P L D 1966 (W (PLP)

MUHAMMAD DAUD KHAN, J.‑This Civil Revision No. 219 of 1963, came before me for full hearing. After hearing the counsel for the parties, it came to light that the question of jurisdiction, which was material in this case was decided by the lower Court on the basis of unpublished judgment recorded by the Division Bench of this Court in Civil Appeal No. 123/53 of 1954, under section 34 of the Administration of Evacuee Property Ordinance, 1949. In my view section 34 of the Administration of Evacuee Property Ordinance, 1949 and section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, were not correctly interpreted in that judgment and therefore, I considered it advisable to refer the matter to the Full Bench for re‑consideration. The reference was made to the Full Bench on the following points: "Whether in spite of section 41 of the Pakistan (Adminis tration of Evacuee Property) Act, 1957, and thereafter the promulgation of the Displaced Persons (Compensation and Rehabilitation, Act, 1958, wherein sections 7 and 25 bar the determination of matters mentioned therein by any other authority except those mentioned in the said Acts, the Civil Court had the jurisdiction to decide the quantum of the amount spent, and also of the creation of charges on the evacuee property, and the judgment in Civil Appeal No. 123/53 of 1954, given by a Division Bench of this Court, under section 34 of the Administration of Evacuee Property Ordinance, 1949, which is equivalent to section 41 of the Administration of Evacuee Property Act, 1957, and on which the lower Court based its decision, is a correct law, or not." Before I enter into further discussion in this case, it will be pertinent to record verbatim the reasons recorded by the Division Bench in its judgment in Civil Appeal No. 123/53 of 1954, whereby it was held that the claim for the amount of repairs of the property was entertainable by a Civil Court. The matter was not discussed at length in the judgment and the only observation found in the judgment of the D. B., relevant to this point, is in the following words:‑

"The learned counsel argued, as to what amount should be paid to the contractor has to be deter mined by the Custodian under section 20(d), which says that the Custodian may take such measures as he considers necessary or expedient for the purposes of administering, preserving, or managing any evacuee property, and for that purpose, take all such measures as may be necessary to keep any evacuee property in good repair. The reading of these two sections clearly do not apply to the contracts entered into by the Custodian. It is not for him to determine whether he should follow the conditions in the contract entered into by him or not. Section 34 has, therefore, no application."

2. The facts of the present case are as under:‑. M. Abdus Salam respondent was allottee of House No. 1991/C. A. 521, situate in Muhallah Duni Chand, Peshawar City. He was also an allottee of a garage No. 35/5/6165, Kohat Road, Peshawar City. In reply to his application, dated 7‑3‑1956, relating to the house and his application dated 10‑9‑57, relating to the garage, the Additional Custodian, Evacuee Property, Peshawar, authorised him to spend Rs. 6,437 on the repairs and re‑construction of the house with the undertaking that the cost of the applicant will be adjusted after final scrutiny. The Deputy Custodian also permitted him to spend Rs. 962 on the repairs and re‑construction of the garage. It was directed in the sanction for the repairs of the garage that after the completion of the repairs he would file his bill to his office and on verification of the same and to his satisfaction and order for adjustment would be passed.

3. It is alleged by Abdus Salam plaintiff-respondent that after his having spent Rs. 10,739 on the repairs of the house, he had submitted the bill to the Local Custodian on 1‑2‑57 and the bill for Rs. 937 for the construction of the garage on 1‑11‑58, but so far the amount had not been paid. After the property had vested in the Central Government under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the house was transferred to Dr. Abdullah Jan, defendant No.

2. The plaintiff instituted the suit on 4‑9‑62 against the State of Pakistan through Secretary Rehabilitation and Works, Rawalpindi, and Dr. Abdullah Jan for the recovery of the amount spent plus interest at the rate of 6 per cent. per annum, less Rs. 571 rent due from him. This, according to the plaintiff, amounted to Rs. 14,835.

4. The defendants resisted the claim on a preliminary ground that the Civil Court had no jurisdiction. The learned Civil Judge First Class found that the Civil Court had jurisdiction by his order dated 21‑1‑

63. This decision was based on the judgment of the D. B. of this Court recorded in the civil appeal mentioned above. It is against this order that Dr. Abdullah Jan instituted this revision petition, wherein he had arrayed M. Abdus Salam plaintiff and the State of Pakistan through the Secretary, Rehabilitation and Works, Rawalpindi, as respondents.

