P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑By this petition Subedar Fazal Elahi seeks the issue of a writ whereby the order passed by Mr. Justice Masud Ahmad, a Judge of this Court, in his capacity of Custodian of Evacuee Property, West Pakistan, on the 18th of August 1959, wherein he held that the property in dispute was evacuee property, should become inoperative.

2. Some of the material facts may be mentioned here. On the 25th of February 1947, the petitioner entered into an agreement with some non‑Muslims with regard to sale of the property in dispute for a sum of Rs.

400. Out of this sum, Rs. 325 were paid at the time of the execution of the document evidencing the agreement and the balance was to be paid at the time of the registration of the sale‑deed. Within about six months of the agreement of sale, the vendees left Pakistan for India because of the partition of the British India on the 16th of November 1953, Subedar Fazal Elahi brought a suit for specific performance of the agreement of sale impleading the Custodian of Evacuee Property as one of the parties. This suit was decreed on the 28th of July 1954. An application for execution of the decree for specific performance was lodged by Subedar Fazal Elahi whereupon the Court, before whom prayer for execution had been made, referred the case to the Deputy Custodian of Evacuee Property, Rawalpindi, to give a finding whether or not the property was Evacuee Property and the decree was binding and could be executed. The Deputy Custodian of Evacuee Property held that the decree was a nullity whereupon Subedar Fazal Elahi presented an appeal to the Deputy Custodian (General), Evacuee Property, to whom, under the law in force at that time, an appeal lay. This appeal was heard by Mr. Abdul Majid Asghar, Deputy Custodian (General), who modified the order of the Deputy Custodian of Evacuee Property to this extent that if Subedar Fazal Elahi presented an application to the Deputy Custodian and got his approval to the agreement of sale, the decree obtained by him on the 28th of July 1954 could be executed, and it would not then be necessary for him to file another suit for specific performance of the agreement. Against this order Subedar Fazal Elahi put an application for revision before the Custodian of Evacuee Property. This application was disposed of on the 29th of November 1956 by Mr. A. M. Jan, the then Custodian of Evacuee Property. The order of Mr. Jan was that as in the proceedings before him Subedar Fazal Elahi had merely asked for the approval of the creation of a right in the property and not the transfer of any right in that property, there was no occasion to interfere with the order of the Deputy Custodian (General) and that the case was sent to the Deputy Custodian of Evacuee Property, Rawalpindi, for disposal on merits. After the order of Mr. Jan the case went before Mr. Sultan Khan, the then Deputy Custodian of Evacuee Property, Rawalpindi, who, on the 8th of August 1957, passed an order that as the right in favour of Subedar Fazal Elahi had been created before the 1st of March 1947, the provisions of section 20 of the Pakistan (Administration of Evacuee Property) Act, 1957, were not attracted and confirmation of the right , to get the property transferred was not necessary. The order of Mr. Sultan Khan went on to say that the appellant could get the decree he had obtained on the 28th of July 1954, from a Civil Court at Rawalpindi executed. On the 31st of January 1958, a sale‑deed in favour of Subedar Fazal Elahi was executed by the presiding officer of the Court which had passed a decree for specific performance who acted on behalf of the vendees as provided by Law, and this sale‑deed was registered on the 20th of February 1958. On the 13th of October 1958, one Muhammad Shafi, who was an allottee of the property in dispute, presented an application under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 to have it declared that the property was evacuee property. This matter came up before Mr. M. Anwar, the then Deputy Custodian Evacuee Property, Rawalpindi, who, on the 27th of October 1958, passed a stay order. The stay order evidently was Intended to prevent Subedar Fazal Elahi from taking possession of the property with regard to which a sale‑deed had been executed in his favour and registered under the law in force. On the 10th of January 1959, Mr. M. Anwar withdrew the stay order. Against this withdrawal of the stay order, Muhammad Shall presented an application for revision before the Custodian of Evacuee Property, West Pakistan which was disposed of on the 18th of August 1959, by Mr. Justice Masud Ahmad, acting as Custodian of Evacuee Property, and while considering this application he passed his impugned order.

3. The petition was resisted on behalf of the Custodian of Evacuee Property, West Pakistan, the only respondent in the case, on the ground that the Custodian being competent to pass any order that the circumstances of the case required when exercising his powers of revision, the order could not be declared to be without jurisdiction, and no occasion for issue of a writ could arise.

