P L D 1960 (W (PLP)

KAYANI, C. J.‑

The petitioner, Rais Ghazi Muhammad of Bhong in Rahimyar Khan District, seeks a writ of certiorari against the Custodian of Evacuee Property, setting aside the proceedings by which he had reviewed an order of his predecessor under a pro vision of law which corresponds to section 20 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), confirm ing a sale of agricultural land in favour of the petitioner.

2. The land in question was 878 acres in area and is alleged to have been sold to the petitioner by two intending evacuees, Harnam Singh and his brother, Sher Amir Singh, on the 6th of June 1947. The consideration for the sale was a loan of Rs. 60,000 due to the petitioner from the evacuees, on the strength of a pend ing suit and Rs. 10,000 paid in cash.

3. On the 1st of December 1949, the petitioner applied to the Custodian of Bahawalpur State for confirmation of the sale, but his application was rejected. He filed a review petition on the 17th of November 1950 and this was accepted on the 2nd of December 1953. The Rehabilitation Department went in review against this order on the 22nd of March 1957, but the review petition was dismissed on the 23rd of November 1957.

4. Meanwhile, on the 11th of November 1956, an application was made to the Deputy Custodian at Bahawalpur by three persons that the evacuees had created in their favour an adhlapi tenure in respect of 171 kanals out of the present land which had the effect of converting them into owners of half of that land. In other words, they claimed ownership of about 10 acres of land. The Deputy Custodian referred the case to the Additional Custodian who, in his turn, referred it to the present Custodian who, on examining the case, thought that the transaction was not genuine and issued a notice to the petitioner to show cause why the order of his predecessor confirming the sale in the petitioner's favour should not be set aside. That order has now been set aside on the 16th of October 1959, though the application of the adhlapi tenants which gave rise to these proceedings had not been disposed of. It is against this order that the petitioner seeks a writ of certiorari on the following grounds: (1) There can be only one order in review under section 43 of Act XII of 1957 and that order having been passed by the Custodian on the 2nd of December 1953 in the petitioner's favour, the Custodian could not exercise his powers of review a second time. (2) The proviso to section 43 aforesaid confines the power of review to an order passed on or after the 17th day of November 1956. (3) Section 3 of the Act prevents any property from being treated as evacuee property if it was not so treated before the 1st day of January 1957.

5. Although these issues of law can be disposed of shortly on a reference to the law itself, we consider it proper, in view of the fact that the counsel appearing for the Custodian has based his reasoning on the discovery of fraud, that we should give a brief history of the case. We have obtained this history from the original file which the Custodian's counsel has very kindly placed at our disposal. On the 3rd of November 1947, Sher Amir Singh made an application to the Deputy Custodian of Rahimyar Khan stating that he and his brother, Harnam Singh, had to pay Rs. 60,000 to Rais Ghazi Muhammad, petitioner, who had a case pending against them in the Court of the District Judge and that since it was not possible for them to make payment of such a large sum in cash, they were handing over (havala kar diya hae) their landed property in seven villages, which are named in the application. It was prayed that this deal should be "sanctioned" in favour of Rais Ghazi Muhammad. The Deputy Custodian sent the application to the Tahsildar of Sadiqabad for recording the statements of the parties. On the 8th of November 1947, Sher Amir Singh made a statement before the Naib Tahsildar repeating the contents of the application but adding the following proviso: "So long as he (Rais Ghazi Muhammad) does not realise from us the aforesaid amount, he will remain in possession of the property. If we make payment to him earlier, we will take back the property." Rais Ghazi Muhammad also made a statement that he had heard Sher Amir Singh's statement and that this was correct.

6. On the 20th of December 1947, the Deputy Custodian passed an order sanctioning the "sale", stating at the same time that he had discussed this matter with the Revenue Minister and that he was passing this order because there was no legal obstacle in the way of doing so.

