1. SARDAR SAID MUHAMMAD KHAN, J.-This writ petition has been directed against the order of Custodian, Evacuee Property dated the 14th of June, 1981, whereby the Custodian sanctioned a lease of the land in favour of non-petitioner No. 2, comprising survey No. 437 measuring 64 kanals situated in village Dhamni, District Poonch.
2. The case of the petitioners is that they are in possession of the aforesaid piece of land and they also initiated proceedings before the Rehabilitation authorities for securing the allotment of the land in dispute. Pending the said proceedings with regard to the allotment, the petitioner No. 2 applied to the Custodian for the grant of lease of the same, who sanctioned it in favour of petitioner No. 2. Subsequ--entry, a review petition was filed by non-petitioner No. 2 and Custodian accepted the review petition and cancelled the lease. Petitioners challenge the impugned order on the ground that possession of the property in dispute was not with Custodian and as such, without first taking the possession, the Custodian was not competent to lease out the property to non- petitioner No. 2, in view of provisions contained in section 25 (1) of Pakistan Administration of Evacuee Property Act of 1957.
3. A preliminary objection was raised on behalf of the non-petitioners that petitioners are not `aggrieved' persons within the meaning of section 44 of the Interim Constitution Act and as such the writ petition was not competent.
4. We have considered the arguments on the ,point. In view of the facts that petitioners are in possession of the property in dispute, the parties have also been litigating previously over the property and that the petitioners have also been seeking the allotment of the land before the Rehabilitation authorities, it cannot be said that the petitioners are not 14 aggrieved' within the meaning of section 44 of the Interim Constitution Act. Therefore, the preliminary objection stands overruled.
5. Coming to the merits of the case, the sole ground urged by the learned counsel for the petitioner is that lease sanctioned in favour of non-petitioner No. 2 is violative of provisions of section 25 (1) of the Pakistan Administration of Evacuee Property Act because such lease could not be granted by the Custodian without taking the possession of the property. The learned Counsel has relied on a D.
6. B. Case reported as PLD 1982 Azad J & K 9 wherein it has been held that under section 25 (1) of Pakistan Administration of Evacuee Property Act, it is a pre-requisite condition to take the possession of evacuee land before taking any step visualized under section 25 of the said Act. In the aforesaid view of the matter the action of the Custodian was held without lawful authority. It has been argued by the learned Counsel for the respondents that every person who is or has at any time after twenty-eighth day of February 1947, been in possession or supervision of any evacuee property shall be deemed to hold or to have held, as the case may be, such property on behalf of the Custodian. The learned counsel has argued that the possession of the petitioners would be deemed to be the possession of the Custodian by fiction of law, stipulated in the aforesaid provision. The learned counsel has cited two authorities from an Indian High Court in support of his contention which are reported as AIR 1957 Pat. 459 and AIR 1971 Pat. 31 wherein the point involved was as to whether in view of the provisions contained in sections 4 (1) and 8 (4) of Administration of Evacuee: Property Act of 1950, the Magistrate was competent to proceed under section 145, Cr. P. C. In former caste, 10 it was held that in view of subsection (4) of section 8 of the Evacuee Property Act of 1950 even if .Any other person is found to be in possession of the property, declared to be evacuee, the possession must be deemed to be that of the Custodian. It` is on the aforesaid observations that the learned counsel for the non-petitioners contended that although the Custodian did not take the possession of the property in dispute yet by fiction of law) as contained in section 10 of the Pakistan Administration of Evacuee Property Act of 1957 which is identical to the provisions contained in subsection (4) of section 8 of Evacuee Property Act of 1950, in force in India, it must be presumed that possession of evacuee property was with the Custodian at the time of leasing out the property, even if, in fact, such property was in unauthorised possession of the petitioners or any other person. It may be observed here that the aforesaid authority came up far consideration in subsequent case, already referred, reported as AIR 1971 Pat: 31, wherein a contrary view was taken and doubt was expressed with regard to the correctness of the view taken in: AIR 1957 Patna 549. The learned Judges referred to an unreport--ed case entitled N. D. Nazir Hussain v. Nokha Rai, Criminal Revision No. 457 of 1963 (Patna) and the following observations from the judgment in the said case were reproduced, which are as under :- "With great respect, this view is open to some doubt. Under the provision of the Act, Any one, who is in possession has to make over possession on demand to the Custodian but there is nothing to show that there is any conclusive presumption that actual possession is at a particular time with the Custodian. If a proceeding under section 145 is drawn up, the only question which is to be determined is the question of actual possession, If it is found that some person other thin the Custodian is in actual possession, the Custodian can proceed under section 9 of the Act to demand possession which is necessarily to be surrendered to him. In this view of the matter I do Wt think that there is any conflict between the provisions of the Act and the provisions of section 145 of the Code."
7. It is evident from the above observation that the view held in AIR 1957 Patna 549 was not followed in subsequent cases coming up before Patna High Court. Even otherwise we are hardly persuaded by the arguments that section 10-of the Pakistan Administration of Evacuee Property Act can be interpreted to mean that Custodian should be presumed to be in possession of the property for the purpose of section 25 (1) of the Administration, of Evacuee Property Act even if the property is in possession of can unauthorised person. The perusal of section 10 shows that all that it means is that person in possession of evacuee property, after twenty-eighth day of February, 1947, shall be deemed to be in possession, supervision or management of such property on behalf of the Custodian. It does not mean at all that even if the Custodian is not in possession r of evacuee property, he should be presumed to be in actual possession of the same. The expression employed in section 10 (1), "shall be deemed to hold or to have held, as the case may be, such property on behalf of the Custodian", does not mean that the Custodian shall be presumed to be in possession even if he is not in actual possession: It only stipulates that -person holding evacuee property on behalf of an evacuee or any other person shall be deemed to hold the property on behalf of the Custodian and not on behalf of the evacuee or person who was holding the same on behalf of evacuee. Under section 12 of the Evacuee Property Act, Custodian has been vested with the powers of ejectment of unauthorised possessor of the property. If we assume that Custodian should be deemed to be in possession of the property even if he is not in actual possession of the same the provision contained in section 12 of the Evacuee Property Act and many other-provisions in Evacuee Property Act, 1957 would become nugatory. The well-settled rule of the law of interpretation is that Court shall avoid any conflict in the provisions of the statute by endeavoring to harmonize and reconcile every part so that each shall be effective.