P L D 1975 Lahore 1270 (PLP)

MUSIITAQ HUSSAIN, J.‑On 15‑8‑1970 Captain Shafiq Ahmad Khan filed a petition under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 before the Deputy Custodian of Evacuee Property, Lahore praying for a declaration that property No. 1/1072‑A consisting of a residential house in Koocha Kulkhanan, Chowk Rang Mahal, Lahore is not evacuee property arid that he is its owner. He also prayed for an injunction against the Rehabilitation and Settlement Authority respondent No. I and Lala Ballaki Shah evacuee respondent No. 2 not to dispose of the property in auction or otherwise. He alleged that Mian Nur Din son of Mian Allah Jawaya was his father- in‑law and owner of the property in dispute besides some other property also; that the said Mian Nur Din made an oral gift of the property in his favour in 1937 whereupon he got his name entered in the column of ownership in the record of the Lahore Municipal Corporation. He also alleged that he had been in legal possession of the house since 1937 and had been dealing with the same as its full-fledged owner. He was aggrieved by an "illegal" action of respondent No. 1 whereby the name of one Lala Ballaki Shah, an evacuee, was entered in the records as owner of the property in dispute. He had previously moved the Deputy Settlement Commissioner for redress who had directed him to approach the Deputy Custodian. It was admitted in the application that the property was shown in the register of evacuee properties and that its occupants have paid rent to the Department up to the year 1957. He prayed that a declaration may be given that the property in dispute is not evacuee property and he is its owner. The present petitioners were not impleaded although they are admittedly in occupation of the property and had been so for a long time before the application tot he Custodian was moved. Captain Shafiq Ahmad Khan produced nine witnesses in all and examin ed himself as P. W.

9. By his order dated 27‑1‑1972 the learned Deputy Custodian found that there was no force in the contentions made by Captain Shafiq Ahmad Khan and rejecting the application he held that the property is evacuee property, which should be disposed of as such. Captain Shafiq Ahmad Khan filed an appeal (No. 9 of 1972) against this order of the Deputy Custodian, which was accepted without costs by an order passed on 21‑6‑1973 and the order of the Deputy Custodian referred to above was set aside. Siraj Din, Mst. Mumtaz Begum, Qamar Din, Muhammad Anwar, Msi. Aisha Bibi and Mst. Zarina Begum petitioners Nos. 1 to 6 felt aggrieved by this order and filed Writ Petition No. 742/R of 1973 praying for a declara tion that the aforesaid order of the Custodian dated 21‑6‑1973 is illegal and without jurisdiction. They alleged that they were in continuous occupation of the property from a time much before Independence. Petitioner No. 1 submitted that he had filed a LH Form for the transfer of the property in dispute, which had not yet been disposed of. Mst. Mumtaz Begum was the widow of a similar applicant Taj Din (deceased). Qamar Din and Muhammad Anwar had also similarly applied for the transfer of the property. Mst. Aisha Bibi and Mst. Zarina Begum petitioners Nos. 5 and 6 daughters of the late Fazal Din, who had also filed an application in the LH Form claimed to be applicants on its basis. They contended that they had thus a locus stand! to challenge the order for they were interested in the property and the Custodian did not have the jurisdiction to dispose of the same without giving them an opportunity of being heard. They also claimed that the application, which culminated in the Cus todian's order was barred by time and no application under section 5 for condonation of the delay having been presented the Custodian was devoid of all jurisdiction in the matter and could not have granted the declaration sought. It was asserted that the property had been treated as evacuee property before 1‑1‑1957 and the same could not be declared non‑evacuee property in 1973. The petition was contested vehemently by the respondent, who contended that it was not open to the Custodian to have declared a property evacuee property after the 1st of January 1957 although it had not been so treated before that date. The basis of this contention of course was that the property had not been so treated before the relevant date. Section 3 of Act XII of 1957 provides that‑ "(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 1957, shall be treated as evacuee or as the case may be, as evacuee property, on or after the said date." The expression "treated as evacuee property" fell for determination in more than one case and in Qutab Ali v. Custodian, Evacuee Property (P L D 1964 S C 58) it was ob served at page 62:‑ "The expression 'treated as evacuee property' may perhaps be equated with a formal adjudication of its nature by an order of the Custodian or its actual user, by him or by the Rehabilitation authorities on the assumption that it was evacuee