P L D 1962 (W (PLP)

3. Before proceeding further, I would mention a few facts which are bound to have a direct bearing on the decision. By his will registered on the 14th of September 1898, Raja Sir Dyal Singh Majeethia created some charitable trusts of which mention at this stage need only be made of the Dyal Singh College Trust and the Tribune Trust. He appointed some trustees and laid down a scheme for the working of the trusts. Both these trusts were being worked according to the will of their founder till the middle of the year 1947, but when, in the month of August 1947, British India was divided into two Dominions; namely, Pakistan and India, the non‑Muslim trustees of the Dyal Singh College Trust left this part of the Sub continent of British India and went to reside in India. At the time of the partition of British India, the Secretary of the Trust was Mr. Anand Kumar who, before he left, appointed Sh. Abdul Haq, who was then a Member of the Judicial Branch of the Punjab Civil Service, and Mr. Abid Ali, a professor in the Dyal Singh College, Lahore, to carry on the work of the trust. Subsequently, the trustees of the Dyal Singh College trust, in a meeting held fn India, conferred on Sh. Abdul Haq and Mr. Abid Ali certain powers with regard to the trust. Sheikh Abdul Haq and Mr. Abid Ali continued managing the trust for some years but in the year 1959, the then Advocate‑General of the Province instituted a suit under section 92 of the Code of Civil Procedure for removal of the two trustees and for appointment of other trustees and framing of a scheme. Attempts made by interested persons to have the suit shelved failed and on its being transferred to this Court for being heard by it in the exercise of its extraordinary original civil jurisdiction the suit was dealt with by Justice B. Z. Kaikaus who was then a Judge of this Court. The suit resulted in the appointment of nine trustees and the removal of Sh. Abdul Haq and Mr. Abid Ali and the manage ment passing into the hands of the trustees appointed under orders of this Court. The trustees appointed by the Court were managing the property when questions arose with regard to three plots of land situated on the Nisbet Road, Lahore, whether they were the property of the Dyal Singh College Trust or not. This question was raised before the Deputy Custodian of Evacuee Property Lahore, by the Dyal Singh College Trust Society by lodging application under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, against Sheikh Khurshid Ali, Khan Muhammad Khan and Mr. Durrani, by which application the Trust prayed that It be declared that the property in possession of these three persons belonged to the Trust and was not evacuee property. The applications were resisted by Sheikh Khurshid Ali and Khan Muhammad Khan but not by Mr. Durrani. The Deputy Custodian of Evacuee Property came to the conclusion that the Society had failed to prove that the disputed plots belonged to the Trust and he further held that the applications were barred by limitation. Against these orders the Dyal Singh College Trust Society lodged appeals to the Custodian of Evacuee Property, West Pakistan, and it was in these appeals that the Custodian of Evacuee Property passed the orders which the Society has prayed in Writ Petition No. 61 of 1961 to be made inoperative and ineffectual. At the time when the impugned order was passed, the relevant law on the point that arises was contained in section 7 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), which section is in the following terms: ‑ "(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. (2) Where any evacuee property which has vested in the Custodian or of which possession has been taken by the Custodian is property in trust for a public purpose of a religious or charitable nature, it shall be lawful for the Central Government, notwithstanding anything contained in the instrument of trust or any law for the time being In force, to appoint, by general or special order, new trustees in place of the evacuee trustees and the property shall remain vested in the Custodian or in his possession only until such time as the new trustees are so appointed ; and pending the appointment of such new trustees the trust property and the income thereof shall be applied by the Custodian for fulfilling, as far as possible, the purpose of the trust. (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 first day of January 1957, 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." However, at the time when Justice Kaikaus disposed of the suit under section 92 of the Code of Civil Procedure on the 21st of February 1957, the law applicable to evacuee property was the Pakistan (Administration of Evacuee Property) Ordinance, 1956, the sixth section of which dealt with the matter. This sixth section read as follows: ‑ "(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. (2) Where any evacuee property is properly held in trust for religious or charitable purposes, the property shall remain vested in the Custodian only till such time as fresh trustees are appointed in the manner provided by law, and pending the appointment of fresh trustees the trust property and the income thereof shall be applied by the Custodian for fulfilling, as far as possible, the purposes of the trust. (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 Govern ment 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 Ordinance of 1956 had replaced the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) which by its sixth section, made provisions regarding evacuee trust property.

