P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.

This Writ petition is directed against the order of Masood Ahmed J. passed as Custodian in a suo motu review matter dated the 25th April, 1960 against the petitioner. The learned Custodian by this order reviewed the order of his learned predecessor Muhammad Bux Memon, J. dated the 14th September, 1957, and restored the order dated the 1st November, 1955, passed by Mr. Mansur Alam, the then Custodian. The dispute between the parties, in this writ petition, is in respect of the site of 13 burnt evacuee shops situated on Anderson Road, Quetta. Abdul Wahid Khan, the petitioner, on 24th January, 1948 applied for allotment to him of 13 burnt shops for re-construction for shop purposes on lease. On 3rd April, 1948, the Rehabilitation Commissioner, Baluchistan allotted these shops to him for reconstruction on the condition that he would execute an agreement of lease in favour of the Custodian. It appears that the petitioner took possession of the site before executing any agreement. On 13th October, 1949, he, however, executed a lease-deed for one year in favour of the Custodian of Evacuee Property, Baluchistan. This lease was renewable from year to year at the option of the lessor. Curiously enough the lease executed on behalf of the Custodian instead of 13 burnt shops was in respect of 24 Municipal numbers. Its rent was fixed at Rs. 140 per month adjustable towards the cost of construction amounting to Rs. 55,

000. It further provided that as soon as the lessee's costs were adjusted towards the rent the lessee will have no right or title or interest in the property allotted to him and it shall revert to the lessor. On these terms the lease was renewed from year to year. But on 11th December, 1954 another lease was executed on behalf of the Custodian Department which contained absolutely different terms to those which were agreed upon originally between the petitioner and the Custodian Department. Certain interested parties brought this fact to the notice of the Rehabilitation Department and further alleged that the allottee had exceed the limit of the allotment and constructed 32 shops. An inquiry was held by the Rehabilitation Commissioner cum Additional Custodian,, who found that Abdul Wahid Khan has not only managed to include an additional area in the agreement but has actually capitalized on the allotment by converting it into a big business deal whereby he has carried out the construction neither allowed by the allotment nor covered by the agreement. The petitioner took up the matter in appeal before the then A. G. G., who upheld the finding of the Rehabilitation Commissioner and by order dated 18-12-1953 directed the subordinate authorities to investigate into the allegations against the petitioner and in this connection issued the following "It is directed that the possession of the petitioner Abdul Wahid in excess of the thirteen burnt shops belonging to Ram Piari Gurbaksh Singh as allotted to him by the Political Agent's order dated 3-4-1948 should be examined, and that if he is found to possess anything in excess of that order, the property so possessed should be reclaimed and allotment order, if any, should be cancelled. Compensation, if any, is warranted, should be given to him." These directions were not followed by the Rehabilitation Commissioner. Instead of giving effect to the order of the A. G. G., he not only went back on his previous finding but without notice to the representatives of the department further came to the conclusion on 3-11-54 that after excluding the two shops No. 4-2/27 and 28, the petitioner was not found to be in possession of any property not properly allotted to him. On 16-12-54 the Deputy Custodian executed a fresh lease-deed in petitioner's favour. Under the terms of this agreement the rent was reduced from Rs. 1,600 to Rs. 100 per annum. Approved cost of construction was raised from Rs 55,00) to Rs. 87,864 The petitioner was further allowed to pay the price of the site as fixed by the Lessor in six yearly instalments. Thereupon Abdul Rehman and Muhammad Ali Ghouri, petitioner's tenants made representations too Mr. Mansur Alam the then Custodian in Revision No. 157 of 1955. The revision being barred by time, the then Custodian on being satisfied that there was a prima facie case for interference suo motu issued a notice to the petitioner to show cause why the order of the Rehabilitation Commissioner dated 16-12-1954 and the lease should not be set aside. After hearing the petitioner and the representatives of the department. Mr. Mansur Alam came to the conclusion that the petitioner in conspiracy with the officers of the Custodian and Rehabilitation Department had managed to obtain the possession of much larger area then was actually allotted to him. He further held that the Deputy Custodian without any authority had entered into a lease in 1954 which virtually meant that he had gifted the property to the petitioner without any consideration. The then learned Custodian further found that the petitioner instead of Rs. 55,000 which was originally agreed upon as the value of the superstructure to be raised by him had managed to get it increased to Rs. 87,864 illegally. The then learned Custodian in view of the above circumstances set aside the lease-deed executed in favour of the petitioner by the Deputy Custodian, Quetta, in the year 1954, and