P L D 1962 (W (PLP)

SHAKIRULL4H JAN, J.

This is a petition by Muhammad Siddiq and five others, residents of Cavalry Road, Risalpur Cantt for the issuance of a writ of certiorari for quashing the order of the respondents, dated the 31st of March 1961, to the effect, that since they had failed to get an exchange confirmed from the Custodian, they had no claim to the ownership of the property, namely No. 2 Arbab Road, Peshawar Cantt. and a three Storeyed katra situated in Andar Shehr, Peshawar City, and that the property continued to be evacuee property and had to be disposed of under the law by the Chief Settlement and Rehabilitation Commissioner, Pakistan.

2. The facts of the case briefly are that Bungalow No. 2 Arbab Road, Peshawar Cantt. with furniture and fittings etc. and a three storeyed katra situated inside Peshawar City opposite Muhabat Khan's mosque, bearing Municipal Nos. 1529 to 1544 belonged to Autar Singh and his mother Shrimati Harnam Kaur. On Independence, Autar Singh son, and Shrimati Harnam Kaur widow of Acharj Singh, left Pakistan for India and became evacuees. The petitioners originally belonged to Delhi where they owned valuable immovable properties. They also migrated to Pakistan from Delhi after Independence. On the 27th of June 1949, the petitioners are said to have entered into an agreement of exchange with Autar Singh and Shrimati Harnam Kaur on the basis of which the latter agreed to transfer their properties, namely, No. 2, Arbab Road and three storeyed katra in Peshawar City to the petitioners in exchange for their immovable properties situated in Delhi. An application was made by the petitioners to the Deputy Custodian, Evacuee Property for confirmation of the agreement of exchange under sections 16 and 17 of Ordinance XV of 1949. This application was dismissed on g-10-1954. An appeal was preferred by the petitioners and the Custodian, Evacuee Property, Peshawar, by his order dated the 29th of August 1956, accepted the appeal, set aside the order of the Deputy Custodian dated the 9th of October 1954 and confirmed the agreement of exchange, copy of which is Annexure `A'. Subsequently on the application of the petitioners, a certificate as contemplated by section 17 of Ordinance XV of 1949, was issued by the Deputy Custodian to the effect that the agreement of exchange was confirmed and the Sub-Registrar might register the deed of exchange. Copy of this certificate dated 24-9-56 is Annexure B'. The deed of exchange was then executed on 16-10-56 and was registered on 27-11-56. The possession of the property in dispute was also delivered to the petitioners by the Custodian, who further by his order dated 15-5-57 (copy Annexure 'D'), directed that the amount of rent realised by his Department, less 10% departmental charges, and the amount spent on the repairs should be paid to the petitioners and the entire rent realised was paid to the petitioners after deduction of 10% departmental charges and the amount spent on repairs.

3. It appears from the record that on 4-11-58 the petitioners were directed by the Assistant Custodian/Assistant Rehabilitation Commissioner, Peshawar to refund the amount of rent of the property in dispute to the department by his order, copy of which is marked as Annexure `8-E'. In reply the petitioners, however, served the Assistant Custodian with a notice, dated the 21st of November 1958, (copy Annexure `F'), apprising him of the correct position and requested him for the withdrawal of his order. The petitioners also applied to the Ministry of Rehabili tation on 3-12-58, and the latter by his order dated the 8th of December 1958, ordered the Assistant Custodian, Peshawar, to stay further proceedings In the matter, copy of which order is Annexure G . By their application dated the 24th of December 1958, the petitioner moved the Central Rehabilitation Authorities for quashing the above-mentioned orders of the Assistant Custodian, Peshawar. On the above-mentioned representation the Government of Pakistan, Karachi Issued instructions dated the 12th of January 1958 (copy Annexure `H') to the authorities concerned to withdraw Order No. 156-61 passed by the Assistant Custodian, Peshawar, dated the 4th of November 1958, and this order was officially communicated to the petitioners by the Assistant Custodian, Peshawar, by his letter dated the 11th February 1959, (copy Annexure `I').

