1. ' This constitutional petition has been filed challenging the validity of the order passed by the Additional Custodian of the Evacuee Property confirming the sale transaction of the agricultural land bearing Survey No.480 situated in Klar, Taluka Kamber, District Larkana in favour of the respondent. The petitioner claims to be the purchaser of this land from one Syed Zamiruddin son of Syed Waziruddin under a registered sale-deed dated 16-2-1971. The land was transferred to Zamiruddin in lieu of his claim on 9-4-1970.
2. ' This land belonged to a Hindu evacuee Rochomal son of Hasndas. It was sold to respondent No.1 Khair Muhammad under a registered sale-deed dated 20th May, 1947 for a consideration of Rs.
3. 2,385. On 10th June, 1947 mutation in the record of right was effected in favour of the purchaser/respondent.
4. ' As is well-known the right of disposal of their properties by evacuees was subjected to the evacuee laws and sale in respect of evacuee property could not confer any right on the purchaser unless such sales were confirmed according to provisions of the evacuee law.
5. On 4-2-1954 the respondent No.1, moved an application under section 16 of Ordinance XV of 1949 seeking confirmation of this purchase in his favour. This application was dismissed by the learned Deputy Custodian by his order dated 2-8-1956. This order was passed ex parte as is evident from the following passage in the order:- "This application presented on 4-2-1954 under section 16 of Ordinance XV of 1949 to confirm transaction of sale of property prescribed hereinbelow and adjourned at the request of the applicant from time to time covering a period of about 2i years, coming up for final disposal on 2- 8-1956 is hereby rejected in the absence of :-
(1) The applicant or any person on his behalf.
(2) Evidence of transfer for want of proper order of condoning delay under section 5 of Limitation Act.
(3) Income-tax Clearing Certificate etc. etc."
6. ' The order proceeds to say that the property should be resumed as evacuee property and dealt with accordingly. On 5-2-1967 "an applica tion for restoration of the case and its disposal on merits" was moved. This application inter alia contains grounds explaining the delay in filing this application for restoration. It was stated that respondent herein had engaged an Advocate to pursue this application. This Advocate was absorbed in the judicial service of the province and had informed him that the sale had been confirmed by the Custodian. In para. 5 it is stated "that it was only on 31-1-1967 that a notice was served on the applicant by the Mukhtiarkar to produce documentary evidence in support of his contention". Only through this notice he came to know that the transaction was still not confirmed and the application for confirmation was dismissed in default. As such the application for revival of the original application was being moved. By an order dated 19-6-1972 the learned Deputy Custodian before whom this application was filed dismissed the confirmation application on a short point. On examining the transaction he discovered that the registered sale-deed produced for confirmation before the Custodian indicated that the whole share of evacuee Rochomal had been sold away, but in the revenue records mutation to the extent of 8 Anna share was affected. This discrepancy, according to learned Deputy Custodian cast a shadow on the transaction and he dismissed this application on this ground.
7. ' Respondent No.1 filed an appeal before the Additional Custodian, Evacuee Property. This appeal was heard by the learned Additional Custodian and an order was passed on 31-3-1973 confirming the trans action of sale in favour of respondent No.1. Salient features of this order are that delay in filing the application was condoned by the Additional Custodian. The order was passed after due notice to the Deputy Commissioner Larkana. Order shows that the land in question had all along remained in possession of the purchaser/respondent. That the revenue records show that the mutations were effected In favour of the respondent to the extent of 8 Anna share. The learned Additional Custodian on examining the whole situation set aside the order of the Deputy Custodian with the following observations :- "I have seen the original sale-deed which shows that the whole survey number was sold by Rachomal and his other brother Kishumal had signed the same as witness. Seeing the entry in Form 7 (Exh. A/3) it appears at the time of mutation it was discovered that Rachomal had only 8 Anna share and, therefore, on oral agreement the mutation was effected only to the extent of that share. Be that as it may, in my opinion this variation appearing in Form 7 is not sufficient to scrape out the whole sale-deed because to the extent of 8 Anna share it was in any case valid. I, therefore, do not agree with the conclusion of the Deputy Custodian and hereby confirm the sale to the extent of 8 Anna share. It may be mentioned that the sale appears to be bona fide for adequate consideration and the application is covered by Income-tax Clearance Certificate. This appeal is, therefore, allowed in the above terms and the order of the Deputy Custodian of Evacuee Property is set aside."
