P L D 1960 (W (PLP)

2. The matter rested there for several years until the Additional Custodian, Hyderabad and Khairpur Division made a reference to the Custodian on the 8th May 1956 suggesting that the case be reviewed. This reference was dealt with by the then Custodian Mr. Muhammad Bux A. Memon who, by his order dated 18th October, 1957, refused to interfere with the previous orders of Mr. Akbar Hussain. Then, on the promulgation of Martial Law Regulation No. 49 relating to hidden evacuee property, one Maulana Quddus Behari made an application to the Additional Rehabilitation Commissioner, Hyderabad challeng ing the genuineness of the deed of relinquishment previously produced by Lilaram‑Gopaldas. The Additional Rehabilitation Commissioner thereupon treated the property in question as evacuee property by his order dated 16‑6‑59, and the same matter was also dealt with by the Assistant Custodian (Survey), Hyderabad who passed an order on 22nd June 1959 declaring the property to be hidden evacuee property and belonging to Khanchand- Gopaldas. It was under these circumstances that the property came to be allotted to the petitioner Ghazanfar Hussain in June 1959.

3. Lilaram‑Gopaldas then filed a Writ Petition (No. 168 of 1959) before this Court praying that 'the order of the Assistant Custodian dated 22‑6‑59 may quashed. He also went up in revision to the learned Custodial of Evacuee Property against this order. By his order dated the 29th January 1960 the Custodian accepted the revision petition and set aside the order of the Assistant Custodian, Hyderabad, for the following reasons: (a) That the property in question had been declared to be non‑evacuee property in the year 1950 by Mr. Akbar Hussain the then Custodian of Evacuee Property and therefore in the presence of that order the Assistant Custodian had no jurisdic tion to declare this property to be evacuee property. (b) That the property could not be declared to be evacuee property now even by the Custodian, much less the Assistant Custodian, in view of the Limitation imposed on the Custodian's powers of review by the proviso to subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957. (c) That in view of the express provisions of section 3 of the Pakistan. (Administration of Evacuee Property) Act, 1957, the Assistant Custodian could not treat the property in dispute as evacuee property after the Ist January 1957.

4. The Writ Petition No. 168/59 was dismissed by a Division Bench of this Court on 28‑3‑60 on the ground that it had become infructuous in view of the order of the Custodian dated 29‑1‑

60. As regards the possession of the property it was left to the Rehabilitation Authorities to deal with that question.

5. The petitioner before us has prayed for the issue of writ of certiorari and prohibition in the following terms: (b) To quash the order of the present Custodian dated 29‑1‑60, and/or (b) To quash the order of Mr. Muhammad Bux A. Memon dated 18‑10‑57, and/or (c) To quash the orders of Mr. Akbar Hussain dated 13‑4‑50 and 23‑5‑50, and (d) To restrain the respondents from interfering with the possession of the petitioner of the lands granted to him in permanent settlement of his claim.

6. We consider that the fate of this petition really depends on the validity or otherwise of two orders of the Custodian, namely, the latest dated 29‑1‑60 and the earlier one dated 13‑4‑

50. The order of Mr. Akbar Hussain dated 23‑5‑50 is only a formal one, the reasons for which are to be found in the order dated 13‑4‑

50. We do not think it necessary to examine the order of Mr. Muhammad Bux A. Memon dated 18‑10‑57, as nothing turns on it.

7. As regards the order dated 29‑1‑60, passed by the present Custodian, Mr. Masood Ahmad, we have already stated that the learned Custodian accepted the revision petition for three reasons stated in para. 3 above. Mr. Raza, the learned counsel appearing for the petitioner, has taken great pains to show that the view taken by the learned Custodian regarding his powers of review is not correct. The learned counsel has also dealt at some length with the elect of section 3 of the Administration of Evacuee Property Act, 1951, in order to show that the property in question could be declared as evacuee property even after the 1st of January 1957. We are, however, of the view that it is not necessary for us to examine these two grounds, as the order of the learned Custodian can clearly be sustained on the first ground, namely, that during the subsistence of Mr. Akbar Hussain's order dated 13‑4‑50 the subordinate Custodian had no power or jurisdiction to declare the property as evacuee. For that reason alone the order of the Assistant Custodian dated 22‑6‑59 could have been set aside and the learned Custodian rightly did so.

8. Mr. Raza then raised a further contention that the order of Mr. Akbar Hussain dated 13‑4‑50 is a nullity, and that being so it does not exist in the eye of law, and could not therefore bind any person or authority: The grounds for describing the order as a nullity are: (a) that the Custodian was not seized of the entire matter pertaining to Lilaram's application under section 18 of the Administration of Evacuee Property Act, but was only dealing with a revision application concerning the limited question of the grant or refusal of a stay order in favour of Lilaram, and therefore the learned Custodian acted without jurisdiction when he proceeded to decide the whole case regarding Lilaram's title and interest in the property, and (b) that in para. 3 of the review application (at annexure E on page 33) submitted by Lilaram the latter claimed only half of the share in the property but the Custodian gave him the whole, and thus exceeded his jurisdiction in going beyond the relief claimed by the applicant.

