1. ANWARUL HAQ, J.-This appeal, by leave of the Court, is directed against the judgment of a Division Bench of the High Court of West Pakistan at Karachi, dated the 7th of January 1966, whereby a constitution petition filed by the appellant to challenge the correctness and legality of an order passed by the Evacuee Property Inquiries Tribunal was dismissed.
2. The relevant facts are that one Dandumal bad two sons-- Hotchand and Teckchand. Hotchand died before Partition and was survived by his son Dayaram, who also died before Partition and was survived by his widow Sharimad Parbati Bai. Teckchand died in March 1951, leaving behind widow Shri--mati Lachhmi Bai and two sons, Lachhmandas and Assudomal. It is claimed that Lachhmandas, Assudomal. Shrimati Parbati Bat and Lachhmi Bat constituted a joint Hindu family owning considerable areas of agricultural land in district Tharparkar. On the 1st of June 1950, Mr. Akber Hussain, the Custodian of Evacuee Property, made a brief order "in the matter of an appeal under section 36 of Ordinance No. XV of 1949", which Is as follows :- "The case was adjourned at the request of the Rehabilitation Commissioner. The application is not contested. Teckchand and his sons Assudo and Lachhmandas and the two minor sons of Lachhman are proved to have resided in Pakistan. Assudo had gone with his family to India in April 1950, temporarily to visit his sister who has lost her son. 1 hold the applicants to be not evacuees."
3. The same Officer made another order on the 3rd of June 1950, in the following terms :- "It is proved from the affidavit sworn by Lachhmandas that Parbati Bai is not evacuee."
4. The applications or appeals, on which these two orders were made by the learned Custodian of Evacuee Property, do not form part of the record of this appeal, although the order of the High Court recites that a copy of the memorandum of appeal was produced before the learned Judges by Mr. Brohi. However, from a copy produced before us by the learned counsel for the appellants, we find that the proceedings before the learned Custodian were indeed in the nature of an appeal directed against some orders of the local Rehabilitation authorities treating the agricultural lands of the appellant-family as evacuee property and allotting them to Muslim refugees from India. Two such orders dated the 17th of March 1948, and the 25th of August 1949, are on this record.
5. On the 27th of October 1951, the Assistant Custodian of Evacuee Property at Mirpurkhas issued a notice calling upon the members of the joint family to show cause why they should not be declared as evacuees or intending evacuees. In December 1951, the Deputy Rehabilitation Commissioner, Mirpurkhas, also made a report to the learned Custodian of Evacuee, property, bringing to his notice certain facts purporting to show that the appellants had migrated to India and had become evacuees, and that in any case Shrimati Parbati Bat had never returned to Pakistan. On the 30th of September 1954, the Deputy Custodian of Evacuee Property at Hyderabad made an elaborate order, after recording evidence and hearing the appellants, holding Lachh-- mandas, Assudomal and Shirimati Parbati Bat along with their family members to be evacuees within the meaning of section 2(2) of Ordinance XV of 1949, and declaring all their properties to be evacuee properties.
