This is a writ petition under section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. The brief facts which gave rise to this petition are as follow:
3. Shop No. 205, situated in Khasra No. 1675/1385/1247 at Court Road, Muzaffarabad was purchased by Malik Feroz Din respondent No-.3 from Muhammad Salim Shah Gilani through sale-deed executed on 2-9-1978. Respondent No.4 was in possession of the shop as tenant of Muhammad Salim Shah Gilani. Respondent No.3 who stepped in as owner, filed an application for ejectment of respondent No.4 before the Rent Controller, Muzaffarabad on 28-11-1978 which was granted and ejectment of respondent No.4 was ordered on 31-12-1989. The order passed by Rent Controller was upheld by the Appellate Authority, i.e. District Judge, Muzaffarabad on 3-12-1990. On a writ against the order of Rent Controller as well as District Judge, Muzaffarabad, the High Court upheld the decision of Rent Tribunals by dismissing the writ petition on 18-6-1991. During the course of ejectment proceedings, respondent No.4 filed an application under section 22 of Administration of Evacuee Property Act, 1957 before the Deputy Custodian, Muzzafarabad on 18-9-1991 for declaring the shop as evacuee property. The application under section 22 of Administration of Evacuee Property Act, 1957, as referred above was first dismissed by the Deputy Custodian on 22-9-1992, but on 20-9-1993, instead of `dismissal' the word `withdrawal' was substituted. It was, however, ordered that respondent No.4 shall not be allowed the institution of a new suit or and other proceedings.
Another suit was also filed against respondent No.3 before the Deputy Custodian for declaring the shop as evacuee, by one Abdul Hamid on 20-1-1992, but the same was also dismissed by the Deputy Custodian on 6-5-1993. On appeal before the Custodian by Abdul Hamid, respondent No.4, who was respondent in that suit as well, was ordered to deposit the rent of the shop in the Custodian Department.
4: Against the order of ejectment passed in execution proceedings by Rent Controller on 12-7-1993, an appeal was preferred before the District Judge, M'abad by respondent No.4. During the course of proceedings, an application was filed by Perokar Custodian Department for impleading theCustodian as a party in the case on the ground that a case with respect to the shop is pending in the Court of Custodian in which the Custodian has ordered to deposit the rent of the shop in Custodian Fund treating it as an evacuee property. It was pleaded in the application that property in dispute vests in the Custodian under section 7 of the Administration of Evacuee Property Act, 1957 and that all other Courts including the Court of Rent Controller and District Judge are excluded from passing any order with respect to the property. On the basis of the above grounds, it was prayed that the Custodian may also be impleaded as a party before the District Judge. The learned District Judge was pleased to dismiss the application on 9-10-1993.
5. The order of the District Judge referred hereinabove is assailed through this writ petition on the following grounds:that the shop in dispute being evacuee property, the Rent Controller as well as District Judge are devoid of jurisdiction to adjudicate with respect to it;that orders of Rent Controller and the District Judge have been passed without hearing the Custodian and Rehabilitation Authority and are without lawful Authority; and that the shop in dispute being an evacuee property vests in the Custodian under section 7 of the Administration of Evacuee Property Act, 1957.
6. I've heard the learned counsel for the parties and have gone through the record of the case. The learned counsel for the petitioner while arguing his case contended that the shop in dispute is an evacuee property which vests in Custodian under section 7 of the Administration of Evacuee Property Act, 1957, the Rent Controller as well as District Judge, therefore, were not competent to pass any order with respect to the disputed shop. Elaborating his arguments, the learned counsel referred sections 4, 5, 7 and 41 of the Administration of Evacuee Property Act, 1957. The learned counsel for respondent No.3 vehemently opposed the proceedings by the Custodian and arguments advanced at bar on behalf of the petitioner. It is contended by the learned counsel for the respondent that the shop and the land in which the shop is constructed has never been treated or declared as evacuee property; that respondent No.3 has under a valid title purchased the shop through a sale-deed; that the Custodian had no locus standi to be impleaded as a party before the District Judge or Rent Controller or to file a writ petition in the High Court; that the petition has been menoeuvred by the conspiracy of respondent No.4 to prolong his illegal possession and to frustrate the judgments of the competent Tribunals/Courts.
7. I've considered the arguments of the learned counsel for the parties. It is admitted at bar and the same is borne out from the record as well that the shop in dispute has not been treated as evacuee property by any Rehabilitation Authority or the Custodian at any time before Ist of January 1957, the date after which no person or property can be treated as evacuee. Section 3 of the Pakistan Administration of Evacuee Property Act, 1957 (hereinafter to be referred as Act) may be reproduced for resolution of the question: "Section 3. Proper not to be treated as evacuee proper on or after January 1957.--(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 proceedings are pending immediately before the date mentioned therein for treating 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."
