P L D 1969 Lahore 701 (PLP)

MUHAMMAD FAZLE GHANI KHAN, J.

‑The dispute in this writ petition relates to property No. 3494, Ward No. 8, Muslim, Multan. The history of the case giving rise to the present litigation is as follows:‑

2. The property in dispute was put to auction by the 'Settlement authorities on the 30th of September 1960. The petitioner being the highest bidder it was knocked down in her favour for a sum of Rs. 30,

000. The auction was confirmed by the Settlement authorities and P. T. O. was issued on the 19th .of January 1961. On the 7th of April 1961 Mst. Hafeezan filed an application under section 22 of the Administration of Evacuee Property Act XII of 1957, in the Court of Mr. Wali Muhammad Nagar, Deputy Custodian, Lahore, for a declara tion that the property in dispute was not an evacuee property. On the 5th of May 1961 respondents Nos. 3 to 19 were also added as petitioners before the Deputy Custodian and the auction purchaser Mst. Naziran was impleaded as respondent No.

4. While the proceedings were still pending in the Court .of Deputy Custodian, respondent No. 1, the petitioner approached this Court under clause 11(4) of the Laws (Continuance in Force) Order, 1958, and prayed that the proceedings started by Mst. Hafeezan in the Court of Deputy Custodian be quashed by .a writ of certiorari and/or a writ of prohibition be issued 'forbidding the Deputy Custodian from proceeding with the said application.

3. Before deciding the present writ petition it will be useful to give some facts pertaining to the respondent's petition under section 22 of the Act of 1957 before the Deputy Custodian. The property in dispute originally belonged to one Allah Bakhsh son of Haji Elahee Bakhsh and was purchased from him by the following 5 ladies by registered sale deed on the 6th of December 934:‑ (1) Mst. Ghulam Fatima wife of Ghulam Hussain one half share. (2) Mst. Bakht Bibi wife of Allah Bakhsh son of Ghulam Hussain one eight share. (3) Mst. Karam Khatoon wife of Khuda Bakhsh son of Ghulam Hussain one eight share. (4) Mst. Mehr Khatoon w/o Peer Bakhsh 1/8th share, and (5) Ghulam Zohra w/o Ghulam Hussain 1/8th share. A mutation of their ownership was duly recorded by the revenue authorities and they remained its owner till 28th April 1942 ‑when it was sold by Mst. Ghulam Fatima, Mst. Bakht Bibi, Mst. Mehr Khatoon, and Mst. Ghulam Zohra, the four ladies 'who were alive at the time of sale and heirs of Mst. Karam Bibi, namely, Mst. Hafeezan etc., in favour of Kishan Dass. After Independence Kishan Dass became evacuee and his property was treated as evacuee property by the Rehabilitation authorities and ultimately sold in favour of the petitioner on the 30th of September 3960 in public auction.

4. The sale in favour of Kishan Dass made by the five ladies and their legal Representatives has been challenged before the Custodian on the ground that the registered sale deed in: favour of Kishan Dass was without any consideration; and without their knowledge and the vendors neither thumb‑marked it nor appeared before the Sub‑Registrar at the time of registration, and it was never acted upon, etc.

5. Taking into consideration the admitted facts about the sale of this property what has emerged out is this that the original owners, the four ladies and the legal representatives of the fifth one, ceased to have any right or interest in this property after the 28th of April 1942, It may, however, be mentioned that so far as the revenue records are concerned, no mutation in the name of Kishan Dass was entered on the basis of registered sale deed and the previous Muslim owners and their legal representa tives continued to be shown as the owners of the property in dis pute. The main basis of the claim of the respondents before the Deputy Custodian, therefore, is that since they are shown as owners in the revenue records the registered sale deed of 1942 in favour of Kishan Dass evacuee is null and void against their interest.

6. From the contents of the written statement filed in this Court it appears that Allah Bakhsh respondent No. 6 and Karam Hussain respondent. No. 8 are only in possession of the disputed property and against them an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) was filed by the petitioner for their ejectment. Mr. Muhammad Ali Zaidi, learned counsel for the: petitioner has filed a rejoinder on behalf of the petitioner and has attached with this rejoinder the application of Allah Bakhsl, respondent No. 6 which he had made before the Rehabilitation authorities immediately after Independence for the allotment of this property in his favour. He has also filed copies of the orders of the Custodian of Evacuee Property as well as the copies of the Taxation and Municipal registers of Multan showing that this property was never in possession of the respondents who have approached the Deputy Custodian for the grant of declaration. From the copy of the application made by Allah Bakhsh,. Annexure P/1, which is on the prescribed printed form, it appears that Allah Bakhsh respondent has shown himself as a local in: possession of this house as an old tenant and prayed that this house should be allotted to him. From the contents of paragraph 11 of this document it appears that before this, application which was made on the 16th of May 1949, Allah Bakhsh had previously obtained certain order of allotment in. his favour and by this application he wanted a reallotment of the same property. Mr. Muhammad Ali Zaidi informed us that it was not possible for him to get the copies of other documents from the file of the Rehabilitation authorities and the Custodian as the records are missing and he has been able to; obtain only these documents which he has placed on the record. From these documents it is obvious that the property in dispute was treated by the Rehabilitation authorities as property belong ing to Kishan Dass evacuee and it was made subject to allotment after 1947. Allah Bakhsh was successful in getting this property allotted in his name, firstly, immediately after Independence and thereafter in 1949 when he sought its reallotment by his applica tion dated the 16th of May 1949. From the contents of this application one more fact comes to light and that is that none of the respondents except Allah Bakhsh were in possession of this property. He has shown that he was in possession with his wife and four sons and did not mention the name of any other respondent as a person in possession.

