' TANZIL-UR-REHMkN, J.-This is Letters Patent Appeal against the judgment dated 4-9-1968 passed by a learned Single Judge of this Court in Writ Petition No, 339/1963 dismissing the same.
2. The facts leading to this Letters Patent Appeal are that one Mulchand son of Rakhiomal (hereinafter called as the deceased) owned a considerable agricultural land in taluka Sinjhoro in Sanghar District and houses in Shandadpur and Sinjhoro. The deceased originally belonged to a Hindu joint family but on 15-6-1939 by a registered partition deed had been in separate ownership and possession of his properties which had been duly mutated in the record of rights in his name.
The deceased had one wife Devi Bai, mother of respondents Nos. 1 and 2 and four sons namely the two respondents in this appeal and Sachomal and Gianchand. Gianchand died in his childhood in 1940 and Sachomal was killed in 1942 leaving no issue. In or about 1949, it appears that 2(.0 acres of agricultural land were treated as abandoned property by the Rehabilitation Department and the Deputy Custodian, Nawabshah also took some steps on the assumption that the deceased was an evacuee, with the result that the deceased filed an appeal being Appeal No, 207/1949 before the Custodian of Evacuee Properties who referred the matter to the Central Government under section 3 of the Ordinance XV of 1949 (hereinafter referred to as the Ordinance). The Central Government by its letter dated 17-5-1950 informed the Custodian that the deceased was not an evacuee.
Accordingly the Custodian passed an order dated 18-5-1950 holding that the deceased was not an evacuee. Thereafter the deceased received a notice from the Deputy Custodian, Nawabshah under section 23-A of the Ordinance to show cause as to why he should not be declared as an intending evacuee. In response to the said notice the deceased appeared before the learned Deputy Custodian who by his order dated 27-1-1953 held that the deceased was not an evacuee.
However by the said order he held that on account of the partition deed of 1939 the property which stood in the name of deceased did not belong exclusively to him and the said properties were the joint properties of the deceased and his sons. According to the said order, the sons of the deceased had migrated to India and their shares were evacuee but as the deceased had not migrated, his share in the property was not evacuee. When the Deputy Custodian passed this order he appears to have not given any notice to the sons of the deceased.
' Accordingly, the deceased filed a Revision Application against this order of the Deputy Custodian, Nawabshah before the Custodian who disposed of the said Revision Application by his order dated 14-6-1954 dismissing the same but observed that the deceased may file an application under section 18 of the Ordinance. The deceased on 8-7-1954 accordingly filed an application under section 18 of the Ordinance before the Assistant Custodian, Nawabshah but before this application could be decided the deceased Mulchand died on 14-10-1954, where after respondents Nos. 1 and 2, the only surviving sons of the deceased were brought on record and made parties to the said proceedings under section 18 of the Ordinance. The Assistant Custodian before deciding the said application called for report from Mukhtiarkar and after recording the evidence passed an order on 12-8-1955 whereby he held that the deceased was not an evacuee and that two sons of the deceased, the respondents Nos. 1 and 2 in this appeal, who are his heirs were not evacuee and were the owners of all the properties in dispute. Thereafter respondents Nos. 1 and 2 got all these properties mutated in their names. It may also be mentioned that the deceased had also left a will dated 4-6-1954 wherein he had bequeathed the entire property to respondents Nos. 1 and 2. It appears that some time thereafter the Deputy Commissioner, Sanghar ordered the cancellation of that mutation, but respondents Nos. 1 and 2 appealed to the Commissioner, Hyderabad Division who set aside the order of the Deputy Commissioner and confirmed that respondents Nos. 1 and 2 were the heirs of the deceased and were entitled to be entered as the owners of the said properties in the land record. It appears that some Miscellaneons Applications before the Custodian were filed in respect of some other matters, wherein it was also alleged that the above Assistant Custodian's order dated 12-8-1955 was irregularly passed. The Custodian in his order dated 31-7-1956, while referring to the said order dated 12-8-1955, observed as follows "Your allegation that the Assistant Custodian made ex parte decision in Mulchand's case is not, therefore, based on facts."