5. Mr. Karimullah Khan Durrani, counsel for the petitioner, took us through the various provisions of the Administration of Evacuee Property Law, and Rehabilitation and Settlement Laws. Section 20 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, (hereinafter to be referred to as Ordinance XV of 1949), provides powers and duties of the Custodian generally. In subsection (2)(d) and (k) it has been provided: "(d) take all such measures as may be necessary to keep any evacuee property in good repair; (k) incur, in the prescribed manner, any expenditure including the payment of taxes, duties, cesses and rates to the Government or to any local authority or of any sums due to any employee of the evacuee or of any debt due by the evacuee to any property;" Ordinance X V of 1949 was replaced by the Pakistan (Adminis tration of Evacuee Property) Act, 1957, (hereinafter to be referred to as the Act XII of 1957). The powers of the Custodian are provided in section 25 of the Act. In section 25, subsection 2(d), (p) and (q), the powers of the Custodian to spend over the preservation of evacuee property have been provided in the following words:‑-- "2(d) take all such measures as may be necessary to keep any evacuee property in good repair; (p) create a charge on evacuee property; (q) incure or allow any , expenditure to be incurred in the prescribed manner including the payment of taxes, duties, cesses and rates to the Government or to any local authority or of any debt due by the evacuee or any claim against him after satisfying himself as to the genuineness of such due claims;". Section 57 of Act XII of 1957 empowers the Central Government by notification in the official Gazette to make rules as appear to it to be necessary for carrying out the purposes of this Act. Section 46 of Ordinance XV of 1949 is equivalent to section 57 of Act XII of 1957. Certain rules were promulgated on 25‑8‑50 under section 46 of Ordinance XV of 1949, vide Notification No. F. 21(12)‑50‑P (at page 118 of the Evacuee and Rehabilitation Laws). Sub‑rule (2) and clause (b) of sub‑rule (1) of rule 21 empower the Custodian to do certain things with respect to the preservation and repairs of the Evacuee Property. No rules were, however, framed under Act XII of 1957. After the promulgation of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter to be called ' as the Act of 1958, the Central Government had acquired the evacuee property in dispute under section 3, subsection (1) of tile Act, and had vested it in the Provincial Government by virtue of section 3(2) of the same Act in pursuance of the notification of the Provincial Government dated 21‑8‑1959 (given at page 44 of the old Manual). Under section 3(3) of the same Act, all the evacuee property was provided to be vested wholly and absolutely in the Central Government free from all encumbrances. Under section 8, sub section (2), the Chief Settlement Commissioner was authorised to take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving or managing any property in the pools, and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto, and may, in suitable cases, create a charge on any such property. It may be noted here that by the enforcement of Act of 1958, all the powers and duties of the Custodian were conferred on the Chief Settlement Commissioner, and those powers which the Custodian had under Ordinance XV of 1949 and subsequently under Act XII of 1957 were conferred on the Chief Settlement Commissioner after the promulgation of the Act of 1958. Defendant No. 2 in the present case was not issued a P. T. D. up to this time. The house which was transferred to defendant No. 2 under the P. T. O. is still in the compensation pool till such time the P. T. D. had been issued in his favour. The garage had not since been transferred to anybody and the plaintiff respondent is still. in its possession as its allottee. Under section 8, subsection (2) of the Act of 1958, the Chief Settlement Commissioner was permitted to create a charge on the property kept in the pool. Section 35 of the Act of 1958 empowers the Central Government, by notification in the official Gazette, to make rules to carry out the purposes of this Act. Under sub section (2) of section 8 of the Act of 1958 the Chief Settlement Commissioner has delegated his powers for the creation of charges against acquired evacuee property to all Additional Settlement Commissioners. This was done by a press note dated 10th October 1961, given at page 312 of the new Manual of Settlement Law and procedure. Under section 35 of the Act of 1958 rules were framed for the satisfaction of the charges known as Satisfaction of Charges (Evacuee Property) Rules, 1961 for the purposes of section

8. These rules are found at page 307 of the new Manual. These rules were published by the Government of Pakistan, Ministry of Rehabilitation and Works in Notification Karachi, 27‑3‑

