P L D 1957 (W (PLP)

MUHAMMAD BAKHSH, J.

Facts leading to this petition for a writ of certiorari are stated as follows :- The petitioner is a Joint Stock Company registered under the Indian Companies Act at Calcutta in 1943 and having its registered office at Calcutta before and after 15th August 1947. This company owns some immovable properties in Karachi, one of which is the property in question which is described as a plot of land with buildings thereon bearing Survey No. 3, Sheet C. F. 1/5, measuring 3131 square yards, situated at Clifton, Karachi. These properties are being properly managed and looked after by the Director and local Secretary of the Company. They have been paying all the Municipal taxes up-to-date in their capacity as owners. It is alleged by the petitioner, and rightly, that under section 2 (3) (c) (ii) of the Evacuee Property Ordinance, 1949, the property in question is not an "evacuee property" within the meaning of the Ordinance. This legal position is admitted even by the authorities of the Custodian and Rehabilitation Departments and yet it is interesting to watch the develop ments that have taken place in this case from time to time. On 10th March 1953, respondent No. 4, one Dr. Muller, quietly trespassed on this plot and took over its possession. He had no authority of any kind enabling him to do so. On 26th May 1953 he made some sort of application to the Assistant Custodian, who on 28th May 1953 granted the following certificate to him :- "The property bearing Plot No. 1-5 Survey Sheet No. C. F.-3 1/5 Clifton Quarter Karachi, surveyed under D. S. No. XD-3 and owned by Finance Co. Limited is treated by the Custodian of Evacuee Property as an " Evacuee Property". It must be remembered here that no notice of any kind was given to the petitioner before the property started being treated as evacuee property. Having obtained this certificate, Dr. Muller proceeded further. He applied for the allotment of the plot and he alleges to have secured the allotment on 13th October 1953 though no allotment order was issued in his favour. He relied on an order Sheet of the same date which runs as follows:- "The plot applied for is allotted to Dr. Muhammad Muller. Its area is 3103 square yards, Mr. Muller says that most of its land is broken land and he is in a position to pay for the land and building on it. In my opinion the plot of 3102 square yards in Clifton is too large to be allotted to one individual. The Custodian will be requested to report how much is buildable. On receipt of his report further orders will be passed. Case for 15th October 1952." Respondent No. 5, one Sultan Ghani, thereafter applied for the allotment of this same plot on 18th November 1953. The Rehabilitation Commissioner allotted it to him on 26th December 1953 for residential purposes. All this was being done without any notice to the petitioner whatsoever. Then Dr. Muller filed a revision application under section 13-A of the Rehabilitation Ordinance, 1948, against this allotment in favour of Sultan Ghani. This is Revision Application No. 4 of 1954. This application was heard and decided by the Additional Custodian, Judicial, (Riazuddin) on 22nd January 1954, whereby he allotted one portion of the plot to Dr. Muller and another to Sultan Ghani (vide Annexure "F"). This officer did not consider it necessary to give any notice to the petitioner before distributing this property between Sultan Ghani and Muller. The petitioner alleges that for the first time he came to know on 21st January 1954 that Dr. Muller had trespassed on the plot and started effecting certain alterations in the building. He immediately gave a notice to Dr. Muller to desist from doing so. From further inquiries from the office of the Rehabilitation Commissioner the petitioner came to know that the property had been treated as evacuee property without any notice to him and had been allotted to Dr. Muller and Sultan Ghani. He therefore filed an application before the Deputy Custodian on 25th January 1954, and a similar application was also made to the Rehabilitation Commissioner on the same day. In these applications the petitioner clearly claimed that the property was non-evacuee property and therefore should not be meddled with. The Deputy Custodian passed his order on 27th January 1954 (Annexure "C"). It is necessary to reproduce it here :- "The property No. C. F./3 S. N. 1/5 is entered as an evacuee property. The owners are shown as Property & Finance Co., Ltd. This property could not be surveyed so far and no bill has been issued. It appears that on the basis of this entry, the property has been allotted to one Mr. S. Ghani. It has been represented in this application that this entry is incorrect on the ground that the firm Property & Finance Co. has its Registered Office in Calcutta since before the Partition. In support whereof a certificate of Income Tax Department has been filed today, which shows that the Company has had its Head Office in Calcutta before 14th August 1947 a fact which is further supported by the Memorandum of the Company showing the Registrar's Certificate of Incorporation. It shows that the Head Office of the Company was registered in Calcutta on 11th January 1943. It is therefore