P L D 1957 (W (PLP)

MUHAMMAD SHARIF, J.‑

The facts of this writ petition by Manzoor Ilahi are these: The petitioner is one of the share holders in a limited concern, known as the Amritsar Sugar Mills Company Limited, Amritsar, which has its registered office at Amritsar, and had it at Amritsar even before the partition, This concern owns a ginning factory at Pattoki. District Lahore, (hereinafter referred to as the factory) which used to be run and managed by their Manager before 1947. On the 12th of August 1947, the said company executed a power‑of‑attorney in favour of the petitioner appointing him as their manager of the factory. On the 17th of October 1947, the petitioner obtained the possession of the factory through the police at Pattoki, who had been directed by the Deputy Commissioner, Montgomery, by his letter dated the 7th of October 1947, to deliver the same to the petitioner. The factory was, however, sealed by the police on the 8th of November 1947, and its possession taken by them. Aggrieved by this action of the police, the petitioner approached the Custodian with an application for restoration of the factory, and he passed the following order :‑ "The petition is not opposed by the Rehabilitation Department. The petitioner is a Muslim refugee from Amritsar. He is a shareholder in the Amritsar Sugar Mills Co. Ltd., which owns this factory and which has authorised him to work this factory. It will be in the interests of economic rehabilitation of the Province if this factory continues working. I, therefore, order its restoration to the petitioner under section 15 of Ordinance VII of 1947. The stocks in the factory would also be taken over by the petitioner along with the factory so that he might run it properly. The only condition imposed upon him is that the petitioner will give priority for ginning and pressing of cotton brought to him by the Registrar of the Co‑operative Societies" The Rehabilitation Department applied to the Custodian for the cancellation of the above‑mentioned order, but he rejected their application on the 22nd of June 1950, in the following terms :‑ "The property was restored to Manzoor Elahi on behalf of the Amritsar Sugar Mills Company with the consent of the Rehabilitation Department by the Custodian. It also appears that the owners are a limited company registered in Amritsar from a long time before Partition. The property not having been taken over by the Custodian, it cannot be touched now by virtue of subsection (3) of section 2 of Ordinance XV of 1949. The petition is dismissed." The Rehabilitation Department made another application to Custodian, this time the late Mr. M. A. Soofi, for reviewing the previous review order of his predecessor, Mr. S. A. Rahman, dated the 22nd of June 1950, but this too was dismissed on the 7th of January 1953, and the order passed by him is to the following effect :‑ "My predecessor's order dated the 22nd of June 1950 is sought to be reviewed. Order XLVII Civil P. C. has no application to a power of review under the Ordinance. I can review the order of my predecessor, (for) for a suo moto review there is no limitation. Mr. Manzoor Elahi was a shareholder of Amritsar Sugar Mills Co. Ltd. Pattoki Cotton Ginning Factory was one of the said Sugar Mills. Manzoor Elahi held a power‑of -attorney from the said Sugar Mills. Pattoki Factory was restored to the said Sugar Mills by my predecessor's order dated the 21st of February 1948. It has been argued that a notification in Civil & Military Gazette issue of 6th March 1949, announcing the suspension from the Sugar Company service and the cancellation of power‑of‑attorney had not come to the notice of my prede cessor, hence his order dated the 22nd of June 1950, should be reviewed. Barring the notification in the Civil & Military Gazette there is nothing to show the cancellation of the power‑of‑attorney. The Sugar Company's letter dated the 23rd of July 1951 to the respondent Manzoor Elahi shows that he still holds the power‑of‑attorney and commands confidence of the said Sugar Company. There is no change in the position of the said Sugar Company or its relations with Mr. Manzur Elahi respondent. I am, therefore. not prepared to review my predecessor's order. Rejected." Undaunted by their previous failures, the Rehabilitation Department again applied to the Custodian, this time Mr. A. M. Jan, for review of his predecessor's order dated the 7th of January 1953, and, after hearing the arguments of the parties, he referred the following question to the Central Government for advice on the 23rd of July 1955 :‑ "Is it necessary to ask the Central Government to issue a notification under section 6. subsection (3), when it is found that an evacuee joint stock company whose property is in dispute had its registered office in India before the 15th of August 1947, which continued to be so situated ; or finding to that effect by the Custodian is sufficient to make the property of such a joint stock company non‑evacuee property and to release it from the charge of the Custodian?" The Central Government sent the following reply :‑ "With reference to your letter No. CEP‑J2237, dated the 8th August 1955, endorsing cops of the order dated the 23rd July 1955, passed by you, I am directed to say that the reply to the query raised in the concluding part of the order is in the affirmative. The property of a joint stock company taken over by the Custodian or vested in him will continue to be so vested unless a notification under section 6 (3) of Ordinance XV of 1949 is issued by the Central Government." The Custodian‑then passed the following order on the 10th of February 1956, in pursuance of which order the Rehabilitation Authority sealed the factory and took its possession on the 6th of July 1956 :‑ "The reply is that the property of a joint stock company taken over by the Custodian or vested in him