1. ' MUHAMMAD AEZAL ZULLAH, J.-These two appeals, through special leave, arise out of same land settlement case. They are being disposed of together.
2. ' The appellants are displaced persons. They were allotted agricultural land in the former State of Khairpur in 1949. In or about 1951 the Hindu owners of land (private respondents) applied to the Custodian for a declaration that they were not evacuees and that the land in question was not evacuee property. There is no agreement by the parties as to what was the result of those proceedings. However, they again made similar applications in 1957 under section 22 of the Administration of Evacuee Property Act (XVI of 1957). An Assistant Custodian Evacuee Property, by different, orders passed in 1957 and 1958 declared that the respondents were not evacuees nor the land in dispute, to the extent of their share, was evacuee property. No order was passed with regard to the allotment of the appellants which in the meanwhile had been confirmed under Rehabilitation & Settlement Scheme. They remained in possession of the land. The respondents, it is stated, made some applications for the restoration of the land to them but without any success.
3. According to the appellants, they were not impleaded as 'parties' by the Assistant Custodian. When they became awareof his orders, they moved the District/Settlement authorities as a result whereof the Deputy Commissioner Khairpur, who was also the Deputy Settlement Commissioner (Lands), by a reference dated 4th July, 1963 addressed to the Custodian, requested for suo motu reopening of the case, as allegedly according to additional evidence, it had been discovered that the respondents had once migrated to India and on their return had made wrong claim about their status and the property. The reference was entertained, but the learned Custodian vide his order dated 29th August, 1963 held that the evacuee laws were not applicable to Khairpur State, the Hindus after their migration to. India "had returned before the integration of Khairpur State into West Pakistan and consequently their properties were not evacuee properties. In this view of the matter, no question of the revision of the order of Mr. Jalali, the then Assistant Custodian of Evacuee Property, Khairpur, arises. A copy of this order may be sent to the Deputy Commissioner and Deputy Settlement Commissioner (Lands) Khairpur".
4. ' Both the parties filed writ petitions in the High Court. The respondents seeking direction for restoration of the land to them and the appellants challenged the orders of the Custodian and his subordinate authorities. A learned Division Bench held that the evacuee laws were applicable to Khairpur State. However, the appellants' writ petition was dismissed because it was thought that the Custodian could not be compelled to reopen the case in his suo motu jurisdiction. The respondents' writ petition was allowed but it was not considered necessary to give any direction or pass any operative order for the restoration of the lands to them. The appellants filed two separate petitions for special leave to appeal regarding the orders on the two writ petitions. Leave was granted to consider the effect of the order of the Assistant Custodian declaring the respondents and the property in dispute to be non-evacuee without impleading the appellants.
5. ' Learned counsel for the appellants has contended, that the Assistant Custodian could not declare the respondents and their property to be nonevacuee-section 3-A of the Administration of Evacuee Property Act, 1957 operated as a bar ; that the Assistant Custodian could not make any declaration regarding the character of the land in dispute without impleading the allottees thereof, i.e, the appellants herein-reliance has been placed on Syed Ali Abbas and others v. Vishan Singh and others (1) ; that the supervisory power of the learned Custodian was extensive enough to correct the error committed by the Assistant Custodian-reliance has been placed on Sahibraj v.
6. The Custodian of Evacuee Property South Zone, West Pakistan, Karachi (2) ; and that in any case the High Court should have remanded the case to the Custodian. Learned counsel also argued that there is enough evidence to prove that the respondents had in fact become evacuees and the property in dispute, therefore, was evacuee property and had rightly been allotted to the appellants.
7. ' Learned counsel for respondent No, 1 in Civil Appeal No 22/71 in reply argued that the decision of the Assistant Custodian is based on cogent material, it is not necessary to reopen the matter ; that the
(1) PLD 1967 SC 294 (2) PLD 1957 SC (Pak.) 63 ' appellants had not impleaded the respondents as parties before the learned Custodian, the !Atter, therefore. Could not pass any order against the respondents ; and that if the matter is now remitted to the Custodian, a direction should be made that in case the order of the Assistant Custodian is maintained, the property should be restored to the respondents. Learned counsel for the Department stated that it would be open to the respondents to make an application under section 23 of the Act, for restoration of the property.