evidence and that under Exception (iii) of subsection (c) of section 3 of the Ordinance XV of 1949 this Company is non-evacuee property and its entry as E. P. in our Register is incorrect. I direct that the entry be deleted from the E. P. Register and Rehabilitation authority be informed that the Certificate showing it as E. P. if issued, should be deemed as cancelled." The petitioner came to know about Revision Application No. 4 of 1954 referred to above which was pending before the Additional Custodian (Riazuddin) and therefore he applied to him for cancellation of the allotment. Curiously enough the Additional Custodian passed the following order:-- "This property has been treated as evacuee property by the Custodian. This being so applicant's remedy is to file an application under section

18. It is true that Deputy Custodian, Karachi has now treated it as non-evacuee property by his order dated 27th January 1954. But he had no jurisdiction to review his previous order treating it as evacuee property. Since a property has been treated as evacuee property, the only remedy of the aggrieved party is to file an application under section

18. I am therefore unable to treat the property as non-evacuee property or to set aside the allotment on that ground". Then the petitioner approached the Rehabilitation Commissioner on 1st February 1954 for redress of the wrong that had been done to him and he prayed for ejectment of the so-called allottees. The main ground of all these applications was that the property was not an evacuee property and therefore it could neither be treated as evacuee property nor could it be allotted to anybody. The Rehabilitation Commissioner thereupon ordered the ejectment of Dr. Muller and Sultan Ghani and a notice was issued against them to show cause why they should not be ejected. In this notice (Annexure "H") these respondents were treated as "Unauthorised Occupants". Thereafter Dr. Muller and Sultan Ghani both approached the Additional Custodian (Riazuddin) who again passed another queer order. It must be reproduced here :- "In the matter of an application by Mr. Muhammad Muller complaining that in spite of this Court's order dated 29th January 1954, passed in the above noted case the Rehabilitation Commissioner has served a notice of ejectment to him and that his possession should not be disturbed. Inform Additional Rehabilitation Commissioner that order under section 13-A, dated 29th January 1954, by virtue of which a portion of Plot No. 3-C. F. 1/5, Clifton Quarter, Karachi has been allotted to Mr. Muller, and the rest to Mr. Sultan Ghani is final, that it must be treated as evacuee property as long as the claimant to that property does not file an application under section 18 of Ordinance XV of 1949 and obtain a declaration from Deputy Custodian (Judicial) that it is non-evacuee property, that the fresh certificate issued by Deputy Custodian Karachi as to the non-evacuee status of this property does not affect the matter at all, and that Mr. Muller allottee cannot be ejected from any portion of the said plot allotted to him until the person claiming to be its owner has obtained a declaration under section 18, that the said plot is non-evacuee property. (Sd.) S. Riazuddin Ahmad, Additional Custodian (Judicial), E. P. S. & C. C. P., Karachi. 2nd February 1954. " It appears the Additional Rehabilitation Commis sioner again wrote to the Additional Custodian (Riazuddin) that his orders were wrong since the property was non-evacuee, but the Additional Custodian remained adamant and he insisted that an application under section 18 of the Evacuee Property Ordinance must be made. In view of this attitude of the Additional Custodian, the petitioner was constrained to file an application under section 18 before respondent No. 3, the Deputy Custodian (Judicial). This officer passed his order on 1st October X

955. Pertinent portions of the same are reproduced below:-- "The question of delay does not arise in this case . . . . . The fact that the property in question has already been treated as evacuee property and has been entered in the Survey records of the Custodian Department, cannot be denied. The objectors have produced a certificate from the Deputy Custodian (Survey and Assessment) Evacuee Property, Karachi in that behalf. In such circumstances it is not possible to agree with Mr. Dingomal that the property in question has not vested in the Custodian. Unquestion ably the property has vested in the Custodian under section 6 (1) of Ordinance XV of 1949, with effect from 1st March 1947, and whoever may have been in possession or supervision of the said property shall be deemed under section 7 of the Ordinance XV of 1949 to hold it on behalf of the Custodian. The only objection which may be raised in this connection, that it was not entered anywhere as evacuee property, but this was not without good reason. Here, the fact that the Custodian's organisation was established much after the Notification, that is in the month of July 1949, should not be lost sight of . . . . . As regards the present status of the property, the fact that the property belongs to a Joint Stock Company which is exempted from the operation of the Evacuee Property Ordinance, is