will continue to be so vested unless a notification under section 6, sub section (3), of Ordinance XV of 1949 is issued by the Central Government. The petition of the Rehabilitation Authority dated 20th November 1954, is, therefore, accepted. The respondent Malik Manzoor Elahi is at liberty to apply to the Central Government for notification under section 6, subsection (3), Evacuee Property Ordinance." The complaint is that the last order of the Custodian dated the 10th of February 1955, is illegal and without jurisdiction. The order has been attacked on two grounds The first is that the Custodian not having taken the posses sion of the ginning factory before the 15th of October 1949, when the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) (hereinafter referred to as the Ordinance) was promulgated, and which excluded a joint stock company the registered office of which was situated, before the fifteenth day of August 1947, in any place in the territories now comprising India and continues to be so situated after the said date, from the definition of an evacuee property as given in clause (3) of section 2 of the Ordinance, Mr. A. M. Jan had no jurisdiction to refer the matter to the Central Government for advice, which advice, it is submitted, was given on the assumption that the said factory had been so taken into possession by the Custodian before the 15th of October 1949 under section 4 of the West Punjab Protection of Evacuee Property Ordinance VII of 1947, albeit this was not a fact and the reference to that effect in the question referred to the Central Government by Mr. A. M. Jan was against the proved facts. The second is that after first order dated the 21st of February 1948, had been reviewed by the Custodian on the 22nd of June 1950, no subsequent review was competent either by the late Mr. M. A. Soofi or by Mr. A. M. Jan, the prescribed period for such reviews having already expired under rule 17 (3) of the Administration of Evacuee Property Rules, 1950, framed under section 46 of the Ordinance (hereinafter referred to as the Rules). The arguments of the learned counsel for the petitioner rest on solid grounds and must be accepted as correct in view of the clear recital in the order dated the 22nd of June 1950, passed on review by Mr. S. A. Rahman, that the factory had not been taken into possession by him at any time before the promulgation of the Ordinance. There can be no doubt, having regard to the provisions of section 2 of the Ordinance, that after the 15th of October 1949, the ginning factory in dispute, the registered office of which was and is situated at Amritsar, cannot be regarded as an evacuee property and the Custodian has no jurisdiction over the same, unless it had been taken into possession by him under section 4 of the West Punjab Protection of Evacuee Property Ordinance VII of 1947 before that date, in which case it would be regarded as an evacuee property by virtue of the provisions of clause (3) of section 6 of the Ordinance unless the Central Government directed to the contrary by a notification in the official Gazette. Without further elaborating the argument, it is enough to reproduce the relevant sections referred to above, because there can be no manner of doubt that if the Custodian did not take possession of the factory at any time before the 15th of October 1949, he cannot do so now and the factory is A perfectly immune from the operation of Evacuee Laws, and this position has been accepted as correct by the learned counsel for the Rehabilitation Department. (1) Section 4 of the West Punjab Protection of Evacuee Property Ordinance VII of 1947 :‑ "(1) Subject to the provisions of this Ordinance, a Custodian may, by general or special order, with reference to the location or description of a specific or any class of evacuee property, assume possession of or control over the property mentioned in the order which shall be published in the official Gazette. From the date of the order, the holder of such property, if any, shall be deemed to be holding it on behalf of the Custodian and shall, on demand, surrender possession of it to the Custodian or a person authorised by him in this behalf. The Custodian may take such measures as he considers necessary or expedient for preserving or safeguarding such property. (2) Any person complying with the order of the Custodian shall not be liable to any suit, criminal prosecution or other legal proceedings by reason only of such compliance. (3) The Provincial Government may by order‑ (a) vest or provide for and regulate the vesting in the prescribed Custodian such evacuee property as may be prescribed ; (b) vest in the prescribed Custodian the right to pool together and to transfer such evacuee property as may be prescribed to refugees or other persons, resident in West Punjab and owning property in the prescribed territories, outside Pakistan, on such terms and conditions as may be prescribed. (4) When, in pursuance of an order made under sub‑rule (3) any evacuee property or the right to transfer such property is vested in a Custodian, neither the vesting nor any proceedings in consequence thereof shall be invalidated or affected by reason only that at a material time‑ (i) some person who was or might have been interested in the property and who was an evacuee had died or had ceased to be an evacuee, or (ii) some person who was so interested and who was believed by the Custodian to be an evacuee was not an evacuee. (2) Section 2, clause (3); of the Ordinance (XV of 1949) :‑-- evacuee property means any property in which an evacuee, has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity), and includes‑ (a) * * * * * (b) * * * * * (c) * * * * * but does not include‑ (i) * * * * * (ii) any property belonging to a joint stock company the registered office of which was situated, before the fifteenth day of August 