P L D 1962 (W (PLP)

MUHAMMAD YAQUB ALI, J.‑By this petition Mrs. Razia Begum Alvi, Principal, Government College for Women (Gulberg Colony) Lahore, seeks issuance of a writ of certiorari to quash the orders of the Custodian of Evacuee Property, dated the 10th of Septem ber 1960 and 5th of December 1960, passed in the Review Applications Nos. 34 and 73 of 1960.

2. The facts necessary to be stated for the purpose of this order are as under: ‑ The petitioner belonged to a Hindu family which owned large tract of agricultural land and house property in Kot Mathra Das, Tahsil Chunian, District Lahore. As far back as 1940 she embraced Islam and married Dr. Alvi, who is presently the District Health Officer, Sheikhupura. At the time of partition, the other members of the petitioner's parental family consisted of her mother, Mst. Durga Wati, her brother Gurbakhsh Lai Sareen and a maternal uncle. In consequence of the disturbances, which accompanied the partition, Mst. Durga Wad also embraced Islam and took up residence with the petitioner in Muzaffargahb. Gurbakhsh Lal Sareen and his maternal uncle, however, migrated to India with the result that their movable and immovable property was taken over by the Rehabilitation Department and allotted to refugees. Shortly after that, Gurbakhsh Lai Sareen came back to Pakistan and embraced Islam, adopting the alias of Abdul Ghafoor Sareen. On the 29th of January 1948, he applied to the Additional Custodian of Evacuee Property, West Punjab, for restoration of his property under section 15 of Ordinance VII of 1947. On the next day, he moved another application under section 8 of Ordinance VII of 1947 for a declaration that he was not an evacuee. Both the petitions were consolidated and disposed of by Mirza Abdur Rab by an order dated the 5th of July 1948. The learned Additional Custodian held that as Gurbakhsh Lai Sareen admitted that he, along with his non‑Muslim tenants had on account of disturbances fled to India, there was no difficulty in finding that he was an evacuee; but he allowed the other application under section 15 and directed that one‑third of the joint property, which belonged to Gurbakhsh Lai Sareen, be restored to him on the condition that he will not eject the refugees who have already been settled on his land and will not dispose of any part of his property without the permission of the Custodian of Evacuee Property. The further claim by Gurbakhsh Lai Sareen that his mother had gifted her one‑third share in the joint property to him and he was, therefore, owner of two‑third share in it was, however, rejected as no cogent proof of the gift was produced before the Additional Custodian.

3. Aggrieved by the decision of Mirza Abdur Rab, Gurbakhsh Lai Sareen came up in revision before the Custodian of Evacuee Property, which was confined to the claim under the gift from Mst. Durga Wati alone and it was contended that the original registered gift‑deed was placed before the learned Additional Custodian but he refused to admit it into evidence or to make any reference of it in the impugned order. The conten tion prevailed with the learned Custodian of Evacuee Property, who accepted the revision petition and increased the share of Gurbakhsh Lai Sareen in the joint Hindu family property.

4. On some date, which is not apparent on the record of this case, Gurbakhsh Lai Sareen applied to the Custodian of Evacuee Property for permission to sell 150 acres of land situated in village Kot Mathra Das in order to sustain himself. In the meantime, he entered into an agreement with the petitioner to sell to her two squares of land for Rs. 20,000, out of which he received an advance of Rs. 16,000 and undertook to receive the balance of the sale‑price at the time of the execution and registra tion of the sale‑deed after the Custodian of Evacuee Property had given sanction for the proposed alienation. The aforementioned application of Gurbakhsh Lal Sareen was accepted by the Custodian of Evacuee Property and he was permitted to sell 150 acres of land by an order dated the 28th of May 1949. It appears that before this order was made, or soon after that, Gurbakhsh Lai Sareen again migrated to India so that the execution of the sale‑deed was not completed by him. In 1949, one Ilam Din, a refugee, who had been settled. on a part of land abandoned by Gurbakhsh Lai Sareen, applied to the Custodian for a declaration that the latter had become an evacuee. An inquiry was instituted and in spite of repeated efforts made by the petitioner and her mother the appearance of Gurbakhsh Lai Sareen before the learned Custodian could not be secured. In the result, the learned Custodian declared him an evacuee by his order dated the 24th of November 1951.

