P L D 1973 Supreme Court 537 (PLP)

The next contention is that the confirmation of sale was obtained by fraud by the respondent. This aspect of the question was considered by the High Court. It came to the conclusion that the material before the Custodian was the same and there was no new material which could be said to have led to the discovery of fraud. No particulars have been given of the fraud alleged to have been committed by the respondent. The only point urged by the learned counsel for the appellant was that the sale‑deed dated the 6th June 1947, was not a genuine document and, therefore, a fraud has been played on the Custodian by obtaining the confirmation of the sale by order dated the 2nd December 1953. I have gone through the order of the Custodian dated the 2nd December 1953, and it appears from it that he has considered the question of genuineness of transaction and has come to the conclusion that it was genuine one. This fact, therefore, cannot be considered to be of such a nature as to lead to the conclusion that a fraud was committed by the respondent. In my opinion, there is no material on the record to come to a prima facie conclusion that a fraud was committed by the respondent in obtaining the confirmation of sale by the Custodian's order dated the 2nd December 1953. In this view of the matter, the plea of fraud is not available to the appellant and it is unnecessary for me to go into the question whether the Custodian could set aside the confirmation on the ground of fraud. The only question that requires consideration is whether section 3 was a bar for the Custodian to review the order of confirmation of a sale dated the 2nd December 1953. In order to appreciate this point it is necessary to reproduce this provision of law, Section 3 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 reads as under: ‑ '3. (1) Notwithstanding anything contained In this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date. (2) Nothing in subsection (P L D 1964 Lab. 274) shall apply: ‑ (a) To any person in respect of whom or to any property in respect of which any action has commenced or any proceed ings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property, or (b) To any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty‑eighth day of February 1947, has not been accepted or approved by the Custodian. The scope and import of this section was considered by me in the case of Syed Ali Iqtidar Shah Dara and others v. The Custodian, Evacuee Property. West Pakistan, Lahore (1). After discussing different aspects of this question, I came to the following conclusions: ‑ (1) That no person or property can be declared as evacuee or evacuee property after the 1st of January 1957, if it was not treated as such before that date by the Custodian. The treatment referred to in this section indicates that some overt act must have been done by the Custodian or Rehabilitation Authorities. Mere vesting of the properties in the Custodian under section 7 or holding possession under section 11 will not mean that such properties were treated as evacuee properties. If a person has been declared as a non‑evacuee, his property cannot be declared to be evacuee property. If the Custodian has confirmed a transaction or approved the right of supervision, management and possession of any party, such properties also cannot be declared as evacuee properties. (2) All cases in which action has commenced or proceedings are pending immediately before the 1st of January 1957, are outside the purview of section 3(P L D 1964 Lab. 274). (3) Only those properties are covered by clause (b) which is in unauthorised possession, management or supervision of certain parties. These persons cannot be the owners of the property. Amongst them will fall the cases of agents, trans ferees claiming their right after the 1st of March 1947, through the evacuee. It will also cover the case of a trespasser." In the present case, the sale transaction of the property in dispute was confirmed by the Custodian on the 2nd December 1953. The contention of the learned counsel for the appellant is that the Custodian was competent to review this order, irrespective of the, fact whether it was a lawful or unlawful order. I discussed this question in paragraph 8 of the said judgment and observed as under t‑‑ "I will now pass on to another argument, namely, that section 3(P L D 1964 Lab. 274) is not applicable to those cases where a property admittedly was evacuee property and is claimed by a third party on the basis of a transfer In his favour. It is contended that even if such transfer is confirmed, it is open to the Custodian Authorities under their revisional or review powers to re‑open the confirmation of such transaction. This con tention also cannot be supported on the language of the above‑mentioned provision of law. Once the Custodian Authorities have confirmed the transfer in favour of a third party such property ceases to be evacuee property by no stretch of imagination can be considered to have been treated as an evacuee property immediately before the 1st