P L D 1961 (W (PLP)

FARUQUI, J.-This is a writ petition on behalf of one W. Wallace, in which it is prayed that the order of the Custodian dated 23-I1-1959 refusing to approve the authority of his attorney to supervise or manage the property in dispute be quashed by a writ of certiorari and. for further consequential reliefs. In this petition, which was filed through the petitioner's attorney Haji Ibrahim, it was claimed that plots Nos. 327/5 and 327/6 measuring about 15,000 sq. yards situated at Garden East, Karachi previously belonged to the petitioner's family and later on came to belong to him ; that these plots were open plots and were managed and supervised through the said Haji Ibrahim for the last 49 years in the absence of the petitioner who was a Government servant and was serving at various places in the Indian sub-continent, such as Karachi, Madras and Lucknow and that he retired at Lucknow where he is residing since then. The petitioner says that he is a Christian and a British national and his property was duly managed and supervised by his agent Haji Ibrahim and yet it 'was treated as an evacuee property. He has produced a certificate dated 15th August 1956 by the Assistant Custodian (Survey) stating that the property in question is treated as evacuee property. This certificate was given to the petitioner's attorney on the latter's application dated 28-7-56. The petitioner then moved several applications but the one, on which the order in question was passed, was made under section 2 (2) (c) (ii) of the Pakistan (Administration of Evacuee Property) Act, 1657 for approval of the power-of attorney dated 31-10-57. This application was rejected by the Deputy Custodian (Judicial) E. P. by his order dated 1-1-59. He held that admittedly the petitioner was residing in India and the application for the approval of the authority of the agent Haji Ibrahim was very much belated. He also disbelieved the attorney's claim that he had been managing this property for all these . years. The petitioner's attorney then preferred a revision against the order of the Deputy Custodian to the Custodian of Evacuee Property which was allowed by his order dated 23rd September 1959 and the authority of the attorney to supervise and manage the property was approved. The only party to whom notice was given of this petition was the Rehabilitation authority.

2. These two plots had been sub-divided into seven plots and all these seven plots had been allotted to the respondents No. 3 to No. 9 before us, sometime in the year 1953. One of these allottees had constructed a double-storeyed building where a school is being run at least for two years ; another had completed a building and the third was constructing his property when this order by the Custodian was passed. The other allottees except respondent No. 9 had enclosed their portions by pucca compound walls. It appears that these persons came to know of this order of the Custodian and two petitions were presented before him, one on behalf of five allottees and the other on behalf of one, praying that the order dated 23rd September 1959, which was passed without notice to them, be set aside and the approval of the authority of the attorney be cancelled. The matter was then heard by the Custodian who, by his order dated 23rd November 1959, set aside his previous order and declined to approve the authority of the attorney Haji Ibrahim. It is against this order that this writ petition is derected.

3. Before we deal with the order of the learned Custodian it will be useful to reproduce the relevant portion of section 2 (2) of the Pakistan (Administration of Evacuee Property) Act, 1957: - "(2) Evacuee (means any person) (a) ..... (b).. (c) who is resident in any place in the territories now comprising India or in any area occupied by India ; and (i) is unable to occupy, supervise or manage in person his property in Pakistan ; or (ii) whose property in Pakistan has been ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by any person (whether duly empowered in this behalf by him or otherwise) whose authority or right so to do on or after the aforesaid dates has not been accepted or approved by the Custodian." The learned Custodian held that inasmuch as the petitioner was residing in India and the authority of Haji Ibrahim to manage his property in Pakistan had not been approved by the Custodian prior to the passing of the order dated 23rd September 1959, the property in question was evacuee property until then and the effect of his order dated 23rd September 1959, assuming that Mr. Wallace is the owner of this property, was that the property ceased to be an evacuee property. He then observed that if he had known that this property had been allotted to various people it would have been necessary to issue notice to them as required by subsection (4) of section 43 of the Act before revising the previous order which he had passed on 23rd September 1959 ; that no such notice was given because the petitioner's attorney Haji Ibrahim did not intentionally disclose that this property had been allotted to certain persons and that they were in possession of the same. He, therefore, held that as no notice was given to these persons the order was liable to be "On merits also I am of opinion that if I had known that the whole of this plot of land had been allotted to various persons and that some of them had erected valuable construc tions on the allotted land, I would have declined to approve the power-of-attorney granted to Mr. Ibrahim by Mr. Wallace, because when the allotments were made that property was admittedly, evacuee property and the rights which had accrued to the allottees could not have been taken away by me. If I had known all this at that time, I would have advised the petitioner to apply for restoration of his property under section 23 of the Act, instead of approving the power-of-attorney given by him to his alleged attorney and placing the allottees at the petitioner's mercy. The proper course that should be followed, in these circumstances, even now, is the one which I have indicated above, namely, that the approval given by me may be withdrawn and the petitioner advised to apply for restoration of his property under section 23 of Act, when he (sic.) does so, the rights of the allottees would be fully. safeguarded and if the property is restored to the petitioner, whatever compensation is payable by the allottees to the Custodian in that case would be paid to the owner, without in any way injuring the legitimate rights of the allottees". In view of the conclusion reached by him, the learned Custodian accepted the review application and set aside his earlier order dated 23rd September 1959 and directed that the property in dispute shall continue to be treated as evacuee property and shall remain vested in the Custodian.