not denied even by the opposite party. The applicants have produced sufficient evidence to show that the Property & Finance Limited has its registered Head Office in Calcutta since before partition. In support of this they have produced Memorandum and Articles of Association of this concern which includes a certificate of its incorporation showing that the said firm was registered under the Indian Companies Act of 1913 on 11th January 1943, which is further supported by an affidavit of Mr. Bakshi, one of the directors of the applicants' company. I have therefore no hesitation in saying that the property in dispute belongs to a joint Stock Company, the registered office of which was situated before 15th August 1947, within territories now comprising India, as such it is not covered by the Evacuee Property Ordinanace under section 2 (3) (it). The property is, therefore, not an evacuee property, but since the property in question has once been treated as evacuee property and has vested in the Custodian, section 6 (3) will apply in this case. Accordingly this order will not be effective unless and until the applicants approach the Central Government and secure orders from them in this respect. Moreover, this order will not affect or interfere in any way with the allotment made by the Rehabilitation Authorities in respect of the disputed property". Thereafter the petitioner filed an appeal against the above order. The learned Custodian heard arguments for some days and ultimately on 20th May 1956, passed a very, cryptic order of seven lines only and dismissed the appeal. No aspect of the case was discussed and no reasons were assigned. The petitioner thus continues to be deprived of his property till this day and he has therefore approached this Court with the present writ petition challenging the various orders of the Custodian on several grounds, and which orders, he further says, have denied to him the fundamental right under Article 15 of the Constitution. He has also challenged the orders of allotment issued in favour of Dr. Muller and Sultan Ghani. He has also asked for a direction that the property be restored to him and compensation at the rate of Rs. 500 per month be awarded to him with effect from 26th December 1953. A counter-affidavit has been filed in the case only on behalf of respondent No. 6 the Rehabilitation Commissioner, and in that the only position taken is that since the property was treated as evacuee property it was legally allotted to respondent No. 5 after necessary inquiry. It is further alleged that they acted in pursuance of the directions of the Addi tional Custodian (Riazuddin) in not disturbing the possession of the allottees. Before the Deputy Custodian (Judicial), respondent No. 4, Dr. Muller, had filed a written statement and in that his defence was that the property in question was covered by the Evacuee Property Ordinance. Mr. Fazlur Rehman advocate partly argued the case for respondent No. 5 when the advocate for the Rehabilitation Department made a statement that the allotment in favour of Sultan Ghani had since been cancelled. Thereupon Mr. Fazlur Rehman withdrew from the case. It is not necessary therefore to discuss the case of respondent No. 5, though he would also stand in the same position as Dr. Muller. It cannot be denied and in fact it has all along been admitted by the learned advocates for the respondents that the property in question is exempted from the operation off the Evacuee Property Ordinance and is clearly a non-evacuee property under section 2 (3) (c) (ii) of the Evacuee Property Ordinance XV of 1949. It immediately follows therefore that this property never vested in the Custodian. The Custodian comes in only when the property is evacuee. Section 6 (1) of the E. P. Ordinance says that all evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March 1947. Hence, the action of the Custodian in treating this property as evacuee and the, orders of allotment of this property by the Rehabilitation Commissioner are all without jurisdiction and therefore a nullity in the eye of law. This is a clear case of absence of jurisdiction which immediately calls for interference by a writ of certiorari. We have no manner of doubt that the orders passed by the Additional Custodian, Judicial, (Riazuddin) were all high-handed and arbitrary. It will be seen from what has been stated above that Dr. Muller trespassed on this plot on 10th March 1953, when he had absolutely no authority for doing so. It was a clear case of criminal trespass. It was more than two months thereafter that he managed to get a certificate from the Assistant Custodian regarding the nature of this property. On 28th May 1953, the Assistant Custodian stated in his certificate (Annesure A-1) that this property was treated by the Custodian as evacuee property. He also stated in that certificate that the property was owned by the Finance Co. Limited and had been surveyed under D. S. No. XD-3. This entry has not been produced before us although we asked for it. Subsequently, an officer higher than the Assistant Custodian, (namely the Deputy Custodian, clearly stated in his order) on 27th January 1954 (Anneaure "C") that "This property could not be surveyed so far and no