P L D 1971 Lahore 664 (PLP)

7. On merits, the case set up by the Municipal Committee is that the land, of which the plots in dispute in this case form a part, was indeed evacuee land, but in 195.4 the Collector of Lyallpur set apart an area measuring 152 acres 4 kanals and 16 marlas for expansion of the New Municipal Market. On 20th of November 1954 he proposed to the Provincial Government that the area be sold to the Municipal Committee. The Central Government made an order on the 3rd of January 1958 permitting the exchange of 5235 acres of evacuee land with 7150 acres of State land, with the result that the land in dispute became State land. However, subsequently, by its letter dated the 30th of June 1959, addressed to the Custodian of Evacuee Property, the Central Government sanctioned the outright sale of evacuee land measuring 152 acres 4 kanals and 16 marlas to the Municipal Committee of Lyallpur as proposed by the Deputy Commissioner in November 1954. According to the Municipal Committee, the net effect of all these transactions was that the Municipal Committee became the owner of this land and was, therefore, competent to deal with it as if it was municipal property. It is submitted that the plots in dispute were leased out to petitioners 3, 12, 13 and 14 for starting specific businesses, namely, motor workshop, timber business, carpentry and furniture respectively, but in violation of the terms of the lease all these petitioners started khaddis or handlooms, thus thwarting the plan formulated by the Municipal Committee for the functioning of the new market. As regards the remaining petitioners, the position taken up by the Committee is that they are trespassers having no right to remain on municipal land. It is submitted that in these circumstances no question arises of any right accru ing to the petitioners to have the plots transferred to them under the provisions of the Settlement Laws, as the plots are no longer evacuee property available in the compensation pool.

8. I shall first take up the preliminary objections raised on behalf of the respondent. It is true that the petitioners did file civil suits, but those were withdrawn on account of the non- service of the statutory notice as prescribed under section 94 of the Basic Democracies Order, 1959. In these circumstances, it can hardly be said that an alternative remedy was available to the petitioners, or that such a remedy had failed on merits. In this view of the matter I am fortified by the observations of the Division Bench in Mst. Sattan and others v. Group Captain Masroor Hussain, P. A. F., Sargodha (P L D 1962 Lah. 151) in which it was stated, inter alla:‑ "The power to issue a writ vesting in the High Court is not circumscribed by any conditions and consequently it is for the High Court to determine whether or not the power should be exercised in any particular case before it. If on consideration of the circumstances of any case it becomes manifest that if the relief sought for is not made available to the petitioner, he would suffer in reputation and possibly in property, then in such circumstances notwithstanding the fact that the petitioner has already instituted a suit to get substantially the same relief as he is claiming by means of the writ petition, the institution of the suit by him should not stand in the way of the issue of a writ if, after considering the matter, the Court comes to the conclusion that one should issue."

9. Again, in Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty etc. (P L D 1961 S C 119), the principle was laid down that when an order is attacked on the ground of lack of jurisdic tion the availability of an appeal could not stand in the way of the exercise of writ jurisdiction by the High Court. In the present case, one of the grounds of attack is that the property is evacuee, 4 property, not amenable to the jurisdiction of the Municipal Committee. In these circumstances, the filing of a civil suit, or the availability of an appeal under the Municipal Administration Ordinance of 1960, could not therefore, operate as a bar in the way of the maintainability of the present petition. It seems to me that the observations appearing in Muhammad Aziz Asif v. Chairman and Trustees of Port Trust, Chittagong and another (P L D 1967 Dacca 708) and Begum Lutfoonnessa Ibrahim and 3 others v. The Province of East Pakistan and others (P L D 1969 Dacca 779) relied upon by Mr. Akhtar Mir, are, the circumstances, not applicable to the facts of the present case. Similarly, the observations made by his Lordship the Chief Justice in Hasan Din Chishti v. Chief Engineer, WAPDA (1970 S C M R 58) are not attracted, as the principle involved here is different.

10. It will be seen that the first question which needs determination in this case is whether the property in dispute continues to be evacuee property available in the compensation pool or whether it has ceased to be so available on account of the Central Government having accorded sanction for its sale to the Municipal Committee of Lyallpur.

