P L D 1959 (W (PLP)

SHABIR AHMAD, J.--‑Some evacuee property lying in the Pioneer Flour Mills, Shahdara, which premises had been leased to Pirzada Nazir Hussain, was sold by the Custodian, Evacuee Property, West Pakistan, after calling for tenders. Messrs Zahid Umar & Company offered Rs. 16,000 odd for that property and it was on the acceptance of this tender that the property was sold to them. On the 31st of October 1957 the Custodian, Evacuee Property, issued letter No‑ CPE/IX‑A‑10(1) to Messrs Zahid Umar & Company stating that their tender for four evacuee boilers had been accepted and a copy of this letter was sent to the Deputy Rehabilitation Commissioner, Lahore, for necessary action. By his letter No. DRC/Acs/CAI/2201 dated November 1957 the Deputy Rehabilitation Commissioner informed Messrs Zahid Umar and Company that possession of four boilers and their spare parts, which had been referred to in the letter of the Custodian dated 31st October 1957 will be delivered to the Company on the 27th of November at 9‑30 a.m. at the spot. A copy of this letter was sent for information to the allottee of the Shahdara Flour Mills Shahdara, Lahore. By his letter No. DRC/Acs/CAI/2243 dated 28th of November 1957, the Deputy Rehabilitation Commissioner, Lahore, informed the Manager, Pioneer Flour Mills, Shahdara, that the Cashier Accountant of that Officer's Office deputed to hand over posses sion of the property sold to Messrs Zahid Umar & Company by the Custodian, Evacuee Property, had reported that possession was not being delivered to the purchaser of some of the articles sold and no further obstruction should be placed in the delivery of those articles. Pirzada Nazir Hussain, General Manager, of the Shahdara Pioneer Co‑operative Multipurpose Mill Society Limited, Shahdara, put in a writ petition 469/11 of 1958 saying that as the Deputy Rehabilitation Commissioner was handing over possession of property to Messrs Zahid Umar & Company which had not been sold to the Company, a writ restraining the delivery of the property be issued. This petition came up before me at a preliminary hearing in July 1958 and I sent for a report from the Custodian, Evacuee Property West Pakistan. The report received was to the effect that all the property, of which the Deputy Rehabilitation Commissioner, Lahore, wanted to deliver possession to Messrs Zahid Umar & Company had been sold by the Custodian to the company. On receipt of this report I rejected Writ Petition No. 469/11 of 1958 on the 5th of August 1958. Some time later, the Secretary; Rehabilitation Department, West Pakistan, issued a stay order whereby the delivery of some property, which according to the Deputy Rehabilitation Commissioner had been sold to Messrs Zahid Umar & Company, was not to be made to the Company till further orders. Thereupon the company put in Writ Petition No. 487/11 of 1958. Report was sent for which showed that the Secretary to the Government of West Pakistan. Revenue and Rehabilitation Department, had already withdrawn his order and consequently the petition was withdrawn on the 16th of September 1958.

2. It is established from the material on the record that Pirzada Nazir Hussain made a 'complaint to the Central Govern ment of Pakistan alleging that more property than was sold by the Custodian was being handed over to Messrs Zahid Umar & Company. On receipt of this complaint a stay order was issued by the Central Government. An inquiry appears to have been made by the Central Government as a result of which the stay order issued on the receipt of the complaint of Pirzada Nazir Hussain was vacated after the receipt of the report sent for from the Custodian, Evacuee Property West Pakistan. This report, which was presumably similar to the report sent by the Custodian to this Court in Writ Petition No. 469/11 of 1958 was evidently accepted by the Central Government of Pakistan and the stay order which had been issued on receipt of the complaint was withdrawn.