directed the Additional Custodian to make inquiries about the area of the site of 13 burnt shops which was originally allotted to him. He further directed that the Deputy Custodian will execute a fresh lease in favour of the petitioner containing the terms mentioned in the agreement entered into in the year 1949, and will take action to recover the possession of the excess area of the site which is in his possession. He also directed to investigate how much income the petitioner has earned after the construction of the shops allotted to him with a view to consider the question whether he had recovered such amount as would completely take away his interest in the property allotted to him in the year 1948. The petitioner challenged the above-mentioned order dated the 1st November, 1955 of Mr. Mansur Alam in a review petition before Mr. Muhammad Bux A. Memon, the then Custodian in Review No. 3/57. It may be mentioned that prior to filing of this review petition the petitioner had also filed a writ petition known as Writ Petition No 7/56 in this Court at Quetta. When the matter came up for hearing before the High Court the then Custodian undertook to investigate into the claims of the petitioner and if possible to redress his grievances Accordingly by order dated the 14th September, 1957 the then Custodian reviewed the order of his learned predecessor and set it aside. He upheld the lease-deed executed in his favour in the year 1954 by the Deputy Custodian and found that since the petitioner had constructed the property on the site allotted to him without any objection by the Custodian, Rehabilitation and other connected departments all of them are clearly estopped from challenging, at this stage, the action of the petitioner in putting up the construction on the site that was allotted to him. According to him the petitioner raised constructions on the site that was allotted to him in broad day-light and no one having objected to his action at that time, it was not open either to the Custodian Department or to the Rehabilitation Department to question the rights and liabilities of the petitioner in respect of the reconstructed portion. It will, however, be noticed that in spite of these clear observations the learned Custodian did not review the order of the learned A.G.G. passed by him on 18th December, 1953, on the ground that he had no jurisdiction to do so. Thus this order remained intact and in operation. Thereupon Muhammad Ali Ghouri, one of the tenants of the property in dispute, filed Writ Petition No. 47/58 against the petitioner and challenged the order of the learned Custodian passed on 14th September, 1957, referred to above. This writ petition was dismissed on the ground that the tenant had no locus standi whatever to invoke the writ jurisdiction of this Court, but Akhlaque Husain, J. in his order dated the 10th November, 1958 expressed his surprise on the view taken by Muhammad Bux Memon, J. the then Custodian in the above-mentioned order. He made certain observations about the right of the petitioner in the property in dispute and directed the office to send a copy of his judgment to the office for consideration and taking proper action against the petitioner. Being unsuccessful in the above-mentioned writ petition, the tenants approached Masud Ahmed, J. the then Custodian, for the review of the order of his predecessor Muhammad Bux, J. This application was found time-barred. The learned Custodian did not entertain this application but issued a notice for suo motu review of the order passed by his predecessor in the year 1957. This matter came up for hearing before Masood Ahmed, J. on 25th April, 1960. After examining the various orders passed by the A. G. G. Baluchistan, Mr. Mansur Alam and Mr. Muhammad Bux Memon in the years 1953, 1955 and 1957, he arrived at the irresistible conclusion that the petitioner had committed a fraud on the department and clandestinely obtained possession of much more area than was allotted to him. He further observed as under: "In my opinion, Mr. Mansoor Alam was perfectly justified in setting aside the lease of the year 1954 and in directing that an inquiry be made for finding out the exact dimen6ions and other particulars of 13 burnt shops that were originally allotted to the respondent. His successor, Mr. Muhammad Bux A. Memon was, in my opinion, not justified in setting aside Mr. Mansoor Alam's order and making practically a free gift of the property in dispute to the respondent. I, therefore, set aside the order dated the 14th September, 1957, passed by Mr. Muhammad Bux A. Memon and restore that passed by Mr. Mansoor Alam on the 1st November, 4955. 