11. In order to answer this question we have to examine the relevant provisions, and the notifications issued there under, relating to the inclusion of evacuee property as part of the compensation pools created for this purpose.

12. The case for the petitioners, of course, is that the disputed plots are urban building sites and, therefore, governed by the provisions contained in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Urban Act). On behalf of the respondent‑Committee, and the Provincial Government as respondent in the large number of connected cases, a suggestion was made that as the area in dispute was not included in the municipal limits of Lyallpur, on the 14th of August 1947, therefore, it had to be treated as rural agricultural land governed by the provisions of Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Land Act). I shall deal with this last question at a later stage, if necessary; but for the present I shall proceed with the matter on the assumption that the property is indeed urban evacuee property as contended by the petitioners.

13. Subsection (2) of section 3 of the Urban Act contemplates that "as and when so required by the Central Government the Government of West Pakistan shall, for any of the purposes of this Act, by notification in the official Gazette, acquire such Evacuee Property, other than agricultural land situated in the Province excluding the Federal Territory of Karachi, as the Central Government may deem it necessary to acquire". Sub section (5) of the same section states that a notification under subsection (2) or the earlier subsection (1), with which we are not concerned in the present case, may relate to all evacuee property generally, or any class of evacuee property, or all evacuee property situated in a specified area, or any particular evacuee property. Section 4 of the same Act creates a compensation pool consisting, inter alla, of all evacuee property acquired under section

3. In pursuance of a direction given by the Central Government under subsection (2) of section 3 of the Act the West Pakistan Government issued a notification on the 21st of August 1959 acquiring all immovable evacuee property situated within the Province of West Pakistan other than (i) agricultural land; (ii) property for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957 (hereinafter referred to as Act XII of 1957), or under any law for the time being in force for the administration of evacuee property in Pakistan, had been accorded before the date of this notification; (iii) property with regard to which any proceedings were pending on the date of this Notifica tion under Act XII of 1957 before a Custodian, and (iv) property situated within the limits of the Murree Municipal Committee and the Murree Cantonment Board.

14. Another notification was issued by the Provincial Government on the 11th of August 1961 to the effect that "the Governor of West Pakistan is pleased to acquire, with immediate effect, all evacuee property (other than agricultural land) in West Pakistan with regard to which any proceedings under the Pakistan (Administration of Evacuee Property) Act, 1957 were either pending on the twentieth day of February 1960 or were commenced on any date thereafter and have been finally disposed of before the date of this notification". It was stated at the Bar that some subsequent notifications had also been issued on more or less identical lines, ‑but they were not placed on the record by either side. However, this fact does not have any bearing on the examination of the question in issue.

15. Taking first the notification of 21st of August 1959, it is clear that the property in dispute would stand excluded from the purview of this notification in terms of the second exemption clause relating to property for the acquisition or sale of which sanction of the Central Government had been accorded under Act XII of 1957. It is also possible to bring this property within the third exemption clause by holding that proceedings relating thereto were still pending before the Custodian as, according to the petitioners themselves, the sale had not yet been finalised in terms of the sanction accorded by the Central Government. The subsequent notification dated the 11th of August 1961 does not, in any manner, affect this property, as it relates to that property regarding which proceedings mentioned in clause (iii) of the earlier notification have concluded and the net result of those proceedings is that the property is held to be evacuee property available for acquisition under section 3 of the Act. This is not the case here, and we are, therefore, limited to the effect to the first notification dated the 21st of August 1959.

16. It is contended on behalf of the petitioners that the exemption clauses contained in this notification cannot be permitted to be invoked in this case as the sanction accorded by the Central Government for the sale of this property to the Municipal Committee of Lyallpur was invalid for two reasons: (a) the property had already become State land in terms of the order made by the Central Government on the 3rd of January 1958 permitting the exchange of evacuee land with State land, and (b) the sanction contained in the letter dated the 30th of June 1959, was granted by the Central Government of its own motion without the matter having been initiated by the Custodian of Evacuee Property in accordance with the powers and duties conferred upon him by clause (s) of subsection (2) of section 25 of Act XII of 1957. The argument goes further and even the validity of the earlier exchange order dated the 3rd of January 1958 is also challenged on the same ground of want of initiative by the Custodian. It is further submitted that even though the Central Government had accorded sanction first for the exchange of this land and subsequently for its sale to the Municipal Committee, yet no steps were taken by the Custodian in pursuance of these sanctions and for this reason as well the transactions have remained inoperative and incomplete.

