P L (PLP)

CORNELIUS, C. J.‑‑This judgment relates to three Civil appeals, viz :‑ (1) The Lakshmi Insurance Co., Ltd. v. Nawa‑i‑Waqt Publica tions Ltd. and others Civil Appeal No. 53 of 1963. (2) Ahmad Mukhtar and others v. The Nawa‑t‑Waqt Publica tions Ltd. and others Civil Appeal No. 55 of 1965 and (3) The Custodian of Evacuee Property v. The Nawa‑i‑Waqt Publications Ltd. and others Civil Appeal No. 56 of 1965. A clear statement of the facts of this cast is almost by itself sufficient for reaching a decision in each of these appeals. Immovable property of high value is involved, which was the property of the Lakshmi Insurance Company Limited, whose office was situated at Lahore in the pre‑partition he question which arises is as to whether the decision of the High Court of Lahore in a revision moved before it under section 43‑A of the Pakistan (Administration of Evacuee Property) Act, 1957, delivered by a Division Bench on the 11th July 1960, that the property is question is evacuee property, is tenable in law. There are two decisions of the Custodian at Karachi to the effect that the registered office of this company had been shifted to a place now in India from Lahore prior to the 15th August 1947. The first is by Mr. Akbar Hussain, dated the 28th January 1950, in an order referring the case to the Central Government under section 3 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. for a final determination of the status of the company. The following extract from this order of reference may be reproduced below with advantage:‑ "It is clear from the evidence that is on record already that the Lakshmi Insurance Company is not evacuee property as it had its Head Office at Jullunder before the 15th August 1947. The appellant has filed a certified copy of the Resolution for the transfer of the Head Office from Lahore to Jullunder dated 27‑5‑

47. Notice was duly given to the Registrar, Joint Stock Companies under section 72 of the Companies Act and notify the transfer of the Head Office. Later the Head Office was transferred from Jullunder to Delhi for which confirma tion of the resolution for transfer of the Head Office by the High Court was. being necessary in the case of transfer from one Province to another. No such confirmation was required in the case of the transfer from Lahore to Jullunder as both were in the same Province before the Partition. It is for these reasons that the Custodian for West Punjab held the Firm to be non‑evacuee." The matter came up again before the Custodian in 1954, when the Company moved a revision against an order of a Deputy Custodian purporting to treat the Company's property as evacuee property. The Custodian Mr. Mansoor Alam quashed the action of the Deputy Custodian by an order dated the 16th September 1954, from which the following extract is relevant :‑ "The applicant is the Lakshmi Insurance Co., Ltd. It appears that prior to Partition the company had its registered office at Lahore but by a special resolution of an extraordinary general meeting of the shareholders passed on 11th June 1947, and confirmed on 27th June 1947 the registered office of the company was shifted from Lahore to Amritsar. Notice of the change was duly served on the Registrar, Joint Stock Company Lahore as required by law. On 5th November 1949 the Assistant Custodian Karachi held the company as an evacuee and against his decision the company went in appeal to the then Custodian Mr. Akbar Hussain, who by an order dated 28th January 1950, referred the case to the Central Govern ment under section 3 recommending that the company may 4e declared as non‑evacuee." At Lahore as well, a question of the status of the Company :was raised and a Deputy Custodian on the 26th of August 1948, made an order to the following effect :‑ "It is accordingly declared that the Lakshmi Insurance Co. Limited is not an evacuee property. This order is, however, subject to the condition that the refugees who have been allotted various flats and shops in building belonging to the applicant's company shall not be ejected without the per mission of the Deputy Custodian and that these refugee tenants shall be allowed a reduction of 33/1/3 per cent. on the basic rent. Actually this applicant has himself offered this." It will be noted that in this order the ground advanced which ‑was accepted by the Deputy Custodian was that the Company shad never ceased to function in Lahore except for a small period when all offices in Lahore had been closed on account of the .disturbances. The ground of transfer of the registered office out of Pakistan was not available under the West Punjab law of that period. On the 13th October 1948, the Custodian of Evacuee Property, Lahore, confirmed the above order of the Deputy Custodian. The question came up again before the Custodian of Evacuee Property in West Punjab in a petition for revision against an interlocutory order passed by the Deputy Custodian at Lahore on the 28th October 1954, calling upon the Company to produce .evidence that their registered office had been transferred from Lahore to a place in India before the 15th August 1947, and to show whether the majority of the shares of the Company belonged ‑to evacuees or not. By an order dated the 1st June 1955, the Custodian accepted the