P L D 1955 Lahore 612 (PLP)

KAIKAUS, J.--‑Qamar‑uz‑Zaman Khan, the appellant before me, was allotted the Gatemell's Hotel, which is an evacuee property, in the year 1948. On the 17th of December, 1952, the Provincial Government requisitioned major portion of the premises of the Gatemell's Hotel under rule 21 of the rules framed under the Civil Defence Ordinance (VI of 1951) which was later superseded by the Civil Defence Act of 1952. The present suit was filed by the appellant for a declaration that the order of requisition passed by the Provincial Government was void and for an injunction restraining thel defendants, who were the Provincial Government, the, Federation of Pakistan, and the Custodian of Evacue Property Punjab, from interfering with his possession. The, trial Court decreed the suit against defendants 1 and

2. On appeal the learned. Senior Civil judge dismissed this sut. Before the Senior Civil Judge two appeals had been filed one by the Punjab Province and the other by the Federation of Pakistan. The plaintiff has filed two appeals, 448 and 449 of 1954, both of which will be disposed of by this judgment. The order in question was attacked on a number of grounds but the only one which has survived argument is that the order contravenes the provisions of section 12 (3) (b) of the Pakistan Administration of Evacuee Property Ordi nance. Section 12 of the Pakistan Administration of Evacuee Property Ordinance runs as follows: "(1) 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. (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. (3) Nothing contained in the foregoing subsections shall‑- (a) prevent a Registering Officer from ordering regis tration of a deed of sale or exchange relating to evacuee immovable property, or a Civil Court from ordering specific performance of a contract of sale or exchange of any such property where the sale or exchange or the contract of the same has been duly confirmed or approved by the Custodian and the required certificate has been granted by him ; or (b) affect any power conferred on the Central Govern ment by or under any law for the time being in force to requisition or acquire property, and it is hereby declared that if by or under such law or any other law for the time being in force alike power is conferred upon or delegated to a Provincial Government the Provincial Government may exercise the same in relation to evacuee property with and only with the previous approval of the Central Government and subject to such directions as the Central Government may at any time see fit to give". It will be observed that under clause (b) of subsection (3) of this section an order of requisition by a Provincial Govern ment can be passed only with the previous approval of the Central Government. It is alleged by the plaintiff that there was no approval in this case. The defendants were called upon to produce the approval if there was any and they produced Exh. D. 2 which I reproduce below :‑ "Copy of note dated 25th ' October, 1952 recorded in File No. 7/52‑C.D.II, by the Ministry of Refugees and Rehabilitation. Ministry of Refugees and Rehabilitation It is correct that the Provincial Government cannot requisition the property in question except with the previous approval of the Central Government in this Ministry. The Rehabilitation Commissioner (General), Punjab is satisfied that the refugee who is occupying the evacuee property at present can be made to confine himself to a part of it not required by Civil Defence Authorities. In this way the proposed requisition of the remaining portion of the building will not cause dislocation of rehabi litation plans. In the circumstances we may agree to the proposed requisition. The Ministry of Interior may be permitted to address the Provincial Government stating that previous approval of the Central Government in this Ministry has been obtained to the proposal. (Sd.) S. ALI RAZA. 25‑10‑1952. (Sd.) M. W. ABBASI, 25‑10‑1952. Ministry of Interior". A copy of the requisition order (Exh. D. 1) has also been placed on the file. It states that previous approval of the Central Government has been obtained. The learned Senior Civil judge found that previous approval exited because he was of .the opinion that there being a presumption of regularity of official acts, Exhs. D. 1 and D. 2 should raise a presumption that the Central Govern ment had granted approval. I do not agree. Exh. D. 2 is only an office note by the Secretaries and does not show that E there was any order by the Central Government. The words "in the circumstances we may agree to the proposed requisi tion" do not at all involve that the Governor‑General, the Cabinet or the Minister‑in‑charge had in fact granted approval to the requisition. The words "Central Government" are defined in section 3 (8 a b ) of the General Clauses Act thus :‑ "(8 a b) "Central Government" shall‑ (a) in relation to anything done before the commence ment of Part III of the Government of India Act, 1935, mean the Governor‑General in Council or the authority competent at the relevant date to exercise the functions corresponding to those subsequently exercised by the Governor‑General ; (b) in relation to anything done after the commencement of Part III of the said Act but before the establishment of the Federation of Pakistan, mean, as respects matters with respect to which the Governor‑General was by or under the provisions of the said Act then in force required to act in his discretion, the Governor‑General and as respects other matters, the Governor‑.General in Council ; and 1T (c) in relation to anything done or to re done after the establishment of the Federation of Pakistan mean the ; and shall include‑ (i) in relation to functions entrusted under subsection (1) of section 124 of the said Act to the Government of a Province, the ' Provincial Government acting within the ' scope of the authority given to it under that subsection ; and (ii) in relation to the administration of a Chief Commis sioner's Province, the Chief Commissioner acting within the scope of the authority given to him under subsection (3) of section 94 of the said Act". Under section 17 of the Government of India Act all executive action of the Federal Government has to be taken in the name of the Governor‑General. In order that the approval of the Central Government may be proved there should be produced an order saying that the Governor‑General has granted approval. Learned Counsel for the respondents urges that I should presume existence of such an order. I am unable to do so. The defendants were called upon to produce the order passed by the Central Government and the only order that is produced is Exh. D.

