K. E. CHAUHAN, J.-In the year 1944, Messrs F. D. Piracha floated a limited concern known as Pakistan Tanneries Limited. Later on they applied to the Punjab Government for acquisition of land for the said Company in Village Noon, Tehsil Ferozewala, District Sheikhupura on Lahore -Gujranwala Road. Due enquiry was held under section 40 of the Land Acquisition Act I of 189 1. Whereafter the Government called upon the Company to enter Into an agreement regarding matters laid down in section 41 of the said Act. The said agreement was executed on 20-11- 1948 and a Notification under section 4 of the Act was published on 7-1-1949. It reads as follows:- INDUSTRIES AND MEDICAL DEP ARTMENT COMMERCE The 3rd January 1949.
No. 3978-Com-48/3.-Whereas it appears to the Governor of West Punjab that the land described in the Schedule, be it a little more or less, is likely to be required for a public purpose, namely , for the erection of a Tannery and ancillary buildings, godowns and quarters.
Now, therefore, in exercise of the powers conferred by section 4 of the Land Acquisition Act, 1894, read with section 38(1) of the said Act the Governor of West Punjab is pleased to authorise the Managing Director of the Pakistan Tanneries Ltd., Lahore, and their servants and workmen to enter upon .The aforesaid land and survey any land in the locality and do all other acts contemplated by subsection (2) of section 4 of the said act.
Any person who has any objection to the acquisition of the land to question or any portion thereof may within thirty days of the publication of this notification file such objection in writing before the Collector of Sheikhupura District. Details of area List of Plot Numbers-1533, 1534, 1535, 1536, 1552, 1553, 1551, 1537, 1538, 1539, 1540, 1541, 1550, 1554, 1556, 1549, 1542, 1544, 1557, 1543, 1542, 1547, 1546, 1545, 1567, 1568, 1598, 1599, 1600, 1566, 1569, 1597, 1596, 1601, 1573, 1570, 1594, 1595, 1602, 1572, 1571, 1593, 1592, 1605, 1588, 1589, 1590, 1591, 1606, 1622, 1621, 1620, 1608, 1607, 1623, 1624, 1619, 1609, 1610, 1626, 1625, 1618, 1612, 1611, 1627, 1628, 1617, 1613, 1630, 1629, 1616, 1614, 1615, 1640, 1639, 1636, 1635 and 1631.
(Sd.) S. M. Hasan; Secretary to Government of W est Punjabi Industries and Medical Department.
No. 3978-Com-48/4, dated the 3rd January 1949.
A copy is forwarded to the D. I. West Punjab for information with reference to his memo. No. D-4-104/7978, dated the 25th August 1948.
No. 3978-Com-48/5, dated the 3rd January 1949.
A copy (with 50 spare copies) is forwarded to the Collector of Sheikhupura District for information and favour of necessary action, with reference to his memo. No. 13701, dated the 23rd November 1948.
2. A report on the objections received, if any, against the proposed acquisition of land may be made to Government after the expiry of thirty days, as required by paragraph 19-A (a)(iii) of the Financial Commissioners' Standing Order No. 28.
3. A copy of the notification should be served on all persons known to be interested in the land proposed to be acquired as required by paragraph 17 of the Financial Commissioners' Standing Order No. 28, and a copy may also be served on the Custodian of Evacuee Property as the land belongs to the non-Muslim evacuees.
4. Please report the price of the land proposed to be acquir--ed and state whether the price has been paid to Government or will be recovered from the proprietors of the Tanneries after the land acquired by Government is handed over to them.
No. 3978-Com-48/6, dated the 3rd January 1949.
A copy is forwarded to the Commissioner , Lahore Division, Lahore, for information.
By order etc. S. M. Hasan, Secretary to Government W est Punjab, Industries and Medical Departments."
As the above notification shows its one copy was meant for the Custodian of Evacuee Property , Lahore. Even otherwise, from the file of the Collector (Acquisition) produced in Court by Mr. Maqbool Ilahi Malik, learned counsel for the Settlement Department, it appears that the Collector on his part as well, on 17-2-1969, sent a copy of the Notification to the Deputy Custodian of the Evacuee Property , Sheikhupura, within whose territorial jurisdiction the evacuee land to be acquired was situated. Nobody raised any objection before the Collector/ Deputy Commissioner who after usual enquiry sent a report to the Government under section 5-A of the Act on 22-6-1945. Thereafter two notifications of the same date, namely , 15-9-1949, were Issued. In one Notification was published, the agreement hereinbefore mentioned, under section 42 of the Act and the other was a notification under section 6 of the Act. The latter notification reads as, follows :-- NOTIFICATION The 15th September 1949.
No. 4194-Com-49/56362: In exercise of the powers conferred by section 6 of the Land Acquisition Act, 1894, and with reference to the West Punjab Government Notification No. 3978-Com-48/3, dated the 3rd January 1949, it Is hereby declared that the land measuring approximately 75 acres, 6 kanals and 11 marlas described in the Schedule given below and a plan of which may be inspected in the office of Collector of the Sheikhupura District, is to be acquired at the expense of the Pakistan Tanneries Ltd., Lahore for a public purpose, to writ the erection of a tannery and ancillary buildings, godowns and workmen's quarters. SCHEDULE District Tehsil Locality Area Place where plan may be inspected.
1 2 3 4 5 Sheikhupura Shahdara Noon near Muridke75 acres 6 Kanals, 11 Marlas.Office of the Collector , Sheikhupura District.
Details of area List of Plots Numbers.-1533, 1534, 1535, 1536, 1552. 1553, 1551, 1537, 1538, 1539, 1540, 1541, 1550, 1554, 1556, 1549, 1542, 1544, 1557, 1543, 1548, 1547, 1546, 1545, 1567, 1568, 1598, 1599, 1600, 1566, 1569, 1597, 1596, 1601, 1573, 1570, 1594, 1595, 1602, 1572, 1571, 1593, 1592, 1605, 1588. 1589, 1590, 1591, 1606, 1622, 1621, 1620, 1508, 1607, 1623, 1624, 1619, 1609. 1610, 1626, 1625, 1618, 1612, 1611. 1627. 1628, 1617, 1613, 1630, 1629, 1616, 1614, 1615, 1640, 1639, 1636, 1635 and 1631.
(Sd.) J. W . Hearn, Secretary to Government W est Punjab, Development Department (Industries).
No. 4194-Com-49/56363, dated Lahore, the 15th September 1949.
A copy is forwarded to the Director of Industries, West Punjab, for information, in continuation of the West Punjab Government endorsement No. 3978-Com-48/4, dated the 3 January 1949; By Order (Sd.) Ejaz Hussain Deputy Secretary Development (Industries)
No. 4194-Com. 49/56364, dated Lahore, the 15th September 1949.
A copy is forwarded to the Collector , Sheikhupura District, with reference to his Memorandum No. M. 5558/SWBN., dated the 11th August 1949, for information, and necessary action. He is requested to direct the Company to deposit the money in the Sheikhupura treasury to enable him to pass his award.
2. As required by section 7 of the Land Acquisition Act, 1894 he is directed to take order for the acquisition of the land; By Order Deputy Secretary Development (Industries).
No. 4194-Com-49/56365, dated Lahore, the 15th September 1949.
A copy is forwarded to the Commissioner , Lahore Division for information, in continuation of the West Punjab Government endorsement No. 3978-Com-49/6, dated the 3rd January 1949.
By Order (Sd.) Ejaz Hussain Deputy Secretary Development (Industries)."
This notification directed the Collector (as required in section 7 of the Act), to take order for the acquisition of the land. The Land Acquisition Collector on 26-9-1949 sent a further notice to the Deputy Rehabilitation Officer, Sheikhupura which reads as follows :-- "From The Land Acquisition Collector , Sheikhupura.
The Deputy Rehabilitation Of ficer, Sheikhupura.
No. 7297 SWBN dated 26-9-1949.
Subject: Acquisition of land for the Pakistan Tanneries Limited, Lahore.
Memorandum, Please take notice that the West Punjab Government in their Notification No. 4194-Com-49/56362 dated 15-9-49 have decided to acquire land measuring 75 acres 6 kanals and 11 marlas. The description of which is given in the enclosed notice under section 9 of the Land Acquisition Act, and make arrangements to represent yourself in the proceedings for compensation under the Act.
(Sd.)rd Land Acquisition Collector , Sheikhupura."
No appearance was put to by the Custodian or Rehabilitation Department before the Collector , who announced his Award oft 1-2-1950. It is pertinent to mention that the Company on 28-11-1949 had already deposited a sum of Rs.
15.000 in advance. In the award the compensation fixed was Rs. 8,684-10-0 and the Collector , therefore, directed that the excess deposited, namely . Rs. 6,315-6-0 should be returned to the Company . Thereafter (the exact date is not known on the present record), the Company took possession of the land and made construc--tions, raised a factory extending over an area of 45 kanals with a boundary wall. About twenty kanals of land was left outside the boundary wall which allegedly contained certain quarters and shops which also were made by them. According to the learned counsel for the petitioners the possession had been taken by the Company oft 26-5-50 though this date is disputed by the other side.
2. In 1965, an application being Civil Original No. 26 of 1965 was filed in this Court for voluntarily winding up of the Company under section 162 of the Companies Act IV of 1913. The learned Company Judge (S. A. Mahmood, J.), by means of his judgment and order , dated 18-10-1965, directed that the Company should be wound up and appointed Mian Hamid-ud---Din, Advocate , as its Official Liquidator . The Official Liquidator proceeded in the matter of the disposal of the property of the concern and called for tenders. After certain formalities, on 8-12-1966, the offer of Abdul Hamid son of Muhammad Sharif (respondent No. 2) and Raja Abdul Hamid son of Abdul Aziz (respondent No. 3) was accepted and formal document of transfer dated 15-2-1967 was issued in their favour . The sale price was Rs. 3,25,000.00, which was duly paid by them to the Of ficial Liquidator .
