P L D 1967 Supreme Court 479 (PLP)

MUHAMMAD YAQUB ALI, J.‑This will dispose of Civil Appeals Nos. K‑9 and K‑10 of 1963, preferred by the Federation of Pakistan and two others, with the leave of the Court, from, the order of the High Court of West Pakistan, Karachi Bench, dated the 2nd of February 1951, passed in Letters Patent Appeal No. 4 of 1961 and the order of Custodian of Evacuee Property, Karachi, dated the 28th of December 1959, respectively.

2. The facts necessary to be stated for the purposes of this order are that at the time of Partition R. S. Roopchand, respondent No. 1 and his brothers Lachhmandas, Murlidhar and Govindram constituted a joint Hindu family which owned extensive properties consisting of agricultural land, urban immovable property, business assets and a cotton‑ginning and pressing factory by the name of Seomal Asumal, situated at Tando Jam, Hyderabad. In 1949, the Assistant Custodian, Evacuee Property, sealed the said factory as evacuee property, whereupon respondent No. 1 filed an application under the Administration of Evacuee Property Ordinance (XVIII of 1948), for a declaration that the factory was not evacuee property and for restoration of possession. An inquiry was held by the Assistant Custodian and the claim made by respondent No. 1 was rejected from which he appealed in the Court of Mr. Akbar Husain, Custodian, Evacuee Property, South Zone, Karachi.

3. In paragraph I of the memoranda of appeal it was stated that "the appellant is a Pakistan National and was permanently residing at Tando Jam before Partition, along with his Hindu undivided family, consisting of himself and his three brothers, namely, (1) Lachhmandas, (2) Murlidhar and (3) Govindram. The appellant is the Karta of the family." As regards the subject‑matter of the appeal in paragraph 2 it was stated: "That the appellant is the owner of the above factory at Tando Jam which he constructed and started in 1938 and which he has been running himself since then. This factory is continued to be run with unabated zeal by the appellant even after the Partition." The learned Custodian instead of dealing with the appeal himself referred the question of the status of respondent No. 1 to the Central Government for determination under section 3 of the Administration of Evacuee Property Ordinance XV of 1949 in the following terms:‑ "All that the learned Assistant Custodian has said in his order holding the appellant Rai Sahib Roopchand to be an evacuee and his property to be evacuee property is that `the four brothers Roopchand, Lachhmandas and Murlidhar and Govindram have been to India after Partition due to disturbances'. (2) It is clear from the evidence on record that Rai Sahib Roopchand who is the head of a joint Hindu family which includes his brothers Lachhmandas, Murlidhar and Govind are settled in Pakistan. They have been to India but they state on oath that the purpose of their visit was business and pilgrimage and was not due to the Partition or disturbances or fear of disturbances. The question having arisen whether the appellant is an evacuee it is referred under section 3 of Ordinance XV of 1949, to the Central Government for determination of the question." The reference was accepted and on 15th February 1950 the following order was made: "Under section 3 of Ordinance XV of 1949, the Central Government are pleased to declare that Rai Sahib Roopchand of Tando Adam is a non‑evacuee." On this Mr. Akbar Hussain, on the 6th of March 1950, passed a brief order to the effect: "I allow the appeal and hold the appellant to be not an evacuee." On the 25th of March 1950, respondent No. 1 filed a miscellaneous petition in the Court of Mr. Akbar Husain for a clarification with a prayer that the order of 6th of March 1950, should be made more explicit and should include also the names of Lachhmandas, Murlidhar and Govindram and the property of the appellant, viz., the ginning factory and the agricultural land be also specifically mentioned as has been done in the Appeal No. 163 of 1950. In conclusion it was said that the application was being made as the Rehabilitatior authorities wanted a clear order. The application was accepted on the same day, without issuing notice to the Rehabilitation authorities, by Mr. Akbar Husain, in the following terms "The appellant has been held to be not an evacuee as the head of a Hindu joint family of which his brothers Lachhmandas Murlidhar and Govindram Ire members and which owns agricultural land and the Seomal Asumal Cotton Ginning and Pressing Factory of Tando Jam." The facts mentioned in the petition were materially different from those set out in the memoranda of appeal on which the order of the 6th of March 1950 was passed. It will be recalled that in that appeal respondent No. 1 had claimed that the Seomal Asumal Cotton Ginning Factory is owned by him and as he, along with the other members of his joint Hindu family, had all along resided in Pakistan the factory was non‑evacuee property. In the miscellaneous petition it was, however, alleged that the Assistant Custodian by his order, dated the 9th of September 1949 (from which Appeal No. 173 was preferred) declared respondent No. 1 and his brothers Lachhmandas, Murlidhar and Govindram, all sons of Seomal, as evacuees and took over their land and factory at Tando Jam as evacuee property. The prayer made in the miscellaneous petition was, thus, based on a misrepresentation of facts.