revision petition, and directed the Deputy Custodian of Evacuee Property at Lahore "to answer the references made to him and say that the property of the Lakshmi Insurance Company Limited is not evacuee property". The order proceeded on the basis :‑ (1) that the Custodian at Karachi had definitely found in his order of the 28th January 1950 (referred to above) that the Head Office of the Company was transferred to India before ,the 15th August 1947 ; and (2) that on a reference by Mr. Akbar Husain, the Central Government had issued an order of the 4th November 1950, .declaring "the Lakshmi Insurance Company to be non evacuee", and in consequence thereof the Custodian at Karachi had declared by order dated the 14th November 1950, that ,the Company's property was not evacuee property. The Custodian observed that "we should not go behind the findings of the Central Government or the Custodian of Evacuee Property, Karachi, Sind and Baluchistan". It should be mentioned that the Lakshmi Insurance Company operated in West Punjab as well as in the area of Karachi, Sind and Baluchistan as a single entity, and a declaration with reference to the Company made at either place would be a declaration of its status in respect of both places. Section 43‑A was inserted in the Pakistan (Administration of Evacuee Property) Act, 1957, by an amendment of September.. 1958, and reads as follows:‑ "43‑A.‑(I) if in any case in which a Custodian has, on or after the first day of January 1953, declared any evacuee or any evacuee property to be a non‑evacuee or, as the case may be, non‑evacuee property, the Central Government or the Government of West Pakistan considers it necessary so to do, it may, notwithstanding anything in this Act or in any other law for the time being is force send, within six months of the commencement of the Pakistan (Administration of Evacuee Property) (Amendment) Act, 1958, or within three months of such declaration, whichever be later, the record of the case to the High Court for the purpose of satisfying itself as to the legality or propriety of the order .passed by the Custodian, and the High Court may pass such order in the case as it may deem fit. (2) Notwithstanding the provisions of subsection (1), the . High Court may, on an application made to it in this behalf by any person within the period specified in the said sub section, call for the record of any such case as is referred to therein, not being a case the record of which has already been sent to the High Court, for the purpose of satisfying itself as to the legality or propriety of the order passed by the Custodian, and may pass such order as it may deem fit. (3) Any case, the record of which has been sent to the High Court under subsection (1) or has been called by the High Court under subsection (2) shall be heard by a Bench of not less than two Judges of the High Court, and in respect of such case the provisions of section 98 of the Code of Civil: Procedure, 1908, shall, so far as may ire, apply. (4) Where the High Court passes an order to the effect that any evacuee property declared to be non‑evacuee property should not have been so declared, and such property is or has been in the hands of a bona fide purchaser or purchasers for adequate value, the High Court shall determine the amount of compensation to he paid to such purchaser or purchasers after such property has revested in the Custodian." It would appear that the amendment was rendered necessary by the discovery that irregularities had taken place in respect of declarations made by Custodians with reference to the property of evacuees, and probably for the public satisfaction, power was given by the Legislature to the Central Government to refer cases of doubt to the High Court for the further examination of the "legality or propriety of the order passed by the Custodian". The High Court was empowered to call for the record of the B case and to "pass such order as it may deem fit'". The High Court was also by subsection (4) authorised to award compensation to the purchaser of any property which had, in its opinion, wrongly been declared to be non‑evacuee property. By section 43‑B it was provided that the decision of the High Court was to prevail against any order passed by a Custodian in the relevant respect, as if the Custodian's order had always been subject to the High Court's order. This was a very special jurisdiction, being clearly In derogation of the provisions in section 41 of the Act of 1937, itself a repeat of similar provisions in a number of earlier statutes on the same subject which had been repealed in series, that the Civil Courts should have no jurisdiction to adjudicate upon any question whether any property is or is not evacuee property, nor would they have power to question the legality of anything done under the Act by the Custodian. Being a special and limited jurisdiction, the instrument by which it was conferred must be construed and applied with strictness. The conditions for the exercise of the jurisdiction under section 43‑A aforesaid which are relevant are the following :‑ (1) that the order of which revision was sought should have been made by a Custodian ; and (2) that it should have been made before the 1st of January 1953. In the present case, the High Court has