5. On the 2nd of January 1955, the petitioner moved an application before the Deputy Custodian of Evacuee Property under section 16 of Ordinance XV of 1949 for permission to get the sale‑deed of the land in dispute executed in her favour by her brother, Gurbakhsh Lai Sareen. The petition was dismissed on the 23rd of May 1956 by Mr. Aziz Ahmad ; but, on appeal preferred from that order, Mr. Abdul Majid Asghar, Additional Custodian of Evacuee Property found that the transaction between the petitioner and her brother was bona fide and since the agree ment of sale had been executed before the 26th of July 1949 and a sum of Rs. 16,000 already received by the vendor, he gave permis sion to Gurbakhsh Lal Sareen to execute the sale‑deed of the land covered by the agreement of sale, dated the 6th of May 1949 and in case of his default allowed the petitioner to file a suit for specific performance of the said agreement. The allottees of the land in dispute were parties to the proceedings before the Deputy Custodian of Evacuee Property, but for some unknown reasons they were not impleaded in the appeal before the Additional Custodian. They, however, came to know of the order ; dated the 8th of April 1958, and moved a revision petition against it in the Court of the Custodian, Evacuee Property. The Rehabilitation Department followed suit and both the petitions were taken up together and dismissed by the learned Custodian on the 3rd of July 1958.

6. On the 31st of July 1958, Gurbakhsh Lal Sareen, who had been specially called from India, executed sale‑deed of the disputed land in favour of the petitioner, which was registered before the 5th of August 1958 and the balance of the sale price was received by him in the presence of the Sub‑Registrar.

7. Dissatisfied with the transfer, the allottees of the land purchased by the petitioner filed Writ Petition No. 561/11 of 1958 in this Court asking for a declaration that the agreement of sale, dated the 6th of May 1949, and the registered sale‑deed, dated the 31st of July 1958, executed in pursuance thereof be declared illegal and inoperative on the grounds: ‑ (i) that the full consideration for the sale had has not been paid before the 26th July 1949, as required by Clause 4 (a) of section 1 of the Pakistan Administration of Evacuee Property Act (XII of 1957) ; and (ii) that the application seeking confirmation of the agree ment was barred by time and showed mala fides of the parties. The petition was dismissed by Shabir Ahmad, J., on the 15th of June 1959, with the following observations: ‑ "The learned counsel for the petitioners urged that as at the time when the sale took place the notification issued by the Central Government in April 1956 was in force and according to that notification it was incumbent for the completion of the sale that the entire sale price should have been paid not later than the 26th of July 1949 and as in the present case this was not the case the sale could not have been effected in spite of the order of the Custodian which, it was urged, was, in the circumstances, illegal. At the time when the Custodian gave his permission for the sale of the evacuee land, an earlier notification issued by the Central Government under section 15 of Ordinance XV of 1949 was in force and according to this notification all that was necessary was that at least eighty per cent of the sale price should have been paid at the time of the execution of the agreement to sell. This condition had been complied with and it appears to me that the mere fact that the registration of the deed of sale took place after the notification issued by the Central Government in the year 1956 does not invalidate the sale which was clearly entered into after the previous sanction of the Custodian. It is not denied by the learned counsel for the petitioners that the whole of the sale price was paid by respondent No. 1 and it is, therefore, clear that equities are entirely in favour of respondent No. 1, who, as I have mentioned already, embraced Islam in the year 1940, and has ever since lived in Pakistan with her husband who is employed in Government service as a doctor. I have held already that the sale suffers from no legal defect but even if it did suffer from any such defect, in view of the fact that the equities are all in favour of respondent No. 1, I would not have issued the writ prayed for because the transaction was entirely genuine and made with no ulterior motive."

8. Not contended with the dismissal of the said petition, the allottees reagitated their claim in Letters Patent Appeal No. 103 of 1959, in which it was, for the first time, contended that under section 16 (i) of Ordinance XV of 1949 a sale made with the previous approval of the Custodian required further consideration under section 17 of that Ordinance. The appeal was dismissed in limine by Kayani, C. J. and A R. Khan, J. on the 25th of September 1959 on the ground that the previous order of the Custodian was saved by section 48 of Ordinance XV of 1949. The genuineness of the agreement of sale, dated the 6th of May 1949 or the sale‑deed itself, was not challenged in the Letters Patent Appeal, which is apparent from the concluding sentence of their Lordships: "The transaction is perfectly genuine, it is not denied, the appeal is dismissed".

9. As a last resort, the allottees applied for the certificate to file further appeal in the Supreme Court in Civil Miscellaneous No. 587/S of 1959, which on better counsel prevailing was subsequently withdrawn and dismissed.