3. When after the order passed by the Pakistan Govern ment the company made another attempt to take possession of the property alleged to have been sold to them, it came to light that the Chief Secretary to Government of West Pakistan had passed some order with regard to an inquiry into the allegations made in another complaint sent by Pirzada Nazir Hussain, and, therefore, possession could not be delivered to the company. On learning this, Messrs Zahid Umar & Company presented the present writ petition (No. 1155 of 1958) impleading the Chief Secretary to Government of West Pakistan, Lahore, the Custodian, Evacuee Property, and Pirzada Nazir Hussain, General Manager, the Shahdara Pioneer Co‑operative Multipurpose Mill Society Limited, Shahdara, as the first, second and third respondents respectively. The prayer made in this writ petition, which was filed under clause (4) of Article 2 of the Laws (Continuance in Force) Order, 1958, is that a writ of mandamus or certiorari should be issued to the Chief Secretary to withdraw the order for re‑enquiry into the sale of the articles and a direction be issued to the Custodian to deliver possession of the articles men tioned in the inventory dated the 29th of November 1957 prepared by the Deputy Rehabilitation Commissioner. 4. "The Custodian, Evacuee Property, has not appeared personally or through counsel to contest the petition, but the other two respondents were represented at the hearing by counsel. No written statement was put in by the Chief Secretary to Government of West Pakistan (respondent No. I), but Mr. Iftikhar‑ul‑Haq Khan, who appeared on his behalf, made a statement that he had been instructed by the Chief Secretary to inform the Court that no inquiry had been ordered by the Chief Secretary and all that was done was that the complaint of Pirzada Nazir Hussain had been brought to the notice of the Custodian for such action as may be deemed necessary by that officer. Pirzada Nazir Hussain put in a lengthy written statement and an affidavit was put in on his behalf at the time of the hearing. The affidavit which was sworn on the 28th May 1959 is to the effect that the deponent Pirzada Nazir Hussain had put in an application before Colonel Muhammad Hussain on the 25th of November 1958, and had been directed to ask the representatives of the Deputy Rehabilitation Commissioner, Lahore, to contact the Colonel on the telephone before taking delivery at Shahdara Mills and that the application had been sent by the Martial Law authorities to the Chief Secretary to Government of West Pakistan for inquiry.

5. Mr. Ghulam Muhammad Bhatti, Advocate who appeared for Pirzada Nazir Hussain (respondent No. 3), contended that as an order for inquiry, had been made by the Martial Law authorities, this Court was incompetent to issue any writ in the matter. The question whether or not a writ can issue where an order has been passed by Martial Law authorities does not arise in the present case because it has not been established that Colonel Muhammad Hussain mentioned in the affidavit was authorised under the law in force to pass the order alleged to have been passed by him. Contrary to the belief of some persons and the wishes of some others, in spite of the fact that Martial Law is in force, it is not every member of the B Defence Forces who can pass orders which will be immune from scrutiny by Courts of ordinary jurisdiction. If every member of the Defence Forces were to be deemed to be competent to issue a Martial Law Order or a Martial Law Regula tion, the result will be nothing but complete chaos. Moreover, it is clear from the relevant Orders issued by the President and the Chief Martial Law Administrator that only these member of the Defence Forces can issue a valid order who have been A authorised to do so. There is nothing on the record to show that Colonel Muhammad Hussain mentioned in the affidavit of Pirzada Nazir Hussain was one of the officers who was authorised to issue the order on which so much reliance was placed by the learned counsel for respondent No. 3 and in addition there is the fact that the Chief Secretary to Government of West Pakistan (respondent No. 1) does not take up the position that it was under the direction of Martial Law authorities that he had sent the complaint of Pirzada Nazir Hussain to the Custodian, Evacuee Property, West Pakistan. Mr. Iftikhar‑ul‑Haq Khan, Advocate, stated on the basis of instructions that the communication the Chief Secretary addressed to the Custodian was not initiated under the Martial Law Regulations. I am clear in my mind, therefore, that the power of this Court to issue a writ if one should issue is not ousted in the present case for the reason mentioned by the learned counsel for respondent No. 3.