3. Four persons, namely , (i) Bashir Ahmed; (l1) Shehzad Nazir; (iii) Mst. Khudeja Hakim and (iii) Masood Hassan, acting as informers moved an application to the Settlement Department pointing out that the land in question at the relevant time was agricultural land and being an evacuee property was liable to be allotted to displaced persons and that respondents Nos. 2 and 3 possessed no valid title about the same. The Extra Assistant Settlement Officer, Sheikhupura, rejected the application on 31-10-1967, whose order was agreed to by the Settlement Officer (on 1- 11-1967) who possessed the delegated powers of the Chief Settlement Commissio ner under sections 10 and 1 t of the Displaced Persons (Land Settlement) Act XL VII of 1958 (hereinafter called the Act).
4. The same set of informers filed another application before the Chief Settlement Commissioner which was entrusted by him to Sardar Hidayat Ullah Khan Mokal, who possessed the delegated powers of the Chief Settlement Commissioner under the sections hereinbefore mentioned. The Official Liquidator was not impleaded as a party in those proceedings though the purchasers, namely , respondents Nos. 2 and 3 herein did join the said proceedings. The learned company Judge on 24-4-1969, directed the Official Liquidator to apply in black and white for becoming a party before the delegate Chief Settlement Commissioner . This order was complied with and the Official Liquidator was impleaded in this way as a party therein.
5. On 7-8-1970, the delegate Chief Settlement Commissioner , passed an order whereby he held: (a)that the land in dispute at the relevant time was an evacuee agricultural land and did not stand validly acquired by means of any proper or lawful manne r under the Land Acquisition Act read with Evacuee Laws on the subject which were in force at that time;
(b) that the property being evacuee property , all the proceedings for its sale and disposal through the Official Liquidator were misconceived and bad in law:
(c) that the land be resumed under section 19(2) of Act XLVII of 19.58 and included in the "Pool" for transfer to deserving displaced persons but its allotment and disposal shall not take place until and unless further directions are received from the learned Chief Settlement Commissioner; and
(d) that the illegal occupants should render accounts of mesne profits for the period they had remained in unlawful possession of the land in dispute and that the same should be received from them as arrears of land revenue.
6. Against the aforesaid order , two Settlement Revisions have been filed in this Court; one is Settlement Revision No. 241 of 1970 filed by Pakistan Tanne ries Ltd., (Under Liquidation) through Mian Hameed-ud-Din, Its Official Liquidator v. (1) Sardar Hidayat Ullah Mokal, Settlement Commissioner (Land) with powers of the Chief Settlement Commissioner , Lahore, (2) Abdul Hamid son of Muhammad Sharif, c/o Din Muhammad & Sons, Judhia Bazar , Karachi, (3) Haji Abdul Hameed son of Abdul Aziz, Haji & Co., 32 Islamabad, Gujrauwala, (4) Mst. Begum Khudeja Hakeem, (5) Mirza Haq Nawaz, (6) Shahbaz Khan and (7) Mst. Hashmat-un-Nisa Begum.
The other case is Settlement Revision No. 242 of 1970 entitled (1) Abdul Hamid son of Muhammad Sharif c/o Din Muhammad and Sons, Jodhia Bazar , Karachi, (2) Haji Abdul Hamid son of Abdul Aziz, Haji & Company , 32 Islamabad, Gujranwala v. (1) Pakistan Tanneries Limited (under Liquidation) through Mian Hameed-ud-Din, its Official Liquidator , Lane Road, Lahore, (2) The Settlement Commissioner (Lands) (Sardar Hidayat Ullah Mokal), with powers of Chief Settlement Commissioner , 11-Egerton Road, Lahore, (3) Mst. Khudeja Begurr , (4) Mirza Haq Nawaz, (5) Shahbaz Khan and (6) Mst. Hashmat-un-Nisa.
Since there were involved common questions of law and fact both these revision petitions were heard together and the present judgment will cover both of them. Some of informers hereinbefore mentioned put in appearance and opposed both these cases.
7. The first point argued by the learned counsel for the petitioners was that Sardar Hidayat Ullah Khan Mokal (Settlement Commissioner) did not possess any delegated power of the Chief Settlement Commissioner to proceed under section 11 of the Act and, therefore, the presently impugned order passed by him was without lawful authority . Mr. Mokal has placed on record an order of the Chief Settlement Commissioner , which negatives this objection. It reads as follows:- Notification No. 75 (Land)-III-Admn. Reh/67.-In exercise of the powers conferred by subsection (1) of section 9 of the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) read with the Ministry of Agriculture and Works (Rehabilitation & Works Division) Notification No. F. 1(1)/65 S. P., dated the 17th June 1965 the Government of West Pakistan is pleased to invest Sardar Hidayat Ullah Khan Mokal, with the powers of Settlement Commissioner , for performance of duties and functions assigned to him by or under the said Act, in respect of cases entrusted to him by the Chief Settlement Commissioner till further orders. His jurisdiction as Settlement Commis sioner , extends to the whole of West Pakistan.
He will continue to exercise the powers of Chief Settlement Commissioner under sections 10 and 11. Of the Displaced at Persons (Land Settlement) Act, 1958 (XL VII of 1958).
(Sd.) S. Manzoor Ilahi, Secretary to Government of W est Pakistan, Rehabilitation Department.
8. A perusal of the above communication will show that Sardar Hidayat Ullah Khan Mokal, did possess the delegated power and, as such, objection raised has no force.
9. The second point argued was that the power of the delegate Chief Settlement Commissioner under section 11 of the Act extended only to take possession of such properties, allotments whereof were cancelled by him under subsection (1) of the aforesaid section and In case where a person was not an allottee (as for example was a trespasser), there the jurisdiction of the Chief Settlement Commissioner or his delegate, did not reach. Section 11 to which reference was being made reads as follows:- SCHEDULE District Tehsil Locality Area Place where plan may be inspected.
1 2 3 4 5 Sheikhupura Shahdara Noon near Muridke75 acres 6 Kanals, 11 Marlas.Office of the Collector , Sheikhupura District.
10. In this context learned counsel for the petitioners has referred to the definition of the word "allotment" wherein it was written, "unless there is anything repugnant in the subject or context", "allotment" means an allotment of agricultural land made to a Displaced Person under this Act or under any Scheme , in lieu of any claim registered and verified, or deemed to have been registered and verified under any of the follow ing enactments, namely , (i) The West Punjab Refugees (Registration of Land Claims) Act, 1949; (ii) The Refugees (Registration of Land Claims)
(Capital of the Federation) Ordinance, 1949; (iii) The North-W est Frontier Province Refugees (Registration of Land Claims) Act, 1949; (iv) The Bahawalpur State Refugees (Registration of Land Claims) Act No. 14 of 1949; (v) The Sind Refugees (Registration of Land Claims) Act, 1950; (vi) The Khairpur State Refugees (Registration of Land Claims) Ordinance No. 4 of 1952; (vii) The Refugees (Registration of Land Claims) (Baluchistan) Regulation, 1956; and (viii) The Registration of Claims (Displaced Persons) Act, 1956. He also referred to section 2(7) for the definition of word "Scheme" which, "mea ns a Rehabilitation Settlement Scheme prepared under subsection (1) of section 6 of the Pakistan Rehabilitation Act, 1956 or section 7 of the Baluchistan (Rehabilitation) Regulation, 1950".
Learned counsel submitted that since this was not a case of "allotment" within the meaning of that term, therefore, there was no question of cancellation of any "allotment" of the petitioners and nor of taking possession from them thereafter . Similarly , it was argued that power to cancel allotments existed only in those cases where allotments had been made under a "Scheme" as defined in the Act and if allotment was under any other Scheme or any other law, then the power to cancel the same and take possession of the land in that respect did not exist in the Chief Settlement Commissioner or his delegate. The contention has no merit. No doubt subsection (1) of section 11 deals with cancellation and variation of the terms of allotments or leases, under a "Scheme" or under "this Act" but subsection (2) is wider in scope and would cover the cases of unauthorised occupants or such occupants who did not hold any valid allotment or lease under the "Scheme" or under "this Act" though they may be holding allotments or leases under any other law . To paraphrase subsection (2) states:-- "Powers of Chief Settlement Commissioner to cancel or terminate allotment or to amend or vary terms of allotment.11.-(1)Notwithstanding anything contained in any other law for the time being in force or in any contract, but subjectto the provisions of this Act and the rules made thereunder , the Chiefsettlement Commiss ioner may, for reasons to be recorded in writing, cancel or terminate any allot--ment or lease made under a Scheme or under this Act, or amend or vary the terms of any such allotment or lease: Provided that no order under this subsection shall be passed by the Chief Settlement Commissioner without giving the persons af fected thereby a reasonable opportunity of a being heard.
(2) If any allottee, lessee, holder or occupant of any acquired under this Act by reason of lack of a valid allotment order or lease or on account of an order made under subsection (1) is not, or ceases to be, entitled to the possession of such land, he shall, when so required by the Chief Settlement Commissioner , surrender the possession thereof to the Chief Settlement Commissioner , or to any person authorized by the Chief Settlement Commissioner in this behalf.
