1969L37 (PLP)

(ii) was not or is not covered by a certificate from the prescribe income‑tax authority to the effect that no objection exists to such creation or transfer ; (b) may reject the application if he is of opinion that the creation or transfer‑ (i) was not or has not been entered into in good faith or for adequate consideration ; or (ii) ought for any other reason not to be confirmed. (4) If the application is not rejected under subsection (3), the Custodian may confirm the creation or transfer either unconditionally or subject to such term3 and conditions as he thinks fit to impose." Studying these provisions together, it will be evident that under section 20, whenever an evacuee has made transfer of any property on or after 1‑3‑1947, to give effect to that transfer, confirmation of Custodian is necessary. The moment it is confirmed then it will not fall within the mischief of "Evacuee Property" and in the said confirmation, in essence, will be involved a sort of declaration about the nature and status of that property. The conclusion which I have reached, also flows from subsection (10) of section 2 of the Displaced Persons (Land Settlement) Act XLVII of 1958, where it is written that, "All other words and expressions used but not defined in this Act and defined in the Registration of Claims (Displaced Persons) Act, 1956 (111 of 1956), the Pakistan Rehabilitation Act, 1956 (XL1I of 1956), the Pakistan (Administration of Evacuee Property) Act, 1957 XII of 1957), or the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), shall have the same meaning as assigned to them in those Acts." This means that when under the Displaced Persons (Land Settlement) Act, any Notification for acquisition of any "Evacuee Property" is issued, then it has to relegate to the evacuee character of that property which can be determined in the light of the definition of that term in section 2(3) of the Pakistan (Administration of Evacuee Property) Act XII of 1957, read with the remedies of obtaining declarations or confirmations under section 22 or 20 of the aforesaid Act‑ (d) I may here notice a case decided by a Division Bench of this Court consisting of my learned brothers Sardar Muhammad Iqbal and Muhammad Akram, JJ., and reported in M. Ghulam Muhammad v. Custodian of Evacuee Property P L D 1966 Lah.

953. In that case, the petitioner had entered into an agreement on the 19th of May 1945 to purchase land from one Mahant Ghulab Singh, who later on became an evacuee and of which agreement he sought confirmation from the Custodian. The learned Judges were of the view that a mere agreement to sell did not create any right, title or interest in the immovable property involved therein. The confirmation of the deed of agreement, according to the learned judges, could not confer any right on the would‑be purchaser and the maximum which he, in the circumstances, could do, was to file a suit for its specific performance after getting the same confirmed from the Custodian. Even the decree for specific performance, according to the learned Judges, could not confer any right on the would‑be purchaser unless the same was again got confirmed from the Custodian. In these circumstances, the learned Judges were of the view that no right or interest having been created by virtue of a mere agreement to sell in favour of the petitioner involved in that case, and the property being an evacuee property it went into the "compensation pool" with the result that the Custodian had no jurisdiction to deal with the same, any more. They, however, went on to observe that had the case been one of seeking a declaration with regard to the character and nature of the property, then the Custodian would have had jurisdiction to grant the said declaration or determine the nature of the property. In that context they held as follows in Paragraph No. 3 of their judgment "

