P L D 1964 S C 74 (PLP)

S. A. RAHMAN, J.‑This order will dispose of two certificated appeals from a judgment of the High Court of West Pakistan, Karachi Bench, by which a writ of certiorari was issued, quashing the order of the Custodian of Evacuee Property dated the 17th September 1960, and restoring that of the Deputy Custodian, Thatta, dated the 10th of October 1956. The relevant facts are as follows. By two registered sale -deeds dated the 21st of April 1947, one, Gangaram Virumal, who is now an evacuee, and Muhammad Ilyas, a Pakistani citizen, sold the property in dispute to three brothers, Jethanand, Tikamdas and Babulal alias Deepchand, sons of Hiranand. The property was owned jointly by the two vendors, Gangaram Virumal having a Re.0‑10‑8 share, and Muhammad Ilyas a Re. 0‑5‑4 share. The consideration paid to Gangaram Virumal was Rs. 20,000 and to Muhammad Ilyas Rs. 1,500. It appears that Babulal alias Deepchand, later became an evacuee and died in India. The land was mutated in the names of the vendees in the revenue records in 1948, but it appears, the mutations were cancelled by the revenue staff in 1952, in view of the fact that under Ordinance XV of 1949, which was retrospective in effect, the transaction by an evacuee, had conferred no right or remedy on the vendee, in the absence of an order of confirmation by the Custodian. For some unaccountable reason, the mutation in respect of the share of Muhammad Ilyas was also set aside, though it is clear that the property in his case could not be described as having been transferred by an evacuee. The vendees applied to the Deputy Custodian, Evacuee Property, Thatta, for confirmation of the transactions in their favour and by two orders dated the 10th of October 1956, he confirmed the transactions, subject to the condition that the 1/3rd share of Babulal alias Deepchand would continue to be evacuee property. This was, however, not followed by a mutation of names in the revenue records, till 1958. The result was that the property in question continued to be shown as that of Gangaram Virumal and Muhammad Ilyas, in the revenue papers. Some time in 1957, taking advantage of this entry, Muhammad Ilyas re‑sold his Re. 0‑5‑4 share in the property to Abdul Khaliq‑Abdul Razzaq, the appellant in these two appeals. The latter then started negotiations for purchase of the shares standing in the name of Gangaram Virumal in the disputed land. He made inquiries from the Mukhtiarkar, Mirpur Sakro, who by letter dated the 24th October 1957, informed him that the remaining property stood in the name of Gangaram Virumal, evacuee. He then approached the Custodian of Evacuee Property, requesting that this property may be sold to him. The Custodian recommended the sale to the Central Government by order dated the 27th January 1958, at Rs. 75 per acre. The Government accorded its approval to the proposal and eventually a deed of sale was executed in favour of the appellant by the Custodian for a con sideration of Rs. 22,239‑8‑0, on the 6th of January 1960. Apparently the fact that the Deputy Custodian had confirmed the transaction in favour of the vendees from Gangaram Virumal was lost sight of at that time. On the 4th of April 1958, the evacuee's share was again mutated in favour of the vendees and on the 21st of April 1958, mutation was also effected in their names in respect of Muhammad Ilyas's share in the property. The appellant submitted an application to the Custodian of Evacuee Property on the 20th of June 1960, and prayed that the orders of confirmation passed by the Deputy Custodian be set aside, in exercise of the suo motu powers of revision possessed by that officer. He alleged that the impugned orders had been obtained by the vendees by suppression of material facts and fraud and that the sale in their favour was a bogus transaction. After hearing the parties concerned; the learned Custodian by a consolidated order dated the 17th of September 1960, set aside the orders of confirmation in question and remanded the two cases for fresh disposal, to the Additional Custodion (Judicial), Evacuee Property, Hyderabad. The respondents‑vendees then moved two writ petitions before the High Court of West Pakistan, Karachi Bench, to challenge the orders of the Custodian. The learned Judges held that in the face of the provisions of section 3 of Act XII of 1957, the Custodian had no jurisdiction to pass the order that he did, as it would amount to treatment as evacuee. property of what had not been so treated immediately before the 1st day of January 1957. Certificates for appeal to this Court were, however, granted to the appellant. The first point urged for our consideration by Mr. A. R. Sheikh, on behalf of the appellant, is that the orders of confirm ation passed by the Deputy Custodian were a nullity as they were tainted with fraud. In the first place, this ground was not specifically taken as one of the grounds of appeal to this Court when asking for certificates of fitness for appeal from the High Court. Secondly, there does not seem to be much merit in these allegations which do not appear to have been pressed even in the High Court or before the Custodian. The relevant allegations appear sufficiently from the application submitted to the Custodian by the appellant and printed at page 42 et seq of the record. The first circumstance mentioned therein is that though the transactions of sale had taken place on 21‑4‑47, the applications for their confirmation were not made till 18‑5‑55 and were thus barred by time. The affidavit sworn by Tikamdas in support of the application under section 5 of the Limitation Act, for enlargement of time, was