P L D 1975 Lahore 833 (PLP)

Mst. Jahanara Begun v. Bashir Ahmad and others Civil Appeal No. 39 of 1972 ref. Raja Muhammad Muzaffar and Rab Nawaz Khan Niazi for Petitioners. Nemo for Respondent No.

1. Maqbool Elahi Malik for Respondents Nos. 2 and

3. Date of hearing : 24th January 1975. Respondent No. 1, a local Muslim, filed a civil suit for possession of land, after removing material therefrom, measuring 35 kanals, 12 marlas bearing Khasra No. 2291/1098, Khatuni No. 1216/1, Khata No. 138 in Jamabandi for the year 1937‑38 of Village Kallur Kot, Tehsil Bhakkar, District Mianwali against the non‑Muslim occupants. The suit was decreed by the learned Sub‑Judge III‑Class, Bhakkar on 7‑4‑1944, and, it was ordered that "if there is any structure on any portion of the land in suit the defendants shall remove the same within two months of this date after which the plaintiffs may have it removed through the process of the Court". On 4‑10‑1946, the Revenue Officials, in pursuance of the decree, banded over the possession of the vacant land bearing Khasra No. 2291/1098/2, measuring 27 kanals 17 marlas, but, in respect of the remaining area of 7 kanals 15 marlas, over which there was a Pucca Sarai, it was stated that the same could not be demolished without Police assistance. According to the learned Custodian of Evacuee Property, West Pakistan, Lahore, vide order dated 26‑10‑1968, "it transpires from the record that there had been a litigation on the criminal side between the owners and the occupants. Ultimately, the non‑Muslim occupants' case was dismissed as withdrawn by the Sub‑Divisional Magistrate vide his order dated 29‑4‑1947". According to the respondent, the non‑Muslim occupants had surrendered the possession of the property in dispute, and, had made a statement to that effect before the Magistrate, Bhakkar, on the basis of which the case was dismissed. The non‑Muslims went away in 1946 and, since then, he is in possession.

2. According to the petitioner No. 1, he purchased two houses in auction from the Settlement Department bearing Survey Nos. 345 and 346 situated on Khasra No. 171/1, Khatuni Nos. 1063 and 1145, Khasra No. 377/12, 13 (Old), Khasra Nos. 2291/1098, 2293/1099, 2299/1111, in Village Kallur Kot, Tehsil Bhakkar, District Mianwali, on 15‑10‑1960, and a Permanent Transfer Deed was also issued in his favour on 15‑6‑1963. One of the houses, he sold to petitioner No.

2. According to the respondent No. 1, when he learnt of the auction, he applied to the Additional Settlement Commissioner for setting aside the auction and the Permanent Transfer Deed, but, the said Officer expressed his inability vide order dated 2‑7‑1964. Thereafter, he filed an application on 29‑7‑1964 under section 22 of the Pakistan (Administration of Evacuee Property) Act, XII of 1957, before the Deputy Custodian of Evacuee Property, Lahore. The Deputy Custodian on 7‑4‑1965 rejected the application on the ground that "the cause of action arose to the petitioner (now respondent), when the houses in dispute were first surveyed as an evacuee property in 1949 and one of the houses was occupied by Muhammad Ramzan son of Desondi refugee from Ambala and other house according to the statement of the clerk was not habitable at that time. The petitioner thus remained silent up to 1960 when the property was put to auction. This application had been moved in the year 1964 when the property had already been acquired by the Central Government and placed at the disposal of the Settlement Department and finally transferred to respondent Isab Khan". The then petitioner, find now respondent, filed an appeal before the Custodian of Evacuee Property, West Pakistan, Lahore, who came to the conclusion that "it can safely be presumed that the appellant had taken possession of the property in dispute while the non‑Muslims were residing at their, native place peacefully. The mere entry in the Survey Register of evacuee properties prepared by the Deputy Custodian has no weight against the aforesaid documents". He accepted the appeal and held that "the property in dispute was not an evacuee property and the same was not included in the Evacuee Property Pool for disposal under Settlement Laws". This is vide order dated 26‑10‑1968.

3. The petitioners have challenged the aforesaid order of the learned Custodian by means of this Petition under Article 98 of the late Constitution of the Islamic Republic of Pakistan, 1962.