4. In addition to this circumstance, the order passed by Mr. Akbar Husain on the 25th of March 1950, was unwarranted in law, because the declaration given by the Central Government was confined to the status of respondent No. 1 which could not be extended to the other members of his family for the reason that status is a matter of personal attributes both in respect of rights and liabilities attached to it. For example, an order of insolvency against a Karta would not affect the status of the other members of the joint Hindu family. It has also been seen that the declaration given by the Central Government was specifically in respect of respondent No. 1 and the Custodian had no authority to extend it to other members of his family. It cannot be denied that he had the jurisdiction to inquire into the status of the other members of the family of respondent No. 1 and declare them and the properties owned by them to be non -evacuees, but no such step was taken by him in the matter. However, the illegal nature of the order of Mr. Akbar Husain is not so very material in the case as the object achieved by it, namely, that in consequence thereof the property of the other members of the family of respondent No. 1 was not treated as evacuee property. In 1951, proceedings were initiated by the Deputy Settlement Commissioner, Hyderabad, to declare Lachhmandas, Murlidhar and Govindram as intending evacuees, because in the meantime they had disposed of immovable property worth more than rupees five lacs. An inquiry was held and eventually, the proceedings were dropped inter alia on the ground that the bank account maintained in the name of respondent No. 1 showed shat the credit balance had increased by more than rupees six lacs.

5. On the 4th of September 1958, the Deputy Custodian issued notice to respondent No. 1 to render account of the income of the properties belonging to the other members of joint Hindu family, who had migrated to India and to show cause why he should not be prosecuted for concealing evacuee property. A Receiver of the said properties was also appointed by the Assistant Rehabilitation Commissioner at the instance of the Central Government, Dissatisfied with it, respondent No. 1 pursued a two‑fold remedy. Against the order for the Deputy Custodian, dated the 4th of September 1958, he filed a revision under section 43 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) in the Court of the Custodian and as against the order of the Assistant Rehabilitation Commissioner, dated the 5th of December 1958, he moved the High Court of West Pakistan, Karachi Bench, in exercise of writ jurisdiction (Writ Petition No. 916 of 1958).

6. The writ matter came up for hearing before a learned Single Judge, who by order, dated the 11th of November 1960, set aside the appointment of the Receiver on the ground that under section 3(I) of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) the properties of Lachhmandas and others, which had not been treated as evacuee properties up to the 31st of December 1956, were immune from the operation of Evacuee Laws. A Letters Patent Appeal preferred by the Additional Rehabilitation Commissioner and another was dismissed by a Bench of two learned Judges cf the High Court in limine as in the meantime the Custodian had on the 28th of Decemter 1959, set aside the order of the Deputy Custodian, dated the 5th of December 1958, calling upon the respondent No. I, to render account of the properties who had migrated to India and to show cause as to why he should not be prosecuted for concealing evacuee property.

7. Civil Petition No. K‑5 of 1961 was moved by the Federation of Pakistan, the Additional Rehabilitation Commissioner and the Assistant Rehabilitation Commissioner, Hyderabad, on the 15th of December 1961, for leave to appeal from the aforesaid order of the High Court with a prayer that the writ issued by that Court be recalled and Writ Petition No. 916 of 1958, dismissed with costs. During the pendency of this matter, another Petition No. K‑6 of 1961 was moved by the said petitioners on the 30th of March 1961, after a delay of nearly 398 days for leave to appeal from the order of the Custodian, dated the 28th December 1959, on the ground that the order of Mr. Akbar Husain, dated the 25th of March 1950, to the extent it varied the effect of the order of the Central Government, dated the 12th of February 1950, was without jurisdiction. Both the petitions were heard together and leave granted on the 15th of December 1961, as a number of important questions arising from both the matters, such as, whether the order of Mr. Akbar Husain clarifying his order of 6th March 1950, went in favour of joint Hindu family sharing that character as such and not in favour of its individual members, needed examination. The question of limitation in the second petition was left to be finally decided by the Bench hearing the appeal.