said to be false in so far as he had alleged that he was ignorant of law, being resident in a small village known as Chhor Jamali where he was leading the life of "a frog in the well". The learned counsel drew our attention to a statement of Jethanand before the Custodian to the effect that Tikamdas was residing at Karachi. The statement was mad e some time in 1952 and it is not at all clear for what length of time Tikamdas had resided at Karachi. The inference sought to be drawn from this admission of Jethanand therefore can by no means be regarded as the only one possible. The second ground specified in support of the theory of fraud was that the Deputy Custodian had issued a notice which was published in the Morning News of the 7th of February 1956, in respect of the applications for confirmation made to him, but the date of hearing mentioned in the notice was the 8th of February 1956, and consequently the interested persons were not allowed enough time to raise objections to the confirmations. The actual proceedings, however, took place very much later, viz., on 10‑10‑56, and if anyone was interested in raising objections to the confirmations, he could have still done so. The third ground that Muhammad Ilyas was not served with a registered notice in that case, cannot also be accepted for want of clear evidence in its support. No attempt was made to substantiate it by reference to the original record and the ordinary presumption is in favour of the regularity of all official proceedings. The fourth ground mentioned was that the Deputy Rehabili tation Commissioner who was sent a notice by the Deputy Custodian, sent a reply which referred to survey numbers altogether different from those involved in the transactions in dispute and consequently he must have been mislead by the notice sent. The parties' names were however correctly mentioned and no attempt was made on behalf of the Rehabili tation Department to contest the applications for confirmation. The original notice was not put in evidence and it may be that it suffered from no defect. Lastly, it was contended that Jethanand had made a state ment on 22‑5‑52 before the Deputy Custodian (Judicial) in certain proceedings, in which he admitted that all immovable properties belonging to their joint family had been taken into account, when a registered partition‑deed dated 10‑11‑48 between the co‑parceners who constituted the joint family, was executed. The property in dispute did not figure in that document. From this, it was sought to be argued that the lands in dispute did not belong to the family as they were not brought into the Notch‑pot. Here again the inference is unwarranted. The severance in status of the joint family had been actually effected in 1942 though actual partition by metes and bounds of the joint family property was made in 1948, as the partition‑deed itself shows. The property in dispute was acquired long after the disruption of the joint family, in 1947 and could not therefore be Joint Hindu Family property. If it was not described by Jethanand as part of the Joint Hindu Family property, the statement is in consequence wholly understandable. None of the grounds specified therefore could suffice to make out a case of fraud. The main question that falls for determination is whether the provisions of section 3 of Act XII of 1957 stood in the way of the Custodian setting aside the confirmation orders or not. This section reads as follows :‑ 3. Property not to be treated as evacuee property on or after 1st January 1957:‑ (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 treated 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 (b) 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." The result of the order passed by the Custodian was clearly to relegate the property in dispute to the position of evacuee property. In the absence of a confirmation order by the Custodian's Department, by virtue of section 20 of the Act, the transactions which had taken place after the 1st day of March 1947, could not be effective so as to confer any right or remedy on the vendees. In law, therefore, it must be treated as the property of the evacuee transferor, till a fresh confirmation order was passed. Clearly, this would be tantamount to treating the property as evacuee property after the relevant date mentioned in section 3. This could only have been done if the property had been "treated" as evacuee property, immediately before the 1st day of January 1957, as required by subsection (1) of this section. The property in dispute, it seems, was undeveloped land which was never brought under the plough. It is conceded that it was never allotted to any refugee or other person by the Rehabilitation Department or by the Custodian. Mr. Sheikh contended before us that after the mutation in favour of the vendees had been cancelled in 1952, and the entry in the record of rights showed the property to be that of Gangaram Virumal, the repetition of that entry must be regarded as evidencing the "treatment" of the property as evacuee property. But, it must be observed that with the passing of the orders of confirmation in 1956, the effect of the entry in question was wiped out, in law. Merely because the vendees were negligent in having the entry corrected and the Revenue Officers themselves omitted to change the entry so as to conform to the orders passed by the Deputy Custodian, it could not be said that the property, was being "treated" as evacuee property within the meaning of the section. The learned counsel for the appellant referred us to the Shorter Oxford English Dictionary for the meaning of the word "treated". Among other