P L D 1971 Supreme Court 97 (PLP)

On the basis of this sub-rule, Mr. Ali Ahmad Khan, learned counsel for the appellant, contended that in the proceedings for confirmation the appellant and other allottees were necessary parties. The objection raised by the learned counsel is not mentioned in the concise statement and, therefore, the appellant is not entitled to raise this point for the first time at the time of argument. On merits also the point raised has no substance. The appellant and other allottees were merely allottees or licensees. The property in dispute had not been confirmed in their names. In these circumstances, the principle laid down in the case of Ata Ullah Malik v. The Custodian of Evacuee Property, West Pakistan and Karachi and others (P L D 1964 S C 236), will apply to the facts of the', present case The majority view in that case was that the question whether the title in the property which is vested in the Custodian should be confirmed in favour of a transferee by the Custodian himself would appear to lie exclusively between the Custodian and the party seeking the confirmation. In this connection it was observed as under : - "The argument raises the question as to the nature of the contest, if any, when an application is made under section 20 for confirmation of the sale in respect of property which but for such confirmation would be evacuee property.. The power has been given in this respect to the Custodian, in whom the property is vested. The question whether the title in the property which is vested in the Custodian should be confirmed in favour of a transferee by the Custodian himself would appear to lie exclusively between the Custodian and the party seeking the confirmation. As has been observed already, the sense of the law which the Custodian is appointed to administer is distinctly favourably to the retention by the Custodian of the Property vested in him, and against anything resembling easy divestment. The Custodian is armed with large powers to protect the rights so vested in him. Any further rights created in respect of these properties by any other authority, e.g. by act of allotment of a rehabilitation authority, are fully within the scope of the Custodian's. protective power. And it is to be noted that at the time when the question of confirmation was taken up, no proceedings had yet taken place under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which could have the effect of divesting the Custodian of his title. The appellate order of the Additional Custodian allowing the transfer was made in September 1958, and it was not until August 1959, that evacuee properties generally were vested in the Government by notification, and so became available for transfer to claimant refugees and others. A Provisional Transfer Order was issued in favour of Ata Ullah Malik, but it was later cancelled in consequence of the confirmation order. It would seem then that there is no force in the argument that the revival order is vitiated by failure to notify Ata Ullah Malik before it was made. He had no vested right in the property. Such right as he possessed as an allottee was derived from, and was held under the title which was vested in the Custodian, and which it was the duty of the Custodian, under the law, to protect within the meaning of section 20 aforesaid." Mr. Ali Ahmad Khan, learned counsel for the appellant, referred to a decision of the Lahore High Court in the case of Zahid Ali v. Chief Settlement Commissioner, Lahore and others (P L D 1969 Lah. 850). In that case it was held that the order of the Custodian confirming the sale is vitiated for want of a statutory notice as contemplated by rule 12(5) of the Pakistan (Administration of Evacuee Property) Rules, 1950, as also for violation of the principles of natural justice. This case is distinguishable because in that case the petitioner was an allottee and the Deputy Settlement Commis sioner had transferred the property in dispute to him under the Displaced Persons (Compensation and Rehabilitation Act, 1958. This distinguishing feature was also noticed by this Court in Syed All Abbas and others v. Vishan Singh and others (P L D 1967 S C 294). In that case the decision of Ataullah Malik was considered and it was observed as under :- "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." In the present case the appellant and others are mere allottees or licensees. No permanent right in the land had passed to them and, therefore, they were not entitled to a right of hearing on an application made for confirmation of the sale transaction. Even under rule 12(5) it cannot be said that the allottees were the persons likely to be affected by the result of the application. The property vested in the Custodian and he was quite competent to look after their interest. In any case the above-mentioned rule is of a directory nature and its non-observance cannot vitiate the proceedings of the Custodian authorities. i would, therefore, repel this contention. Lastly it was urged by Mr. Ali Ahmad Khan, learned counsel for the appellant that the sale of agricultural land was prohibited under section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957, and therefore, the Custodian authorities had no jurisdiction to confirm the sale transaction under section 20 of the said Act. In order to appreciate the argument of the learned counsel it will be proper to reproduce sections 19 and 20 of the Pakistan (Administration of Property) Act, 1957. They read as under :- "

19. Prohibition of transfers of property generally. The Central Government may, by notification in the official Gazette, declare that in such area and for such period as may be specified in the notification, the transfer of any property or class of property, or the creation of any right or interest therein or encumbrance thereon, shall be prohibited, and where any such declaration has been made, no such transfer or creation shall be made during the period in the area except with the previous approval in writing of the Custodian Provided that nothing in this section shall prevent the transfer of movable property of which an evacuee has immediate physical possession.