purported to exercise its jurisdiction under section 43‑A in respect of the order of Mr. Mansoor Alam referred to above dated the 16th September 1954, and the order of the Custodian at Lahore, Mr. A. M. Jan, dated the 1st June 1.955, which has already been mentioned. The case was brought before the High Court on an application made by the Nawa‑i‑Waqt Publications Limited, and as the order of the High Court makes clear, this petition was brought to clarify certain apprehensions in the mind of the petitioner, for which the basis was as follows. In June 1955, the Provincial Government had compulsorily acquired for the Nawa‑i‑Waqt Publications Ltd., some 4 Kanals of land on Queen's Road, Lahore, out of which some 2 Kanals were part of a larger area of land which had been bought in June 1947, by the Company from one Sant Ram who later became an evacuee. This sale was confirmed by the Deputy Custodian at Lahore and the Nawa‑i‑Waqt Publications apprehended that the confirmation might affect their title in the land and accordingly moved their petition under section 43‑A of the Act of 1957 before the High Court seeking a declaration that the property of the Lakshmi Insurance Co., was evacuee property. As the judgment of the High Court shows clearly, this fear was unfounded, for as was held in an order by this Court in a separate proceeding moved by the Nawa‑i‑Waqt Publications, the title of the petitioner could not be affected by the confirmation of the sale of June 1947, because by the acquisition proceedings the property would vest in the Central Government irrespective of who was its previous owner. This assurance did not satisfy the Nawa‑i‑Waqt Publications Limited who thereafter moved the petition in the High Court as a result of which the present appeals are brought before this Court. It is not necessary, in our opinion, to state in full the matter which were raised before the High Court or the decision given thereon. But it is necessary to state the circumstances !n which the High Court declared the property of the Company to be evacuee .property. These appear clearly from the following passage contained in the first paragraph of the High Court judgment :‑ "The respondents contested the application in the beginning, but later, by statements recorded in Court, they agreed that the impugned order be set aside and that the Company be declared evacuee and its property evacuee property. The respondents, who had been added later, claimed, however, that they were entitled to compensation under subsection (4) of section 43‑A. On account of the confession of the respondents the impugned order has to be set aside and the only questions that fall for determination are as to whether the added respondents are entitled to any compensation and as to what is the effect of the vacation of the impugned order on the interests of the petitioner." In consequence of this decision, the High Court proceeded to award a sum of Rs. 29 lacs as compensation to Ahmad Mukhtar and others who had purchased the entire property of the Lakshmi Insurance Company, and had been added as parties In the case on their own application, by way of compensation. The Court had itself added as a party to the case one Mr. Jaini P. K. Paymaster and to this person the Court awarded Rs. 59,000 as compensation. To the Nawa‑i‑Waqt Publications which was the sole petitioner in the case, the consolation was given that the property acquired for them by the Central Government ceased to be evacuee property by the effect of that acquisition, and could not revest in the Custodian at all, so that their title was secure. The Lakshmi Insurance Company was given special leave to trove an appeal against this decision, challenging the order of C the High Court as being without jurisdiction and a nullity. The interests of the Company having been taken over by the Custodian of Enemy Property since the War of September 1965, arguments on its behalf have been presented before us by the Attorney‑General of Pakistan Mr. Ghias Muhammad who has raised the following contentions. He has urged that the orders of Mr. Mansoor Alam, dated the 16th September 1954, and of Mr. A. M. Jan, dated the 1st June 1955, are not expressed to be orders declaring the property to be non‑evacuee property. Both these orders are directions to Subordinate Officials in the Custodian organization, to refrain from any action in respect of the Company's property, as if it were evacuee property. Each order purports to proceed on tire basis of previous orders of date prior to the 1st January 1953, made in respect of the Karachi area by the Central Government and the Custodian and in respect of the West Punjab Province, by the Custodian at Lahore. The order of the Central Government in terms of section 3 of the Ordinance of 1949 was a "final determination." The terms of section 43‑A of the Act of 1957 do not authorise the High Court to interfere with such a determination. Expressly, the power of interference is confined to orders made by a Custodian. The Karachi Custodian on the 24th November 1950, had also made a declaration following the determination by the Central Government of the 4th November 1950, that the Lakshmi Insurance Company, Karachi, was non‑evacuee. Even if the finality of the Central Government's order