3. It was argued that the case of the petitioner before the Custodian was that the property in dispute was a non- evacuee property and it was for the determination of the nature of the property that the petitioner had approached the Custodian. If the petitioner had in fact claimed this relief, we have no doubt that the Custodian could not have refused to exercise the jurisdiction. What is provided under the notification issued by the Government under section 4 of the Displaced Persons (Land Settlement) Act, is that the evacuee property is acquired and the same vested in the Central Government and the rights of the evacuees are completely extinguished. If, however, a particular property is not an evacuee property, it could not be covered by the said Notification nor could the same form part of the Compensation Pool. In a certain case if a question arises before the Custodian that a certain property is not an evacuee property, the Custodian cannot refuse to exercise jurisdiction on the ground that the said property had vested in the Central Government by virtue of the Notification. What vests in the Central Government is the evacuee property but if the very fact whether the property is evacuee is disputed, then the only authority competent to decide it is the Custodian. If he holds that the property is not evacuee property, then in that event, the notification issued for the acquisition of the property of course will not be attracted to the said property. On the contrary, if he holds that the property is an evacuee one, he will have no jurisdiction left to pass any further order in respect thereof because the property being evacuee stood vested in the Central Government. Thus the Custodian alone can determine the nature of the property as to whether or not it was an evacuee property at the time the Notification was issued. It was held in Muhammad Jamil Asghar v. Improvement Trust P L D 1965 S C 698 :‑ `With respect to the nature of the property, however, the Settlement Authorities have no jurisdiction to record a binding determination. If the property wag in fact not evacuee property and was not vesting in the Central Government, the Settlement Authorities could not grant to themselves any jurisdiction to deal with it by holding that it was evacuee property. Their orders would always be liable to challenge in an ordinary Civil Court on the ground that they had no jurisdiction with respect to the property transferred at all.' In this view of the matter, a question can always arise whether a property which was a subject‑matter of transfer by the Settlement Authorities was, in fact, an evacuee property at the time when it was acquired by the Central Government and if the order of the Settlement Authority is challenged on this ground in any Civil Court, the decision in the question will again not rest with the Civil Court but it will have to be adjudicated upon by the Custodian; because under section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), which is the law still in force, "no civil or revenue Court or any other authority shall have juris diction to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not "evacuee" or whether any property is or is not "evacuee property" or what right or interest, if any, an evacuee has in any such property," and whenever any such question "arises in any Court, or before any other authority, the Court or Authority shall state the question with relevant particulars and remit it to the Custodian for decision . . and the decision of the Custodian on the question stated shall be conclusive." The Custodian thus has the jurisdiction notwithstanding the fact that the evacuee property has been acquired by Notification No. 1376‑RR/4R‑59, dated the 15th of April 1959, to entertain and adjudicate whether a particular property on the date of the said Notification was or was not an evacuee property." Respectfully following the reasoning contained in the above paragraph. I am of the view that it applies with full force to the facts and the circumstances of the present case, because here also an effort is being made by the petitioners to impliedly ask the Custodian to declare the property in dispute as a non -evacuee property on account of its having already been transferred to them by the vendors which transfer the petitioners prayed should be recognised and confirmed by the said officer. "(e) I may here refer to another case reported in Ramzan v. Rehabilitation Commissioner (Legal), Sargodha P L D 1963 Lab. 461 (Manzoor Qadir, C. J. and Shakirullah Jan, J.). In that case a point was raised that after acquisition if land vested in the Central Government and ceased to be evacuee property, then it could not be dealt with by the Settlement and Rehabili tation Authorities which were authorised to deal with only evacuee property ; and, as such, it was contended that it should not be disposed of under the West Pakistan Rehabilitation Settlement Scheme which also deal with only evacuee property. The contention was repelled and it was held that reference in West Pakistan Rehabilitation Settlement Scheme to evacuee property meant not such a property which was "evacuee property" at the time it was dealt with by a Rehabilitation or a Settlement Authority, but it was previously an "evacuee property" and at the moment stood acquired under the Notification hereinbefore referred to in the earlier part of this judgment (or notifications of the kind nature). If this approach and view is carried to its logical conclusion, then it can apply to the present case as well and it can safely be held that the application made before the Custodian did not relate to the property which at the time of the application was an "evacuee property", but which prior to that was "evacuee property" and the previous status of that property was sought to be rectified by confirmation of the transfer in dispute. (f) The wording of section 20 shows that it confers jurisdiction on the Custodian to confirm transfer of "any property" ,made by or on behalf of an evacuee or by or on behalf of a person who has become an evacuee after the date of such confirmation or transfer. The "property" contemplated herein may also be such a property which is not an "evacuee property" technically. This is so because the Legislature has defined both these terms in the Statute. See sections 2 (3) and 2 (5) and somewhere the phrase used is "property" and somewhere it is "evacuee property". Again as was the position in The Lakshmi Insurance Co. Ltd. and another v. Nawa‑i‑Waqat Publications Limited, Queens Road, :Lahore and eleven others P L D 1968 S C 215 there may be ‑cases in which the status of a person is that of an "evacuee" but his ,property may not be an "evacuee property"; as for ‑example, a Joint Stock Company referred to in Exception II of section 2 (3). Another example may be of a person who ,is "evacuee" but all his property may not be "evacuee ,property" as contemplated in Exception I of section 2 (3) which says that certain movables mentioned therein though belonging to an evacuee may not be "evacuee property". Keeping this 4istinction in view, the proposition may be reiterated that in the Statute, the Legislature has somewhere used the term "evacuee property" and somewhere terms quite different from that or the bare term "property". Reference can be made to ,the following .sections which use different terms :‑ Section Terminology used Section 7(3). Where any property in Pakistan belonging to a Joint Stock Company has vested in or been taken possession of by any person. Section

19. Which deals with prohibition of transfers of property generally except movable property of which an evacuee has an immediate physical possession. Section

