1989 PLP 2283 (MLD)

In reply to the above submissions of the learned counsel for the petitioner both M/s Qazi Munawar Ali and Kishanchand, jointly urged that by virtue of clause 3 of lease which was executed between respondent No. 1 and the Trustees of Gru Nagar Trust the property automatically reverted back to respondent No. 1 upon migration of the trustees to India. It is further contended by the learned counsel for the respondents that the above property having not been treated 4s an evacuee property immediately before 1-1-1957 could not be treated as evacuee property subsequently and as such the Custodian rightly determined its status by his order dated 19-2-1974 on the reference of Deputy Commissioner Hyderabad. In view of the admitted position in the case that all the trustees of Gru Nagar Trust had migrated to India upon setting up of the dominions of India and Pakistan, the property leased out to the Trust by respondent No. 1 became "evacuee property" as defined in Ordinance XV of 1949 and Act XII of 1957 with the result that it vested in the Custodian as and from 1-3-1947. The contention of the learned counsel for the respondents that because of clause 3 of the lease agreement the property automatically reverted back to respondent No. 1 on account of migration of trustees of the above trust has no substance in view of the! clear provisions contained in Section 8 of Act XII of 1957 which reads asf follows:-- "(1) Where the rights of an evacuee in any land or in any house or other building consist or consisted of occupancy or tenancy rights, or rights as lessee or grantee, nothing contained in any law for the time being in force or in any contract or in any instrument having the force of law or in any decree or order of any Court or any other authority shall extinguish or be deemed to have extinguished any such rights of the occupant, tenant, lessee or grantee becoming an evacuee or at any time thereafter so as to prevent such rights from vesting in the Custodian or being dealt with as evacuee property, and neither the Custodian nor the evacuee shall be or shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default of:- (a) the evacuee committed after he became an evacuee or within a period of one year immediately before the date of his becoming an evacuee; or (b) the Custodian. (2) Where any person acquires or has acquired any rights-in possession of that property whether in pursuance of a grant, lease or allotment made by any authority or otherwise, the acquisition of such rights shall not in any way affect or be deemed to have affected the rights and powers conferred on the Custodian under this Act in respect of that property'. It is therefore, quite clear that in view of the provision of Section 8 of Act XII of 1957, the existence of clause 3 of lease agreement could not have the effect of extinguishing the rights of the evacuee in the above property. The next submission of learned counsel for the evacuee in the above property. The next submission or learned counsel for the respondent, jointly is that the Custodian of Evacuee Property was competent to determine the status of the disputed property on the reference of Deputy Commissioner Hyderabad. In order to decide this contention, it is firstly to be determined whether the reference made by the Deputy Commissioner Hyderabad was competent in law and secondly whether the Custodian had jurisdiction in the matter on the date the reference was made to him. The provision for making a reference to the Custodian of Evacuee Properties is contained in Section 41 of Act XII of 1957 which reads as under: - "Section 41 (1) Save as expressly provided in this Act no Civil or Revenue Court or any other authority shall have jurisdiction: (a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or i5 not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property; (b) to question the legality of anything done under this Act by or at the instance of the Custodian ; or (c) in respect of any matter which the Custodian is empowered by or under this Act to determine. (2) Whenever any question such as is referred to in clause (a) of sub section (1) arises in any Court, or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given and the decision of the Custodian on the question stated shall be conclusive. (3) No decision, decree or order of any Court of authority in respect of any evacuee or evacuee property passed between the first day of March, 1947, and the fifteenth day of October 1949, shall be binding on the custodian or affect any right or interest of any evacuee in any property affected by such decision; decree or order unless it is accepted or approved by the Custodian. (4) Save as provided by or under this Act, no Court or other authority shall be competent to grant an injunction or other order in relation to any proceeding before the Custodian under this Act, or anything done or intended to be done by or at the instance of the Custodian under this Act. (5) Nothing in the foregoing sub-section shall prevent adjudication by a Civil Court of a dispute between evacuees relating to right in evacuee property upon a reference made to it by the Custodian or with the Custodian's previous approval. It is an admitted position in the case that the reference to the Custodian was made by the Deputy Commissioner, Hyderabad, in his