6. Relying on the 26th section of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), the learned counsel for the petitioner urged that as the Pakistan Government had not deemed fit to set aside the transaction of sale which the Custodian has entered into, the case was governed by subsection (2) of section 26 and the order of the Central Government in this behalf being final, the Chief Secretary to the Government of West Pakistan was incompetent to direct an inquiry into the matter. Section 26, relied upon by the learned counsel for the petitioner, reads as follows: "

26. Evaluation of evacuee property.‑(1) The Custodian may determine the value of any property vesting in him or empower the Rehabilitation Authority of the area to do so. (2) If it appears to the Central Government in any case that the value of any property determined under subsection (1) is not proper it may make necessary enquiry in the matter and pass such orders as it may think proper and the order so passed shall be final." It appears to me that the section does not in terms apply to the facts of the present case, because though the Central Government was concerned with the question whether or not the property, of which the Deputy Rehabilitation Commissioner, Lahore, wanted to give possession to the petitioner company, had been sold to the company, the question what the price of the goods alleged to have been sold was is not shown to have been considered by the Central Government. It is true that the Central Government could be deemed to have impliedly held that the value of the property, which the Custodian had reported had been sold, was not more than that paid by the petitioner company, but before the order of the Central Government can be held to have been passed under section 26 of the (Pakistan (Administration of Evacuee Property) Act (XII of 1957), it should be clear that the terms of that section were kept in view when disposing of the matter which went to the Central Government because if the orders of the Central Government were final, the D jurisdiction of all other authorities to look into the matter would be ousted and ouster of jurisdiction of authorities ordinarily competent to pass orders should not be inferred unless no other course is open.

7. Having held that the order of the Central Government did not oust the jurisdiction of other authorities to look into the matter if the law allowed them to do so, I proceed to consider whether or not in the present case the matter can be re‑opened. It is clear from what has been said in an earlier part that the Chief Secretary to the Government, West Pakistan, did not direct the Custodian, Evacuee Property, to hold an inquiry into the matter, and, therefore, the Custodian was not bound to hold an inquiry if he did not want to do so I am not to be taken to have held that the Chief Secretary was competent E to direct the Custodian to hold such an inquiry, because I have not considered that aspect of the case at all. It was con tended by the learned counsel for respondent No. 1 and respondent No. 3 that as the powers of the Custodian to review his own orders under section 43 of the Pakistan (Administration of Evacuee Property) Act were unlimited, there was nothing in law to prevent that officer to review his previous order and consequently no writ should issue to him to deliver the goods to the petitioner. The contention that the powers of the Custodian to review his own orders are unlimited does appear to have the support of subsection (4) of section 43 of Act XII of 1957, E but I am of the view that that provision of law does no apply to the present case. In the present case, the Custodian was in no better position than a party to a sale and when the question arose whether or not all the articles, of which the Deputy Rehabilitation Commissioner, Lahore, wanted to give possession to the petitioner company, had been sold by the Custodian to the company, the Custodian took up the position when a report was sent for by this Court and by the Central Government that all the property of which the petitioner wanted to take posses sion, had been sold to the petitioner. In addition, there is the fact that Mr. Iftikhar‑ul‑Haq Khan, the learned counsel for respondent No. 1, admitted that when the Chief Secretary to the Government, West Pakistan, wrote to Mr. A. M. Jan, the then Custodian of Evacuee Property, West Pakistan, the latter in his D. O. letter No. CEP/1X‑A‑10 (1)/196 dated the 29th of November 1957 sent to Mr. Fida Hassan, Chief Secretary to Government of West Pakistan, said in clear terms that he did not consider it desirable to re‑open the case, especially 3s this Court and the Central Government had not found anything suspicious in the sale which was being attacked again and again by Pirzada Nazir Hussain. Apart from the fact that the Custodian, who was a party to the sale, cannot act as a judge in his own cause, there is the circumstance that at all stages the Custodian had taken up the position in unambiguous terms that the whole of the property, of which the Deputy Rehabilitation Commissioner, Lahore, wanted to give possession to the petitioner company, had been sold to the petitioner company. Consequently, I would direct the Custodian to deliver to the petitioner company the property which he admitted having sold to it. I would further direct that respondent No. 3 who for his selfish ends has been sending complaints to various authorities in order that he may not have to part with property to which he has no legal claim, shall pay the costs of the petitioner, the counsel's fee being fixed at Rs.

300. MASUD AHMAD, J.

‑I agree. A. H. Petition accepted.