6. On the 8th of October 1954, the appellants filed an application before the Assistant Custodian of Evacuee Property under section 18 of the Ordinance for a declaration to the effect that they were not evacuees and their properties were not evacuee H properties. The learned Assistant Custodian accepted this application by his order dated the 1st of May 1956, and held that the appellants were non-evacuees. The order was, however, subject to the approval of the Deputy Custodian, but the same does not appear to have been obtained or accorded. However, on the 1st of November 1957, Lachhmandas made a Misc. Application direct to the Custodian of Evacuee Property praying that the order of the Assistant Custodian dated the 1st of May 1956, be confirmed. The learned Custodian accorded the necessary confirmation on the 29th of November 1957, apparently without issuing notice to the Rehabilitation authorities or the allottees of the land. This order simply states :- Feeling dissatisfied with the orders made by the Assistant Custodian on 1-5-56 and the learned Custodian on the 29th of November 1957, the Central Government made a reference to the Evacuee Property Inquiries Tribunal under section 43-A of the Pakistan (Administration of Evacuee Property) Act (XII of 1957). This reference was disposed of by the Tribunal by its order dated the 31st of July 1960. It was held that Assudomal and Parbati Bai were evacuees, that Assudomal's one-third share to the property, of the joint Hindu family of Teckchand was evacuee property, and that the eight Annas share inherited by Shirimati Parbati Bai from her husband Dayaram was also evacuee property. The Tribunal did not interfere with the finding of the Custodian authorities regarding the non-evacuee status of Lachhmandas, and the corresponding character of his share in the property, nor did it pass any order as regards Shirimati Lachhmi Bai as she had never been declared an evacuee. On this view of the matter the reference was partly allowed and partly disallowed. Aggrieved by this order of the Tribunal the members of the joint Hindu family invoked the writ jurisdiction of the High Court. Although a large number of grounds were taken in the writ petition, the arguments in the High Court were confined to three main questions :-
(a) That in terms of subsection (2) of section 43-A of Act XII of 1957, the Tribunal could review only those orders of the Custodian authorities which had beets passed on or after the 1 of January 1953, declaring any evacuee to be a non-evacuee and any evacuee property to be a non-evacuee property, but to this case the Tribunal had gone beyond its jurisdiction in setting aside two orders of the Custodian dated respectively the 1st and the 3rd of June 1950, by which the members of the joint Hindu family had been declared to be non-evacuees ;st
(b) That as the life of the Tribunal had admittedly expired on the 31st of July 1.960, the Tribunal's order passed on that day, which was a Sunday, was not announced in open Court, nor was it notified to the members of the family, with the result that the order was inchoate, Incomplete and of no effects; and
(c) That the Central Government and the Tribunal being bound by the pleas and statements of fact contained in the reference, it was not open to the Tribunal to hold that the joint Hindu family had broken up on the death of Dandumal, or that Shirimati Parbatl Bai was not a member of the said family, or that the orders made by the learned Custodian on the 1st and the 3rd of June 1950, were not made by him in exercise of appellate powers under section 36 of the Ordinance.
7. The High Court has repelled all these contentions. It hat, held, in the order under appeal, that the two orders made by Mr. Akbar Hussain, the learned Custodian of Evacuee Property, on the 1st and the 3rd of June 1950, were bad in law as they were passed without notice to the Rehabilitation authorities as well as the allottees of the land, that no appeal was competent before the Custodian against the orders of the Rehabilitation authorities treating the properties in dispute as evacuee properties and copies of orders appealed against were also not produced before the Custodian; and that the proceedings before the Custodian could not be treated as falling under section 18 of the Ordinance for no such application was made within the:: limitation allowed by law for this purpose. On the second contention raised before it, the High Court has taken the view that the order of the Tribunal could not be declared to be illegal merely because it was not publicly announced by it. Finally, the High Court has held that the Tribunal was not bound by the statements contained in the reference made by the Central Government, as it had ample powers to hold art, enquiry into the case and to record such evidence as might be found necessary or proper. On these findings, the; High Court has declined to interfere with the order of the Tribunal.
8. The main points emerging from the elaborate arguments, addressed by Mr. A. K. Brohi, in support of this appeal, may be formulated as under :-
(a) That the two orders made by the Custodian of Evacuee Property on 1-6-50 and 3-6-50, declaring several members of the joint Hindu family to be non-evacuees, were legal orders passed by the highest Custodian authority, and could not be varied or Interfered with by the subordinate authorities of the same organization, and accordingly, the proceedings taken by these authorities and the resultant order passed by the Deputy Custodian on the 30th of September 1954, were without jurisdiction;
(b) that in any case the facts on which the Deputy Custodian based his finding regarding the evacuee character of the appellant family and its property did not relate to the period subsequent to the Custodian's orders mentioned above, and therefore, did not constitute a lawful basis for a declaration contrary to the one granted by the Custodian;
(c) that even if the two orders passed by Mr. Akber Hussain were illegal and non est. The Tribunal, as a Court of limited jurisdiction, functioning within the ambit of section 43-A of Act XII of 1957, could not declare them as such, nor could it proceed to ignore them as a nullity in collateral proceedings ;
(d) that assuming that the Tribunal had the jurisdiction to examine the legality of the orders made by Mr. Akber Hussain, prior to the 1st of January 1953, the date specified in section 43-A of the Act, the Tribunal has given untenable reasons for striking down these orders, and the High Court has also fallen in error in endorsing the same
(e) that the Tribunal as well as the High Court have erred in law in ignoring the fact that even if no appeal was competent before the Custodian against the orders of the Rehabilitation --authorities treating the appellants' property as evacuee property the Custodian was, nevertheless, empowered in law to maintain the proceedings in terms of section 18 of the Ordinance for the purpose of granting a declaration that the appellants and their property were not evacuee ;
(f) that the life of the Tribunal having admittedly expired on the 31st of July 1960, which was a Sunday, the orders made by it on that day were a nullity for want of proper pronouncement and communication to the appellants l--and
(g) that the order made by the Tribunal suffers from at least two errors patent on the face of the record namely :-
(i) that the Assistant Custodian and the Custodian, in their orders dated the 1st of May 1956, and the 29th of November 957, respectively had not granted any declaration regarding the personal status of the appellants, and therefore, the Tribunal, acting under section 43-A, could not record any finding in this behalf, and had to confine itself to a consideration of the character of the property owned by the family ; and
(ii) that the share of Lachhmandas, who continues to be---non-evacuee, has not been correctly determined on the facts held by the Tribunal itself.
