P L D 1961 (W (PLP)

WAHIDUDDIN AHMAD, J.‑This order will dispose of two writ petitions namely Writ Petition No. 434 of 1960 and Writ Petition No. 435 of 1950 in which common questions of fact and law are raised. These petitions are directed against the order of the learned Custodian, Karachi in Revision No. F. 2 (191)/60 (S. M.) dated 30th July 1960, setting aside two orders dated the 10th of October 1956, passed by the Deputy Custodian of Evacuee Pro perty, Thatta at Karachi, in favour of deceased Jethanand Hiranand and petitioner No.

2. The facts leading to the aforesaid two writ petitions may be shortly stated. By two registered sale deeds dated 21st April 1947, Gangaram Virumal, respondent No. 4, and Muhammad Ilyas, Respondent No. 5 sold about 18 acres, of agricultural land in Deh Wabtro Jagir, Tapo Soomar, Taluka Mirpur Sakro, Disrict Thatta and about 42,6 acres of agricultural land situated in Deh Buware Jagir, Tapo Vuharea, Taluka Mispur Sakro, District Thatta, for a consideration of Rs. 1500and Rs. 20,000 respectively to three Hindu .gentlemen namely deceased Jethanand Hiranand father, of Kishinchand Jethanand Petitioner No. 1, Tikamdas Hiranand, Petitioner No. 2 and Babulal alias Deepchand Hiranand, Petitioner No. 3, since deceased. Respondent No. 4's and respodent No. 5's shares in the said agricultural land was 10 annas 8 pies 'and 5 annas 9 pies respectively.‑ These two sale transactions, in so far as they affected the Hindu evacuee vendors, were confirmed by the Deputy Custodian, Evacuee Property, Thatta, Karachi, by two orders dated 10th October 1956, subject to the condition that the 1/3 share of deceased Bebulal alias Deepchand, Hiranand one of the purchasers, who was admittedly an evacuee will continue so be an evacuee property. But no mutation on the basis of the sale transactions was effected, and both respondents No. 4 and 5 continikd as owners in the revenue record. Muhammad Ilyas, Respondent No. 5, took advantage of this fact, and mEtnag ed to sell his Re. 0‑5-4 pies share in the property in dispute to Abdul Khalik Abdul Razzak, Respondent No.

3. Thereafter respondent No. 3, with a view to purchase the remaining share in the land in dispute, made enquiries from the Mukhtiarkar Mirpur Sakro who by letter dated 24th October 1957, informed him that the remaining ten annas eight pies share in the property in dispute stood in the name of Gangaram Virumal evacuee. This led him to move the then Custodian of Evacuee Property for the sale of the alleged ten annas eight pies evacuee share to him. The then learned Custodian by an order dated 27th January 1958, recommended to the Central government for the sale of the alleged evacuee share in the land in dispute to him at Rs. 75 per acre, which was accepted. Eventually a sale deed of the alleged evacuee share was executed on the 21st of May 1958, in favour of a respondent No. 3 by the Custodian for a con sideration of Rs. 22,239/8 in the property in dispute. But before the execution of the said sale deed on 4th April 1958, the alleged evacuee share was mutated in 'favour of the Hindu purchasers and on the 21st of April 1958, the mutation was also effected in their favour in respect of Muhammad Ryas, Respondent No. 5's share in the property in dispute. Respondent No. 3, however, on the 20th of June 1960, moved the then Custodian of Evacuee Property for the setting aside of the orders of confirma tion in favour of the Hindu purchasers dated 10th October 1956 in exercise of his power of suo motu revision under section 43 of Act XII of 1957 on the ground that these were obtained by fraud and the sale in their favour was a bogus transaction. Notices were issued to petitioners Nos. 1 and 2 to the Rehabilitation Authorities and the learned Custodian by a consolidated order dated 17th September 1960 in exercise of his suo motu revisional powers, set aside the said orders of confirmation and remanded the two cases for further consideration to the Additional Custodian (Judicial), Evacuee property, Hyderabad. The petitioners have challenged the validity of the aforesaid order and have prayed for a writ of ceritorari inter alia on the grounds (1) that the then learned Custodian was not competent to set aside the confirmation orders as no notice was issued to petitioners Nos. 2 and 3 and respondent No. 4; (2) that the then learned Custodian had no jurisdiction in the matter because under section' 3 of Act XII of 1957; no property which was not being treated as evacuee property immediately before the 1st of January 1957, could be treated as evacuee property; and (3) that on merits also the order was bad because it was not passed on proper appreciation of the evidence on the record. Before dealing with the objections on merits, it will be convenient to mention at this stage that Jethanand father of petitioner No. 1 died in June 1957, in Karachi and is survived by three sons, Kishinchand, Lalchand and Kfiushaldas. Lalchand and Khushaldas are evacuees but Kishanchand petitioner No. 1 has set up a will in his favour in respect of the ‑ whole of the property left by deceased Jethanand and on that basis claims the whole of the share of the deceased in the property in dispute. Babulal, petitioner No. 3, who died during the pendency of the proceedings is now repre sented by Shrimati Mamabai, his widow. ' After hearing the learned counsel for the parties, the objec tion that the learned Custodian had no jurisdiction to set aside the Deputy Custodian dated 10‑10‑1956, appears to be fatal to the proceedings which culminated in the order, we would therefore not express any opinion other objections raised and decide the writ petition only second objection. The short question therefore for