4. Learned counsel for the petitioners has urged that the property in dispute was treated as an evacuee property before 1‑1‑1957. After, its acquisition by the Central Government, the same was rightly transferred to the petitioner No. 1 who had been issued Permanent Transfer Deed and delivered possession on 13‑10‑1963. It is submitted that thereafter the Custodian had no jurisdiction in the matter. Further, that the Custodian erred in not considering the question of limitation as the application filed by the respondent was filed in 1964, and, he also erred in holding that the non‑Muslims had surrendered the possession and made a statement to that effect before the Magistrate on which their complaint was dismissed. It is submitted that there was no basis for such an assumption. It is, further, contended that the application under section 22 of the Pakistan (Administration of Evacuee Property) Act, XII of 1957, of the respondent was dismissed on the ground that the same was barred by time. Without adverting to this aspect of the matter, the learned Custodian upset that order. It is submitted that it is contrary to law and reliance is placed on Azmat Ali's case P L D 1964 S C

260. It is also contended that if the property had not been treated as an evacuee property, the application of the respondent No. 1, under section 22 of the aforesaid Act, was also unmaintainable, and therefore, the same was liable to be dismissed. The learned Custodian had, therefore, erred in law in accepting the same.

5. Mr. Maqbool Elahi Malik, Advocate, representing respondent No. 2, Custodian, Evacuee Property, West Pakistan, Lahore, has, in view of the aforesaid case of Azmat Ali supported the petition, and, has requested that the order of the Custodian may be quashed and the case remitted back to him for decision regarding the question of limitation. On merits, however, his contention is that since the property had never been treated as an evacuee property before 1‑1‑1957, it could not be so treated after the aforesaid date, in view of section 3 of the Pakistan (Administration of Evacuee Property) Act XII of 1957. Learned counsel also submits that mere entry in the Survey Register was not enough to hold that the property had been treated as an evacuee property, nor, occupation by a refugee would amount to such a treatment. His occupation was not in pursuance of any order of allotment by the Rehabilitation authorities or the Custodian, otherwise, that would have been said to be possession. In this view of the matter, he submits that the finding of the learned Custodian that the property cannot be declared as an evacuee property is unexceptionable.

