1. MIR HAZAR KHAN KHOSO, J.-This constitutional petition is directed against the orders dated Nil December 1972 Exh. C., 27th March 1975 Exh. D, 29th March 1976, Exh. E, and 3rd April 1976 Exh. F, passed by the Member, Board of Revenue, Baluchistan the respondent No. I in the capacity of Chief Settlement Commissioner, Baluchistan.
2. The necessary facts giving rise to this petition are that a house bearing No. 4-3/6 situated on Jamiat R.I Street in Quetta City originally belonged to one migratee Hindu Gopal Sing, with whom Syed Abdul Rahim (late) father of the petitioners had kept in safe custody an amount of Rs. 2,100 some time before the Partition of the sub-continent of India. The said Gopal Sing appropriated it to Syed Abdul Rahim. In lieu of the amount appropriated of the said Gopal Sing mortgaged his house in favour of Syed Abdul Rahim on 18th May 1947 and executed a deed in that respect before leaving Pakistan. However after creation of Pakistan Syed Abdul Rahim approached the Custodian authorities and asked them for the declaration that disputed property was a non-evacuee one. On basis of the facts narrated above, the Deputy Custodian, Quetta by his order dated 18th August 1948 the Exh. A. Declared the said house as non-evacuee. Subsequently in the year, 1962, the late Syed Abdul Rahim received a show-cause notice from the Custodian Department, Quetta for treating the said house as evacuee one. Late Syed Abdul Rahim resisted the show-cause notice.
3. However on his resistance, the Deputy Custodian withdrew his show-cause notice and confirmed the earlier certificate by his order Exh. "B". Later on being in need of money, the late syed Abdul Rahim on 18th July, 1962 mortgaged the house to late Haji Allah Bux, the predecessor-in-interest of the respondents Nos. 2 to 9. In the meantime Syed Abdur Rahim expired and was succeeded by his sons and daughters, now the present petitioners. After the death of Syed Abdul Rahim the petitioners approached Haji Allah Bux for redeeming the house, but he refused to do so. His refusal to redeem the property led them to many litigations before the settlement authorities and the civil Courts as well. In retaliation to the petitioners' demand of redeem of the property Haji Allah Bux, now dead, approached the respondent No. 1 in the year 1970 and sought for declaration that the premises were evacuee property. However, by his order, Exh. "C" dated Nil December 1972 the respondent No. I directed the petitioner3 to deposit an amount of Rs. 7,500 the adjuster: reserve price of the house with the settlement authorities otherwise the house would be declared as Evacuee one. Being aggrieved against this order, the petitioner No. l on 2nd March 1963 filed a revision petition before the respondent No. 1 and requested him to vacate the abovesaid order.
4. However, he by his order Exh. "D" dated 27th March 1975 instead of rejecting or accepting his petition, went a little further ahead and cancelled the earlier order Exh. "A" of August 1948, and declared that the dispute property was an Evacuee one and thereafter he transferred it to the respondents Nos. 2 to 9 on 27th March, 1975. His order is Exh. "E". Respondents Nos. 2 to 9 came in the field in the month of January 1976 when Haji Allah Bux died and was succeeded by the legal heirs, the respondents Nos. 2 to 9.
5. The present petitioners have assailed the abovesaid adverse orders before this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan.
6. Mr. Azizullah Memon, Advocate appeared for the petitioners whereas Mr. Saghir Hussain Jaffry represented the respondents Nos. 2 to 9. The respondent No. 1 had notified that no representation would be made by him before this Court.
7. At the outset, it was vehemently but abortively contended by Mr. Memon that the Member, Board of Revenue, Baluchistan the respondent No. 1 was not conferred upon the powers of the Chief Settlement Commissioner, Baluchistan, for performance of the duties and functions under the Displaced Persons (Compensation and Rehabilitation) Act of 1958. He submitted that in absence of such delegation of powers. The impugned orders were ab Initio, void as such were passed without lawful authority.
