P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑This petition for having the order of the Custodian of Evacuee Property, West Pakistan and Karachi dated the 31st of May 1961, quashed by means of a writ of certiorari has been presented by Mrs. Doreen Barkat Ram, the order impugned by her being to the effect that a compromise entered into between her and some relatives of her late husband Barkat Ram be treated as binding on the petitioner. The claim of the petitioner is that Mr. Justice Masud Ahmad, who, acting as the Custodian of Evacuee Property, West Pakistan, passed the impugned order, had no jurisdiction to pass it, and It Is on this ground that she prays for the vacation of his order. The petition is opposed by the Custodian of Evacuee Property, West Pakistan, and the Chief Settlement and Rehabilitation Commissioner, West Pakistan, who are the two respondents in this petition.

2. Briefly stated, the relevant facts are these. On the 10th of August 1945, the petitioner married Barkat Ram, son of Hari Ram, who was a son of the late Sir Gangs Ram. Barkat Ram had three brothers, namely, Jalsu Ram, Tej Ram and Shiv Ram, and the four brothers and their father constituted a joint Hindu Family governed by Hindu Law. The marriage between the petitioner and Barkat Ram was solemnised under the Special Marriage Act (III of 1872) and the husband died about a year later on the 29th of September 1946. On the 23rd of March 1947, the petitioner lodged a suit for administration of the property of her husband, Barkat Ram. In this suit she alleged that as the marriage between her and her late husband, Barkat Ram, was solemnised under the Special Marriage Act (III of 1872) the joint Hindu family, which her husband, his three brothers and their father constituted, came to an end as far as her husband was concerned, because under section 22 of the Special Marriage Act, 1872, the husband of the petitioner ceased to be a member of that joint Hindu family and became the sole owner of the property that would have fallen to his share, if there had been a partition of the joint Hindu family property. Claiming to be entitled to one‑fifth of tire joint Hindu family property of her father‑in‑law and his four sons, the petitioner had instituted the above‑mentioned suit for administration. The suit was still pending when British India was divided into two Dominions, namely, Pakistan and India. The father and brothers of Barkat Ram, who were defendants in the suit instituted by the petitioner, left Pakistan, but were represented by a counsel before the Court which was dealing with the suit. On the 10th of July 1948, this suit for administration of the property of late Barkat Ram was com promised by the parties, and as a result, the petitioner was to get some money and some shares in companies. The authorities competent to deal with evacuee property treated the entire joint family property as evacuee property, whereupon the petitioner presented a petition under section 18 of the Pakistan (Administra tion of Evacuee Property) Ordinance, 1949 (Act XV of 1949), on the 28th of April 1955, for getting a declaration that one‑fifth of the property, the whole of which had been treated as evacuee property, belonged to her and could not, on that ground, be treated as evacuee property. The Deputy Custodian did not accept the claim of the petitioner and held by his order dated the 5th of July 1956 that she was entitled to no more than Rs. 1,87,000 out of the estate left by her late husband. The petitioner lodged an appeal against the order of the Deputy Custodian which was accepted on the 13th of August 1957 by the Additional Custodian Evacuee Property. Against this order of the Additional Custodian, the Rehabilitation Department presented an application for revision before the then Custodian, the late Mr. Muhammad Jan, but this petition for revision was lodged in on the 4th of July 1958, by an order reported as P L D 1958 (Custodian)