17. The facts relevant to these contentions have already been stated in the opening part of this judgment, but would bear a brief repetition at this stage for facility of reference. The proposal for the transfer of evacuee land to the Municipal Com mittee of Lyallpur was initiated by the Deputy Commissioner of that district in November 1954. At that time an area of 529 kanals and 6 marlas was mentioned as having been reserved for the expansion of the Lyallpur Town and for the provision of amenities like schools, dispensaries, playgrounds, children's park hide market, timber marker and fuel‑wood stalls. In a subsequent letter dated the 5th of March 1955 an area of 669 kanals, 17 marlas and 126 sq. ft. was mentioned as being required for the shifting of the truck‑stands and the market from the congested area of the Lyallpur Town to its outskirts. In pursuance of these proposals the Deputy Commissioner handed over the possession of this property to the Municipal Committee in December 1954 and since then the property has been under the control of the Committee.

18. These proposals of the Deputy Commissioner have to be read along with another proposal made for the exchange of 5235 acres of evacuee land with 7150 acres of State land which was sanctioned by the Central Government in its letter bearing No. F‑21 (6)/57‑II dated the 3rd of January 1958 addressed to the Custodian of Evacuee Property. In fact there had been an earlier order dated the 7th of May 1957 permitting the exchange of 5000 acres of evacuee land for 7050 acres of State land, but this order was then amended to exchange 5235 acres of evacuee land for 7150 acres of State land. This letter is followed by another letter of the Central Government bearing No. P. 16(59)/59‑PII dated the 30th of June 1959 by which the Central Government was pleased to accord permission for the outright sale of evacuee land measuring 152 acres 4 kanals and 16 marlas for the establishment of a Municipal Market. It is common ground between the parties that the land sold to the Municipal Committee forms part of the evacuee land which is covered by the exchange transaction sanctioned by the Central Government on the 3rd of January 1958.

19. It is true that the respondent in this particular case has not placed on the record anything to show that any formal documents of exchange or sale were drawn up by the Custodian in pursuance to the sanction accorded by the Central Govern ment, but the letter containing the sanction for exchange refers to the previous letter of the Custodian of Evacuee Property dated the 10th of December 1957, thus showing that at least in the matter of exchange the initiative may have come through, if not by, the Custodian of Evacuee Property. The previous letter just mentioned has also not been placed on the record by either party, but a reference to it leaves no doubt in my mind that the Custodian was fully in the picture regarding the proposal for the exchange of evacuee land with State land. It was also pointed out, and rightly, by Mr. Akhtar Mir, appearing for the Municipal Committee, that further implementation of these sanctions by the Custodian was impeded by the institution of the present writ petition as well as a large number of connected cases in which orders regarding maintenance of status quo were passed, although proceedings for the fixation of the price of the land had been undertaken by the Custodian. In this behalf a reference was made to a note recorded by the then Custodian (Mr. Justice Masud Ahmad) on the 4th of December 1959 directing that certain steps be taken for the fixation of the price of the land sold. There is also on record a letter addressed by the Additional Custodian on the 3rd of May 1960 to the Additional Deputy Commissioner of Lyallpur in this behalf. This subsequent correspondence tends to show that the Custodian had set in motion certain steps to implement the orders made by the Central Government under section 25(2) (s) of Act XII of 1957.

20. This section deals with the powers and duties of the Custodian, and subsection (1) thereof lays down that "the Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property or property of which possession has been taken by him and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto". Subsection (2) then enumerates the various measures or steps which the Custodian may take for this purpose. Clause (s) of this subsection permits the Custodian to "transfer any evacuee property, notwithstanding anything contained in any law or agreement to the contrary relating thereto". The proviso to this clause lays down that "the Custodian shall not under this clause or the next succeeding clauses transfer any immovable evacuee property or any business or undertaking which is evacuee property, except with the previous approval of the Central Government".