9. The first two contentions may be taken up together. There can be no doubt that, under successive statutes dealing wit the administration of evacuee property, the Custodian is the highest authority and all other authorities in the organization are subordinate to him, and have to function under his super--visory appellate and revisional jurisdiction. In these circum--stances, it is correct to assert that ordinarily a subordinate authority in the same organization would not be competent to modify the orders made by the Custodian.
10. However, the peculiar facts of this case have to be borne in mind before arriving at a final conclusion in this behalf. The two orders made by Mr. Akber Hussain on the 1st and 3rd of June 1950, in his capacity as Custodian of Evacuee Property, have already been reproduced in an earlier part of this judgment It will be seen that none of these orders discloses, in any detail, the evidence which was produced before the learned Custodian in support of the appellants' contention that they were not evacuees. The first order opens with the recital that the case was adjourned at the request of the Rehabilitation Commissioner, and the next sentence states that :- "The application is not contested."
11. There is no indication that at the adjourned hearing the Reha--bilitation Commissioner was represented before the learned Custodian, and did not desire to contest the application. In the statement of the case forwarded by the Central Government to the Tribunal, it was asserted that both the orders had been made ex parte, and that Mst. Parbati Bai had not applied for any declaration, which was granted to her simply on the basis of an affidavit sworn by Lachhmandas.
12. These assertions, contained in the case stated by the Central Government, appear to be supported by a report made to the Custodian by the Deputy Rehabilitation Commissioner, Mirpur--khas, in December 1951, drawing attention to the statement of Assudomal made before the Assistant Custodian, Mirpurkhas, in which he had admitted that he had become an Indian National. Even before this report by the Deputy Rehabilitation Commissioner, a notice had been issued by the Assistant Custodian of Evacuee Property on the 27th of October 1951, calling upon the members of the joint family to show cause why they should not be declared as evacuees or intending evacuees. These acts go to show that while passing orders on the Ist and the 3rd of June 1950, in favour of the appellants, the learned Custodian had not at all cared to examine all the available facts of the case. In these circumstances, the subordinate Custodian authorities were under an obligation to ask for a reconsideration of the orders made by the Custodian. This was precisely what the Deputy Custodian did by referring the case to the Custodian/ Additional Custodian under his letter dated the 23rd of January 1954, and he proceeded to pass his judicial order on the 30th .Of September 1954, on receipt of confidential letter No. 393/54 dated 6-2-54 from the Additional Custodian (Judicial) at Karachi. It seems to us therefore that in view of these facts it is difficult to accept Mr. Brohi's contention that the subordinate Custodian authorities had no jurisdiction to re- open the matter. It is true that the facts on which they relied were such as related to the period prior to the two orders made by Mr. Akber Hussain In 1950, but these facts had not at all been considered by the learned Custodian and, therefore, his orders stood vitiated on this account alone. .
13. "43-A. (1) The Central Government may, by notification in the official Gazette, constitute a Tribunal, to be called the Evacuee Property Inquiries Tribunal, consisting or not less than two members, one at least of whom shall be a person who is or has been a Judge of High Court.
(2) If in any case in which a Custodian has on or after the first day of January 1953, declared any evacuee or any evacuee property to be a non-evacuee or non-evacuee property, as the case may be, the Central Government may, notwithstanding anything contained in this Act or in any other law for the time being in force, refer the case to the Tribunal.