33. The finding of Mr. Muhammad Jan acting as Custodian of Evacuee Property, West Pakistan, was that the compromise, on the basis of which the suit lodged by the peti tioner for administration of the property of her late husband had been terminated in the form of a decree of a Civil Court, could not be acted upon because the decree was a nullity. The reason for this finding was stated to be that the West Punjab (Administration of Evacuee Property) Act, 1948, did not permit Courts to deal with suits relating to evacuee property. Mr. Muhammad Jan held, however, that the petitioner was not entitled to one‑fifth of the property that had belonged to the joint Hindu family but only one‑tenth of it. After the decision of the Deputy Custodian dated the 5th of July 1956, which has been mentioned above, Ordinance XV of 1949 was replaced by the Pakistan (Administra tion of Evacuee Property) Ordinance of 1956, which was replaced by the Pakistan (Administration of Evacuee Property) Act (XII of 1957) and the future course of litigation was governed by those laws. In exercise of the powers vesting in it in that behalf by the relevant law, the Central Government presented a petition before the Tribunal set up under the law for having it held that the property, which had been held by Mr. Muhammad Jan to be non evacuee property, was in fact evacuee property. It appears that the Tribunal suggested to the representative of the Rehabilitation Department who appeared before them for the Central Govern ment in that reference that the better and easier course was to have the order of Mr. Muhammad Jan dated the 4th of July 1958 reviewed by the then Custodian (Mr. Justice Masud Ahmad). This advice appears to have been followed and a petition for review was presented before Mr. Justice Masud Ahmad. He held that the petition presented by the Rehabilitation Department was not maintainable as it had been presented long after the period of limitation prescribed for such petitions had expired, but he reviewed, of his own accord, the order of Mr. Muhammad Jan and held that justice of the case required, that the petitioner should not get more than Rs. 1,87,000 out of the property left by her husband. It is this order passed by Mr. Justice Masud Ahmad, acting as the Custodian of Evacuee Property, West Pakistan that the petitioner wants this Court to quash in the exercise of its writ jurisdiction.

3. It is necessary to have a clear picture of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, under which the impugned order was passed, and it is, therefore, reproduced here for ready reference. The section reads as follows: ‑ "

43. Appeal, revision and review.‑(1) Any person aggrieved by a final order under section 20, section 22 or section 23 passed by a Deputy or Assistant Custodian may prefer an appeal to the Custodian. (2) The appeal shall be presented in such manner and within such time as may be prescribed. (3) The Custodian to whom an appeal is preferred under sub section (1) may dispose of it himself, or make it over for disposal to an Additional Custodian. (4) The Custodian may, at any time, either of his own motion or on application made to him within the prescribed period in this behalf call for the record of any proceeding for the administration of evacuee property, which is pending before or has been disposed of by an officer subordinate to him, including an Additional Custodian, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may pass such order in relation thereto as he thinks fit Provided that the Custodian shall not pass an order revising or modifying any order affecting any person without giving such person and the Rehabilitation Authority an opportunity of being heard. (5) The Custodian may dispose of a case under subsection (4) himself or, except when it relates to an order of an Additional Custodian, make it over to an Additional Custodian for disposal. (6) The Custodian or Additional Custodian may on applica tion made to him in this behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order or fn order passed by his predecessor‑in‑office on any ground whatsoever as the justice of the case may require Provided that no final order passed on or before the seven teenth day of November 1956 declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed. (7) Subject to the foregoing provisions of this section, any order made by the Custodian, or Additional, Deputy or Assistant Custodian shall be final and shall not be called in question in any Court." Mr. Justice Masud Ahmad, acting as the Custodian of Evacuee Property, West Pakistan, passed his order under sub section (6) of section 43, reproduced above. He disposed of the matter by means of the last paragraph of his order dated the 31st of May 1960, which reads as under: "So far as the Custodian's power to review a previous order is concerned, the only limitation imposed on him is that no order passed prior to the 17th November 1956 declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed by him. This proviso was omitted by an amending Act of 1958, but that Act was repealed by an Ordinance of 1959. It is a debatable question as to whether the repeal made by the amending Act of 1958 is saved by the provisions of section 6‑A of the General Clauses Act, but assuming that it is not so saved and the proviso is no longer part of the subsection, as the order in question was passed after, and not before, the 17th November 1956, there is nothing to prevent me from reviewing it. The subsection makes it quite clear that such an order can be reviewed by the successor‑in -office of the Custodian on any ground whatsoever as the justice of the case may require. In my opinion, the justice of this case requires that the respondent should get only the fruit of the compromise decree which she had obtained in the year 1948 and nothing more because that compromise was entered into by her willingly with the family of which her deceased husband was one of the members. With all due respect to my learned predecessor, I am of opinion that he should have exercised the power conferred by subsection (3) of section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, and accepted the compromise decree instead of granting the respondent a declaration that she owned 1/10th share in the joint family property. I, therefore, in exercise of the powers conferred by subsections (4) and (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, and subsection (3) of section 41 of the Act, hereby, set aside the two orders dated the 13th August 1957 and the 4th July 1958, passed by the Additional Custodian and the Custodian of Evacuee Property, respectively, restore the order dated the 5th July 1956, passed by the Deputy Custodian of Evacuee Property Lahore, and give my approval to the compromise decree passed in favour of the respondent, according to which she would be entitled only to a sum of Rs. 1,87,000 from the property belonging to the joint Hindu family consisting of Lala Hari Ram and his sons. If out of this money, so e payments have already been made to the respondent, she would be entitled only to the balance out of the income or sale proceeds of that joint family property, if and when the same comes to the hands of the Custodian."