9. We find that the correct factual position regarding the various orders passed by Mr. Akbar Hussain is this. The revision application of Lilaram‑Gopaldas in the matter of the stay order was disposed of by the learned Custodian by his order dated 13‑1‑

50. None of the parties has cared to place a copy of this order on the record, for the very simple reason that it was not directly relevant. The first order of Mr. Akbar Hussain dated 11‑3‑50 dealing with the merits of Lilaram's application under section 18 is a separate and self‑contained order and there is no reference in it to the matter of the temporary injunction, as that matter had already been disposed on 13‑1‑

50. Admittedly the application under section 18 was originally pending before the Assistant Custodian of Evacuee Property, and therefore the question is whether the Custodian has acted in excess of his jurisdiction by disposing of the same himself. We find that under subsection (4) of section 36 of Ordinance XV of 1949 the Custodian has power to "either of his own motion or on applica tion made to him within the prescribed period in this behalf, to 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 my order passed in the said proceeding, and may pass such order in relation thereto as he thinks fit". In the present case the proceedings under section 18 of the Ordinance had come to the notice of the Custodian by means of the revision application filed before him by Lilaram‑Gopaldas, and therefore the Custodian was within his rights, if he did so choose, to call for the record of the proceedings and pass such order in relation thereto as he thought fit. Mr. Raza, the learned counsel for the petitioner before us, has strenuously contended that this power is limited to the examination of the legality or propriety of an order passed by a subordinate in the said proceedings, and if there is no such order passed, then the Custodian does not have any jurisdiction to act under section 36 (4). Mr. Raza contends that as in this case the Assistant Custodian had not passed any order on the merits of Lilaram's application there was therefore no order the legality or propriety of which had to be examined by the Custodian. We are of the view that the language of the subsection is not capable of being so limited. The provision enables the Custodian to call for the record of any proceeding which has either been disposed of or is still pending before a/ subordinate officer. It is clear that in a pending proceeding there cannot be an order touching the merits of the matter, and at they most there can only be orders of an interlocutory nature. But once the record of the proceedings has been called for by the Custodian, he has power to pass such order in relation to the proceedings as he thinks fit. In the case before us the proceedings on the merits of the application under section 18 were admittedly pending before the Assistant Custodian and he must have passed some orders of an interlocutory nature, and therefore the Custodian was within his rights in calling for the record for the purpose mentioned in subsection (4), and having done so the Custodian had jurisdiction to pass any order he thought fit. On this view of the matter we consider that Mr. Akbar Hussain did not exceed the jurisdiction vested in him by law, when he passed his order dated 11‑3‑50.

10. The rules framed under the Ordinance at the relevant time are not available to us, and even the representatives of the Custodian Department have not been able to produce a copy for our perusal. However we have seen the rules which were promulgated on 25th August 1950, and it is common ground between the parties that the rule relating to the allocation of work etc. is virtually the same as was in operation in March 1950. Sub- rule (3) of rule 5 confers on the Custodian the power to transfer, of his own motion or on an application made in this behalf, any case pending before any subordinate Custodian to any other subordinate or to himself, for investigation, inquiry or disposal. It would appear that even the rules permitted the Custodian, to himself dispose of the application under section 18, although originally it may have been pending before the Assistant Custodian. C There is therefore no question of any excess of jurisdiction on the part of the Custodian when he proceeded to pass his order dated 11‑3‑50.

11. As regards the second ground urged by Mr. Raza we are of the view that it has no force. The review application filed by Lilaram‑Gopaldas on 22nd March 1950 prayed for the review of the entire order previously passed by the Custodian on 11‑3‑50, and in para. 3 of the application a prayer was made that in any case half the share in the property belonged to the applicant. This alternative prayer cannot be used to hold that in the review application Lilaram‑Gopaldas claimed only half of the property and not the whole of it. The prayer clearly was for the whole and only in the alternative the half share was claimed.

12. We consider therefore that Mr. Akbar Hussain was within his jurisdiction in passing the order dated 11‑3‑50 as well as the subsequent order dated 13‑4‑50, and therefore we cannot accept tile contention put forward on behalf of the petitioner that these order should be treated as a nullity. It is clear therefore that these orders were binding on all subordinate Custodians, and during their subsistence any order passed to the contrary by a subordinate Custodian was liable to be set aside.