of January 1957. It was urged that if this view is taken, the revisional and review powers given to the Custodian Authorities would become nugatory. It was also suggested that if a case is decided about ten days before the 1st of January 1957, by the Custodian Authorities, the aggrieved party on this interpretation will be deprived of his right to move the Custodian Authorities in their appellate, revisional or review jurisdiction. The hardships pointed out by the learned counsel for the Department are no doubt there, but if the language of the section takes away these powers of the Custodian no Court of law, simply on the ground of hardship, can interpret any provision of law in order to remove such hardships. These arguments were also advanced before a Division Bench of this Court at Karachi in the case of Kishenchand Jethanand and others v. Custodian, Evacuee Property, Karachi P L D 1961 Kar. 589, and were repelled. It was observed in that case as under: - "That section 3 is an overriding provision of law and if in its application in certain cases the other provisions In the evacuee law are rendered ineffective, the Courts of law cannot question the wisdom of the Legislature. The very fact that revisional and review powers under section 43 are not specifically saved clearly indicates that it is also subject to the provisions of section

3. The learned representative for the Department, who very ably put his case, has not been able to persuade me that the view taken In the above decision is not consistent with the language employed in the subsection under consideration, or in accordance with well accepted principles of interpretation of statutes. In the above‑mentioned Karachi decision every aspect of the case was considered and there is no escape from the conclusion that if any person or property was not treated as evacuee or as evacuee property immediately before the 1st day of January 1957, the Custodian has no jurisdiction to deal with the case of such person or property. There is a complete prohibition in this respect and the jurisdiction of the Custodian in such matters has been, subject to clause (2), totally taken away." Mr. Manzoor Qadir, learned counsel for the respondent has adopted these observations as his argument. It will be seen that this observation was made subject to clause (2) of section 3 of the Pakistan (Administration of Evacuee Property) Act. Ch. Aziz Ahmad, learned counsel for the appellant has con tended that clause 2(b) is applicable to the present case. Accord ing to him, the property in dispute ought to have boon occupied, supervised and managed by the respondent and his authority and right to do so should have been lawfully accepted or approved by the Custodian. The learned counsel contended that the Custodian, in the present case, by his order dated the 2nd December 1953, did not confirm the sale transaction lawfully. He contended that Transfer of Property Act is applicable to the Bahawalpur State and the sale deed should have been registered under the Registration Act. According to the learned counsel, the docu ment in question could not be received in evidence as it was not registered. It offended the provision of section 54 of Transfer of Property Act and, therefore, it could not be confirmed by the Custodian. The contention of the learned counsel appears to be well founded. In view of the above lacuna in the sale deed it was not lawfully confirmed and, therefore, the case of the respondent is covered by section 3(2)(b) of the Pakistan (Administration of Evacuee Property) Act XII of 1957. A In these circumstances, I would hold that exception to section 3(1) contained in subsection (2)(b) applied to the present case and Mr. Justice Masud Ahmad was competent to treat this property as evacuee property and could review the order dated the 2nd December 1953. I would, therefore, set aside the order of the High Court and recall the writ of certiorari issued by it and restore the order of the Custodian dated the 16th October 1959. Before parting with this case I would like to mention that it is open to the respondent to apply for creating a charge of the amount of the sale consideration before the Custodian authorities in accordance with law. In the result, the appeal is allowed. In the circumstances of the present case, the parties are left to bear their own costs. HAMOODUR RAHMAN, C. J. ‑I agree. SALAHUDDIN AHMED, J. ‑I agree. ANWARUL HAQ, J. ‑I agree with the interpretation placed by my learned brother, Waheeduddin Ahmad, J., on the true scope and application of section 3 of Act XII of 1957. I was a member of the Full Bench of the High Court which decided the case Syed Ali Iqtidar Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan, Lahore (P L D 1964 Lah. 274). Nothing was said at the Bar by the learned counsel on both sides to justify a departure from the view expounded by my learned brother in the leading judgment which he delivered for the Full Bench. Accordingly, I agree that the present appeal be accepted, but the parties be left to bear their own costs. K. B. A. Appeal accepted.