1. This miscellaneous application by applicant Travelogue (Pakistan) Ltd. Was submitted before my predecessor Mr. Justice Khuda Bakhsh Marri on 17-8-7o in disposed of Revision Bearing No. 86 of 1963 (Sungreen & Co. Ltd. v. Noman Bat and others) which was finally decided by the Custodian, Evacuee Property, Sind, Hyderabad (Mr. Aalaullah IM. Memon) by his order dated 6-5-74.
2. The controversy in this case related to an open plot of land bearing No. 11 /13-Sheet RY-9 admeasuring 1866 sq. Yards situated at Mcleod Road, Karachi. On 10-5-47 Hashmatrai the original Hindu owner of the property executed an agreement of sale of the property in favour of Noman Bhai and four others at Bombay. This was followed by a regular registered sale-decd dated 3-11-47.
3. One Qamaruddin went to Bombay and on 11-5-48 he was appointed as agent for managing the property by the vendees and who also authorised him is build on the plot, a throe-storey building which was agreed to be leased to the former. On 30---11-48 a lease-deed for a period of 10 years at a rental of Rs. 500 per month was, duly executed by the vendees in favour of Qamaruddin.
4. On 15-3-49 Qamaruddin, after building over the plot, executed a lease of a portion of tie plot, comprising 906 sq. Yards with the construction thereon in favour of Sungreen & Co. Ltd. At a rental of Rs. 975 per month for a period of 10 years. On 14-10-49 Qamaruddin applied for confirmation of the sale as agent of the vendees and eventually the sale eves confirmed by the Additional Custodian Sungreen sit Co., in the meantime, having known the antecedents of the title of Qamaruddin moved the Additional Custodian for declaring the property as evacuee on the plea that the vendees themselves were evacuees. Hey did not, however, succeed and preferred a revision before the Custodian seeking the reversal of the order of confirmation. The Custodian by his order dated 18-11-55 accepted the revision and set aside the order of confirmation, as a result the property was declared evacuee. Qamaruddin challenged the order by a writ petition in the High Court and the order of the Custodian was quashed. The matter was then taken in appeal before the Supreme Court who accepted the appeal and remanded the case for further enquiry and decision to the Custodian. There were some intervening proceedings which need not be detailed and eventually Mr. Azizullah Memon, Custodian of Evacuee Property Sind. By the above men--tioned order dated 6-5-74 ret aside the order of the confirmation of the sale and declared the property as evacuee since it was abandoned by the Hindu evacuee owners.
5. It is now the case of the applicant Travelogue Ltd., as set out, in the present application that they have been in occupation of a portion of the property since :950. Having been put in possession by the Sungreen & Co. As sub-tenants. On the final declaration of the status of the property as evacuee, all the intervening transactions, it is contended, are retrospectively rendered void and the property must be deemed to have always vested in the Custodian since 1-3-47. The result is that the Custodian is entitled to recover and receive all the rent arrears for the entire period and no one including Qamaruddin could give a valid discharge for the outstanding dues.
6. It seems as far back as 1950 Qamaraddin filed Suit No. 648 of 1950 in the late Chief Court of Sind for ejectment against Sungreen & Co. Ltd. In consequence to a plea raised by the defendant as to the evacuee status of property, the suit was stayed and the matter regarding the evacuee status or otherwise of the properties was referred to the Custodian. Since Sangreen & Co. Was recovering r- rat from Travelogue, Qamaruddin moved the Chief Court to restrain the said company from recovering rents and for depositing the same in the Court. On this the Court passed an order in 1954 directing the company to deposit the rents in Court. This order was complied with by Sungreen & Co. For sonic time but subsequently the company failed to deposit the rents. In 1967 Sungreen & Co., the defendant in the suit, also moved the Court for similar action in regard to Travelogue, whereupon orders were passed directing Travelogue Ltd. Also to deposit rent in the Court. This matter was taken up in appeal before the Supreme Court in Civil Appeal No. IC-16/72 and by order dated 29-3-76 the Supreme Court dismissed the appeal with an observation that the amount deposited by the Travelogue Ltd. In Court in compliance with the orders to that effect, shall not be paid to any party without notice to Travelogue Ltd. And considering his objections, if any, and that the deposit made by them will be without prejudice to their rights before the Custodian. It is on the last-mentioned observations of their Lordships of the Supreme Court that the Travelogue Ltd. Made the present application on 17-8-76 praying therein that an order for deposit of rent by the applicant Travelogue Ltd. With the Custodian of Evacuee Property be pasted, including all the arrears of rent and that the Sungreen Ltd. As wall as Qamaruddin's Legal Representatives be restrained from recovering or claiming rent from the applicant.
