P L D 1967 Lahore 432 (PLP)

Ch. Muhammad Hussain for Petitioner. S. U. Almas Ali for Respondent No.

1. Rafiq Qureshi for Respondent No.

2. Date of hearing: 14th April 1966. The facts of the case have been set out in the order of the learned Sessions Judge reporting the case to the High Court. The points that arise for determination in this petition are‑ (a) whether a property acquired by the Government under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, continues to be evacuee property in spite of the acquisition, and (b) whether a Magistrate is debarred from taking action under section 145 of the Criminal Procedure ‑Code in respect of such property.

2. The first question has been conclusively determined by the Supreme Court in Devachand Muljimal v. The Deputy Settle ment and Rehabilitation Commissioner, Karachi and six others (P L D 1965 S C 356), wherein their Lordships have observed that‑ even otherwise as soon as property is acquired by Notifica tion under section 3 of the Act of 1958 it ceases to be evacuee and the Custodian has, thereafter, no further jurisdiction with regard to it. The learned trial Magistrate was, therefore, not right in dropping the proceedings on the ground that the property in dispute which had admittedly been acquired by the Government under section 3 of the aforesaid Act, continued to be evacuee property.

3. The next question is whether' section 25 of tae Displaced Persons (Compensation and Rehabilitation) Act, 1958, is a bar to the proceedings before the learned Magistrate? This section runs as follows: gave as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Central Government or an Officer appointed under this act is empower ed to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken in exercise of any power conferred by or under this Act. The first part of the section concerns itself only with Civil Courts So far as Civil Courts are concerned, therefore, their jurisdiction is excluded in all matters in which Settlement Officers of any class are clothed with the authority to adjudicate The second part is attracted to the jurisdiction of all Court whether Civil, Criminal or Revenue and even covers the case of other authorities. This part only protects action taken or to be taken in exercise of any power conferred by that Act. The learned Magistrate trying an application under section 145 of the Criminal Procedure Code is surely not a Civil Court and, there fore, his jurisdiction can, if at all, be fettered only by the second part of the section.

4. Can a Magistrate acting under section 145 of the Criminal Procedure Code pass an order which would affect any action taken or to be taken in‑ exercise of any power conferred' by or under Act XXVIII of 1958?

5. Under section 145 of the Criminal Procedure Code the power of the Magistrate extends to deciding‑‑‑ whether any or which of the parties was at the date of the order before mentioned in such possession of the said subject and if the Magistrate decides that one of the parties was or should . . . . . . . . be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction . . . . . None of the functions detailed in the extracts, quoted above, has to be performed by an officer exercising powers conferred by the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Nor can any order passed by a Magistrate under section 145 of the Criminal Procedure Code affect any action taken in exercise of any power conferred by Act XXVIII of 1958. An order under section 145, Criminal Procedure Code, can therefore not contravene the provisions of section 25 of Act XXVIII of 1958.

6. Since Section 25 does not operate as a complete ouster of jurisdiction but only to the extent mentioned in the section itself and since action under section 145, Criminal Procedure Code, would not be covered by its mischief, the mere fact that the property in dispute happens to form part of the Compensation pool does not prevent the learned Magistrate from proceeding under section 145.

7. When the Legislature wants to oust the jurisdiction of a Court in respect of any property completely it provides so in explicit terms in the law. Examples of such provisions are not lacking on the Statute Book of this country. The Pakistan (Administration of Evacuee Property) Act XII of 1957 is one of such Statutes. Section 16 of the Act runs as follows:‑ "Property which has vested in, or of which possession has been taken, by the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court or any other authority, and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority, and the Custodian shall not be divested or dispossessed of such property by operation of any law for the time being in force." This Court held in S. A. Sattar and another v. The Crown and others (P L D 1956 Kar. 138) and in Sh. Muhammad Zajar v. The State and another (P L D 1957 Lah. 799), wherein it was held that section16, quoted above, bars the jurisdiction of the Magistrate to proceed against evacuee property under section 145 of the Criminal Procedure Code and any proceedings before such a Magistrate are void.