As stated above, the shop in dispute was in the ownership of Muhammad Salim Shah Gilani and respondent No.4 was his tenant and after the sale of the shop in favour of respondent No.3, the tenant continued in possession of the shop as the tenant of the new owner, i.e. respondent No.3. "No action or proceedings were started or pending" with respect to the shop for treating it as evacuee or deemed to be so at any time before Ist of January, 1957. The Custodian and the Rehabilitation Authorities, thus have no authority whatsoever, to treat or declare the shop as evacuee or initiate any proceedings of the nature, in view of the bar contained in section 3 of the Act quoted above.
The word `treating' is held in PLD 1964 (W.P.) Lah.351 as "either a declaration by the Custodian about the nature of the property or its user for the purposes of the Act by him or by the Rehabilitation Authorities, so as to indicate the consciousness of the actual or assumed nature of the property."
Similar was the view expressed in PLD 1954 FC 74. The clear words of the section exclude any other interpretation of the section than that the Custodian will be exceeding beyo4i its legal power in intermeddling with the property in any manner. Discussing the scope of section 3 in PLD 1961 Kar.
589, it was held: "That section 3 is an overriding provision of law and if in its application in certain cases the other provisions in the evacuee law arerendered 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 specifically saved clearly indicates that it is also subject to the provisions of section 3."
Same was the view expressed in PLD 1963 (W.P.) Lah.188. Besides exclusion of any other interpretation, the section has an overriding effect over all the provisions of the Act in view of the prefix of the section, i.e. "NOTWITHSTANDING ANYTHING CONTAINED IN THIS ACT".
8. The argument of the learned counsel for the petitioner that the shop in dispute being evacuee property vests in the Custodian under section 7 of the Act from the very beginning though not treated or declared as evacuee as such, is misconceived. Only that property vests in Custodian which is evacuee and is treated as such before the crucial date specified above. The vesting of property in the Custodian is a fiction of law and envisages the property belonging to an evacuee or having interest of an evacuee therein, or the transferee from or unauthorized possessor or occupant of the property of an evacuee, and the purpose is to authorize the Custodian to exercise its authority, over the property and realize and use the same alongwith the benefits accruing out of it from the date of liberation of the STATE and evacuation of the NON--MUSLIM owners, notwithstanding its transfer in any form. The combined effect of sections 3 and 7 of the Act is sagaciously dealt with in PLD 1964 . (W.P.) Lah.274 as: "Thus, under this legislation the Custodian or the Rehabilitation Authorities were permitted or given time to treat a person or property as evacuee within a month and thirteen days of the commencement of this legislation. In effect after the Ist of January 1957 this power, without any reservation, was taken away. It, however, appears that this legislation did not achieve satisfactory result and, therefore, a fresh permanent legislation was brought into force in the shape of Act XII of 1957. Under section 3 of this enactment certain exceptions were made and the power of the Custodian Authorities to treat certain properties as evacuee was restored. The text of the relevant provision has already been reproduced in the earlier part of the judgment. It consists of two parts.
In subsection (1) the original section 3 of Ordinance NO.XVIII of 1956 is kept intact, but under subsection (2) certain class of persons and properties are exempted from the purview of sub- clause (1). There is not much difficulty in the. interpretation of subsection (1) of section 3. It is an overriding provision of law and has far-reaching consequences. It contains a positive direction that in spite of what is contained in other parts of the Act no person or property not treated as evacuee or evacuee property immediately before the Ist of January 1957, shall be treated as evacuee on or after the said date. On a plain reading of this part of the section it cannot be doubted that it places restriction on the power of the Custodian in respect of persons or property which were not treated as evacuee before the above mentioned date by prohibiting him to treat such person or property as evacuee. The form of the words used is a well recognized and convenient method of repealing inconsistent provisions of the statute.
Major Ishaq Muhammad Khan, on behalf of the Department has strenuously argued that the scope of this subsection is very narrow and limited. He contended that it would not apply to those properties which admittedly were evacuee properties and vested in the Custodian. He further urged that both under section 4 of Act VII of 1948 of former West Punjab Province and section 7 of Ordinance No.XV of 1949 all evacuee properties are held on behalf of the Custodian and have thereby been treated as evacuee property. This argument has not impressed me. In the first place, the vesting of property in the Custodian or the holding of property on behalf of the Custodian is only by fiction of law. In that application these provisions are of a general nature because they do not deal with any specific or identified property. In the second place, the most formidable hurdle in the say of the Department pertains to the words `not treated' used in the subsection under consideration. The significance of these words cannot be overlooked. In my opinion their meaning is that the mere vesting of the property in the Custodian is not sufficient. The competent authorities must have done some overt act in respect of some specific property, namely that any particular person or any particular property must have been treated by a competent authority as evacuee or evacuee property. This view is strengthened by the fact that in another part of the enactment the Legislature has specifically provided a remedy to the parties who feel aggrieved from the treatment of their properties as evacuee. In section 22 of Act XII of 1957, which corresponds to section 18 of Act V of 1949 it is provided that any person claiming any right or interest in any property treated by the Custodian or Rehabilitation Authorities as evacuee property may prefer a claim to the Custodian on the ground that the property is not evacuee property or his interest in the property has not been affected by the provisions of this Act. In other words, it means that no person should feel aggrieved by the mere fact that under section 7 of Act XII of 1957 all evacuee property vests in the Custodian. That by itself is nothing. There must be some overt act on the part of the Rehabilitation Authorities or the Custodian Authorities in respect of a specific property before the aggrieved party should approach the Custodian. Authorities for a declaration that his property has been wrongly treated as evacuee by any competent authority. In a recent case; `Perumal v.