10. The woes of the petitioner, however, did not come to an end. On the 18th of April 1960, the allottees moved another application before the Custodian of Evacuee Property for review ing the order of his predecessor, dated the 8th of April 1958. The new ground raised before him was that the agreement of sale, dated the 6th of May‑949, was a forged document. The petition was dismissed on the 10th of September 1960 on the ground of its being premature as in the opinion of the learned Custodian the sale‑deed executed by Gurbakhsh Lal Sareen in pursuance of the permission of the Additional Custodian was to be brought before him for further confirmation under section 20 of Act XII of 1957. As a postscript to this order it was observed that the land covered by the sale‑deed continued to be evacuee property. It was now the turn of the petitioner to apply to the learned Custodian for reviewing his earlier order on the ground that the aforementioned observations, which operated as substantive orders, did not fall within the purview of the proceedings initiated by the allottees. The interpretation of the learned Custodian that a sale which had been completed with his permission under section 19 required further permission under section 20 was also challenged as incorrect. The petition was disallowed by order, dated the 5th of December 1960, and, in addition to it, the learned Custodian of Evacuee Property suo moto revised the order of the Additional Custodian of Evacuee Property, dated the 8th of April 1958, permitting the Gurbakhsh Lal Sareen to execute the sale‑deed of the land in dispute in favour of the petitioner.

11. The present petition by Mrs. Alvi is directed against the aforementioned two orders of the learned Custodian of Evacuee Property, dated the 10th of September 1960 and 5th of December 1960.

12. In substance the case of the petitioner is that after the Custodian of Evacuee Property had given his approval in writing to the sale of the land in dispute in her favour and the sale‑deed completed in accordance with the terms of that order, the transac tion became final and it was not necessary to obtain further confirmation of the sale by the Custodian under section 20 of Act XII of 1957. Apart from the interpretation of sections 19 and 20 of the said Act, reliance was also placed in this behalf on the order of this Court in the Letters Patent Appeal in which it was held that further confirmation of the Custodian was not required. Lastly, it was contended that on merits the Custodian of Evacuee Property had found the agreement of sale dated the 6th of May 1949 a genuine transaction and on its basis sale‑deed dated the 31st of July 1958 was executed in lieu of which the petitioner paid a further sum of Rs. 4,000 to Gurbakhsh Lal Sareen. The Custodian and his successor‑in‑office were, therefore, in law debarred from going behind the order approving the agreement of sale and permitting the sale‑deed to be executed.

13. In reply, the allottees maintained that section 19 of Act XII of 1957, which corresponds to section 15 of Ordinance XV of 1949, under which permission was granted to Gurbakhsh Lal Sareen to sell the land in dispute to the petitioner, imposed general restrictions on alienation of both evacuee and non‑evacuee property, but section 20 specifically applied to evacuee property and, therefore, no transfer of such property can take effect unless the Custodian of Evacuee Property confirms it after It has been completed in accordance with his previous approval in writing. In support of this proposition, reliance was placed on a Division Bench authority of Karachi Bench of this Court in Ibrahim v. Second Sub‑Judge, First Class, Karachi and others (P L D 1959 Kar. 131).

14. The principal question which falls for determination in this petition is whether an alienation which has taken place with the previous approval in writing of the Custodian of Evacuee B Property under section 19 of Act XII of 1957 also falls within the ambit of section

20. It will be advantageous to reproduce the provisions of the two sections at this stage: - "

19. Prohibition of transfers of property generally.‑The Central Government may, by notification in the Official Gazette, declare that in such area and for such period as may be specified in the notification, the transfer of any property or class of property, or the creation of any right or interest therein or encumbrance thereon, shall be prohibited, and where any such declaration has been made, no such transfer or creation shall be made during the period in the area except with the previous approval in writing of the Custodian : Provided that nothing in this section shall prevent the transfer of movable property of which an evacuee has immediate physical possession." "

20. Restriction on transfer by evacuees.‑(1) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the first day of March 1947, by or on behalf of an evacuee, or by or on behalf of a person who has become an evacuee after the date of such creation or transfer, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the Custodian. (2) An application for confirmation of such creation of a right or encumbrance or transfer as aforesaid may be made to the Custodian within the prescribed period by any party thereto, or by any person claiming under or lawfully authorised by such party. (3) The Custodian shall hold a summary inquiry into the application in the prescribed manner, and‑ (a) shall reject the application if the creation or transfer‑ (i) was or is prohibited under any law for the time being in force, or (ii) was not or is not covered by a certificate from the pres cribed income‑tax authority to the effect that no objection exists to such creation or transfer ; (b) may reject the application if he is of opinion that the creation or transfer‑ (i) was not or has not been entered into in good faith or for adequate consideration, or (ii) ought for any other reason not to be confirmed. (4) If the application is not rejected under subsection (3), the Custodian may confirm the creation or transfer either uncon ditionally or subject to such terms and conditions as he thinks fit to impose."