property, for purposes authorized by the law. On this view such properties would also seem to fall outside the scope of subsection (1)." A Full Bench consisting of five Judges observed in Syed Ali 1qtidar Shah Dara and others v. Custodian, Evacuee Property (P L D 1964 Lah. 274): "In my opinion their meaning is that the mere vesting of the property in the Custodian is not sufficient, the competent authorities must have done some overt act in respect of some specific property, namely, that any particular person or any particular property must have been treated by a competent authority as evacuee or evacuee property. This view is strengthened by the fact that in another part of the enactment the Legislature has specifically provided a remedy to the parties, who feel aggrieved from the treatment of their properties as evacuee." The criterion for treatment of a property as evacuee property is, therefore, an ~ overt act done by the Custodian or the Rehabilitation Department with regard) to it. The word 'overt' has been defined in the Shorter Oxford English Dictionary, Vol. 11, at page 1407 as "open, not closed; uncovered 2, open to view or knowledge, evident, plain unconcealed, not secret." Under the same heading an overt act as used in law has been set out as‑"an outward act, such as can be clearly proved to have been done . . . . ." Jahan Khan, U. D. C. in the office of the Deputy Settlement Commis sioner (Records) appeared as P. W. 8 before the Deputy Custodian and made a categorical statement from the record that rent from the tenants of this property was being realised by the Rehabilitation Department from 15‑12‑1951 onwards. They were still paying rent in 1959. This is a fact which has not been denied by Captain Shafiq Ahmad Khan respondent, who appeared as a P. W. in support of his own case and admitted that the tenants of the property started paying rent to the Rehabilitation Department in 1951. To wriggle out of the situation Captain Shafiq Ahmad Khan submitted that the tenants were paying rent both to him and the Rehabilitation Depart ment. It is a preposterous statement to make; it is not often that the tenants pay the rent to the landlord at all and it passes all comprehension that a tenant would be prepared to pay rent to two different persons claiming as landlords over the years. Captain Shafiq Ahmad Khan failed to produce any rent deed and he did not have any counterfoils of the receipts, which he deposed to have given to his tenants on receipt of rent. He admitted that he did not pay any taxes to the Municipal Corporation nor did he receive any bills. There is, therefore, no difficulty in coming to the conclusion that the Rehabilitation Department was realising rent of the property in dispute from the tenants. Realisation of rent is certainly not a secret act. It is something open which can be proved and which in fact has been proved in this case. It was, therefore, certainly an overt act. Charging of rent for some property by a person puts him in the position of a landlord and by doing so in the present case the Rehabilitation Depart ment, therefore, did perform an overt act for years, which proved that the property was being treated as evacuee property by it, because the Rehabilita tion Department does not charge rent for non‑evacuee property. The bar of section 3 of the Administration of Evacuee Property Act sought to be pressed into service by the respondent is, therefore, not available to him. Section 3‑A of the Evacuee Property Act, 1957 provided that‑ "3‑A.‑(I) Notwithstanding anything contained in this Act, no person or property treated as evacuee or as evacuee property immediately before the commencement of the Pakistan (Administration of Evacuee Proper ty) (Amendment) Act, 1958, shall be declared to be non‑evacuee or, as the case may be, non‑evacuee property, on or after such commence ment. (2) Nothing in subsection (1) shall apply to any evacuee in respect of whom or to any evacuee property in respect of which any action has commenced or any proceedings are pending immediately before such commencement as aforesaid for treating such evacuee as non‑evacuee or such evacuee property as non‑evacuee property." This section was inserted by the Pakistan (Administration of Evacuee Pro perty) (Amendment) Act, 1958. By section 2 of this Act section 3‑A was inserted after section 3 in the Pakistan (Administration of Evacuee Property) Act, 1957. This was one of several amendments introduced by this Act. Pakistan (Administration of Evacuee Property) (Amendment) Ordi nance XXII of 1959 repealed this amending Act by section