3. The regents thereafter appear to have taken a different turn. On 23-11-1958 Mr. Abdul Quddus Behari filed an application that respondents Nos. 1 and 2 were holding concealed evacuee' property. They were served with a notice of the said application. The said application was, however, dismissed by the Assistant Custodian by his order dated 5-1-1959 against respondents Nos. 1 and 2.
In 1960 the Deputy Commissioner, Sanghar started an enquiry against respondents Nos. 1 and 2 under M. L. R. 49 but respondents Nos. 1 and 2 challenged the said enquiry through a Writ Petition filed in this Court being Writ Petition No, 381/1960. The notice of the said petition was served on the Deputy Commissioner, Sanghar who after service of the notice dropped the proceedings against respondents Nos. 1 and 2 and accordingly the said petition was then withdrawn by respondents Nos. 1 and 2.
4. In or about March, 1960 some lands belonging to respondents Nos. 1 and 2 were given under a permanent settlement scheme to one Afzal Ali, father of the appellants, now deceased, but on the application of respondents Nos. 1 and 2 that order of transfer in favour of Afzal Ali was cancelled.
Despite the cancellation of the order of transfer in his favour, Afzal Ali remained in possession of the land which had been wrongly allotted to him, which compelled respondents Nos. I and 2 to file a Writ Petition in this Court being Writ Petition No, 210/1962. The said petition was allowed by the then learned Chief Justice of this Court by his order dated 19-8-1965. In his order the learned Chief Justice held that on the basis of the above-mentioned order of the Assistant Custodian, Nawabshah dated 12-8-1955 respondents Nos. 1 and 2 were not evacuees and therefore, their lands could not be allotted under the Permanent Settlement Scheme or any other Scheme. A Letters Patent Appeal was filed by Afzal Ali (the father of the appellants) which was dismissed in limine by a Division Bench of this Court. Thereupon Afzal Ali filed a petition for leave to appeal in the Supreme Court. The leave was granted by the Honourable Supreme Court on 1U-1-1969 to consider only the question of law whether it was rightly held that on the declaration of the status of Mulchand and his property as non-evacuee on 25-5-1950, the order of allotment in favour of the appellants ceased to confer any right on him in view of section 19-A of the Pakistan (Administration of Evacuee Properties) Ordinance (XV of 1949) or the re-enacted section 24 of the Pakistan (Administration of Evacuee Properties) Act (XII of 1957). The said appeal was, however, dismissed by the Honourable Supreme Court by its order dated 4-5-1982.
5. Meanwhile criminal proceedings under section 145, Cr. P. C. Had been started by Afzal Ali against respondents Nos. 1 and 2 before a Sub-Divisional Magistrate, Shabdadpur, who appointed Receiver of a portion of the properties of the said respondents. Thereupon the said respondents filed Criminal Revision Application No, 174/1961 in this Court which was heard and allowed by this Court by its order dated 8-8-1962.
6. Mr. Abdul Quddus Behari who had been unsuccessful in his application made by him on 23-11- 1958, filed an appeal against the order of the Assistant Custodian dated 12-8-1955 being Appeal No, 42 of 1962. This appeal came up for hearing before the Additional Custodian, Evacuee Properties. As the appeal was filed nearly seven years after the impugned order, the Additional Custodian dismissed the said appeal. However, in his order dated 28-2-1963 he observed as under :- "The Assistant Custodian has omitted to consider these aspects and Assandas having been held to be an evacuee in 1953 by the Deputy Custodian, the Assistant Custodian should have considered this aspect. In view of the above, the file is sent to the learned Custodian for suo motu action with a recommendation that the order of the Assistant Custodian dated 12-8-1955 be revised. The office would issue notices to the parties fixing 16-3-1963 to appear before the learned Custodian."
