P L D 1976 Lahore 109 (PLP)

Petitioners filed an application sometime in 1953 under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 for a declaration that the lands described in the application were not evacuee properties be cause the petitioners had acquired title by adverse possession before the target date viz. 1-3-1947. The Deputy Custodian of Evacuee Property, Montgomery (Sahiwal) dismissed the application on 28-2-1959. On appeal, the Additional Custodian remanded the case with a direction that the petitioners should make separate applications. This was done and the petitioners filed three separate applications under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, hereinafter to be quoted as Act XII of 1957, before the Deputy Custodian, Lahore, who accepted the applications and granted the requisite declarations subject to confirmation by the Custodian vide his three separate orders dated 12-9-1961. The cases were put up before the Additional Custodian for confirmation who did so by way of three separate orders dated 24-7-1962.

2. The respondents filed a revision petition against the orders dated 24-7-1962 of the Additional Custodian in which the Custodian passed an girder on 6-6-1964 as follows :- "Notice for 13-7-64. "

3. The proceedings continued when the petitioners moved a petition, under Article 98 of the late Constitution of 1962 on 28-1-1970 praying for a. declaration that the Custodian had no jurisdiction to entertain or proceed with the revision petition filed by the respondents as the orders passed by the Deputy Custodian under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 had been confirmed by the Additional Custodian as a delegate of the Custodian.

4. Learned counsel appearing for the petitioners has submitted that the Custodian of Evacuee Property, had made a general Order on 1st September 1959 under sub-rule (2) of rule 5 of the Administration of Evacuee Property Rules, 1950 that (i) proceedings under section 22 of the Act XII of 1957 shall be initially taken before the Deputy Custodian but in cases involving property more than Rs. 5,000 the order of the Deputy Custodian shall not be effective unless confirmed by the Custodian, and for this purpose, it has been laid down in clause (8) of the Order that such cases shall be dealt with by the Additional Custodian, Lahore who would be competent to pass final orders. It is, therefore, submitted that after the Additional Custodian had passed orders confirming the declarations, the matter was con cluded as that was done as a delegate of the Custodian, because once the delegate exercises the power delegated to him, it is exhausted and the delegator cannot re-exercise the same. Reliance is placed on Muhammad Iqbal Khan v. The Chief Settlement Commissioner and another P L D 1965'S C 40, , Dr. Tassadduque Huysoin v. Custodian, Evacuee Property, Lahore and 7 others P L D 1975 Lair. 113 , and a decision of the learned Custodian, Sultan Mahmood and 3 others v. Malik Muhammad Aslam and another, in Appeal No. 35 of 1972, decided on 29-3-1973. In these circumstances, it is contended that the proceedings before the learned Custodian, in the present case, are coram non judice and waste of public time and unnecessary harassment to the petitioners.

5. Learned counsel for the respondents has submitted that the reliance placed on the order of the learned Custodian dated 1-9-1959 is untenable because that order deals with allocation of duties between the Additional, Deputy and Assistant Custodian and there is no question of delegation of powers of the Custodian involved. Secondly, it is submitted that in spite of the Order, the revisional jurisdiction of the Custodian is not avoided, nor could it be delegated in law. Thirdly, it is submitted that the petitioners had obtained declarations from the Deputy Custodian by misrepresentation in so far as that adverse possession had been claimed from 1933- whereas petitioner No. 2 was not born until 1934 and that, otherwise too, according to the revenue record of the relevant, period 1946-47, the petitioners had been recorded as tenant-at-will. Further that the petitioners themselves had sought and obtained allotment of the very land in question in the year 1948 from the Rehabilitation Department, thus, accepting the evacuee character of the property. Fourthly, it is contended that the petition suffers from ]aches as. the Notice was issued to the petitioners on 6-6-64 and they continued to participate in the proceedings until they filed the present petition in this Court on 28-1-1970. Lastly, it is submitted that the petition is premature as the learned Custodian had only issued a Notice to the petitioners and no final orders had been passed as yet.

6. The last contention of the learned counsel for the respondents merited acceptance but the learned counsel for the petitioners argued that for six long years the petitioners had been appearing before the Custodian who had no jurisdiction. Further, that if the nub of the issue about the jurisdiction is not determined even now, the matter is, again, likely to come up, and it is anybody's guess how much time it would entail before the crux of the con troversy is decided. The learned counsel for the petitioners argued the question of jurisdiction at length. The litigation has been going on for the last 16 years and it is not predictable with certitude as to how much time it would still consume. Administration of justice in expeditious manner demands that in the present case, the question of jurisdiction is determined. Therefore, it is proposed to deal with the central question of jurisdiction at. this stage.

