1. MUHAMMAD JAFAR NAIM, J.-The petitioner made an application to the Deputy Settlement Commissioner, Quetta on 14-1-1967 alleging that the properties bearing Khasra Nos. 4653, 4654, 4655 in Quetta Town were hidden Evacuee Properties. This was referred to the Deputy Custodian of Evacuee Property. The Deputy Custodian Evacuee Property Khairpur disposed of this reference by his order dated 4-12-1970. He refused to treat the property in Khasra No. 4655 as evacuee property.
2. The petitioner filed an appeal to the Member Board of Revenue under section 43(4) of the Pakistan Administration of Evacuee Property Act (XII of 1957). This appeal was dismissed by the Member Board of Revenue on 7-6-1976. The petitioner feeling aggrieved by these two orders filed the present petition for seeking a declaration that these two orders by the Deputy Custodian and the Member Board of Revenue as Custodian Evacuee Property respectively be declared as illegal and being without lawful authority. He also prayed for a declaration that order of the Custodian of Evacuee Property dated 28-10-1948 and another dated 13-9-1957 may also be declared to be without lawful authority. He further claimed that the sale transaction in respect of Khasra No. 4655 effected by Mst. Bhag Wanti in favour of Anar Din through a Registered Sale Deed be also declared void. The petitioner's case as disclosed from the petition is that one Dr. T. R. Kanal had made a will on 31-1-1946 in respect of property situated in Quetta District. Dr. Kanal died at Sukkur on 11-10-1946.
3. According to the will all the immovable properties including the Khasra No. 4655 devolved in equal shares on Sham Sundar a grand--son of the testator and one adopted son. Sham Sundar was placed under the guardianship of Mst. Bhag Wanti. The other beneficiary was in the care of Mst.
4. Mooni Bai wife of the son of Dr. Kanal. Mst. Bhagi Bai or Bhag Wanti and Mohinibai were trustees of the property of the minors under the will. Dr. Kanal died at Sukkar on 11-10-1946 and thereafter Mst.
5. Bhag Wanti obtained a non-evacuee certificate from the then Custodian of Evacuee Property on 28-10-1948. She got the property mutated in her name on 1-11-1948 in the revenue record.
6. Subsequently Mst. Bhag Wanti sold the property including the Khasra No. 4555 to Malik Anar Din by Registered Sale Deed on 28-3-1949. The petitioner claims to have been in possession of 6600 sq. Ft.
7. Of land out of Khasra No. 4655 for about 25 years and has constructed godowns on that piece of land.
8. The respondent No. 2 initiated proceedings for eviction of the petitioner before the Controller, Quetta. The petitioner moved the Deputy Custodian Evacuee Property for treating the property as evacuee which the Deputy Custodian declined to do. The petitioner filed an appeal which too was dismissed by the Member Board of Revenue on 7-6-1976.
2. The learned counsel of the petitioner contended that firstly, Mst. Bhag Wanti had limited interest in the property as a widow and the ultimate beneficiaries were Sham Sundar and Oam Parkash and as such the mutation dated I-11-1948 was fraudulent and subsequent transfer in favour of Haji Anar Din by Registered Sale Deed dated 28-3-1949 was also of no consequence. His next contention is that the sale consideration of Rs. 28,000 was meagre for such huge property and this also reflects upon the shadiness of the transaction. He further contended that the orders of the Custodian Evacuee Property dated 28-10-1948 and that dated 13-9-1957 did not include Khasra No. 4655 and so the property continued to be an evacuee property, though hidden. The trend of his argument primarily was that the sale transaction dated 28-3-1949 was fraudulent as the- sale- deed had been registered by the Registrar, Quetta only on account of real nature of the property having been concealed from him. The Registrar would have declined to register the document on account of bar imposed upon him by the Evacuee laws. If he knew that property was evacuee property he would not have registered it. The powers of Registrar to register conveyance of property were curtailed by section 17 of Administration of Evacuee Property Regulation I of 1950 and later by section 21 of Pakistan Administra--tion of Evacuee Property Act of 1957 in respect of transactions by evacuees.
3. As regards the first point as to what interest Oam Parkash and Sham Sundar had under the will of Dr. Kanal dated 31-1-1946, or what interest Mst. Bhag Wanti had in the property or that as a guardian of one minor beneficiary she could transfer the whole property to predecessor of the respondent No. 2 or that the transaction was shady on account of the meagre consideration could be determined in a regular suit in a proper civil Court, as these points could well be determined in a more extensive jurisdic--tion. It would be beyond the scope of writ jurisdiction to go into the legality or otherwise of the transactions or for that matter the mutation dated 1-11-1948.
