian, Evacuee Property, West Pakistan (P L D 1960 Lah. 862) Kayani, C. J. with whom Rizvi, J. concurred, observed that the words "immediately before the first day of January 1957" in the context mean on the 31st day of December 1956. It is evident that the building in dispute remained in the management of the Official Liquidator appointed by the High Court at the relevant time, on the 31st of December 19.,6, immediately before the first day of January 1957 within the meanings of subsection (1) of section 3 of the Act, and was not treated as evacuee property.

13. In Abdul Khaliq Abdul Razzaq v. Kishanchand and others (P L D 1964 S C 74) the Supreme Court in interpreting the term "Treated" as evacuee property in the context observed that the "treating" must be obviously by some officer or authority who could control or make use of this property under the Act. So construed, "treating", must relate to either a declaration by the Custodian about the nature of the property or its user for the purposes of the Act by him, or by the Rehabilitation Authorities so as to indicate a consciousness' of the actual or assumed nature of the property. In the opinion of the Court by the mere entry in the revenue record showing the owner of the property to be evacuee was not enough and as such it could not be said that a person or his property was "treated" as evacuee or evacuee property within the meanings of this section. Similarly in Mst. Jindo and another v. Custodian of Evacuee Property, West Pakistan and others (P L D 1964 Lah. 351) it was held that the word "treating" in section 3(1) of the Pakistan (Administration of Evacuee Property) Act. 1957 must relate to either a declaration by the Custodian about the nature of the property, or its user for the purposes of Act by him or by the Rehabilitation Authorities, so as to indicate a consciousness of the actual or assumed nature of the property. In Syed Ali Iqtadar Shah Data and others v. The Custodian of Evacuee Property, West Pakistan, Lahore the Court elaborated that the significance of the words "not treated" used in this subsection cannot be overlooked and the mere vesting of the property in the Custodian was not sufficient. In this connection the Court further observed that there was a vast difference between the two notions, namely, the vesting of property and the treatment of a property. In the first case, by fiction of lair the property generally vests in the Custodian to enable him to take possession or to take other steps for the protection of specified properties. In the other, some overt act in respect of a particular property is implied, It was further emphasised in Mst. Naziran v. Mr. Wall Muhammad Nazar, Deputy Custodian and others (Law Notes 1968 Lah. 129) that only an overt act on the part of the Rehabilitation Department or the Custodian before the relevant date should be considered as sufficient in treating the property as evacuee property.

14. While on this subject our attention was also drawn to a judgment dated the 26th of April 1965 delivered by one of us (Muhammad Akram, J.), in the case of "Punjab and Kashmir Bank Ltd. (in Liquidation) v. Messrs Punjab Tannery, etc., Wazirabad and others" (Civil Original No. 69 of 1963). This was a suit tried by the High Court in the exercise of its extraordinary civil jurisdiction after it was transferred from a lower Court under section 62 of the Banking Companies Ordinance, 1962. The suit was filed on behalf of the Punjab and Kashmir Bank Ltd. through the official liquidator against the defendants for recovery of money on the basis of an equitable mortgage of the immovable properties. In that case on the strength of the order dated the 19th December 1959, passed by the Additional Custodian of Evacuee Property, Lahore in the instant case : "Rawalpindi Central Co‑operative Bank v. The Punjab & Kashmir Bank Ltd." declaring the Bank as an evacuee and its properties to be evacuee properties the defendants raised the objection that the suit of the plaintiff was not competent and must be dismissed on this ground alone. In rejecting this objection the High Court was of the opinion that there was nothing to show that the property of the Punjab & Kashmir Bank Ltd. was treated as evacuee property before the first of January 1957. In fact at the relevant time the State Bank of Pakistan was administering the properties of the plaintiff Bank as its Official Liquidator under the order of the Court and in view of the express and overriding provision contained in sub section (1) of section 3 of the Act neither the Punjab & Kashmir Bank Ltd. nor its property could be treated as evacuee or evacuee property as the case may be, for the first time, after the 1st of January 1957. On this reasoning, therefore, in that case the High Court held that this order dated the 19th of December 1959 passed by the Additional Custodian was wholly without jurisdiction. 14‑A. It maybe seen that subsection (1) of section 3 is mandatory in its character and has an overriding effect. As already stated neither the Custodian nor the Rehabilitation Authorities treated the Punjab & Kashmir Bank Ltd. or its property as evacuee or evacuee property at any time before 1st s of January 1957. It, therefore, follows that they had no jurisdiction to treat the property in dispute as evacuee property for the first time after the 1st of January 1957.