bill has been issued". It is not known how the Assistant Custodian then stated on 28th May 1953, that the property had been surveyed. This shows that the certificate issued by the Assistant Custodian was a false one. When the Deputy Custodian declared the property to be non-evacuee and when he directed that the entry in question be deleted from the E. P. Register and the certificate issued by the Assistant Custodian be deemed to be cancelled, it was only proper and just that the authorities that be should have immediately acted upon it and restored the property to its rightful owner. It was not proper on the part of the Additional Custodian (Riazuddin) to insist that an application under section 18 must be filed. The property was wrongly treated by the Assistant Custodian as evacuee property and this wrong was immediately righted by the Deputy Custodian of the said Department by declaring the property to be non-evacuee. It cannot therefore be said that the Custodian treated this property as evacuee within the meaning of section

18. The Deputy Custodian was also an officer of the Custodian's Department and for the matter of that he was an officer of a higher grade than the Assistant Custodian. The false certificate issued by the Assistant Custodian could not therefore be treated as a gospel. The clearest possible duty, in the interests of justice, of the Additional Custodian was to pass requisite orders for removing the trespassers from this property and restoring it to its owner. The object of the evacuee property law is not to harass people ; they have to do justice between man and man. We think the Additional Custodian was in a great error when he insisted on an application under section

18. The various developments in this case, as have been described in the preceding pages, have put the rightful owner of this non-evacuee property on a merry-go-round in the Custodian's Department. He has been made to go from pillar to post and post to pillar. He came to know that the property had been trespassed by Dr. Muller and he approached the Rehabilitation Authorities and the Deputy Custodian. The Deputy Custodian directed the restoration of this property but again the Additional Custodian insisted on an application under l section

18. When he made the application under section 18 he was asked to go to the Central Government under section 6 (3). We will discuss that aspect of the case later. For the present it is clear to our minds that all the orders passed by the Additional Custodian (Riazuddin) were clearly an abuse of his powers and were wrong on the very face of them. The result of his orders has been that right from 1954, upto this day the petitioner has been kept back from the possession of his property, although at the same moment all the authorities concerned are unanimous that the property is non-evacuee. Even when the Rehabilitation Commissioner issued notices to Dr. Muller and Sultan Ghani to show cause why they should not be ejected, the Additional Custodian stepped in and issued a directive to the Rehabilitation Commissioner that the allottees should not be ejected. We fail to imagine how, as the learned Additional Custodian observed, the fresh certificate issued by the Deputy Custodian did not affect the matter at all. A subordinate of the Deputy Custodian had done a wrong thing by issuing a false certificate and when the Deputy Custodian righted the wrong by cancelling the certificate, we cannot see how it does not affect the matter at all. This order was passed by the Deputy Custodian (Survey and Assessment) and the Additional Custodian directed that the application under section 18 should be made to the Deputy Custodian of another branch viz., Judicial. This in effect becomes a very extra ordinary case. If an ordinary Assistant Custodian wrongly treats the property of anybody, even a Pakistani national, to be an evacuee property it must be treated as an evacuee property according' to the verdict of the Additional Custodian although the Deputy Custodian clearly says that the Assistant Custodian is altogether wrong. We are not prepared in the High Court to countenance such adjudications on the part of the Additional Custodian. Now we come to section 6 (3). It reads as follows :- "Where any property in Pakistan belonging to a joint Stock Company has vested in or been taken possession of by any person exercising the powers of a Custodian under any law in force immediately before the commencement of this Ordinance, nothing contained in clause (3) of section 2 shall affect the operation of subsection (1), but the Central Government may by notification in the Official Gazette, direct that the Custodian shall be divested or dispossessed of any such property in such manner and after such period as may be specified in the notification." Two conditions are necessary for the operation of this subsection, viz.. (1) that the property in Pakistan belonging to a Joint Stock Company should have vested in the Custodian under any law in force immediately before the commencement of the Ordinance and (2) that it should have been taken possession of by the Custodian similarly. Now let us see whether this property vested in the Custodian under any law in force- before the passing