20. Restriction on transfer by evacuees. (1) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the first day of March 1947, by or on behalf of an evacuee, or by or on behalf of a person who has become an evacuee after the date of such creation or transfer, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the Custodian. (2) An application for confirmation of such creation of a right or encumbrance or transfer as aforesaid may be made to the Custodian within the prescribed period by any party thereto, or by any person claiming under or lawfully authorised by such party. (3) The Custodian shall hold a summary inquiry into the application in the prescribed manner, and-, (a) shall reject the application if the creation or transfer- (i) was or is prohibited under any law for the time being in force, or (ii) was not or is not covered by a certificate from the prescribed income-tax authority to the effect that no objection exists to such creation or transfer ; (b) may reject the application if he is of opinion that the creation or transfer- (i) was not or has not been entered into in good faith or for adequate consideration, or (ii) ought for any other reason not to be confirmed. (4) If the application is not rejected under subsection (3), the Custodian may confirm the creation or transfer either unconditionally or subject to such terms and conditions as he thinks fit to impose." It will be noticed that under section 19, the Central Government was authorised to prohibit, by notification, the transfer of any property, or class of property or creation of any right therein in such area and for such period as may be specified in the notification. It further lays down that no such transfer or creation shall be made during the period in the area except with the previous approval in writing of the Custodian. Under section 20, an application for confirmation of any transfer has to be made to the Custodian. Under subsection (3) of this provision of law, the Custodian is to hold a summary inquiry into the application and shall reject the application if the creation or transfer was or is prohibited under any law for the time being in force. It may be noted that section 19 was section 15 in the Pakistan (Administration of Evacuee Property) Ordinance, 1949 and section 20 was section 16 of the said Ordinance. The argument of the appellant's counsel is that the sale of agricultural land was prohibited under the various notifications issued by the Central Government and, therefore, the Custodian authorities were under an obligation to reject the application for the confirmation of transfer made to them. In this connection, he has referred to the Notification No. F. 28(33)/49-P, as amended by Notification No. F. 28(33)/49-F, dated the 12th October 1951. It reads as under :- "In exercise of the powers conferred under section 15 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (XV of 1949), the Central Government is pleased to declare that with effect from the eleventh day of January 1950, in the areas in which the said Ordinance is in force, no transfer of property shall, for a period of six months, take place as follows, namely :- (I) Transfer by sale, exchange or otherwise, of any agricultural evacuee property, and such agricultural property as a person intends to alienate in anticipation of his becoming an evacuee ; (2) transfer of any urban immovable evacuee property, and such urban immovable property as a person intends to alienate in anticipation of his becoming an evacuee,- (a) by sale, agreement relating to which is entered into on or after the twenty-sixth day of July 1949, if the agreement was entered into before the said date, in respect of which more than twenty per centum of the consideration money remained, on the said date, to be paid by the vendee to or to the account of the vendor ; (aa) by lease or mortgage, agreement relating to which is entered into, or by which, if there is no agreement, the interest of the lessor or mortgagor is thereby transferred, on or after the 12th October 1951; (b) by exchange, with such urban immovable property as is not treated as evacuee property under any law for the time being in force in India, or in any area occupied by India, or, if it is so treated, is not situated in any of the following areas, namely :- The Provinces of East Punjab, Himachal Pardesh, Delhi and Ajmer-Merwara the District of Saharanpur, Dehra-Dun, Meerut and Muzafiarnagar in the United Provinces, the Patiala and East Punjab States Union, Dholpur and Karauli States (now included in the Matsya Union), the Rajasthan Union, Saurashtra (as both these Unions stood on the 22nd July 1948), and the states of Bharatpur. Alwar, Bikaner, Jaipur and Jodhpur." He also referred to a number of other notifications issued by the Central Government on this subject. In this connection reference may be made to Notification No. F. 9(4)/56-R-II dated the 10th April 1956, which reads as under : "In exercise of the powers conferred by section 15 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (XV of 1949), the Central Government is pleased to declare that, for a period of one year beginning from the l 7th April 1956, in the areas in which the said Ordinance is in force, no