7. This application was admitted to regular hearing by my learned predecessor and notice was ordered to the parties. Sungreen & Co. Have resisted and filed written objections to the application.
8. This application was pending disposal when I took over, and on 30-7-77 one Mohammed Kalimullah occupant of tenement No. G/1-9 of the property it dispute submitted an application with a similar prayer that be may be allowed to pay to the Custodian /Settlement Department arrears of rent and monthly rents at the rate determined by the Custodian. When this applica--petition came up for hearing before me the question araie whether the present applications having been submitted after the coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, are com--petent, In view of the provisions of section 2(2) thereof which inter alts provided that when the repeal of the various enactments including the Pakis--tan (Administration of Evacuee Property) Act, 1957, all proceedings which may be pending before various authorities appointed thereunder shall stand transferred for final disposal to officers notified by the Provincial Government. The learned counsel appearing for the parties were, therefore, called upon to address me on the preliminary question regarding the maintainability of these applications.
9. I have heard Mr. Akhtar Mahmood for applicant Travelogue Ltd. And Mr. Abdul Wahab for applicant Kalimullah. Mr. Sabihuddin Ahmed has appeared and argued on behalf of the applicant in the disposed of revision of Sungreen & Co.
10. The question of maintainability of these applications turns on the inter--pretation of subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 (hereinafter referred to as the repealing Ordinance). This Ordinance was promulgated on 30-9-74 and was given retrospective operation with effect from 1-7-74. This is a short enactment comprising only four sections. Section 1 relates to the commencement of the Ordinance, the substance of which has been mentioned above. Section 2 lays down that several Acts arid Regulations pertaining to Evacuee Property and Rehabilitation of Displaced Persons including the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) are repealed and upon repeal thereof all pending proceedings under the aforesaid repeated Acts and Regulations shall stand transferred for final disposal to such officers as may be appointed by the Provincial Government in this behalf. As well as all cases which are remanded by the Supreme Court or the High Court.
11. Section 3 provides for transfer of the available properties to the Provincial Government for disposal in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf ; and in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf. The last section, section 4 deals with the disposal of residual work regarding documentation, recovery of outstanding transfer price, rent or mortgage money of the properties already disposed of, and discharge of miscellaneous liabilities, which may remain pending immediately before the repeal of the aforesaid Acts end Regulations, and provides that the aforesaid residual work shall stand trans-- feered to the Board of Revenue of the Province. This Ordinance was repealed on 28-1-75 by Act XIV of 1975 of the same name.
12. It will now be advantageous to set out the provisions of sections 2 and 4 of the Amending Ordinance "2. Repeal of certain laws.--(1) The following Acts and Regulations are hereby repealed, namely :--
(i) the Registration of Claims (Displaced Persona) Act, 1956 (III of 1956);
(ii) the Pakistan Rehabilitation Act, 1956 (XLII of 1956)1
(iii) the Pakistan (Administration of Evacuee Property) Act, 1957 (XU of 1957) ;
(iv) the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) ;
(v) the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) ;
(vi) the Scrutiny of Claims (Evacuee Property) Regulation, 1961 ; and
(vii) the Recovery of Price of Evacuee Property and Public Dues Regulation, 1971.