1 direct further that an inquiry be made for finding out how much area covered by the 13 burnt shops was originally intended to be allotted to the respondent and how much area in addition to that was encroached upon by him afterwards, with a view to determining the relative values of both the areas, which the respondent would not be able to acquire under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Copies of both the orders should be forwarded to the Deputy Rehabilitation and Settlement Commissioner, Quetta, and he should be directed to bold a thorough inquiry into the matter and submit his report, without fail, by the 1st July, 1960. Further action to be taken in the matter would be regulated by the result of the inquiry." The petitioner seeks to challenge this order in the writ petition before us. During the pendency of this writ petition certain shops out of the property in dispute were transferred to respondents Nos. 1, 5, 6, and 8 by the Deputy Settlement Commissioner, Quetta, and the petitioner has also challenged the transfer of these slops in this writ petition. Mr. Jafri the learned counsel for the petitioner has made a faint attempt to persuade us that the decision of Masood Ahmed J. referred to above, is not correct on the merits of the case. The learned counsel has failed to convince us on this point. The number of documents placed on the record confirms our view that the petitioner is not only in possession of a much more area than what was allotted to him but has also managed to obtain a lease in the year 1954 the terms of which are such which fully justify the observations of Masood Ahmad, J. that the officer concerned who executed this lease-deed bad made a free gift of the property in dispute to him. It was urged by Mr. Jafri that the view of Muhammad Bux J. that the department was estopped from challenging the possession of the petitioner of the property in dispute and his right on the site in his possession is correct, has not impressed us. The question of estoppel does not arise constructions on the area which was not covered by the 13 burnt shops was challenged from the beginning. 7 his question was raised from time to time in tte years 1952, 1953 and 1954. The department at no stage made any representation to the petitioner on account of which he changed his position and had thereafter a taken a different attitude which had harmed the interest of the petitioner In the property in dispute. On the other hand the petitioner even after the decision of the Rehabilitation Commissioner in the year 1953 that he is in occupation of much more area than what was allotted to him continued to raise constructions on the property in dispute. It, therefore, does not lie in the mouth of the petitioner to urge before us that the department is in any way estopped to dispute his right to remain in possession of the excess area which was not allotted to him. It must have been noticed that in the year 1954, the Deputy Custodian, Quetta, without the approval of the Custodian or any other higher officer of the Rehabilitation Department executed a fresh lease-deed in favour of the petitioner. The terms of this lease-deed are such which no reasonable persons having any responsiblity to the department could agree in the circumstances of the present case. The Deputy Custodian not only reduced the rent from Rs. 1,600 per annum to Rs. 100 per annum but further increased the cost of construction from the original sanctioned amount of Rs. 55,000 to Rs. 87,

864. The original term that the cost of the construction would be adjusted towards the rent payable by the petitioner was also omitted. The Deputy Custodian introduced a new term that the petitioner would he entitled to be the owner of the superstructure and would pay only the price of the land as determined by the department in six-yearly instalments. Mr. Jafri contended that this action of the Deputy Custodian was fully justified in view of the instructions received from the Central Government on 2nd April, 1953, at page 57 of the paper book, it is quite correct that under these instructions the allottees were granted certain concessions but these concessions were subject to the approval of the superior authorities in the Rehabilitation and Custodian Departments and were not to be invoked of his own by an officer of the status of the Deputy Custodian, Quetta. It seems to us that in the circumstances of the present case Mr. Mansur Alam was perfectly justified in setting aside the order of the Rehabilitation Commissioner passed on 3rd November, 1954 and the lease-deed dated 16th December, 1954. Mr. Muhammad Bux Memon was clearly in error when he restored the above-mentioned order of the Rehabilitation Commissioner and the lease-deed executed in favour of the petitioner on the ground that the department was estopped from going back on their own actions. In our opinion the order of the Rehabilitation Commissioner dated the 3rd November, 1954 and the lease granted on 16th December, 1954 were subject to the revisional power vested in the Custodian. It is, therefore, difficult for us to appreciate how could this right be considered to have been taken away on the plea of estoppel. It is, therefore, quite clear to us that Masood Ahmed J. was perfectly justified in restoring the order passed by Mr. Mansur Alam in the year 1955 and in setting aside the order of Muhammad Bux, J. passed in the year 1957. Mr. Jafri next contended that the learned Custodian had no jurisdiction to exercise the power of review vested in him under section 43 (6) of Act XII of 1957, because the property in dispute was requisitioned by the Government of Pakistan under the Displaced Persons (Compensation and Rehabilitation) Act, 1958; and was no longer an evacuee property. This contention also has no substance. As pointed out by Masood Ahmed J. In March 1959 C when the evacuee property was requisitioned under a notification issued by the Government of Pakistan under subsection (2) of section 3 of the above-mentioned Act application of Muhammad Ali Ghouri respondent was pending in respect of the property in dispute before the Custodian and, therefore, the property