61. Elaborate procedure has been laid down for the invitation of applications for the satisfaction of charges in these rules. By a press note issued by the Chief Settlement Commissioner, Lahore, dated 7th July 1961, given at page 303 of the new Manual), the Chief Settlement Commissioner had invited applications for the satisfaction of charges and also issued instructions and prescribed forms for this purpose. From the above provisions of the relevant statutes and the rules framed therein it becomes abundantly clear that under section 8, subsection (2) of the Act of 1958, the Chief Settlement Com missioner was invested with the powers of creation of charges and their satisfaction in the manner prescribed in the rules. It is, therefore, to be seen whether in spite of these provisions of the relevant statutes and the rules made there in, mentioned above, the Civil Court or any other authority can entertain an action with respect to any claim relating to money spent on repairs or re-construction of the evacuee property. Section 12 of Ordinance XV of 1949 and section 16 of Act XII of 1957 are equivalent inter se and provide for the exemption from legal process. Section 12 of Ordinance XV of 1949 provides:‑

"Exemption from legal process.‑(I) 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, and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court. (2) Upon the commencement of this Ordinance, any such legal process as aforesaid subsisting immediately before such commencement shall cease to have effect, and all evacuee property in custody of any Court, or receiver, guardian or other officer or person appointed by it, shall, upon delivery of the same being called for by the Custodian, be delivered to the Custodian." In section 16 of the Act XII of 1957, subsections (1) and (2) were fully reproduced, and a new section (3) had been added, but its re‑production is not considered necessary because that subsection is not relevant for the purposes of the present case.

6. Section 34 of Ordinance XV of 1949 is equivalent to section 41 of Act XII of 1957. Both these sections provide a bar of jurisdiction of the Civil Court, etc. Section 34 of Ordinance XV of 1949 provides:

"Jurisdiction of Courts barred.‑(1) Save as expressly provided in this Ordinance no Civil or Revenue Court shall have jurisdiction (a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceeding as to whether any property is or is not evacuee property, or whether an evacuee has or has nor any right or interest in any such property, or (b) to question the legality of anything done under this Ordinance by or at the instance of the Custodian, or (c) in respect of any matter which the Custodian is empowered by or under this Ordinance to determine. (2)

. (3)

(4)

(5)

Section 41 of the Act of 1957 provides subsection (1) in the same words, and subsection (c) is relevant for this purpose, which provides:‑ "(c) in respect of any matter which the Custodian is empowered by or under this Act to determine." 7. Mr. Karimullah Durrani pointed out that since under both the Ordinance XV of 1949 and Act XII of 1957, the Custodian was empowered to do all acts necessary for the management, preservation, etc., of the evacuee property and rules framed under Ordinance XV of 1949 provided as to how the Custodian should meet the expenditure on the preservation of the property, therefore, he was exclusively competent to determine all questions relating to the payment of the cost incurred by a third person, in the repairs of the property. Mr. Karimullah Khan Durrani had not been able to cite any direct authority. In The Punjab Province v. L. Sita Ram, etc. (P L D 1956 S C 157), the Federal Court had considered section 34(1)(a) of Ordinance XV of 1949, and found that even the Judicial Committee of the Privy Council had no jurisdiction to decide about the evacuee property which a Custodian, in law, was competent to decide. 8. Before the settlement operation' had started, the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was promulgated on 26‑3‑1958. The evacuee properties after having been acquired by the Central Government under section 3(1) of the Act and by the Provincial Government under section 3(2) of the Act, by Gazette notification, referred to above, were kept in compensation pool. Section 7 of the Act of 1958 provides that no property which forms part of any of the pools constituted under this Chapter shall be liable to be proceeded against for any claim in any manner whatsoever in execution of decree or order or by any other process of Court or any other authority. As mentioned above, the house and the garage are still in the compensation pool as the former had not been permanently transferred to defendant No. 2 and the latter is still had in in possession of the plaintiff‑respondent as an allottee. Section 22 of the Act of 1958 provides for the finality of orders, which reads thus:‑ "Save as otherwise expressly provided in this Act every order made by any officer appointed under this Act shall be final and shall not be questioned in any Court.‑ Section 25 of the same Act bars the jurisdiction of Civil Courts and section 26 provides for the protection of action taken in good faith under this Act. Section 26 should be reproduced here in verbatim, because the Central Government had been protected from any action for the Act done by its officer. It reads:‑

"No suit, prosecution or other legal proceeding shall lie against the Central Government or any person appointed under this Act in respect of anything which in good faith is done or intended to be done in pursuance of this Act or of any rules or orders made thereunder."