7. The other document relied upon by Mr. Muhammad Ali Zaidi, learned counsel for the petitioner, is Annexure P/II which is the copy of the order of Custodian of I vacuee Property dated 22nd of October 1960 passed in Appeal No. 591 of 1960. In this judgment the learned Custodian was approached by Allah Bakhsh against the order of Deputy Custodian of Evacuee Property, Multan, dated 25th of June 1960. The appeal was rejected by the Custodian on the ground that Allah Bakhsh had failed to produce any title deed of the property before the Deputy Custodian nor any mutation, if any sanctioned in his favour, was produced. The learned Custodian was of the view that in the absence of documentary evidence the Deputy Custodian had no option but to dismiss Allah Bakhsh's applica tion. He further observed that even before him in appeal Allah Bakhsh was not in possession of any document of title or copy of mutation order. Allah Bakhsh made another attempt before the Custodian and filed Review Case No. 101 of 1960. The learned Custodian dismissed this petition with the observations that there was no ground to modify his previous order of 22nd of October 1960.

8. The other documents to which a reference may be made in this context are the Municipal and Taxation Records of this property. In the Municipal record of 1947 Kishan Dass Dalal of Sabzi Mandi has been shown as owner at Sr. No. 3664 of the Register and Allah Bakhsh and Muhammad Ramzan have been shown in tenant's column and the rental value against Allah Bakhsh is shown as Rs. 16 p.m. Even in the property tax register of Multan City the name of evacuee owner Kishan Dass has been mentioned in the column for owners and in occupier's column Kamm Hussain and Abdul Shakoor have been shown as persons in occupation.

9. The entries in the Taxation Record as well as the municipal record of 1947 leaves no manner of doubt in our mind that this property was entered in the name of Kishan Dass evacuee in all official records maintained for urban properties and the respondents ceased to be shown as its owners after 1942.

10. The contention of Mr. Kamal Mustafa Bukhari, learned counsel for the respondents, was that the property was in the name of five ladies who were all Pardahnashin and as such strong proof a as necessary to show that the registered document was executed by them in favour of the evacuee owner without any undue influence. It is too late in the day to advance this argument after the lapse of nearly 26 years. The document was not only executed by the five ladies as Mst. Karam Khatoon had died in January 1942 but the sale deed was also executed by her legal representatives, petitioner No. 1 the daughter, her husband Khuda Bakhsh and mother Mst. Sahbai wife of Nabi Bakhsh. Therefore, Khuda Bakhsh who is father of the petitioner Mst. Hafizan one of the male member of the family was one of the executants, of the document and it cannot be said that the transaction was concluded by the five ladies alone to whom no independent advice was available.

11. Taking into consideration all the facts and the docu ments placed on our record we are of the opinion that there is sufficient evidence to prove that the property in dispute was treated right from the beginning as evacuee property by the Rehabilitation authorities. The treatment reached maturity when it was disposed of by public auction in 1960 by the Settlement authorities and purchased by the petitioner for a sum of Rs. 30,000.00. The evidence on the record establishes the overt act of the Rehabilitation authorities so far as the question of "treatment" is concerned. It cannot be argued with any force that this was a Muslim property and not an evacuee property immediately after Independence.