7. As the Order of the learned Custodian dated 1-9-1959 is the plank on which the case of the parties depends, it would be useful to reproduce the, same in so far as it is relevant for the resolution of the controversy. It reads as follows :- "ORDER In supersession of the order dated the 31st August 1950, passed by the then Custodian of Evacuee Property, Punjab, under section 46 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, and alt other orders on this subject passed by any of the Custodian of Evacuee Property, in exercise of the powers conferred on me by sub-rule (2) of rule 5 of the Administration of Evacuee Property Rules, 1950, I, Masud Ahmad, Custodian of Evacuee Property, West Pakistan and Karachi, hereby make the following allocation of duties with immediate effect, between the Additional, Deputy and Assistant Custodian of Evacuee Property functioning in the Bahawalpur, Dera Ismail Khan, Lahore, Multan, Peshawar and Rawalpindi Divisions :- (1) Proceedings under sections 20, 21, 22, 23 and 41 (2) of the Pakistan. (Administration of Evacuee Property) Act, 1957, shall be initially taken before the Deputy or Assistant Custodian of District where whole or any part of the property in dispute is situated, subject to the condition that no order passed by any Deputy or Assistant Custodian in cases where the value of the property involved is more that Rs. 5,000 shall become effective unless it is confirmed by the Custodian. (8) .Cases submitted to the Custodian under paragraphs (1), (2), (5) and, (7) by the Deputy and Assistant Custodians shall be dealt with by the Additional Custodian, Lahore, who would be competent to pass final orders. The Additional Custodian. Lahore snail continue to dispose of Appeals in pursuance of the power already delegated to him under section 43 of the Act."

8. From the above, it would appear that with respect to proceedings of declaration under section 22 of the Act X11 of 1957, the learned Custodian had made "allocation of duties between the Additional, Deputy and Assistant Custodian" and, in some matters, he had provided in para (1) that the orders passed by the Deputy Custodian shall not be effective unless confirmed by the Custodian and in para. 8, had laid down that such cases shall be dealt with by the Additional Custodian who would be competent to pass final orders. In other words, the orders which were required to be confirmed by the Custodian before becoming effective were ordered to be dealt with by the Additional; Custodian, and it was laid down that he would be competent to pass final, orders.

9. The matter which requires consideration is whether the aforesaid ,Order provides for allocation of duties and the orders which required con firmation by the Custodian, when confirmed by the Additional Custodian, is a -part of that process, or, whether the Order delegates powers of the Custodian on those officers, amounting to, that after exercise of those powers by those authorities, the Custodian shall be bereft of jurisdiction, as a delegated power once exercised exhausts itself, especially so as to denude the Custodian to exercise, what is called, revisional jurisdiction under section 43(4) of the Act XII of 1957. Before attempting to answer these questions, it .is necessary to reproduce a somewhat parallel provision in another Act, namely the Displaced Persons (Compensation and Rehabilitation) Act, 1958 because there are judgments interpreting that provision which have been relied upon for the proposition that under the present Act in hand i.e. Act XII of 1957, the confirmation by the Additional Custodian amounted to exercise of delegated power of the Custodian.

10. Section 31 (2) of Displaced Persons (Compensation and Rehabilitation) Act, 1955 lays down :- "Subject to the provisions of this Act and the rules made thereunder, the Chief Settlement Commissioner, may, by notification in the official Gazette, delegate all or any of his powers under this Act to any Settlement Commissioner, subject to such conditions, if any, as may be specified, in the notification."

