P L D 1957 Supreme Court (Pak (PLP)

CORNELIUS, J. ‑The petitioner is one' Sahibrai, who by means of this petition, preferred under Article 22 of the Constitution, seeks the following reliefs:‑ (a) issue of a writ in the nature of certiorari quashing the order of the Custodian of Evacuee Property, South Zone, West Pakistan, dated the 17th May 1955; and (b) issue of a writ to the same person in the nature of quo warranto to show authority for the validity of the appointment he holds as a Custodian. The facts of the case are simple. Shahibrai is one of seven brothers, Hindus of Larkana, of whom the other six emigrated to India at the Partition. The question arose as to whether these brothers had left any property in Pakistan, and initially, an Assistant Custodian of Evacuee Property posted at Larkana held that each of the absent brothers had an equal share along with Sahibrai in some 1,330 acres of land situated in various districts in the old Province of Sind, which land stood in the revenue records in the name of Sahibrai alone. That order, by which the Assistant Custodian had declared 6/7ths of the agricultural land in question to be evacuee property was at first confirmed by the Custodian, but later, being moved to review his order, the same Custodian on the 10th May 1951, made and order holding that Sahibrai was the sole owner of the said properties and that his evacuee brothers had no share in the property. The order in brief states that an application alleged to have been sent by the six evacuee brothers claiming their shares of the property could not be traced and therefore its genuineness could not be tested. Under the revenue law, there was a presumption of correctness in relation to entries in the record‑of‑rights, in which the name of Sahibrai alone had been entered throughout as the owner of the lands in question, in his personal capacity, and not as Karta or Manager. As regards Sahibrai's contention that his brothers had received forty thousand rupees each in lieu of their shares in the property, the Custodian approved the remark of the Assistant Custodian that if true, this story would have been supported by documentary evidence. The Custodian found that the presumption of joint-ness of the family under Hindu Law had been rebutted by entries favouring Sahibrai which had stood in the revenue records since 1926. In view of the conditions prevailing in the first few years after the Partition of 1947, it was not to be expected that the brothers of Sahibrai would promptly have come over to Larkana to assert their claim. There is, however, on the record a letter issued from the office of the Collector of Larkana, dated May 1954, acknowledging receipt of a petition by one of these brothers, named, Chhangomal, who was resident in Bombay, and informing him that the entire land stood in the name of Sahibrai and "the revenue record does not recognize any share of yours or your other evacuee brothers". For this reason, the letter declared that Chhangomal's "request" could not be granted. What that request was does not appear from the letter, but clearly it related to the claim of Sahibrai's brothers to their share in the land in question. However, some time in 1955, two of these brothers, named, Chhangomal and Daulatram came over to Pakistan and on behalf of all six of them, they filed an application before the Custodian asking him to review the order made by his predecessor on the 10th May 1951, so as to declare their own shares in the land. In explanation of the delay in applying, they stated that they had found difficulty in completing the formalities necessary for leaving India and coming over to Pakistan to fight out the matter. On the merits, they declared that the land was admittedly ancestral, and on the death of their father, Gianchand, it was entered in the name of Sahibrai who was the eldest brother, according to the prevailing practice. They denied Sahibrai's allegation that they had surrendered their shares in the land on receipt of rupees forty thousand each. In proof of the fact that the property was joint, they instanced a deed of the year 1945 by which certain land was partitioned among the brothers, and they relied on entries in books maintained by Sahibrai himself to show that he had distributed the produce of the land among the seven brothers and also the price of certain land which had been sold. They filed affidavits by persons of position belonging to the vicinity to show that the property was indeed joint of all the seven brothers, and declaring that they themselves did not stand to gain by the success of their application, and had only moved in order to ensure that the truth prevailed, they prayed that Sahibrai had committed a fraud in getting the property declared non -evacuee on the allegation that it belonged to him personally and that he should be prosecuted and required to render an account of the produce of that part of the land which did not belong to him. It seems that the Custodian directed a Deputy Custodian to enquire into the matter, and that some evidence was recorded. This included statements by Daulatram on the 19th January 1955, and by Chhangomal on the 22nd April 1955, supporting their application. Eventually, on the 17th May 1955, the Custodian made the order to which the present petition relates. He declared that he was reviewing his predecessor's order suo motu, although it is apparent that he was moved to do so by the application of the six evacuee brothers. He held that the property in question was joint family property in which all the brothers had an equal share. He based this conclusion on the presumption