15. Plain reading of the two sections shows that while section 19 prohibits future alienations of evacuee property, section 20 covers past alienations of such property. It is clear from the fact that the prohibition is to take effect from the date of the declaration to be made after the coming into force of the Act. Any sale which has taken place before the issue of notifica tion is, therefore, the concern of section 20 which corresponds to section 16 of Ordinance XV of 1949. In the two earlier West Punjab Ordinances and Act VII of 1948 there were somewhat similar provisions regarding alienations of evacuee property on and after the 1st of March 1947, but it is not necessary to refer to them because our purpose‑ is only to show that until the enactment of Ordinance XV of 1949 there was no provision of law prohibiting future alienation of property, whether evacuee or non‑evacuee. Section 15 of Ordinance XV of 1949 was apparently enacted to meet a new and distinct situation. The provision that no aliena tion of evacuee property made after the 1st of March 1947 will take effect unless confirmed by the Custodian of Evacuee Property was primarily enacted to safeguard the interest of evacuees, whereas section 15 was calculated to secure the Interest of large number of refugees who had in the meantime migrated to West Pakistan from all over India. By this time, it had been realized that there was no question of evacuees coming back to Pakistan to settle here permanently or of Muslim refugees going back to their hearths and houses in India. It, therefore, became necessary to prohibit all future alienations of evacuee property to settle refugees on it. To achieve this end, section 15 of Ordinance XV of 1949 was first brought on the statute book on the 15th October 1949. This historical background will show that sections 15 and 16 of Ordin ance XV of 1949 were not enacted together to supplement the provisions of each other in the sense that they were to apply simultaneously to an alienation of evacuee property. As seen above, provisions corresponding to section 16 were incorporated in the evacuee laws from the very beginning while section 15 came Into the field much later and in altered circumstances. It was admit ted before us by the departmental representative that notifications issued from time to time by the Central Government under section 15 of Ordinance XV of 1949 and section 19 of Act XII of 1957 have been confined to evacuee property only. Thus the subject‑matter of sections 19 and 20 of Act XII of 1957 being identical, the principle of a special provision of law prevailing over a general provision, to which appeal was made by the learned counsel for the respondents, is inapplicable to this case. Apart from it, we see no sense in providing that an alienation of evacuee property should be blessed twice by the Custodian.

16. It is also worth noticing that while prohibiting future alienations of evacuee property the legislature expressly conferred on the Custodian power to permit a transfer by giving previous approval in writing in his discretion. Was it intended that a sale completed In accordance with the terms of the permission accorded by the Custodian will not take effect unless it was again confirmed by him ? It has to be borne in mind that under the "previous approval in writing" of the Custodian parties have changed their positions. One has parted with his property and the other with his money. To invest the Custodian with the power to withhold his consent after according permission and to render the sale nugatory, which has been brought in conformity with his directions, will, to say the least, offend against all accepted notions of civi lized laws. Unless there is a compulsion contained in express and unambiguous words used in a statute, Courts will hesitate to ascribe to its author an intention or an object which will result in manifest injustice and such would be the result if we accepted the interpretation of sections 19 and 20 of Act XII of 1957 by the learned Custodian of Evacuee Property in the two impugned orders. The proposition canvassed by the learned counsel for the respondents and relied upon by the learned Custodian, no doubt, finds support from the decision of this Court in Ibrahim v. Second Sub‑Judge, First Class, Karachi and others, but with due respect we find ourselves unable to agree with the decision in that case. As there is no discussion on the construction of sections 19 and 20 of Act XII of 1957 in the judgment of our learned brothers (Munshi and Khamisani, JJ.), it is not possible to examine their view in any detail and we must content ourselves by expressing our respectful disagreement with them.

17. As a result, we allow this petition and direct that a writ of certiorari be issued to quash the impugned orders of the Custodian, Evacuee Property, Lahore, in Review Application No. 34 of 1960, (Taj Din and others v. Mrs. Razia Begum Alvi) and Review Application No. 73 of 1960, (Mrs. Razia Begum Alvi v. The Rehabilitation Authorities).

18. The petitioner shall also have her costs In this Court from the respondents. A. H. Petition allowed.