21. It will be seen that section 25 does indeed spell out the powers and duties of the Custodian, and clause (s) of subsection (2) thereof permits the Custodian to transfer evacuee property with the previous approval of the Central Government. Normally, therefore, the initiative to transfer evacuee property would lie with the Custodian who would, however, have to apply for the previous approval of the Central Government before effecting any such transfer. The question, therefore, is whether the approval granted by the Central Government would be inoperative or invalid in law if the initiative for the transfer of the property has not come from the Custodian.

22. This precise question fell for consideration by a Division Bench of this Court in Syed Ehsan Hussain v. The State and another (P L D 1961 Pesh. 156) I think it will be useful if the relevant observations appearing in the judgment delivered by Sajjad Ahmad, J. are quoted here in full: "The learned counsel for the petitioners contended that the transfer allegedly made in favour of the Ministry of Defence by the Central Government was not legally made, and. therefore, the property stood transferred to the compensation pool under section 3‑ of the Act. The basis for this argument is that under section 25(2) (s) of the Pakistan (Administration of Evacuee Property) Act XII of 1957, it is the Custodian who is to initiate the sale of an evacuee property, although he cannot transfer it without the previous approval of the Central Government, and that in the present case, "the process has been reversed, viz., that the Central Government has effected the sale, to which the Custodian has appended his approval. The learned counsel for the petitioners has stressed this objec tion, characterizing the departure from the manner of transfer enjoined by the language of the statute, as illegal on the principle that when the law requires a thing to be done in a particular manner it should be done in that manner or not at all. We do not consider that the point carries any substance in the context of the present case. Under the law, as envisaged in section 25(2) (s) and the Proviso attached to it, the Central Government and the Custodian between themselves are the competent authorities to effect the transfer of any evacuee property. The transfer may be done by the Custodian, but not without the previous approval of the Central Government. In the present case, the Central Government has accorded its previous permission; the Custodian has approved the price, and it is not known whether the transfer has been completed or not as required by law. The matter is one which has to be considered and pursued by the parties concerned, namely, the Ministry of Defence on the one hand (to whom the property was sold) and the Ministry of Rehabilitation and the Custodian, on the other. It is enough for our purposes, and for purposes of the decision of this case. that a Notification has been issued by the Government of West Pakistan acquiring the evacuee property, as deemed necessary, and that Notification clearly saves the bungalows in dispute from falling into the Compensation Pool.

23. The learned counsel for the petitioners, however, referred me to The Eastern Aid Society Limited v. Muhammad Hashim (P L D 1964 Lah. 388) in an effort to show that the dictum of the Division Bench in Syed Ehsan Hussain's case was not attracted to the facts of the case before me, and that it was indeed necessary for the Custodian to have initiated the matter of the transfer of the pro perty to the Municipal Committee or to the Provincial Government. In the case relied upon by the learned counsel a learned Single Judge has held that the transaction impugned before him was invalid for the reason that not only had the Custodian not initiated the matter but there was nothing on the record to show that he had, either before or after the approval of the Central Government, agreed to the transfer of the bungalow in favour of the Defence Department, whereas in the Peshawar case the Custodian had taken a decision either before or after the approval of the Central Government, for the sale of the property.