8. ' The petitioner before me who had all along remained a party in the proceedings before the Custodian filed a revision, against this order. Under section 43 of the Act XII of 1957, the learned Custodian, by his order dated 15-12-1973 dismissed this Revision affirming the order of the Additional Custodian. The learned Custodian held in his order :- "The broad fact is that the Opponent No.1 had produced the sale-deed which is very reliable and authentic and should have received its due weight at the hands of Deputy Custodian. I fully agree with the findings of the learned Additional Custodian and dismiss the application."
9. ' It is against this order as well as the order of the Additional Custodian dated 31-3-1973 that the petitioner feels aggrieved and has filed this constitution petition praying that these two orders be declared to be without lawful authority and of no legal effect.
10. ' In my humble view the petitioner would have a right if this property was a part of compensation pool on the date of transfer to the original transferee Syed Zamiruddin from whom the petitioner has purchased it. But if the sale in favour of the present respondent No.1 is validly confirmed under the relevant provisions of the evacuee laws then the title would be deemed to have passed to the respondent as early as on 20th May, 1947 and nothing remained to be transferred to the predecessor-in-interest of the present petitioner.
11. 'The respondent, in order to obtain confirmation in his favour had taken steps in February, 1954 by filing application and he pursued the application till he got the confirmation in his favour on 31-3- 1973. Once confirmed such a confirmation would date back to 20th May, 1947 when the sale was effected. In my humble view all the procedural and the technical defects in the way of the respondent No.1 faced by him through the journey starting from 20th May, 1947 to 31st March, 1973 cannot now deprive him from the fruit of success which he has achieved by the final orders. The petitioner cannot now be allowed to find fault here and there and raise objections of technical merits, if any. For some alleged lapses of the respondent, petitioner seeks to brush aside the registered sale deed which has been confirmed by the Additional Custodian and the Custodian in proper and legal exercise of jurisdiction vested in them by law.
12. ' Mr.Malik Muhammad Saeed the learned counsel for the petitioner has contended that the property in question was declared to be evacuee property by order dated 2-8-1956 and as such could be acquired by the Government, forming a pert compensation pool available for transfer to a claim-holder. The learned counsel fails to comprehend quite a few things which may provide an answer to this part of his argument.
13. 'That the title in the property was transferred in favour of the respondent through a registered sale- deed dated 20-5-1947. This sale however, carried a stigme of confirmation under section 16 of Ordinance XV of 1949 or section 20 of Act XII of 1957. In final analysis this stigma has been removed by the two orders aforesaid. True that between 1954 and 1973, some adverse orders came to be passed by the Deputy Custodian. But no cause of action can be raised on these orders which are non-existent now and which melted away in course of time leaving nothing for the petitioner to pitch upon. The counsel's contention that the property should be deemed to be available for transfer as a part of compensaction pool because it was treated as evacuee property by order dated 2-8-1955, has no merit. This order was set aside by an appellate authority and does not survive. The argument that the applica tion for restoration moved on 5-2-1967 after a period of 10 years should not have been allowed cannot be agitated in this petition. Indeed no such argument was raised before the Deputy Custodian when order on this application was passed. The order dated 19-6-1972, rejecting the request for confirmation proceeds on totally different premises, namely the discrepancy between the sale-deed and the entry in Form VII of the record of right. This view of the learned Deputy Custodian was found to be an erroneous view by the Appellate Authority and the transaction were confirmed.
14. 'Entertaining an application for restoration and condoning delay is a discretionary relief. No specific time is provided in the Evacuee Law limiting the right of a party for moving restoration applications and restoranion powers of Custodian for setting aside ex parte order and restoring a case. If there is no statutory bar then it would be left to the Custodian to exercise his discretion judicially in the circumstances of each case. This Court cannot interefere if the discretion has been exercised in favour of the respondent.
15. ' Now to revert to the merits of the case, it may be said that the transaction of sale has been examined and scrutinized by the learned Additional. Custodian as well as the Custodian and both have passed these orders after satisfying themselves that the transaction of sale was bona fide, the price paid was adequate, the certificate from Income-tax Authority had been obtained and all other requirements were fully complied with. There is nothing before me to set aside the two concurring findings in these proceedings. I would, therefore, hold that no inter ference is called for and confirmation of sale is not arbitrary or capricious.
16. ' The other leg of argument of the learned counsel for the petitioner is that the application for confirmation filed by the respondent on 4-2-1954, was time-barred. And no application for condonement of delay was filed by the respondent. The clue to raise this objection is taken from the order of the Deputy Custodian dated 2-8-1956, in which the following observations were made "Evidence of Transfer for want of proper order of condoning delay under section 5 of Limitation Act".
17. ' The above remark is as ambiguous and as confusing as it could be and one cannot make out how "Evidence of Transfer" would be related to a "proper order of condoning delay under section 5 of Limitation Act".