1947, in any place in the territories now comprising India and continues to be so situated after the said date. (3) Section 6 clauses (1) and (3) :‑ (1) All evacuee property shall vest and shall be deemed always to have vested in the custodian with effect from the first day of March 1947. (3) Where any property in Pakistan belonging to a joint stock company has vested in or been taken possession of by any person exercising the powers of a Custodian under any law in force immediately before the commencement of this Ordinance, nothing contained in clause (3) of section 2 shall affect the operation of subsection (1), but the Central Government may by notification in the Official Gazette, direct that the Custodian shall be divested or dispossessed of any such property in such manner and after such period as may be specified in the notification." The only point urged by the learned counsel for the Rehabilitation Department is that the possession of the factory had been taken by the Custodian before February 1948, and relied for that assertion on the order of the Custodian dated the 21st of February 1948, which has already been reproduced. That order, however, merely released the factory from the possession of the police and handed it over to the petitioner, recognising his claim to his competence to run the same as a shareholder of the Amritsar Sugar Mills Company Limited as also their authorised agent. The reference to section 15 of Ordinance VII of 1947, on which great emphasis has been laid by the learned counsel was purely incidental and cannot be relied upon for the purposes of establishing that the Custodian had taken the possession of the factory. This view of the order which we take is fully confirmed by the later order of the Custodian which he passed on review on the 22nd of June 1950, when conditions in the country had fully settled down and he was in possession of all the facts relating to that factory. Consequently, we see no force in the contention of the learned counsel for the Rehabilitation Department and for the 'same reason we are of opinion that when Mr. A. M. Jan indicated in his reference of the 23rd of July, 1955, to the Central Government that the factory had been taken into possession by the Custodian, he was not factually correct, and the answer to his reference was based purely on the hypothetical exposition of the facts. As regards the second point that no review was competent by the two successive Custodians, Mr. M. A. Soofi and Mr. A. M. Jan respectively, after the first order dated the 21st of February 1948, had already been reviewed by Mr. S. Al Rahman, it is equally clear that the argument is unassailable both on the general principle relating to the finality of judgments as also on the ground of limitation. Endless reviews are not contemplated by the Ordinance and the contention of the learned counsel for the Rehabilitation Department that although a review of his own order by the Custodian beyond the period of thirty days, as prescribed by rule 17 (3) of the Rules, is not competent on the application of a private party, it is not so if the Custodian decides to review his order suo motu. On proper consideration of clause (5) of section 36 of the Ordinance, which is to the following effect, we have no hesitation in repelling this contention of the learned counsel as wholly untenable :‑ "The Custodian or Additional Custodian may, within the prescribed period and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order." Having regard to the language of the clause under review, we are clearly of the view that that part of the rule 17 (3)I which empowers the Custodian to review his own order beyond the period of thirty days of that order, if the action is taken suo motu, is clearly ultra vires of the powers of the L Government and has gone, beyond the scope of the provisions of clause (5) of section6 of the Ordinance. The phrase "within the prescribed period" in the provisions of clause (5), supra, means only that some definite period must be prescribed by the Government while framing Rules order section 36 by virtue of the powers conferred on them by section 46 of the Ordinance, and it is hardly necessary to elaborate the point that the Rules so framed cannot override the Ordinance and I must conform strictly to it. In this very Ordinance, where al different intention was aimed at, the Government said so plainly and clause (4) of section 36 of the Ordinance is an apt illustration of that fact. Clause (4) runs thus:‑ "The Custodian may, at any time either of his own motion or on application 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 Provided that the Custodian shall not under this sub section pass an order revising or modifying any order affecting any person without giving such person and the Rehabilitation Authority an opportunity of being heard." Therefore, so far as the exercise of revisional jurisdiction by the Custodian was concerned, the Legislature gave‑ him full authority to act at any time of his own motion and to act on the application of a private party within the period prescribed by the Government, which period was prescribed by them to be thirty days from the date of the order in question. But where this was not intended the Government employed an entirely different language, as in the case of clause (5) of section 36 of the Ordinance. For these reasons, we hold that later reviews of the review order dated the 22nd of June 1950 were wholly without jurisdiction and illegal. It is hardly necessary to point out that when Mr. S. A. Rahman had reviewed his own order, the Rules had not yet been framed by the Government prescribing the period, and they came into force on the 25th of August 1950. For the above‑mentioned reasons, we accept this writ petition with costs and confirm our previous order restoring possession to the petitioner. A.H. Petition accepted.