4. Mr. Mehbub Elahi, learned counsel for the Dyal Singh College Trust Society, the petitioner in both the writ petitions, contended that the property of the Dyal Singh College Trust, which was evacuee property, lost its character when Mr. Justice B. Z. Kaikaus, in exercise of the powers conferred on Civil Courts under section 92 of the Code of Civil Procedure, appointed new trustees in place of the old ones, and, therefore, the finding of the Custodian that the property of the Dyal Singh College Trust was evacuee property was unsustainable in law. Learned counsel for the petitioner added that as the order of Justice Kaikaus was passed at a time when Ordinance of 1956 was in force, the fact that the Act of 1957, in its seventh section, contained a provision whereby the Central Government was authorised to appoint trustees for evacuee trust properties could not make the order of Justice Kaikaus ineffectual and the property of the Dyal Singh College Trust, which had lost its evacuee character by reason of the appointment of trustees under orders of the Court, continued to retain its non‑evacuee character and, consequently, could not be dealt with by the Central Government or by the Evacuee Properties Trust Board set up by Government. It appears to me that the approach of learned counsel for the petitioner to the main question that arises in Writ Petition No. 61 of 1961 is misconceived. The law is clear on the point that the decision of the question whether or not any property is evacuee property is within the exclusive jurisdiction of the Custodian of Evacuee Property, and no Curt can hold any property to be evacuee or non‑evacuee especially if the Custodian has given a finding one way or the other. That being the law, it appears to me that the decision of the Custodian that the property in dispute was evacuee property cannot be questioned by this Court when acting in the exercise of its jurisdiction to issue a writ, which is the only jurisdiction which this Court has with regard to the orders of the Custodian regarding any property being evacuee in character or otherwise. Learned counsel for the petitioner overlooked the fact that there is a marked difference between powers of this Court when exercising appellate or revisional jurisdiction and when dealing with a case in the exercise of its writ jurisdiction. A Court having appellate or revisional jurisdiction can set aside an order on almost any reasonable ground unless the exercise of appellate or revisional powers is limited by law only to certain specified grounds, but powers that can be exercised are different and limited in scope when the Court exercises powers to issue a writ. The writ that the petitioner prays for in Writ Petition No. 61 of 1961 is clearly one of certiorari which does not ordinarily issue unless the Tribunal of special jurisdiction whose order is questioned has exercised a jurisdiction which it did not possess or has refused to exercise a jurisdiction which it possessed. While dealing, in the exercise of its powers of revision, with orders of Courts subordinate to it, the High Court can pass any order that it thinks fit if the Court below has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law or has acted in the exercise of its jurisdiction illegally or with material irregularity, but I am clearly of the view that when dealing with the question whether a writ of certiorari should issue or not, the Court has to confine itself to the consideration of the question whether or not the Tribunal whose order is under consideration has exceeded its jurisdiction or has declined to exercise a jurisdiction which it admittedly possessed. The question whether or not the Tribunal of special jurisdiction had acted illegally or with material irregularity in the exercise of its jurisdiction can hardly be a proper subject for consideration in a writ petition, though I might add that if by giving a wrong decision on a question of law the Tribunal of special jurisdiction has assumed or declined jurisdiction the case will be a proper one for exercise of writ jurisdiction. A wrong decision on a question of law unless it results in exercise of jurisdiction which does not exist or in a failure to exercise a jurisdiction which does exist cannot be treated to be purely a question of jurisdiction and there is much truth in the saying that a Tribunal which has the jurisdiction to decide a question has jurisdiction to decide it rightly as well as wrongly. A wrong decision on a question of law, apart from the one which results in the exercise of jurisdiction which the Tribunal does not possess, or refused to exercise jurisdiction which the Tribunal possesses, cannot be deemed to be a question of jurisdiction when the question to be considered is whether the power to issue a writ of certiorari should be exercised.

5. In view of what I have said above, it would appear to be unnecessary to examine the correctness or otherwise of the arguments of learned counsel for the petitioner to the effect that as soon as trustees for the Dyal Singh College were appointed by Justice B. Z. Kaikaus on the 21st of February 1957, its property ceased to be evacuee property for which contention support was sought from the fact that section 6 of the Ordinance of 19.)6 was to the effect that on appointment of trustees the property shall cease to vest in the Custodian. If the law were that only that property could be evacuee property which vested in the Custodian, the contention of Mr. Mahbub Elahi would have had weight because subsection (2) of section 6 of the Evacuee Property Ordinance, 1956, said that evacuee trust properties will remain vested in the Custodian only till such time as trustees were appointed under the law, but as the law vested all evacuee properties in the Custodian and did not say that only that property shall be deemed to be evacuee property which was declared to have vested in the Custodian, the provision of law relied upon by Sheikh Mahbub Elahi is not of that assistance to the petitioner as the learned counsel insisted that it was.

6. What I have said above will have made it clear that in my opinion Writ Petition No, 61 of 1961 has no merit. It was admitted by learned counsel for the petitioner, and in my opinion rightly, that if this Court could grant no relief with regard to the property which was the subject‑matter of Writ Petition No. 61 of 1961, it could grant none with regard to property which was the subject‑matter of Writ Petition No. 65 of 1961, and as I have held that the decision of the Custodian with regard to the property of the Dyal Singh College Trust being evacuee property cannot be questioned by means of a writ petition, Writ Petition No. 65 of 1961 must like Writ Petition No. 61 of 1961 fail in its entirety. I would, therefore, dismiss both the writ petitions but would pass no order as to costs in any of them. ABDUR RAHIM KHARAL, J.‑I agree. K. B. A. Petition dismissed.