1. ORDER KHAWAJA MUHAMMAD SAEED, ACTG. C.J. - Through this Constitutional petition a addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the petitioners have sought the indulgence of this Court for declaring the Order dated September 20, 1993 of the learned Custodian of Evacuee Property Muzaffarabad as illegal and of no legal effect, whereby he has declared the land under survey No. 728, measuring I6 kanals and l2 marl as, situated in village Danna, Tehsil Muzaffarabad as an evacuee property.
2. Admitted facts are that the father of the petitioners through a suit filed in the Court of Custodian on May 20, 1981 sought a declaration that he is owner of the land measuring I6 kanals and l2 marl as comprising survey No. 728, situate in village Danna. Tehsil Muzaffarabad. The entries recorded in the revenue record showing non-muslims as owners of the property, were against the true facts as such ineffective and inoperative against his right of ownership. The suit was entrusted for inquiry to the Deputy Custodian, Muzaffarabad who after necessary the suit of the father of the petitioners vide his order and decree dated May 23. 1992 and send the same for confirmation to respondent No. 1 in his capacity as Custodian. The learned Custodian declined to confirm the decree. Hence the present petition.
3. This writ petition was admitted for regular hearing vide a detailed order passed by this Court on November 8, 1993. The respondents despite service failed to turnup in the Court as such were proceeded ex pane. Various adjournments, on request, for arguments were allowed to the learned Counsel for the petitioners.
4. Mr. Faruq Hussain Kashmiri, learned Counsel for the Custodian and the. Rehabilitation Authorities, appeared before the Court. An objection was taken by the learned Counsel for the petitioners that without getting set aside the i.e pane order recorded against the respondents, he cannot defend the impugned order. The objection was turned down by the Court on the ground that the Civil Procedure Code is applicable in the writ jurisdiction under which the defendant can join the proceedings onward at any stage of the proceedings without getting vacated the previously passed ex-pane order.
5. Mr. Faruq Hussain Kashmiri, the learned counsel for the respondents Nos. 1 & 2 was allowed to argue the case on behalf of the respondents and defend the order under challenge.
6. I have heard the learned Counsel for the parties and perused the relevant record.
7. Syed Muhammad Siddique Shah, learned Counsel for the petitioners argued that the land in dispute has never been treated and declared as an evacuee property by the Custodian or the Rehabilitation Authorities. The mere entry in the revenue record of non-petitioner Nos. 3 to 7, against the true facts of the case was not sufficient to declare the landed property in dispute as an evacuee property. He further argued that in the light of the relevant record which was attached with the application filed under Section 22 of the Administration of Evacuee Property Act. XII of 1957.
8. (hereinafter to be referred as Act) specifically the claim of ownership was pleaded and correctness of the entry incorporated in the revenue record of respondent Nos. 3 to 7. Was challenged. The Rehabilitation Department filed avasive written statement whereby the plea raised in this behalf by the petitioners was not denied specifically nor any record in support of the entry was produced before the trial Court. In these circumstances, the learned Deputy Custodian in his detailed order after proper appraisal of evidence, had rightly decreed the suit of the plaintiff. The learned Custodian without any contrary proof has relied on the disputed entry recorded in the revenue record to pass the order .Impugned in this petition.
9. The learned Counsel further argued that the learned Custodian was not justified to ignore the bar contained in Section 3 of the Act. He relied on P.L.D. 1964 SC 74. In this case the judgment of the High Court of West Pakistan Karachi Bench was assailed before the Supreme Court whereby while issuing a writ of certiorari the High Court had quashed the order of the learned Custodian dated September 17, 1960 and restored, the order of the learned Deputy Custodian dated 10.10.1956. In this case the entries were recorded in the revenue record in the. Names of three non-muslims brothers on the basis of a registered sale-deed dated 21.4.1947. While interpreting Section 3 of the Act in the light of the entries recorded in the revenue record, the learned Court at page-78 of the judgment observed as under:- The property in dispute, it seems, was undeveloped land which was never brought under the plough. It is conceded that it was never allotted to any refugee or other person by the Rehabilitation Department or by the Custodian. Mr. Sheikh contended before us that after the mutation in favour of the vendees had been cancelled in 1952, and the entry in the record of rights showed the property to be that of Gangaram Virumal, the repetition of that entry must be regarded as evidencing the "treatment" of the property as evacuee property. But. It must be observed that with the passing of the orders of confirmation in 1956, the effect of the entry in question was wiped out, in law. Merely because the vendees were negligent in having the entry corrected and the Revenue Officers themselves omitted to change the entry so as to conform to the orders passed by the Deputy Custodian, it could not be said that the property was being "treated" as evacuee property within the meaning of .The section."