9. The petitioner has challenged the order of the Custodian of Evacuee Property dated 28-10-1948 and 13-9-1957. The petitioner's case is that the property comprised in Khasra No 4655 was not included in the evacuee certificate issued on 28-10-1948 and also in the order dated 13-9-1957. The first order was made by Mr. P. E. Miall the then Custodian of Evacuee Property Baluchistan and the second order was made by Mr. Justice Mohammad Bakhsh Memon, Custodian Evacuee Property, South Zone West Pakistan in revision. The certified copies of these orders are placed on the record of this petition and show the particulars of the properties in respect of which the certificate had been granted. The certificate of 28th October, 1948 reads as follows :-, "This is to certify that the property (Five residential houses bearing Municipal Nos. 6=9/18 to 21 and 6-9/33 situated in Islamabad, one shop No. 2-24/13 situated on Gaisford Road, one House No. 2- 28/4 situated on Bhag Mall Street, three shops and 12 temporary huts Nos. 9-13/80 situated on Stewart Road (Civil), two shops Nos. 5-5/41 and 5-5/43 and one house No. 5-5/42 situated on Motiram Road Agricultural Land at Hanna areas about 14 acres; and Khushkaba Land at Lonar Karez acres 2-2-18 and Khusar Karez 9-3-32 of Mst. Bhagwanti Devi widow of Mr. T. R. Kanal resident of Quetta has been declared as non-evacuee property under the provisions of section 9(1)(a) of the Baluchistan Protection of Evacuee Property Regulation 1 of 1948."
10. It is very clear from the certificate that only the properties specified in this certificate were declared as non-evacuee property. The land in Khasra No. 4655 does not find place in the certificate.
11. Similarly the order by the Custodian of Evacuee Property South Zone West Pakistan on 13-9-1957 made in the exercise of review jurisdiction under section 36(5) of Regulation I of 1950 does' not embrace property bearing Khasra No. 4655. In the end of the order Mr. Mohammad Bakhsh Memon wrote the last sentence "the lady and her property are clearly non-evacuee". This expression could be used only with reference to the nine properties described in the order and not beyond it. Since these two orders do not make any mention of land in Khasra No. 4655 it will be futile to make any declaration in respect of these orders. .The learned counsel of the respondent No. 2 could not also show that Khasra No. 4655 was included and covered by these two orders. For the purposes of the present petition we need not go into the merits of these two orders. The learned counsel of the respondent No. 2 has also drawn. Our attention to a judgment of this Court in Writ Petition No. 04/69 in. Which the validity of those two orders was examined. The question about the validity or otherwise of these orders need not be gone .Into for the second time and more over for the reasons that the property in Khasra No. 4655 is not included under these orders, which fact is borne out from the orders themselves and the respondent No. 2 cannot take shelter behind these orders. It is an admitted position that property comprised in Kharsa No. 4655 had not been declared as an evacuee property till the time the petitioner made an application to the Deputy Custodian on 14-1- 1967. The petitioner wanted to seek a declaration from the Deputy Custodian that land in Khasra No. 4655 was evacuee property. The Deputy Custodian dismissed the application of the petitioner.
12. The Member Board of Revenue with powers of Custodian dismissed the appeal on two grounds that the appeal was time-barred and that after 1-1-1957 no property could be declared evacuee according to section 3(1) of XII of 1957. These two observations of the Member Board of Revenue are based on a mis-exception of law. The Deputy Settlement Commissioner had referred the case in respect of Khasra No. 4655, presumably under section 41(2) of the Pakistan (Administration of Evacuee Property) Act of 1957 which required that if such question as was referred to in clause (a) subsection (1) arose in any Court or before any other authority it should be referred for decision to the Custodian. Subsections (1) and (2) of section 41 of the Act are reproduced below for convenience :- "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 is 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."
13. The subsection (2) of section 41 of the Act prescribed the way in which such questions are to be resolved. It also gives conclusiveness to the decision of the Custodian. The term Custodian includes the Deputy Custodian as well. The Act itself did not provide any appeal against such decision as provision of appeal would have taken away the conclusiveness of the order. The provisions of appeals and revision are given in section 43(1) to (4) of the Act which was as under :-- "43. Appeal, revision and review-(1) Any person aggrieved by a final order under section 20, section 22 or section 23 passed by a Deputy or Assistant Custodian may prefer an appeal to the Custodian.
(2) The appeal shall be presented in such manner and within such time as may be prescribed.
(3) The Custodian to whom an appeal is preferred under subsection (1) may dispose of it himself, or make it over for disposal to an Additional Custodian.
(4) The Custodian may, at any tine, either of his own motion or on application made to him within the prescribed period in this behalf call for the record of any proceeding for the administration of evacuee property, which is pending before or has been disposed or by, an officer subordinate to him, including an Additional Custodian, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may pass such order in relation thereto as thinks fit."