8. ' Learned counsel for the appellants, however, opposed the request and submitted that such an observation will operate against the interest of the appellants, who were not at fault in so far as the factum of the allotment is concerned. He also urged that they suffered as displaced persons and would suffer most if they are rendered refugees once again ; as it would be difficult for them now to obtain fresh allotment or, any other relief and recom pence.
9. ' It is agreed position that none except the Assistant Custodian considered the controversy about the status of the respondents and the character of the land (in dispute), on merits. The appellants were not then afforded opportunity of hearing. They were necessary parties. Their grievance is that evidence which they could have produced was not before the learned Assistant Custodian.
10. Otherwise, as asserted, the result might have been different. Some of the observations in the case of Syed Ali Abbas do support learned counsel's plea. But for another more important consideration these appeals might have been decided on this point alone.
11. ' The same controversy was before the learned Custodian in a suo motu revision entertained on the reference received from the Deputy Commissioner (D. S. C. Lands). The High Court held on the question of law and jurisdiction that the learned Custodian was competent to decide the matter.
12. Notwithstanding the same, no direction was given for rehearing, by the learned Custodian, on the assumption that he could not be compelled to proceed suo motu. We, with respect, do not agree with the approach of the High Court. As observed by this Court in the case of Sahibrai, "it cannot with any degree of safety be imported for the purpose of rendering orders made by Custodians in the very difficult circumstances attending their duties, final and unchangeable for all time. That would amount in many cases to effecting changes of title in property, and barring all relief despite the existence of clear proof to the contrary." The exercise of suo motu revisional jurisdiction under section 43 of the Act or for that matter suo motu review depended upon two main considerations, one whether the subject matter is such which merited the initiation of the relevant process say by passing the initial order, entertaining the information and/or summoning the record ; and two, consideration and decision thereon. When the first step is taken, it would mean, the second on account thereof has become necessary. The learned Custodian in this case had gone through both the stages. The reference from the Deputy Settlement Commissioner (Lands) which contained the records in the form of enclosure, was formally entertained and was also considered in a speaking order. But on account of an error of law, regarding application of evacuee law to Khairpur State, no decision was rendered on merits. The error having been corrected by the High Court, it was essential that the case should have been remitted to the learned Custodian for completing the process of hearing and deciding the matter on merits in accordance with law. We accordingly while allowing these appeals, set aside the orders of the High Court and remit the entire case for decision in accordance with the law, from the stage when the learned Custodian on erroneous consideration, declined to decide it on merits.
13. ' As to the restoration of the land to the rightful owners, in case the order of the Assistant Custodian is upheld, it is necessary to observe that the claim of the respondents in this behalf, undoubtedly, seems to be fair. If they are the non-evacuee owners and the property is non-evacuee, it needs to be restored to them on principle and general law. The plea of the learned counsel for the Department that the respondents should once again be obliged to make applications, this time under section 23 of the Act, is without substance. That provision in terms does not apply to the present case. Although no legal bar has been pleaded from the side of the Department or the allottee, we find that section 28 of the Act was intended to preserve only the allotments of these properties intact, (against the orders under sections 22 and 23) which properties were "subject to an allot- C ment under the Pakistan Rehabilitation Act, 1956. Under section 6 of the latter Act only 'evacuee property' could be pooled by the Rehabilitation Commissioner for allotment. If ultimately it is found that the property in dispute was never 'evacuee property,' then it could not be pooled for allotment, nor there is any decision of the "Commissioner" in this case, whereunder the respondents were treated by him, as evacuees. Thus section 6 is not applicable. A provision under which non- evacuee property could be allotted no doubt is contained in section 18 read with section 13 of the Administration of Evacuee Property Act ; but it is not attracted because it relates to those properties a part of which is evacuee and the other is non-evacuee. Looked at from the above angle. If the order of the Assistant Custodian is ultimately upheld, it would be necessary to direct restoration of the property to the rightful owners, notwithstanding the allotments in favour of the appellants. In that case the latter would be entitled to seek relief and recompense from the Department/s concerned and not from the owners, in accordance with the law.
14. ' In view of the divided success we leave the parties to bear their own costs.