capacity as Controlling Authority of Peoples Municipality Hyderabad. This reference was, therefore, misconceived on its face, as such a reference could only be made under Section 41 of the Act by a Court or an authority before whom the question as referred to in clause (a) of subsection(1) of Section 41 ibid had arisen in course of any proceedings. The Deputy Commissioner, Hyderabad, while making the above reference was neither acting as a Court nor as a revenue authority, nor the question had arisen before him in course of any proceedings. On the contrary the reference was made by the Deputy Commissioner as Controlling authority of respondent No. 1, which claimed the. property as its own. The reference to; Custodian in these circumstances was wholly misconceived in law and, therefore, it could neither be entertained nor decided by it. An attempt was made by the learned counsel for respondent No. 1 to argue that this reference could have been treated and disposed of as application under Section 22 of Act XII of 1957. This argument is equally without force as an application under section 22 of the Act could only be submitted within sixty days of the accrual of cause of action to the applicant and provided the jurisdiction of Custodian still subsisted in respect of the disputed property. It is an admitted position that the property became an evacuee on the migration-of trustees of the trust. From the order of Settlement Commissioner, dated 20-1-1966, it is quite clear that the property was held, to be an evacuee trust property and as such its transfer in favour of claimant under Settlement Scheme No: 7 was held, to be void. The fact that the transfer in favour of claimant constituted a - small portion of the disputed property is of no significance as the determination of the nature of property under section 4 (3) of Act XXVIII of 1958 was made by the Settlement Commissioner, in respect of the property which was leased out to the trust by respondent No. 1 in the year 1928. It was also observed by the Settlement Commissioner in his order dated 20-1-1966 with reference to the contention of respondent No. 1 that if there was breach of clause 3 of lease agreement the respondent No. 1 should have approached the Civil Court in this regard, In those circumstances no application under Section 22 of Act XII of 1957 could be filed by respondent No. 1 in the year 1973. Apart from it a notification under Section 3(2) of Act XXVIII of 1958 was issued by the Government of West Pakistan on 21st August 1959 acquiring all the evacuee properties in the then Province of West Pakistan which reads as follows: - "Whereas, the Central Government, in pursuance, of the `powers conferred by Sub Section (2) of Section 3 of the Displaced Persons (Compensation & Rehabilitation) Act of 1958, (hereinafter referred to as "the said Act") have asked the Government of West Pakistan to acquire, for the purposes of the said Act, all immovable evacuee property situated within the Province of the West Pakistan other than: - (i) Agricultural Land; (ii) Property for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957, or under any law for the time being in force for the administration of evacuee property in Pakistan, has been accorded before the date of this Notification ; (iii) Property with regard to which any proceedings arc pending on the date of this Notification under the Pakistan (Administration of Evacuee Property) Act, 1958, before a Custodian ; and (iv) Property situated within the limits of the Murree Municipal Committee and the Murree Cantonment Board. Now therefore, in exercise of the Powers conferred by sub-section(2) of Section 3 of the said Act, the Government of West Pakistan is, hereby, pleased t6 acquire, with immediate effect, all the said evacuee immovable property". . The effect of the 'above notification is that all rights and interests of an, evacuee in the property were extinguished on the issuance of above notification and the property vested in the Central, Government free of all incumbrances. Therefore, in our humble view after issuance of above notification under sub section (2) of Section 3 of Act XXVIII of 1958 the Custodian could not deal with the property any more. The last contention of the learned counsel for the respondents jointly is that the property was not treated as an evacuee property immediately before 1-1-195.7 and as such it could not be treated as an evacuee ' property thereafter. This contention raised by the learned counsel for respondents is absolutely new and cannot be allowed to be raised now. Respondent No.l was parry before Settlement Commissioner in the proceedings under Section 4(3) of Act XXVIII of 1958 but it never raised any such contention. Even before the Custodian they never contended that the property was never treated as evacuee before 1-1-1957. On the contrary the order -of the Settlement Commissioner passed on the petition of K4st.Umerubab clearly shows that a portion of the property was allotted to claimant much before the enforcement of Act XXVIII of 1958 which clearly shows that the property was treated as evacuee right from the beginning. We accordingly declare the order dated 19-2-1974 passed by respondent No.2 as an order without lawful authority and of no legal effect. There will be no order as to costs. H.B.T.E-29/K Petition accepted,