(3) If any person required under subsection. (2) to sur--render possession of land fails to do so, the Chief Settlement Comm issioner , or any person authorized by the Chief Settlement Commissioner in this behalf, may, notwith--standing anything to the contrary contained in any other law for the time being in force, eject such person and take possession of the land and may use or cause to be used such force as may be necessary for the purpose:'
A little closer scrutiny of the provisions hereinbefore re--produced will show that broadly speaking there may be three types of persons-(the classification is not intended to be exhaustive but is only by way of illustration)-(a) firstly , those to whom land had been allott ed or given on lease under a "Scheme" (as this word is defined in the Act) or allotted or given on lease expressly under this Act itself, (b) secondly , those to whom land had been given on case or in the form of allotment etc., under any other Act or any other Scheme; or (c) thirdly , those who were just trespasser or unauthorised occupants or holders of lands. Subsection (2) of section 11 groups classes (b) and (c) ibid together and states that irrespective of the fact that the persons mentioned therein may be holders or occupants under any other Scheme or law, so long as they do not possess any valid allotment order under this Act or under a scheme as defined in this Act or so long as they do not have any valid lease in their favour , the Chief Settlement Commissioner can resume land from them. The resumption is to be on the ground that they do not have any valid allotment order under this Act or a valid lease. If any of the said persons does not fulfil the aforesaid conditions, then obviously , he is not entitled to the possession of land and when so required is liable to surrender it to the Chief Settlement Commissioner . As against them, there may be persons who are allottees or lessees under this Act, or under a Scheme as defined herein, but their allotments or leases have been cancelled under subsection
(1) of section 11. These persons al. o when so required are liable to surrender possession of land in their occupation. That the Scheme of the Act is to divide occupants into aforesaid categories is clear from the fact that persons whose allotments or leases are cancelled under subsection (1) of section 11 are again separately mentioned in subsection (2) in contrast to other , types of occupants, if subsection (2) was not to be wider in scope and was confined only to those occupants who were mentioned In subsection (1) then there was no necessity to affix various other types of occupants before them in subsection (2). Again the words "is not entitled to possession or ceases to be entitled to possession", in subsection (2) are very significant. If the occupation of any person is invalid then he is not entitled "to possession." If, however , his occupation was valid, due to his being allottee or lessee under this Act, or under a Scheme "as defined therein, then after his aforesaid allotment or lease is cancelled under subsection (1), he ceases to be entitled to retain possession. Cession of entitlement will come where initially there was entitlement but the same has been cancelled under subsection (1) of section 11. On the other hand, there may be persons who had no entitlement to remain in occupation of the land ab initio. It was not the intention of the Legislature to place such persons at an advantage as against the other categories, because that will mean that Chief Settlement Commissioner can take possession from allottees and lessees under this Act after cancelling their allotments or leases but could not take possession from trespassers or squatters or such persons who do not hold any valid allotm ent order under this Act or any valid lease. Obviously this cannot be the meanings of subsection (2) of section 1 1. This is further clear from section 3 of the Act which reads as follows:- "3(1) As soon as may be after the commencement of this Act, but not later than ninety days therefrom every person who is in possession, supervision or management of any land which he knows or has reason to believe to be concealed evacuee property shall submit to, the Rehabilitation Authority , or the Settlement authority of the area concerned full information relating to such land, including the date since when, or the period for which he has been in possession, supervision or management thereof.
(2) Any such property as is referred to in subsection (1) shall, notwithstanding the provisions of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957, be treated as evacuee property , and shall vest and be deemed to have vested in the Custodian in accordance with the provisions of subsection (1) of section 7 of that Act."
It will be giving effect to the spirit of section 3 quoted above it is held that under subsection (2) of section 11, the Chief Settlement Commissioner has power to evict unauthorised occupants or trespassers or to put it in another form, such persons who may have some colourable authority to retain possession under any other law for the time being in force but who do not hold any valid allotment under this Act or any valid lease though the verdict of the Chief Settlement Commissioner on jurisdictional facts as laid down in Muhamma d Jamil Asghar v. Improvement Trust (PLD 1965 SC 698) shall not be conclusive and will be challengeable in a civil Court or as a matter of fact in any Court of competent jurisdiction. When confronted with this situation, learned counsel for the petitioners referred to Syed Shaukat Hussain Rizvi v. K, B. Dr. Yar Muhammad Khan and another (PLD 1964 Lah. 469), (Ortcheson and Shakirullah Jan, JJ.), where it was held that power under section 11 can be exercised only in respect of allotments under this Act or under a Scheme as defined in section 2(7) and where allotment was neither under this Act nor under a Scheme as defined under the aforesaid subsection but was under some other Scheme or law, then Chief Settlement Commissioner could not set aside the same. In great humility and with utmost respect, we have to point out that subsection (2) of section 11 was not discussed in the said report and the case seems to have been decided merely with reference to subsection (1) of section 11 because at page 473, where section 11 has been referred to subsection (2) has not been reproduced and the point has been decided by reproducing subsection (i) alone. Proceeding from this point of view, we have, therefore, no hesitation to holding that in case, the Chief Settlement Commissioner or his delegate in the instant case came to the conclusion that the possession or occupation of the petitioners over the land in question was such to which they were not entitled, then he definitely would be justified in calling upon them to surrender its possession and the interpre tation to the contrary suggested by the learned counsel for the petitioners would not be correct. The view which we have taken regarding the scope of the authority of the Chief Settlement Commissioner has an implied support from two judgments of the Supreme Court. The first case is Messrs Pakasia Mills Limited v. Dr. Abdur Rauf and 9 others (1970 SCMR 739), where an evacuee land was acquired under the Land Acquisition Act I of 1894, under circumstances, somewhat similar to the present case The acquisition proceedings in that case were initiated in year 1956, for Messrs Pakasia Mills Ltd.
The Supreme Court held that acquisition without prior approval of the Central Government was illegal which bestowed no title on the Mills and, as such, the land could be dealt with by the Settlement authorities. The ether case is Mst. Haleema Bibi v. The Chief Settlement and Rehabilitation Commissioner and other (1971 SCMR 760), where a person wanted to base his title to an evacuee property on certain civil Court's decree which was without jurisdiction with the result that the property remained in the "Compensation Pool". It was held that after a property is acquired by the Government under section 4 of the Displaced Persons (Land Settlement) Act, 1958, then Settlement authorities alone can deal with it. The word "Settlement Authority" is defined in section 2(6) of the Act so as to mean, "the Chief Settle--ment Commissioner , or a Settlement Commissioner , or an Additional Settlement Commissioner , or a Deputy Settle--ment Commissioner or an Assistant Settlement Commis--sioner appointed under this Act, or any other officer appointed under any other law for the time being in force relating to the Settlement of displaced persons on land." This shows that to address any argument to show ouster of jurisdiction of the Settlement Authority (including that of the Chief Settlement Commissioner) to deal with any "Pool Property" by placing any restricted interpr etation on section 11 is not towards a correct direction. Subsection (2) of section 11 should be construed in such a manner which purports to maintain the authority of the Chief Settlement Commissioner rather than to diminish it with regard to a property which has come in the "Compensa--tion Pool."
The words: "by reason of lack of valid allotment B order or lease", further suggest that it will be within the compe-- tence of the Chief Settlement Commissi oner or his delegate to pronounce upon the validity of any allotment or lease, or any allot--tee of land, any lessee of land, any holder of land or any occupant of land. The word "any" also shows that in this respect, the word "allotment" is not confined merely to allotments as defined in this Act, but is wider in scope to embrace all and any types of allotments or leases etc. It was laid down to Wooler v. North Eastern Breweries ((1910) 1 K B 247) that "any" is a word which excludes limitations or qualifications. It connotes wide generality . The same was the view expressed by Fry, L. J. In Duck v. Bates ((1883-4) 12 Q B D 79). This proposition of law was accepted as correct by a Full Bench of this Court reported in Dr. Cowas C. Mehta v.
Additional Settlement and Rehabilitation Commis--sioner and others (PLD 1963 Kar. 938). Again, as already noticed, definitions of various words as given in section 2 of the Act ate to be considered subject to anything repugnant in the subject or context. It will be repugnant in the subject or context of subsection (2) of section 11 if in the earlier portion of that subsection allotment is given the same meaning which is to be given to this word in the later portion of that subsection.
11. During the pendency of this case, Sardar Hidayat Ullah Khan Mokal produced a copy of the Gazette of Pakistan (Extraordinary), dated 19-1-1972, pages 107 to 113 containing the Evacuee Prope rty and Displaced Persons Laws (Amendment) Ordinance I of 1972. According to section 1(2) of this Ordinance, "it shall come into force at once and shall be deemed to have taken effect on the first day of January 1972". In section 2, it is laid down that "the Acts specified in the Schedule shall be amended in the manner specified in the fourth column thereof." The Ordinance purports to make amendments in (l) The Registration of Claims (Displaced Persons) Act III of 1956; (it) The Pakistan Rehabilitation Act XLII of 1956; (fit) The Pakistan (Administration of Evacuee Property) ,pct XII of 1957;
(iv) l he Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958 and (v) The Displaced Persons (Land Settlement) Act XLVII of 1958. At the moment, we are concerned with the amendments brought about in section 30 of the Displaced Persons (Land Settlement) Act XLVII of 1958. This section prior to the amendment reads in the form in which it is shown in column I of the table below and its present shape after amendment is that which is shown in Column II.
(a) (i) If any allottee of land
(ii) If any lessee of landBy reason of lack of valid allotment or by reason of lack of a valid lease.
(iii) If any holder of land
(iv) If any occupant of land
(b) (i) Is not or
(ii) ceases to be
(c) He should when so required by the Chief Settlement Commis--sioner surrender the possession thereof to him.Or on account of an order made under subsection (1) whereby his allotment or lease has been cancelled.
Entitled to possession.
12. Chapter VI to which reference has been made in the newly-added subsection (3) of section 30 consists of 5 sections, namely 18 to 22 and is headed as "Appeal, Revision and Review", section 18 dealt with appeals. Section 19 with revisions; section 20 with review and section 21 with revision to the High Court. Section 22 is headed as "finality of orders" and stated that "subject to the foregoing provisions of this Chapter , any order made under this Act, shall be final, and save as otherwis e provided in section 21 shall not be called in question 3in any Civil or Revenue Court. It is not, necessary to reproduce all these sections in their original forms and various other forms in which they existed at different times and it will be enough to state that orders of all Settlement Authorities were invariably appealable and revisable according to the relevant law prevalent at the time of the passing of the order concerned.