7. As we have stated earlier, the petitioner applied for con firmation of the sale by the Custodian of Bahawalpur on the 1st of December 1949. At this stage perhaps it became necessary for the petitioner to produce the evacuees in evidence. Instead of appearing personally, they sent two affidavits giving in detail the history of the previous litigation between them and Rais Ghazi Muhammad and adding that in June 1947 they had "sold" their lands in the villages aforesaid to Rais Ghazi Muhammad for Rs. 70,000, including Rs. 60,000 due from them and which were the subject‑matter of the litigation. The affidavits further explain ed that since the deponents have not been able to obtain a permit for a journey to Pakistan, they were sending their statements by affidavits. These affidavits bear the seal of a Magistrate of the second class in Delhi.

8. On the 19th of August 1950, Harnam Singh made an application to the High Commissioner for Pakistan in India, repeating the substance of the affidavits and mentioning also a document "(stamp)" which had been executed to witness the sale. Harnam Singh prayed in the application that the Bahawalpur Government be informed that the transaction of sale had been completed between him and his brother, on the one hand, and the petitioner, on the other, and that the lands in question should not be treated as evacuee property. On the same day the High Com missioner wrote the following letter to the Prime Minister of Bahawalpur State:‑-- "This representation was presented to me by Sardar Harnam Singh who has been identified by Chowdhury Radha Kishen, Advocate of Bahawalpur State. The applicant is anxious that no harm should be done to the interest of Rais Ghazi Muhammad Khan, the vendee of the estate which was sold by him to the former. He is very anxious that you may kindly look into this matter personally."

9. We have seen that although the Custodian of Bahawal pur originally rejected the application for confirmation, it was accepted by his successor in review on the 2nd of December 1953. By that time two other affidavits, both executed by Harnam Singh on the 25th of July 1953, one sent to the Custodian‑General, Bahawalpur, and the other to the Prime Minister of Bahawalpur, had been received. In these affidavits Harnam Singh said : "That in case Sardar Sher Amir Singh lands confirmation of sale filed by Sardar Rais Ghazi Muhammad of Bhong, Bahawalpur State, I had been submitting affidavits duly attested by Magistrate and also attested by High Commissioner for Pakistan in India for falseness of the case." He ended them with saying: "The case is bogus and must be cancelled." No action appears to have been taken on these affidavits because they are obviously in the interest of the deponent, who, by establishing a claim to property in Bahawalpur could establish a corresponding claim to property in India.

10. We have not so far mentioned the sale deed "(stamp)" to which reference was made by Harnam Singh in his application to the High Commissioner. This deed purports to have been executed on the 6th of June 1947 and relates to the property in dispute. It has been discredited largely on the ground that if it had existed in June 1947 it would have been produced before the Naib Tahsildar in November of the same year when Sher Amir Singh was making his statement before that officer. It will be recalled that the sale deed in question was neither produced nor mentioned on that occasion.

11. The whole case appears to have been viewed in the light of this apparently delayed sale deed, and because this was false, the statement made by Harnam Singh before the Naib Tahsildar, the affidavits sent by the evacuee in 1950 and the application which Harnam Singh made to the High Commissioner have all been disregarded. What may have happened is that when the petitioner or his agent asked the evacuees to come over and support the sale before the Custodian, the evacuees demanded a further payment of money and agreed to sign the affidavits on payment of Rs. 10,

000. In order that the transaction should be placed beyond doubt, they executed a sale deed also, foolishly dating it back to June 1947. The word "sale" had not been used originally when Harnam Singh first appeared before the Tahsildar and the language of his statement makes it likely that he thought it possible at the time that he would be able to come back, pay the money and resume ownership of the land.

12. The Custodian was also of the opinion that the consi deration of the sale was inadequate, but the material on which he had based this conclusion is largely speculative. He has assumed that most of the land is irrigated by canal water and because there is no proof of this fact on the record, it must be irrigated land.