24. Reading the two judgments together, it becomes clear that the learned Judges are agreed that an order and section 25(2) (s) needs action by two authorities, namely, the Custodian of Evacuee Property and the Central Government, and that it is immaterial as to who initiates the matter. I am in respectful agreement with this interpretation. It is undoubtedly the responsibility of the Custodian to manage evacuee property, but his power to transfer such property is circumscribed by the proviso that he must obtain previous approval of the Central Government. That being so, if in any given case the Central Government gives its approval before the matter is initiated by the Custodian, the approval is not rendered invalid simply on that ground, but it would certainly remain inchoate as long as the Custodian does not take further steps to implement the same. Until that time it can, therefore, be said that the sale or transfer has not taken effect. But it is not the same thing as saying that the sanction accorded by the Central Government is illegal or invalid. Now, the notification issued by the Provincial Govern ment in accordance with the directions of the Central Government under section 3 of the Urban Act, exempts from inclusion in the compensation pool evacuee property with regard to the sale or acquisition of which the Central Government has accorded its approval under Act XII of 1957. The exemption clause in question does not speak of the sanction, or the transfer in pursuance thereto, having been actually implemented by the Custodian. The result, therefore, is that all that is necessary for any particular evacuee property to be excluded from the purview of the notification issued by the Provincial Government under section 3 of the Act on the 21st of August 1959 is that there should be a previous sanction or approval by the Central Government to its sale or acquisition under the relevant law. It is not necessary to inquire whether the sanction was preceded or followed by any action on the part of the Custodian of Evacuee Property. I consider, therefore, that the property in dispute stands excluded from the purview of the notification in question and it does not, therefore, form part of the compensation pool constituted under section 4 of the Urban Act.

25. However, even if it was necessary to show that the Custodian had indeed acted in the matter, it would be enough to refer to the facts already stated by me, namely, that the letter of exchange dated the 3rd of January 1958 refers to a previous letter written in this behalf by the Custodian of Evacuee Property, and that the then Custodian had initiated action for the fixation of the price of this land, but the proceedings could not be completed due to status quo orders issued by the High Court in this and the other connected cases. It must, therefore, be held that the petitioners have no legal right to the transfer of this property under Paragraph 13 of the Schedule to the Urban Act as the property is not available in the compensation pool.

26. Now I turn to the validity and effect of the transaction of exchange as sanctioned by the Central Government in its letter dated the 3rd of January 1958 addressed to the Custodian of Evacuee Property. The attack on the validity of this sanction is, as already stated, mainly on the ground of want of initiative by the Custodian. I have said enough on this subject in the preceding paragraphs and would, for the reasons stated therein, hold that the sanction for exchange was validly given in accordance with law. The effect of this sanction, therefore, was to take this property out of the purview of the notification dated the 21st of August 1959 issued under section 3 of the Urban Act. Once this conclusion is reached, the claim of the petitioners to the transfer of these plots under paragraph 13 of the Schedule to the Urban Act again stands negatived, and it is, therefore, not really necessary to examine their further contention that because of this exchange the land was no longer available for sale to the Municipal Committee.

27. However, it is clear that it was open to the Central Government to modify its earlier sanction for the exchange of this land and to agree to its outright sale to the Municipal Committee of Lyallpur. At best, the objection could be raised by the Provincial Government which was to get this land in exchange for its own land. The petitioners do not appear to have any locus standi to raise any objection in this behalf, for they stand disentitled to its transfer in either case.

28. The proposition that the Central Government could modify its earlier notification finds ample support from the view expressed by the majority of the learned Judges in Rehmat Ullah v. The Deputy Settlement Commissioner, Karachi and others (PLD 1963 S C 633) in which it was observed that "there is no great difficulty in the way of applying the principle of section 21 of the General Clauses Act to a modification of a notification issued under section 3, such as will have the effect of, excluding from the earlier acquisi tion, certain property specified in the second notification. It is, of course, settled law that power given by a statute to act by notification with prospective effect as in section 3, cannot be effectively exercised with retrospective effect, whatever the language that may be employed. "Again in Sahib Dad Khan v. The Commissioner, Rawalpindi Division and others (1969 S C M R 317) it was held that if successive notification are issued in respect of the same property then the first notification would be deemed to be impliedly cancelled. These observations were made by their Lordships in respect of notifications issued by the Divisional Commissioner under sections z and 6 of the Land Acquisition Act, 1894. There is no reason why the same principle cannot be applied to the successive sanctions accorded by the Central Government in the instant case, first for the exchange of the property with State land and subsequently for its outright sale to the Municipal Committee. As a result, the correct position appears to be that the earlier sanction for the exchange of the property in dispute with State land stands impliedly cancelled in favour of the subsequent sanction for its outright sale to the Municipal Committee.

