P L D 1958 (W (PLP)

RAHMAN. C. J.‑-- Muzaffar Ali Jaffery and Mst. Amna Begum, his wife, seek a writ by the present petition against the Custodian of Evacuee Property, Karachi, who has refused to confirm a transaction of sale of a certain plot of land with the house constructed thereon by Kewalram Lekhraj, in favour of the petitioner No.

1. Respondent‑2 is one, Inayat Ali, who had objected to the confirmation of the transaction before the Custodian. The relevant facts are as follows :‑ In September 1947, petitioner Muzaffar Ali Jaffery is said to have advanced a loan of Rs. 6,500 to Kewalram Lekhraj who owned the house in question built on a plot leased out to him by the Municipal Corporation of Karachi, on certain terms. As a security for the return of the loan, the said Kewalram Lekhraj is alleged to have deposited the title deeds of the house with petitioner (1) thus creating an equitable mortgage. The loan was to carry interest at 12 cent per annum. Kewalram Lakhraj migrated to India some time in 1948 and became an evacuee. The property in question, therefore, vested in the Custodian. On the 14th July 1949, it is stated, Kewalram Lekhraj, as a result of persistent requests by petitioner (1) agreed to sell the house in question to him after obtaining permission of the appropriate authorities, for a consideration of Rs. 8,

500. The money due on the loan was to be adjusted in the sale price. A formal agreement was drawn up and signed on the 14th July 1949, at Karachi. It was sent to Kewalram Lekhraj who executed it at Bombay. A sum of Rs. 1,400 was due to petitioner (1) by way of interest on the loan, by that date. Petitioner (1) agreed to forego Rs. 400 out of this interest accrued, and agreed to pay Rs. 1,000 over and above the money due to him, to complete the transaction. Kewalram Lekhraj came to Karachi and attempted to obtain the necessary permission for the sale from the relevant authorities. The site on which the house stands belongs to the Karachi Municipal Corporation and has been leased out to Kewalram Lekhraj on the condition, inter alia, that he would not transfer his lease‑hold rights in the plot, except with the prior consent of the Karachi Municipal Corporation and would not take a profit over the value of the construction that he had put up on the plot. A copy of the lease deed exists on the file and is marked "A". A petition under section 17 of the Pakistan Administration of Evacuce Property Ordinance (XV of 1949) was made to the Deputy Custodian, who approved of the transaction for the purposes of registration, by order dated 27‑3‑1951. Rs. 1,000 were deposited by the petitioner‑1 in the Custodian office. On 29‑3‑1951, the sale‑deed was duly registered. An application was then made for confirmation of the transaction in accordance with the condition imposed by the Deputy Custodian while according his approval to the registration. Inayat Ali appeared before the Deputy Custodian and raised objections to the confirmation. By order dated 27‑4‑1956, the Deputy Custodian refused to confirm the transaction of sale, vide copy Exh. C on the record. Petitioner (1) went up in appeal against that order. The Additional Custodian, on 29‑9‑1957, allowed the appeal and directed that the transaction be confirmed under section 16 of the Ordinance. Inayat Ali approached the Custodian of Evacuee Property in revision under section 36 (4) of the Ordinance, and the learned Custodian allowed the revision and set aside the order of confirmation, but permitted a charge for Rs. 8,500 to be created on the property with interest at 6 per cent. per annum from the date of dispossession of petitioner (1) in favour of the latter., It is this order of the learned Custodian which, is being challenged in the present petition. A certified copy of the impugned order is Exh. "E" on the file. The only ground mentioned by the learned Custodian in his order dated 27‑4‑1956 is that the transaction of transfer must fail for inadequacy of consideration. He observed that the subject‑matter of the transfer was a bungalow on a plot of 700 square yards in area located on Jamshed Road, and that it had been sold for a paltry sum of Rs. 8,500 which obviously was not an adequate consideration even for the land. He, therefore did not consider It necessary to go into the other points raised by the parties before him or dealt with by the learned Additional Custodian in his order. A copy of the lease deed granted by the Corporation for the plot under the house has been placed on the file of the case. Clauses (8) and (9) of the conditions to which the lease was subject, are relevant and may be set out in extenso :‑ "

8. In the event of the lessee wishing to transfer his lease hold right in the plot, he shall apply to the Standing Committee for permission to do so and shall at the same time submit a declaration in the prescribed form duly signed by him and the intending purchaser that no profit has been paid or received over the value of the construction of the building existing on the plot. The sale shall be subject to the approval of the Standing Committee and shall not be deemed to have been effected until sanctioned by the Standing Committee.