transfer of property or creation of any right in immovable property shall take place as follows, namely :-. (1) Transfer of any agricultural evacuee property and such agricultural property as a person intends to alienate in anticipation of his becoming an evacuee, by sale, exchange or otherwise, agreement relating to which is entered into on or after the twenty-sixth day of July 1949, or if the agreement was entered into before the said date in respect of which- (a) in the case of transfer by sale, full consideration was not paid before that date ; and (b) in the case of transfer by exchange, the property given in exchange in India or in any area occupied by India was not or has not been treated as evacuee property ; and (2) Transfer of any urban immovable evacuee property and such urban immovable property as a person intends to alienate in anticipation of his becoming an evacuee, (a) by sale, agreement relating to which is entered into on or after the twenty-sixth day of July 1949 or if the agreement was entered into before the said date, in respect of which, after taking into account the sum or sums paid to the vendor before the said date and the income-tax or other Government dues or dues of Public bodies or if the property was mortgaged, the amount due under such mortgaged outstanding against the vendor being duly paid, on his behalf, by the vendee whether before or after the notification, more than twenty, per centum of the consideration money remains to be paid . (b) by lease or mortgage, agreement relating to which is entered into, or by which, if there is no agreement, the interest of the lessor or mortgagor is thereby transferred on or after the twenty-sixth day of July 1949 (c) by exchange, with such urban immovable property as is not treated as evacuee property under any law for the time being in force in India or in any area occupied by India. (3) Transfer or creation of any right or interest in any immovable property by will or otherwise by a person who does or has done any of the acts specified fn subsection (3-A) of section 2 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (XV of 1949)." I have gone through the various notifications and there is little doubt that they were issued by the Central Government and that they were in operation at the time when the sale transaction in favour of respondent No. 1 was confirmed by the Custodian authorities. There is no doubt that the agreement of sale and sale transaction between respondent No. 2 and respondent No. 1 could not be enforced if the permission of the Custodian had not been obtained but it will be noticed that under section 15 of the Pakistan (Administration of Evacuee Property) Ordinance or section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957, there is prohibition on the transfer of property mentioned in the notification issued by the Central Government except with the previous approval in writing of the Custodian. Mr. M. Anwar, learned counsel for respondent No. 1, has contended that the permission of the Custodian was obtained and, therefore, there was no bar on the confirmation of the sale transaction. In this connection he has referred to the approval of the Custodian given on the 28th May 1949 which is in the following terms : "I have therefore no objection if the petitioner sells 150 acres out of the land restored to him to any Pakistani purchaser." He further referred to the permission granted by the Additional Custodian on the 8th April 1958, permitting respondent No. 2 to execute the sale deed and in case of his default allowed respondent No. 1 to file a suit for specific performance of the said agreement. The Rehabilitation Department and the appellant and other allottees challenged this order. The revision petition of the Rehabilitation authority was dismissed on the 3rd July 1958, and the revision filed by the allottees was dismissed on the 12th July 1958. It will be useful to reproduce here the orders of the Additional Custodian and the Custodian dated the 8th April 1958 and the 3rd July 1958 respectively. While granting permission the learned Additional Custodian observed as under : "There is satisfactory evidence on record that the appellant has already paid Rs. 16,000 to her brother who had agreed to sell his land in her favour. This is a fit case in which the appellant can exercise her right of calling upon her brother to specifically perform the contract in accordance with the terms of the agreement dated 6-5-1949. The vendor is at liberty to complete the sale by executing a sale deed. In case of default on his part the appellant has a right to file a suit for specific performance of contract against him. I therefore accept this appeal, set aside the order dated 23-5-1956, passed by Ch. Aziz Ahmed, Deputy Custodian, Lahore, and confirm the agreement of sale executed on 6-5-1949." In rejecting the revision petition filed by the Rehabilitation, authorities, the learned Custodian observed in his order dated the 3rd July 1958, as under :- "He, therefore, applied to the Custodian who allowed him to sell up to 150 acres, i. e., six squares of the land belonging to him. The portion agreed to be sold to the respon dent comes to about 45 acres. Thus the previous approval