13. It is a matter of legal history that both under the Displaced Persons (Compe nsation and Rehabilitation) Act XXVIII of 1958 and the Displaced Persons (Land Settlement) Act XLVII of 1958, the Chief Settlement Commissioner had delegated his various powers to his subordinate officers. A question arose particularly with reference to Displaced Persons (compensation and Rehabilitation) Act (XXVIII of 1958) as to whether when for example, an Assistant Settlement Commissioner or a Deputy- Settlement Commissioner or an Additional Settlement Commissioner or a Settlement Commissioner exercised any of the delegated powers of the Chief Settlement Commissioner , then was his order appealable to or revisable by a higher officer(s) or not? Toe view of this Court as reported in Abdul Ghani v. The Chief Settlement and Rehabilitation Commissioner , Pakistan and another (PLD 1964 Lah. 214) and Mst. Hassan Bi and others v. Chief Settlement Commissioner and 2 others (PLD 1964 Lah. 528), was that such an order was appealable and revisable: The matter came up for consideration before the Supreme Court of Pakistan in the famous case of Jalal Din and others v. Sheikh Muhammad Rafiq, Settlement Commissioner (with powers of Chief Settlement Commissioner) and others (PLD 1965 SC 261), which was decided on 2-11-1964, in which the Supreme Court reversed the High Court's view and held that since the order of the delegate for all intents and purposes was the order of the delegator , namely , the Chief Settlement Commissioner , therefore it was not appealable or revisable in accordance with the ordinary scheme of appeals or revision like other orders of the subordinate officers. This view was reiterated by the Supreme Court in Muhammad Iqbal Khan v. The Chief Settlement Commissioner and another (PLD 1965 SC 404). Since in the meantime on the basis of the depart-- mental practice and also on the basis of the High Court's view, various orders of the delegates had been subjected to appeals and revisions, a serious threat was cast to these decisions which if not attended to might have caused great confusion, therefore, to meet the situation, the Legislature promulgated Displaced Persons (Laws Amendment) Ordinance XVIII of 1965 on 2-6-1965, whereby in section 31 of the DisplacedPersons (Compensation and Rehabilitation) Act (XXVIII of 1958) was added subsection (a) which reads as follows:-- "Any order passed by a Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner , in exercise of any power delegated to him under subsection (2 shall be and be deemed always to have been subject to the provisions of Chapter VI, In the same manner and to the same extent as any other order passed by a Settlement Commissioner . Additional, Deputy or Assistant Settlement Commissio ner, as the case may be, is so subject."
14. In the Amending Ordinance XVIII of 1965, at the same time in section 3, it was laid down that:- "Anything done, action taken, order passed, rule made or notification issued, or purporting to have been done, taken, passed, made or issued, under any of the aforesaid Acts, before the promulgation of this Ordinance, shall be deemed to have been done, taken, passed, made or issued under such Act as amended by this Ordinance and shall have and shall be deemed always to have had ef fect accordingly ."
15. The question of the effect of this amendment came up for consideration before the Supreme Court In Muhammad Yousuf v. The Chief Settlement and Rehabilitation Commissioner , Pakistan, Lahore and others (PLD 1968 SC 101 ) where at pages 107-108, they observed as follows:- "The argument raised by Dr. Nasim Hasan Shah calling in question the correctness of the view in the case of Abdul Ghani The C. S. And R. C. PLD 1964 Lah. 214 thus finds support from the decision of this Court in Jalal Din v.
The Chief Settlement Commissioner etc. As has been --said already the latter decision was based on an interpretation contrary to that on which a great number of orders had been passed earlier by the Settlement authorities, and by the High Court in matters coming before it. It was probably with a view to avoiding the great disturbance which would have resulted if the earlier orders were brought before the Courts to be decided in the light of the interpretation given in Jalal Din's case that in August 1965, by Ordinanc e XVIII, the President amended section 31(2) of the Act by adding a third subsection reading as follows:- 'Any order passed by a Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner in exercise of any power delegated to him under subsection (2) shall be, and be deemed always to have been, subject to them provisions of Chapter VI in the same manner and to the same extent as any other order passed by a Settlement Commis--sioner , Additional, Deputy or Assistant Settlement Commis--sioner , as the case may be, is so subject."
This amendment was, by section 3 of the Ordinance support--ed by a validating clause reading as follows:-- 'Anything done action taken, order passed, mile made or notification issued, or purporting to have been done, taken, passed, made or issued, under any of the aforesaid Acts, before the promulgation of this Ordinance, shall be deemed to have been done, taken, passed, made or issued under such Act as amended by this Ordinance, and shall have and shall be deemed always to have had ef fect accordingly .
The effect of this validation clause was clearly to oblige all Courts before which any order of the relevant kind was brought up for examination to assume for the purposes of its decision that the order at the time when it was made was one that was subject to the provisions of Chapter VI. That obligation applies to the Supreme Court, notwithstanding the contrary view expressed in Mal Din's case, on pure construc--tion of the relevant provision'."
15. It is pertinent to mention that earlier at page 107 of the Report, the Supreme Court while referring to its judgment in Jalal Din's care observed that:- "This judgment was delivered on the 2nd November 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision.
It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement authorities or of the High Court made in the light of the earlier interpretati on which was that the exercise of the delegated power was subject to the provisions in Chapter VI of the Act."
According to this passage, the earlier decision ipso facto may not have become invalid, but the other passage of the Supreme Court reproduced above shows that a challenge could have been thrown to them in any Court of competent jurisdiction so as to get them declared void. It was to avoid such challenges that the law as herein before was amended.
16. This all happened on the side and in the sphere of the Displaced Persons (Compensation and Rehabilitation)
Act (XXVIII of 1958). But strangely enough, even though such a situation existed on the side of the Displaced Persons (Land Settlement) Act (XLVII of 1958), no steps were taken by the Legislature to make amends and it was only on 18-1-1972, that the amendment, presently under consideration was brought in. Taking light from the Supreme Court's observations, reproduced earlier , it can, therefore, b: safely said that these amendments have been brought about to avoid disturbance of the matters which may have been decided on the earlier point of view of the law , then prevalent or assumed by all concerned.
17. At this stage it may be pointed out that the amendment now under consideration is different from the one which was made in the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, by Ordinance XVIII of 1965 in two respects, Firstly , there is no such validating section as was promulgated in the form of section 3 of Ordinance XVIII of 1965. Secondly , in subsection (3) of section 30, as added here, there is an additional word "shall". In the Displaced Persons (Comp ensation and Rehabilitation) Act, the sentence read, "shall be and be deemed always to have been subject to the provisions of Chapter VI", whereas here it reads, "shall be and shall be deemed always to have been subject to the provisions of Chapter VI". These variations, hoe ever, in our opinion do not make any much difference, because, the language introduced even otherwise is quite clear to show the law to be retrospective in nature.
18. Considerable arguments were addressed before us on the point as to what was the effect of this amendment and as to whether the present revision petitions, which were instituted in this Cour t, prior to the amendments were destroyed or saved and whether in future any revision under section 21 of the Displaced Persons (Land Settlement) Act, would be maintainable in this Court or not against the orders of the delegates, in spite of the fact that their orders now are appealable and revisable like their any other orders. As the matter was of a considerable importance, we sent for the learned Advocate---General and Mr. Ehsan-ul-Haq learned standing counsel for the Central Government. All the learned counsels except Mr. Ehsan-ul-Haq, submitted that the amendment had no effect so far as the jurisdiction of the High Court to hear a revision under section 21 of the Displaced Persons (Land Settlement) Act, against the order of a Chief Settlement Commissioner involving a point of law was concerned.
They contended that despite the above amendment the orders of the delegate could still be considered as orders of the delegator i.e., the Chief Settlement Commissioner and revision against them could be filed in High Court on that score.- They argued that the mere fact that the orders of the delegatee have been made appealable or revisable like their any other orders does not detract from the proposition that they still constituted and remained the orders of the delegator . Provision for appeals and revisions, against these orders, according to them simply meant certain other additional remedies, but the character and nature of D these orders does not in essence change in any manner . Under section 21 of the Act, "any person aggrieved by an order of the Chief Settlement Commissioner involving a question of law, may within sixty days of the order file a petition for revision to the High Court." It was argued that in future High Court might refuse to entertain a revision straightaway as for example from the order of an Assistant, Deputy or Additional Settlement Commissioner , and may ask the suitor concerned to exhaust these remedies in the first instance; 'but so far as jurisdiction of entertaining a revision made straightaway against the orders of the delegates was concerned, that was not in any manner fettered by the amendment.
Another argument suggested was that whet;, for example the initial order :ass of the Assistant, Deputy or Additional Settlement Commissioner there the person aggrieved may have the remedy of appeal or revision to the higher officers) concerned, but where the order was of a Settlement Commissioner in that case, there will be no remedy to the person aggrieved because no revision in the Act now lies to the Chief Settlement Commissioner . If it was held that an order of a Settlement Commissioner (in his capacity as a delegate) was not revisable by the High Court then it was suggested, the position would be anamolous, because, if instead of delegate of the Chief Settlement Commissioner , the order had been passed by the Chief Settlement Commissioner himself, a revision would lie in the High Court, whereas against the order of the delegate of the Chief Settlement Commissioner to hold that no revision lies to the High Court and his order is final is to give to the order of the delegate a status higher than that of the delegator viz. The Chief Settlement Commis--sioner . Continuing the argument it was submitted, that the aim of the amending Ordinance was simply to validate and cover past decisions and it had no intention to interfere with High Courts jurisdiction both with regard to already decided, presently pending or future matters. It was further suggested that the amending Ordinance in no way suggested that pending matters were to be tampered with in any manner .