be disregarded, the Custodian's consequential order of the 24th November 1950, was not susceptible of interference by the High Court in revision under its powers derived from section 43‑A aforesaid. The case with respect to the West Punjab region was similar. The order of the Custodian confirming the Deputy Custodian's order that the Company's property was non‑evacuee property was made on the 13th October 1948, many years before the 1st January 1953. On this simple ground, the learned Attorney‑General urged that the High Court had wrongly seized jurisdiction in the case. Moreover, the question of status of a person, i.e , the Insurance Company, and of the status of its property, could not be decided by the High Court on mere "confessions". It was not open to parties either before the Custodian in the exercise of his general jurisdiction under the Act, or before the High Court under section 43‑A aforesaid, to settle the question of the status of the property as either evacuee or non‑evacuee, by mere agreement among themselves. The techniques of a civil suit were not applicable to proceedings for this purpose before the Custodian. Evacuee property in order to be declared as such in any pro ceeding had to be found to bear one or other character of those specified in the relevant statutes. In the case of a Company, the law at the time when the initial declarations were given was as declared in the definition of "evacuee" and "evacuee property" contained in section 22 of the West Punjab Protection of Evacuee Property Act, 1948, and the Pakistan (Administration of Evacuee Property) Ordinance, 1949. In the West Punjab Act a special provision for a corporation in order that it should be an evacuee was that its business should have ceased to operate wholly or partially owing to the disturbances of 1947 or that it was being operated by an unauthorised person or an agent or a manager appointed after the 15th August 1947, whose appoint ment had not been approved by the Custodian, and "evacuee property" meant the property of an evacuee. It was held in West Punjab on the basis of evidence that the business of the Lakshmi Insurance Company had not ceased to operate wholly or partially owing to the disturbances, but at the time when the question arose, it was still being carried on, and consequently the declara tion was given that the Company was not an evacuee, and its property was non‑evacuee property. Since then, of course, the business of the company in Pakistan has been very greatly reduced so that today it might be thought to be merely residuary but the finding that the Company's registered office was moved to a place which is now in India before the 15th day of August 1947, is sufficient to save its property in Pakistan from the description of "evacuee property" in terms of the later definition in the Pakistan Administration of Evacuee Property Ordinance of 1917 which definition has been continued unchanged in the Act of 1957. Learned counsel who appeared for the Nawa‑i‑Waqt, Malik Altaf Sikandar, did not choose to support any of the grounds set out in the party's concise statement and contented himself by saying that his clients were not interested in the case any further, since the property, for the securing of which they had moved their revision before the High Court, had now been fully secured to them as a result of the decision of the Supreme Court mentioned above. Two learned counsels spoke on behalf of the Custodian of Evacuee Property, namely, Mr. R. A. K. Bangash and Mr. Aftab Hussain. Mr. Bangash tried to argue that if the Company was not an evacuee it was at least an "intending evacuee" and the reference was to Chapter V‑A of the Pakistan Ordinance of 1949, which provides for the declaration of persons as "intending evacuees" and for the consequences of such a declaration. Since the Company has been held to have moved its registered office to territories now in India before the 15th August 1947, it is impossible to urge that at any time after that period it showed any intention of emigrating from Pakistan. In such a case, the question of its being an evacuee requires no determination, but its property in Pakistan cannot be declared "evacuee property" since such property is expressly excluded from the definition of "evacuee property" by the Ordinance of 1949 as well as by the Act XII of 1957. In the concise statement it was set forth as a contention that the "confessions" made by the interested parties before the High Court could not be retracted and further that the orders for compensation to be paid to the vendees and to Mrs. Paymaster having been made without notice to the Custodian, and not being founded on any proper basis of calculation, should be set aside. These questions will be con sidered later in this judgment. Mr. Aftab Hussain said that he had nothing particular to add. On behalf of Mrs. Paymaster Dr. Nasim Hasan Shah urged what was stated in her concise statement, namely, that she had agreed to the property being declared evacuee in the expectation that she would be allowed to retain the part of the property in which she was interested, by way of compensation. Her real case was that the property was not evacuee, and if the Court came to the conclusion that the proceedings in the High Court and the