Government of Pakistan' (PLD 1963 SC 127), their Lordships of the Supreme Court of Pakistan have also adverted to this aspect of the question and observed that "an application under section 18 is competent only if the property in dispute was treated as evacuee property by a Rehabilitation Authority or the Custodian." Their Lordships further observed that "whenever a person applies under section 18 he has to assert that the action taken by the Rehabilitation Authorities is illegal and ultra vires and if the Custodian grants hum a declaration it amounts to saying that the action of the Rehabilitation Authorities was ultra vires." It seems to me that there is a vast difference between the two notions, namely the vesting of the property, and the treatment of a property. In the first case, by fiction of law the property generally vests in the Custodian, to enable him to take possession or to take other steps for the protection of specified properties. In the other, some overt act in respect of a particular property is implied. The use, of the words `not treated' clearly suggests that mere vesting of the property generally in the Custodian under section 7 of Act XII of 1957 is not treatment of a particular person or property as evacuee or evacuee property. I am, therefore, of the opinion that neither the vesting of the property in the Custodian nor the holding of the property on behalf of the Custodian has any material bearing on the interpretation of this subsection."
9. In the successive suits filed for declaration of the shop as evacuee by one Khawaja Abdul Hamid and subsequently byrespondent No.4 (notwithstanding their dismissal after trial by the Deputy Custodian), the assumption of jurisdiction by the Deputy Custodian and Custodian was without lawful authority. Sections 22 and 23 of the Act respectively regulate the power of Custodian to declare a property as non-evacuee or to absolve the same from the operation of the Act, and.; to restore a property treated as evacuee in favour of an evacuee or any person claiming to be the heir or survivor of the evacuee under section 23 of the Act. Both the above-referred sections cater a situation when the property is already treated as evacuee (of course before the crucial date) and authorize the Custodian (which includes Deputy Custodian) to declare the same as non-evacuee or restore it in favour of a person found entitled to it. The vice versa is not the case and the jurisdiction assumed or exercised that way or forum, is beyond the scope of law.
10. There is no quarrel with the proposition of law visualized by sections 4, 5, 7 and 41 of the Act, referred by the learned counsel for the petitioner. Section 4 authorizes the Custodian to make a reference to the Government where a question arises as to whether a person is an evacuee or not, no such question is involved in the instant case. Section 5 of the Act visualizes over-riding effect of the Act over other laws with respect to evacuee property, while the property in dispute having never been treated or deemed as evacuee in terms of section 3 of the Act and section 5 being subservient to section 3, is not applicable in the case in hand The operation of section 7 is already held as excluded. Section 41 of the Act bars the jurisdiction of other Courts with respect to evacuee property, while in the case in hand the question in dispute is only as to whether the Custodian ought to have been impleadud as a party or not by the District Judge or the Rent Controller. The question of declaration of property as evacuee being already closed by section 3 of the Act could not and cannot be reopened either by Custodian or Rent Controller and equally not by this Court.
11. The argument of the learned counsel for the petitioner that Custodian cannot file the writ petition or that without permission of the Government under the Law Manual of 1984, the writ petition is incompetent, needs no determination as the Custodian otherwise has no case on merits. The point raised is left to be resolved in some other case.
12. The order assailed through this writ petition does not suffer from any legal or Constitutional infirmity as the shop in dispute is neither evacuee nor is so declared before the crucial date, the Custodian besides being devoid of power to treat the shop as evacuee after Ist of January 1957, is equally devoid of power to entertain or continue with a claim for declaration of the shop as evacuee on the application of any person or of its owner. The learned District Judge has rightly disallowed the Custodian to be impleaded as a party in the case.
13. The said episode of the case started from the date of execution of the sale-deed in favour of respondent No.3. No dispute arose with respect to the shop or nature of its proprietorship as long as respondent No.4 was a tenant of the outgoing landlord. The ejectment proceedings with respect to the shop were commenced by respondent No.3 in 1978 and parties are now in the sixteenth year of the litigation. Two other wars of litigation were also fought by the respondent No.3 during this period before Deputy Custodian, one waged by some Khawaja Abdul Hamid which is still pending before Custodian and the other by respondent No.4 besides being vexed by the petitioner itself as Custodian. The writ in hand is fourth in the series, which in fact is the proxy litigation. The above are , in addition to the cases contested under Rent Restriction law before the Rent Controller and District Judge and a writ petition before the High Court against the decisions of District Judge and Rent Controller. The series of the frivolous litigation seems to have been launched to deprive the respondent No.3 of his right to obtain the possession of the shop in dispute. We must beware the fury of a patient man.
14. In view of above, the writ petition is dismissed with costs. In addition to the actual costs incurred, a sum of Rs.1,000 shall be paid as special costs to respondent No.3 by petitioner and respondent