29. For the foregoing reasons, it is abundantly clear that the land not being in the compensation pool, the petitioners cannot claim any relief in terms of Paragraph 13 of the Schedule to the Urban Act. It is also not without interest to mention that out of the fourteen petitioners only petitioner No. 11 had applied under Settlement Scheme No. VI for the transfer of the plot in his possession, whereas the remaining had not taken any such step. For this additional reason as well they would be disentitled to any relief in this behalf.

30. This finding is enough to dispose of the matter in so far as it concerns the ten petitioners who are mere trespassers on the land, having no relationship of lessees or licensees with the respondent‑Committee which has been admittedly in control of this property since 1954. Whatever the nature of the notices served upon them by the Municipal Committee, it is clear that t the extraordinary jurisdiction of this Court cannot be exercised so as to perpetuate their illegal possession ever property to which they have no right or title of any kind whatsoever.

31. As regards the remaining four petitioners, namely, petitioners 3, 12, 13 and 14, who are lessees or licensees from the Municipal Committee of Lyallpur, the only question that remains to be considered is whether they are liable to ejectment under the notices served upon them. These notices are to the effect that the plots were allotted to the petitioners for a specific business, which is mentioned in each case, bat in contravention of that condition the petitioners had instead started another business which had the effect of interfering with the planning of the municipal market. The petitioners, therefore, were asked to put the plots to their proper use failing which their allotments shall stand cancelled and steps would be taken to dispossess them.

32. The position taken up on behalf of the petitioners is that in the original allotment or lease there was no stipulation at all that the plots allotted to them would be put to any specific use; and that, in any case, by accepting rent from the petitioners the Committee had clearly acquiesced in the use to which the petitioners had put the plots given to them. It is contended that the action contemplated by the Municipal Committee is not covered either by section 195 of the Municipal Act of 1911, or by section 78 of its successor, namely, the Municipal Administra tion ordinance, 1960.

33. It is submitted by the Municipal Committee that the plots were allotted to these petitioners for specified purposes, according to the plan of the New Municipal Market, and that in the lease deeds executed by these petitioners there was a distinct stipulation that no permanent building shall be put up without the permission of the Municipal Committee. A master plan of the New Municipal Market was shown to the Court which Indeed supported the contention that different portions of this market were set apart for separate trades and businesses. It does appear, therefore, that the plots must have been allotted to the petitioners for specified trades and businesses as asserted by the Municipal Committee. The lease deeds in question, executed by the four petitioners, have not been placed on the record by either side. The explanation given by the Municipal Committee was that a large number of such leases/allotments bad been granted and it had become virtually impossible to trace individual docu ments relating to these petitioners. There was, however, no explanation on the part of the petitioners for their failure to place on the record the basic documents which are being treated as the foundation of their claim to hold on to the plots in dispute. In this state of the record I consider that I must proceed on the basis that the assertions made in the notices issued to the peti tioners are correct, namely, that the petitioners had undertaken to use the plots for the specific purpose mentioned in each individual allotment. That being so, there his been a violation of the terms and conditions of the allotment in so far as the petitioners have put the plots to uses other than those specified in their allotments. In these circumstances, the notices do not fall under the provisions of section 195 of the old Act or section 78 of the new Ordinance, as these provisions deal merely with unauthorised E constructions. The case before me is indeed one of violation of the terms and conditions of the allotment lease, which in fact is nothing but a licence granted by the Municipal Committee to these petitioners for the use and occupation of municipal property. A copy of the agreement which was to be executed by each such allottee has been placed on the record along with the written statement of the Municipal Committee, and it clearly shows that the licence was liable to termination at any time on account of a contravention of it terms and conditions. Such being the case, the Committee was within its rights in insisting that either the petitioners revert to the proper uses of the plots allotted to them or else their allotments shall be terminated and they shall be liable to ejectment. The submission that the petitioners have invested large sums of money in starting their handloom factories has no bearing upon the legal question involved, and it is purely a matter for the administrative authorities to consider in their discretion.

34. As a result, I have come to the conclusion that this petition must fail not only with regard to the ten petitioners who are trespassers on the land, but also with regard to the remaining four petitioners who originally entered as lessees or licensees of the Municipal Committee. The petition is accordingly dismissed with costs. Petition dismissed.