1. WAHEEDUDDIN AHMAD, J.--This certificated appeal is directed :against the judgment of the former High Court of West Pakistan, Lahore, in Writ Petition No. 67 of 1960, dated the 4th May 1960. By this judgment, a writ of certiorari was issued against the appellant and an order setting aside the order of Custodian dated the 16th October 1959 was issued and the order dated .The 2nd December 1953 of the Custodian, was restored.
2. The dispute between the parties is in respect of 878 acres of land situated in six different villages of Tehsil Sadiqabad, District Rahimyar Khan of the former State of Bahawalpur. This land originally belonged to Sardar Harnam Singh and Sardar Sher Amir Singh who became evacuee in 1947. The respondent's case is that he has purchased this land by unregistered sale deed dated the 6th June 1947 for Rs. 70,000. The sale deed is written on two annas non-judicial stamped paper on which one-rupee court-fee stamp dated the 11th August 1943 had been affixed. The respondent made an application under section 16 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 corresponding to section 20 of Act XII of 1957, on the 1st December 1949 to the Custodian of Evacuee Property, Bahawalpur State, for the confirmation .Of the said sale deed. This application was rejected on the 8th August 1950 by Mr. Tufazal Hussain, Custodian, Evacuee Property, Bahawalpur State. He held that the sale deed was not genuine and the transaction was not bona fide. The respondent filed a review petition against the said order which was accepted and the transaction was confirmed by the Custodian, Evacuee Property, Bahawalpur. The Rehabilitation Department, on the 22nd March 1957, filed an application for review against the order of confirmation passed by the learned Custodian. Mr. A. M. Jan, heard the representative of the Rehabilitation Authority and dismissed the application for review by order dated the 23rd November 1957. In the meantime three other persons, namely, Bangal Khan, Mehrab Khan and Sohrab Khan filed an application to the Deputy Custodian of Evacuee Property, Bahawalpur, claiming that Sardar Harnam Singh and Sher Amir Singh had agreed to give 171 kanals of land out of the land which was being claimed by the respondent under--adh1api agreement and, therefore, they had become owners of half of that land. The Deputy Custodian referred the case to the Additional Custodian and observed that Bangal Khan and others may be directed to file a civil suit for determination of their right. The Additional Custodian, after examining the record of the previous case, forwarded the case to the Custodian: with recommendation that the order of confirmation dated the 2nd December 1953, may be reviewed. Thereupon. Mr. Justice Masud Ahmad, Custodian, Evacuee Property in exercise of his suo motu powers under section 43(6) of claw Pakistan (Administ--ration of Evacuee Property) Act, issued a notice for suo motu review. After hearing the parties, he set aside the order dated, the 2nd December 1953 and held that the sale deed dated the 6th June 1946, was not genuine and that it was ineffective and inadmissible in evidence.
3. The respondent challenged the validity of the order of Mr. Justice Masud Ahmad in Writ Petition No. 67 of 1960, dated the 16th October 1959, in the former High Court of West Pakistan, Lahore. A Division Bench of the former High Court of West Pakistan, by judgment dated the 4th May 1960, held that the Custodian was not competent to review the order in view of the provisions of section 3 of the Pakistan:) (Administration of Evacuee Property) Act, 1957. They held that the Custodian's order suffered from an error of law which was patent on the face of the record. They accepted the petition and issued a writ of certiorari setting aside the order of the Custodian dated the 16th October 1959 and restored the: order dated the 2nd December 1953. This judgment is challenged. In this appeal before us.
4. Ch. Aziz Ahmad, learned counsel for the appellant, has-- contended that the property in dispute was treated as evacuee-- property before the 1st January 1957 and, therefore, the Custodian had the right to review the order dated the 2nd December 1953 and section 3 was not a bar to the said action. He further --contended that even if it was not treated as evacuee property, before 1st January 1957, it could be treated as evacuee property, in review proceedings. It was also contended that Transfer of Property Act applied to Bahawalpur State and as the sale --was void under section 54 of the Transfer of Property Act, the void transaction could not be confirmed. He further contended that the confirmation was obtained by fraud. Lastly, it was contended that it was not a fit case in which writ, jurisdiction should have been exercised.