4. Learned counsel for the petitioner urged that the decree based on the compromise which the petitioner entered into with the defendants in the suit which she had brought for adminis tration of the property left by her husband was a nullity because at the time when it was passed the West Punjab (Protection of Evacuee Property) Act, 1948,was in force and no suit regarding evacuee property was competent. In reply the contention of Major Ishaq Muhammad Khan, Settlement Commissioner (Legal), who appeared for the two respondents, was that the order of the Civil Judge whereby he accepted the compromise between the parties to the suit‑for administration of the property of Barkat Ram could not be deemed to be a decree and was, therefore, not hit by the provisions of the West Punjab (Protection of Evacuee Property) Act, 1948. In my opinion, it is unnecessary for the purposes of this petition to determine which of these two rival contentions is correct, because the fate of the petition depends on whether or not the impugned order passed by Mr. Justice Masud Ahmad on the 31st of May 1960 reviewing the order of Mr. Muhammad Jan dated the 4th of July 1958 could be considered to be a valid order in the eyes of law.

5. I have mentioned In an earlier part of this order, and this will also be clear from the last paragraph of the order of Mr. Justice Masud Ahmad dated the 31st of May 1960, that the only reason on which he reviewed the order of Mr. Muhammad Jan was that he felt that the justice of the case demanded the acceptance of the compromise. Major Ishaq Muhammad Khan contended that as Mr. Justice Masud Ahmad, acting as the Custodian of Evacuee Property, West Pakistan, had, in his order dated the 31st of May 1960 held that justice demanded that the acceptance of the compromise be binding on the petitioner, his order was in accordance with subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, and no question of quashing it by issuing a writ of certiorari could arise. If the contention of Major Ishaq Muhammad Khan to the effect that under subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, the powers of the Custodian are as wide as they were held by Mr. Justice Masud Ahmad, acting as a Custodian, to be, is accepted, it is obvious that the order attacked by the petitioner could not be deemed to be without jurisdiction and no question of issuing a writ would arise. If, however, it be found that the impugned order transgressed the limits prescribed by subsection (6) of section 43 of the Act, ft will have to be held that the order of Mr. Justice Masud Ahmad dated the 31st of May 1960 was without jurisdiction. But whether or not a writ would be issued would naturally depend on the consideration of the question whether or not the extraordinary power of this Court to issue a writ should be exercised.

6. It appears to me that Mr. Justice Masud Ahmad, acting as the Custodian of Evacuee Property, was not right when he held that the power of a Custodian to review an order passed by any of his predecessors was unlimited or was limited only to this extent that the Custodian could pass any order that he felt the justice of the case required. The power that he was exercising, was that of review and though the provisions of Order XLVII of the Code of Civil Procedure which deal with review by Courts governed by that law are not strictly applicable to the exercise of the powers of review by the Custodian, reference to that provision of the Code of Civil Procedure would not be without justification, and indeed one finds that in a decision given by the Supreme Court of Pakistan which is reported as Sahibrai v. Custodian of Evacuee Property, Karachi (P L D 1957 S C (Pak.) 63), it was remarked that the` provisions of Order XLVII. Civil Procedure Code, were not entirely inapplicable to the exercise of power of review by a Custodian of Evacuee Property. Major Ishaq Muhammad Khan tried to meet the decision of the Supreme Court by saying that it was given under section 36 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, which section was in material regard different in terms to section 43 of the Pakistan (Administration of Evacuee Property) Ordinance. 1957, in so far as the powers of review given to the Custodian under the Ordinance of 1949 were not as wide as those given to that officer under the Act of 1957. It is true that provisions relating to review are not precisely the same in the Ordinance of 1949 and the Act of 1957, but even so the remarks of their Lordships of the Supreme Court in Sahibrai v. Custodian of Evacuee Property, Karachi, to the effect that the provisions of Order XLVII, Civil Procedure Code, were not Inapplicable to proceedings for review before the Custodian of Evacuee Property are fully as applicable to cases arising under the Act of 1957 as they were to cases arising under the Ordinance of 1949. This does not, however, justify the inference that it is only under the circumstances mentioned in Order XLVII of the Code of Civil Procedure that a Custodian of Evacuee Property can exercise his powers of review. I am, therefore, of the opinion that the question whether or not the Custodian of Evacuee Property acted with jurisdiction when passing an order of review must be considered In the light of the provisions of the law which confer the powers of review on him.