(3) Where a case is referred to the Tribunal under sub--section (2), the Central Government shall send to the Tribunal a statement of the case together with the record relating thereto.
(4) The Tribunal may, after perusal of the record and the statement, confirm the decision of the Custodian, or hold such Inquiry as at may consider necessary, and in doing so, call for report from the Custodian or any other authority, and take any further evidence, and may pass such order as may be deemed fit: Provided that the Tribunal shall not pass any order modify--ing or reversing the declaration of the Custodian without giving the person affected thereby an opportunity of being beard.
(5) All questions before the Tribunal shall be decided in accordance with the opinion of the majority of its members, and, if the members are equally divided in opinion, in such manner as may be prescribed. 43-B. Any order passed by a Custodian declaring any evacuee to be non- evacuee or any evacuee property to be non-evacuee property shall take effect and be deemed always to have taken effect subject to the order of the Tribunal under section 43-A."
14. It may be stated that section 43-A, as originally inserted In Act XII of 1957 by an amendment made in September 1958, contemplated that the reference by the Central Government would be to the High Court, and that such a reference shall be heard by a Bench consisting of not less than two Judges of the High Court. Subsequently, the section was amended to provide for the constitution of a Tribunal consisting of not less than two members, "one at least of whom shall be a person who is or has been a Judge of a High Court".
15. As both these provisions of law have previously come before the Court for interpretation in at least two cases cited at the Bar, it Is not necessary for us to enter upon a fresh examination of their nature and scope, and it would suffice if reference is made to the opinions already recorded. We may hasten to add that nothing was said at the Bar to persuade us to take a different view in this regard.
16. "It would appear that the amendment was rendered necessary by the discovery that irregularities had taken place in respect of declarations made by Custodian with reference to the property of evacuees, and probably for the public satisfaction, power was given by the Legislature to the Central Government to refer cases of doubt to the High Court for the further examination of the "legality or propriety of the order passed by the Custodian .. . . . . . . . . . By section 43-B it was provided that the decision of High Court was to prevail against any order passed by a Custodian in the relevant respect, as if the Custodian's order had always been subject to the High Court's order.
17. This was a very special jurisdiction, being clearly In derogation of the provisions in section 41 of the Act of 1957, itself a repeat of similar provisions in a number of earlier statutes on the same subject which had been repealed in series, that the civil Courts should have no jurisdiction to adjudicate upon any question whether any property is or it not evacuee property, nor would they have power to question the legality of anything done under the Act by the Custodian. Being a special and limited jurisdiction, the instrument by which it was conferred must be construed and applied with strictness."
18. It was added that:-- "The High Court under section 43-A aforesaid was competent to interfere only with declarations made by a Custodian, and then only with such declarations made after the 1st of January 1953 . . . . . . . . . . . . . . The choice of the date the 1st January 1953, as the commencing date from which declarations of the relevant kind by the Custodians should be: rendered liable to revision must be deemed to have been consciously made, so as to give finality to all similar orders mad prior to that date. Therefore, section 43-A must be construed an excluding from the purview of the High Court's jurisdiction thereby conferred, all declarations of date prior to the 1st January 1953, made by a Custodian declaring; property to be either evacuee or non-evacuee."
19. The full effect of section 43-B was, however, not considered in this judgment. This provision of law fell for detailed examination in the earlier case of Perumal v. The Central Govern--ment of Pakistan (PLD1963SC127) in which the judgment was delivered by Kaikaus, J., but Cornelius, C. J. Was also a party to the same. It is interesting to note that the facts in that case were remarkably similar to those of the instant case, and the contentions raised before the Court were also practically identical. Repelling these contentions, the Court held that :- "We do not see any good ground for holding that an order declaring a person to be non-evacuee will not attract the operation of section 43-A just because it was passed on an application which had to be submitted because of some Illegal action of the Rehabilitation authorities or a Custodian------------..--- As regards the contention that the Tribunal had no jurisdiction to go behind the orders of the Custodian of Evacuee Property, passed before the 1st of January 1953, and that the provisions of section 43-A would be defeated if in a competent reference the 'tribunal could ignore an order which the Government could not impeach, it was observed that :- "A look at section 43-B will show that the contention putt forward by learned counsel is not quite consistent with the provisions of this section. This section provides that the order of the Tribunal will supersede any order passed by the Custodian. It does not say that an order passed before the 1st January 1953, will bind the Tribunal.