meanings the following appear against the word "treat" therein:- "To deal with, behave or act towards (a person, animal etc.) in some specified way; to use; to consider or regard in a particular aspect and deal with accordingly". The argument was advanced that it was sufficient for the purpose of holding that the property had been "treated" as evacuee property, if the Revenue Department had shown it as such in their records. It does not seem correct that the word "evacuee" after the name of Gangaram Virumal appears in the revenue records. That appellation appears to have been added to the name of the recorded owner by the Mukhtiarkar, when answering the appellant's query. A copy of the original record has not been placed on the file to show that the property was actually shown as belonging to an evacuee. But even if such an assumption could be made in view of the fact that the owner was shown to be a person who is in fact an evacuee, we are not disposed to hold that this was treating the property as evacuee property in the sense required by section 3 of the Act. The word "treated" must be construed in the context of the law relating to evacuee property. The "treating" must therefore be obviously by some officer or authority who could control or make use of this property under the Act, viz., the Custodian or a Rehabilitation Authority. In section 22 of the Act, it is provided that any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority, as evacuee property, may prefer 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. This furnishes a clue to the interpretation of the word "treated" occurring in section 3 also. The mere circumstance that the word "treated" in section 3, is not followed by the expression "by the Custodian or a Rehabilitation Authority" does not appear to us to have much significance. From the very nature of the case the "treating" must be by such competent authority. For instance, if a man in the street or even an official like an excise officer, could lay a claim that he was treating a particular property as evacuee property, without the Custodian or the Rehabilitation Department coming into the picture, it could not be postulated that this was "treating" the property as evacuee property in the context of Act XII of 1957. So construed, the "treating" must relate to either a declaration by the Custodian about the nature of the property or its user for the purposes of the Act by him, or by the Rehabilitation Authorities, so as to indicate a consciousness of the actual or assumed nature of the property. In the instant case, after the confirmation accorded to the transactions by the Deputy Custodian, the property ceased to be evacuee property and subsequently, nothing was done or said by any of the relevant authorities to indicate that their attitude towards this property had been changed, till we come to the Custodian's order passed in 1960. It could not be said, therefore, that it was at anytime "treated" as evacuee property, immediately before the 1st day of January 1957. Subsection (1) of section 3 of the Act, consequently, raised a bar to the Custodian passing an order in respect of this property, which had the effect of so treating it after that date. The alternative position adopted by Mr. A. R. Sheikh is that the order of confirmation passed by the Deputy Custodian was subject to the incident or appeal or revision under section 43 of the Act and could not be invested with finality without going through the process envisaged by this section. Under section 43, provision is made for an appeal from an order of a Deputy or an Assistant Custodian to the next higher officer. The revisional powers of the Custodian may also be exercised there-under, either of his own motion at anytime or on an application made to him within the prescribed period, by an interested party, after giving a notice to the parties likely to be affected thereby. The position in the present case is that the Deputy Custodian's order was not challenged by an appeal or by a revision by any interested party at all. Could the case then be said to be pending, merely because the Custodian might choose to exercise his suo motu powers of revision at some unspecified point of time? Such a view would deprive persons in the position of the respondents, from the benefit of section 3 of the Act. The words of subsection (1) of section 3 are however general in character and there appears no good ground for holding that a case of the present kind is not within its ambit. Clause (a) of subsection (2) of this section merely saves cases in which an action has commenced or any proceeding is actually pending immediately before the date mentioned in subsection (1). There is no saving provided for any other case. This clause therefore negatives the suggestion made on behalf of the appellant that a case which may be subject, hypothetically, to the suo motu powers of revision possessed by the Custodian, would be outside the four corners of subsection (1). After considering all aspects of the matter, we have reached the conclusion that the view that prevailed in the High Court was correct and the impugned order requires no interference. If the appellant wishes to abide by the contract of sale entered in his favour by the Custodian, be can only do so to the extent of the share of Babulal alias Deepchand, who is an evacuee and the rest of the property which belongs to the respondents must be held excluded from that sale‑deed as it did not vest in the Custodian at the relevant time. Both the appeals are hereby dismissed, but there will be no order as to costs in the circum stances of this case. K. B. A. Appeal dismissed.