1997 PLP 1852 (CLC)

6. We have given due consideration to the arguments raised at the Bar. The moot point involved in this case is as to whether the civil Court had the 10 jurisdiction to entertain the suit for possession filed by the appellant who had purchased the proprietary rights from the provisional owner through a registered sale‑deed when he is not putting up any hostile title to the Custodian or challenges the evacuee character of the property. The provisions of section 18 of the Rehabilitation Act which were discussed in Fazal Karim's case are reproduced as under:‑ Jurisdiction of Civil Courts barred.‑‑‑(1) Subject to the provisions of sections 13 and 42 of the Pakistan (Administration of Evacuee Property) Act, 1956, no order passed by a Rehabilitation Authority under this Act shall be called in question in any Civil Court in any suit, appeal execution application or other proceeding. , (2) All lands, buildings, business or undertakings or any movable property found therein, which have been taken over by any Rehabilitation Authority under the provisions of this Act, shall be exempt from attachment or sale in execution of a decree of a Civil Court or in pursuance of an order passed by any Court. (3) .................................... " The provisions contained in section 16 of the Pakistan (Administration of Evacuee Property) Act, which are also relevant to the case in hand is also reproduced below:‑ Exemption from legal process.‑‑(1) Property which has vested in, or of which possession has been taken by, the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court or any other authority, and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority, and the Custodian shall not be divested or dispossessed of such property by operation of any law for the time being in force. (2) Upon the commencement of this Act, any such legal process as aforesaid subsisting immediately before such commencement shall cease to have effect and all evacuee property in custody of any Court, or receiver, guardian or other officer or person appointed by it, shall, upon delivery of the same being called for by the Custodian, be delivered to the Custodian. NNNN(3) Nothing contained in the foregoing subsection shall‑‑ (a) prevent a Civil Court from ordering specific performance of any agreement to sell or exchange immovable evacuee property where such agreement has been approved by the Custodian, or a Registering officer from registering a deed of sale or exchange relating to such property where a certificate under section 20 has been granted by the Custodian; or (b) affect any power conferred on the Central Government by or under any law for the time being in force to requisition or acquire property, and it is hereby declared that if by or under such law or any other law for the time being in force a like power is conferred upon or delegated to a Provincial Government, the Provincial Government may exercise the same in relation to evacuee property with and only with the previous approval of the Central Government and subject to such directions as the Central Government may at any time see fit to give. "