9. The building shall be used by the lessee for his own and his family's residential purposes and shall not be let out on rent except with the previous written permission of the Standing Committee in which case rent to be charged shall not exceed 6 per cent. per annum on the capital cost of the building. The capital cost of the building shall be the actual cost certified by the lessee to the Municipal Corporation at the time of completion of the building or the completion of any additions or alterations to such builing and in case of dispute or doubt as to the amount, the same shall be determined by the Standing Committee. The building cannot be let out on rent to anyone who cannot in his own capacity be eligible to obtain the lease of a plot in this area." Condition No. 10 of the agreement provided that if at any time it is found that the lessee has wilfully made a false or 1vrong statement or has committed a breach of the conditions, the lease shall be liable to be determined forthwith. There are other conditions of the lease which are not material for our purpose. It has been forcibly argued by Mr. Tufail Ali on behalf of the petitioner that, in the face of conditions No. 8 and 9 of the lease agreement, it was not open to the parties to name a consideration for the transaction higher than Rs. 8,500 which was the declared cost of construction of the house in the Corporation records. Mr. Fazeel, who appeared for the Custodian, suggested that the expression the value of the construction of the building existing on the plot" occurring in condition No. 8, should be distinguished from "the capital cost" mentioned in condition No. 9 of the lease. In the view of the learned counsel the value of tile construct for the purpose of condition No. 8 may well be the market value at the time of the sale transaction and need not be identical with the capital cost of the building as appearing from the Corporation records. This line of approach omits consideration of the fact that, under condition No. 8, no profit can be paid or received over the value of the property. Now "market value" is a relative term. The price of a building in the market at any one time depends on several factors. The type of construction, the locality where it exists, the uses to which the property can be put, the needs of the parties are some of the factors which may influence the price of a building. There can be no objective standard by which the market value could be fixed at any one time so as to establish that a price in excess of such fixed value should be deemed to be profit. It seems to us that the use of the word "profit" in condition No. 8 would be deprived of all significance if this inter pretation of the condition is adopted. The word "profit" could only have reference to the return made to the owner over and above what he had spent on the property. On this view, the expression "value of the construction of the buildings" occurring in condition No. 8 must be equated with the "capital cost of the building" referred to in condition No.

9. The two conditions obviously have to be read together. The net result of the A discussion, therefore, is that, as a matter of law, it was not open to the parties to effect the sale for a higher consideration than Rs. 8,500 which was the declared value of the construction appearing in the corporation records. Consequently it follows that the learned Custodian proceeded to withhold confirmation of the transaction on a ground which is legally untenable. In these circumstances, the learned Custodian must be deemed to have exceeded his jurisdiction in passing the order. that he did. Of course, it would be open to the learned Custodian to consider the question of confirmation on any other ground that may be available in this case, but he certainly could not have rested his order on the ground of inadequacy of consideration, because the maximum consideration permissible under the law was being mentioned as the consideration for the sale. Mr. Ibadatyar Khan, who represents respondent (2) before us, invited our attention to section 5 of Act XII of 1957, which enacts that the provisions of the Act, arid any rule or order made thereunder, shall have effect notwithstanding anything inconsistent therewith, contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law. Subsection (2) declares that nothing in any other law controlling the rents of, or evictions from any property shall apply or be deemed ever to have applied, to evacuee property. It was, therefore, re presented by the learned counsel that the conditions in the lease deed granted by the Corporation would not be binding on the Custodian. The true import of these provisions has to be found in the context of the whole Act. It seems to us that the inference sought to be drawn does not follow that the Custodian is cloaked with higher rights in respect of ownership of any property than those possessed by the evacuee owner, except in respect of matters which are specifically provided for to the contrary in the Act. To take an illustration, the meaning of the provision, obviously is not that if an evacuee property is subject to a mortgage or an easement dating from the time of the evacuee owner's possession, then the Custodian can ignore the mortgage or the easement. If of the Custodian were to sell the property in question in the circumstances of the present case, to view of the provisions of the lease granted by the Corporation, which is the source of title of Lekhraj, it would not be possible to contend that the Custodian could sell the property for a higher sum than Rs. 8,

500. The provisions of section 5 were obviously intended to protect evacuee property against the effect of transactions that may have been entered into, after the Ist of March 1947. The provisions of the Act have been given retrospective effect for certain purposes fro c that date. The object could not be that the restrictions to which the property was subject when it was in the possession of the original owner, who is now an evacuee; were abrogated wholesale. The upshot of the discussion is that the order passed by the, Custodian on the sole ground mentioned by him cannot be supported in law, and we hereby quash it. We direct that he` should re‑hear the parties and pass such order as may be called for in accordance with law in the revision application which must be deemed to be still pending with him. There will be no order as to costs in this writ petition. A. H. Petition accepted.