11. While interpreting the above, a learned Full Bench of the Lahore High Court, in the case of Abdul Ghani v. The Chief Settlement and Rehabilitation Commissioner, Pakistan and another P L D 1964 Lah. 214 , observed that "as a general rule if delegation of powers is not subjected to any conditions the exercise of those -powers by the delegate cannot be interfered with by the competent authority". However, on account of the opening words of the section that "Subject to the provisions of this Act and the rules made thereunder", their Lordships held that the powers of appeal and revision would still be available against exercise of the delegated authority. On the later conclusion, the judgment was overruled by their Lordships of the Supreme Court in the case of Jalal Din and others v. Sheikh Muhammad Rafiq, Settlement Commissioner etc. P L D 1965 S C 261, wherein it was observed that "the framer of section 31 (2), if his intention was to depart from the ordinary rule relating to the exercise of delegated power and to provide that the orders passed in the exercise of delegated power would be subject to appeal and revision as if they were passed in the exercise of ordinary power, would have used clear words giving effect to that intention". Thus, it would appear that their Lordships of the Supreme Court approved the general principle that exercise of delegated power by a delegate exhausts itself and shall not be subject to appeal or revision, if the delegator's own exercise of power would not be, unless an intention to the contrary is expressly provided for. The same proposition of law was affirmed in the case of Muhammad Iqbal Khan v. The Chief Settlement Commissioner and another that "if the intention of the law was to interfere with the ordinary rule relating to appeal and revision against orders passed in the exercise of delegated authority the matter would have been provided in a clear manner and not by use of words of more or less formal character". In other words, their Lord ships of the Supreme Court held that the general rule shall apply avoiding any appeal or revision if intention to the contrary is not expressed in clear words. In the case of Dr. Tassaduque Hussain v. Custodian, Evacuee Property, Lahore and 7 others in respect of proceedings of determining mortgage matters etc., under section 25 (2) (n) of the Act XII of 1957, it was held that "there was, therefore, no jurisdiction in the Custodian to hear an appeal against the order passed by the Additional Rehabilitation Commissioner exercising the delegated powers of the former". However, his Lordship also observed that "there is another aspect of the case and that is that "the Custodian can in exercise of his revisional powers under section 43 interfere with the orders only if he is not satisfied "as to the legality or propriety of any order passed' by a subordinate. The last paragraph of the learned Custodian's order which runs into 10 lines does not say s word about the legality or propriety of it, nor, has he even touched the point obliquely. He has just given a conclusion the basis of which he has kept to himself". Further, his Lordship found that the revisional jurisdiction could only be exercised by the learned Custodian if a proceeding had been disposed of by an officer 'subordinate to him' and it was found that the officer concerned in the case was Additional Rehabilitation Commissioner who was not subordinate to the learned Custodian but to the Chief Settlement Commissioner. From the above, it would appear that his Lordship was of the view that the pro visions of section 43 of the Act (Act XII of 1957) relating to revisional jurisdiction of the Custodian could not, in that case, upon facts, be exercised. His Lordship did not rule that the revisional jurisdiction under section 43(4) of the Act XII of 1957 was, otherwise, out of question. On the other hand, according to my humble understanding of his Lordship's judgment, revisional jurisdiction under section 43 of the Act (Act XII of 1957) was taken to be intact and exerciseable in appropriate cases. In the case of Sultan Mahmood and 3 others v. Malik Muhammad Aslam and another, Appeal No. 35 of 1972 decided by the learned Custodian on 29-3-73 the matter also related to mortgages etc. under section 25 (2) (n) of the Act XII of 1957, and, the case was one of appeal. It did not relate to exercise of revisional jurisdiction under section 43 (4) of the Act XII of 1957.

12. It is appropriate, at this state, to refer to the provisions of delegation in the Act XII of 1957, the Pakistan (Administration of Evacuee Property) Act, 1957. Section 58 (2) lays down that "the Custodian may by general or special order delegate all or any of his functions under this Act, except the functions under section 43 to such Officer or person as he thinks fit". Now, it is clear that the delegation is permitted except about the functions under section 43 of the Act, and section 43 lays down, as far as is relevant for the present case, in subsection (4) as follows :- "The Custodian may, at any time, either on his own motion or an appli cation made to him within the prescribed period in this behalf call for the record of any proceeding for the administration of evacuee property, which is pending before or has been disposed of by, an officer subordinate to him, including an Additional Custodian, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding and may pass such order in relation thereto as he thinks fit."