that property owned by a joint Hindu family is joint property even where it stands entered in the revenue records or the title deeds, in the name of a single member of the family, in particular where such person is the eldest member or the Karta. He regarded Sahibrai's allegation that his other brothers had been compensated by a cash payment of rupees forty thousand each as more fiction than fact. He relied upon an original account book produced by the two applicant brothers, maintained by Sahibrai which showed that Sahibrai had been distributing the profits of the land among the brothers in equal shares. He referred also to certain other documents, viz., letters which had passed between the parties and declared that having regard to all the facts and circumstances, it was necessary in the interest of justice to interfere in review with his predecessor's order. The operative order made by him was to the following effect:‑-- (1) That Sahibrai's share in the property was only 1/8th and the remaining 7/8ths of the property was, and had all along been, evacuee property; (2) that Sahibrai should be called upon to render an account of and to refund all the income derived from the 7/8th share of the land which had been declared to be evacuee property with effect from the 1st March 1947; (3) that steps should be taken for recovery from Sahib rai of the amount thus found due; and (4) that no action under the penal provisions of the Administration of Evacuee Property Ordinance need be taken against Sahibrai, since his case had once been accepted by the Custodian. Sahibrai thereupon moved the Custodian to reconsider his order on the ground that he had evidence to produce which would show his single ownership of the disputed land. The Custodian on the 25th August 1955, made an order that it was open to Sahibrai to pursue his remedy under section 18 of the Ordinance which empowers any person claiming rights in any property which has been declared to be evacuee property to prefer a claim to the Custodian on the ground that the property is not evacuee property. He has remained in possession of the disputed land upon furnishing security as required by the authorities. On the 7th December 1955, he moved the High Court of West Pakistan for an appropriate writ declaring that the order made by the Custodian on the 17th May 1955, was illegal, void and inoperative, and prohibiting all authorities concerned from giving effect to it. The petition was dismissed by means of a short order reading as under: "We do not see that the Custodian has acted without jurisdiction or there is any error apparent on the face of the record so as to entitle us to issue the writ prayed for. Dismissed." On the 31st May 1956, another application was made to the same Court for a writ to quash the Custodian's order of the 17th May 1955, a further writ requiring the Custodian to show authority for the validity of his appointment and a third writ to quash enquiry proceedings being held against Sahibrai by the Deputy Custodian at Sukkur. This petition was, however, withdrawn and in its place a petition seeking the first two of the three reliefs mentioned above was instituted in this Court. The petition was admitted for consideration of the contentions: (a) that an order once made by the Custodian could not be reviewed by his successor suo motu; and (b) that the petitioner was entitled under Article 15 of the Consti tution to hold his property until it could be taken from him in any lawful manner. It was also urged that in case the petition for a writ was held not to be competent, it should be treated as a petition for granting special leave to appeal against the Custodian's order. In his arguments before us Mr. Khalid Ishaq has attempted to urge the following points, namely:‑ (1) that the order by the Custodian reviewing an earlier order of his predecessor after a lapse of more than four years was not competent; and (2) that the Custodian's order was vitiated by mis conception regarding Hindu Law. On the first point, Mr. Khalid Ishaq's argument was directed against a rule made by the Central Government under section 46 of the Administration of Evacuee Property Ordinance, fixing periods of limitation for review applica tions. The rule in question is contained in rule 17 of the said Rules, sub‑rule (3) of which reads as under:‑-- "An application for review under subsection (5) of section 36 shall be made within thirty days of the order sought to be reviewed, but the Custodian may review his own order suo motu at any time." It is useful to reproduce also at this place sub‑rule (4) con tained in the same rule, which reads as follows:‑ "The provisions of sections 4, 5 and 12 of the Limitation Act, 1908, or similar provisions of any other enactment, for the time being in force in the area in which the appeal or application is presented, shall apply, so far as applicable, in computing the period prescribed m this rule." Section 36 is the substantive provision of law conferring, inter alia, the power of review, and it will be sufficient for the purposes of this judgment to reproduce subsections (5) and (6) of this section which read as follows:‑ "(5) The Custodian or Additional Custodian may, within the prescribed period, and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order. (6) Subject to the foregoing provisions of the section, any order made by the Custodian, or Additional, Deputy or Assistant Custodian shall be final and shall not be called in question in any Court." It will be seen that the substantive law does not require that for the purposes of review, a Custodian or an Additional) Custodian should