19. On the other hand, the argument of Mr. Ehsan-ul-Haq on instructions from the Solicitor to the Central Government was that originally the order of the delegate was the order of the delegator (namely , the Chief Settlement Commissioner), and according to the original Scheme of Chapter VI of the Act, was not appealable and revisable by any officer including the Chief Settlement Commissioner himself. On that basis, it was revisable only by the High Court and that too on a point of law. Now this scheme of Chapter VI has been changed and order of the delegated shall be deemed to be subject to the provisions of Chapter VI in the same manner and to the same extent as any other order of the delegate is so subject. Applying this mandate of law to the orders of delegates, its obvious effect is that their orders for the purposes of Chapter VI no longer retained that status and position which, according to the law, as declared in Jalal Din's case they otherwise possessed. According to Mr. Ehsan-ul-Haq, they have been reduced to the status off an ordinary order of the delegate whosoever he may be. If his ordinary order is not revisable by High Court, then merely because any particular order has been passed by him, in his capacity as a delegate now, would not make any difference, because the mandate of law does not admit of exception of any hind viz-a-viz any particular delegate, as for example was being suggested by giving illustration of the order of a delegate Settlement Commissioner and by making its comparison with an order of the Chief Settlement Commissioner .
20. We have given our careful consideration to the weighty arguments advanced in support of both the views and are of the opinion that the view of Mr. Ehsan-ul-haq learned standing counsel for the Central Government cannot be accepted and the contrary view of the learned counsel for the parties which was supported by the learned Advocate-General, was correct for various reasons as hereinafter mentioned, apart from these which are contained in their arguments as reproduced in para 19 ibid:-
(a) There are two situations which arise, when a delegate decides a matter . The first is peculiar to those cases in which if the delegator had himself decided the case then his order would have been appealable or revisable. In such cases a question arises, merely because a matter has been decided by a delegate, does it cease to be appealable or revisable? The second class of cases are those where an order if passed by the delegator would not have been appealable or revisable. In those cases a question arises that when an order is passed by a delegate would it become appealable or revisable merely because any other ordinary order of the delegate is appealable or revisable? The case of Jalal Din (PLD 1965 SC 261) belongs to the second category , wherein it was held that such an order of the delegate was not appealable or revisable. The present case, however , is of first category and stands answered in a passage of the Supreme Court in the same very judgment of the Supreme Court at page 266, which reads as follows:- "In the absence of anything to the contrary in relevant enactment, rights which accrued to parties to a proceedings from an order and the remedies to which they are entitled as against the order , cannot be allowed to be affected by the circumstances that the order is passed not by the authority in whom a power originally vests but by a delegatee of that authority . The remedies which the parties have for challenging an order should remain the same though the order is passed by a delegatee. In the present case orders passed by the officer who is delegating the power are not liable to appeal or revision while the ordinary orders passed by the delegatee are subject to appeal or revision but a case is conceivable where the order s of the delegator are subject to appeal or revision but the orders passed by the delegatee are not so subject. In such a case it could hardly be contend--ed that although a party had a right of appeal if the order was passed by the authority in whom a power vested that right was lost because the order was passed by a delegatee whose orders were not under the law subject to appea l. Of course, it is not impossible for the Legislature to provide that even the exercise of delegated power would be subject to the same kind of control as other orders passed by the delegatee, but that would be a `special provision overriding the general implications of the exercise of delegated power ."
Respectfully following the above law, we hold that notwith--standing the fact that the order in the instant case was passed by a Settlement Commissioner in his capacity as delegatee of the Chief Settlement Commissioner , remedy of revision against the same is not barred simply for the reason that an ordinary order of a Settlement Commissioner was not revisable any more. There is nothing in the amending law to show any intention contrary to what we have held here.
(b) If it is held that orders of the delegates were not revisable by the High Court-(though the orders of the delegator are) this interpretation would have, as the very tenor of the amending law shows a retrospective effect. In that eventuality , the result would be to throw thousands of cases decided by the High Court to disturbances. We do not find any warrant to give such an interpretation to the law under consideration here.
(c) From the point of view hereinbefore mentioned, if no such interpretation is warranted, viz-a-viz the cases decided by the High Court in the past the same should be the position about future cases as well, and their institution too cannot be disturbed or stopped.
(d) The present is a pending case which was instituted in this Court prior to the amending law. There is no indication in the Statute to show any intention to destroy pending cases. On the principle of section 6 of the General Clauses Act, these revision petitions can continue in this Court.
(e) The past legislative history also points to the direction that the intention was to protect the earlier decisions of the Settlement authorities and to provide additional remedies (retrospectively) rather than to destroy the existing remedies.
(f) Revision to this Court lies, it is to be noticed, only on a question of law. It cannot be assumed that the Legislature intended to deprive the suitors concerned or as a matter of fact, the Settlement authorities, from the benefits of the views of this Court on points of law. Remedy of appeal or revision now provided against the orders of the delegate was not a substitute for the remedy of revision under section 21 of the Act to the High Court, on legal points.
21. Coming to the merits of the case, the starting point to be noticed is that an agreement under section 41 of the Land Acquisition Act, between the Provincial Government and the Company was entered into on the 20th of November 1948, and was published in the Punjab Gazette vide Notification dated 15-9-1959. On that date, with regard to evacuee property , there were in force two laws. One was the West Punjab Protection of Evacuee Property Act VII of 1948, which was promulgated on 19-2-1948 and the other was the Pakistan (Protection of Evacuee Property) (Ordinance) XVIII of 1948, which was promulgated on 18-10-1948. In none of these enactments there was any provision Ipso facto vesting the evacuee property to the Custodian, except section 6 of the Pakistan Administration of Evacuee Property Ordinance XV of 1949, which came into force on 15-10-1949 and which will be attended to in detail later on. The provision barring jurisdiction of civil Courts to deal with evacuee property was contained in section 1 1 of the Punjab Act, which read as follows:- "11. Jurisdiction of civil Courts barred in certain matters.- (1) No Court shall entertain or adjudicate on a claim in any suit, appeal, execution application or other proceedings as to whether any property its or is not evacuee property or as to what interest, if any, an evacuee has in such property except in the case of a claimant who has been referred to the civil Court under section 17 of the Act for establishment of his title."
(2) No decision of any Court on a claim such as is referred to in subsection (1) given between the 15th of August 1947, and the coming into force of this Act, shall be binding on the Custodian or shall affect the rights or interests of any evacuee in the property in question.
(3) All property of which the Custodian has assumed possession or control under section 4 of this Act, shall be exempted from attachment or sale In execution of a decree of a civil Court or in pursuance of an order issued by any Court.
(4) No Court shall be competent to Issue an injunction or other order In relation to any act done or Intended to be done by , or in relation to any proceeding pending before a Custodian."
22. In the Central Ordinance XVIII of 1948, the corresponding provision was contained In section 14, which was to the following ef fect:- "14. Jurisdiction of civil Courts barred in certain matters.- (1) No Court shall entertain or adjudicate on a claim in any suit, appeal, execution application or other proceeding that any property is or is not evacuee property or that an evacuee has or has not an interest in such property except in the case of a person who has been referred to the civil Court under section 20 of this Ordinance to establish his title.
(2) No decision of any Court on any claim such as is referred to in subsection (1) given between the date prescribed In respect of any area and the coming into force of this Ordinance, shall be binding on the Custodian or shall af fect the rights or interests of any evacuee in the property in question.
(3) All property of which the Custodian has assumed possession or control under section 6 of this Ordinance, shall be exempt from attachment or sale in execution of a decree of a civil Court or in pursuance of an order issued by any Court.
(4) No Court shall be competent to grant an injunction or other order in relation to any act-done or intended to be done by or on behalf of a Custodian or in relation to any proceedings pending before a Custodian."
23. A perusal of the aforementioned provisions of law will show that they barred only the jurisdiction of the Courts to deal with evacuee property and did not impose any prohibition on the powers of the Central or Provincial Government to acquire evacuee property for any public purpose or for a Company .
24. However on 26-7-49, was promulgated the Pakistan (Dealings in Immovable Evacuee Property) Ordinance XI of 1949, it was to come into force in such areas and on such dates, as may be notified in the official Gazette. In subsection (4) of section 1 of this Ordinance, it was written that:- "It shall remain in force for a period of two months from the date of coming into force but the Central Government may by notification in the official Gazette direct that it shall remain in force in any area or areas for any further period or periods not exceeding two months at a time."
It was applied to Punjab with effect from 26-7-1949 and con--tinued in force till 10-1-1950 (See Gazette (Extraordinary) 1949, page 452). Sections 3 to 6 of this Ordinance were quoted before us. They read as follows:- "3. Prohibition of dealings relating to immovable evacuee property .-Notwithstanding anything contained in any other law for the time being in force,-
(a) no proposal for the sale, mortgage, lease, exchange or other dealing relating to any immovable evacuee property shall be made and no such proposal made before the coming into force of this Ordinance shall be accepted and no agree--ment relating to any such dealing shall be entered into or made;
(b) no agreement made before the coming into force of this Ordinance in respect of sale, mortgage, lease, exchange or other dealing relating to any immovable evacuee property shall be performed, and no deed or other instrument in performance of any such agreement shall be executed or registered nor shall any such agreement be completed in any other manner .
4. Registration of documents.- Notwithstanding anything contained in the Registration Act, 1908, or in any other enactment for the time being in force, no registering officer shall register or accep t for registration any document relating to any immovable evacuee property .
5. Proposals, etc., contravening Ordinance to be void.--(1) Any proposal or acceptance made, agreement entered into, deed or other instrument executed or registered or dealing effected in contravention of this Ordinance shall be null and void.