13. From the above, it is clear that under section 43 (4) of the Act X11 of 1957, a Custodian can exercise power in respect of any order passed by an Additional Custodian. This power is excepted from delegation by sec tion 58(2) of the Act XII of 1957. In the cases of Jalal Din and Muhammad Iqbal Khan, aforementioned, their Lordships of the Supreme Court had held that delegated power if exercised, would exhaust itself and would not be subject to appeal and revision, if an intention to the contrary is not expressly provided for in a clear manner. In the present case, there is such a expression of an intention to the contrary by explicit exception o functions under section 43 in the provision permitting delegation of power under section 58 (2) of the Act XII of 1957. "

14. There is another aspect of the case and that is that revision jurisdiction, as it is called, under section 43 (4) of the Act XII of 1957, is ex facie a judicial power. Now, judicial power is not delegateable unless the Legislature expressely authorises the repository of the power to do so. It is because judicial power is reposed in a Court or a authority which carries the confidence of the people that it is going to be exercised judicially, impartially and independently. Therefore, it is a fair expectation that the Court or the authority shall not delegate that power to some body else where that element had not been supposed to be. In the present case, the functions to be performed by the authority under the Act XII of 1957 were to acquire, control, dispose of properties whose owners had evacuated. What those properties were was also to be decided finally and conclusively by such an authority. The matter required immense trust and responsibility. Any person, or property could be held to be evacuee or non-evacuee, resulting in consequences of great magnitude. Proper handling of the job required high caliber and capacity to inspire confidence that functions shall be performed with a sense of responsibility and judicially. It is for these reasons that the Legislature provided in section 6 (2) of the Act XII of 1957 that "No person shall be appointed Custodian unless he, (a) was at any time before the 15th day of Angst 1947, a Judge of a High Court in British India, or (b) has, after the aforesaid date, been a Judge of the High Court in India, or (c) is or has been a Judge of a High Court in Pakistan". Thus, the authority to administer evacuee property was to be a person, who had held or was holding a high Judicial Office. The functions to be performed, besides being important and responsible as aforesaid, are obviously judicial in character, specially those relating to exercise of revisional jurisdiction under section 43 (4) of the Act XII of 1957. Therefore, exercise of power under section 43 (4) was to be by a person of high judicial authority and in the nature of judicial functions. On principle, in such circumstances, delegation of power is not permissible, except when expressly authorised. In Broome's Legal Maxims, it is stated, on authorities, at pages 571-572 that "Nor can an, individual, clothed with judicial functions, delegate the discharge of those functions to another, unless, as in the case of a County Court Judge he be expressly empowered to do. For the ordinary rule is that although a 'ministerial' officer may appoint a deputy, a `judicial' officer cannot. A magistrate, as observed by Lord Camden, can have no assistant or deputy to execute any part of his employment. The right is personal to himself, and a trust that he can no more delegate to another, than a justice of the peace can transfer his Commission to his clerk". Similarly, de Smith in his monumental work on Judicial Review of Administrative Action, First Edition, page 173 has stated that "A discretionary power must, in general, be exercised only by the authority to which it has been committed. It is well-known principle of law that when a power has been confided to a person in circum stances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another". The principle delegations non polest delegose (or delegasi) "applies to the delegation of all classes of powers, and) it is indeed originally invoked in the context of delegation of judicial powers., It is, therefore, convenient to travel beyond the delegation of discretion powers in the strict sense and to review the problem as a whole. The maxim is applied with the utmost rigour to the proceedings of the ordinary Courts, and in the entire process of adjudication, a Judge must act personally, except in so far as he is expressly absolved from this duty by Statute. Unless the parties) otherwise agree. an arbitrator must also discharge all his functions personally. apart from ministerial acts involving no appreciable exercise of skill and judgment, which he may entrust to another person. Because of the diversity of the character and functions of administrative tribunals, the problems raised by the delegation of judicial functions vested in them are likely to prove more difficult. Where powers to impose sanctions in respect of disciplinary offences committed by members of a profession or workers in an industry have been entrusted to statutory bodies. the Courts have held that these bodies cannot without express authority delegate their powers of decision to their officers or committees. It is fair to assume that an implied right to delegate the power to decide will never be held to have been conferred if the relevant statutory provisions show that a special confidence is placed in the tribunal as constituted under the Act, or if the consequences of the decision seriously affect individual rights, or if the functions of the tribunal are closely analogous to those typically vested in courts of law. "The House of Lords in the case of vine v. National Dock Labour Board (1956) 3 All E R 939 , took it as axiomatic that judicial authority is not delegatable except by express provision to the vontrary. Their Lordships were examining that, where under statutory authorization, a local board was empowered to exercise disciplinary powers, was delegation thereof to a disciplinary Committee valid or not 7 Their Lordships came to the conclusion that it was not. On the general principle of delegation of judicial authority, Lord Somervell of Harrow observed at page 951 of the report as under;