8. Mr. S. H. Jaffry successfully avered the preliminary objection raised by Mr. Azizullah Memon. He submitted that the notifications delegating the powers of the Chief Settlement Commissioner, Baluchistan to the Member, Board of Revenue were issued by the Provincial Government of Baluchistan. The learned counsel did place before us the notifications. Notification No. 362/12-6/71- Rev. Dated 17th January 1972 reads: ----- "In exercise of powers conferred by subsection (1) of section 9 of the Displaced Persons Land Settlement Act, 1958 (XLVII of 1958) as amended vide Government of Pakistan Notification No. S. R.
9. O. (1)/71 dated 31-12-1971, the Government of Baluchistan is pleased to appoint Member, Board of Revenue Government of Baluchistan, as Chief Commissioner, Baluchistan for performance of the duties anal functions assigned to him by or under the said Act."
10. Notification No. 404/ 12-6/71-Reh., dated 17th January, 1972 reads:--- "In exercise of the powers conferred by subsection (1) of section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) as amended by the Government of Pakistan vide Notification No. S. R. O. 645(1)/71, dated 31-12-71, the Government of Baluchistan is pleased to appoint the following officers mentioned in column (1) of table below to be the Chief Settlement Commissioners as shown in column 2 thereof for the performance of the duties and functions assigned to them by or under the Act.
11. TABLE (1)(2)
12. Member, Board of Revenue,Chief Settlement Baluchistan.Commissioner.
13. Commissioners, Quetta and Kalat.Settlement Commissioner.
14. All the Deputy Commissioners and Political Agents.
15. Additional Settlement Commissioners.".
16. Notification No. 1329/12-6/71-Rev. Dated 6th March 1972, reads :----- "In exercise of the powers conferred by subsection (1) of section 6 of the Pakistan (Administration Evacuee Property) Act, 1957 (XII of 1957), as amended vide Government of Pakistan, Rehabilitation and Works Division's Notification No. S. R. O. 105(1)/72, dated the 22nd January 1972, the Government of Baluchistan is pleased to appoint the following mentioned in Column (f) of the Table to be the Custodian, Additional Custodian and Deputy Custodian, as shown in column (2) thereof for the performance of duties and functions assigned to them by or under the said Act.
17. TABLE (1)(2)
1. Member Board of RevenueCustodian.
2. Commissioners, Quetta &Additional Custodians Kalat.
3. All Deputy Commissioners/Deputy Custodians."
18. Political Agents.
19. Notification No. 12-6/74-(Rev.) dated the 18th November 1974, reads:--- "In exercise of the powers conferred upon it by subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 (Ordinance No. XV of 1974) the Government of Baluchistan is pleased to notify that Mr. Nasibullah Khan Sherani, Additional Member, Board of Revenue shall exercise all the powers under the aforesaid Ordinance.
2. The Government is further pleased to notify that this Notification shall be deemed to have taken effect from the 1st July 1974.
3. Notification issued under Nos. 1347/64, 1364/1382 and 1383/1400 all dated 30-6-74 stand cancelled with immediate effect."
