P L D 1967 Supreme Court 294 (PLP)

CORNELIUS, C. J.‑The facts of the case out of which this appeal by special leave arises are sufficiently stated in the order of this Court, granting leave, in the extract reproduced below:‑ "The petitioners in this case are the heirs of one Subedar Muhammad Hasnain and his brother Mir Ali lba, who had obtained allotments of certain agricultural lands in the village of Piryalo in the district of Khairpur belonging to Vishan Singh and Hassamal, the respondents Nos. I and 2 herein. This allotment order was cancelled by the Deputy Rehabilitation Commissioner, Karachi, under a general notice issued on the 4th of December 1957, because the allottees belonged to the agreed areas. This order was, however, set aside by the High Court of West Pakistan at Lahore on the 3rd of June 1959. In the meantime, however, on the 17th of December 1957, Vishan Singh and Hassamal applied under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), for a declaration that they were non‑evacuees and their properties were non‑evacuee properties. This petition was ultimately allowed on the 25th of August 1960 and the properties in dispute were declared to be non‑evacuee properties. This order was also approved by the Custodian of Karachi on the 5th of January 1961 and the properties were restored to the said Vishan Singh and Hassamal. Thereafter, on the 9th of May 1962, the present petitioners filed an appeal before the Custodian under section 43 of the Act XII of 1957 and this was assigned by the Custodian to the Additional Custodian (Judicial) Karachi, for disposal. The latter, however, by his order of the 1st of June 1962, refused to entertain the appeal on the ground that he was not competent to review an order, which had been approved by the Custodian himself. This order was challenged in the High Court by a writ petition. The High Court did not accept the contention of the petitioners and held that although the approval of the Custodian of the orders of his subordinate authorities was only an administrative order : even so it was not open to the subordinate Custodian authorities to disregard such approval of the Custodian and to take a different view of the case before them in the exercise of their appellate jurisdiction." Leave was granted to consider "an important question of jurisdiction of an Additional Custodian exercising power off, appeal under section 43 of Act X11 of 1957 in respect of matters allotted to him for disposal by the Custodian himself." A point of major importance in the case is that the appellants are permanent allotteas of the lands in question, and thus possess heritable and transferable rights, which cannot be taken away from them except by proper action under law. What has happened in this case is that the private respondents, who are the original owners of the land in question, which had been allotted as evacuee land, made application to the Deputy Custodian on the 17th December 1957, under section 22 of Act XII of 1957 for a declaration that the property was ancestral property inherited by themselves, and was not evacuee property. Notices were issued in a newspaper and to the proper authorities, as required by the rules, but no notices were sent to the appellants, who were the permanent allottees sitting on the land. At a preliminary stage, the application was rejected on the point of limitation, but on appeal, the delay was condoned. A Deputy Custodian received evidence and examined the relevant documents. The nationality status of the applicants before him was also examined and found to be satisfactory. The Deputy Custodian made an order to the effect that on the basis of the facts and circumstances, which had been made to appear before him, he had come to the conclusion that the case before him was a fit case in which the application should not be refused". He thereupon made the declaration sought for, but by further expression rendered it "subject to the approval and confirmation of Hon'ble the Custodian to whom the entire record is submitted". This was on the 25th August 1960 and on the 5th January 1961, the Custodian made an order in the following terms: "The order dated the 25th August 1960, passed by the Deputy Custodian of Evacuee Property, Sukkur is hereby confirmed." The sitting permanent allottees, namely, the appellants did not become aware of this order until proceedings were commenced for their ejectment. They thereupon filed an appeal against the order on the 9th May 1962. This appeal was filed before the Custodian, who made it over to an Additional Custodian for disposal. The Additional Custodian rejected the appeal, saying that the order of the Deputy Custodian appealed from "stands blessed with the approval of the learned Custodian on the 5th January 1961" and "as such since the order has become final under orders of the highest authority, this Court cannot take a different view in appeal". He added the suggestion that the proper remedy for the appellants was by way of review of the order passed by the Custodian on the 5th January 1961. The appellants, however, chose to move by way of a writ petition in the High Court, which was heard and dismissed by a Division Bench. It was contended before the Division Bench that