be moved by any party in that behalf. This was not to be expected, since these authorities do not exercise purely judicial powers. It will be evident from the fact that all evacuee property vests in the Custodian by virtue of section 6 of the Ordinance, that the power which he and his substitutes and subordinates exercise is essentially an executive power, for carrying out the purposes of the law, namely, the ascertainment, seizure and administration of evacuee property. Bearing in mind the conditions which D resulted from the sudden shifts of population between Pakistan and India which occurred in the period immediately following the Partition and that for the purpose of the exercise of the Custodian's powers, evidence of title to abandoned properties was not always readily available, it must necessarily be assumed that the provision for review in section 36 of the Ordinance was intended to cover review by the Custodian acting suo motu, on the basis of information coming to his notice otherwise than from parties directly interested in the properties in question. It was, therefore, natural that in prescribing limitation for the exercise of the Custodian's powers, provision should be thought necessary for a case in which the Custodian might have to act on his own initiative. In the case of a private party moving for review, the period allowed was thirty days from the order sought to be reviewed, but even this period was not intended to be rigidly observed, in view of the express application of section 5 of the Limitation Act. This section expressly mentions review of judgment and declares that applications for this purpose "may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause" for not making the application in time. This provision is addressed in particular to judgments delivered under the Civil P. C. of which section 114 and Order XLVII are relevant. By section 114 power is given to aggrieved persons to apply for a review of judgment, and in rule 1 of Order XLVII, the Code sets out in detail the circumstances in which such an application shall be competent. One of these circumstances is "the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within (his) knowledge or could not be produced (by him) at the time when the decree was passed." Clearly, in order to meet the case covered by this provision, an elastic rule of limitation was necessary, and section 5 of the Limitation Act expressly provides such elasticity. It is evident that in the present case, the application filed in 1955 by the evacuee brothers and the evidence which they produced constituted new and important matter relevant to the case, and furnished evidence which was not available to the Custodian at the time when the first orders were made in the case, including the order of the 10th May 1951. Mr. Khalid Ishaq in the course of his argument, very rightly admitted that although the Ordinance did not state in detail the circumstances in which a review of an order by the Custodian or Additional Custodian should be permissible, recourse could be had to the general law for ascertaining the principles governing the exercise of this power in the relevant respect. He referred to the provisions contained J on the subject in the Civil P. C. and we consider that, for the purposes of the present case, those principles are set out with sufficient aptness in Order XLVII, rule 1 of the Code. Bearing in mind what has already been said above concerning the special position of the Custodian in relation to property which is evacuee property or which may be thought likely to be evacuee property, the conclusion cannot be voided that in such a case, the Custodian is himself an interested party; who may feel aggrieved inasmuch as property which in law is evacuee property has escaped being declared and dealt with as such. It is natural therefore to expect that the law should give to the Custodian the power of review exercisable upon the coming into existence of circumstances equivalent to the discovery of new and important matter, or evidence not previously available, and in the very nature of the case; it is not possible to fix any limit of time within which such discovery or availability could be given effect to. Therefore, a rule empowering the Custodian to review his own order suo motu, on the principles indicated above, without limit of time, is essentially consistent with reason, in the light of the purposes of the statute. Mr. Khalid Ishaq, however, contended that the words of subsection (5) of section 36 of the Ordinance carried in themselves an obligation upon the Central Government to fix a definite period with reference to both termini, and that to say that in a certain respect, the power of review could be exercised without limit of time was not due compliance with the condition contained in the subsection. He cited in support an order of the Custodian of Karachi published in the Journal Section of the All Pakistan Legal Decisions, at page 34 in the issue of September 1956. In that Order, the learned Custodian (Mr. Justice Muhammad Bakhsh Memon of the High Court of West Pakistan) held that rule 17, sub‑rule (3) of the Evacuee Property Rules made by the Central Government in purported implementation of sub section (5) of section 36 of the Ordinance was bad in law. The following observations of the learned Custodian may be reproduced with advantage:‑ "That the rule framed by the Government under sub section (5) is bad cannot be doubted. The rule framed by the Government under subsection (5) confers an un limited power to act suo motu without limit of time only on the Custodian. Rule is altogether