7. In pursuance of this order dated 28-2-1963, the learned Custodian issued a notice to respondents Nos. 1 and 2 to appear before him on 17-5-1963. The validity of this notice was challenged by respondents Nos. 1 and 2 through a Writ Petition filed by them being Writ Petition No, 339/63. A learned Single Judge of this Court allowed the said Writ Petition by his judgment dated 4- 9-1968 holding that the said show-cause notice dated 29-4-1963 issued by the learned Custodian calling upon respondents Nos. 1 and 2 to appear before him on the 17th of May, 1963 was illegal and without lawful authority. Against the said judgment dated 4-9-1968 the appellants have now come in appeal which is before us.
8. The only point to be considered in this appeal is whether the learned Custodian had jurisdiction to issue the impugned notice under its suo motu revisional powers as laid down under section 43 of the Ordinance XII of 1957. Mr. M. M. K. A. Zai, learned counsel for the appellants urged that there is no time limit as to the exercise of suo mote revisional power by the Custodian under section 43 and that section 3 of the Act was not a bar to the exercise of such power. It is, therefore, pertinent to consider the provisions of section 3 read with section 43 of the Pakistan (Administration of Evacuee Properties) Act, 1957 (hereinafter referred to as the Act) which are reproduced below :- "Section 3. Property not to be treated as evacuee property on or after January, 1957.- 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.
(2) Nothing in subsection (1) shall apply-
(a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such persons as evacuee or such property as evacuee property; or
(b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February, 1947, has not been accepted or approved by the Custodian.
' Section 43
(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 time, either of his own motion or on application made to him within the prescribed period in this behalf call for the record of any proceedings for the administration of evacuee property, which is pending before or has been disposed of 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 he thinks fit : ' Provided that the Custodian shall' not pass an order revising or modifying order affecting any person without giving such person and the Rehabilitation Authority an opportunity of being heard.
(5) The Custodian may dispose of a case under subsection (4) himself or, except when it relates to an order of an Additional Custodian, make it over to an Additional Custodian for disposal.
(6) Clerical or arithmetical mistakes in any order passed by any Custodian under this Act, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Custodian concerned or his successor-in-office.
(7) Subject to the foregoing provisions of this section (and the other provisions of this Act) any order made by the Custodian, or Additional, Deputy or Assistant Custodian, shall be final and shall not be called in question in any Court."
9. Section 3 has been considered in a number of decisions reported as Kishanchand Jethanand and others v. Custodian Evacuee Property, Karachi and South Zone, West Pakistan at Karachi and others (1), Abdul Khaliq Abdul Razzaq v. Kishanchand and others (2) and Syed Ali lqadar Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan, Lahore (3).
10. In the Karachi case the facts were that the properties in dispute were owned by a Hindu by the name of Gangaram Virumal and by Muhammad Ilyas. The properties comprised agricultural land in Deh Wabtro Jagir and Deh Buwaro Jagir, Sind. By two registered sale-deeds, dated 21st April, 1947, Gangaram Virumal and Muhammad Ilyas sold both the said properties to Jethanand Hiranand father of Kishanchand petitioner No, 1, Tikamdas Hiranand petitioner No, 2 and Babulal alias 'Deepchand Hiranand petitioner No,
3. Gangaram Virumal had a two-third share in the said properties and Muhammad Ilyas had a one-third share. At the date of the sale-deeds, the evacuee laws had not come into force, therefore the question of confirming these transactions did not arise.