decision thereon were all without jurisdiction, Mrs. Paymaster would be content. The real resistance to the contention of the learned Attorney General that the proceedings before the High Court were void for lack of jurisdiction came from certain tenants of parts of the property who were made parties to the case at a late stage before the High Court. On their behalf an argument was presented by Mr. Ahsanul Haq. In their concise statement, the following contentions were raised. The interested parties, namely. the Lakshmi Insurance Company and the transfer Ahmad Mukhtar and others could not be allowed to resile from their admission in the High Court that the property was evacuee. Learned counsel urged that the shifting of the registered office of the Company before the 15th August 1947, was not proved, but it should be mentioned that in the concise statement, the contention on this point is put differently in around No. 5, it being said that the registered office was not shifted at or about the time of the Partition but it continued to function at Lahore till May 1949, and only after that, it was directly removed to Delhi. As between the Company and the vendees Ahmad Mukhtar and others there was a conveyance by deed dated the 16th January 1954, and it was said that this was illegal, because exchange .of evacuee properties was not allowed at that time. A point was made of the failure of these two parties to make a .,declaration regarding the property under Martial Law Regulation No.

49. The order of the Central Government dated the 4th November :195(), was characterised as being bad, because the Karachi Custodian could not make the reference since the registered office of the Company was at Lahore, and it was further urged that the final determination by the Central ,Government was applicable only to the "Lakshmi Insurance Company, Karachi". Mr. Ehsanul Haq elaborated some only of these points in ,his submissions to the Court. He referred to the changes that had taken place in the definition of the expression "evacuee" with reference to corporations, between the year 1948 and the Act of 1957, and argued that the Central Government's order .under section 3 was to be regarded as a final determination only with respect to the law as it stood on the 4th November 1950, and that if the law were changed with retrospective effect as was the case here, then that determination would no longer be valid. He made special reference to the fact that more than 30 % of the shares of the company were held by evacuees and :asserted once again that the registered office was not moved out of Pakistan before the date of Partition. He characterised the ,Central Government's order under section 3 of the Ordinance of 1949 as a quasi judicial order which was revisable by the High Court and made reference to section 45. by way of contrast as conferring a clearly administrative or political power to exempt a person or property from the operation of the law. He made ,reference to the Karachi Pinjrapole case (P L D 1957 S C (Pak.) 83), in support of this :argument, where indeed the retrospective effect of a change in the definition of evacuee property was noticed and held to be effective against a Custodian's order, but the direction was given that the case should be re‑examined for determination of the .status of the property. Section 43‑A was not in force at that time. We can see nothing in the arguments presented in answer to the contentions of the learned Attorney‑General, that is effective to overcome the clear position that the High Court under section 43‑A aforesaid was competent to interfere only with declarations made by a Custodian, and then only with such declarations made after the 1st of January 1953. The orders of the Custodian at Lahore dated the 13th October 1948, and of the Custodian at Karachi, dated the 24th November 1150, declaring ‑the property to be non‑evacuee property were both made well before the 1st January 1953. Reference may here be made again to the wording of section 43‑A in the relevant respect. It expressly reserves the power of the High Court to call for the record of "any case in which a Custodian has on or after the 1st day of January 1953, declared any evacuee or any evacuee property to be a non‑evacuee or as the case may be non‑evacuee ;,property." The Legislature must be deemed to be aware that prior to the 1st January 1953, there had been a vast number of declarations of the relevant kind made by Custodians, for laws empowering the Custodian to make such declarations had been in existence in different forms from the year 1947 onwards in the West Punjab and from a slightly later period in other parts of West Pakistan, and these laws had been consolidated in 1948 in the first Pakistan Ordinance of 1948 on the subject, which had had been replaced by the Ordinance of 1949. The choice of the date the 1st January 1953, as the commencing date from which declarations of the relevant kind by the Custodians should be rendered liable to revision must be deemed to have been consciously made, so as to give finality to all similar orders E' made prior to that date. Therefore, section 43‑A must be construed as excluding from the purview of the High Court's jurisdiction thereby conferred, all declarations of date prior to