13. However, it is not for us to say whether the finding of the Custodian on merits is correct. W a have mentioned the entire material on the file with a view to showing that this was the material on which the previous Custodian confirmed the sale in favour of the petitioner and that this was the material on which the present Custodian: set aside his predecessor's order. In other words, there was no new material which could be said to have led to the discovery of fraud. We have found it necessary to mention these facts because it was argued by the Custodian's counsel that notwithstanding what is stated in section 3 of the Act, if a fraud is discovered after the 1st of January 1957, the Custodian should be able to re‑open the transaction. Since there was no discovery of any fresh material, the argument is not available.

14. Now, as regards the legal objections, our opinion is that the Custodian's power under section 43, subsection (6), to "review his own order or an order passed by his predecessor‑in‑office on any ground whatsoever as the justice of the case may require" and "at any time" is very wide and does not confine him to only one' occasion. If something requiring further attention comes to his notice and if the justice of the case so requires, he ought to be able to review his order or that of his predecessor a second time.

15. As regards the proviso to subsection (6), it says that "no final order passed on or before the 17th day of November 1956, declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed'", thus confining itself to cases where the question was whether a certain property was or was not evacuee property, and this is the subject‑matter of section 22 only. Under that section, any person claiming any right or interest in any property treated by the Custodian as evacuee property may refer a claim to the Custodian on the ground that the property is not evacuee property, or that his interest in the property has not been affected by the provisions of the Act. The Custodian may, on holding a summary inquiry and taking evidence, accept or reject the application. Section 22 does not expressly state that the Custodian shall "declare" the property to be evacuee or non evacuee. But since that is the only section under which the Custo dian arrives at such a decision, the proviso to subsection (6) of section 43 should be regarded to be confined only to situations where the Custodian determines the evacuee or non‑evacuee character of the property, and should not be applied to situations where, as in this case, the Custodian has merely confirmed a sale made by an evacuee. The question that he was deciding was not whether the property was evacuee: it was whether a genuine sale took place of property which was undoubtedly evacuee.

16. The argument based on section 3 of the Act, however, is formidable. The section is to the following effect :‑ "3. (1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treat ed as evacuee or, as the case may be, as 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 (c) 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."

17. The sale in the present case having been confirmed by the Custodian on the 2nd of December 1953, the property to which it related was undoubtedly not treated as evacuee property "imme diately before the first day of January 1957", i.e., on the 31st of December 1956. Subsection (1) of section 3, therefore, is applicable, and the question is whether subsection (2) grants any exemption. As regards clause (a) of subsection (2), it was argued for the Custodian that since on the 11th of June 1956 an applica tion had been made by three adhlapi tenants claiming ownership and since that application was pending on the 1st of January 1957, clause (a) was applicable. This is correct but the adhlapi tenants claimed only 101 acres out of 878 and since by reason of the Land Reforms the petitioner has already surrendered 478 acres of the disputed land the objection has no practical effect.

18. As regards clause (b), we do not see how we can accept the learned Custodian's arguments used in his judgment that "it applies to the case of all persons other than the original owners of property as, for instance, transferees, trespassers and agents." On its plain language it applies only to a person whose authority or right to occupy, supervise or manage any property has not been G accepted or approved by the Custodian. In the present case, however, the petitioner's authority to manage the property was accepted by the Custodian when he confirmed the sale. The Custodian's counsel relies on a press note which he thought supported his case. The press note in question states that provi sion in clause (2) has been "made in law to uncover concealed evacuee property occupied by persons whose authority to occupy them has not been approved." There may have been evacuee properties which had not come to the notice of the Custodian and in relation to which, therefore, he could not have expressed his F intention. In respect of these properties he can still decide whether or not they are evacuee properties. The press‑note, therefore, does not convey any intention to interpret clause (2) in the manner suggested by the learned counsel.

19. On this ground we hold that the Custodian's order suffers from error of law which is patent on the face of the record. We accept the petition and issue a writ of certiorari, setting aside the order of the Custodian dated the 16th of October 1959 and restoring the order dated the 2nd of December 1953. A.H. Petition accepted.