4. The petitioners subsequently received a letter dated the 31st March 1961, from respondents I and 2 on 3rd April 1961, Informing them that the Custodian by his order dated the 29th of August 1956, had merely confirmed the agreement to exchange the property, and since they had failed to produce the deed of exchange for confirmation by the Custodian, they had no claim to the ownership of the property. By the same letter the property In dispute was treated as evacuee property and the petitioners were directed to surrender its possession to the Additional Settlement and Rehabilitation Commissioner, Peshawar, copy of which is Annexure `J'. A written representation was made by the petitioners to respondent No. 1 on the 10th of April 1961, requesting for the withdrawal of the letter (copy Annexure `J') and to stay the proceedings taken thereunder, but this request was not allowed. The petitioners, therefore, filed this writ petition, challenging the legality of the order on the following grounds :

"1. (a) The transaction of exchange was duly confirmed by the Custodian in accordance with the relevant provisions of law and the deed of exchange was duly executed and registered after the requisite sanction of the Deputy Custodian, Peshawar. These orders were not questioned by way of appeal, revision and review and have become conclusive and binding. (b) The petitioners obtained possession of the property and were also paid the rent of the property recovered by the Custodian Department as owners of the property. (c) All relevant documents in possession of the petitioners were produced before the Custodian for confirmation and the orders of confirmation were passed in the light of those documents. No further documents were required to be produced. (d) The property in- question having once been declared non-evacuee property and after the petitioners had become its legitimate owners under the authority of law, it cannot therefore be treated as evacuee property. The impugned order violates the clear provisions of the statute and is contrary to the laest pronouncements of the Supreme Court of Pakistan, In view of the letter dated 12-1-59 (Annexure `H') the respondents were estopped to pass the impugned order. (2) That the valuable immovable properties given in exchange by the petitioners in lieu of the properties in question have gone out of their hands completely. They cannot either get them back or submit any claim to the authorities concerned on their strength. (3) That under section 3 of the Act XII of 1957 no property can be declared as evacuee property after 1st January 1957. "

5. The respondents in their joint written statement admitted that the Custodian, by his order dated the 29th of August 1956, had approved the agreement of exchange, but averred that only an agreement to transfer property was approved, which document, according to the Custodian, was an instrument which by itself was not intended to be an operative document, but only created a right in the parties to obtain an operative document after con ditions were fulfilled. The document of exchange had yet to be executed, and it was only when it was executed that the sanction of the Central Government through the Commander-in Chief was necessary. It was also contended that instead of applying to the Custodian for the confirmation under section 16 of Ordinance XV of 1949, the petitioners went to the Deputy Custodian, Peshawar, seeking no-objection certificate from him under section 17 of the above-mentioned Ordinance. The actions of the authorities subordinate to the Custodian, acknowledging the petitioners as owners and also bringing about the attornment from the tenants of the properties in petitioners favour were irregular, as they acted without the directions of the Custodian in this behalf. The Deputy Custodian, Peshawar, was legally com petent not to follow the orders of his predecessors, and correctly informed the petitioners that the property continued to be evacuee property. The respondents contended that the writ petition was not competent as the petitioners had not exhausted all the legal remedies available to them, against the impugned order, in the Custodian Department.

6. Learned counsel for the petitioners contended that the petitioners were delivered possession of the property, also paid the rents realised by the department, and their possession was not disturbed from 11-2-59 to 31-3-61, when the Ministry issued the letter (copy Annexure `J' on the file), informing the petitioners that the order passed by the Custodian, Evacuee Property, dated the 29th of August 1956 (copy Annexure `A') had merely con firmed the agreement to exchange property and since they bad failed to produce the deed of exchange for confirmation by the Custodian, they (petitioners) had obviously no title to the ownership of the property mentioned therein, and the property, continued to be evacuee property and had to be disposed of under the law by the Chief Settlement and Rehabilitation Commis sioner, Pakistan. Major Muhammad Ishaq, Legal Adviser of the respondent, urged that this order was based on the clarification of Mr. Justice Sheikh Muhammad Shafi, Ex-Custodian, Evacuee Property, dated the 30th of October 1958. It appears from the record that on the 30th of October 1958, Col. Pinto who was then functioning under some authority of Martial Law (as admitted by counsel of parties), had approached Muhammad Shaft, J. Ex-Custodian, asking him to clarity his order dated the 29th of August 1956, with regard to Bungalow No. 2, Arbab Road, Peshawar Cantt. In this clarification he made the following observations :- "Neither the agreement which I confirmed, nor my order had the effect of taking Bungalow No. 2, Arbab Road, Peshawar Cantt. out of the category of the evacuee property, which it admittedly was, its owners having migrated to India after the partition of this Sub-continent. It was specifically mentioned in my order that the agreement which was being confirmed was a document which by itself did not convey the property to the other but only created a right to execute another document, having that effect after certain conditions were fulfilled. In my view, Bungalow No. 2, still continues, to be evacuee property, and an operative document with regard to it is executed by the heirs of S. Acharj Singh, it will have no effect until the necessary sanction by the Central Government is obtained through the Commander-in-Chief as laid down in the General Order by the Governor-General-in-Council No. 179, dated the 12th of September, 1936."