consideration in this case is the learned Custodian had jurisdiction to exercise his under section 43 (4) of Act XII of 1957 of the said Act which forbids the Custodian from treating any property as evacuee property was not treated as evacuee property immediately before 1957. Mr. Nathulal, the learned counsel for s that on the confirm of the sale transaction in favour of the Hindu purchasers in dispute in view of the provisions of section 2 (3) enactment ceased to be an evacuee property and as of the sale transaction was effected much earlier 1st of January 1957, it was not treated as evacuee immediately before the said date. He therefore that the learned Custodian had no jurisdiction revise the order of the Deputy. Custodian which was in favour of the Hindu purchasers in October 1956 the other hand, Mr. Saeed A. Shaikh, the learned for respondents Nos. 1 and 2; and Mr. Z. H. Lari, for respondent No. 3, have urged before us impugned order is not covered by section 3 of Act XII and therefore the writ petition is liable to be dismissed: contended that the order contemplated in section 3 of is where a person is declared as non‑evacuee property is declared as non‑evacuee property, and since was an evacuee property and the persons property was owned is still evacuee, the mere fact sale transaction was confirmed' in' favour of the Hindu does not mean that the property was not treated as property immediately before 1st January 1957, and the does not suffer from any illegality. He further argued that so far as the confirmation of transactions under sections 19 and 20 of the said enactment is concerned, they are not in the nature of treating or not treating the property as evacuee, bud should be considered as orders whereby the parti is made perfect subject to the power of appeal review conferred under section 43 of the said enact ment. Mr. Lari in support of his contention referred to a decision of the Administration of Evacuee Property Tribunal in Central Government Ministry of Rehabilitation. Referring Authority v. Mst. Muhammad Jan and others (P L D 1960 E.P. (Trib.)11) to which one of us was a party as Chairman of the Evacuee Tribunal. He particularly relied on the following portion of the observations of the Tribunal in respect of the transactions which are confirmed by the Custodian‑ under sections 19. and 20 of the present enactment, corresponding to sections 15 and 16 of Ordinance No. XV of 1949 :‑ "It appears to us that in those cases where the question of the status of a person or property is involved, there is always a contest either an assertion or a denial that the person or the property is evacuee or non‑evacuee. The decision of the Custodian in these matters. is in the nature of declaration and if he decides that a particular person is non‑evacuee or a particular property is non‑evacuee it is a declaration of that fact. Could this be said about the order of confirma tion of sale ? We don't think so, because in, such cases the property in dispute‑is always an evacuee property. Its transfer by an evacuee cannot be effective unless and until it is confirmed by the Custodian, which means that the transfer is in an imperfect condition and can be perfected only on its confirmation by the Custodian. There is not the slightest doubt that by confirmation of a transfer the Custodian does not adjudicate on the question that it is evacuee or non‑evacuee property." But the learned counsel very conveniently ignored the rest of the paragraph which is really the crux of the question and has important bearing on the objection under consideration. We will therefore reproduce the rest of the paragraph in order to appreciate‑the point of view of the Tribunal expressed in the above mentioned decision : "The result of confirmation is‑that from such date the property in terms of section 2 (3) (b) of the said Ordnance ceases to be an evacuee property. We are fortified in our view by a decision of the West Pakistan High Court reported in Kassim Bros. & Co. v. Ramzan Ali P L D 1959 Kar. 370 ; Kayani, C. J. in that case has taken the same view and observed at p. 375: "Now on the wording of subsection (3) it is clear that the property which is being affected must be evacuee property at the time when we wish to apply subsection (3) thereto and since it ceased to be evacuee property on 7th of November 1950, when the Additional Deputy Custodian confirmed the sale in favour of Qasim Brothers & Co., subsection (3) should not apply." We would now examine the argument advanced by the learned counsel for respondent No. 3 in the light of section 3 of Act XII of 1957, which is in the following terms "3.‑(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee pro perty immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date. (2) Nothing in subsection (1) shall‑apply :‑ (a) to any person in respect of whom or to any property in respect of which any action has commenced or any pro ceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property ; or (b) to any property which is occupied supervised or managed by a person whose authority or right so to do after the twenty‑eighth day of February 1947, has not been accepted or approved by the Custodian." There‑is no doubt in our mind that the words "no person or property not treated as evacuee or as evacuee property" are much wider in its import as compared to the following words: "If in any case in which a Custodian has on or after the 1st day of January 1953, declared any evacuee or any evacuee property to be a non‑evacuee or non‑evacuee property as the case may be". In section 43‑A of the said Act with which the Tribunal was con cerned in the above‑mentioned case. It is. needless to point out that so far as the