6. Decision of this petition depends upon the determination of the question, whether the property was or was not treated as evacuee property immediately before the first day of January 1957, because if it was not so treated as an evacuee property it shall not be treated as evacuee property as section 3(l) of the Pakistan (Administration of Evacuee Property) Act, 1957 Act XII of 1957 lays down that "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". The Custodian of Evacuee Property, in his impugned order came to the conclusion that the property was not treated as evacuee property prior to 1‑1‑1957, and that mere entry in the Survey Register of Evacuee Properties was not enough and had no weight. Besides that it is a finding of fact not susceptible to interference by this Court in its Constitutional jurisdiction, it is also in accord with the enunciation of the relevant provision by superior Courts. In Abdul Khaliq Abdul Razaq v. Kishan Chand and others P L D 1964 S C 74 at page 79, the Supreme Court of Pakistan held that "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 and Rehabilitation Authority . . . . 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 this case an argument was advanced "that it was sufficient for the purpose of holding that the property had been "treated" as evacuee property, if the Rehabilitation Department had shown it as such in their records", was repelled with the observation that "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". In the case of Sayed Ali Iqtidar Shah Dara and others v. Custodian, Evacuee Property P L D 1964 Lah. 274, a Full Bench of five learned Judges of the High Court held "that no person or property can be declared as evacuee or evacuee property after the 1st of January 1957 if it was not treated as such before that date by the Custodian. The treatment referred to in this section indicates that some overt act must have been done by the Custodian or Rehabilitation Authority. Mere vesting of the properties in the Custodian under section 7 or holding possession under section 11 will not mean that such properties were treated as evacuee properties. In Mst. Ando and another v. Custodian of Evacuee Property and others P L D 1964 Lah. 351, a Division Bench followed the case of Abdul Khaliq quoted above. In Azam Ali and others v. Custodian of Evacuee Property and another P L D 1968 Lah. 148, a property which had been treated as evacuee property before the commencement of the Pakistan (Administration of Evacuee Property) (Amendment) Act, 1958 on 23‑9‑1958 and was precluded from being treated as non‑evacuee property under the newly inserted section 3‑A in the Pakistan (Administration of Evacuee Property) Act, 1957, came under consideration. Section 3‑A(1) provided that "Notwithstanding anything contained in this Act, no person or property treated as evacuee or as evacuee property immediately before the commencement of the Pakistan (Administra tion of Evacuee Property) (Amendment) Act, 1958, shall be declared to be non‑evacuee, or as the case may be non‑evacuee property, on or after such commencement". It was noticed that although the Amending Act of 1958 was itself repealed by Ordinance XXII of 1959, yet, by operation of section 6‑A of the General Clauses Act which lays down that "where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal", the provisions of section 3‑A were held to be intact and the word "treated" was examined. It was observed that "a question of great interest arises as to what is meant by the treatment of property" as evacuee property. Will the property be considered to be treated as evacuee property which, in fact, belongs to a Muslim owner but has somehow been allotted to refugees on a mistaken plea or belief that it was evacuee property ? And will the Muslim owner lose all his rights to his own property merely because just a day before the 23rd September 1958, a Rehabilitation Authority had chosen to allot it to a refugee without notice to the Muslim owner or notwithstanding his protest ? We considered that by the enactment of section 3‑A in the Pakistan (Administration of Evacuee Property) Act, the Legislature could not have intended a wholesale and arbitrary destruction of vested rights by the cursory process of a mere declaration or an ex parte action by a Rehabilitation Authority that they were evacuee rights or by going further and allotting the same to other persons without a proper adjudication of those rights. It is against the principles of natural justice to deprive persons of valuable rights and properties without affording them an opportunity to defend those rights even though it be done to accommodate the teeming multitude of refugees. The law would defeat its own object, if for the sake of settlement of refugees, real owners were to be deprived of their properties and rendered without a refuge. It is in this context that the word "treated" has to be interpreted as used in section 3‑A for its correct connotation. In our view, "treated" in the sense in which it is used in section 3‑A means that the character of the property must have been determined by the Rehabilitation A authorities or the Custodian by a judicial process after notice to the owner and the determination in this regard must be a final determination so that the affected party has a right to represent against the characterization of a property as an evacuee property and to prove that it is not so, and the matter be closed on him only if after a proper inquiry and adjudication the issue is finally disposed of one way or the other. In a contested case of this nature, the final adjudication in these matters would obviously be done only by the Custodian. To interpret the word "treated" in any other sense and to regard any declaration or any casual act of the Rehabilitation authorities, in regard to the property as the "treatment of that property" to be evacuee property, would entail the risk of divesting real owners of their properties, amounting to expropriation, without any legal basis or moral justification, and the Legislature cannot in fairness be burdened with that intention." The argument that the land in question had become part of Compensation Pool when Notification under Displaced Persons (Land Settlement) Act, 1958, was issued on 15‑4‑1959 was repelled with the observation that "it was only evacuee property which could go to the Compensation Pool and not non‑evacuee property, even though mistakenly it may have been allotted as evacuee property. If on proper determination it is discovered that the property allotted as evacuee property to the refugees was, in fact, non‑evacuee, it cannot and could not have formed part of evacuee compensation pool". This case was noticed in the case of Mst. Nazeeran v. Wall Muhammad Nagar, Deputy Custodian Lahore and others P L D 1969 Lah. 701, and it was observed that "for treatment" of the property as "evacuee property" it is necessary to show only an overt act on the part of the Rehabilitation Department or the Custodian and a judicial determination as a condition precedent by the Custodian or by the Rehabilitation Department is not necessary. On facts, however, it was found that there bad been treatment of the property in question by the relevant authorities throughout, therefore, the bar under section 3‑A of the Act did not come into play. In Syed Ali Iqtidar Shah Dara and 6 others v. The Custodian of Evacuee Property, West Pakistan, Lahore P L D 1972 Lah. 798, at p. 808 it was held that "there is no indication that at any stage, the property was either taken over by the Custodian or by the Rehabilitation Authorities on the assumption that it was evacuee property or that at any stage, the possession of the property was made over to any refugees in pursuance of any order of allotment passed by the Rehabilitation Authorities. It is, consequently, clear that this property was never "treated as evacuee property", by the relevant day, i.e., the 1st day of January 1957". In Maj. Mehtab Khan v. The Rehabilitation Authority and another P L D 1973 S C 451 , at p. 461 it was held that "the word `treatment' as used in section 3 of the Act XIl of 1957, connotes something more than the mere vesting of the property in the Custodian by operation of law. It indicates that some overt act must have been done by the Custodian or the Rehabilitation authorities to deal with the property as evacuee property. As no such act was done in respect of the lands in dispute immediately before the date specified in subsection (1) of section 3 of this Act, namely, the 1st of January 1957, the lands could not be treated as evacuee property thereafter and would not, therefore, be amenable to acquisition under section 4 of the Displaced Persons (Land Settlement) Act, 1958". From the above, it is obvious that unless a property is treated as an evacuee property by some overt or conscious act by the Custodian or a Rehabilitation Authority before Ist of January 1957, the same cannot be treated as evacuee property thereafter. Mere entry in Revenue Record, possession by any person, may be by a refugee, without any authority or allotment from a competent authority, would not divest the real owner of his title. That being so, notifications of acquisition under the Settlement Laws would not cover such property, and, its disposal under these Laws would also be without any legal authority. In the present case, the observation of the Deputy Custodian in his order dated 7‑4‑1965, that one of the two houses in dispute was occupied by one Muhammad Ramzan, a refugee, would not divest the real owner of his right when the refugee bad only occupied the house and was not in possession, meaning thereby, that the occupation was by himself without any authority or allotment from a competent source, otherwise, that would be possession in the language of the relevant law. Morever, the case before the Custodian was pressed on the ground that there was an entry of the property in dispute in the Survey Register. But it has been seen above in the cases referred to that mere entry is not sufficient to "treat" a property as evacuee property. That being so, the Custodian was perfectly within his jurisdiction to hold that the property in dispute was not an evacuee property, and, no exception can be taken to his adjudication.

