P L D 1964 Supreme Court 58 (PLP)

S. A. RAHMAN, J.‑The property involved in this appeal belonged to one, Bhola Ram, who is now an evacuee. The appellant, Qutab Ali, purchased this land by an oral sale from Bhola Ram, on the 6th of July 1947, for an ostensible considera tion of Rs. 24,000. Rs. 19,000 were said to have been paid to Bhola Ram under a receipt on the day of the bargain. A mutation was entered by the Patwari but it was rejected by the Assistant Collector on the 26th of August 1948. Qutab Ali went up in appeal against that order, to the Collector who allowed the appeal by order dated 6th of April 1949, on condition that the balance of the purchase price, namely, Rs. 5,000 be deposited by the appellant in the Custodian's account. He made this deposit accordingly, on the 7th April 1949. The appellant took possession of the property and retained it with himself till 1959, when the Settlement Officer, Montgomery District, on the 3rd of February in that year, sent him a notice intimat ing his intention to review the mutation case, in his capacity as Deputy Rehabilitation Commissioner. On the 3rd of June 1959, this officer directed the appellant to obtain a no‑objection certificate from the Custodian about the transaction in his favour. Qutab Ali then presented a petition to the Deputy Custodian, under section 20 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), for confirmation of the sale in his favour, or in the alternative, for a declaration under section 3 of that Act, that the property in question could not be treated as evacuee property as it had not been so treated before the 1st of January 1957. This application was rejected on the 7th of April 1960, but the Deputy Custodian, at the same time, declared a charge in favour of the appellant to the extent of Rs 5,000, on the property in question. Apparently the alleged payment of Rs. 19,000 made to the evacuee was held to be open to doubt. The appeal taken to the Additional Custodian against that order was allowed and the case remanded for further in quiry as to the genuineness of the sale. The application was again dismissed by the Deputy Custodian on the 15th of September 1960. An appeal to the Custodian also failed and the appellant was unsuccessful in having the order reviewed on the 14th of January 1961. He then moved the High Court of West Pakistan for a writ of certiorari, for quashing the order of the Custodian, and res training the Custodian and the Central Government, from treating the property in dispute as evacuee property. The High Court dismissed the petition. Special leave to appeal was granted by this Court to Qutab Ali to consider the contention that the High Court had misinterpreted section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957, and section 3 of the Displaced Persons (Land Settlement) Act, 1958, Section 3 of Act XII of 1957 is in the following terms :‑ "(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee pro perty immediately before the 1st 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 proceed ings 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 section bearing the same number in the 1958 Act, reads as follows:- "3. Information relating to certain land to be furnished.‑ (1) As soon as may be after the commencement of this Act, but not later than ninety days there-from, every person who is in possession, supervision or management of any land which he knows or has reason to believe to be concealed evacuee property, shall submit to the Rehabilitation Authority, or the Settlement Authority of the area concerned, full information relating to such land, including the date since when, or the period for which, he has been in possession, supervision or management thereof. (2) Any such property as is referred to in subsection (1) shall, notwithstanding the provisions of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957, be treated as evacuee property, and shall vest and be deemed to have vested in the Custodian in accordance with the provisions of subsection (1) of section 7 of that Act." The High Court took the view that the present case was covered by clause (b) of subsection (2) of section 3 of the 1957 Act and therefore the protection of subsection (1) thereof was not available to the appellant. In this connection, the learned Judges referred to the definition of "evacuee" given in section 2 (2), clause (c) (f) of that Act, and opined that clause (b) of subsection (2) of section 3 was not confined to properties of persons who had all along resided in India. The learned Judges further held that in any event, the provisions of section 3 of the Displaced Persons (Land Settlement) Act, 1958, had taken away the protection, if any, accorded to the property in dispute by the previous law, as it must be regarded as "concealed evacuee property" within the meaning of that phrase occurring in the 1958 Act. The transaction, when it took place on 6‑7‑47, was not within the mischief of the law relating to evacuee property. Under section 9 of the West Punjab (Protection of Evacuee Property) Act, 1948, the position was that no transfer of any right in or over any evacuee property made by an evacuee, his agent, assignee, or attorney, on or after the 15th of August 1947, could be effective so as to confer any rights or remedies on the parties to such transfer or any person claiming under them, unless the prescribed Custodian had "registered" the transfer within the prescribed time. The transaction in dispute took place prior to the date mentioned in this section and was therefore not hit by this provision. Central Ordinance XVIII of 1948 also did not affect this transaction as it only shifted the relevant date the 1st of August 1947. The Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 was promulgated on the 15th of October, 1949. This enactment, by its 16th section, deprived a transfer made by or on behalf of any evacuee, on or after the 1st day of March 1947, of legal effect unless it was confirmed by the Custodian. . The new law was thus made retrospective with effect from the 1st day of March 1947, and the transaction fn dispute fell within its purview, even though the Collector on 6‑4‑49, while hearing the appeal against the rejection of the mutation, had held that the transaction was complete, except for the payment of Rs. 5,00 out of the consideration. It is not clear under what authority the Collector acted, to have the transaction "completed". No attempt was apparently made by the appellant to obtain confirmation of the transaction from the Custodian till the 23rd of June 1959. The deposit of Rs. 5,000 in the account of the Custodian, under orders of the Collector in mutation appeal, could not be construed as impliedly conferring such confirmation on the sale. The deposit in the account of the Custodian was ordered by the Collector and the circumstances necessitating it, need not have come to the notice of the Custodian. At least no material was placed on record to justify such an inference. The question then is whether on the facts of this case, the protection envisaged in subsection (1) of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957, was available to the