In dispute was excluded from the purview of the said notification and had not lost the evacuee character. This contention, therefore, must fail. It was further contended by the learned counsel for the petitioner that the property in dispute was declared as non-evacuee before January 1957 and, therefore under section 3 of Act XII of 1957 the Custodian was not competent to declare it as evacuee property. This contention has no foundation. There is nothing on the record to suggest that the property in dispute was at any time declared as non evacuee. On the other hand on 14th September, 1957, Muhammad Bux J. restored the lease executed in favour of the petitioner in the year 1954. Even if this order is taken to be in the nature declaring the superstructure constructed by the petitioner as non-evacuee it was not done immediately before 1st January, 1957 and the above-mentioned provision, therefore, has no application to the facts of the present case. It was vehemently urged before us that the learned Custodian has transgressed his power of review under section 43 subsection (6) of Act XII of 1957 and has acted in excess of the power of review that vested in him. Mr. Jafri contended that the power of review of the Custodian is to be exercised on the same principles as are laid down In Order XLVII, rule 1, C. P. C. 1n support of his contention the learned counsel relied on a decision of this Court at Lahore in the case of Mrs. Doreen Barkat Ram v. The Custodian, Evacuee Property, West Pakistan, Lohvre (P L D 1962 Lah. 424). In this case Shabir Ahmed, J. observed that the power of review of the Custodian of Evacuee Property under section 43 subsection (6) was not unlimited, and in spite of the fact that the phraseology of this subsection purports to give unlimited powers to the Custodian the provisions of Order XLVII, C. P. C. were not entirely inapplicable to the exercise of the power of review by the Custodian of Evacuee Property. It will, however, be noticed that the learned Judges of the Division Bench In the above-mentioned case did not decide the question before them on the observations referred to above, but on different considerations. Under section 43, rule 6 it is laid down as under: "The Custodian or Additional Custodian may on application made to him in this behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order or an order passed by his predecessor-in-office on any ground whatsoever as the justice of the case may require." The introduction of this subsection has a history behind it. After the decision of the case by the Supreme Court reported as Sahibrai v. Custodian of Evacuee Property, Karachi (P L D 1957 S C (Pak) 63) in which it was held that the principles of Order XLVII, rule 1, C. P. C. are applicable to the power of review vested in the Custodian, the Legislature completely changed the provisions of section 36 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, and introduced the above-mentioned provision of law in Act XII of 1957 in order to remove the difficulties created by the above mentioned decision. In our opinion, therefore, the observation of the Supreme Court, in Sahibrai's case has no application to the provisions of section 43, subsection (6) of Act X11 of 1957. The powers of review vested in the Custodian under the above mentioned provision of law are unlimited and it is open to him to review any order of his predecessor or of his own if the justice of the case so requires. If, therefore, Shabir Ahmed, J. meant by making the above-mentioned observation that the provisions of section 43, Rule 6 are to be read in the light of the observations on Sahibrai's case we respectfully differ from it. In our opinion Shabir Ahmed, J. did not mean so. If the whole judgment in the above-mentioned case is read it would appear that the Division Bench in that case only held that the Custodian in exercise of his power of review under the above mentioned provision of law cannot decide a case in disregard of the clear provisions of law on the ground that the justice of the case demands it. There can be no dispute with this observation and we entirely agree with Shabir Ahmed, J. that if in the exercise E of his power of review the Custodian disregards any provision of law then such an order cannot be considered as a good order. Mr. Jafri, however, has failed to point out in what way Masood Ahmed J. disregarded the provisions of any law when he reviewed the order of Muhammad Bux, J. The question before Masud Ahmed, J. was very simple ; whether Muhammad Bux Memon, J. was justified in reviewing the order of Mr. Mansur Alam and he came to the conclusion that his learned predecessor was not justified in up-setting the order of Mr. Mansur Alam. Mr. Jafri further contended that unless fresh material is dis covered by the Custodian he has no power to review his own order or the order of his predecessor. In support of his contention he r referred us to the case of Rais Ghazi Muhammad v. The Custodian, Evacuee Property, West Pakistan (P L D 1960 Lah. 862). In this case a Division Bench of this Court at Lahore held that the Custodian was not empowered to reopen the case on the ground of fraud if no new material was discovered by him. One gets this impression from the head-note of the case, but if the body of the judgment Is referred to it would be noticed that in that case it was urged before the Division Bench that notwithstanding