4. Mr. Ihsanul Haq, the learned Advocate for the petitioner, who has been conducting this matter throughout before the Custodian and who appeared before us in support of this writ petition, strenuously urged that the learned Custodian should not have reviewed his order, and considering that this property belongs to a Christian, who had not migrated to India on account of disturbances and whose property had always been managed through the attorney Haj: Ibrahim, there was no justification in law for the Custodian to have declined to approve that authority. On the other hand, Mr. Qasuri, the learned Advocate appearing for the Custodian, argued that it had not been established that the petitioner W. Wallace, on whose behalf Ibrahim was seeking to act, was the true owner of the property, nor had it been established that Haji Ibrahim had been managing or supervising the property on his behalf. He further contended that Haji Ibrahim, who claims to be residing near the plot in question, had deliberately avoided to make the allottees, of whose occupation he was aware, party to the application before the Custodian and the Deputy Custodian in these proceedings ; that the order of the Custodian dated 23rd September 1959 having been passed without notice to the allottees was without jurisdic tion and the order passed on review was justified both in law and on facts.

5. There is no doubt that Haji Ibrahim was aware of the allotment and occupation of at least some of the allottees on the land in question and yet on his own showing he did not move in the matter until November 1956 when he says he made an application under section 18 of the Ordinance XV of 1949. The certificate of the Assistant Custodian dated 15-8-56 was obviously obtained by Haji Ibrahim to show that it was only then that he came to know definitely that this property was being treated as evacuee property so that he should not be accused of laches. But even the first power of attorney, which is dated 6th January 1956 and which was given by Wallace to Haji Ibrahim, mentions that the plots in question have been allotted. Haji Ibrahim was examined before the Custodian and he claimed that he had been looking after this property since the year 1902, but he admitted that he had not met the peti tioner since the year 1925 and that he had left Karachi in the year 1908 though he came here three or four times thereafter. According to him his last visit was sometime in the year 1912 or 1914. He further admitted that a garden had been laid out on this land but it withered away in the year 1910 or 1911, and after that no income of any kind was realised from this land. He further went on to admit the construction of the houses by allottees on the plots in question and he admitted that before 1956 he had never applied for getting his authority approved. In fact, the fires power of attorney that he did receive was in the year 1956.

6. It is not necessary for us to dwell upon the question in these proceedings whether the present petitioner is the true and sole owner of the land in question but in any case it is plain that he has not evinced much interest in this property nor, has there been any tangible use or supervision of it by Haji Ibrahim who has now got a power of attorney from him. Be that as it may, we have been unable to find any ground upon which the order of the learned Custodian could be quashed in the exercise of our writ jurisdiction.

7. Though in the petition it is stated in para. 10 that an application was moved on 12-8-59 under section 22 of Act XII of 1957, upon which Mr. Asim Hussain, the Deputy Custodian, passed the order dated 1-1-59 rejecting the application, it is plain that the application which was moved before the Deputy Custodian upon which the order in question was passed, was only under section 2 (2) (c) (ii) of Act XII of 1957 and was not the same application a copy of which has been produced in this writ petition which is marked and which is under section 22 of Act XII of 1957. This becomes clear by reference to the order of the Deputy Custodian, who, on the first page of his order Exh. E, has referred to a statement in para. 10 of the application which was before- him but the subject-matter of which does not exist in para. 10 of the copy of the application produced by Mr. Ihsanul Haq in this writ petition. Therefore the Deputy Custodian and after him the Custodian were merely concerned with the question whether the power-of-attorney dated 31-10-57 should be approved or not. The Deputy Custodian declined to do so. No appeal against that order lay as would appear from section 43 (1) of the Act which provides for appeal only against order passed under sections 20, 22 and

23. The Custodian, I therefore, could only have dealt with the matter in the exercise of his revisional jurisdiction which is given to him an of under section 43 (4). The proviso to sub-clause (4), read as follows:- "Provided "Provided that the Custodian shall not pass an order revising or modifying any order affecting any person without giving such person and the Rahabilitation Authorities an oppor tunity of being heard." That the allottees who were in occupation and some of whom had expended large sums of money and built upon the land would be the persons affected within the meaning of this proviso, does not admit of any dispute. No such notice was given and we are in agreement with the Custodian that Haji Ibrahim had deliberately kept back the fact of these allotment and occupation of the allottees from the Custodian. Therefore, when the two review applications were filed before the Custodian by the allottees and the matter was heard by him he was faced with the position that he had passed an order without giving notice to persons who were affected by it and which he was pro hibited to do by a mandatory provision of the law, He was therefore, right in holding that the order dated 23rd September 1959 passed by him was liable to be set aside on that I ground alone. Then we came to the second part of the impugned orders whereby he has declined to approve the authority of Haji Ibrahim. That is a matter within the discretion of the Custodian orders when he says, that if he had known that these lands has been allotted as far back as 1953 and pucca construction had been put upon it by the allottees at a time when the property was admittedly an evacuee property within 'the meaning of section 2 (2) (c) (ii) of the Act he would never have approved of the power-of-attorney which would have the effect of turning the property into a non-evacuee property and thus leave the allottees at the mercy of the petitioner or Haji Ibrahim, we cannot see any error of law in that view. The approval of a power of attorney is a matter relating 'to the administration of evacuee property and if the Custodian, who has to administer he property and follow in that sphere the policy of the Government, considered that in the circumstances of the case he would never have approved the authority of Haji Ibrahim, we cannot find fault-with him.

8. For the reasons given above, we dismiss this writ petition with costs. This however should be no bar in the way of the petitioner to follow any remedy which may be open to him for claiming compensation from the Government if he is able to establish his ownership of the land. In fact, the first power-of attorney dated 6th January 1956 had authorised Haji Ibrahim to institute proceedings merely for the purpose of obtaining compensation. S.B. Petition dismissed.