7. Learned counsel for the petitioners urged that the clari fication, reproduced above, is not binding on the petitioners, because apart from the fact that it was without any notice to the petitioners and was passed in their absence, Muhammad Shafi, J. had no power to pass this order because, as also frankly conceded by Major Muhammad Ishaq, Muhammad Shafi, J. had relinquished the charge of the post of the Custodian on the 31st. of December 1957, and therefore, he was functus officio when clarifying his order dated-the 29th of August 1956, on 30th of October 1958. There is some force in the argument addressed by the learned counsel for the petitioners. Apart from the fact that Muhammad Shafi, J. was no longer exercising the powers of Custodian when he was clarifying his order, dated the 29th of August 1955, on the 30th of October 1958, he had done so without notice to the petitioners and without giving them an opportunity to be heard, and therefore, in our view, this clarifi cation cannot b allowed, under the law, to be valid interpretation of the order (copy Annexure `A').

8. Learned counsel for the petitioners referred to para. 2 (b) of the Notification No. F. 28 (33)/49-P, dated the 10th of January 1950, as amended by Notification No. F. 28(33)/49-P, dated the 12th of October 1951, to the effect that the Central Government was pleased to declare that with effect from the l lth day of January 1950, in the areas in which the said Ordinance is in force no transfer of property shall for a period of six months take place as follows, namely :- (1). . . . . . . . . (2). . . . . . . . . (a). . . . . . . . . (aa). . . . . . . . . "(b) by exchange, with such urban immovable property as is not treated as avacuee property under any law for the time being In force in India, or In any area occupied by India, or, If it is so treated, Is not situated in any of the following areas namely." "The Provinces of East Punjab, Himachal Pradesh, Delhi and Ajmer-Merwara the Districts of Saharanpur, Debra Dun, Meerut and Muzafi'arnagar in the United Provinces, the Patiala and Fast Punjab States Union, Dholpur and Karauli States (new included In the Matsya Union), the Rajasthan Union, Saurashtra (as both these Unions stood on the 22nd July 1948), and the States of Bbaratpur, Alwar, Bikaner Jaipur and Jodhpur." Continuing his argument the learned counsel for the petitioners submitted that the property left behind the petitioners In Delhi was declared as evacuee property, as it is obvious from Annexure `A', and therefore, there was no ban on exchange even after the 11th January 1950, according to the Notification mentioned above. He urged that no confirmation under section 16 of the same Ordinance was required, because both the properties i.e. the ore belonging to the petitioners and the other belonging to 'Autar Singh and Shrimati Harnam Kaur i e. No. 2, Arbab Road, were evacuee properties. He added that the order of the Custodian, dated the 29th of August 1956, (Annexure A) confirming the agreement was obtained under section 16 of the Ordinance, only by way of precaution. It further appears that the application of the petitioners disallowed by the Deputy Custodian was under sections 16 and 17 of Ordinance XV of 1949. On appeal the Custodian, by his order dated the 29th of August 1956, set aside the order of the Deputy Custodian and confirmed the agreement. Now the point for determination is whether after the order of the Custodian, dated the 29th of August 1956, confirming the agreement, the confirmation of the exchange deed itself was necessary or not. The decision in Mrs. R. B. Alvi v. The Custodian, Evacuee Property (P L D 1962 Lab. 84) has got full bearing on this point, wherein it was held that once the Custodian had accorded previous approval under section 19 of the Act XII of 1957, there was no necessity to again obtain the confirmation under section 20 of the Act. In other words Custodian was not required by the law to "bless" a transfer twice even. Now by reading Act XII of 1957 and Ordinance XV of 1949 it would appear that section 19 of Act XII of 1957 is equivalent to section 15 of Ordinance XV of 1949, and section 20 of Act XII of 1957 is equivalent to section 16 of Ordinance XV of 1949, and so in view of the above-mentioned authority the confirmation of the exchange deed after its execution and registration was not necessary, when once confirmation has been obtained under section 16 with respect to agreement to exchange. The decision referred to above applies with more rigour in the instant case when the confirmation under section 16 of Ordinance XV of 1949 was already obtained them to a case where previous approval was obtained under section 15 of the Ordinance. Further, under section 16 of the Ordinance the Custodian has to confirm the transfer only once and it is not required that each act towards the alienation should be confirmed by the Custodian. Mr. Justice Muhammad Shafi has rightly found in the order that even an act creating right to the remedy requires confirmation and once confirmation has been accorded then it was sufficient compliance of section 16 of the Ordinance. We are in respectful agreement with the finding of the D. B. mentioned above.