10. The learned Counsel for the Custodian, on the other hand, has argued that the entries of the evacuees were recorded for the first time in the Revenue Record in the year 1950. As the non- muslims had migrated to India during the war of liberation of 1947. Therefore, they are not in a position to defend the entry recorded in their favour in the revenue record. According to the learned Counsel, the record, therefore, was rightly relied upon by the learned Custodian.
11. I have heard the learned Counsel for the partes and have thoroughly examined the record attached with the petition. For the proper perception of the point involved and to determine as to whether section 3 Of the Act in fact operates as a complete bar, it appears imperative to have a reference of the same in the language in which it is couched. Section 3 of the Act reads as follows:- "Section 3. Property not to be treated as evacuee property 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 sub-section (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 persons 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."
12. From the bare reading of this Section, it is clear that if any property was not treated as evacuee property up to December 31, 1956 by the Custodian or Rehabilitation authorities, the same cannot be declared as evacuee property later on. Upto this time the petitioners have not been held as un- authorized occupant of the land nor any step is proved to have been taken by the Custodian or Rehabilitation authorities for the recovery of any dues from them in respect of the land in dispute.
13. For the first time in 198l the father of the petitioners moved an application under Section 22 of the Act whereby he challenged the correctness of the entries on the ground that the same were recorded in the names of non-muslims Nos. 3 to 7 contrary to the true facts. This fact was not even specifically denied in the written statement by the Rehabilitation authorities. As said earlier, under Section 3 of the Act, it is settled position of law that person or property not declared or treated as evacuee, person or property, as the case may be, before January 1, 1957 cannot be declared or treated as such afterwards.
14. The learned Counsel for the petitioners in this behalf relied on P.L.D. 1964 Lahore 274. The question for consideration before the Full Bench of the Lahore High Court was about the scope and true import of section 3 of Act XII of 1957; that whether it has taken away the competence of the Custodian to declare any person or property as evacuee, who or which was not treated as evacuee immediately before the 1st of January. 1957, or it is still open to him to declare or treat any person or property as evacuee ignoring the bar contained in this Section. The learned Judges after survey of the case law observed as under:- "6. The history of-the legislation further shows that in 1956 there was a departure in the policy of the State in respect of evacuee legislation. By Ordinance No. XX of 1956 the provisions of intending evacuees' contained in Chapter 6 were omitted from the statute. Under Section 3 of this Ordinance it was provided as under: "Notwithstanding anything contained in this Ordinance, no person or property not treated as evacuee or evacuee property immediately before the first day of January, 1957, shall be treated as evacuee or as the case may be, evacuee property, on or after the said date."
15. 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 lst of January, 1957 this power, without any reservation, was taken away "
16. Mr. Justice Wahiduddin, J., who wrote this judgment on behalf of the full bench while relying on a case titled ' Perumtil v. Central Government of Pakistan' (P.L.D. 1963 SC 127), observed: "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 Aet 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 sub-section."
17. The learned Counsel also relied on P.L.D. 1957 SC (Pak) 63 in a case titled Sahihrai v. The Custodian of Evacuee Property'. In this case too, it is held that no property can be held or treated as evacuee property after January 1, 1957.
18. In the light of the above, it becomes clear that the learned Custodian and Rehabilitation Authorities were permitted under law, the time up to January 1. 1957 to take .Necessary step to .Declare or treat by their conduct any property or person, as the case may be, as evacuee property or person. After this date the powers in this regard were taken away. In the present case, admittedly no step was taken by the Custodian or any Rehabilitation Authority to declare or treat the property in dispute as evacuee property. While accepting this writ petition with cost, the order of the learned Custodian dated September 20, 1993 is declared without lawful authority and as such of no legal consequence. The order of the Deputy Custodian passed on May 23, 1992 is restored.