12. Mr. Kamal Mustafa Bukhari, has however, raised another contention, he urged that the words "treated as evacuee property" under section 3‑A of the Act of 1957 means that the character of property must have been determined by Rehabilitation authorities or Custodian by some judicial process after notice to owner and non‑evacuee property even if mistakenly allotted cannot go to compensation pool. In support of his contention he has relied on a latest decision of this Court reported as Azam All v. Custodian of Evacuee Property (P L D 1968 Lah. 148). In that case a Hindu widow who had embraced Islam after Independence filed an application under section 22 before the Custodian of Evacuee Property which was accepted by him on the ground that the donor was owner of 27 kanals of land and a co‑owner to the extent of 12 kanals and 2 marlas. He had gifted it in favour of Mst. Khem Bai alias Ghulam Fatima who had taken possession of the land in pursuance of the gift and according to the revenue documents she was recorded as owner of land and Muhammad Bakhsh and Imam Bakhsh were shown as tenants paying Batai to her right from the year 1947. This gift was not challenged before Independence by anyone and in these circumstances the Custodian granted her a declaration that it was a non‑evacuee property. The Custodian also pointed out that the Mutation in favour of Mst. Khem Bai alias Ghulam Fatima was contested in 1941 and she had been making representations to the Rehabilitation authorities assert ing her claim to the ownership of the property in dispute and had succeeded in getting an order in her favour from the Deputy Rehabilitation Commissioner which was reversed by the Additional Rehabilitation Commissioner is the year 1961 and ultimately she approached the Deputy Custodian for the redress of her grievance. The Custodian, therefore, held that she could not be deprived of her right of ownership of the land in dispute merely on technical grounds. It was against this order of the Custodian that section 3‑.A which was added to the Act of 1957 by Administration of Evacuee Property Amendment Act, 1958, was pressed into service by which no person or property treated as evacuee or as evacuee property immediately before the commencement of that Act before the 23rd of September 1958 could be declared to be non‑evacuee or as the case may be as non‑evacuee property on or after such commencement. It will be useful to reproduce the interpretation given to section 3‑A by the learned Judges in Azam Ali's case, at page

153. It reads :‑ "The result .. a question of great interest arises as to what is meant by the "treatment of property" as evacuee property. Will the property be considered to be treated as evacuee property which, in fact, belongs to a Muslim owner but has somehow been allotted to refugees on a mistaken plea or belief that it was evacuee property? And will the Muslim owner lose all his rights to his own property merely because just a day before the 23rd of September 1958, a Rehabilitation Authority had chosen to allot it to a refugee without notice to the Muslim owner or notwithstanding his protest? We consi der that by the enactment of section 3‑A in the Pakistan (Administration of Evacuee Property) Act, the Legislature could not have intended a wholesale and arbitrary destruction of vested rights by the cursory process of a mere declaration or an ex parte action by a Rehabilitation Authority that they were evacuee rights or by going further and allotting the same to other persons without a proper adjudication of those rights. It is against the principles of natural justice to deprive persons of valuable rights and properties without affording them an opportunity to defend those rights even though it be done to accommodate the teeming multitude of refugees. The law would defeat its own object, if for the sake of settlement of refugees, real owners were to be deprived of their properties and rendered without a refuge. It is in this context that the word "treated" has to be interpreted as used in section 3‑A for its correct connotation. In our view, "treated" in the sense in which it is used in section 3‑A means that the character of the property must have been determined by the Rehabilitation authorities or the Custodian by a judicial process after notice to the owner and the determination in this regard must be a final determination so that the affected party has a right to represent against the characterization of a property as an evacuee pro perty and to prove that it is not so, and the matter be closed on him only if after a proper inquiry and adjudication the issue is finally disposed of one way or the other. In a contested case of this nature, the final adjudication in these matters would obviously be done only by the Custodian. To interpret the word "treated" in any other sense and to regard any declara tion or any casual act of the Rehabilitation authorities, in regard to the property as the "treatment of that property" to be evacuee property, would entail the risk of divesting real owners of their properties, amounting to expropriation, without any legal basis or moral justification, and the Legislature cannot in fairness be burdened with that intention."

13. These observations were made with reference to the case of a Muslim widow in whose favour a gift had been made as early as 1941 and have no hearing on the facts of the present case. In any case these observations cannot be extended where the property was of the persons who had migrated to India as a result of Independence on account of disturbances or fear of disturbances. All such properties generally vest in the Custodian by fiction of Law. The second question which will require determination will be whether there was "treatment" of a property as "evacuee property" so as to put it outside the limits of the jurisdiction of the Custodian Courts within the meaning of section 3(1) and 3‑A of Act XII of 1957. For "treatment" of the property as "evacuee property" it is necessary to show only an overt act on the part of the Rehabilitation Department or the Custodian and a judicial determination as a condition precedent by the Custodian or by the Rehabilitation Department is not necessary. There is a consensus of authority both of this Court as well as by the Supreme Court that for ‑the properties belonging to the persons who have integrated to India after Independence an overt act before the 23rd of September 1958 has to be established.