7. The main point that requires determination Is whether the fact that the Custodian of Evacuee Property considers that a certain order should be passed as the justice of the case demands it was sufficient to bring the case within the ambit of subsection (6) of section 43 of Act of 1957. Having given the matter my anxious consideration, I have reached the conclusion that no order can be considered to be just for the purposes of subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, if the thing which according to the Custodian of Evacuee Property was demanded by the justice of the case offends against the provisions of any law applicable to it. I say that because I am clear in my mind that for the purposes of what is done by a Tribunal set up by a State a thing cannot be said to be just if it contravenes a provision of law which governs it. If, therefore, what is directed to be done by the Custodian offends against the provisions of the law that applies, it could not be considered to be just for the purposes of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, however just the Custodian himself might have considered it to be. It need hardly be mentioned that the review of an order means substituting therefore another order either because the previous order was wrong or because the latter order was more appropriate in the circumstances of a particular case. As far as I am aware, powers of review given to no Tribunal are as wide as those given to a Custodian of Evacuee Property under section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, but from that Inference cannot be drawn that the Legislature which brought that Act on the statute book had conferred on the Custodian the power to ignore ‑ any law which he wanted to ignore, because if that had been the intention of the Legislature, it would have been expressed in very clear terms. Conferment of powers which were claimed to have been conferred on the Custodian of Evacuee Property was a thing so much out of the ordinary that it cannot be inferred to have been done unless such an inference was unavoidable.

8. It was contended by Major Ishaq Muhammad Khan that the plain meaning of the language in which subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, is couched was that the Custodian had the power to review any order of any of his predecessors‑in‑ office or of himself and substitute therefore any order which in his view the justice of the case required. I am not prepared to accept this contention which can lead to results that would be startling. It could not be urged that in the exercise of his ordinary jurisdiction the Custodian of Evacuee Property can pass an order which in opposed to law. But if ‑ the contention of Major Ishaq Muhammad Khan were to be accepted, a Custodian could after passing the order, which is in accord with law, could in the purported exercise of review jurisdiction pass an order which contravenes the law of the land in all possible respects. The only reasonable interpretation that can be put on the words o`t section 43, whereby a Custodian of Evacuee Property has been given power to pass an order which the justice of the case may require, is that the order he passes on review should not offend against the law of the land. A number of orders could be passed under the law in any case, and when subsection (6) of section 43 of Act of 1957 confers on the Custodian of Evacuee Property the power to pass on review of an order passed by himself or by any of his predecessors‑in‑office any order that justice of the case may demand, the intention clearly is that though the order which had to be reviewed was correct according to law, it could be set aside in exercise of the power of review conferred by subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, subject to the condition that a law which was otherwise binding did not get contravened by the order passed in the purported exercise of the powers of review. That this is the meaning of subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957 (Act XII of 1957), is also clear from the fourth sub section of the section which empowers the Custodian to pass any order in the exercise of his revisional jurisdiction. This sub section empowers the Custodian to pass any order that he thinks ht and this power to pass an order that the Tribunal having power to pass orders In revision thinks fit is conferred by almost all laws which confer powers of revision. Can anyone for a moment think that in the exercise of his power of revision a Custodian of Evacuee Property can, after sending for the record of a case to satisfy himself about the legality or propriety of an order passed by one of his subordinates, say that though the order passed by his subordinate was legal and the only proper order in the circumstances of the case, he would pass another order because he considered it fit to pass It? The answer to this question will not be given in the affirmative by anyone. I am, clear in my mind that the powers of review conferred on the Custodian of Evacuee Property by subsection (6) of section 43 oil the Pakistan (Administration of Evacuee Property) Act, 1957, are like the powers of revision conferred on him by subsection (4) of that section limited to passing orders the passing of which they law does not prohibit. It is inconceivable that the law is that though a Custodian of Evacuee Property cannot set aside in exercise of his powers of revision an order passed by one of his subordinates because he would thereby be violating the law of the land, he can set aside the same order if it had been passed by his predecessor‑in‑office or himself.