20. Which deals with restriction on transfer of any property by evacuees. Here the emphasis is on the character of the transferor as an evacuee and not mainly on the property also being technically "evacuee property". Section 20‑concld. That this section covered all types of property is evident from the fact that under section 45 of the Pakistan [Administration of Evacuee Property] Ordinance XV of 1949, the Central Government has been issuing exemption Notifications with regard to various types of properties. (See Evacuee and Rehabilitation Laws by Kazi Muhammad Ashraf (1957) Edition, pp. 111‑112). Section 25 (2) (b). Power of Custodian to appoint a Manager for the property of the "Evacuee" or for carrying on any business or undertaking of the evacuee." All this will show that the power conferred on the Custodian to make confirmation is not peculiar to the property necessarily being "evacuee property", but covers cases of all (types of "property", which may have been transferred by an "evacuee". The fact, therefore, that tine property about which confirmation is being sought under section 20 at the time of the application is not "evacuee property", is totally immaterial and whether it is "evacuee property" or not, makes hardly any difference. The use of word "any" before the word "property" in section 2 also shows that the intention was to make the section all embracing and of a larger rather than a restricted import. The section is aimed at preserving the rights of transferees more than the technical character of the property. What happens to that property subsequently is thus not a point relevant at that stage. The petitioners before the Custodian are concerned with getting "their" transaction confirmed. If that is confirmed then it becomes effective retrospectively from the date it otherwise was to become effective. See M. M. Ispahani Ltd. v. Haji Muhammad Sultan and others (P L D 1961 S C 76 at p.88). The relief allowed under section 20 is thus in reality confined to the recognition of a past transaction and as to how much beneficial it will be for a petitioner in future is not the concern of the Custodian to see. The petitioner may utilise his transaction in whatever manner he likes and the Custodian cannot refuse to exercise jurisdiction merely on the ground that after the date of the aforesaid transfer, the property has been taken over by somebody else. It will be the headache of the petitioner to see as to what relief is available to him from the person, authority, agency or officer who has subsequently taken over the property involved in the transfer confirmed. If at the time of the transfer the transfer was an evacuee (or become evacuee subsequently) that is enough to give jurisdiction to the Custodian. As for example there may be a case in which a particular property is acquired by the Lahore Improvement Trust or Lahore Municipal Corporation under the local laws. After acquisition, the property vests in the acquiring agency and would obviously cease to be evacuee property. A particular petitioner may have purchased that property for earlier from an evacuee and he may be saying that even though it has been acquired as aforesaid, but he being its real owner the compensation should be paid to him. The acquiring agency may tell him that if his title is genuine he should get it confirmed from the Custodian and, in these circumstances, can it be said that the Custodian can refuse to examine the transaction brought before him merely because the property in the meantime has gone to or been taken over by a third person or agency? If the answer to the example herein given by me is against the Custodian then on principle it should be against him in the instant case also and merely because here subsequent acquisition has taken place under the Displaced Persons (Land Settlement) Act, it can hardly make any difference. Speaking with respect to the learned Custodian in the instant case the mistake has taken place by assuming that under section 20 the phrase used is evacuee property" ; whereas it is not so and also by assuming that he is to grant any "future" rights to the petitioner, whereas he was really concerned with a past transaction and was to see whether he should confirm that or not. The third mistake is that he assumed that the property was "evacuee property" whereas actually this is what he was expected to determine by deciding as to whether he should confirm the transaction or not. In between the status of the property as an "evacuee property", or the property of the petitioner, stood the privileged position of the Custodian to confirm or refuse to confirm the transaction. Instead of performing his duty in this respect, he washed off his hands by saying that property having been acquired has ceased to be evacuee property and, therefore, he was not competent to pass any orders on the matter before him. It is to be noticed that acquisition depended upon the character of the property being "evacuee" which character it was the privileged position of the Custodian to refuse to bestow on the property in question. Instead of keeping the acquisition notification subordinate to and dependant upon his adjudication, the learned Custodian erred in letting the said Notification curtail and fetter his jurisdiction. "(g) In section 2 (3) of the Pakistan (Administration of Evacuee Property) Act XII of 1957, reproduced in extenso in an earlier part of this judgment, "evacuee property" includes such a property of an evacuee (which has been) obtained by transfer on or after the 1st day of March 1947, until the transfer is confirmed by the Custodian. This definition itself shows that evacuee character of a property in this context is dependant on the adjudication of the Custodian himself. The evacuee character of a property is thus neither absolute nor irrevocable nor perpetual. It can remain evacuee property so long as its transfer is not confirmed by the Custodian and for which confirmation he has been given independent jurisdiction in section 20 not only with regard to such a type of property but also about any other type of property which an evacuee may have transferred. Even if, therefore, there takes place acquisition of any property of the present kind, under the Displaced Persons (Land Settlement) Act, 1958, that acquisition wills fall through the moment the Custodian confirms the transfer. This shows that the process of acquisition under the Displaced Persons (Land Settlement) Act is subject to the contingency aforesaid. In the definition of the term "evacuee property" it was inherent that it was subject to the Custodian's confirmation of any transaction about it and the Displaced Persons (Land Settlement) Act had no intention to destroy the jurisdiction of the Custodian in that behalf."

3. The upshot of the above discussion is that the order of the learned Custodian shall have to be declared as to be without lawful authority and of no consequence against the petitioners, which I hereby do. The obvious effect of this declaration will be that the case shall have to be remanded to the learned Custodian for fresh decision in accordance with law. At this stage, learned counsel for the petitioners argued that the case should not be remanded and that I should myself go into the merits of the transaction sought to be confirmed from the Custodian and give my own adjudication thereon, especially, when, according to the learned counsel, the property in dispute had never been "treated" as evacuee property on or immediately before the 1st of January 1957 and could no longer be treated as such in view of section 3 of the Pakistan (Administration of Evacuee Property) Act XII of 1957. All these matters are questions of fact, for which the appropriate forum is again that of the Custodian, as was held in Haji Suleman v. Settlement Commissioner, Karachi and others (P L D 1967 Kar. 834), where the petitioner will be at liberty to raise whatever points he likes in that respect. The writ petition is accepted in the terms indicated above. There will be no order as to costs. A. E. Petition accepted.