8. As has been seen above, the language used by the Legislature in section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 does not exempt property acquired under section 3 of that Act in the manner in Which section 16 of the Act XII of 1957 quoted above does it.

9. The Judgment delivered by my learned brother, A. S. Faruqui, J., in the State v. Abdul Sattar and others (P L D 1965 Kar. 305) has been cited before me as an authority for the proposition that section 25 of Act XXVIII of 1958 bars the jurisdiction of criminal Courts under section 145 in respect of a property which has teen acquired by the Central Government. It has been held in that judgment that there is considerable force in the argument that , section 25 acts as an ouster and this conclusion has been based on the argument that since the Settlement Commissioner is empowered under section 29 of that Act to take action for ejectment of any person in possession of a property which is Nested in the Central Government it must be held that section 25 of the Act would bar the jurisdiction of criminal courts since the action of ejectment is an action which can be taken by the Settlement authorities under this section. A perusal of section 29 would show that ejectment can be ordered by Chief Settlement Commissioner under section 29 only in cases were possession or occupation is not authorised by the provisions of that Act or the occupant has contravened any‑of the terms and conditions under which the property is held by him. or who in spite of a demand having been made has failed to pay public dues or has willfully caused damage to such property. Any such ground cannot be even considered by a Magistrate acting under section

145. The considerations under section 145 of the Criminal Procedure Code are wholly different. A Magistrate can act under that section only if he is satisfied that a dispute likely to cause a breach of t tie peace exists concerning that property. Having been so satisfied he has to proceed to decide whether any and which of the parties was at the date of the 'order passed by him under section 145(2), Criminal Procedure Code, in possession of the property in dispute. If however he comes to the conclusion that any party has within two months next before the date of the order passed by him under section 145(1) been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if it had been in possession on such date. If he comes to the conclusion that one of the parties was or is to be deemed to be in possession of the parties he shall declare such party to be entitled to possession until evicted is due course of law. He may restore to possession the party forcibly and wrongfully dispossessed within the period, referred to above.

10. Now, an officer appointed under the Displaced Persons (Compensation: and Rehabilitation) Act XXVIII of 1958 is riot empowered under that Act to determine whether a dispute likely to cause a breach of the peace exists concerning any property acquired under section 3 of that Act. Nor can he under section 29, pass any order restoring possession of property to a particular person without going into the merits of his right to possess the, property. On the other hand, the Magistrate under section 145, Criminal Procedure Code, has to proceed‑ "without reference to the merits or the claims of any of such parties to a right to possess the subject of a dispute." Nor can an order under section 145, Criminal Procedure Code, be said to be an order in respect of any action taken or to be taken‑by an officer empowered under Act XXVIII of 1958 because a Magistrate acting under section 145 is not concerned with such an order nor can he under the power given to him. pass any order in respect of any action taken or to be taken by the Officer] referred to above.

11. With all the respect that I have always had for the legal erudition of my learned brother I find it difficult to arrive at the conclusion that his Lordship reached in the case, cited above.

12. In the present case, it has been contended that a Provisional Transfer Order has, in fact, been issued and a copy of the same under the signatures of Mr. Ata Mohy‑ud‑Din, Deputy Settlement Commissioner, and bearing No. 728002 and the date 13th November 1961 is also on the record. That being so even the power of the Chief Settlement Commissioner under section 29 of Act XXVIII of 1958 is no longer available to him in view of the decision of a Full Bench of this Court in the Bank of Bahawalpur Ltd. v. The Chief Settlement and Rehabilitation Commissioner, Lahore, and another (P L D 1966 Lah. 515), wherein their Lordships were pleased to observe that‑ "Where a P. T. O. has been issued the Chief Settlement Commissioner or his delegates cannot take action under section 29 of the Act against a person in possession of a big mansion or a hotel." Even if the case is looked at from this angle, the learned Magistrate has the jurisdiction to proceed with the case under section 145 of the Code of Criminal Procedure. 13. 1, therefore, accept the Revision Petition, set aside the impugned order and remand the case to the learned trial Magis trate with the direction that he shall proceed to hear and dispose of the application under the law. K. M. A. Revision accepted.