of this Ordinance XV of 1949. Before this Ordinance there was Ordinance XVIII of 1948, which was passed on 18th October 1948. Under this Ordinance there is no provision whatsoever rendering the property of a Joint Stock Company as an evacuee property vesting in the Custodian. In fact, the word "vesting" has not been used. Section 6 (1) of the Ordinance says that a Custodian may by a general or special order published in the Official Gazette and specifying by location or description any evacuee property or class of such property, take over or resume control of the property so specified. In this connection reliance has been placed by the Deputy Custodian (Judicial) on a notification the Custodian in exercise of the powers conferred upon him under section 6 (1) of Ordinance XVIII of 1948 ordered "I hereby take over and assume control of all evacuee property, whether movable or immovable, within the Federal Capital and the Province of Sind". It is, however, idle to rely on this notification because the property in question was not an evacuee property at all within the meaning of Ordinance XVIII of 1948 and therefore the Custodian could not take over and assume control of this property. Thereafter came Ordinance XV of 1949 which was passed on 15th October 1949. Several amendments have been made in this Ordinance by Act VI of 1951 and the Ordinance derives its present shape from the original Ordinance XV of 1949 which was passed on 15th October 1949, as amended by Act VI of 1951 which was published in the Gazette on 21st April 1951. Now, in the original Ordinance XV of 1949 before Act VI of 1951, the property of this company was specially exempted from Ordinance XV of 1949 by virtue of section 2 (3) (b) (ii). Section 6 (1) of this Ordinance first said that all evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March 1947. Under this Ordinance also, therefore, the property being excluded from the operation of the Ordinance was non-evacuee property and therefore could not vest in the Custodian. Act VI of 1951 which was passed in April 1951 did not affect this position. Therefore it is absolutely clear that this property never vested in the Custodian under any law in force immediately before the commencement of Ordinance XV of 1949 within the meaning of section 6 (3). Now we go over to the question whether the property had been taken possession of by the Custodian under any law in force immediately before the commencement of this Ordinance. We have already shown above that the Ordinance came into effect in 1949 and for the first time the Assistant Custodian granted a certificate in 1953 that the property was treated as an evacuee property. All the same, the property had never been taken possession of by the Custodian at any time. For the first time in March 1953 Dr. Muller trespassed upon this property and subsequently he managed to get a certificate from the Assistant Custodian and the allotment from the Rehabilitation authorities. Therefore, it becomes crystal clear that the property in question had never been taken possession of by the Custodian under any law in force immediately before the commencement of Ordinance XV of 1949 which commenced on 15th October 1949. In view of these reasons the case is not covered by the provisions of subsection (3) of section 6 of the Ordinance ; The learned Deputy Custodian (Judicial) did not apply his mind to this aspect of the case and it is also unfortunate that the learned Custodian himself never discussed the same. The order of the Additional Custodian, dated 29th January 1954 in Revision Application No. 4 of 1954 holding that the property of the petitioner would continue to be treated as evacuee property, the order of the Deputy Custodian (Judicial, dated 1st October 1955 adversely affecting the rights of the petitioner and the order of the Custodian in appeal passed on 20th May 1956, upholding the order of the Deputy Custodian are clearly orders passed, without jurisdiction, against the principles of natural justice, contravening the provisions of the Evacuee Property Ordinance, and there is an error apparent on the face or record. Similarly, the orders of allotment, dated 26th December 1953 and the orders of the Additional Custodian passed on 22nd January 1954 directing the allotment, in favour of Dr. Muller and Sultan Ghani are also orders of the same type and must be quashed. A writ of certiorari as prayed for will be issued and further a direction shall be issued to respondent No. 6, the Rehabilitation Commissioner, to eject the unauthorised occupants of this plot under the provisions of section 8 (2) (b) and restore the possession thereof to the petitioner. We further direct respondents 1 to 4 to bear the costs of the petitioner. We make no order as to costs in the case of respondents 5 and 6 because the allotment of respondent No. 5 has since been cancelled and also because respondent No. 6 was clearly acting under the orders of the Additional Custodian and was not heard even when he protested that the property being non-evacuee should not be allotted and he actually issued notices to Dr. Muller and Sultan Ghani to show cause why they should not be ejected. Respondents 5 and 6 will bear their own costs. A. H. Petition accepted.