20. It was next contended by Mr. Memon that the Deputy Custodian Evacuee Property, Quetta on the 19th of September 1948, under provisions of section 9 (1) (A) of the Regulation 1 of 1948 had treated the property as non-evacuee. Besides, he ordered for issuance of such certificate in favour of Syed Abdul Rahim. The learned counsel maintained that even after the passing of the above said order, the Deputy Custodian, Evacuee Property, Sukkur had served a show-cause notice on Syed Abdul Rahim for vacating the earlier order of 19th September 1948. But subsequently, on scrutiny, he found it to be a legal order and withdrew the show-cause notice and confirmed the earlier order. Mr. Memon next contended that the Evacuee Property Laws were amended, varied, or promulgated in succession by the Provincial Government as well by the Central Government. The learned counsel has invited our attention to the Statutes of 1950, 1956, 1957 and 1958. The learned counsel reiterated that the subsequent enactments gave finality to the order of the 18th August of 1948. Indeed this contention of Mr. Memon appeared to be misconceived. Mr. Memon has not been in position to fortify his contention. If this contention is accepted, it would certainly lead to absurdity. Besides, it would make redundant all the subsequent enactments. It was then argued by Mr. Memon that the impugned orders bad reopened the case of petitioner. Such reopening of the case would be deemed to be revision petition under the relevant laws. Mr. Memon strenuously stressed that the impugned orders being Revisional ones were subject to law of Limitation and covered by sub-rule
(2) of rule 17 of the Evacuee Property Rules of 1950, which provided limitation of 30 days for filing of revision petition on this account. Mr. Memon argued that the impugned orders were passed beyond the period of limitation of 30 days, as such they were hopelessly time-barred. Besides no application for condoning the delay under section 5 of the Limitation Act were made. In support of his contentions, Mr. Memon has relied on case, Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another (PLD1966SC276).
21. PLD 1966 SC 276 and (iv) PLD 1969 Lab. 1039.
22. "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, to the eyes of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
23. "The rule embodied in the maxim once a mortgage always a mortgage is in fact a rule of equity, justice and good conscience and would, therefore, apply to the Punjab even though the technicalities of the Transfer of Property Act may not apply.
24. The mortgage could, therefore, be redeemed any time within the period of limitation as prescribed by Article 148 of the Limitation Act."
25. PLD 1966 SC 276), it was held:---- "The Additional Settlement Commissioner, who heard the appeal, refused to condone the delay and dismissed it. This, he was entitled to do, and we do not therefore consider that on the merits, Mumtaz Khan could have challenged the order of the Settlement authorities, successfully, in writ jurisdiction."
26. "It will be seen that in all these cases the principle has been clearly laid down that if an order is without jurisdiction and void, then it need not be formally set aside and no question would, therefore, arise of holding that the matter cannot be considered on merits on account of any bar of limitation."
27. These contentions and counter contentions would receive their answers at the proper place hereinafter.
28. The crucial objection raised by Mr. Memon was that the property was not treated as "Evacuee" on or before the 1st of January, 1957 the date after which no person or a property could have been declared so. He maintained that the orders treating the property as evacuee after the 1st of January 1957 were ab initio, void and illegal. In support of his stand, Mr. Memon has relied on cases, reported in (i) PLD 1964 Lah. 274 and (ii) PLD 1964 SC74.
29. PLD 1964 Lah. 274), it has been held:----- "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 1st day 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 person 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- recognised and convenient method of repealing inconsistent provisions of the statute.
30. 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 parti--cular 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.
31. This contention 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 and by no stretch of imagination can be considered to have been treated as evacuee property immediately before the 1st of January 1957."
32. As will be presently shown the contention of the Department cannot be accepted. In the first place the Custodian as Tribunal of special jurisdiction does not possess or exercise any inherent jurisdiction which the ordinary civil Courts exercise, to recall suo motu an order procured by fraud.
33. On this view of. The matter it is abundantly clear that those tribunals which either act in an administrative capacity or do not possess inherent jurisdiction are not competent to disregard any order passed by them on the ground that it was obtained by fraud.
34. But unfortunately as the law stands in cases covered by section 3 of Act XII of 1957 the Custodian cannot invoke the provisions of section 44 of the Evidence Act to treat any order obtained by fraud as nullity. In law, judgment or order obtained by fraud is voidable and not void ab initio.
35. I am inclined to interpret this subsection in a manner which would destroy its full effect, particularly as the provision relating to ouster of jurisdiction of special tribunal is to be construed in a strict manner.
36. It was urged that .Section 41 of .Act . XII of 1957 would be a bar to entertain any such suit. In law when the language of a section of an Act is not ambiguous, in interpreting the plain words of such a positive enactment ousting the jurisdiction of a tribunal any suggestion of hardship is irrelevant and out of place.