9. Mr. Mahfooz Khan, counsel for Abdus Salam, plaintiff respondent, contended that in so many cases it was held that civil suit was competent with respect to matters which were provided in the Evacuee and Settlement Law to be cognizable only by the Custodian or the Chief Settlement Commissioner, respectively. In support of his contention he relied an: (1) Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner and another P L D 1962 S C 284. (2) Syed Ali Moazzam v. N. A.'Effandi and others P L D 1965 Lah. 193. (3) Hafiz Muhammad Siddique v. The State P L D 1964 Lah. 418. (4) Malik Amir Muhammad Khan, Nawab of Kala Bagh v. The Custodian, West Pakistan and another P L D 1963 Lah. 189. (5) Qamar‑uz‑Zaman Khan v. Punjab Province and others P L D 1955 Lah. 612. (6) The Refugee Rehabilitation Co‑operative House Building Society Ltd. v. Montgomery Flour and General Mills Ltd. P L D 1953 Lah.

384. I need not go into the details of the facts of each of these cases, but suffice it to say that some of the judgments are not applicable at all to this case, as they related to matters which were not barred to be dealt with, by Civil Courts and in the others the High Court and the Supreme Court and decided in the writ jurisdiction that the orders passed by Custodian were illegal. None of those cases is applicable to the facts of the present case.

10. Mr. Maqbul Elahi Malik, Advocate, for the Pakistan State, reiterated what Mr. Karimullah Khan Durrani had said. He contended that section 8(2) of the Act of 1958, empowers the Chief Settlement Commissioner to arrange for the preservation of the pool property, and section 25 of the Act is a bar for what he had done under section 8 of the Displaced Persons Act. He further contended that under section 35 of the Act of 1958, rules have been framed for the Satisfaction of Charges (Evacuee Property) Rules, 1961, and by notification dated 17‑7‑61 (given at page 303) of the new Manual), the applications were invited for the satisfaction of the charges and he further con tended that by press note dated 10‑10‑61 (at page 312 of the new Manual), there is a provision for the‑ creation of charges against acquired evacuee properties. His contention is that the plaintiff should have applied within time to the relevant Settlement Authorities for the creation of charges of the amount he had spent on the house and the garage and also for the satisfaction of the charges.

11. Mr. Karimullah Khan Durrani, counsel for the petitioner, referred to section 3(4) of the Act of 1958 in support of his contention and argued that the Custodian or the Chief Settlement Commissioner were competent to dispose of matters relating to the charges already created, and under section 8(2) of the same Act, the Chief Settlement Commissioner was empowered to create new charges. Counsel referred to sections 17 and 18, the former having provided for a bar of civil suits and in the latter the jurisdiction of Civil Courts was barred in Pakistan 'Rehabilitation Act (XLII of 1956). His contention is that sections 25 and 26 of the Act of 1958 are identical to sections 17 and 18 of the Rehabilitation Act. Similarly section 53 of Act XII of 1957 and section 43 of Ordinance XV of 1949 are identical to section 17 of the Rehabilitation Act, and section 18 of the Rehabilitation Act is equivalent to section 41 of Act XII of 1957 and section 34 of Ordinance XV of 1949. He argued that section 4, subsection (2), section 17 and section 18 of the Pakistan Rehabilitation Act (XLII of 1956) came under examination of the Supreme Court in Mst. Zainab v. Mst. Raji and others (P L D 1960 S C 229) and it was found that any of the matters covered in the Rehabilitation Act cannot be agitated in the Civil Court or any authority. In this judgment, it has been observed as follows:‑