4. It Is undeniable that if an authority or tribunal whose order is sought to be made inoperative by means of issue of a writ, had jurisdiction to pass the order, this Court will not‑and indeed would be incompetent to‑issue a writ. This, however, is subject to some conditions, two of which may be mentioned here. They are that the order is not one which offends against the law under which it purports to have been passed and before passing the order the conditions laid down by law as essential have been followed. If for example, In the purported exercise of its jurisdiction a tribunal or authority were to pass an order which no law permits it to do, occasion for issue of a writ by this Court would arise because it was not open to the authority or the tribunal to pass the order regarding which a writ is sought. Similarly, if the order of a tribunal or authority is passed without regard to the conditions which had to be complied with before passing the order, It would be within the competence of this Court to declare the order to be inoperative by means of issue of an appropriate writ.

5. In the present case the powers which the Custodian exercised are conferred on him by subsection (4) of section 43 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), which subsection is in the following terms: ‑ "(4) The Custodian may, at any time, either of his own motion or an application made to him within the prescribed period in this behalf call for the record of any proceedings for the administration of evacuee property, which is pending before or has been disposed of by, an officer subordinate to him, including an Additional Custodian, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may pass such order in relation thereto as he thinks fit Provided that the Custodian shall not pass an order revising or modifying any order affecting any person without giving such person and the Rehabilitation Authority an opportunity of being heard." Now, as indicated by me already, the matter which had gone before the Custodian was whether the withdrawal of the stay order by Mr. M. Anwar, Deputy Custodian, was justified. It Is obvious that in the application which sought the withdrawal of the stay order passed by Mr. M. Anwar, no question could directly arise whether the order which Mr. Sultan Khan had passed on the 8th of August 1957, was correct. The fact that in the application for revision presented by Muhammad Shafi the order of Mr. Sultan Khan was not directly in question could not prevent the Custodian from upsetting the order of Mr. Sultan Khan if the proviso to the above‑reproduced subsection (4) of section 43 of Act XII of 1957 which requires that the Custodian shall not pass an order revising or modifying any order affecting any person without giving such person and the Rehabilitation Authority an opportunity of being heard had been complied with. The impugned order of the Custodian does not show that Subedar Fazal Elahi was given an opportunity to show that the order passed by Mr. Sultan Khan on the 8th of August 1957, was correct and Major Ishaq Muhammad Khan, who appeared for the Custodian, in spite of being given ample opportunity to do so was not able to point to anything on the record of the Custodian which might indicate that Subedar Fazal Elahi had notice that, when considering the withdrawal of the stay order passed by Mr. M. Anwar, the Custodian intended to adjudicate also upon the correctness or otherwise of the order which Mr. Sultan Khan had passed about seventeen months earlier than the order against which Muhammad Shall had presented an application for revision.

6. Major Ishaq Muhammad Khan contended that no writ should Issue because though the Custodian may have failed to comply with the Proviso to subsection (4) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, his order was clearly right because of the provision of law which required that before a suit for specific performance Is lodged in the circumstances which existed in the present case, approval to the agreement of sale has to be obtained from the Custodian or one of his subordinates, which was not done in the present case by Subedar Fazal Elahi before he instituted his suit. I am not prepared to consider the question whether the order is right or wrong because the order being within the exclusive competence of the Custodian, it is for him or an authority competent to hear appeals against his orders to decide whether the order is correct, and this Court when considering whether or not to exercise its jurisdiction to issue a writ against the order is not to refuse a writ which should otherwise issue on the ground that though the order suffered from a defect which would ordinarily j call for issue of a writ the order was in any case correct and, therefore, no writ should issue. Moreover, it should not be forgotten that if called upon to defend the order of Mr. Sultan Khan, Subedar Fazal Elahi could urge that even if the order of Mr. Sultan Khan was incorrect, the Custodian was not bound to upset it and should, in view of the circumstances of the case, let it remain. It is clear that even if an order may suffer from some technical defect, the Custodian who possesses powers of revision with regard to the order is not bound to exercise those powers with regard to it. That being the law, it is not open to this Court while considering the question whether or not a writ should issue with a view to making an order of the Custodian inoperative to try to place itself in the place of the Custodian and to determine whether the powers of revision would have been exercised by the Custodian if all the facts had been placed before him by a party whose right it was to do so.

7. It being clear that in the exercise of his jurisdiction to pass orders in revision in the present case, the Custodian did not care to follow the provision of law which gave him the power to exercise jurisdiction in revision, a case for issue of a writ of certiorari has been made out. I would, therefore, quash the order of the Custodian dated the 18th of August 1959, which shall have no effect on the rights of Subedar Fazal Elahi to whom the respondent shall pay costs of this petition. ABDUR RAHIM KHARAL, J.‑I agree. K. B. A. Petition accepted.