37. It will thus follow' that in those casts where the Custodian has ceased to have jurisdiction there would be no bar for the civil Courts to adjudicate upon a question which ordinarily falls within the purview on their jurisdiction. This is the natural consequence of the rule of implied repeal, a well- recognized principle of interpretation of statute. It seems to me that on this view of the matter the Custodian has ample remedy for the redress of such grievances in suitable cases.
38. I will now proceed to consider the effect of subsection (2) of section 3 of Act XII of 1957. This subsection is sub-divided into two parts. Clause (a) provides that nothing in subsection (1), shall apply to any person m 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 person as an evacuee or such property as evacuee property. There is no dispute about the interpretation of this clause of the subsection. It was conceded that if no action bad commenced immediately before the 1st January 1957, and no proceedings were pending before that date, such cases are not covered by this clause.
39. I am conscious of the fact that speeches made in the Legislative Assembly are not admissible in evidence as extrinsic aid to the interpretation of statutory provisions, but in my opinion it is relevant and material to consider the circumstances under which an Act was passed and the reasons which necessitated it. I have referred to this speech only from this angle.
40. Therefore, it is perfectly clear that it does not apply to the owners of the property or to persons whose possession or supervision or management has been approved by the Custodian.
41. Any provision which takes away the jurisdiction of any authority is to be construed strictly and no allowance can be made if other provisions of the same enactment become nugatory in cases covered by such provisions of law.
42. 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 a supervision, management and possession of any party, such properties also cannot be declared as evacuee properties.
43. Only those properties are covered by clause (b) which are in unauthorised possession, management or supervision of certain parties. These persons cannot be the owner of the property.
44. Amongst them will fall the cases of agents, transferees claiming their right after the 1 of March.
45. 1947, through the evacuee. It will also cover the case of a trespasser."
46. "But, it must be observed that with the passing of the orders of confirma--petition 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.
47. Could the case then be said to be pending, merely because the Custodian might choose to exercise his suo motu powers of revision at some unspecified point of time? Such a view would deprive persons in the position of the respondents, from the benefit of section 3 of the Act. The words of subsection (1) of section 3, are however general in character and there appears no good ground for holding that a case of the present is not within its ambit. Clause (a) of subsection (2) of this section merely saves cases in which an action has commenced or any proceed--ing is actually pending immediately before the date mentioned in sub--section (1). There is no saving provided for any other case. This clause therefore negatives the suggestion made on behalf of the appellant that a case which may be subject, hypothetically to the suo motu powers of revision possessed by the Custodian, would be outside the four corners of subsection (1)."
48. Mr. S. H. Jaffry strenuously repudiated the contentions of Mr. Memon and submitted that there was no dispute that the mortgagor Gopal Sing had mortgaged the property for consideration of Rs.
49. 2,100 to the mortgagee Syed Abdul Rahim. Mr. Jaffry contended that on the principles enunciated in case, Suleman and 3 others v. Custodian, Evacuee Properly, West Pakistan, Lahore and 2 others (PLD 1971 Lah. 77), that once a mortgage always a mortgage the Deputy Custodian Evacuee Property, Quetta could have not declared the property as non---evacuee. He submitted that at the most, the Deputy Custodian bad protected the mortgage rights of Syed Abdul Rahim to the extent allowing the right of redemption to the Custodian. According to the learned counsel that the Deputy Custodian did exceed in his jurisdiction by declaring the property as non-evacuee. He has placed reliance on the case, Yousaf A.I v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.)
50. 104). Mr. Jaffry further submitted that the order being ah initio, illegal and void, the limitation did not run against it. He fortified his contention on case, Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others (PLD 1969 Lah. 77). Mr. Jaffry urged that the order being ab initio, void, illegal and without jurisdiction required no legal rescinding on the proposition laid down in case of Hussain Bux v. Settlement Commissioner. He reiterated that the first order being without jurisdiction did not legalize the illegal possession of the petitioner. According to him, the possession being unauthorised did not oust the jurisdiction of the Custodian-cum-Settlement Authorities for declaring the property as evacuee, albeit after the 1st of January 1957.