(2) The Custodian may, of his own motion or on a reference made to him by any person, declare that any proposal, acceptance, agreement, deed or other instrument or dealing is null and void under the provisions of sub--section (1), and such declaration shall be conclusive evidence that such proposal, accept ance, agreement, deed or other instrument or dealing is null and void and shall not be questioned in any Court.
6. Power to exempt.- The Central Government may, by notification in the official Gazette, exempt any person or, class of persons or any immovable evacuee property or class of such property or any form or forms of dealing relating to immovable evacuee property from the operation of his Ordinance."
25. It was argued before us by the learned counsel for the contesting respondents that the agreement entered Into between the Provincial Government and the Company on 20-11-1948, in pursuance whereof the property in question was to be acquir--ed and later on transferred to the Company , became null and void by virtue of the provisions of sections 3 to 5 reproduced above. The contention has no force. A scrutiny of the aforesaid provision will show that the ban for performance or completion of old agreements was merely temporary and it was only during a limited period that if any proposal or acceptance was made or deal as entered into or any instrument was executed or registered or any delivery was effected in contravention of this Ordinance that it was to be null and void. In the instant case the further deal of the agreement took place much after when the Ordinance had ex--pired and the ban had been lifted and as such the present case did not come within the mischief of the aforesaid Ordinance. Secondly , the Ordinance by its nature being of a temporary character , after its lapse, was to be considered as never to have existed except to transactions past and closed. Expiry of a tem--porary statute results in the revival of the law as it previously was. F See Crown v. Haveli (PLD 1449 Lah. 550) (Muhammad Munir A. C.
J, Cornelius and Khurshid-uz-Zaman JJ.); Crown v. Ghulam Muhammad (PLD 1950 Lah. 479); Muhammad Hasham Khan v. Crown (PLD 1953 Pesh. 72); The State v. Muhammad Sharif (PLD 1960 Lah. 236) (Kaikaus and Bashir Ahmad JJ.). Thirdly , the provisions of the aforesaid Ordinance, in our opinion, were not intended to bar the acquisition or requisition of any evacuee property by the appropriate Government for public purpose on the principle of "Eminent Domain." Fourthly , the aforesaid Ordinance was not relied upon by the learned delegate of the Chief Settlement Commissioner and nor was it pressed into service before him.
26. After the lapse of the aforesaid Ordinance, the Central Government on 10-1-1950 issued a Notification under section 15 of the Pakistan Administration of Evacuee Property Ordinance XV of 1949. This notification reads as follows:- "No. F. 28 (33)/49-P , dated 10th January 1950 as amended by Notification No. F-28(33)/49-P , dated 12th October 1951.-- In exercise of the powers conferred by section 15 of the Pakistan (Administration of Evacuee Property)
Ordinance, 1949 (XV of 1949), the Central Government is pleased to declare that, with effect from the eleventh day of January 1950, in the areas in which the said Ordinance is in force, no transfer of property shall, for a period of six months take place as follows, namely:-
(1) Transfer by sale, exchange or otherwise, of any agricultural evacuee property , and such agricultural property as a person intends to alienate in anticipation of his becoming an evacuee;
(2) Transfer of any urban immovable evacuee property , and such urban immovable property as a person intends to alienate in anticipation of his becoming an evacuee,-
(a) by sale, agreement relating to which is entered into on of after the twenty-s ixth day of July 1949, or, if the agreement was entered into before the said date, in respect of which more than twenty per centum of the consideration money remained, on the said date, to be paid by the vendee to or to the account of the vendor;
(aa) by lease or mortgage, agreement relating to which is enered into, or by which, if there is no agreement, the interest of the lessor or mortgagor is thereby transferred, on or after the 12th October 1951 ;
(b) by exchange, with such urban immovable property as is not treated as evacue e property under any law for the time being in force in India, or in any area occupied by India, or, if it is so treate d, is not situated in any of the following areas, namely:- The Province of East Punjab, Himachal Pradesh, Delhi and Ajmer-Merwara the Districts of Saharanpur , Dehra Dun, Meerut and Muzaf farnagar in the United Provinces, the Patiala and East Punjab States Union, Dholpur and Karaull States (now included in the Matsya Union), the Rajasthan Union, Saurashtra (as both these Unions stood on the 22nd July 1948), and the States of Bharatpur , Alwar , Bikaner , Jaipur and Jodhpur ."
27. Learned counsel for the contesting respondents wanted to rely upon the aforesaid Notification in order to show that it banned the acquisition of the prope rty by the Central or Provincial Government for a public purpose or for a Company as laid down in the Land Acquisition Act. This submission is again not correct, because (i) the words "transfer by sale, exchange or otherwise", in our opinion, covered transfers which were voluntarily made by an evacuee or intending evacuee. (ii) The word "otherwise" in Para. I of the Notification on which reliance was placed, should be read ejesdum generis with the words preceding it, namely , "sale, exchange." It does not cover acquisition or requisition of evacuee property by the appropriate Government under the relev ant law read with the rule of the Eminent Domain. (iii) Acquisition is not a transfer in that sense of the term in which this word is used here in this Notification. That the scope of word "transfer" can be limited is evident as for example when we examine the transfer of property by succession or devolution of law. Obviously , the Notification did not have in view the stopping of the succession or inheritance or devolution by law. Similarly , it did not have in view acquisition by the appropriate Government under the constitutional provisions of the Government of India Act, 1935 read with the Land Acquisition Act. No doubt there also when a property is acquired by Government, it stands transferred to the Government but then that type of transfer in our view was not within the contemplat ion of this Notification. (iv) Again this Notification was not relied upon by the delegate of the Chief Settlement Commissioner and nor does it find mention in his impugned order .
28. Learned counsel for the contesting respondents then referred to section 12 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949, and argued that this too constituted a bar on the part of the Provincial Government to have acquired the land in dispute at the relevant time. In our opinio n, the contention is not correct, as we will presently demonstrate. This section in its original form existed as shown in the first column of the table below . Later on it was amended on 21-4-51 and 26-12-51 by section 9 of the Pakistan (Administra--tion of Evacuee Property) (Amendment) Act VI of 1951 and the Pakistan (Administration of Evac uee Property) Second Amend-- ment Act XXXI of 1951 in the amended form it is shown in the second column of the following table:- I II Before Amendment After amendment
3. (1) The Central Government may, by notification in the official Gazette, delegate any of its powers under this Act to a Provincial Government or the Chief Settlement Commissioner subject to such conditions, if any, as may be specified in the notification.
"(2) The Chief Settlement Commissioner may by general or special order and subjectto such conditions as may be laid down in the order delegate all or any of his functions under this Act to any other Settlement Authority except the powers specified in Chapter VI of the Act.(1) Same.
(1-A) added now:- "A Provincial Government may by order direct that any power delegated to it under subsection (1), shall in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised by an of ficer or Authority subordinate to it;" and
(2) Same.
(l) (Added now): Any order passed by a Settlement Commissioner or an Additional, Deputy or Assistant Settlement Commissioner in exercise of any power delegated to him under subsection (2) shall be and shall be deemed always to have been subject to the provisions of Chapter VI in the same manner and to the same extent as any other order passed by a Settlement Commissioner , Additional, Deputy or Assistant Settle--ment Commissioner as the case may be is so subject."
29. This section came up for consideration before this Court in a recent case report ed In Lahore Improvement Trust v. The Custodian, Evacuee Property , West Pakistan and others (PLD 1970 Lah. 257) to which one of us (K. E.
Chauhan, J.), was a party . The High Court held that in view of the wording of subsection (1) which barred Issuance of any legal process, "including seizure, distress, ejectment, attachment or sale by any Officer of a Court or any other Authority ," and in view of the direction that, "no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority", no acquisition notification could be issued by the Lahore Improvement Trust under section 36 of the Punjab Town Improvement Act, 1922, which was akin to a notification under section 4 of the Land Acquisition Act and no further steps or proceedings could be taken towards accomplishment of such acquisition. The Supreme Court In Lahore Improvement Trust, Lahore v. The Custodian, Evacuee Property , West Pakistan, Lahore and 4 others (PLD 1971 SC 811) overruled the Lahore High Court's judgment and held that the words "legal process" in the section were confined and restricted to process emanating from a Court and did not cover Land Acquisition Notifications. The actual passage in the Supreme Court's judgment reads as follows t- "The learned Judges next held that notice issued under section 36 of the Town Improvement Act was bad In law as it was a legal process which under section 12(1) of Ordinance XV of 1949 could not be issued in respect of evacuee property . 'Legal process' is defined in Stroud's Judicial Dictionary as process is the doing of something in a proceeding in a civil or criminal Court, and that which may be done without the aid of a Court is not a 'process'.
Therefore, a distraint whether for rent or any other payment, and whether the right of dis. Tress be given by the common law or statute is not a process nor is It execution or other legal process, within the Bankruptcy Act, 1869 (32 and 33 Vict., C. 7l)-Process does not include an order made by a Court in the exercise of its punitive jurisdiction, therefore, a Justice's order under Distress for Rates Act, 1849 (12-and 13 Vict., C. 14) committing a person to prison for non-payment of rates, or an order of imprison--ment for either of the defaults in payment mentioned in the Exceptions to Debtors Act, 1869 (32 & 33 Vict., C. 62) section 4 Is not a legal process against the property or person of the debtor . "Similarly , a committal for non-payment of debt, under section 5. Debtors Act, 1869, is punitive, and is not a legal process." Obviously , all the steps taken in an execution the seizure and the sale-are, in the natural meaning of the word, comprehended in the term 'process' (Lynch, J. Re Delahoyd 11 In Ch. Rep. 407). A mere notice, though headed with the name of a county Court, is not a 'process' within County Courts Act, 1846 (9 and 10 V ict., C. 95) section 57 (R. v . Castle 27 L J M C 70).