2. If any other order passed by, or in the name of the Governor‑General were in existence, I would expect it to be placed on the record. The presump tion as to regularity of official acts does not justify an inference as to the existence of an order when the Government, which is a party to the proceedings, has been called upon to produce the order and fails to do so. The presumption under such circumstances is that there is no order in existence apart from the one that has been produced. I have even asked learned counsel for the respondents whether they are prepared to make a statement at the Bar that the Governor‑General, the Cabinet or the Minister‑in charge did pass such an order and they are unable to make such a statement. Learned counsel for the respondents also referred to rules framed under section 17 of the Government of India Act which lay down that a Secretary, a Joint Secretary etc., can authenticate an order passed by the Central Government. That only means that if a Secretary says the Central Government has passed an order, that statement should be presumed to be correct. The person so authorised can sign the order.. It does not, however, mean that he himself can pass an order. The power to sign or authenticate an order should not be 'confused with the power to make one. It is only the Central Government as defined in the General Clauses Act that can pass the order in question and it is clear that no such order has been passed by the Central Government. Learned counsel for the respondents did urge at one stage of the arguments that by some rule of business the Secretaries were themselves authorised to pass orders in certain matters. No such rule has been produced before me and I do not think such a rule exists. The Governor General may act on the advice of the Ministers but the functions of the Central Government cannot be delegated to the Secretaries. I would therefore, hold that the previous sanction of the Central Government is wanting in this case and the order is hit by section 12 (3) of the Pakistan Administration of Evacuee Property Ordinance. Learned counsel for the respondents urged next that section 2 (2) (h) of the Civil Defence Act read with the rules framed under the Act overrides the provisions of section 12 of the Pakistan Administration of Evacuee Property Ordinance. Section 2 (1) provides that the Central Govern ment may frame rules for securing the civil defence of the Federation and section 2 (2) (h) mentions the requisition of property as one of the matters with respect to which rules can be framed. Rule 21 of the rules framed under the Act provides that the Provincial Government may requisition 'any property'. There are certain exceptions relating, for instance to religious trusts, but there is no exception relating to evacuee property. Learned counsel argues that the Civil Defence Act being a later enactment overrides section 12 of the Administration of Evacuee Property Ordinance. I am unable to agree for two reasons. The first is that under section 4 of the Pakistan Administration of Evacuee Property Ordinance, the provisions of the Ordinance are to override all other laws. The second is that as far as possible the provisions of different Acts should be construed consistently. If there was in fact a clash between the Pakistan Administra tion of Evacuee Property Ordinance and the Civil Defence Act, I would, on account of section 4 of the Ordinance, apply the provisions of the Ordinance to the exclusion of those of the Civil Defence Act. I think, however, that in the present case the absence of reference in the Civil Defence Act to evacuee property is due to the fact that the evacuee legislation is an emergency measure and it was understood that the Civil Defence Act would be subject to its provisions. It is next urged that under section 4 of the Civil Defence Act no order passed under that Act can be called in question by any Court. It is argued that the requisition order has been passed under the Civil Defence Act and its invalidity in this case is due not to any provisions of that Act but to section 12 of the Pakistan Administration of Evacuee Property Ordinance. I am of the opinion that section 4 was not intended to protect void orders It protects orders "made in the exercise of any power conferred by or under this Act". I have already held that the Civil Defence Act is subject to the provisions of the Pakistan Administration of Evacuee Property Ordinance. It does not, therefore, confer any power to pass an order in contravention of section 12 of the Ordinance and the order in question not being in exercise of a power conferred by the Act is not protected by section

