P L D 1964 Supreme Court 89 (PLP)

S. A. RAHMAN, J.‑This appeal by special leave seeks to call in question an order of the High Court of West Pakistan, Karachi Bench, by which the petition of Tolaram appellant, praying for a writ of certiorari to quash an order of the Custodian of Evacuee Property, West Pakistan Karachi, was summarily dismissed. Substantial questions of law were raised in the petition for special leave which was therefore allowed. The relevant facts are that on the 23rd of February 1949, Tolaram entered into two agreements of exchange with Karam Elahi, deceased, father of Sardar M. B. Ahmad, the third respondent. By one agreement, Tolaram purported to exchange a building owned by him in Karachi city, along with a plot of land also situate therein, with four houses in Patiala city in the East Punjab, belonging to Karam Elahi. Each party undertook to do all that might be necessary to give to the other party lawful possession of the property to be transferred. It was added therein that if owing to any restriction by the Government against the transfer, one party does not get possession or ownership of the property in question, the other party would not be entitled to obtain possession and ownership of the corresponding property. By the second agreement, exchange was sought of another house belonging to Karam Elahi at Patiala with movable property consisting of timber and hardware owned by Tolaram and lying in his Sukkur and Karachi business premises. The value of each property involved in this second agreement was fixed at Rs. 20,000 and there was a stipulation that if the value of any of the properties, fell short of the estimated price, the difference would be made good by accepting in exchange, property of equal value. to be transferred by the party concerned. On 25‑8‑50, Karam Elahi applied for permission to register the exchange deeds and for confirmation of the transactions involved, to the Deputy Custodian of Evacuee Property, Karachi. On 2‑10‑50, permission was granted by the Deputy Custodian, for registration of the documents in question and it was declared that the confirmation proceedings would be taken in due course. The exchange deeds were registered on the 26th of July 1951, and then another formal application for confirmation of the transactions of exchange was made to the Deputy Custodian on 21‑8‑51. With the consent of both parties, an order of confirmation was passed on 10‑11‑53. It appears that before this happened, on 12‑2‑50, the Assistant Custodian of Evacuee Property, Karachi, ordered the property of Tolaram to be treated as evacuee property. Similar action was taken by the Deputy Custodian of Evacuee Property, Sukkur, in respect of Tolaram's property situate in that city. Tolaram went up in appeal against these orders and Mr. Akbar Hussain, the then Custodian, allowed these appeals by order dated the 12th of October 1950. He declared Tolaram to be a non‑evacuee and his property which apparently included the immovable property in dispute in the present litigation, as non‑evacuee property. Tolaram himself had, it seems, visited Patiala (East Punjab) and applied to the Deputy Custodian there for confirmation of the transaction of exchange relating to properties owned by Karam Elahi in that city. He represented himself there as a displaced person from Pakistan, from where he alleged, he had been "squeezed out". This clearly amounted to a representation that his property in Pakistan was evacuee property. Indeed, it is not denied that the confirmation proceedings that took place in Pakistan, also proceeded on the assumption that the property of Tolaram was evacuee property. The declaration granted to him by Mr. Akbar Hussain though earlier in date than the con firmation order, was not brought to the notice of the Deputy Custodian who passed the latter order. Tolaram's attempt to obtain orders of confirmation from the Deputy Custodian, Patiala, failed and he was therefore prevented from taking possession of Karam Elahi's property there. On the 10th of December 1953, consequently, Tolaram appealed against the order of confirmation passed by the Deputy Custodian on 10‑11‑53. The appeal was rejected by the Additional Custodian on 22‑4‑54. A revision petition taken to the Custodian of Evacuee Property, also met the same fate, on 8‑6‑56. On the 16th of June 1954, Tolaram presented an application under section 18 of Ordinance XV of 1949, to the Deputy Custodian of Evacuee Property, for a declaration that his property was non‑evacuee in character. This petition was dismissed by order dated the 28th October 1958, and an appeal filed by Tolaram was dismissed by the Additional Custodian on 22‑1‑59. He moved the Custodian in revision and Mr. Masud Ahmad, the then Custodian, passed an order on the 24th of March 1960, in which he pointed out that the order passed by his predecessor, Mr. Akbar Hussain, on 12‑10‑50, held the field, as it had never been reviewed and could not now be set aside in review proceedings, by his successor, in the face of the proviso to subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, despite the fact that this proviso had been omitted by an amending Act of 1958. The learned Custodian further observed that nothing had transpired since the order of Mr. Akbar Hussain, to justify the declaration of Tolaram as an evacuee. He therefore allowed the petition to the extent of declaring him to be a non‑evacuee. In respect of his properties, however, he declined to grant him a declaration on the ground that no particulars of the property in question had been given in the petition. He advised the appellant to submit a separate application specifying the properties regarding which he sought a declaration of non‑evacuee character and that was directed to be disposed of on the merits, if filed. He added, however, that as far as the transfer in favour of Karam Elahi, father of Sardar M. B. Ahmad respondent, was concerned, irrespective of whether Tolaram was or was not an evacuee at any time, section 54 of the Pakistan (Administration of Evacuee Property) Act, 1957, gave complete protection to the transferee and the Custodian's order according confirmation to the transaction, could not be held to be invalid on the ground that at the relevant time the petitioner was not an evacuee. It was, therefore, remarked that if Tolaram disputed the character of the properties transferred to Karam Elahi in the petition to be filed by him under section 22 of the 1957 Act, this aspect of the case must be kept in mind. By a review petition submitted to the Custodian, the appellant prayed that the properties mentioned in Mr. Akbar Hussain's order dated 12‑10‑50 may be declared to be non‑evacuee pro perties. This petition was summarily dismissed by the learned Custodian. Tolaram then duly presented an application under section 22 of the 1957 Act, for a declaration that