8. In addition to Mr. Khalid M. Ishaque, learned counsel for the appellants, we have also heard Mr. Abdul Quddus Behari, who claimed to be interested in the subject‑matter of the two appeals on behalf of the displaced persons. The statement of the case clearly makes out that the properties of the other members of the family pf respondent No. 1 were in consequence of the order of Mr. Akbar Husain, dated the 25th of March 1950, not treated as evacuee property up to the 4th of September, 1958 when the Deputy Custodian, Hyderabad, directed respondent No. 1 to render account of the income of their property and to show cause as to why he should not be prosecuted for concealing evacuee property. Section 3(1) of Pakistan (Administration of Evacuee Property) Act, 1957, provides‑ "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." Subsection (2) lays down that‑ "Nothing in subsection (1) shall apply‑ (a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings 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." It follows that unless the case is covered by either of the two exceptions, the order of the Deputy Custodian, dated the 5th of December 1958, was manifestly without jurisdiction. As no proceedings for declaring the other members of the family of respondent No. 1 as evacuees and their property as evacuee were pending immediately before the 31st of December 1956, the application of clause (a) was not attracted in the case. It could, of course, be shown that Lachhmandas and other members of the family of respondent No. 1 had migrated to India and thereby, become evacuee and their property evacuee and respondent No. 1, in the absence of approval by the Custodian, had no authority or right to supervise or manage their properties. But no proper inquiry in this direction was held by the Deputy Custodian because proceedings in his Court were stayed as a result of the revision petition filed by respondent No. 1 under section 43 of Act X11 of 1957. The record of the case shows that a vague and indefinite type of enquiry was held by the Custodian from time to time and Mr. Abdul Quddus Behari was allowed to participate in it, but it remained inconclusive. On the material placed before him the learned Custodian, accordingly, held that section 3(1) of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) and the order of Mr. Akbar Husain, dated the 25th of March 1950, prohibited the Deputy Custodian from treating the property of the other members of the family of respondent No. 1 as evacuee property. Mr. Khalid M. Ishaque drew our attention to certain items of evidence to make out that the order of the 25th of March 1950, was obtained by respondent No. 1, on fraudulent representations and that Lachhmandas and others had, in fact, migrated to India and were at one time extended from Pakistan as Indian Nationals but we did not permit him to rely on that evidence because it was not produced either before the Custodian or the High Court. Mr. Abdul Qaddus Bihari also had with him copies of certain orders passed by the Ministry of Interior and Police authorities to show that Lachhmandas, Murlidhar and Govindram were externed from Pakistan before the 31st of December 1956, which he said were made available to him during the pendency of these appeals. But we did not permit him to rely on them because it would have amounted to receiving additional evidence and substituting our own findings in place of the findings of the Custodian which, on the record before him, are not open to exception. It may be open to an. interested party to move for re‑examination of the whole case on the allegations of fraud, before the proper forum.

9. Mr. Khalid M. Ishaque next contended that the order of 25th of March 1950, by Mr. Akbar Husain was tainted with fraud and as such, was nullity in law. We have ourselves noticed in the beginning of this order the misrepresentation of facts by respondent No. 1 in the miscellaneous petition on which the order of Mr. Akbar Husain was based, but so long as it remains in the field and is not set aside in proper proceedings, its effect could not be ignored. In the circumstances, the proper remedy open to the appellants was to apply for review of the order of Mr. Akbar Husain, dated the 25th of March 1950, as indicated in the order of the learned Custodian in appeal, or take any other appropriate step in law to avoid the said order.

10. It was stated by Mr. Abdul Quddus Bebari that a large number of properties belonging to the joint Hindu family of respondent No. 1 already stood allotted to a number of displaced persons and subsequently transferred to their occupants under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It is enough to state in this respect that the order of the Deputy Custodian, dated 4th December 1958 and the Assistant Rehabilitation Commissioner, dated 5th of December 1958, from which these two appeals have arisen, were concerned with the properties of the other members of the family in the possession of respondent No. 1 and not with those which already stood vested in the Custodian and were allotted by the Rehabilitation authorities to the displaced persons and subsequently transferred by the Settlement Authorities to their occupants. As regards delay in the filing of Appeal No. K‑10 of 1963, counsel for either party did not address argument on the question. However, in view of the order which we propose to make in the case, the bar of limitation has lost its significance. No specific order need, therefore, be made on the petition for condonation of delay.

11. In the light of the above discussion, the two appeals fail and are dismissed with costs. A. H. Appeals dismissed.