appellant. It was contended by Mr. Karam Elahi Chauhan, on behalf of the appellant, that the property in question had not been treated as evacuee property immediately before the 1st day of January 1957, and therefore this provision could be prayed in aid, by the appellant, to avoid the property being taken over by the Custodian. In support of this argument, reliance was placed on Rais Ghazi Muhammad v. The Custodian, Evacuee Property, West Pakistan (P L D 1960 Lah. 862), a Division Bench judgment of the High Court of West Pakistan, which lays down that if a particular piece of property has not been treated as evacuee property immediately before the relevant date, i.e., on the 31st of December 1956, it would fall within the four corners of this exception. The learned Custodian as well as the High Court, in the present case, have however negatived this claim on the ground that clause (b) of subsection (2) of section 3 of this Act, would apply and take the case out of the protection afforded by subsection (1). The learned Judges have pointed out that to confine the scope of clause (b) of subsection (2) of section 3 of this Act, to the case of persons who were resident in India even before the Partition but owned property in Pakistan, which was held or managed by other persons, would imply that the Legislature was discriminating against only this category of evacuee owners to the advantage of other persons who had left what is now Pakistan and had become evacuees. This would undoubtedly lead to an anomalous result. The question is, however, not free from difficulty in so far as it would call for serious consideration as to what properties were in the contemplation of the Legislative Authority for being accorded protection under subsection (1) of section 3. It is maintained that the view that prevailed in the High Court would make the protection envisaged by this subsection, almost illusory. One suggestion may be that evacuee properties whose occupiers, supervisors or managers had been recognized by the Custodian and therefore the properties in their charge had not been taken over for allotment to refugees, would be covered by the protection. But the approval by the Custodian of the possession by such persons, would be accompanied by a recognition on his part that the property was evacuee property and in that sense, it may be possible to argue that it had been "treated" as evacuee property. The expression "treated as evacuee property" may perhaps be equated with a formal adjudication of its nature by an order of the Custodian or its actual user, by him or by the Rehabilita tion authorities on the assumption that it was evacuee property, for purposes authorized by the relevant law. On this view such properties would also seem to fall outside the scope of sub section (1). Another possible category of property within this subsection may conceivably be unbuilt areas belonging to evacuees but whose existence had escaped notice by the relevant authori ties and which had not been occupied by anyone. But that would imply a very narrow class of protectees. Learned counsel for the appellant therefore suggested that clause (b) of subsection (2) should be interpreted in the same sense as sub‑clause (ii) of clause (c) of section 2 of the Act, which defines "evacuee" inter alia as meaning any person "who is resident in any place in the territories now comprising India or in any area occupied by India and whose property in Pakistan has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by a person, whether duly empowered in this behalf by him or otherwise, whose authority or right so to do (on or after the 1st day of March 1947) has not been accepted or approved by the Custodian". Prima facie, this provision seems to apply only to the case of persons who were resident in what is now India, even before the Partition, though the High Court thought that the words used herein were susceptible of a more general construction. Difficult questions of construction arise in this context and we need not commit ourselves to a considered opinion on these points, as the case can be disposed of on another point to be presently noticed. The High Court has relied on section 3 of the Displaced Persons (Land Settlement) Act, 1958, and have held that the property in question was "concealed evacuee property" within the meaning of this section and consequently, in the face of the provisions of subsection (2) thereof, the benefit of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957, could not be claimed by the appellant. On the facts of this case, this view appears to us to be not open to exception. After the promulgation of Ordinance XV of 1949, it became incumbent on the appellant, by virtue of subsection (2) of section 7 of that enactment, to intimate to the Custodian, in writing, his willingness to surrender the property in his possession, as it had become undoubtedly evacuee property by the retrospective effect given to section 16 of the Ordinance. As already observed above, subsection (2) of section 16 invalidated all transfers made on or after the 1st of March 1947, by or on behalf of an evacuee, unless duly confirmed by the Custodian. To all intents and purposes therefore the property in question became "evacuee property" in the hands of the appellant, in October 1949, when that Ordinance was promulgated. There ‑was no allotment made by a competent authority, of the property in dispute, in favour of the appellant and consequently sub section (3) of section 7 of the Ordinance [which contains an exception to the provisions of subsection (2)] could not be invoked by the appellant to nullify the effect of subsection (2). Again, sections 10 and 11 of Act XII of 1957 made similar provision and laid a duty on persons in the position of the appellant, to intimate to the Custodian that they held properties of this character, which had not been the subject of a confirmation order by the Custodian and that they were willing to surrender them. They had moreover to submit accounts of the income they had derived from the properties in their possession. A similar obligation was also incorporated in subsection (1) of section 3 of the Displaced Persons Land Settlement Act, 1958. No action was taken by the appellant under these provisions of law within the time allowed therefore and it must consequently be held that he concealed the proper facts from the Custodian and the property in question became "concealed evacuee property" within the meaning of section 3 of the 1958 Act. The mere fact that during mutation proceedings, in appeal before the Collector, in 1949, a notice had been inserted in "The Maghribi Pakistan" calling upon the evacuee owners to appear before the Col lector, cannot be pressed into service as amounting to the furnishing of relevant information to the Custodian. The pro tection, if any, available to the appellant under section 3 of the 1957 Act, therefore, was taken away by this later Provision of the 1958 Act. It follows that the order passed by the High Court, requires no interference by this Court and the appeal is dismissed. We make no order as to costs in the circumstances of this case. K. B. A. Appeal dismissed.