Further despite the sales, the vandees did not effect the mutation of the sales in their favour. Taking advantage of this, Muhammad Ilyas sold his one-third share in the said properties to Abdul Khaliq Abdul Razaq. Thereafter, on the assumption that the other two-third share in the said properties was evacuee, Abdul Khaliq Abdul Razaq applied to the Custodian for the purchase of the said two- third shares and the Custodian having obtained the approval of the Central Government, executed a sale-deed in favour of Abdul Khaliq Abdul Razaq, in May, 1958. Meanwhile Kishanchand and others, who had purchased the properties in 1947, applied to the Deputy Custodian, Evacuee Property, for confirmation of the sales in their favour. Out of the three Hindu purchasers, one had become evacuee, therefore, by two orders dated 10th October, 1956, the Deputy Custodian confirmed the sales in favour of Kishanchand and Tikamdas, and declared the share of Babulal to be evacuee. In due course, Kishanchand and Tikamdas effected the mutation of the two-third share of the said properties in their favour. Meanwhile, Abdul Khaliq Abdul Razzaq came to know of this, and before the sale of the said properties in his favour was registered, he made an application to the Custodian under the said Act for setting aside the orders of confirmation in favour of the Hindu purchasers dated 10th October, 1956 in the exercise of the Custodian's suo motu powers of revision under the said Act. After hearing the Hindu purchasers, in the exercise of suo motu revisional powers, the Custodian set aside the orders of the Deputy Custodian confirming the sale of the properties in April, ;947 in favour of the Hindu purchasers. Thereupon these purchasers filed a writ petition in this Court challenging the orders of the Custodian cancelling the confirmation of the sales in their favour. Mr. Justice Wahiduddin (as he then was) who diverted the judgment of the Court observed as under :- "It is therefore perfectly clear to us that section 3 is an overriding provision of law and if in its application in certain cases the other provisions in the evacuee law are rendered 'neffective, the Courts
(1) PLD 1961 (W. P.) Kar. 589 (2) PLD 1964 SC 74
(3) PLD 1964 (W. P.) Lah. 274 of law cannot question the wisdom of the Legislature. The very fact that revisional and review powers under section 43 are not specifically saved clearly indicates that it is also subject to the provisions of section 3. Admittedly no proceedings in this case were pending on 31st December, 1956. There is also nothing to show on the record that any other action had commenced in the Custodian or Rehabilitation Departments in respect of the property in dispute which had not terminated. It was however urged that the words "in respect of which any action has commenced" refer to all such cases which at any time were dealt with by the Custodian and include an order which is still subject to the revisional or review powers of the Custodian. We have already repelled this contention and it seems to us that refers only to those cases where the Department has taken some to treat any person or property as evacuee but which has not taken any final shape or has not resulted in any effective action. Any other construction would not only render the provisions of section 3 as worthless piece of legislation but would also not attach any meaning to the words 'or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property". In our opinion the above-mentioned words which follow the words 'in respect of which an action has commenced' clearly show that they do not refer to those cases which have already been disposed of or terminated. It is correct that the person or property in respect of which an action has commenced is different from the person or property in respect of which any proceedings are pending but the difference is only this much that the actions commenced are those (sic) which have not reached the stage or taken the shape of proceedings. In our opinion, in the circumstances of this case, the learned Custodian had no jurisdiction to interfere with the order of the Deputy Custodian."
11. In the case of Supreme Court the above judgment was appealed against in the Honourable Supreme Court by Abdul Khaliq Abdul Razak, as referred to above, which was heard and decided on 2nd December, 1963 by a Full Bench of five Judges of the Honourable Supreme Court. The Honourable Judges of the Honourable Supreme Court upheld the judgment of this Court in appeal, referred to above, and observed that : "The position in the present case is that the Deputy Custodian's order was not challenged by an appeal or by a revision by any interested party at all. Could the case then be said to be pending, merely because the Custodian might choose to exercise his suo motu powers of revision at some unspecified point of time? Such a view would deprive persons in the position of the respondents, from the benefit of section 3 of the Act. The words of subsection (1) of section 3 are however general in character and there appears no good ground for holding that a case of the present kind is not within its ambit. Clause (a) of subsection (2) of this section merely saves cases in which an action has commenced or any proceeding is actually pending immediately before the date mentioned in subsection (1). There is no saving provided for any other case. This clause therefore negatives the suggestion made on behalf of the appellant that a case which may be subject, hypothetically, to the suo moot powers of revision possessed by the Custodian, would be outside the four corners of subsection (1)."