what is stated in section 3 of Act XII of 1957 if fraud is discovered after 1st January 1957 the Custodian should be able to reopen the transaction. In that context Kayani, C. J. observed as under: "In other words there was no new material which could be said to have led to the discovery of fraud. We have found it necessary to mention these facts because it was argued by the Custodian's counsel that notwithstanding what is stated in section 3 of the Act, If a fraud Is discovered after the 1st January 1957, the Custodian should be able to re-open the transaction. Since there was no discovery of any fresh material, the argument is not available." From the above observations it is absolutely clear that the headnote given in the report is misleading and there is nothing in this judgment which supports the contention of Mr. Jafri that if new facts are not discovered the Custodian is not competent to review the order of his predecessor, or of his own. On the other band, the learned Judges of the High Court in this case took the same view which we have accepted in the present case. Kayani C. J., at page 867 of the report on this question observed as under: "Now, as regards the legal objections, our opinion is that the Custodian's power under section 43, subsection (6), to "review his own order or an order passed by his predecessor-in-office on any ground whatsoever as the justice of the case may require" and "at any time" is very wide and does not confine him to only one occasicn. if something requiring further attention comes to his notice and if the justice of the case so requires, he ought to be able to review his order or that of his predecessor a second time." Thus both the decisions cited by the learned counsel for the petitioner have no bearing on the facts of this case. It is absolutely clear to us that neither Masud Ahmed, J. disregarded any provision of law in reviewing the order of Muhammad Bux, J. nor did he in any way exceed his power of review in setting aside that order. We cannot, therefore, hold that the impugned order suffers from any illegality, in this respect. We, therefore, hold that the impugned order is absolutely valid and no exception can be taken to it. In this writ petition ate petitioner has also challenged the provisional transfer of certain shops by the Deputy Settlement Commissioner, Quetta, under the previsions of Displaced P Persons (Compensation and Rehabilitation) Act, 1958. Mr. Jafri the learned counsel for the petitioner contended that as long as the proceedings in respect of the property in dispute are pending before the Custodian Authorities the Settlement Authorities have no juris diction to settle the property under the above mentioned provision: of law. This contention is not without force. But the petitioner has not challenged the validity of the above-mentioned transfer orders by the department in the proceedings before them. It was urged by the learned counsel for the Department that if the petitioner moves the Settlement Authorities in this respect they would certainly consider the points raised in this connection and decide the question. They contended that If the Settlement Authorities decided the point raised against him it will be open to him to come to this Court in a separate writ petition and obtain the redress of his grievances, Mr. Muqim Ansari the learned Public Prosecutor contended before us that the present Writ Petition suffers from misjoinder of causes of action and we should not exercise our writ jurisdiction in such a matter. His contention appears to us to be well founded. It seems to us that the petitioner is unnecessarily wasting his time in pursuing his remedy before this Court. Even if the petitioner has occupied more area than what was allotted to him under the Compensation Act he is entitled to get the property in his possession on payment of the market price of the land in dispute and on payment of certain penalties. There is another difficulty also in the way of the petitioner. In order to determine his rights in respect of the property in dispute it is essential for him to get the inquiry ordered by Masud Ahmed, J. to be concluded. On the result of that inquiry alone it would be clear what property was allotted to him and what area of the land is in his illegal possession. This inquiry will further show the liabilities of the petitioner In respect of the rent due from him. So long as this inquiry is not concluded the property in dispute will remain an evacuee property and the petitioner also will not be entitled to claim the property in settlement under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In these circumstances we are satisfied that there is no sufficient material before us to adjudicate upon the validity of the transfer of certain shops In favour of some of the above mentioned respondents. The petitioner not only, therefore, should get the inquiry concluded against him, as ordered by Masud Ahmed, J. but should, in the first instance, also approach the Settlement Authority for the adjudication of his rights in respect of the property in dispute for the purposes of settlement. In our opinion, this is not a fit case in which we should exercise our writ jurisdiction on the above-mentioned question Involved in this matter. In the result we find no force in this Writ Petition and, subject to the above remarks, dismiss it with costs. A. H. Petition dismissed.