"The Rehabilitation Re‑settlement Scheme read with the parent legislation, provides a complete Code for allotment of evacuee lands to refugees or other persons and contains elaborate provisions for dealing with claims made by refugees in respect of lands abandoned in India. Section 4(2) of Act XLII of 1956 declares that every order purporting to be made, or signed by the Rehabilitation Authority, in lawful exercise of any power conferred by or under the Act, shall be presumed to have been so made by such an authority and no such order shall be called in question in any Court. Section 11 of the Act comprises self‑contained provisions in respect of appeals from orders of Rehabilitation Officers to higher officers in the Department. Section 12 of the Act contains provisions for revision of certain orders by Government. Section 13 lays down that an order passed by the Rehabilitation Commissioner or Additional, Deputy or Assistant Rehabilitation Commissioner shall be final, subject to the provisions of sections 11 and 12 and shall not be called in question in any judicial proceedings in any Court. Section 17 bars suits, prosecutions and other legal proceedings against the Central Government or any Rehabilitation authority or any person acting under the direction of that Government or authority; for anything which, in good faith, is done, purports or is intended to be done, in pursuance of the Act. Section 18 expressly enacts that the jurisdiction of Civil Courts to question an order passed by a Rehabilitation authority under the Act, is barred and subsection (3) thereof declares that no such Civil Court shall be competent to adjudicate on the rights of or dispossess a person to whom any immovable property has been allotted or leased, by a Rehabilitation authority or by a Custodian or to issue an injunction or other order, in relation to any act done, or intended to be done, by a Rehabilitation authority, under the provisions of the Act. These provisions are of every wide import and by necessary intendment, these provisions bar the jurisdiction of Civil Courts to entertain a declaratory suit to establish title to evacuee lands abandoned in India by a refugee claiming to own such lands. A declaratory decree, even if passed in such a suit, can be ignored by the Rehabilitation authorities and any order passed by such authorities contrary to a declaratory decree of this kind, would be immune from attack in a judicial proceeding. The Rehabilitation authorities possess the necessary powers to hold enquiries into claims made by refugees and to decide all questions of inheritance, in accordance with the instructions issued by the Rehabilitation Commissioner (Lands) under the Rehabilitation Resettlement Scheme, Punjab. Reference in this connection may be made to instructions 46 and 46‑A at pages 408 and 409 of the Rehabilitation Manual. It would amount to encroachment on that special and exclusive jurisdiction, vested in the Rehabilitation authorities, if similar questions were allowed to be agitated in the Civil Courts. The object of the Rehabilitation laws being to settle the refugees on lands and give them certain rights, in as expeditious a manner as possible, such an exclusion of the ordinary Courts' jurisdiction is easily understandable." It was, therefore, held that "the provisions of the Rehabilitation Laws, by necessary intendment, exclude the Civil Courts' jurisdiction to entertain declaratory suits of the kind under consideration". The above judgment has been passed on consideration of the analogous provisions of Ordinance XV of 1949, Act XII of 1957 and the Act of 1958. As mentioned above, the Central Government had framed the rules for the creation of charges and also for their satisfaction, under the Act of 1958. It was also provided in the same Act that the Chief Settlement Commissioner should certify such claims and also to create charges of such claims on the property kept in the pool. Under these circumstances, when there is a special provision for the creation of charges and for their satisfaction in the Settlement Act itself, then the plaintiff-respondent is barred to bring a suit for the enforcements of such claims in the Civil Court or any other authority. I am clear in my mind that the claim of the kind preferred by the plaintiff‑respondent in the Civil Court is barred by the provisions, mentioned above, of the Act of 1958 as well as under the previous Evacuee Laws. My answer, therefore, to the reference is that section 41 of 'the Pakistan (Administration of Evacuee Property) Act, 1957 and thereafter the promulgation of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, wherein sections 7 and 25 bar the determination of matters mentioned therein by any other authority except those mentioned in the said‑Acts, the Civil Court had no jurisdiction to decide' the quantum of the amount spent, and also of the creation of charges on the evacuee property, and the judgment in Civil Appeal No. 123/53 of 1954 passed by a Division Bench of this Court, under section 34 of the Administration of Evacuee Property Ordinance, 1949, which is equivalent to section 41 of the Administration of Evacuee Property Act, 1957, and on which the lower Court based its decision, is not a correct law. For the aforesaid reasons, I find that the Civil Court had no jurisdiction.

11. The revision petition is accepted, the order of the lower Court is set aside and the suit is dismissed with costs. FAIZULLAH KHAN, J.‑I agree. SHAKIRULLAH JAN, J.‑I agree. K. B. A. Petition accepted.