"This definition of 'process' 1n subsection (1) of section 12 is made clear by the succeeding subsection that 'any such legal process as aforesaid subsisting immediately before such com--mence ment shall cease to have effect and all evacuee property in custody of any Court, or Receiver , guardian or other officer or person appointed by it, shall, upon delivery of the same being called for by the Custodian, be delivered to the Custodian." The nature of legal process contemplated in section 12(1) is also illustrated by the description 'seizure, distress, ejectment, attachment or sale, injunction.'
As notification of the Scheme was not covered by any of these legal processes, Mr. Ghias Muhammad relied on the words or other order of whatever kind', in the second part of subsection (1) of section 12. This clause, however , is qua--lified by the words 'shall be granted or made by any Court'. The notice issued under section 36 of the Town Improvement Act was, therefore, not covered by subsection (1) of section 12 of Ordinance XV of 1949 and the learned Judges erred in arriving at the contrary conclusion."
Respectfully following the Supreme Court's verdict, we have, therefore, no hesitation in holding that the issuance of acquisition notifications under the Land Acquisition Act, were not hit by G subsection (1) of section 12 of the above- quoted Ordinance and that the same could not be pressed into service for nullifyin g the acquisition involved in this case.
30. At this stage we may refer to a case from foreign juris--diction reported in Sadhu Singh and others v. The Financial Com--missioner , Relief and Rehabilitation (Custodian), Punjab, Simla and others (AIR 1954 Pb. 241)
(Harnam Singh and Kapur , JJ.), decided with reference to the provisions of two Indian Laws known as Administration of Evacuee Property Act XXXI of 1950 (hereinafter referred to as India Evacuee Property Law) and the East Punjab Requisition of Immovable Property (Temporary Powers) Act (XLVIII of 1948), as amended by E. P Act II of 1959 (herein--after referred to as East Punjab Requisitioning of Property Act). The former Act is similar in various respects to our Pakistan (Admi nistration of Evacuee Property) Ordinance (XV of 1949) and contains provisions for vesting of the evacuee property in the Custodian and its exemption from all legal process. What happened in that case was that the Provincial Government of East Punjab requisitioned certain evacuee property which had been allotted to certain refugees there. A question arose as to whether any requisition or acquisition of evacuee property could be made and whether the Provincial Act involved there was not in conflict with the India Evacuee Property Act. It was held that requisition and acquisition of evacuee property was not barred by the India Administration of Evacuee Property Act and that there was no conflict between the two laws in this respect. The plea hereinbefore mentioned arose with reference to section 17 of the Indian Evacuee Property Act which reads as follows:-- In Original Form
12. Exemption from legal process.-(1) Property which has vested in or of which possession has been taken by the Custodian shall be exempt from all legal process including seizure, distress, ejectment, attachment, or sale by any officer of a Court and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court.
(2) Upon the commencement of this Ordinance, any such legal process as aforesaid subsisting Immediately before such commencement shall cease to have effect and all evacuee property in custody of any Court, or Receiver , guardian or other officer or person appointed by it, shall, upon delivery of the same being called for by the Custodian be delivered to the Custodian.After Amendment
12. Exemption from legal pro--cess.-(l) Property which has vest- -ed in, or of which possession has been taken by, the Custodian shall be exempt from all legal process, including seizure, dis-- tress, ejectment, attachment or sale by any officer of a Court or any other authority and no in, junction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority .
(2) Same.
(Added afterwards):-
(3) Nothing contained in the foregoing subsections shall- (a) prevent a Registering Officer from ordering registration of a deed of sale or exchange relating to evacuee immovable property , or a civil Court from ordering specific performance of a contract of sale or exchange of any such property whose the sale or exchange or the contract of the same has been duly confirmed or approved by the Custodian and the required certificate has been granted by him; or
(b) affect any power conferred on the Central Government by on under any law for the time being in force to requisition or acquire property , sad it Is hereby declared that if by or under such law or any other law for the time being in force a like power is conferred upon or delegated to a Provincial Government, the Provincial Governmen t, may exercise the same in relation to evacuee property with and only with the previous approval of the Central Government and subject to such direction as the Central Government may at any time see fit to give.
Clause (b) of this subsection shall be deemed to have taken effect on the day this Ordinance came into force."
The point was dealt with at page 243 (column 1) in Para. 18 as follows:- '(18) Then it is said that section 2 of the Requisitioning Act conflicts with the provis ions of section 17 of the Act. In plain English section 17 of the Act provides that evacuee property which has vested in the Custodian under the provisions of the Act shall not be liable to be proceeded against in any manner in execution of any decree or order of any Court or other authority . In argum ent it is said that proceed--ings taken by the State Government under section 2 of the Requisitioning Act come within the mischief of section 17 (1) of the Act.
From the language used in section 17 of the Act it is clear that the section provides for exemption of evacuee property from the process of Courts or authorities in execution proceedings. That this is so is clear from the provisions of section 17(1) of the Act which provides that attachments or injunctions or orders for the appointment of receivers in respect of evacuee property subsisting on the commencement of the Act shall be deemed to be void. Plainly , section 17 deals with exemption of evacuee property from process issued by Courts or authorities in execution proceedings."
In Para. 20 it was held that:- "(20) Mr. Harbans Singh Doabia points out that the Central Government by notification in the official Gazette has not exempted the property requisitioned from the operation of all or any of the provisions of the Act. Finding that there is no provision in the Act prohibiting the requisition of evacuee property I think that it was not necessary for the Central Government by notification in the official Gazette to exempt the property requisitioned from any provisions of the Act."
Kapur , J., who wrote a separate judgment, held on page 244 in the middle of Para. 30 as follows:- "Section 17 exempts evacuee property from processes of Court. Section 40 prohibi ts the transfer by or on behalf of the evacuee of property which has become evacuee property and section 52 gives the power to the Central Government to exempt any property from the operation of this Act.
But none of these sections indicates that the acquisitioning or requisitioning laws passed by the State conflict with the differ--ent sections that I have given above. Neither notification of evacuee property nor the power of vesting nor the power of the Custodian to transfer or to restore the property to the original evacuee or the prohibition against transfer by the evacuee or the power of the Central Government to exemp t properties from evacuee law is interfered with by the pro--visions of the Acquisitioning and Requisitioning Act."
31. Apart from explaining the meaning of the words "legal process", the above discussion of the case-law further shows that the scope of subsection (1) of section 12 of the Pakistan (Administration of Evacuee Property)
Ordinance XV of 1949 and other similar earlier laws should not be unnecessarily , enlarged, because it was not intended to tamper with earlier acquisition s or notifications in that respect, inasmuch as, they did not come within the purview of "legal process" as con--templated therein. In this respect, it may further be pointed out that on principle there could be no bar on the Part of the Central or Provincial Government to acquire evacuee property in view of sections 175 and 299 of the Government of India Act, 1935 which only made one safeguard, namely , that the acquisition should be subject to and under the relevant law which must also provide for compensation.
"Evacuee property" at that time being in the concurrent list, both the Provincial and Central Legislatures could legislate and as such, on the executive side acquire that property with the only rider that if there was a conflict between a Provincial Law or existing law, then the new Central law was to prevail. As already mentioned, there was in this particular respect no conflict, therefore, earlier actions and notifications were all protected and it was only with effect from 15-I0-1949 that on the part of the Provincial Government alone a barrier was placed that in future if it wanted to acquire evacuee land, it should do so with the prior approval of the Central Government, effect of which provision we have already noticed earlier . At the moment even that ban has also been removed by the Evacuee Property and Displaced Persons Laws (Amendment) Ordinance I of 1972.
32. Now we come to clause (b) of subsection (3) of section 12 as reproduced above. A perusal of the aforesaid clause will show that this too has no effect on the facts and circumstances of the present case. The aforesaid clause can be divided into two parts as follows:
(a) First Part.- In the first part of clause (b) of subsection (3) of section 12, it is written that nothing in section 12(1) or 12(2) will affect any power conferred on the Central Govern--ment by or under any law for the time being In force to requisition or acquire property .
(b) Second Part.- In the second part, the Legislature said that it is hereby declared that if by or under such law or any other law for the time being in force, a like power is conferred upon or delegated to a Provincial Government the Provincial Government may exercise the same in relation to the evacuee property with and only with the previous approval of the Central Government and subject to such direction as the Central Government may at any time see fit to give.
First part of clause (b) of subsection (3) of section 12 reproduced above will show that it is declaratory in nature. It envisages that under the law for the time being in force, the Central Government has power to acquire any property . This sub-clause recognizes that position and states that that power of the Central Government is not to be considered as having been fettered in any manner and shall continue to remain in operation. This further points out that not only earlier but even in future, there was no intention to place fetter on the powers of the Central Government in the matters of acquiring properties including evacuee properties. Coming to the second part of the clause reproduced above, that is merely prospective and is meant for future onward from the date of the enforcement of the Ordinance i.e., 15-10-1949. It says that if under any law like power of acquisition of property is vested in any Provincial Government, then onward from 15-10-49 it may be exercised by the said Government but with the prior approval of the Central Government. Here there is a point. What about these cases, where such a power has duly been exercised by the Central or any Provincial Government prior to 15-10-1949. There is no indication in the clause under examination that these acquisitions were to becom e invalid or that the Central or Provincial Government in all parts of the Country were to get involved in them with different types of liabilities towards different persons and directions. In other words, Legislature was aware that numerous acquisitions of evacuee properties had been made in the past by various Provincial Governments under the relevant laws for public purposes etc., and on various evacuee properties thus acquired, great public works had been installed or put up and similarly there had been acquisitions for various companies, local bodies and other similar local institutions.