5. On the other hand, Mr. Manzoor Qadir, learned counsel for the respondent, has, in reply, contended that there is no proof that the property in dispute was treated as evacuee property before 1st January 1957. He also contended that in the present, case, the Custodian has approved the occupation, supervision, and management of the property after the 28th day of February 1947, by confirming sale, therefore, the Custodian had no power to interfere.
6. Ch. Aziz Ahmad, learned counsel for the appellant, has contended that the property was treated as evacuee property before the 1st January 1957, as it was allotted to the refugees. The learned counsel referred to Annexure VI filed along with supplementary concise statement which is a letter addressed to the Governor-General of Pakistan by Mr. Mumtaz Ahmad Khan Durrani in which an allegation was made that the land in dispute has been allotted to the Muslim refugees since the formation of Pakistan. This is a bare allegation. There is no A reliable evidence to show that the property was in fact allotted to the refugees. No allotment order or any other document has been filed in support of it. In the absence of any evidence, I would hold that the property was not treated as evacuees property before the 1st January 1957.
7. The next contention is that the confirmation of sale was obtained by fraud by the respondent. This aspect of the question was considered by the High Court. It came to the conclusion that the material before the Custodian was the same and there was no new material which could be said to have led to the discovery of fraud. No particulars have been given of the fraud alleged to have been committed by the respondent. The only point urged by the learned counsel for the appellant was that the sale deed dated the 6th June 1947, was not a genuine document and, therefore, a fraud has been played on the Custodian by obtaining the confirmation of the sale by order dated the 2nd December 1953. I have gone through the order of the Custodian dated the 2nd December 1953, and it appears from it that he has considered the question of genuineness of transaction and has come to the conclusion that it was genuine one. This fact, therefore, cannot be considered to be of such` a nature as to lead to the conclusion that a fraud was committed by the respondent. In my opinion, there is no material on C the record to come to a pima facie conclusion that a fraud was committed by the respondent in obtaining the confirmation of sale by the Custodian's order dated the 2nd December 1953. In this view of the matter, the plea of fraud is not available to the appellant and it is unnecessary for me to go into the question whether the Custodian could set aside the confirmation on the ground of fraud.
8. The only question that requires consideration is whether section 3 was a bar for the Custodian to review the order of confirmation of sale dated the 2nd December 1953. In order to appreciate this point it is necessary to reproduce this provision of law. Section 3 of the Pakistan (Administration of Evacuee Property) Act X11 of 1957, reads as under t " 3.-(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date.
(2) Nothing in subsection (1) shall apply-
(a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceed--ings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property, or
(b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February 1947, has not been accepted or approved by the Custodian."
9. The scope and import of this section was considered by me in the case of Syed A.I Iqtidar Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan, Lahore (PLD 1964 Lab. 274 ).
10. After discussing different aspects of this question, I came to the following conclusions .-
(1) That no person or property can be declared as evacuee or evacuee property after the Ist of January 1957, if it was not treated as such before that date by the Custodian. The treatment referred to in this section indicates that some overt act must have been done by the Custodian or Rehabilitation Authorities. Mere vesting of the properties in the Custodian under section 7 or holding possession under section 11 will not mean that such properties were treated as evacuee pro-- perties. If a person has been declared as a non-evacuee, his property cannot be declared to be evacuee property. If the Custodian has confirmed a transaction or approved the right of supervision, management and possession of any party, such properties also cannot be declared as evacuee properties.
(2) All cases in which action has commenced or proceedings are pending immediately before the 1st of January 1957, are outside the purview of section 3(1).
(3) Only those properties are covered by clause (b) which are in unauthorized possession, management or supervision of certain parties. These persons cannot be the owners of the property. Amongst them will fall the cases of agents, transferees claiming their right after the Ist of March 1947 through the evacuee. It will also cover the case of a trespasser."
