P L D 1958 (W (PLP)

Fazeel for Respondent No.

1. Respondents Nos. 2 & 3 not represented. Date of hearing : 12‑5‑

58. In this case the petitioner alleges that he had purchased the rights of several tenants of the Shree Halwad Adhari Gati Trust. He had paid Rs. 1,000 on 23‑9‑1947 and on the next day he paid the remaining Rs. 2,

000. As regards Rs. 1,000 he had the receipt of several tenants, but as regards the payment of Rs. 2,000 he had a receipt of only one tenant. He later applied to the Custodian Mr. Akbar Hussain for confirmation of the transaction. This was rejected, but a charge was created upon the property. Later the petitioner applied for permission under section 17 to register the sale‑deed, and a certificate was granted by the Additional Custodian, Mr. Riazzuddin, on 16‑4‑1955. Registration took place on 16‑5‑1955, and thereafter the same Additional Custodian, Mr. Riazzuddin, confirmed the transaction on 2‑7‑1955. A revision application was filed by certain persons against this order of confirmation, but this was rejected by the then Custodian, Mr. Mansur Alam on 16‑5‑1956 on the ground that it was time barred. Later the Custodian, Mr. Muhammad Bux, issued a notice on 8‑10‑1957 to the petitioner to shew cause why the orders of the Additional Custodian should not be set aside in revision suo motu and the Custodian, after hearing the parties, passed an order on 8‑11‑1957 setting aside the confirmation of the transaction. Mr. Hafiz Sultan's argument is that this order of the Custodian setting aside the confirmation of the transaction is repugnant to section 3 of Act XII of 1957. This section reads as follows :‑ "

3. Property not to be treated as evacuee property on or after Ist January 1957 :‑(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the 1st day of January evacuee property, on or after the said date. (2) Nothing in subsection (1) shall apply‑ (a) to any person in respect of whom or to any property ‑in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or (b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February 1947, has not been accepted or approved by the Custodian." Prima facie it appears to me that where one has an order of the Additional Custodian confirming a transaction, this amounts to not treating the property as evacuee. The effect of an order confirming the transaction is that the property loses its character of evacuee property. I do not think that the words "not treated' as evacuee property" are to be confined, as Mr. Fazeel argued, to cases where the Custodian decides under section 22 that the pro perty is not evacuee, excluding cases of confirmation. Mr. Fazeel next argued that the proviso contained in clause (a) of subsection (2) applied, in that an action had commenced before 1‑1‑1957 for treating the property as evacuee : the revision appli cation dismissed as time‑barred on 16‑5‑1956 and the refusal of Mr. Akbar Hussain, Custodian, to confirm the transaction, were instances of such actions. His argument is that it was true that no proceedings were pending, but the words "any action has commenced" are to be read independently of the words "any proceedings are pending," and are not qualified by the latter words : in fact, a distinction is to be drawn between " has com menced" and "are pending," shewing that commenced is intended by the Legislature not to have the connotation of still pending. Therefore, so the argument runs, whether an action commenced at any time before 1‑1‑1957, ended before 1‑1‑1957 or was still pending after 1‑1‑1957, the wording of the proviso is satisfied, and the proviso applies. I do not think the argument is sound. The wording is no "if any action has commenced," and the ordinary connotation o the wording used by the Legislature is that the action should be still alive. I think that the object of the action, namely, the quieting of possession, supports this view : otherwise a transaction, long ago confirmed, could be re‑opened. I, therefore, consider that the Custodian had no jurisdiction to revise the orders of the Additional Custodian suo moto, and set aside the order. The Custodian will bear the costs of the peti tioner. No orders as to costs of the Rehabilitation Commissioner, Karachi, dated the 12th May 1958. K. B. A. Petition accepted.