P L D 1960 (W (PLP)

S. A. HAQ, J.‑--The Central Government has made a reference under section 43‑A of the Pakistan (Administration of Evacuee Property) Act, XII of 1957, to the Evacuee Property Inquiries Tribunal, challenging an order dated 24th February 1958 passed by Mr. Muhammad Bakhsh A. Memon, Custodian of Evacuee Property, Southern Zone, West Pakistan, at Karachi, whereby the Petitioner and the other members of the petitioner's Joint Hindu Family and their property were declared non‑evacuee. The order of the learned Custodian was passed in two matters which had been consolidated for hearings namely: Review Application No. 652 of 1951 and Appeal No. 82 of 1952. The review application had been preferred by the Rehabilitation Department against an order dated 2nd June 1950 passed by Mr. Akbar Hussain, the then Custodian of Evacuee Property, by which he had declared the petitioner and others and their property as non‑evacuee, while the appeal had been filed by the petitioner and the members of his joint Hindu Family against an order dated 26th January. 1952 passed by Syed Irshaduddin, Assistant Custodian of Evacuee Property for the Districts of Tharparkar and Mirpurkhas, declaring the petitioner and others as evacuees. 2. On receiving this reference from the Central Government the Tribunal has issued notices to the petitioner and twenty‑two others. It is contended that the Tribunal has no jurisdiction to proceed in the matter and it is prayed that writs of certiorari, mandamus and/or prohibition be issued quashing the reference of the Central Government and the notices issued by the Evacuee Properties Inquiries Tribunal and also restraining the respondents from directly or indirectly interfering with the posses sion of the properties or any part thereof of the Joint Hindu Family of the petitioner. 3. Two main grounds have been put forward by Mr. Sharifuddin, the learned counsel for the petitioners, to support the contention raised in the petition (a) That at no time respondents 7, 8, 9, 10, 11, 12, 13, 14, 15 and 22 mentioned in the referring order of the Central Government, were ever treated as evacuees or subsequently declared as evacuees and, therefore, their case is not covered by section 43‑A, which defines the jurisdiction of the Tribunal, and (b) that the order of the learned Custodian dated 24‑2‑58 is merely an order refusing to review his predecessor's order dated 2‑6‑50 and by affirming that order the learned Custodian did not grant any declaration about the non‑evacuee status of the petitioners or their properties, with the result that section 43‑A of the Pakistan (Administration of Evacuee Property) Act cannot be invoked. 4. The first contention put forward by Mr. Sharifuddin is frankly conceded before us by Mr. Mirza appearing for the respondents. As these petitioners have never been declared evacuees, nor non‑evacuees at any subsequent stage, it is clear that their case is not covered by subsection (2) of section 43‑A and, accordingly, the Evacuee Property Inquiries Tribunal has no jurisdiction to examine their case. We therefore issue a writ of prohibition directing the Evacuee Properties Inquiries Tribunal not to proceed against these petitioners. 5. As regards the remaining respondents and their properties we find that the order of the learned Custodian dated 24‑2‑58, is an order which clearly falls within the purview of subsection (2) of section 43‑A as it is an order passed on or after the first day of January 1953 declaring an evacuee or evacuee property to be a non‑evacuee or non‑evacuee property as the case may be. The learned Custodian has not merely confined himself to affirming the previous order of his predecessor dated 2‑6‑50 but has given a categorical declaration to the appellants before him, which may be advantageously reproduced in the learned Custodian's own words, with which he concluded his order in question: "The result is that the orders of Mr. Akbar Hussain dated 2‑6‑50 will stand and the respondents‑appellants are again declared as non‑evacuee and their property as non‑evacuee property." A perusal of the detailed order recorded by the learned Custodian makes it clear that he examined the merits of the whole case and did not simply proceed on the ground that the Assistant Custodian's order dated 26‑1‑52 was a nullity for want of juris diction. This being the case, we cannot accept Mr. Sharifuddin's contention that the Custodian's order dated 24‑2‑58 is not a declaration of the kind which attracts the provisions of sub section (2) of section 43‑A of the Pakistan ('Administration of Evacuee Property) Act, 1957 as amended. The result is that we hold that the reference was competent and that the Tribunal has jurisdiction to proceed with the same in respect of these petitioners and their properties. 6. The petition therefore succeeds only in respect of the respondents 7, 8, 9, 10, 11, 12, 13, 14, 15 and 22 mentioned in the referring order, and is dismissed with regard to the remain ing petitioners. In the circumstances of the case there will be no order as to costs. K. B. A. Petition partly accepted.