11. "I will now pass on to another argument, namely, that section 3(1) is not applicable to those cases where a property admittedly was evacuee property and is claimed by a third party on the basis of a transfer in his favour. It is contended that even If such transfer is confirmed, it is open to the Custodian Authorities under their revisional or review powers to re-open the confirmation of such transaction. This conten--petition also cannot be supported on the language of the above- mentioned provision of law. Once the Custodian Authorities have confirmed the transfer in favour of a third party such property ceases to be evacuee property by no stretch of imagination can be considered to have been treated as an evacuee property immediately before the 1st of January 1957. It was urged that if this view is taken, the revisional and review powers given to the Custodian Authorities would become nugatory. It was also suggested that if a case is decided about ten days before the 1st of January 1957 by the Custodian Authorities, the aggrieved party on this interpretation will be deprived of his right to move the Custodian Authorities in their appellate, revisional or review jurisdiction. The hardships pointed out by the learned counsel for the Department are no doubt there, but if the language of the section takes away these powers of the Custodian no Court of law, simply on the ground of hardship, can interpret any provision of law in order to remove such hardships. These arguments were also advanced before a Division Bench of this Court at Karachi in the case of Kishanchand Jethanand and others v. Custodian, Evacuee Property, Karachi PLD 1961 Kar. 589, and were repelled. It was observed In that case as under :-- "That section 3 is an overriding provision of law and if to its application in certain cases the other provisions in the evacuee law are rendered ineffective, the Courts of law cannot question the wisdom of the Legislature. The very fact that revisional and review powers under section 43 are not specifi--cally saved clearly indicates that it is also subject to the provisions of section 3."
12. The learned representative for the Department, who very ably put his case, has not been able to persuade me that the view taken in the above decision is not consistent with the language employed in the subsection under consideration, or in accordance with well accepted principles of interpretation of statutes. In the above-mentioned Karachi decision every aspect of the case was considered and there is no escape from the conclusion that if any person or property was not treated as evacuee or as evacuee property immediately before the 1st day of January 1957, the Custodian has no jurisdiction to deal with the case of such person or property. There is a complete prohibition in this respect and the jurisdiction of the Custodian in such matters has been, subject to clause (2); totally taken away."
13. Mr. Manzoor Qadir, learned counsel for the respondent has adopted these observations as his argument. It will be seen that this observation was made subject to clause (2) of section 3 of the Pakistan (Administration of Evacuee Property) Act.
14. Ch. Aziz Ahmad, learned counsel for the appellant has contended that clause 2(b) is applicable to the present case. According to him, the property in dispute ought to have been occupied, supervised and managed by the respondent and his authority and right to do so should have been lawfully accepted or approved by the Custodian. The learned counsel contended that the Custodian, in the present case, by his order dated the 2nd December 1953 aid not confirm the sale transaction lawfully. He contended that Transfer of Property Act is applicable to the Bahawalpur State and the sale deed should have been registered under the Registration Act. According to the learned counsel, the document in question could not be received in evidence as it was not registered. It offended the provision of section 54 of Transfer of Property Act and, therefore, it could not be confirmed by the Custodian. The contention of the learned counsel appears to be well founded. In view of the above lacuna in the sale deed it was not lawfully confirmed and, therefore, the case of the respondent is covered by sec--petition 3(2)(b) of the Pakistan (Administration of Evacuee Property) Act XII of 1957. In these circumstances, I would hold that exception to section 3(1) contained in subsection (2)(b) applied to the present case and Mr. Justice Masud Ahmad was com--petent to treat this property as evacuee property and could review the order dated the 2nd December 1953. 1 would, therefore, set aside the order of the High Court and recall the writ of certiorari issued by it and restore the order of the Custodian dated the 16th October 1959.
15. Before parting with this case I would like to mention that it is open to the respondent to apply for creating a charge of the amount of the sale consideration before the Custodian authorities in accordance with law.
16. HAMOODUR RAHMAN, C. J. -I agree.
17. SALAHUDDIN AHMED, J.-I agree.
18. ANWARUL HAQ. J.-I agree with the interpretation placed by my learned brother, Waheeduddin Ahmad, J., on the true scope and application of section 3 of Act XII of 1957. I was a member of the Full Bench of the High Court which decided the case Syed A.I 1qtidar Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan, Lahore (PLD 1964 Lab. 274). Nothing was said at the Bar by the learned counsel on both sides to justify a departure from the view expounded by my learned brother ire the leading judgment which he delivered for the Full Bench. Accordingly. I agree that the present appeal be accepted, but the parties be left to bear their own costs.