the refusal of the Additional Custodian to exercise his jurisdiction under section 43 of Act XII of 1957 was wrong. Reference was made to a judgment of the Karachi Bench of the High Court published as Muhammad Bachal v. The Custodian of Evacuee Properly (P L D 1962 Kar. 204), where in similar circumstances, it had been held that an order of approval by the Custodian was to be treated as an administrative order and not as a judicial order. The learned Judges, however, proceeding on the view that it was not open to the subordinate authorities to disregard the approval of the Custodian, held that the Additional Custodian was justified in his view that it was not competent to him to review the Custodian's order. On this basis, it was held that the refusal of the Additional Custodian to exercise his jurisdiction was not illegal. The argument that the order of the Deputy Custodian having been made without notice to the allottees 'vas liable to be set aside on the ground of violation of a rule of natural justice was met by the High Court by reference to the Supreme Court judgment in the case of Ataullah Malik (P L D 1964 S C 236). The learned Judges thought that this precedent covered the case before them, but it is to be pointed out that the status of Ataullah Malik in respect of the evacuee property there in question was that of a mere allottee or licensee, whereas the present case was rested on the fact that permanent rights in the land had passed to the writ petitioners. Therefore, the cases were by no means on all fours, in respect of the "natural justice" argument. The learned Judges thought that the writ petitioners had had ample opportunity to present their case before the Additional Settlement and Rehabilitation Commissioner, during the proceedings in implementation of the Deputy Custodian's order. They had failed to appear before the Additional Settlement and Rehabilitation Commissioner. Finally, the learned Judges thought that the writ petition suffered from a fatal defect in that that the writ petitioners had not adopted the alternative remedies by way of revision or review before the Custodian. They concluded by holding that the private respondents had been shown to be entitled to relief that had been given to them. We have heard Mr. S. N. Shamir in support of the appeal. Mr. S. A. Nusrat has replied on behalf of the private respondents, and Mr. Sayeed A. Sheikh has supported the decision of the High Court on behalf of the departmental respondents. This appeal should in our opinion be allowed, and steps should be taken to provide for the appellants that right of appeal from the order of the Deputy Custodian, which appears clearly to have been denied to them by what can only be described as a perversion of procedure in the Custodian's department. The appellants, holding as they did, vested rights in the land in disputes, had a vested right to appeal against the order of the Deputy Custodian, which had the effect of depriving them of the land. It is clear that the procedure adopted by the Deputy Custodian, whose own order was not made after notice to the appellants, in obtaining, again without such notice, the approval of the highest authority, namely, the Custodian, to the order which he had made favouring the original owners, has produced an effect, which was unavoidable by the nature of that procedure, via., to destroy the appellants' right to appeal to the Custodian altogether. The result is emphasised by the further order of the Additional Custodian, to whom their appeal was sent for disposal, holding that he could not interfere with the Custodian's approval of the Deputy Custodian's order. The legality of the Additional Custodian's view is undoubtedly a matter which can be canvassed at some length. But it is quite unnecessary to do so, for the simple reason that the whole proceeding following after the reference of the matter by the Deputy Custodian to the Custodian for his approval has had the clear effect of denying a proper and substantial legal right to the appellants. There is a perversion of procedure apparent on the face of the record, and it is in our view idle to suggest that against such a denial of rights, the proper remedy for the appellant to adopt was to move the Custodian for review or revision. There had been in the relevant respect, an excess of jurisdiction, and the affected party could not be penalised for not throwing themselves again on the mercy of the authorities who were responsible for such excess. The proper and indeed the only authority which possessed power to correct the legal wrong thus done was the High Court acting in its jurisdiction under Article 98 of the Constitution. In order to provide that their right was allowed to the appellants, the proper order of the High Court to have made was to have directed that the Custodian himself should entertain and hear the appeal that had been presented to him. We accordingly allow this appeal, and setting aside the judgment of the High Court, we direct that the appeal filed by the appellants before the Custodian should now be restored to its original number and should be heard and decided by the Custodian himself after proper notice to the parties. We make no order as to costs. Appeal allowed.