12. The last mentioned decision is that of the Full Bench of erstwhile High Court of West Pakistan, Lahore consisted of five honourable Judges. The facts in the said case were that one Bakhat Bedar Shah sold on the 23rd of April, 1935 certain agricultural land in Lyallpur District for Rs, 55,250 to one Sohan Singh. The vendor died in the year 1945. Brigadier Riaz Hussain Shah, Col. Muhammad Mukhtar Shah and Ali Iqtidar Shah, the sons of the vendor, alongwith the sons of Bakhat Bedar Shah, another son of the deceased, on the 30th of October, 1947 brought a suit against the purchaser for declaration that the alienations of ancestral lands did not affect their reversionary interests on the ground that the sale was without legal necessity. The suit was decreed on the 19th of February, 1948 ex parte by Ch. Fazle Illahi, the then Senior Sub-Judge, Lyallpur. After the introduction of the Evacuee Laws, the petitioners filed an application under section 18 of the Ordinance No, XV of 1949 for a declaration that the lands in dispute were not evacuee properties.
The learned Deputy Custodian, Lyallpur, by order dated the 26th of March, 1952, accepted the contention of the petitioners and granted them a declaration subject to confirmation by the Custodian. In giving the above-mentioned declaration he relied on the judgment and decree passed by the Civil Court. Mr. Fateh Khan, the then Additional Custodian of Evacuee Property, by order dated the 12th of June, 1952 confirmed the order of the Deputy Custodian and declared I share in the property in dispute as non-evacuee. This was followed by mutation in the revenue records. In November, 1959 this case was brought to the notice of the Custodian of Evacuee Property, Lahore, who on 15-11-1959 issued notices to the petitioners for suo motu revision of the order passed by the learned Additional Custodian referred to above. On the 8th of February, 1960 the learned Custodian set aside the order of the learned Additional Custodian and remanded the case for further inquiry. The petitioners sought to challenge the order in the writ petition on the ground that it was passed without jurisdiction. The petition was allowed. The relevant observations of Mr. Justice Waheeduddin (as he then was) who delivered the opinion of the Full Bench and answered the reference on 5-3-1954 read as under :- "I will now pass on to another argument, namely that section 3(1) is not applicable to those case where a property admittedly was evacuee property and is claimed by a third party on the basis of a transfer in his favour. It is contended that even if such transfer is confirmed, it is open to the Custodian Authorities under their revisional or review powers to reopen the confirmation of such transaction. This contention also cannot be supported on the language of the above-mentioned provision of law. Once the Custodian Authorities have confirmed the transfer in favour of a third party such property ceases to be evacuee property and by no stretch of imagination can be considered to have been treated as evacuee property, immediately before the first of January, 1957. It was urged that if this view is taken, the revisional and review powers given to the Custodian Authorities would become nugatory. It was also suggested that if a case is decided about ten days before the 1st of January, 1957 by the Custodian Authorities, the aggrieved party on this interpretation will be deprived of his right to move the Custodian Authorities in their appellate, revisional or review jurisdiction. The hardships pointed out by the learned counsel for the department are no doubt there, but if the language of the section takes away these powers of the Custodian no Court of law, simply on the ground of hardship, can interpret any provision of law in order to remove such hardships.
