P L D 1959 (W (PLP)

KHAMISANI, J.‑The present writ petition relates to a dispute concerning a building which originally belonged to one Jiwatram. He died leaving behind two sons Mewaram and Sobhraj. Sobhraj migrated to India. Mewaram, however, remained in Pakistan. The Cosmopolitan Co‑operative Housing Society Limited passed a resolution on 6th April 1958 sanctioning the transfer of Sobhraj's share in the building in favour of Mewaram and conse quently a letter was addressed to the City Deputy Collector on 10th April 1948 to give effect to it in the relevant record maintain ed in the City Survey Office. One Ghulam Shah was directed to hold enquiry as ‑a result of which he recorded statements of Sobhraj and Mewaram and their witnesses. The necessary trans fer was accordingly effected in the name of Mewaram. Thereafter Sobhraj left for India. Mewaram applied for confirmation of the share acquired by him through Sobhraj. Mr. Jaffari the then Additional Deputy Custodian, confirmed the partitioned portion of the building in favour of the petitioner. An appeal was filed against this order before Mr. Akbar Hussain, the then Custodian, who dismissed it on the 3rd of March 1951. Thereafter an application was moved before Mr. Mansur Alam, Custodian, for revising the order of Mr. Jaffari dated 6th October 195 1 and for reviewing the order passed by Mr. Akbar Hussain on 3rd March 1951. These matters came up before the Custodian on 15th March 1958 when the Custodian exercising the powers vested in him of revision suo motu set aside the order passed by Mr. Jaffari. He also, by the same order, reviewed the order of his predecessor passed on 3rd March 1951 and set it aside. It is against this order that this, writ petition has been filed to secure a writ of certiorari and have the order passed by the Custodian on 15th March 1958 quashed.

2. The only point involved in this petition is Whether the Custodian could on 15th March 1958 exercise his powers of review and set aside the order passed by his predecessor.

3. The relevant section which deals with the powers of appeal, revision and review is section 43 of Act XII of 1957 [Pakistan (Administration of Evacuee Property) Act, 1957] and it will be advantageous to reproduce it "

43. Appeal, revision and review.‑(1) Any person aggrieved by a final order under section 20, section 22 or section 23 passed by a Deputy or, Assistant Custodian may prefer an appeal to the Custodian. (2) The appeal shall be presented in such manner and within such time as may be prescribed. (3) The Custodian to whom an appeal is preferred under subsection (1) may dispose of it himself, or make it over for dis posal to an Additional Custodian. (4) The Custodian may, at any time, either of his own motion or an application made to him within the prescribed period in this behalf call for the record of any proceeding for the adminis tration of evacuee property, which is pending before or has been disposed of by, an officer subordinate to him, including an Additional Custodian, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said pro ceeding, and may pass such order in relation thereto as he thinks fit. Provided that the Custodian shall not pass an order revising or modifying an order affecting any person without giving such person and the Rehabilitation Authority an opportunity of being heard. (5) The Custodian may dispose of a case under subsection (4) himself or, except when it relates to an order of an Additional Custodian, make it over to an Additional Custodian for dis posal. (6) The Custodian or Additional Custodian may on applica tion 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. Provided that no final order passed on or before the seven teenth day of November 1956, declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed. (7) Subject to the foregoing provisions of this section, any order made by the Custodian, or Additional, Deputy or Assis tant Custodian shall be final and shall not be called in question in any Court". Subsection (6) of section 43 inter alia confers on the Custodian the powers of review. The power of review contemplated in sub section (6) of section 43 is controlled by proviso to this subsection which postulates "no final order passed on or before the seven teenth day of November 1956, declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed". The proviso operates as a bar on the powers of the Custodian and limits them to their exercise in respect of orders passed after 17th November 1956. What is necessary in order that the Custodian should exercise his powers of review is that the order which is purported to be reviewed should not be a final order and that it should not have been passed before a the seventeenth day of November 1956. In the present case the orders set aside by the Custodian are the orders passed by the Additional Deputy Custodian and the Custodian. The order of the Additional Deputy Custodian obviously would, not be a final order and, therefore, would not be hit by the proviso quoted above. The order of the Custodian passed on the 3rd March 1951, although obviously a final order within the meaning of proviso to subsection (6) of section 43 property having been finally confirmed by it in the name of the petitioner, had been passed as far back as 3rd March 1951. The Custodian, in view of what is contained in the proviso quoted above was not compe tent to review the order passed by his predecessor on 3rd March 1951. The order, therefore, in our view is without jurisdiction.

4. The learned counsel who appeared for the respondent‑Custo dian contended that the proviso to subsection (6) of section 43 is referable to section 22 of Pakistan (Administration of Evacuee Property) Act (XII of 1957) and therefore the final order mentioned in proviso to subsection (6) of section 43 is the order passed by the Additional Deputy Custodian under section 22 of the Act. We do not see our way to agree with the learned counsel on this point. The proviso to subsection (6) of section 43 by no stretch of imagination would be construed to be referable to section 22 of Pakistan (Administration of Evacuee Property) Act (XII of 1957). The power of revision vested in the Custodian is not controlled by the proviso in question but has been kept alive and the Custodian could therefore exercise his revisional powers and set aside an order passed under section 22 of the Act. The Custo dian, in fact, has done this. It is the order of his predecessor that has been reviewed by the Custodian. It is, therefore, review powers of the Custodian that are envisaged in the proviso under discussion and are being questioned. The learned counsel for the Custodian also ultimately was constrained to be of this view and had in support of our view referred us to Act XLV of 1958 (Pakistan (Administration of Evacuee Property) (Amendment) Act, 1958). Section 4 of this Act amends section 43 of Act XII of l9j7 and omits proviso from its subsection (6). This, accord ing to the learned counsel, was perhaps done with a view to obviate the difficulties that had been created on account of its operation. We are, therefore, of the view that the order of tile Custodian passed on 15th March 1958 was without jurisdiction. We accord ingly issue writ of certiorari and quash the said order. In view of the peculiar circumstances of this case, we make no order as to costs. A. H. Order quashed.