14. In Syed Iqtidar Shah Dara v. Custodian, Evacuee Property (P L D 1964 Lah. 274) while considering the terms "vesting" and "treat ment" one of us "Wahidduddin Ahmad, C. J. with whom Inamullah, J. as he then was‑agreed) observed :‑ "It seems to me that there is a vast difference between the two notions, namely, the vesting of the property and the treatment of a property. In the first case, by fiction of law the property generally vests in the Custodian to enable him to take possession or to take other steps for the protection of specified properties. In the other, some overt act in respect of a particular property is implied." The word "treatment" was also considered by their Lordships of the Supreme Court in Abdul Khaliq v. Kishanchand (P L D 1964 S C 74). While examining the effect of section 3(1) of the Act of 1957 which provides that no person or property will be treated as evacuee or evacuee property which was not so treated immediately before the Ist day of January 1957 it was observed:‑ "The word "treated" must be construed in the context of the law relating to evacuee property. The "treating" must therefore be obviously by some officer or authority who could control or make use of this property under the Act, viz. the Custodian or a Rehabilitation Authority. In section 22 of the Act, it is provided that any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority, as evacuee property, may prefer a claim to the Custodian on the ground that the property is not evacuee property or that his interest in the property has not been affected by the provisions of the Act. This furnishes a clue to the interpretation of the word "treated" occurring in section 3 also. The mere circumstance that the word "treated" in section 3, is not followed by the expression "by the Custodian or a Rehabilitation Authority" does not appear to us to have much significance. From the very nature of the case the "treating" must be by such competent authority. For instance, if a man in the street or even an official like an excise officer, could lay a claim that he was treating a particular property as evacuee property, without the Custodian or the Rehabilitation Department coming into the picture, it could not be postulated that this was "treating" the property as evacuee property in the context of Act XII of 1957. So construed, the "treating" must relate to either a declaration by the Custodian about the nature of the property or its user for the purposes of the Act by him, or by the Rehabilitation Authorities, so as to indicate a consciousness of the actual or assumed nature of the property."

15. The above observations of the Supreme Court apply to the present case with equal force. As already discussed above the property in dispute was treated as evacuee property immedia tely after Independence in 1947 and Allah Bakhsh one of the respondents had to approach the Rehabilitation Department for its allotment. This indicates a co pious act on the part of the Rehabilitation Authorities about the use and nature of this property otherwise Allah Bakhsh would not have been compelled to seek its allotment at the first opportunity and, thereafter its re‑allotment in 1949 nor there would have been any occasion for him to unsuccessfully approaching the Custodian for a declaration about its nature as non‑evacuee property. The jurisdiction of the Custodian is, therefore, excluded by virtue of section 3‑A mentioned above, and there is no jurisdiction left with him to c grant a declaration as is sought for by respondent Mst. Hafiza Begum and others.

16. As we have held that the property was treated as an evacuee property in the year 1947 there is another aspect of the matter which needs to be examined at this stage.. The Central Government in exercise of its powers conferred on it by section 3(2) of the Act asked the Government of West Pakistan to acquire for the purposes of the said Act all evacuee properties situated within the Province of West Pakistan and consequently the Provincial Government issued Notification No. U‑8‑79/3113, dated the 21st of August 1959 and acquired all the evacuee properties except the agricultural land etc., which vested wholly and absolutely in the Central Government and forms part of compensation pool. By virtue of section 3(3) of the Act the right, title and interest of any evacuee in the evacuee property has become extinguished. One of the results of this notification obviously is that the jurisdiction which was in the Custodian to grant declarations that a property was not an evacuee property or that the evacuee had no interest in it had come to an end with effect from the date of the notification. Consequently the jurisdiction of the Custodian to grant these declarations is no longer available.

17. In Ghulam Muhammad v. Custodian of Evacuee Pro perty (P L D 1966 Lah. 953) which was a case of evacuee land the effect of the notification of the Central Government was considered under the Displaced Persons (Land Settlement) Act and it was held that after the declaration of the notification the Cus todian ceased to have jurisdiction whatsoever in respect of property. This authority was followed by another Division Bench of Karachi Bench Qalim v. Custodian of Evacuee Property (Writ Petition No. 349 of 1963) and it was held that the notification of the Central Government under section 4 of the Displaced Persons (Land Settlement) Act denuded the extent of the powers of the Custodian to deal with the property. The acquisition contemplated by section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is comparable in content and substance to the acquisition under section 16 of the Land Settlement Act and the same interpretation can be placed on section 3 of the Act of 1958 as has been applied to section 16 of the Land Settlement Act of 1958 in the above mentioned two authorities.

18. As a result of the above discussion we are of the opinion that since this property was treated as an evacuee property after Independence and now forms part of the compen sation pool by virtue of the notification under section 3 of the Act of 1958 the proceedings commenced by the Custodian under section 22 of the Act of 1957 about this property are without any lawful authority and he has no jurisdiction to proceed wit the matter. The Custodian is, therefore, directed to refrain fro taking any further proceedings in the matter as he is not permitted by law to do so. The writ petition is, therefore, allowed with costs. A. E. Petition allowed.