4. It is urged further on behalf of the respondents that the relief of injunction prayed for in this case cannot be granted because of section 12 (1) of the Pakistan Administra tion of Evacuee Property Ordinance. Section 12 (1) provides that no injunction with respect to evacuee property can be granted by any Court or authority. The words used are very wide and it is obvious that the injunction claimed in this case would be hit by section 12 (1). In fact it is conceded by the learned counsel for the appellant that the injunction cannot be granted and he is praying only for a declaration with respect to the order of requisition being void. Even to a declaration learned counsel for the respondents plead section 12 (1) as a bar. They urge that a declaration also will be an order in relation to evacuee property and, therefore, would be within the prohibition of section 12 (1). I do not think such an interpretation can be put on section 12 (1). It is a section which excludes the jurisdiction of the Civil Court and has to be construed strictly, but in any case it is to be interpreted so that it does not lead to an absurdity. If the words "or other order of whatever kind in respect of such property" which occur in subsection (1) of section 12 were construed in their widest sense, altogether absurd results may ensue. For instance, if there is land entered in the name of an evacuee and he dies, the Collector or Assistant Collector would be unable to pass an order effecting a change in the Jamabandi substituting the names of the heirs of the evacuee. If I accept the argument put forward by learned counsel for the respondents this order would be within section

12. Similarly no officer would be able to pass an order fixing the land revenue of evacuee land the income‑tax payable on income of evacuee property, the tax of evacuee property under the Urban Immovable Property Tax Act or the duty leviable under the Estate Duty Act. Numerous other examples can be given. But so far as the present case is concerned, it would be easy to demonstrate, that a declaration as to an order relating to evacuee property being void is not an order 'in respect of evacuee property. Suppose the plaintiff were to file a suit for damages on account of the illegal requisition. Let us assume that the suit is on the merits a good one, mala‑fides of the officer passing the order being established. In that suit the Court will have to give a decision as to whether the order was void before it can award compensation. It would be difficult to argue that a suit for damages is not maintainable at all. We cannot impute an intention to the Legislature that all rights of damage with respect to evacuee property have been taken away. If a person were allotted evacuee land and some other person interfered with his possession, could not the allottee file a suit for damages against him ? The Custodian could grant no relief. The only authority that can grant relief in such a case is the Civil Court. The suit, therefore, has to be entertained and a decision has to be given with respect to the void nature of the order passed in respect of evacuee property. If such a decision be not prohibited by section 12, a decree merely declaring that the order is void would also not be within its mischief. I may also refer to the declarations that are every day being granted in suits filed by reversioners impeaching alienations in favour of evacuees on the ground that the alienor was incapable of affecting reversionary interests on account of restrictions imposed by custom. It has never been contended that such declarations are: orders within section

12. It should be clear from this discussion that it is not possible to interpret the words of section 12 (1) in their widest import and that some kind of limitation has to be placed upon them. The key to that limitation is to be found in the marginal note to the section. It runs "Exemption from legal process". The object of section 12 was to exempt evacuee property from legal process so that there may be no interference with the administrative control of, the Custodian. In An order would be hit by section 12 only if it directs or enables the taking of some action with respect to evacuee property. Every order which has reference to 'evacuee property is not necessarily within section

12. A simple declaration that an order passed in respect of evacuee property is void does not in any way affect the control of the Custodian and is not excluded from the jurisdiction of the Civil Courts. Learned counsel for the respondents have in this con nection relied upon Malik Muhammad Sharif v. The Crown (P L D 1954 Lah. 640). It was held in that case that a Criminal Court could not pass an order under section 145, Criminal P. C., in respect of evacuee property. According to the view I take, an order under section 145 Criminal P. C., is prohibited by section 12 for such an order either maintains possession of a person and forbids interference with his possession or delivers possession. It is for the Custodian to decide who will and who will not remain in possession of evacuee property. There are observations in the judgment which support the view I take. The learned judge. says : -- "It is thus perfectly clear that the principle underlying this legislation was that the Custodian should be the sole judge of how evacuee property was to be administered and that no other authority including Courts, was to sit in judgment on the Custodian's orders or to assume functions which the Ordinance had devolved on the Custodian. An order of the kind the legality of which is in question before us, namely, an order for the delivery of possession of evacuee property to a party who does not derive his right to possession from the Custodian, could only be made by the Custodian and not by any other Court". I hold that the grant of declaration is competent. I accept these appeals and grant the plaintiff the declaration prayed for. The suit in so far as it claimed an injunction is dismissed. The parties shall bear their own costs throughout. Leave for Letters Patent Appeal is granted. A. H. Appeals partly allowed.