13. We may also refer to the observations of the Honourable Supreme Court made in Civil Appeal No, K-26 of 1970 filed by Afzal Ali, the appellants' deceased father, against the respondents Nos. 1 and 2 which has been referred to while stating the facts of the instant case. It reads as under :- "The admitted position of this case is that respondents Nos. 1 and 2 and their properties were declared as non-evacuee on 12-8-1955, whereas the appellant was settled on the disputed portion of the land out of the properties of the said respondents much thereafter in the year 1960 under the Settlement and Rehabilitation Scheme. As already held in the decision referred to above, section 19-A of the 1949 Ordinance and section 24 of Act XII of 1957 had the effect of saving allotments made under the Pakistan Rehabilitation Ordinance, 1948 and not permanent settlement under section 15 of the Displaced Persons (Land Settlement) Act, 1958 as is the case here. Once the property of a person is .Declared as non-evacuee property, it would cease to be subject to the jurisdiction of the Settlement Authorities and cease to be a part of the compensation pool constituted under section 5 of the said Act. Such land cannot be made the subject of permanent settlement under the Rehabilitation Settlement Scheme."
15. The main point for consideration in this case is whether an action had commenced or any proceedings were pending immediately before the 1st day of January, 1957 in terms of clause (a) of subsection (2) o section 3 of (Administration of Evacuee Properties) Act, 1957 for treating respondents Nos. 1 and 2 as evacuee or their property as evacuee property. Admittedly there was no action which had commenced nor any proceeding was pending immediately before the date mentioned above for treating respondents Nos. 1 and 2 as evacuee or their property as evacuee property. The action or the proceeding taken against the deceased father of respond-B dents Nos.
1 and 2 or the respondents themselves had terminated as long before as on 12-8-1955 by the order of the Assistant Custodian. The action commenced or proceeding taken had come to an end on 12.8-1955 when the order of the Assistant Custodian was passed. This order declared respondents Nos. 1 and 2 as non-evacuees and so their properties as non-evacuee properties, which was not set aside or modified by any Authority in the Department of Custodian. With the result that the said order still holds the field which has been affirmed and re-affirmed in the proceedings initiated in Writ Petition No, 210 of 1962.
16. The observations in the judgment reported in PLD 1961 (W. P.) Kar. 589 are pertinent which we quote below with advantage :- "In our opinion the above-mentioned words ("or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property") which follow the words "in respect of which an action has corn-inenced" clearly show that they do no refer to those cases which have already been disposed of or terminated."
17. Mr. Zai, learned counsel for the appellants urged that the order dated 12-8-1955 was illegal inasmuch as an Assistant Custodian was not competent to declare the status of respondents Nos.
1 and 2 and their properties as non-evacuee in the face of the earlier order dated 27-1-1953 of the Deputy Custodian whereby only Mulchand (the deceased) was declared as non-evacuee. He further urged that application under section 18 of the Ordinance XV of 1949 could be filed within sixty days under rule 13 of the Pakistan Evacuee Property Rules, 1950 whereas the application under section 18 of the Ordinance XV of 1949 was filed much after the said period and as such it was time-barred. It may be stated that the said points do not arise in the appeal before us. We are, however, of the view that proceedings under section 18 of Ordinance XV of 1949 were independent proceedings and, prima facie, the order dated 12-8-1955 could have been passed by the Assistant Custodian. Rights of the citizens in their properties cannot be allowed to be put in jeopardy in the manner it is sought by invoking the presumed suo motu jurisdiction which does not exist any more after 31-12-1956, except in cases in which actions had been commenced or proceedings taken but not terminated prior to 1-1-1957. In the instant case, the action initiated and proceeding taken had terminated as long back as 1955.
18. For the reasons discussed above, we are of the view that the Custodian had no jurisdiction to reopen the question of the status of respondents Nos. 1 and 2 and their properties after 31-12-1956 and thus, the impugned show-cause notice dated 14-4-1963 calling upon the said respondents to appear before the Custodian in the matter of suo motu revision under section 43(4) of the Act XII of 1957 against the order of the Assistant Custodian, Nawabshah dated 12-8-1955 is without lawful authority and of no legal effect. The appeal is, therefore, dismissed but, in the circumstances of the case, there will be no order as to costs.