51. Continuing his arguments, the learned counsel maintained that for the aforesaid reasons, it was within the competency of the respondent No. I fur having treated the property as an evacuee even after the crucial date. Indeed, the authority relied upon by Mr. Jaffry is quite distinguishable from the citations relied upon by Mr. Memon. In case, Barkat A.I etc. v. The Custodian of Evacuee Property etc. (1974 SCMR 69) it was alleged that one Ghulam Hussain had obtained a non-evacuee certificate under section 18 of the Pakistan Administration of Property Ordinance IX of 1949 from the Deputy Custodian, Evacuee Property, Bahawalpur in respect of lands purchased by him from some Hindu migratees through written agreement of sales. On the strength of the certificate, he later on disposed of the land to many persons including one Barkat A.I, a petitioner in that writ petition.st However, subsequently, .The non-evacuee certificate issued in favour of Ghulam Hussain was reversed in the year 1959, at the representation of the Evacuees, the migratee owners who had complained to the President of Pakistan that they had never entered into the sale agreements with Ghulam Hussain but he lead forged the documents of sales is his favour. Indeed, this authority in no way has supported Mr. Jaffry. Obviously in the instant case, there were no allegations of fictitious sale on forged documents. The case, as we have followed is that the Deputy Custodian, Evacuee Property had exceeded in his jurisdiction by declaring the property as non-evacuee. The same situation was faced by their Lordships in case, Syed A.I Iqtidar Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan, Lahore (PLD 1964 Lab. 274). Evidently, the proposition laid in the above authority supported the contention of Mr. Memon that the respondent No. 1 could not have declared the property as evacuee. The orders being illegal and void on the face would be void and non-existent. Therefore, PLD 1964 SC 1104 referred by Mr. Jaffry on the contrary supported contention of Mr. Memon that the orders of the Member, Board of Revenue the Chief Settlement Commissioner, Baluchistan were void and non-existent.
52. We would now revert to section 3 of Act XII of 1957. It says that :-- "Property not to be treated as evacuee property on or after 1st January 1957.-(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately be--fore 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 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 that twenty-eighth day of February 1947, has not been accepted or approved by the Custodian.
53. PLD 1961 Kar. 589), some referred by the petitioners' counsel.
(i) the Deputy Custodian evacuee property, Quetta had confirmed the sale and declared it as non- evacuee ;
(ii) no action had already commenced or proceedings taken for treating the property as evacuee were pending before the relevant authorites, and
(iii) the property was neither managed nor occupied by a person whose rights were not approved before the crucial date.
54. We, therefore, under - the circumstances, without any hesitation respectfully agree with the proposition laid down in authorites (i) PLD 1964 Lab. 274 and (ii) PLD 1964 SC 74 relied upon by Mr. Memon and hold that no person or property could be treated as evacuee or evacuee property on or after the 1st of January 1957, except in cases, where the action has already commenced, proceedings pending or the property is managed or supervised by a person whose rights have not been approved by the Custodian, Department within the prescribed period.
55. For the foregoing reasons, we have reached to the conclusion that the Member, Board of Revenue bad no jurisdiction to treat the property as evacuee. In result of afore-aid discussions, we hold that the impugned orders treating the disputed property as evacuee made by the respondent No. 1 are hereby declared as void and illegal being passed without lawful authority and thus of no legal effect. We have in clear words held that the property now cannot be treated as evacuee due to legal ban imposed on it. Such being the position the impugned orders being declared as having been passed without lawful authority the contention of Mr. Jaffry that Deputy Custodian, Evacuee Property, Quetta should have not declared the property as non-evacuee but at the most could have declared the petitioner's right of mortgagee lost its weight and could not come to the rescue of Mr. Jaffry.
56. For the aforesaid reasons, we allow the petition with costs to be borne by the respondents.
57. With these observations, the petition stands disposed of.