the 1st January 1953, made by a Custodian declaring property to be either evacuee or non‑evacuee. It would seem that the learned Judges in the High Court dated the declarations made in Lahore and Karachi according to the order of Mr. A. M. Jan dated the 1st June 1955, and that of Mr. Mansoor Alam, dated the 16th September 1954, each of these dates being subsequent to the 1st January 1953. But it is quite evident that these orders are not original orders declaring the property in question to be non‑evacuee in nature. They are merely orders made in compliance with the earlier declaration namely, that of the 13th October 1948, by the Custodian of West Punjab and that of the 24th November 1950, by the Custodian of p Karachi, which itself was a mere implementation of a final determination of status by the Central Government, such a determination being not within the power of the High Court under section 43‑A to interfere with. In this view of the matter, it remains only to consider whether the High Court could be thought to have acquired jurisdiction in the matter by reason G of the so‑called "confessions" made before them by the parties. Leave was given to the Company to appeal against the High Court's order on several grounds, two of which are relevant to this particular matter, viz., whether the High Court had acted illegally in exercise of its jurisdiction by deciding the case on the basis of admissions by the parties, and whether those admissions were, in any event, not binding upon those who made them, including the Lakshmi Insurance Company. We have already held that on the facts of the case, the High Court had no jurisdiction whatsoever to enter into the matter of the declara tions by the two Custodians concerned, declaring the property of the Company to be non‑evacuee property. In that view of the matter, it is immaterial whether in the exercise of this assumed or pretended jurisdiction, the High Court acted rightly in proceeding to interfere on nothing more than the admissions of the parties. But we may observe that the jurisdiction being a very special one to interfere with orders made after due consideration by the relevant authorities of the Custodian's organization, whose orders were conclusive against the jurisdic tion of all Courts at the time when they were made, it would , be strange indeed if it were found possible to hold that the High Court could reverse those orders upon mere compromise or agreements between parties arrayed before them on opposite sides. Such a matter would clearly call for careful scrutiny of all available evidence to ensure in a strictly judicial manner that the facts necessary for holding that a person was an evacuee or not an evacuee, or that certain property was evacuee property or non‑evacuee property, were duly established. We find no force in the contention that the alleged "confessions" could not be retracted. By way of satisfaction that the reversal of the High Court's order does not involve any violation of the definition of "evacuee property" in existence at the time when the High Court's order was made, we think it desirable to mention once again that it had been found as a fact by a competent authority, namely a Custodian that the registered office of the Company wasp shifted away from Lahore to a place now in India before the 15th August 1947, and that was a sufficient ground for holding, in 1960 when the High Court's order was made, that the Company's property in Pakistan was not evacuee property. For reasons given above we are clearly of the opinion that the High Court's order declaring the Company's property to be evacuee cannot be sustained. In consequence, the orders made for grant of compensation to the vendees Ahmad Mukhtar and others and to Mrq. Paymaster must also be set aside. The properties are at present held and occupied by tenants and others under the protection of orders made in the Custodian Department of which an example may be found in the quotation from the order of the Deputy Custodian at Lahore, dated the 26th August 1948. mention of which hiss already been made earlier. These tenants and others are not to be ejected without the permission of the Custodian organisation and they enjoy the advantage of a reduction of 33/1/3 % on the basic rent. The result is that the appeal of the Lakshmi Insurance Company is allowed with costs to the Custodian of Enemy Property, and the order of the High Court in respect of the property being reversed, it is declared that the earlier orders made by the Lahore Custodian on the 13th October 1948, and the Karachi Custodian on the 24th November 1950, declaring the property to be non‑evacuee still stand. The second appeal of Ahmad Mukhtar and others No. 55 of 1965 which was presented on the strength of a certificate given by the High Court, is also allowed in toto, on the same grounds, but we leave the parties to bear their own costs. The third appeal of the Custodian of Evacuee Property No. 56 of 1965, which was also brought on a certificate given by the High Court, ii also allowed to the extent that the orders contained in the High Court's judgment for payment of com pensation to the vendees Ahmad Mukhtar and others and to Mrs. Paymaster ate set aside, but there will be no order as to costs. A, H. Orders accordingly.