"The question in the present case is not whether the local board failed to act judicially in some respect in which the rules of judicial procedure would apply to them. They failed to act at all unless they had power to delegate. In deciding whether a "person" has power to delegate, one has to consider the nature of the duty and the character of the person. Judicial authority normally cannot, of course, be delegated, though no one doubted in Arlidge's case that the local Government Board, which consisted of the President, the Lord President of the Council, the Secretaries of State, the Lord Privy Seal and the Chancellor of the Exchequer (Local Government Board Act, 1871), could act by officials duly deputed for the purpose, whether or not the act to be done had judicial ingredients. There are, on the other hand, many administrative duties which cannot be delegated. Appoint ment to an office or position is plainly an administrative act. If under a statute a duty to appoint is placed on the holder of an office, whether under the Crown or not, he would, normally, have no authority to delegate. He could take advice, of course, but he could not, by a minute, authorise someone else to make the appointment without further reference to him. I do not, therefore, find it necessary to consider what judicial requirements might be held implicit in the local board's proceedings under Cl.

16. I am, however, clear that the disciplinary powers, whether "judicial" or not, cannot be delegated. The non-entitlement to pay, the suspension, the notice or the dismissal, must be a step taken by the local Board and not by a delegate. The penalties in some cases, may be slight, but, in some cases, very great. A man who has worked all his life in the docks may find himself precluded altogether from doing so. Today it may be easy for him to get other work, but that has not always been so. The constitution of the local Board also supports the conclusion. It is clearly constituted so as to inspire confidence and weigh fairly the interests of employers and employed. The purported delegation to the present case was to a representative of each side, but it is impossible to imply a limited right of' delegation. Osgood v. Nelson (1872) L R 5 H L 6361 decides that, in somewhat similar circumstances, the appointment of a committee to take evidence and report is not in itself a delegation of authority. If there are administrative difficulties this may be answer to them."

15. Lord Keith of Avonholm expressly associated with the above observations and the other noble Lords assumed the correctness of the proposition that judicial power is not delegatable. 16. 1n the present case, the matter is not left to the general principle of law. The statute itself i.e. Act XII of 1957, has so provided in section 58(2) that Custodian may delegate his functions, except the functions under section 43, which provides for revisional jurisdiction. Thus, both on principle and statutory construction it cannot be held that the Custodian while allocating duties under, Order dated 1st of September 1959 to Additional Custodian for confirming declarations granted by the Deputy Custodian had delegated his powers so to avoid or render ineffective the judicial power of revision under section 43 of the aforesaid Act XII of 1957. His observation that the Additional Custodian would be competent to pass final orders did not mean that the same shall not be subject to the provisions of the Statute, Act XII of 195 ,to Moreover, it cannot be lost sight of that the Order of the learned Custodian dated 1-9-59 referred to above, was made in exercise of powers under sub- rule (2) of rule 5 of the Administration of Evacuee Property Rules, 1950 which provides that "subject to such orders as the Central Government may make Additional, Deputy and Assistant Custodians, and other officers or persons to whom the Custodian delegates any of his functions under the Ordinance, shall discharge, under the general superintendence and control of the Custodian, such duties as may be assigned to them, and within such areas as may be specified by the Custodian". Now, the Order or the rule which authorizes making of an order cannot obviously operate in a manner that. it may render nugatory a provision of the present statute itself. Thus, even if the Order were to delegate revisional jurisdiction or the Rules were to permit that, which is not accepted as stated above, the Order or the rule to the extent of inconsistency with the statute, Act XII of 1957, shall be ultra vises and ineffective.

17. From the above discussion, it would be clear that the judicial authority in the nature of revisional jurisdiction under section 43 (4) of the Act XII of 1957 is not delegateable, not only on principle but the statute itself prohibits its delegation vide section 58 (2) of the Act XII of 1957. The order of the learned Custodian dated 1-9-59 dealing with allocation of duties to the Additional or Deputy Custodian does not, nor, can it, delegate revisional jurisdiction under section 43 (4) of the Act XII of 1957. In this view of the matter, the contention of the learned counsel for the petitioners that the learned Custodian has no jurisdiction to exercise revisional power tinder section 43 (a) of the Act X11 of 1957 is, therefore, not tenable.

18. For the foregoing reasons, it is held that the proceedings before the learned Custodian, challenged in this petition, are not without jurisdiction. The petition is, therefore, dismissed. The parties are, however, left to bear their own costs in the circumstances. S. A. H. Petition dismissed.