20. The section gives full authority to the Tribunal to decide the question as to the evacuee nature of the property involved o the status of the person concerned and places no limitation on the exercise of this jurisdiction . . . . . . . . . Section 43-B has to be applied as it stands. We cannot read into it a limitation which is not there nor can we say that the failure to make an exception in this section with respect to orders passed before 1st January 1953. Is due to a slip. These two sections were added at one time and the limitation mentioned in section 43-A should have been present to the mind of the draftsman when he drafted section 43-B and the omission of any limitation in section 43-B should be regarded as deliberate."
21. Another feature of Mr. Akber Hussain's order, as noticed in Perumal's case, is also present in the orders passed by him In this case on the 1st and the 3rd of June 1950, namely, that the declarations made by him related merely to the personal status of the alleged evacuees, and were granted on the basis of their statements alone. Commenting on this aspect of the case the Court observed that "we are not prepared to interpret the order of Mr. Akber Hussain as a declaration with respect to the non-evacuee nature of the property now in dispute."
22. These observations have a direct bearing on the facts of the case before us. In the two declarations of the 1st and the 3rd June 1950, relied upon by Mr. Brohi, the learned Custodian has not said a word about the properties belonging to the joint Hindu family which had been treated as evacuee properties by the Rehabilitation authorities, and which treatment had obliged Lachhmandas to present the appeals or applications before the learned Custodian. The importance of this distinction lies in the fact that if a person is declared an evacuee within the meaning of clause (2) of section 2 of Act XII of 1957, or the corresponding provisions as obtaining at the relevant rim and contained in the two Ordinances of 1948 and 1949, the his property would become evacuee property, and once a property bas become evacuee property or has been treated as such, then the only remedy available to the person claiming any right or interested in such property was to move the Custodian under section 18 of Ordinance XV of 1949,under section 22 of Act XII of 1957 for a declaration that the property was not evacuee property or that his interest in the property had not been affected by the provisions of the statute. A mere declaration as to the non-evacuee status of the person concerned would not automatically have the effect of converting the property from evacuee to non-evacuee, or of its restoration to the claimant. In fact, while granting a declaration under section 18 of Ordinance XV of 1949, which was operative at the relevant time, the Custodian had to keep in view the provisions of sections 19 and 19-A of the Ordinance in the matter of prescribing terms on which property was being restored and saving the allotment orders which had been made by the Rehabilitation authorities while treating the property as evacuee property. Mr. Akber Hussain's orders of the 1st and the 3rd of June 1950. Are silent on all these matters, with the necessary consequence that they do not have the effect of restoring to the appellants those properties which had been treated as evacuee properties by the Rehabilitation authorities during the period the appellants were absent from Pakistan, as found by the Deputy Custodian of Evacuee Property in his order dated the 30th of September 1954, and by the Tribunal.
23. From the foregoing discussion of the nature and scope of the provisions embodied in sections 43-A and 43-B of Act XII of 1957, it becomes abundantly clear that in spite of the fact that the Tribunal enjoyed a limited or special jurisdiction in terms of section 43-A, it could, in view of the absence of any limitation in section 43-B, bring under review the two orders made by Mr. Akber Hussain in the year 1950. In any case, the orders in question did not have the effect of restoring to the appellants the properties which had been treated as evacuee properties by the Rehabilitation authorities. This view finds further support from the decision of this Court reported as Mst. Hajiran Sughra v. District Judge and Settlement Commissioner (1), in which it was held that once property had been treated as evacuee property, it could not be excluded from the compensation pool merely on the ground that its original owner had been declared a non-evacuee finally by the order of the Evacuee Property Inquiries Tribunal. The mere declaration of the owner as a non-evacuee is not sufficient for this purpose.
24. On the conclusion that we have reached regarding the powers of the Tribunal under section 43-A of the Act, read with section 43-B thereof, it is not necessary to examine the very elaborate argument presented by Mr. Brohi on the question. (1) 1969 SCMR 686 whether a final order made by the Custodian in 1950 was open to collateral attack before a Tribunal of limited or special jurisdiction, as distinguished from a Court of general jurisdiction. We may therefore pass on to the next contention regarding the un-tenability of the reasons given by the Tribunal for ignoring or setting aside the t- orders of Mr. Akber Hussain.