Was the intention of clause (b) of subsection (3) of section 12 to nullify all those transactions? In our opinion this nowhere flows from the aforesaid clause. To us it appears that clause (b) of subsection (3) of section 12 did not affect things done or actions taken before 15-10-1949, when Pakistan (Administration of Evacuee Property)
Ordinance XV of 1949 came into force. In the instant case, the power had been exercised inasmuch as acquisition proceedings had already started on or little before 20-11-1948 and, therefore, the said proceedings were not affected in any manner by the provision of the law under scrutiny here. It was known to the Legislature that acquisitions had been made in the past both by the Central Government as well as various Provincial Governments. None of these acquisitions were intended to be touched and rather in future both the Central as well as Provincial Governments were competent to acquire evacuee property with only this difference that onward from 15-10-1949, if any Provincial Government wanted to exercise its power then it was to obtain permission of the Central Government. This stipulation was only for future acquisitions which were to be made after 15-10-1949 and had no effect on acquisition underway from much earlier periods. In other words old cases were not to be touched or tampered with in any manner . If for example in any case a decision had been taken, but the award had not been made, or award had been made but possession had not been taken as yet, or agreements were executed or notifications under various sections of the Land Acquisition Act e. g., sections 4, 5, 5-A, and 17 and 42 had already issued, then these transactions and matters were not intended to be disturbed. To put it on an extreme, second portion of clause (b) of sub--section (3) of section 12 in a way repealed the existin g law so far as the power of the Provincial Government to acquire evacuee property onward from 15-101949 was concerned. Applying the principle of section 6 of the General Clauses Act, such a repeal could not affect anything duly done or suffered thereunder .
Section 6 of the General Clauses Act reads a9 follows:- "Effect of repeal.- Where this Act, or any Central Act, or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--
(a) revive anything not in force or existing at the time at which the repeal takes ef fect ; or
(b) af fect the previous operation of any enactment so repealed or anything duly done or suf fered thereunder ; or
(c) affect any right, privilege, obligation or liability acquired, occurred or incurred under any enactment so repealed ; or
(d) affect any penalty , forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ;or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability , penalty , forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty , for--feiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
33. In view of the aforesaid provision of law, we have no hesitation in holding that the present case was not hit in any manner by clause (b) of subsection (3) of section 12 ibid. The learned delegate of the Chief Settlement Commissioner did not interpret the law correctly and assumed that the aforesaid clause was retrospective even beyond 15-10-1949 and affected even things duly done or actions taken prior thereto. There was no warrant to hold so. The order of the learned delegate of the Chief Settlement Commissioner thus is clearly without lawful authority and shall have to be so declared and set aside. Even otherwise it suffers from an inherent vice inasmuch as though it purported to pronounce upon the validity of the actions of the Provincial Government still the said Government was neither impleaded as a party nor heard, which we would hold that in view of the facts and circumstances of the present case, a reference to the Custodian is not called.
34. Learned counsel for the contesting respondents then argued that by mere publication of an agreement under section 42 and issuance of notifications under sections 4 and 6 of the Land Acquisition Act, it did not mean that the land had been acquired. These notifications, it was contended were merely preliminary to acquisition which actually takes place much thereafter . After notification under section 6 "when--ever any land shall have been so declared to be needed for a public purpose or for a Company , the Provincial Government or some officer authorised by the Provincial Government in this behalf, shall direct the Collector to take order for the acquisition of the land under section 7 of the Act." The Collector marks the land, measures it and Invites claims and then gives award under section 11. In section 16 it is written that, "when the Collector has made an award under section 11, he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances." It was argued that it was at this stage that before taking possession, permission of Central Government should have been obtained. The conten--tion has no force. Clause (b) of subsection (3) of section 12 of Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 which talks of acquisition says that "the Provincial Government may exercise the same", that Is the `power' to acquire property . The 'power' to acquire property is exercised right in the beginning when the Provincial Government embarks upon the task of issuing the various notifications etc. And later on when the Collector is given power or authority to "take order for acquisition under section 7 of the Act. In this case, the said power had duly been exercised much prior to the promul--gation of Ordinance XV of 1949 and what remained to be done was only the comple tion of the remaining steps or stages. The exercise of power by issuance of the various notifications under the various sections had vested all concerned with certain rights and liabilities and it was not the intention of section 12(3)(b) of Ordinance XV of 1949 to nullify those proceedings abruptly at that stage so as to create complications and confusion for all concerned. The argument advanced with respect is nothing but exploitation of the wording herein before mentioned and cannot be allowed to succeed.
35. Another point which during the course of the hearing came up for consideration was as to whether the learned delegate of the Chief Settlement Commissioner should have referred this case under section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 to the Custodian for determining the nature of the land in question or was he himself competent to hold that the land continued to remain evacuee property . It was agreed by all the learned counsels for the parties (except Ch. Khalil-ur-Rehman) who submitted that there was not involved any question of the kind contemplated in section 41, inasmuch as, the original evacuee character of the land in dispute was not disputed by any party . The only question determinable was as to whether the acquisition proceedings of the Provincial Government were valid or not and this point the learned delegate of the Chief Settlement Commissioner was quite competent to examine. Reference was also made to Messrs Pakasia Paint Mills Ltd. v. Dr. Abdul Rauf and 9 others (1970 SCMR 739), where similarly a question regarding validity of acquisition notifications issued in year 1956 came up and the same was decided by the High Court and the Supreme Court without referring the matter to the Custodian. Respectfully following the said case, we would hold that in view of the facts and circumstances of the present case, a reference to the Custodian is not called for.
Chaudhry Khalilur Rehman, Advocate, however , submitted that the Chief Settlement Commissioner himself could not decide as to what was the character of the property namely , whether it was evacuee property or whether it had ceased to remain evacuee property , after acquisition. This aspect of the matter we have already answered with reference to Messrs Pakasia Paint Mills Limited v. Dr. Abdul Rauf and 9 others. His next contention was that after its acquisition the property was never treated as evacuee property and, especially , was not so treated immediately before 1-1-1957 and as inch could not have been declared or treated again as evacuee property by the learned delegate of the Chief Settlement Commissioner in view of the bar contained in section 3 of the Pakistan (Administration of Evacuee Property) Act XII of 1957, if not for the first reason, at least for this reason, he submitted the case was such which was referable to the Custodian under section 41 ibid. Because to decide the question about treatment of a property was also within the exclusive jurisdiction of the Custodian as laid down in Azam Ali and others v. The Custodian of Evacuee Property , West Pakistan etc. (PLD 1968 Lah. 148). He submitted that for this purpose even the learned delegate of the Chief Settlement Commissioner should have referred the case to the Custodian. Since the case stands concluded by our finding on the point of the validity of the acquisition, hereinbefore mentioned, we need not attend to this plea of Ch. Khalilur Rehman. Advocate, regarding "treatment" of the property .
36. Learned counsel for the petitioners submitted that earlier another delegate of the Chief Settlement Commissioner on 1-11-1967 had agreed with the report of the Extra Assistant Settlement Officer, Sheikhupura, dated 31-10-67 (Annex. 'C' in S. R. 241 of 1970) and endorsed the view that: "From the perusal of the revenue record . . . . It appears that the land was properly acquired and the possession was delivered to Pakistan Tanneries and Mutations Nos. 108, 110 and 111 were entered and sanctioned. . . The application of Syed Shahzad Nazir is neither under the Companies Act nor under Displaced Persons (Land Settlement) Act. Messrs F. D. Piracha etc., of Pakistan Tanneries are not the allottees of land in question nor is the property evacuee property . It ceased to be evacuee property in the year 1949, when it was formally acquired by the Government and sold to Messrs F. D. Piracha etc. Of the Pakistan Tanneries, After its liquidation, the property vested in the High Court under the Companies Act which had a full right of its disposal.
Much water has flown since the land was originally acquired and sold to Messrs Haji Abdul Hamid and Abdul Hamid Sheikh by the Liquidation Judge and what has been done cannot be undone, through this simple method of scrapping the entire proceedings taken by the Liquidation Judge. It is requested that the report may be submitted to the Deputy Commissioner , Sheikhupura for onward transmission to the learned Commissioner as desired by him."
Learned counsel argued that the aforesaid view of the Settlement officer who too possessed delegated powers of the Chief Settlement Commissioner under section 11 of the Displaced Persons (Land Settlement) Act, could not have been everridden by another delegate namely , Sardar Hidayat Ullah Mokal. Since we have dealt with the whole matter on its intrinsic merit, we need not attend to or deal with this objection.
37. The result is that these revisions are accepted, the impugned order of the delegate of the Chief Settlement Commis--sioner is hereby declared to be without lawful authority and of no legal effect against the petitioners and is quashed. The petitioners shall got their costs throughout from (i) Mirza Haq Nawaz, (ti) Shahzad Khan (Shahzad Nazir), (iii) Mst. Begum Khudeja Hakee m and (iv) Mst. Hashmat-un-Nisa inform ers (respondents) in both the revision petitions.
Section 17. -- Exemption of evacuee property from processes of Court, etc.(1) Save as otherwise expressly provided in this Act, no evacuee property which has vested or is deemed to have vested in the Custodian under the provisions of this Act shall, so long as it remains so vested, be liable to be proceeded against in any manner whatsoever in execution of any decree or order of any Court or other authority, and any attachment or injunction or order for the appointment of a receiver in respect of any such property subsisting on the commencement of the Administration of Evacuee Property (Amendment)Act, 1951 shall cease to have effect on such commencement and shall be deemed to be void.
(2) Where, after the 1st day of March 1947, any evacuee property which has vested in the Custodian or is deemed to have vested in the Custodian under the provisions of this Act has been sold In execution of any decree or order of any Court or other authority, the sale shall be set aside if an application in that behalf has been made by the Custodian to such Court or authority on or before the 17 day of October 1950.