13. It was next argued by Mr. Raza that even if the orders of Mr. Akbar Hussain dated 11‑3‑50 and 13‑4‑50 not be regarded as a nullity, the subsequent order passed in review namely, the one dated 13‑4‑50, suffers from an error patent on the face of the record and should therefore be quashed in the exercise of writ jurisdiction. The error pointed out by the learned counsel is that the learned Custodian has adopted an erroneous view of law regarding the true import and meaning of section 53 (A) of the Transfer of Property Act. It has already been remarked that initially the learned Custodian had refused to accept the relinquishment deed dated 20th December 1946 in favour of Lilaram‑Gopaldas and for that reason by his order dated 11‑3‑50 he rejected Lilaram's application under section 18 of Ordinance XV of 1949, but subsequently, on review, he observed that he had overlooked the provisions of section 53 (A) of the Transfer of Property Act and as he was satisfied about the genuineness of the transaction, he gave effect to the terms of the relinquishment deed and declared the property to be that of Lilaram‑Gopaldas. Mr. Raza has contended before us that the ingredients of section 53 (A) of the Transfer of Property Act are not present in this case, inasmuch as there was no contract and there was no consideration passed between the parties. Several authorities have been cited to bring out the true applications of section 53 (A) of the Transfer of Property Act. We consider, however, that for the purposes of the present petition, it is not at all necessary for us to decide as to what is the correct interpretation and application of section 53 (A) of the Transfer of Property Act. The learned Custodian was not acting as a Civil Court in the strict sense, although his procedure was regulated, as far as practicable by the Code of Civil Procedure. Under subsection (3) of section 18 of Ordinance XV of 1949 the Custodian has to hold a summary inquiry in the prescribed manner, and after taking such evidence as may be produced, he has to pass an order rejecting the application or allowing it wholly or in part on such terms and conditions as he thinks fit to impose. As the rules in force on the relevant date are not available we cannot say as to what was the prescribed manner to which reference is made in the subsection, but it is clear that all that the Custodian was required to do under this subsection was to hold a summary inquiry. We have no hesitation in saying that the object of the summary inquiry is the satisfaction of the Custodian as to the genuineness of the claim put forward by an application under section 18 of the Ordinance. Once the Custodian is satisfied, he has power of allowing the application wholly or in part on such terms and conditions as he thinks fit. The decision of the Custodian is not to be hampered or fettered by considerations which would apply in the determination of a title or interest in property in a proper Civil Suit or proceedings before a Civil Court. The Custodian may seek guidance, if he so desires, from established, principles, but beyond that he cannot go. We consider therefore that when passing the order dated 13‑4‑50 the Custodian was not strictly applying the provisions of section 53 (A) of the Transfer of Property Act, and must be taken as merely alluding to the principles embodied in that section, for arriving at his conclusion that Lilararu‑Gopaldas had succeeded in establishing his claim to the property in question. That being F the case, we cannot come to the conclusion that there is an, error patent on the face of the record in the order dated 13‑4‑50.

14. We go a step further. Even if we assume that the order suffers from a patent error of law, two questions have to be answered before we can persuade ourselves to interfere with this order in certiorari proceedings. Firstly, whether the error is such as would justify our interference, and, secondly, whether there has not been an inordinate delay in invoking the writ jurisdiction of this Court. We think that in this case we should refuse to interfere because of the delay of several years that has occurred in challenging the order of Mr. Akbar Hussain dated 13‑4‑

50. From the history of litigation already narrated in this judgment, it would be clear that the order dated 13‑4‑50 was accepted by all concerned until the 8th of May 1956 when the Additional Custodian, Hyderabad and Khairpur Divisions made a reference to the Custodian requesting for a review of this order. Thus for nearly six years this order held the field. It is not enough for the present petitioner to say that he could not have C challenged this order earlier as the lands were allotted to him only in 1959. The petitioner must inherit the disabilities and obligations attaching to the Rehabilitation Department in this behalf. Without, therefore, going into the first question as to whether the assumed error would justify interference or not, we would refuse to interfere on the ground of inordinate delays that has taken place in challenging this order. The result is that the order dated 13‑4‑50 passed by Mr. Akbar Hussain stands.

15. It will be seen therefore that in our view the order of Mr. Akbar Hussain dated 13‑4‑50 was within jurisdiction and was in subsistence at the time the Assistant Custodian passed a contrary order on 22‑6‑

59. The present Custodian, therefore, acted correctly in accepting Lilaram's revision application against the order of the Assistant Custodian. No case is therefore made out for our interference with either of these two orders. Mr. Raza has referred us to section 24 of the Pakistan (Administration of Evacuee Property) Act, XII of 1957 to the effect: " No order made by the Custodian under the provisions of subsection (3) of section 22, or of clause (a) of subsection (2) of section 23 in respect of property which is subject to an allotment under the Pakistan Rehabilitation Act, 1956, shall affect any allotment order to which the property is so subject", and has requested that in any case we should issue a direction in favour of the petitioner in pursuance of the provisions just cited. We consider that the 'circumstances in the present case are not such as would justify us in issuing any direction or order of the kind prayed for by Mr. Raza and it should be left to the relevant authorities to determine the manner in which the operative order of the Custodian's order dated 29‑1‑60 has to be implemented.

16. For all these reasons we would dismiss the petition with costs. A.H. Petition dismissed.