P L D 1954 Lahore 640 (PLP)

MUHAMMAD MUNIR, C. J.‑This case has been referred to a Division Bench because it raises an important question with regard to the true construction of section 12 of the Pakistan (Administration of Evacuee Property) Ordi nance, XV of 1949, the exact issue involved being whether under section 145 of the Cock of Criminal Procedure an order directing a person, who has been put in possession of such property by the Custodian, to deliver possession to another person, can be passed by a Magistrate. The question arose in the following circumstances. By an order dated 24th May 1948, the Custodian, Evacuee Property, gave to Malik Muhammad Sharif on lease for a period of one year the burnt site of a cinema known as the "City Cinema", together with a few pieces of broken furniture, which belonged to an evacuee. The lessee was to effect the necessary repairs at his own expense not exceeding a sum of Rs. 40,000, which was to be set off against the rent of the property which was fixed at Rs. 200 per month. By subsequent arrangements the lessee was permitted to occupy the cinema until he had fully re‑imbursed himself for his expenses from the rent that became due. The lessee was allotted by the Rehabilitation Department some machinery and equipment of another cinema and by repairing the building of the City Cinema and installing in it the allotted machinery and equipment he began running a picture house which was named as Malik Theatre. Malik Muhammad Sharif entered into an agreement with Malik Barkat Ali and his son Abdur Rahman under which Malik Barkat Ali was to finance the undertaking and Abdur Rahman was to run it as Managing Director. This agreement was presented to the Custodian for confirmation but he refused to recognise the arrangements. Differences between the partners soon cropped up and Malik Muhammad Sharif managed to oust Abdur Rahman from the management and possession of the theatre. Malik Barkat Ali moved a Magistrate under section 145 of the Code of Criminal Procedure, alleging that he and his son had been forcibly ousted from the theatre that there was a dispute regarding the possession of the theatre between him and Malik Muhammad Sharif and praying that after inquiry the possession of the theatre be delivered to him and his son. The learned Magistrate started proceedings and after holding the necessary inquiry made an order directing delivery of possession of the theatre to Malik Barkat Ali and his son and restraining Malik Muhammad Sharif from interfering with their possession. Malik Muhammad Sarif applied for the revision of this, order to the High Court and the learned single Judge who heard the petition recommended that it be heard by a Division Bench because of the importance of the question of the Magistrate's jurisdiction to which the petition gave rise. Subsection (1) of section 12, the true scope of which is in question in this case, is as follows :‑ "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, attach ment 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". The property in question is evacuee property, which has vested in the Custodian, and the order under revision is an order in respect of such property. These two conditions being fulfilled, the bar created by subsection (1) clearly appears to be applicable unless it be held as a matter of construction that the word "Court" in the subsection does not include a Criminal Court or that the plain grammatical construction of the subsection would lead to an absurdity defeating the very object of the Ordinance. Relying on the unreported precedent in Muhammad Sharif v. Abdullah Khan (Cr. R 973 of 1950.) Mr. Yaqub Ali Khan has, therefore, attempted to show that a Magistrate acting under section 145 of the Code of Criminal Procedure is not the kind of Court whose juris diction is ousted by the subsection. The point sought to be made by him is that this subsection should be taken to exclude the jurisdiction of only those Courts whose jurisdiction is ousted by section

34. The words used in section 34 "Civil or Revenue Court or any other authority" are wide enough to include a Magistrate, but even if it be assumed that the words "Civil or Revenue Court" have the effect of excluding Criminal Courts from the purview of that section, such assumption would not be a guide in the interpretation of section 12 which does not at all use the words "Civil or Revenue Court" but the general term "Court" which prima facie would include a Criminal Court. In fact the argument founded on the wording of section 34 would go against Mr. Yaqub Ali Khan's contention because a comparison of the two sections makes it absolutely clear that the word "Court" in section 12 must have been intended to include a Criminal Court. If the bar created by section 12 had been intended to be effective only against a Civil or Revenue Court, there is no reason why the Legislature should not have used the same language in that section as was used by it in section 34 and in contrast. should have used the word "Court" which could undoubtedly be construed as embracing Criminal Courts within its ambit. We are, therefore, of the opinion that Criminal Courts acting under section 145 of the Code of Criminal Procedure are within the plain meaning of subsection (1) of section 12 of the Ordinance. The result is further confirmed by comparing the language of section 34 and of subsection (1) of section 12 of the Ordinance with section 11 of the Punjab Protection of Evacuee Property Act, 1948, which the Ordinance superseded. Though the marginal note of section 11 was "Jurisdiction of Civil Courts barred in certain matters"; subsection (3) of that section clearly included Criminal Courts when it provided : "All property of which the Custodian has assumed possession or control under section 4 of this Act, shall be exempt from attachment or sale in execution of a decree of a Civil Court or in pursuance of an order issued by any Court". Since a Magistrate is clearly competent to attach property under sections 145 and 146 of the Code of Criminal Procedure, such attachment was clearly put beyond the pale of Magisterial jurisdiction by the words "attachment * * * * * * * * * in pursuance of an order issued by any Court" used in subsection (3). Courts have to assume that the legislature enacting a new law is aware of the existing law on the subject that it legislates about, and this presump tion is particularly strong where the new law is a superseding enactment. If, therefore, the legislature knowing that the words of section 11 of the Punjab Protection of Evacuee Property Act, 1948, barred certain orders by Criminal Courts in respect of evacuee property not only retained the terminology of that section in section 12 of the Ordinance of 1949, but in a subsequent section of the same Ordinance, i.e. section 34, used an entirely different language with respect to Courts, the reason could only be that section 12 was intended to include Courts which were not included in section