18. ' The learned counsel for respondent however points out that these remarks for whatever they are worth were made in an ex parte order passed in absentia of the respondent. The other order dated 19-6-1972, makes no mention of any delay or default requiring an order under section 5 of Limitation Act. Learned counsel further contends that, applications for confirmation of Transaction of Sale were to be filed under section 16 of Ordinance, XV of 1949, within a prescribed time. But time for filing such applications was extended from time to time and extended so many times that it is difficult to keep a record of it. Suffice it to say that even in the latest Statute, Act XII of 57 the right to move such applications was retained in section 20 of the Act.
19. ' Learned counsel for the petitioner has vehementaly argued that as no confirmation of Sale was obtained by the petitioner the property continued to remain Evacuee Property and was amenable to be acquired by the Government under section 4 of the Displaced Persons Land Settlement Act, XLVII 1958, section 4 of this Act is as follows:- "Power to acquire land.--(1) The Central Government may, for any of the purposes of this Act, by notification in the official Gazette, acquire any land within the Federal Capital.
(2) As and when so required by the Central Government the Government of West Pakistan shall, for any of the purposes of this Act, by notification in the official Gazette acquire such land situated in the Province (excluding the Federal Capital) as the Central Government may deem it necessary to acquire.
(3) On the publication of a notification under subsection (1) or subsection (2), the right, title and interest of any evacuee or persons claiming through him in the land specified in the notification shall, with effect from the date of such publication, be extinguished and the land shall vest wholly and absolutely in the Central Government free from all encumbrances.
(4) The Central Government shall prescribe the (extent to) which, and the period within which any charge created by a Custodian on any land acquired under subsection (i) or subsection (2) or any decree granted by a civil or revenue Court against such land, shall be satisfied or such compensation as is determined by the High Court under subsection (3) of section 43-A of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), shall be paid, and the manner in which it shall be satisfied or paid.
(5) Notifications under subsection (1) and subsection (2) may be issued from time to time and may relate to--
(a) all land generally; or
(b) any class of land; or
(c) all land situated in a specified area; or
(d) any particular land."
20. ' The first notification under this section was issued on the 15th of April, 1959 by which all land allotted under the West Pakistan Rehabili tation Settlement Scheme prepared by the Rehabilitation Commissioner under section 6 of the Pakistan Rehabilitation Act, 1956 was acquired. As this land was never allotted to any one at any time, this notification will not apply.
21. ' The second notification was issued on the 8th June, 1960, by which the remaining land in the Province of West Pakistan was acquired. This notification is relevant. Under this notification the entire land stood acquired unless it could be excluded from its purview on the basis of two important exceptions in the notification itself. The exceptions are as under:-
(i) Land for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957, or under any law for the time being in force for the administration of Evacuee Property in West Pakistan has been accorded before the date of this notification, and
(ii) Lands with regard to which any proceedings were pending on the date of this notification under the Pakistan (Administration of Evacuee Property) Act, 1957."
22. ' The land in dispute would surely be covered by this notification and would immediately on its publication go out of the orbit of Evacuee laws and become a part of compensation pool unless it can be shown to be falling within the compass of any of the two exceptions mentioned in the notification. Admittedly exception (i) is not applicable. But exception, (ii) is relevant and its application is debatable. How it is debatable, I will discuss hereafter.
23. ' One point of view can be that confirmation proceedings initiated on 4-2-1954, terminated by an order dated 2-8-1956, whereby the applica tion was dismissed in default and proceedings closed for good. Though it was an ex parte order it held the. field on 8-6-1960, when the notification was issued. Clearly this land would be within the definition of Evacuee Property as it was "property of an evacuee obtained by transfer on or after the 1st day of March, 1947," and the transfer/sale was not yet confirmed by the Custodian. Such is the view taken by the S.C. in Civil Appeal No.32 of 1967 (The Custodian of Evacuee Property v. Rais Ghazi Muhammad). A reference to this case has been made in a judgment of the Supreme Court reported in PLD 1973 SC 451(461). In this view of the matter the acquisition would be unassailable and the property would pass on to the compensaction pool. The orders of the Custodian in respect of the property belonging to the pool would obviously be without jurisdiction. (Mahtab Khan's case reported in PLD 1973 SC 451, relied upon by learned counsel for the petitioner). But the facts of that case were slightly different from the present case and in my opinion it is distinguishable from the facts of the present case. In that case some agricultural land was, purchased by appellant Mehtab Khan from Evacuee owners on 20-5-1947, under a registered sale-deed. Mutation in the record was effected on 27-5-1947 and possession was acquired by the purchaser. Some time in September 1960 the Enforcement Staff investigated the matter and advised the purchaser to get the sale confirmed by the Custodian.