25. A perusal of the order of the Tribunal shows that in its view the two orders of Mr. Akber Hussain were a nullity in the eye of law for the reasons that the appeals presented before tho Custodian were incompetent in terms of section 36 of Ordinance XV of 1949, as they were not directed against any orders of subordinate Custodian authorities, that no appeal lay against the orders of the Rehabilitation authorities treating the property as evacuee property, and that the second order was passed without there being any appeal or application by Mst. Parbati Bai and also without notice to the Rehabilitation authorities.
26. Mr. Brohi was not in a position to show that these grounds were not tenable. It will be recalled that.
27. Mr. Akber Hussain had passed orders "in the matter of an appeal under section 36 of Ordinance XV of 1949". Now, under section 36 aforesaid, an appeal is provided against final orders made under sections 16, 18, 19 and 23-A by a Deputy or Assistant Custodian. In the present case. It is admitted that no such order had been passed by any subordinate Custodian authority when the matter was brought by the appellants to Mr. Akber Hussain as Custodian of Evacuee Property. The only orders in existence at that time, copies of which were, however, not filed by the appellants before Mr. Akber Hussain, were those made by Rehabilitation authorities treating the properties of the appellants as evacuee properties. No appeal was competent against such orders in terms of section 36 of the Ordinance.
28. Even if the provisions of Ordinance XVIII of 1948 are per--mitted to be invoked, although Mr. Akber Hussain did not purport to act under this provision of law. It would appear that under section 13 thereof an appeal would have been competent to the Custodian from an order of ejectment passed by a Rehabilitation authority under section 9 thereof, but in the present case no such order of ejectment had been passed under that section, which deals with persons in un-authorised possession of evacuee property. All that had really happened was that the lands of the appellant- family had been treated as evacuee property by the Rehabilitation authorities, and accordingly the only remedy provided by law was an application to the Custodian under section 11 of Ordinance XVIII of 1948 or section 18 of Ordinance XV of 1949 for a declaration that the lands were not evacuee property. Such an application was however, not made by the appellants.
29. It was contended by Mr. Brohi that even if no appeal was competent before the Custodian and the appellants had not made any formal application under section 18 of ordnance XV of 1949, yet too orders made by Mr. Akber Hussain were valid orders, as the whole field of powers of a public functionary had to be looked at before declaring them to be without lawful authority or without jurisdiction. In support of his submission he referred us to Chairman, Railway Board v. Abdul Majid Sardar(PLD1966SC725).
30. The proposition stated by Mr. Brohi does indeed find support from the dictum of this Court in the case just mentioned, in which it was held that :- "Acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers In pursuance to which the public authorities act or perform their functions examined and only then if it is found that the act done, order made or proceeding undertaken Is without lawful authority, should the Courts declare them to be of no legal effect."
31. It is, therefore, possible to argue that even if the appellants did not specifically invoke or mention section 18 of the Ordinance, and mistakenly filed appeals under section 36 thereof, the Custodian, was nevertheless, competent to treat their appeals as proceedings under the relevant section.
32. There are, however, two difficulties in the way of treating Mr. Akber Hussain's orders as falling under section 18 of the Ordinance :-
(a) Under rule 4 of the Sind Protection of Evacuee Property Rules, 1949, framed on 18-4-49, under section 25 of Ordinance XVIII of 1948, and saved under section 48 of the 1949-Ordinance, an application under section 18 for the requisite declaration had to be presented before an assistant.