declaration of any person as an evacuee or any property as an evacuee property is concerned, it can only be done under section 22 of Act XII of 1957. That is the only provision which is applicable to such situation. Thus, if any property is treated as evacuee property by the Custodian Authorities, the aggrieved party can move the Custodian to establish that the property in his possession is not an evacuee property or he himself is not an evacuee. There is no other provision in the evacuee law which can be invoked for this purpose. It is quite true that by virtue of section 7 of Act XII of 1957, all evacuee property vest in the Custodian and there is no need to make a declaration or issue a notification as in the case of the Indian Administration of Evacuee Property Act. But all the same the evacuee properties which vest in the Custodian are those properties only which come within the definition of section 2 (3) of the said enactment. Now section 2 (3) (b) of the enactment says that evacuee property means any property in which an evacuee has any right or interest and includes property in an evacuee obtained by transfer on or before the (st day of March 1947, until the transfer is con firmed by the Custodian. There can be no doubt that the moment the Custodian confirms the transaction entered into by an evacuee, the property on the terms of this provision of law ceases to be evacuee property and as observed by their Lord ships of the Supreme Court in M. M. Isphani Ltd., v. Haji Muhammad Sultan (P L D 1961 S C 76), the result of the confirmation of the sate transaction is that the sale is validated from the date on which it took place. The question, therefore, 'immediately arises than in those cues where the property ceases to be an evacuee property by virtue of the provisions of the evacuee law, can it be said that the property was treated as evacuee property im mediately before January 1957 ? In the present case the sale transaction was confirmed on 16th October 1956; and surely it cannot be said that on 31st December 1956, the property in dispute was treated as evacuee property by the learned Custodian or any of the Custodian Authorities. Mr. Lari referred us to the revenue records to show that till October 1957, the property was recorded in the revenue, records in favour of respondent No. 4 as evacuee and therefore it was sufficient to show that even after 1st January 1957, the property was treated as evacuee property. The revenue records have no bearing whatever on the proceedings before the Custodian Authorities. An outside agency may continue to e treat any property as evacuee property or the property ma continue to stand in favour of an evacuee, but that by itself cannot be considered to be the treatment of a property as evacuee within' the provisions of the evacuee law. Mr. Saeed A. Shaikh, the learned counsel for the Custodian, however, contended that tile wordy "immediately before" is the point of terminus and if the property is treated as evacuee property at any time before January 1957, it should be considered to have been treated as evacuee property within the ‑meaning of section 3 of the said enactment and the case under consideration is not covered by it. We asked Mr. Saeed A. Shaikh to explain what‑is the significance of the words "immediately before the 1st of January, 1957" and he repeated that it only fixes a date upto which the property on person must have been treated as evacuee and has no other significance. But this explanation does not fit in with the language of section

3. In Newport Borough Council v. Leicester County Council (I A E L R (1937) 439), the interpretation of the words "immediately before" also arose before the King's Bench Division. The question for consideration in that case was whether a person who resided upto a particular time in a county should be treated to be a resident of that county for purposes of taking advantage of the Poor Act. In that case the boundary of the Borough was in certain respects altered and it was provided in Newport Extension Act, 1934 that if a person was residing immediately before the appointed day within the boundaries of the said Borough, he will be entitled to get advantage of the Poor Law ‑applied in that area. Their Lordships in that connection "But Kinnersly was not resident in the added area immedia tely before the appointed day. He had in fact left that area on February 23, 1935, and the extension did not take place until April, 1, 1935. `Immediately before' cannot cover February, 23." Thus it is clear that the argument of Mr. Saeed A. Shaikh is not well founded and the meaning of "immediately before" in ordinary parlance can only be that a property which was not treated as evacuee property on 31st December 1956, cannot be considered to be a property which was treated as evacuee property immediately before 1st January 1957. At this stage we would like to dispose of another argument of Mr. Lari. Mr. Lari argued that if the case of confirmation of sale is also covered by section 3 of the said enactment, the provisions of section 43 will become nugatory. Thus, if in a case a sale transaction is confirmed by the Custodian on 30th December 1956, and the right of appeal and revision is a remedy available to the aggrieved party, it will become a useless remedy and will not result in the achievement of the object of the statute. This argument also has no force. It will be noticed that the Legislature has saved certain actions and pending proceedings in subsection (2) of section. 3 from the effect of subsection (1). But they are only those cases where either an action has commenced, that is some steps have been taken, or proceedings are pending before the Custodian Authorities immediately before 1st January 1957. But if no steps have been taken for filing the appeal or revision, such cases are not excepted from the effect of subsection (1). This clearly indicates that wherever the Legislature wanted to save certain cases, it has made specific for them. Similarly, in those cases where the Legislature wanted that any decided cases should be re‑opened, they a provision for it in section 3‑A. But here also Legislature has not touched all cases and it only provided in those cases where a person has been declared as non- evacuee or a property has been declared as non‑evacuee property before the 1st of January 1953, the Central Government may refer such cases for reconsideration to the Evacuee Tribunal: This provision of evacuee law is an over‑riding provision and is also one of the exceptions to section