9. The impugned order, dated the 4th of November 1958, passed by Abdul Samad, as it was passed without notice to the petitioners, had violated the principles of natural justice The agreement to exchange was confirmed by the Custodian by his order dated the 29th of August 1956. The exchange deed was executed on 16-10-56 and registered on the 27th of November 1956, and possession was delivered to the petitioners. The property was not evacuee and could not be treated as such also under section 3 (1) of Act XII of 1957, which lays down as under :- 3. (1) Notwithstanding anything contained In this Act, no person or property not treated as evacuee or as evacuee property 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."

10. From the above discussion it follows that the property in dispute having been given in exchange to the petitioners on the basis of exchange deed registered on the 27th of November 1956, was not evacuee property on 31-12-56 i.e. before the first of January 1957, and therefore, it could not be treated as evacuee property. The Ministry of Rehabilitation had also treated this property to be non-evacuee property as it Is evident from Annexure `H', which Is copy of a letter from Ihsan-ul-Haq Esq., Assistant Secretary, to Mr. Muhammad Siddiq, informing him that necessary instructions had been issued to the authorities concerned to withdraw Order No. 155-61, dated the 4th of November 1958, passed, by the Assistant Custodian/Assistant Rehabilitation Commissioner, Peshawar, and to maintain the status quo. Again, by letter No. F. 21 (36)/58-P, dated Karachi the 1st of July 1960, from Ihsan-ul-Haq., Section Officer, to the Settlement and Rehabilitation Commissioner, Peshawar, (copy Annexure `L'), House No. 2, Arbab Road, Peshawar, was treated as a non evacuee property. The letter to the following effect :- "I am directed to refer to your letter No. 910/SCP/F. dated the 26th May 1960, addressed to the Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and to say that after going through the facts of the case it seems rather too late to re-open this matter again. The property is no more evacuee property and stands confirmed by an appropriate Custodian. If, however, there are any good grounds justifying the revision or cancellation of the Government's orders the best course would be to file a suit in the Court of the Custodian of Evacuee Property who would deal with It in his suo motu jurisdiction."

11. Major Muhammad Ishaq urged that the order of the Custodian (copy Annexure `A') was not correctly interpreted either by the Deputy Custodian, who granted the certificate under section 17 of Ordinance XV of 1949, or the Central Government, and as a matter of fact the order did not amount to the confirma tion of the exchange In question. He, therefore, contended that the order of the Custodian did not render the property in question to be non-evacuee property and maintained that the property is still evacuee property. The short answer to this contention will be found in the concluding part of the order dated the 29th of August 1956, of the Custodian itself, which runs as follows :- "The words creation and remedy used in this section clearly go to show that it is not only the completed transactions which have to be confirmed, but the transactions which create a remedy to get a transaction completed can also be confirmed under this provision of law." In view of this order there Is no escape from the conclusion that the Custodian considered It necessary that even agreement to exchange could be confirmed under section 16 of Ordinance XV of 1949. This view has become final in this case because neither the Rehabilitation Authorities nor the Central Government had taken any action to get this view set aside or modified by having t recourse to law. As held above, when according to the Custodian the agreement to exchange could be confirmed under section 16 of the aforesaid Ordinance then the deed of exchange did not require any confirmation, because section 16 contemplates con firmation only once. The Interpretation of Major Muhammad Ishaq of the order of the learned Custodian is not tenable.

12. There are also equities in favour of the petitioners which cannot be lightly ignored in this case. By the order of the Custodian and the subsequent developments mentioned above in favour of the petitioners, until the Impugned order was passed by the Central Government, the petitioners had been placed in a position that they could not claim compensation for their proper ties they left In Delhi and which were allowed to be transferred in favour of Autar Singh in exchange for the suit property.

13. For the aforesaid reasons we accept this writ petition with costs, and on quashing the impugned order, direct that the respondents should not take any proceedings against the petitioners with respect to the properties In question. A. H. Petition accepted.