33. Custodian of the area concerned, and an appeal would then be competent to the Custodian, in terms of section 36 of the Ordinance, from an order made by the Assistant Custodian.-- The rule in question appears to be directly related to clause (b) of subsection (2) of suction 46 of the Ordinance which lays down that the rules may provide for the work to be performed by the Custodian and the Additional, Deputy and Assistant Custodians. It would thus appear that the Custodian could not directly entertain an application presented under section 18 of the Ordinance and
(b) Even if it be assumed that the mere distribution of work, between the Custodian and his subordinates, by statutory rules, could not operate to deprive the Custodian of the powers vesting in him under section 18 of the Ordinance, the fact remains that Mr. Akber Hussain has not dealt with the matter in term of that section, as he has not at all considered the question of tile evacuee fir non-evacuee character of the property of the joint Hindu family, and has merely confined his declaration to the personal status of the members of the family. We have already observed earlier that such a declaration was of no avail once the property had been treated .As evacuee property. it was next contended, relying upon Nripendra N. Majumdar, v. N. M. Bardhan and others (AIR 1959 Cal, 219), that the order of the Tribunal was ineffective as it was passed on the last day of its life,namely, the 31st of July 1960, which was a Sunday, and the1 order was not publicly announced nor communicated to the appellants. In the case relied upon by the learned counsel it was held that t- "An order may be taken to be made on the date it came into existence, if the nature of the order is such that it is not necessary to communicate it to anyone. But where an order is made which affects the rights of a person, then the order must be communicated to such person in order to be complete and effective. The date of the order is the date when it is made known to the affected party."
34. The judgment then recites certain exceptions to this rule which are, however, not directly relevant in the present context. We find that the learned Judges In the High Court have repelled this contention of Mr. Brohi by holding that the requirement of public announcement of the order could not be applied in the case of a Tribunal which was neither a criminal nor a civil Court, and that in any case no doubt had been expressed about the genuineness and authenticity of the order made by the Tribunal.
35. We are inclined to agree with the view taken by the High Court in this behalf. It has to be borne in mind that the requirement that orders of Courts ought to be publicly made and announced is not only a matter of accepted Judicial procedure, but is invariably a requirement of law regulating the functioning of civil and criminal Courts. The Tribunal constituted under Act XII of 1957 was admittedly neither a civil nor a criminal Court (See PLD 1.964 SC 236) and there was apparently no statutory or legal requirement as to the model, in which its orders were to be promulgated. In the absence of such requirement it is difficult to hold that the order, which was duly made, signed and dated by the members of the Tribunal before the expiry of its term, would stand invalidated or would be rendered ineffective, simply for the reason that it could not be publicly announced on a Sunday. The High Court has rightly remarked that no doubt was expressed as to the genuineness or the authenticity of the order of the Tribunal.
36. The contention that the Tribunal could not make any declaration regarding the personal status of the members of the appellant-family, as no such declaration had been made by the Assistant Custodian and the Custodian In their orders dated the 1st of May 1956, and the 29th of November 1957, respectively, does not appear to have been raised before the Tribunal, nor before the High Court, and for that reason it cannot be permitted to be raised for the first time In the present appeal. However, even otherwise it is of no assistance to the appellants. We have already held that a more declaration regarding the personal status of the appellants, as granted by Mr. Akber Hussain in his two orders dated the 1st and the 3rd of dune 1950, even if otherwise valid, could not have the effect of altering the evacuee character of their property, and for that purpose a declaration as required under section 18 of the Ordinance of 1949 was necessary. The real controversy in the case now centres round the character of the property and not the personal status of the appellants. Apart from that, we also find that the Deputy Custodian, In his order dated the 30th of September 1954, had declared the members of the joint Hindu family to be evacuees, and all their properties to be evacuee properties. Such being the case, the whole matter was open for investigation before the Tribunal on a competent reference having been received from the Central Government. As a result, we find that nothing turns on the contention now raised before us for the first time.
37. The last point raised on behalf of the appellant, Lachhman--das, was that his share, as a non- evacuee member of the joint Hindu family, had not been correctly determined on the facts found by the Tribunal itself. We find that this matter again was not raised in the High Court. We are, therefore, entitled to assume that the conclusions reached by the Tribunal with regard to the separate share of Mst. Parbati Bai, and of the remaining members of the family were accepted by the appellants. This is, therefore, not a question which can be permitted to be agitated at this late stage in the proceeding Los, It also appears that if the controversy is allowed too be raised, it might need factual investigation which is obviously beyond the purview of this appeal.
38. For the foregoing reasons we find that in terms of section 43-A, read with section 43-B of Act XII of 1957, the Evacuee Property Inquiries Tribunal had the jurisdiction to examine the entire question whether the appellants were evacuees or non-evacuees and whether the properties held by them were evacuee properties or not, once a competent reference had been made to it in this behalf by the Central Government. It is significant that the facts on which the Tribunal has based its conclusions were not challenged on any ground either in the High Court or before the Tribunal itself. The appeal accordingly fails and is hereby dismissed, but we leave the parties to bear their own costs.