15. In this connection we may pause here to consider the effect of subsection (2) of section 3 of the Act, if any, on this case. This subsection is grafted as one of the exceptions to the general rule contained in subsection (1) of section 3 of the Act. This in terms lays down that nothing in subsection (t) of section 3 of the Act shall apply to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty‑eighth day of February 1947, has not been accepted or approved by the Custodian. In interpreting this clause in Rats Ghazi Muhammad v. The Custodian of Evacuee Property. West Pakistan the Court observed that "it was not possible to accept the argument that it applies to the case of all persons other than the original owners of the property as, for instance, transferees, trespassers and agents." The Court remarks that : "On its plain language it applied only to a person whose authority or right to occupy, supervise or manage any property had not been accepted or approved by the Custodian". In this connection in an elaborate discussion on this subject Mr. Justice Waheeduddin (as he then was) in the Full Bench case of Syed Ali Iqtadar Shah Dara and others v. The Custodian of Evacuee Property, West Pakistan, Lahore has observed that :‑ "Sub‑clause (2) of subsection (2) of section 3 refers only to those cases where the property being admittedly evacuee property is occupied, supervised or managed by a person whose authority or right so to do after the 28th of day of February 1947 has not been accepted or approved by the Custodian. Now who are those persons, whose authority or right require the approval or acceptance of the Custodian 7 There is little doubt that such persons cannot be the owner of the property because their occupation, supervision or management is in their own right and their right so to do cannot be assailed on the ground that they had already become evacuee and the property vests in the Custodian. Therefore, by process of reasoning its shall have to be applied only to those persons whose: right to do any of the above acts is expected to receive the consent or approval of the Custodian. Looking at this provision from this angle it appears to me that in the first place this sub‑clause applies to those persons who claim to have derived their title through the evacuees and the transaction in their favour for some reason or other remains unconfirmed by the Custodian Authorities. Secondly, It applies to those cases where any such property is occupied by an agent or representative of an evacuee residing in India. It further applies to those cases where an evacuee is occupied by a person without any legal or valid right, which also includes the case of a trespasser. This is evident from the words 'right to do' used in the subsection. If a trespasser is found to be in possession of an evacuee property, he will certainly be occupying, managing and supervising it without the approval of the Custodian and his right to hold it can be challenged on the ground of his unauthorised occupation. One can conceive of a trespasser who is in possession of the property since before the 28th February 1947 which has ripened into adverse possession or title before that date. But such a case stands on a different footing and would be decided by the Custodian on the general principle of law applicable to such cases. I am, therefore, of the view that it covers not only the case of agents, transferees, and representatives of evacuees but also the case of the trespassers.

16. In the instant case as already observed in Civil Original No. 14 of 1952 late Mr. Justice Shabir Ahmad. Company Judge, High Court of Judicature at Lahore had ordered on 28th of November 1953, under section 15(3) of the Banking Companies Control Act XXII of 1948 that the Punjab & Kashmir Bank Ltd. should be wound up and appointed the State Bank of Pakistan as its Official Liquidator. Thereby all the properties belonging to this Bank under liquidation remained in custodia legis under the superintendence and control of the Court through its appointed Official Liquidator. This was by virtue of the order passed by the High Court and not on account of any voluntary act on the part of the Bank. Even if the order for the winding up and appointment of the Official Liquidator passed by the High Court was not accepted or approved by the Custodian of Evacuee Property, it cannot he held that this case fell within the purview of section 3(2)(b) and it was covered by this exception. The position of the Official Liquidator, incharge of the properties of the Bank under the order of the Court, was not merely that of a trespasser, nor as a person holding under or through the Bank by its volition but independently by virtue of the order of the Court. As a result of the above discussion, we are of the opinion that the Custodian Authorities had no jurisdiction to treat the property in dispute in the hands of the petitioner as evacuee property in the year 1959. But the Additional Custodian of Evacuee Property in his order dated the 19th of December 1959 and the Custodian of Evacuee Property in his impugned order dated the 4th of March 1960 have both failed to even advert to this Important aspect of the case. They have, therefore, wrongly assumed jurisdiction in treating the property in dispute as evacuee property long after the 1st of January 1957 for the first time and it is difficult to uphold their orders. In consequence the order subsequently passed by the settlement authorities, on the basis of these Impugned orders, transferring this property to respondent No. 4, cannot be allowed to stand.

17. For the foregoing reasons we accept this writ petition and quash both the orders dated the 19th of December 1959 passed by the Additional Custodian and dated the 4th of March 1960 passed by the Custodian of Evacuee Property, Lahore. But there shall be no order as to costs in the circumstances of this case. Petition accepted.