of the Custodian for the proposed transfer of land in favour of the respondent is in existence. The facts stated above are borne out by the record and admitted by the learned Rehabilitation Officer (Legal). His only contention is that the sum agreed to be paid for the transfer i. e. Rs. 20,000 is inadequate. That may be so today but is cannot be overlooked that the agreement to sell was made at a time when the conditions were greatly disturbed and the prices of property belonging to non-Muslims were not so high as they may be today. Moreover, the agreement to sell in this case was by a brother in favour of his own sister and I think the price fixed was reasonable. I, therefore, uphold the order passed by the Additional Custodian on 8-4-1958 and dismiss the petition for revision." In the light of the above orders, it is quite clear that the respondent No. 2 had obtained permission of the Custodian fn order to complete the sale transaction. This aspect of the case was also considered by the learned Custodian in his order dated the 10th September 1960 and he was also of the same view. In this connection he observed as under :- "The Custodian of Evacuee Property was of the view that previous approval of the Custodian had been obtained to the sale of the land in dispute on the 28th May 1949, and, therefore, the notification of prohibition (torn outs under section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957, did not stand in the way of the transaction of sale being confirmed. No doubt, the Pakistan (Administration of Evacuee Property) Ordinance, 1949, was not in force on the 28th May 1949, and as there was no provision corresponding to section 15 of the said Ordinance in the Pakistan (Protection of Evacuee Property) Ordinance, 1948, `previous approval', within the meaning of section 19 of the present Act, to the transfer of any property could (torn out) but as at the relevant time, no prohibition was 1(torn out) of evacuee property, and the order dated the 28th (torn out) passed in favour of Ghafoor Sareen, brother of the (torn y out) property had been restored earlier, must be (torn out) order under section 20 of the Pakistan (torn out) Property Ordinance, 1948, and, as such, the (torn out) that order to the sale of 150 acres of the land (torn out) Sareen to a Pakistani National, must be considered (torn out) `previous approval' within the meaning of section (torn out) (Administration of Evacuee Property) Act; 1957. It was contended by the learned counsel for the petitioners that the agreement dated the 6th May 1949, on which that approval was based, was a forged document, but this fact, in my opinion, has no bearing on this case. If previous approval of the Custodian had been granted to the evacuee owner to dispose of his property, in spite of the prohibitions imposed by the Notification issued under section 15 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 and section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957, the transaction of sale entered into, in pursuance of that approval, could be confirmed." I am, therefore, satisfied that the prior approval of the Custodian had been taken by respondents Nos. 1 and 2 about the transaction in dispute and, therefore, there was no prohibition on the confirmation of the said transaction under section 16 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 or under section 20 of the Pakistan (Administration of Evacuee Property) Act, 1957. The contention of Mr. Ali Ahmad that the sale transaction could not be confirmed has, therefore, no force and is repelled. Apart from this I find much force in the contention of Mr. M. Anwar that the principle of res judicata applies to the facts of the present case. It will be noticed that the subject matter of the appellant's writ petition bearing No. 56l/R of 1958 was the validity of the Additional Custodian and the Custodian's orders dated the 8th April 1958 and the 3rd July 1958, respectively. The validity of the sale deed dated the 31st July 1958, and ownership of respondent No. 1 about the land in question was also challenged. In this writ petition, the Rehabilitation authority was respondent No. 3 and the Custodian of Evacuee Property was respondent No.

4. It was open to these respondents to raise the plea that the sale deed required further confirma tion and the ownership of respondent No. 1 suffered from legal infirmity but they did not choose to take any such plea. In this writ petition, the High Court came to the conclusion that respondent No. 1 had acquired full ownership in the property in dispute in accordance with law. In the Letters Patent Appeal the plea of the appellant that the sale transac tion required further confirmation was rejected. In such circumstances the Custodian' of Evacuee Property has no lawful authority to reopen these questions in order to cast a cloud on the ownership of the property in dispute of respondent No.

1. After careful consideration of the points raised in the appeal, I am satisfied that there is no substance in them. The appeal is, therefore, dismissed. The parties are directed to bear their own costs. HAMOODUR RAHMAN, C. J.-I agree. SAJJAD AHMAD, J. -I agree. M. R. KHAN, J. -I agree. K B A. Appeal dismissed.