7. As regards the question of limitation that the respondent No. 1 filed the application under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 in 1964 and the same was dismissed by the Deputy Custodian of Evacuee Property on the ground that the same was barred by time and that this aspect of the case was not considered by the Custodian and for that matter, the case be remitted to the Custodian, it need only be said that the property having not been treated as evacuee property prior to 1‑1‑1957, it could not have been so treated thereafter, nor was it so treated until the Settlement Department put it to auction and granted Permanent Transfer Deed to the petitioner No.

1. The respondent No. 1 moved the Additional Settlement Commissioner that the property being non evacuee property could not be dealt with by the Settlement Department but the Additional Settlement Commissioner expressed his inability on 7‑4‑1965 when the respondent No. 1 moved the Deputy Custodian on 29‑7‑1964. In these circumstances, there was no question of delay and the application under section 22 of the Act XII of 1957 being barred by time. Further, it appears that the argument regarding the application being barred by time was not pressed before the Custodian and cannot be allowed to be agitated in this Court. Moreover, the property being non‑evacuee property, and, therefore, not available for being brought is the Compensation Pool or transferable to the petitioner, the petitioner would have no right in the property, and consequently, not entitled to the writ petition. Remitting the case back to the Custodian for determination of the question of limitation would be unnecessary waste of public time and a mere academic exercise when on the facts on the record the question of limitation can be determined j by this Court. In similar circumstances, the Supreme Court of Pakistan did not remit back the case to the Settlement Commissioner but decided it l itself in Mst. Johanara Begum v. Bashir Ahmad and others (Civil Appeal No. 39 of 19721, decided on 28‑3‑1974. The last argument of the learned counsel for the petitioner that if the property bad not been treated as evacuee property, application under section 22 of the Act XIl of 1957, would be incompetent, is untenable because the Rehabilitation and Settlement authorities purported to dispose it of as an evacuee property as if brought in Compensa tion Pool under the Settlement Laws.

8. In view of the facts that the property belonged to the respondent, a Muslim owner in whose favour a decree for possession had also been granted by the civil Court on 7‑4‑1944, much before 1947, the property was not even treated as evacuee property prior to 1st of January 1957, and could not be so treated thereafter because of bar contained in section 3 of the Act X11 of 1957, the learned Custodian rightly held the property to be non‑evacuee property. The property, thus, being not evacuee property was not covered by the notification under the Settlement Laws acquiring evacuee properties and, therefore, could not form part of the Compensation Pools constituted under the Settlement Laws. Hence, it could not have been transferred by the Settlement authorities to the petitioner. In view of the above, there is no merit in this petition and. the same is accordingly dismissed. The petitioner shall be entitled to the refund of the consideration paid and also the cost of this petition as be had been led to this impasse because of the respondent authorities not taking due care before auctioning somebody else's property and transferring the same to the petitioner. K. B. A. Petition dismissed.