7. Section 6‑A of the General Clauses Act provided that:‑ "6‑A.‑Where any Central Act or Regulation made after the Commence ment of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then. unless a different intention appears, the repeal shall not affect the continuance of any such amend ment made by the enactment so repealed and in operation at the time of such repeal." Reference was made to Azam Ali v. Custodian of Evacuee Property (P L D 1968 Lah. 148) wherein it was held by a Division Bench of this Court that :‑ "In our view, `treated' in the sense in which it is used in section 3‑A means that the character of the property must have been determined by the Rehabilitation authorities or the Custodian by a judicial process after notice to the owner and the determination in this regard must be a final determination so that the affected party has a right to represent against the characterization of a property as an evacuee property and to prove that it is not so, and the matter be closed on him only if after a proper inquiry and adjudication the issue is finally disposed of one way or the other. In a contested case of this nature, the final adjudi cation in these matters would obviously be done only by the Custodian. To interpret the word `treated' in any other sense and to regard any declaration or any casual act of the Rehabilitation authorities, in regard to the property as the `treatment of that property' to be evacuee property, would entail the risk of divesting real owners of their pro perties, amounting to expropriation, without any legal basis or moral justification, and the Legislature cannot in fairness be burdened with that intention." We are afraid we do not see eye to eye with the learned Judges, who decided this case and we need not give any detailed reasons for this view as the expression "treated as evacuee property" has been the subject‑matter of interpretation by the Supreme Court in Qutab Ali v. Custodian of Evacuee Property which has already been referred to above and which unfortunately was not noted by their Lordships who disposed of Azam Ali's case. We have already held above that the property was treated as evacuee property and to quote A. S. Faruqui, J. in Abdul Majid v. Custodian, Evacuee Property (P L D 1962 Kar. 306)‑ "the plain effect of section 6‑A of the General Clauses Act is that the repeal of an amending Act does not affect the continuance of the amendment, which, in fact, becomes a part and parcel of the main Act." In the present case no intention to the contrary has been expressed in the Ordinance of 1959, therefor, section 3‑A would remain on the Statute Book despite the repeal of the amending Act of 1958 which introduced it. This then was an effective bar in the way of the learned Custodian in declaring the property in dispute to be non‑evacuee property since it had been treated as evacuee property before the appointed day. There is no doubt that the petitioners in this writ petition were tenants in the property in dispute and it had been held in Master Chiragh Din v. Abdul Hakeem and another (P L D 1974 Lah. 374) that‑ "I would hold that the appellant had no interest merely on account of his being a tenant of the property, which could give him the right to challenge its transfer or to have its legal character determined so long as such an action does not affect his interest as a tenant which extends only to possession and enjoyment of the property in accordance with law." That was a case in which Chiragh Din, in respect of whom the observations quoted above were made, was trying to have the property declared as evacuee trust property, because, so he said, the possibility of his continuing as a tenant under the Chairman of Evacuee Trust Property were brighter than if it were declared as evacuee property and allotted to somebody else. The petitioner there consequently did not claim any right more than that of continuing as a tenant. In the present case the petitioners are interested in having the proper ty transferred to themselves and subject to the determination of the eligibility by the Settlement Department they do not seem to have a bad case for it. The petitioners in this case, therefore, are not just tenants of the property, It may be pointed out that the question whether the property had in fact been treated as evacuee property before the 1st of January 1957 is a jurisdic tional fact in this case in so far as the jurisdiction of the learned Custodian to deal with the property depended upon the determination of this question. It needs no reiteration that "the doctrine of jurisdictional fact is that `if a certain state of facts has to exist before an inferior tribunal for jurisdiction, they can enquire into the facts in order to decide whether they have jurisdiction, but cannot give themselves jurisdiction by a wrong decision upon them'; and if they reach a wrong conclusion the rights of the parties against each other are not affected .... and the party who apparently obtains an order from it in reality takes nothing. The whole proceeding is . . . . . coram non judice" (Jurisdiction and Illegality by Rubinstein, page 214). The finding of the learned Custodian in this matter was, therefore, not conclusive qua this Court. We con; equently accept this petition with costs and declare that the impugned order of the learned Custodian is without lawful authority, and of no legal effect. K. B. A. Petition accepted.