7. A close perusal of the above provisions would reveal that the intention of the Legislature was to protect the powers of the Custodian with regard to the evacuee property and make it immune from the interference by any authorities including the Courts of law; in other words, the orders of the Rehabilitation Authorities or the Custodian were protected from the scrutiny or interference by any other authority executive, quasi judicial or judicial. The Legislature never intended to oust the jurisdiction of civil Court in cases which do not fall in the exclusive jurisdiction of the Rehabilitation Authorities or the Custodian or in cases which do not interfere in an order passed by a Rehabilitation Authority or A the Custodian under the relevant law. Thus, the ouster of jurisdiction in case of evacuee property is limited only so far as it may adversely affect the powers of the Rehabilitation Authorities and the Custodian in respect of the control, supervision, management or utilisation of the evacuee property by the said authorities. Therefore, if an order is passed by a Civil Court which is not in the exclusive jurisdiction of the Rehabilitation Authorities or the Custodian, such order cannot be challenged as being violative of section 18 of the Rehabilitation Act or section 16 of Pakistan (Administration of Evacuee Property) Act, merely because it was passed in respect of evacuee property. While dealing with the question as to whether the provisions contained in section 16 of the Pakistan (Administration of Evacuee Property) Act, would oust the jurisdiction of the Civil Courts to pass a decree for possession in pre‑emption suits in case of sale by (i) temporary allottee, (ii) quasi permanent allotment and (iii) permanent settlement, the Supreme Court of Pakistan in a number of cases which were disposed of by a consolidated judgment reported as Haji Sultan Muhammad v. Muhammad Sadiq (PLD 1973 SC 347), observed at page 361 as under:‑ "On a parity of reasoning I am of the opinion that even section 16 of the Pakistan (Administration of Evacuee Property) Act, in spite of the wide terms in which it is couched, did not intend or constitute any bar to the enforcement of the right of pre‑emption by a civil suit as the relief sought in the pre‑emption suit is merely the substitution of the pre‑emptor for the vendee without, in any manner, subjecting the property to any legal process such as is contemplated by section 16, ibid nor does it amount to the divesting or dispossession of the Custodian from the property concerned. The corpus of the property remains evacuee and a successful pre‑emption suit in a Civil Court would merely bring about a change by substituting the pre‑emptor for the vendee as the holder of the rights which were sold to the vendee by the quasi‑permanent allottee. The decree for pre‑emption which matures for execution after the full pre‑emption money is paid by the pre‑emptor in Court, can be put into execution for possession of the pre‑empted property by the pre‑emptor the mere fact that the decree also involves possession of the property does not, in any manner, disturb the administrative control of the Custodian over that property, the preservation and protection of which, without interference by any outside agency, appears to be the sole object of section 16." Following observation was made at page 363:‑ " .... As already stated above by reference to the decision of this Court in Syed Abdur Rashid, these rights constitute real property and are at par with rights of occupancy tenancy. If these rights constitute real property in the nature of an occupancy tenancy and are heritable and transferable, there is no difficulty in reaching the conclusion that they constitute a 'separate entity' by themselves, apart from the corpus of the property from out of which they have been created. After the creation of these interests, although emanating from the parent stock of the evacuee property, they are not treated or deemed to be treated as evacuee property by the relevant authorities. They assumed a distinct entity of their own which must be maintained with regard to all rights and liabilities arising in respect of them. The Custodian ceases to have any administrative control over those rights, although textually and notionally they be called in name as evacuee property being the off shoot of the corpus of the property which undoubtedly remains evacuee until such time as it is acquired by the Government to form part of the compensation pool. " Following the view of the Supreme Court, identical observations were made in case reported as Pirla v. Noora (PLD 1976 Lahore 6) at page 8:‑ "The first question raised in this appeal is that the land in dispute being evacuee property, no suit could be entertained in respect of it by the Civil Courts, it having been so held by a Full Bench of the High Court of West Pakistan at Lahore in Ali Muhammad v. Mahmoodul Hassan (PLD 1968 Lah. 329). The need for elaborate arguments on this issue was obviated by the Supreme Court having meanwhile declared the law in Sultan Muhammad v. Muhammad Siddique (PLD 1973 SC 347), wherein it was observed at page 361 that:‑ 'In my view, a pre‑emption suit qua the sale of rights created in favour of a confirmed allottee in evacuee property made by the latter to a stranger merely seeks the eviction of that stranger from the property and his replacement by the pre‑emptor and does not involve the issuance of any legal process against the evacuee property itself to come within the mischief of section 12 of Ordinance XV of 1949 or section 16 of Act XII of 1957.' The West Pakistan High Court ruling having been thus reversed and there being no dispute in the present case that the allotment of the land had been confirmed in favour of the vendors the dictum quoted above is on all fours with the facts of this case and there is no difficulty in holding that the objection as to the jurisdiction of the Civil Courts to entertain the suit as the property in dispute is evacuee property does not hold any water. "

8. It is evident from the above observations that the jurisdiction of the Civil Court is not ousted even if the property remains evacuee, provided the facts alleged and the relief sought are not of such a nature which are prejudicial B to the interests of the Custodian or the Rehabilitation Authorities or are hit by the mischief of any provisions of Rehabilitation laws. The bar of Civil Court would be attracted only to the case where the exercise of such jurisdiction offends against the principles indicated above.

9. So far as the observations of this Court in Fazal Karim's case, referred to above, are concerned, it may be stated that the facts of that case are distinguishable from the case in hand; in that case the question of bar to the civil Court to entertain the suit with regard to the evacuee property between the parties was not at all involved; the orders of the Rehabilitation Authorities were challenged by filing a writ petition in the High Court on the ground that as the property did not remain evacuee after the transfer of provisional proprietary rights to the allottee, the Rehabilitation Authorities had no jurisdiction to pass an order of ejectment of the old tenants. In other words, the stand was taken derogatory to the interests of the Custodian that the property was no more evacuee property whereas in view of sections 18‑A and 18‑B of the Administration of Evacuee Property Act, the transfer of proprietary rights was of a temporary nature and, thus, the property remained evacuee property even after the transfer.of provisional proprietary rights to the allottees. Thus, the observations in the aforesaid case were not only obiter dicta as the same were not directly involved in that case but were given on different facts and in different circumstances. In the light of what has been stated above, we accept the appeal, set aside the orders of the District Judge and that of the High Court and remand the case back to the District Judge to decide the appeal on merits after hearing the parties. In view of the circumstances of the case no order is made as to the costs. M.B.A./210/S Appeal accepted.