the properties in dispute belonged, to him and were not evacuee properties. This petition was disposed of by the Additional Custodian by order dated 24‑12‑60. Section 54 of the 1957 Act was invoked in support of the view that the properties in question had passed to Karam Elahi by virtue of a confirmation order, granted on the assumption that the properties involved were evacuee properties and the order in question was therefore now sacrosanct. An appeal taken to the Custodian against that order was dismissed by Mr. Justice Khamisani who had assumed the office of Custodian in the meantime. It was at this stage that the appellant moved the High Court of West Pakistan, Karachi Bench, for the issuance of a writ of certiorari but failed to obtain any redress. The main question that calls for determination in the case is whether the interpretation of section 54 of Act XII of 1957, that prevailed with the Custodian's Department, was correct or not. This section is couched in the following terms :‑ "Where in pursuance of the provisions of this Act, any property, has vested in the Custodian, neither the death of the person, who had any right or interest in that property at any time after the property had so vested, nor the fact that any person believed to be evacuee was not or had ceased to be an evacuee at any material time, shall affect the vesting or render invalid anything done in consequence thereof:" It is argued on behalf of the appellant that with the grant of the declaration of non‑evacuee status to Tolaram and his property, by the Custodian, on 12‑10‑50, the property in question had ceased to be evacuee property and therefore no longer vested in the Custodian when the confirmation order was passed on 10‑11‑53. It is suggested, in consequence, that the section, in terms, is not attracted to the case. It appears that Tolaram was having his feet in two boats at the same time. On the one hand, he was pursuing his remedy before the Custodian in respect of his personal status and that of his property, and on the other hand, he was collaborating with Karam Elahi in seeking confirmation of the transaction of exchange. The proceedings in confirmation were referable, at the relevant time, to section 16 of Ordinance XV of 1949, which corresponds to section 20 of Act XII of 1957. This section provides that no creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatso ever 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 is or may hereafter 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 any person claiming under such a party, unless it is confirmed by the Custodian. It is conceded that at the time when the confirmation proceedings were started, the declaration that Tolaram and his property were both evacuee, held the field. That declaration was of course the subject of a revision before the learned Custodian and was eventually set aside, before confirmation was accorded to the transaction. But Tolaram kept the declaration granted to him by the Custodian in respect of his non‑evacuee status, with himself as a secret weapon, to be utilized if need be. In the meantime, he went on making efforts to obtain exchange of his properties with those of Karam Elahi situate in Patiala in the East Punjab, giving the impression to the authorities concerned that his property in Pakistan was evacuee property. The confirmation order was clearly relatable to the assumption made with regard to the character of the property and such a situation appears to be covered by section 54 of Act XII of 1957. The effect of the declaration granted by the Custodian on 12‑10‑50 may be admitted to be that in fact as well as in law, the property in question was not evacuee property at any time. The word "vesting" however occurring in section 54 must be held to include not only vesting in fact and in law but also a fictional "vesting" on what may eventually be found to be an erroneous assumption that the property in question was evacuee property. Unless this extended construction is adopted, of the wore "vesting" in this section, full effect would not be given to its provisions. The words "nor the fact that any person believed to be evacuee was not or had ceased to be an evacuee at any material time, shall affect the "vesting" are significant. The provisions of the Act have to be enforced despite anything to the contrary contained in any other law for the time being in force and must be allowed to prevail (section 4 of Ordinance XV of 1949 corres ponding to section 5 of Act XII of 1957). It cannot be denied that before Mr. Akbar Hussain's order, the position was that the, property in dispute did "vest" in the Custodian, under the orders of the Additional Custodian who had declared it to be evacuee property. That assumption continued to be made throughout the confirmation proceedings, without any effort on the part of Tolaram to disabuse the minds of the officers con cerned in this respect. The final order of confirmation there fore, which was passed "in consequence of the vesting of the property" in the Custodian, within the meaning of section 54, would not be rendered invalid, by the discovery later that Tolaram was in fact not an evacuee or had ceased to be an evacuee before the confirmation order was passed. It seems to us, therefore, that the view adopted by the Custodian's Department, was not open to exception, on the very wide wording of section 54 of Act XII of 1957. It seems manifest that Tolaram, in the guise of an application for declaration of the property as non‑evacuee property, was really seeking review of the confirmation order and such a device was clearly not countenanced by the provisions of section 54 referred to above. It was next contended that there was a total lack of con sideration for the transaction of exchange in so far as Tolaram was not given possession of Karam Elahi's properties at Patiala, by the Indian Deputy Custodian and the transaction therefore fell through. All that section 54 of Act XII of 1957, however, enacts is that, in these circumstances, Tolaram is unable to challenge the order of confirmation passed by the Custodian's Department. If his property was in fact non‑evacuee property, as he claims there was no question of the confirmation of the transaction under consideration, by the Custodian. The confirmation is only an added requirement of the law for alienations relating to evacuee property. If Tolaram is so advised, he might seek his remedy in respect of the abortive exchange, in the proper forum, on the plea of complete lack of consideration. The Custodian's order, on the face of it, suffered from no illegality nor was it beyond the pale of his special jurisdiction and the High Court rightly declined to interfere with it, in writ jurisdiction. The appeal is therefore dismissed but there will be no order as to costs in the circumstances of the case. K. E. A. Appeal dismissed.