silent about the Additional Custodian, The Legislature had granted the same power of review to the Custodian as well as the Additional Custodian. The Government, however, differ entiated between the two and while they conferred larger powers on the Custodian to act suo motu they were silent in the case of the Additional Custodian. This discrimination was not contemplated or permitted by the Legislature. It cannot be argued that the word "Custodian" in the rule framed under subsection (5) would also include the Additional Custodian. This shows that the rule framed under subsection (5) was essentially bad." "It was argued on behalf of the applicants that the words "prescribed period" appearing in subsection (5) do not mean "circumscribed period" .. . .. .. . True, but I cannot agree with the consequential argument that when a period was to be prescribed by Government the Govern ment was at liberty to say "no period". If the words "prescribed period" were understood to mean "no period" it will be against the very concept and idea of the word "period". The ordinary concept of the word "period" is that it must start at some point and end at some point . . . . . . . . . . . . . The Government could not prescribe or lay down one period in the case of a private party and another in the case of Custodian acting suo motu. "It is therefore clear that under subsection (5) a reasonable period had to be fixed by the Government for the exercise of the jurisdiction in review. This view will be consistent with the principle of finality of litigation . . . . . . . Every order, the effect of which is to vitiate the previous judgment is entirely foreign to the jurisdiction in review specially when no limit of time is placed on that power." With respect to the learned Custodian, we do not find it possible to agree with his reasons or the conclusion which he has reached thereon. The discrimination in the rule between the power of the Custodian and the Additional Custodian to act suo motu may be explained on the basis of their difference in status, and also by reference to sub section (4) of section 36 which gives the Custodian power to revise any order passed by an Additional Custodian. The power of review runs counter to the principle of finality and it is natural to find that it should be restricted in particular instances to the most responsible officers. This is the more so where the power is expressly given to act, not on application by an aggrieved party, but on the officer's own initiative. In considering the validity of the second reason, it is permissible to bear in mind that the Evacuee Property Law is essentially of temporary duration in the sense that it will necessarily be exhausted when rights of evacuee property have been distributed among persons entitled, through the agencies provided under the laws governing the administration of such property, and the Rehabilitation of refugees. It is not undesirable, in view of what has already been said concerning the special position of a Custodian in relation to evacuee property, and the difficulties faced in the ascertainment of such property and the titles thereto to allow these officers the power of review so long as the law under which they act remains in force. The learned Custodian in his judgment remarked that it was open to Government to prescribed a hundred‑year period, for such action, and this would have been a definite period satisfying his own view of the meaning of the expression "period". But he went on to say that "it would then have been successfully argued that period has to be a reason able period." Bearing in mind the nature of the Ordinance and the purposes to be achieved feel no doubt that a period terminating with the life of the Ordinance itself cannot be regarded as otherwise than reasonable. As for the observation regarding finality, that is a principle which is applicable in full force only to matters decided in Courts of law. It cannot with any degree of safety be imported for the purpose of rendering orders made by Custodians in the very difficult circumstances attending their duties, final and unchangeable for all time. That would amount in many cases to effecting changes of title in property, and barring all relief despite the existence of clear proof to the contrary. Accordingly, we have no hesitation in repelling the first argument presented by Mr. Khalid Ishaq and we hold that the rules in question is intra vires, and provides a sufficient warrant for the review by the Custodian in the present case. As for the second argument, although we heard Mr. Khalid Ishaq at length we do not propose to express any opinion regarding the correctness or otherwise of the views expressed by the Custodian in his order of the 17th May 1955, on points of Hindu Law relevant to the case before him. We do this because it is apparent that there are at present before the proper authorities proceedings pending under section 18 of the Ordinance in which these matters will arise for consideration in relation to facts coming to light in the course of those proceedings. It appears thus that the jurisdiction of this Court under Article 22 of the Constitution is not attracted in respect of the present case, since the right of the petitioner to hold the property he claims is still being inquired into by the proper authorities. We accordingly decline to issue the writ prayed for. For the same reason, we do not consider the case to be r a suitable one for grant of special leave to appeal against the order of the Custodian dated the 17th May 1955. The petition is accordingly dismissed with costs. A. H. Petition dismissed.