24. ' The appellant therefore applied to the Custodian for confirmation of the transaction of sale by moving an application on 8-9-1960 for confirmation of sale under section 20 of the Pakistan (Administration of Evacuee Property) Act, (XII of 1957).
25. ' It was found that this application was moved after the property stood acquired by the Government under section 4 of the Land Settlement Act, XLVII of 1958 read with Notification dated 8-6-1960. Consequently the Custodian Evacuee Property had no jurisdiction to confirm the sale in favour of appellant purchaser. The learned counsel for the petitioner has based his arguments on this ruling of the Supreme Court and contends that application dated 5-2-1967 on which the orders dated 31-3-1973 and 15-12-1973 were passed by the Additional Custodian and the learned Custodian respectively should be treated to be the starting point for confirmation proceeding. If this contention is accepted then the confirmation in favour of respondent would no doubt be without jurisdiction.
26. ' To appreciate the impact of the argument a look on the application dated 5-2-1967 is necessary.
27. The application in its title gives the number of the rase as "Case No.79 of 1954". After mentioning the names of parties the top line underlined to indicate its description shows that it is an "Application for Restoration."
28. ' The prayer clause runs as under:- "It is, therefore prayed that the order dismissing the case in default may be set aside and the case be restored to its original number and be decided on merits in the interest of justice."
29. ' Even in the body of the application the facts relating to dismissal of the original application dated 4-2-1954, and the ex parte order passed on 2-8-1956, are narrated in detail and only casual mention is made by the applicant of the transaction of sale in his favour. In other words it was not at all an application praying for confirmation of sale but an application for revival of proceedings which had abruptly ended by an ex parte order passed on 2-8-1956. The relief sought was in the nature of a relief under Order IX, rule 9, C.P.C. and not under section 20 of Act XII of 1957. Indeed it was so treated by the Custodian. And it became a case of revival of dormant proceedings. As such the revival would date back to the date of filing of the original application dated 4-2-1954. It is a matter of common knowledge that whenever a suit is restored under Order IX, rule 9, C.P.C. the cause of action is never treated to be time-barred and the setting aside of the order of dismissal reinstates the plaintiff to the same position in which he was on the date of filing of the suit. I would, therefore, hold that the orders passed by the learned Custodian, the Additional Custodian and for that matter even the Deputy Custodian on 15-12-1973, 31-3-1973 and 19-6-1972 were passed not on the Restoration application dated 5-2-1967 but on the original application dated 4-2-1954, which was restored. As such it must be treated to be a case of land with regard to which proceedings were pending before the Custodian, a case falling under exception (ii) to the second notification dated 8-6-1960.
30. ' The argument that a final seal was set on the confirmation proceeding by the order dated 2-8- 1956, and any order passed by Custodian after 8-6-1960, would be by tribunal corum non judice has no merit. Suppose a case was decided finally a day prior to 8-6-1960, could an application seeking review of such an order be filed to correct errors or omissions in the earlier order? Again would the remedy of appeal or revision against such an order be barred although such a remedy is permissible under the law and is persuead within limitation prescribed by the statute. In my opinion the case on hand is no different from the illustrations mentioned above. They would all be deemed to be "Pending Proceedings."
31. ' It is to be appreciated that power exercised under section 20 of Act XII of 1957 is a substantive power touching the core of jurisdiction conferred on the Custodian by the statute; while the power exercised in dealing with such matters as an application for restoration is a proceedural matter.
32. The former relates to jurisdiction itself, the latter the manner in which this jurisdiction should be exercised. If this distinction is borne in mind there would be no difficulty in appreciating that the process of confirmation began on 4-2-1954 and continued till final orders were passed by the Additional Custodian and the Custodian.
33. ' In this view of the matter the land could not be acquired under section 4 of Act XLVII of 1958 and never became a part of the compen sation pool and could not be transferred to Syed Zamiruddin son of Syed Waziruddin from whom the petitioner claims to have purchased these land.
34. ' On 8-6-1960 when the Second Notification was issued by the Government the lands escaped from passing into the compensation pool by reason of the fact that confirmation proceedings under section 16 Ordinance XV of 1949 initiated by the petitioner by means of an application dated 4-2- 1954 were still pending and due to exception 2 in the notification dated 8-6-1960 the land continued to remain within the Province and authority of the Custodian Evacuee Property. The Custodian has confirmed the sale in favour of respondent under section 16 of the Ordinance XV of 1949 and he was competent to do so.
35. ' This petition is misconceived and should be dismissed with costs.