9. It was next contended by Major Ishaq Muhammad Khan that though Mr. Justice Masud Ahmad had not said in his impugned order that Mr. Muhammad Jan had erred when he said in his order dated the 4th of July 1958 that the compromise on which the decree in the suit for administration of her husband's property brought by the petitioner was based was valid in law, it should be presumed that he had given that finding. I find it difficult to ascribe to anyone, especially someone who deals with rights and liabilities of persons, words that he has not said. In his impugned order Mr. Justice Masud Ahmad acting as the Custodian of Evacuee Property has said that the powers of the Custodian while passing an order reviewing an order of his predecessor‑in‑office or his own were subject only to the restriction that the order he wants to pass should be one which be thinks that the justice of the case requires and does not appear to have considered the question whether the compromise he was validating could be validated. If he had wanted to say in his impugned order that the compromise entered into and the decree based on it were valid in spite of the provisions of the West Punjab (Protection of Evacuee Property) Ordinance, 1948, or that an invalid compromise or decree could be acted upon by a Custodian when he exercises powers of review under sub section (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, I have no doubt that he would have said so, but as he has not said so, I will be treading on a very dangerous ground if I said that he has said that.

10. The next contention of Major Ishaq Muhammad Khan was that before this Court issues a writ, it has to come to the conclusion that the impugned order of Mr. Justice Masud Ahmad was against law, i.e., that the compromise and the decree based on the compromise were invalid and could not have been acted upon. I do not agree with this contention and I am of the view that a writ can issue if the Court be of the view that the b Custodian had passed an order under the belief that he had more powers than be actually possessed. Whether or not the order of Mr. Muhammad Jan dated the 4th of July 1958 was wrong would' be for the Custodian who wants to exercise powers of review to decide. It is clear that the order passed by Mr. Muhammad Jan as Custodian on the 4th of July 1958 could not be declared to be invalid by this Court because he had dealt with a question which was in exclusive jurisdiction of a Custodian to decide and I do not see how the validity or otherwise of that order cats he adjudicated upon by this Court when considering whether or not a writ should issue with regard to an order by which the order of Mr. Muhammad Jan was reviewed by another Custodian. While considering the question that arises in this Court one has to determine only whether the powers of review could be exercised.

11. What I have said above will have made it clear that my finding is that Mr. Justice Masud Ahmad passed his impugned order dated the 31st of May 1961 in exercise of a jurisdiction which he did not possess or in other words he dealt with the case on the incorrect assumption that a Custodian, when exercising powers of review under subsection (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, could pass any order that he felt was demanded by the justice of the case and was not bound by laws or rules applicable to the matter. I am clear in my mind that he acted on wrong premises and thereby acted without jurisdiction. A writ of certiorari can issue from this Court when jurisdiction which it did not possess has been exercised by a Tribunal of special jurisdiction, and as no valid ground has been made out for non‑exercise of its powers by this Court, I would issue a writ of certiorari to the effect that the impugned order was without jurisdiction and could not be acted upon. I might add that the petitioner also prayed for a writ of mandamus directing the Settlement authorities not to acquire or dispose of the property of the Late Sir Ganga Ram till the share of the petitioner in that property is determined and partitioned. The prayer for a writ of mandamus is connected with the main f prayer, and as the relief sought by means of the writ of mandamus flows from the writ of certiorari which has been issued, I would also issue the writ of mandamus prayed for. In the result, I would accept the petition with costs. ANWARUL HAQ, J.‑I agree. A. H. Petition accepted.