3. It is, therefore, obvious that in its wisdom the Legislature wanted to .give protection to persons and properties within Pakistan from further harassment under the evacuee law. In order to achieve this object at one stage the Legislature even went to the extent of adding in section 43 (6) a proviso in respect of pending proceedings to the following effect,:‑ "Provided that no final order passed on or before the seven teenth day of Navernber 1956, declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed. " This proviso later on was omitted but all the same it gives clue to the intention of the Legislature that as far as possible it wanted to give relief from the hardships of the effect of the provisions of the evacuee few. It is therefore perfectly clear to us that section 3 is an over riding provision of law and if in its application in certain cases the other provisions in the evacuee law are rendered ineffective, the Courts of law cannot question the wisdom of the Legislature. The very fact that revisional and review powers under section 43 are not specifically saved clearly indicates that it is also subject to the provisions of section

3. Admittedly no proceedings in this case were, pending on 31st December 1956. There is also nothing to show on the record that any other action had com menced in the Custodian or Rehabilitation Departments in respect of the property in dispute which had not terminated. It was however urged that the words "in respect of which any action has commenced" refer to all such cases which at any time were dealt with by the Custodian and include an order which is still subject to the revisional or review powers of the Custodian. We have already repelled this contention and it seems to us that it refers only to those cases where the Department has taken some steps to treat any person or property as evacuee but which has not taken any final shape or has not resulted in any effective action. Any other construction would not only render the provisions of section 3 as worthless piece of legislation but would also not attach any meaning to the words "or any pro ceedings are 'pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property." In our opinion the above mentioned words which follow the words "in respect of which an action has commenced" clearly show that they do not refer to those case which have already been disposed of or terminated. It is correct that the person or property in respect of which an action has hand commenced is different from the person or property in respect of which any proceedings are pending but the difference is only this much that the actions commenced are those which had not reached the stage or taken the shape of proceedings. In our opinion, in the circumstances of this case, the learned Custodian had no jurisdiction to interfere with the order of the Deputy Custodian. Having regard to the fact that the present case does nor fall within subsection (2) of section 3, the impugned order is clearly without jurisdiction and has no force in the eye of law. The view that we are taking in this matter is also supported bar a Division Bench decision of this High Court at Lahore in the case of Rais Ghazi Muhammad v. The Custodian, Evacuee Property, West Pakistan (P L D 1960 Lab. 862). In that case also the Custodian in exercise of his power of review set aside a sale transaction which was confirmed in the year .1953. It was urged on behalf of the petitioners that section 3 of the Act prevents any property from being treated as evacuee property, which was not treated as evacuee property immediately before the. 1st day of January 1957. This plea prevailed with the Division Bench and Kayani, C. J. in that connection observed as under : "The sale in the present case having been confirmed by the Custodian on the 2nd of December 1953, the property to which it related was undoubtedly not treated as evacuee property immediately before the first day of January 1957,' i.e., on the 31st of December 1956." This view is in accord with the conclusion reached by us in this case. In our opinion the contention of the learned counsel for the petitioners that the shares of deceased Jethanand and peti tioner No. 2 in the property in dispute were not treated as evacuee property on 31st December 1956, is well‑founded and must be accepted. It is therefore unnecessary for us to consider the other question raised in these writ petitions. In the result we hold that the Custodian's order suffers from an error of law which is patent on the face of the record. The petitions are accepted and .a writ of certiorari will be issued setting aside the order of the Custodian dated 17th September 1960, and restoring the order of the Deputy Custodian, Thatta, dated 10th October 1956. In the circumstances of this case the parties are ordered to bear their own costs. K. B. A. Petitions accepted.