14. The right of appeal had been given to persons who are aggrieved by any final order made under sections 20, 22 or 23 of the Act. There is no right of appeal against any order made under section 41(2) of the Act. Similar scope of revision is also restricted to certain orders as will be seen from reading subsection (4) of section 43 of the Act. Revisional jurisdiction I granted only in respect of any proceedings for the Administration of Evacuee Property or any order passed in this behalf.
15. When there was no right o appeal the question of limitation does not arise and appeal of the petitioner could be dismissed as incompetent and misconceived. We agree with the Member Board of Revenue as far as fate of the appeal is concerned though for different reason. The next contention of the counsel of the petitioner was that property in Khasra No. 4655 will not be one to be covered under the caption "property not treated as evacuee". The certificate issued b the Custodian of Evacuee Property on 28-10-1948 and order of the Custodian dated 13-9-1957 are silent about this property a part of which had been subject of litigation between the petitioner and respondent No. 2 and also involved in this petition. There is no order whatsoever of any nature declaring this property as evacuee or non-evacuee before. In circumstances of the case subsection (1) of section 3 would not operate as a bar to the treatment of the property as evacuee property after 1-1-1957. The property has never been treated as non-evacuee property before first January, 1957. There never was any expression from the Custodian of Evacuee Property to suggest that Khasra No. 4655 was not being treated as evacuee property. In this behalf the learned counsel of the petitioner has relied upon the conclusion drawn by late Justice Inamullah as he then was in the case of Ali Iktidar Shah v. Custodian PLD 1964 Lah. 274These conclusions are contained in paragraph 10 of the judgment of which sub-paragraph (1) is relevant. According to the view some overt act would be necessary to show that the property was not treated as evacuee property. It appears that the custodian of evacuee property had never been in the know that such property existed much less an overt act on the part of the custodian to show that he has not treated . It as evacuee property. These views of the Member Board of Revenue and the Deputy Custodian seem to be based on wrong assumptions. The order of Deputy Custodian though wrong cannot be termed as without jurisdiction.
5. During the pendency of the petition the petitioner moved an appli--cation to join respondents 3 and 4 in the petition and after permission having been granted to him they were so jointed. The respondent No. 3 in persuance of a compromise in a civil suit acquired land in the Khasra No. 4655 and transferred 4,000 sq. Ft. To the respondent No. 4. Since this piece of land so transferred was alleged to be part and parcel of the land in occupation of the petitioner, respondents 3 and 4 have been joined in the petition. The .Counsel of the respondent No. 4 has urged that notification under section 4 of the Land Acquisition was issued and published on 21-4-1976 in respect of land acquired by Collector, Quetta for respondent No. 3. Declaration under section 6 of the Land Acquisition Act had been published in the Gazette of Baluchistan on 29-9-1976. After the publication of this notice, another notice was issued to the owner on 19th October, 1976 and finally the order of taking over was made by the Collector Quetta on 12th July, 1977. The contention of the learned counsel of the respondent No. 4 is that in spite of all these notifications and public notices the petitioner kept) quiet and did not prefer any claim against the acquisition of the property and therefore on account of his acquiescence, the petitioner now cannot challenge the transfer made by the respondent No. 3 in favour of respondent No. 4 as it will amount to opening of the matter finally completed under sections 9 and 10 of the Land Acquisition Act. This argument has also some force.
6. The petitioner has not shown in the petition his right in the plot which is in his occupation. He has also not claimed transfer of this plot under any of the Settlement Schemes framed under Displaced Persons Compensation Act, 1958 nor he has shown his entitlement to such transfer. His only claim to file this petition is on the basis of occupation for the last 25 years. In the case of Nisar Ahmad v.
16. Additional Secretary Food and others (1979 SCMR 299it was held that in order to invoke writ jurisdiction the petitioner must establish direct or indirect injury to himself and substantial interest in the subject-matter. The learned counsel of the respondent No. 2 also relied upon the case of Associated Cement Companies Ltd. v. Pakistan (PLD 1978 SC 151) in this behalf. The petitioner has not filed copy of his application ever made to the Deputy Settlement Commissioner for transfer of plot. He has nowhere claimed in his petition a right to transfer of this plot under any of the schemes prescribed under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Mere occupation in an unauthorised manner is not sufficient to put the petitioner in the category of aggrieved person. He should have shown substantial damage to his lawful right to invoke' the constitutional jurisdiction. The principles laid down in the two Supreme Court cases referred above are fully attracted-in the present case.
17. The Deputy Custodian declined to treat this property as Evacuee Property on 4-12-1970: The petitioner could challenge that order in writ jurisdiction but he instead went to the Custodian and filed an incompetent appeal. As far as the order dated 4-12-1970 is concerned, the petition has been filed after six years and as such suffers from laches as well on the part of the petitioner. The petitioner not being an aggrieved person for the purpose of the petition and his previous conduct being incompatible with his pleas, we are of the view that the petition should fail and we dismiss it accordingly, with no order as to cost. s. A. H.