34. Mr. Yaqub Ali Khan's next point is that even if this be the plain construction of subsection (1) of section 12, it must yield in favour of the special construction which would leave unimpaired a Magistrate's power to take action under section 145 of the Code of Criminal Procedure when a dispute likely to cause a breach of the peace arises in respect of the possession of immovable property. Most of the authorities cited by him do not lay down any general principle and are confined to the construction of particular provisions of statutes in particular circumstances. The rule that has to be followed in cases of the present kind has been concisely summed up in ex parte Walton, (1881) 17 Ch. D

746. The primary function of a Court called upon to construe a statute is to ascertain the intention of the Legislature, and in ascertaining such intention words of the statute have to be given their ordinary meaning. To this rule there is, however, an exception which was enunciated by Lord Selborne in the House of Lords case; Caledonian. Railway Company v. North British Railway Company (6 App. Cas. 114.) which was followed in ex parte Walton. Lord Selborne said: "The more literal construction ought not to prevail, if it is opposed to the intention of the Legislature, as apparent by the statute ; and if the words are sufficiently flexible to admit of some other construction by which that intention will be better effectuated". In the same case Lord Blackburn adopted Lord Wensleydale's rule in Grey v. Pearson (6 H L C 61, 106.), where he had said : "I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills, and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further. "The principle eventually laid down in ex parte Walton was that a statute may be construed contrary to its literal meaning when a literal construction would result in an absurdity or inconsistency, and the words are susceptible of another construction which will carry out the manifest intention. In the light of this principle Mr. Yaqub Ali Khan's contention is that a literal construction of subsection (1) of section 12 would result in the absurdity that where a dispute relating to immovable property exists, a Magistrate would have no jurisdiction to take the necessary measures to remove a danger of breach of peace by resorting to the procedure provided in sections 145 and 146 of the Code of Criminal Procedure for the solution of such dispute. We do not think that such absurdity or inconsistency is the necessary result of a literal construction of the subsection in question. Where the apprehension of a breach of peace arises out of disputed possession of immovable property, the Magistrate would still be competent to take action under section 107 of the Code of Criminal Procedure. He could also draw to such danger the attention of the Custodian who is pos sessed of an inexhaustible armoury of powers to take possession of, and deal with disputes relating to evacuee property. In our opinion absurdity or inconsistency, even inconvenience, would not be the inevitable result of the plain construction of the subsection which, in the absence of overriding considerations to the contrary, we must adopt. The evacuee law is a highly special form of law, and, as would appear from the several provisions of the Ordinance of 1949, the underlying intention of the legislation was to make the Custodian the exclusive judge of how evacuee property was to be dealt with and what orders in respect of it were to be made. The preamble of that Ordinance refers to the emergency that had arisen rendering it necessary to provide for the administration of evacuee property in Pakistan and for certain matters incidental thereto. Section 4 makes the provisions of the Ordinance and any rule or order made there under to have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of such law. Section 12, as already stated, makes all evacuee property exempt from legal process including seizure, distress, ejectment, attachment or sale by any officer of a Court or any other authority and declares that no injunction or other order of whatever kind is to be granted or made in respect of such property by any Court or other authority. Section 34 bars the jurisdiction of all Civil and Revenue Courts and other authorities (a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not an intending evacuee of whether any property is or is not evacuee property, or what right or interest, if any, an evacuee has in any such property, (b) to question the legality of anything done under the Ordinance by or at the instance of the Custodian, or (c) in respect of any matter which the Custodian is empowered by or under the Ordinance to determine. 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 adminstered 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 any not by any other Court. The respondent who moved the Magistrate could easily have gone to the Custodian and persuaded him to confirm his possession on the strength of the arrangements which he had made with Malik Muhammad Sharif who was the Custodian's lessee. We have already mentioned that these arrangements were brought to the notice of the Custodian but that he refused to confirm them, and this meant that whatever the arrange ments of the respondent with Malik Muhammad Sharif were, the Custodian was not willing to recognise any rights which Malik Muhammad Sharif, without the Custodian's approval, had conferred on the respondent. The result of the order in question has actually been that a person whose right to possession was not acknowledged or recognised by the Custodian has been put in possession by the Magistrate in preference to a person who was in possession and whose possession was founded on an order by the Custodian. We, therefore, think that the order in question was without jurisdiction and could only be made by the Custodian so far as the confirmation of the possession was concerned. We accept this petition and set aside the order of the learned Magistrate and, if possession has already been taken under that order by the respondent, we direct him to restore it to Malik Muhammad Sharif. A. H. Petition accepted.