(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Govern--ment in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.
(3) Any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate.
(4) The final orders passed in the cases transferred under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related.
4. Disposal of residual work.-All the work regarding documentation, both for urban and rural properties, recovery of outstanding transfer price, rent or mortgage money of such property already disposed of and discharge of miscellaneous liabilities out of these recoveries, which may remain pending immediately before the repeal of the aforesaid Acts and Regulations shall stand transferred to the Board of Revenue of the Province."
13. Mr. Justice Khudabakhsh Marri, and after his departure myself, were appointed by the Provincial Government for disposal of pending proceedings in terms of subsection (2) of section 2 of the repealing Act in relation to cases under the Pakistan (Administration of Evacuee Property) Act, 1957.
14. The perusal of the aforesaid provisions makes it clear that two types of proceedings wore within the contemplation of the Legislature which were required to be transferred and disposed of by an officer appointed thereunder, namely:-
(1) All proceedings which, immediately before the repeal of the enact--ments, may be pending before the authorities appointed under the aforesaid Act XII of 1957 ; and
(i) All cases decided by the Supreme Court or High Court after such repeal which would have been remanded to any such authority but for such repeal: Prima facie, therefore, if a case was not pending before the Custodian and other authorities immediately before the repeal or it is not a case remanded by the Superior Courts after such repeal, the officer appointed under section 2 shall not have jurisdiction to dispose of the same. The; above classes of cases seem to exclude the jurisdiction of such officer from entertaining any fresh proceedings as obviously such proceedings cannot fall within either of the aforementioned classes.
15. It is not disputed that the subject-matter of adjudication in the main revision No, 86/63 was finally disposed of by the former Custodian on 6-5-74 before the coming into force of the repealing Ordinance on 30th September 1974 and even before 1-7-74 the date from which the said Ordinance was given effect to. It was, however, contended by Mr. Abdul Wahab that notwithstanding the repeal of the Evacuee Property Act XII of 1957. The right to remedy available thereunder would remain intact, in view of section 6 of the General Clauses Act. I find no substance in this contention Section 6 of the General Clauses Act expressly provides that the repeal of an Act does not affect. Any right or remedy under the repealed enactment, "unless different intention appears". If, therefore, the repealing enactment contains any such contrary provision the rights and remedies under the repealed enact mart cannot survive. Section 2 of the repealed Act was specifically intended to deal with the subject of survival of the proceedings and the right to remedy under the repealed enactment was preserved and continued to the extent provided for therein. If.
16. Therefore, the Legislature confined such right to only pending proceedings and cases remanded by the Superior Courts, it cannot be argued that all the rights and remedies available under the repealed enactment were intended to be preserved. However, oven if I am wrong the question of any right or remedy, in the present coca, does not arise. The applicants are seeking an order that rents be accepted from them and, therefore, by no stretch of imagination it could be said that they era invoking any remedy in pursuance of any of their rights. The liability to pay rent is an obligation rather than a right. In my view, therefore, the argument on the basis of section 6 of General Clauses Act is totally irrelevant and misconceived.
17. It was then argued by Mr. Abdul Wahab that to recover the rents of evacuee properties is an obligation of the Custodian. In this behalf the learned counsel referred me to various provisions of the Pakistan (Administra--petition of Evacuee Property) Act, 1957, but it is only necessary to refer to section 25. It was urged that since the property in dispute has been declared to be evacuee with effect from 1947 it must be deemed to have vested in the Custodian all along and under section 25 subsection (2)(m) it is within the power of the Custodian to determine the rent to be recovered from a person found in unauthorised occupation of evacuee property for the period op such occupation. Thus the contention was that even if no proceeding of any nature was pending at the time of the repeal, an officer so appointed under section 2 of the repealing Act is empowered, in the exercise of the aforesaid power to determine and receive rents due in respect of evacuee property. This argument also has no force. It is a misnomer to call an officer appointed under section 2 as the Custodian of Evacuee Property, for there is nothing in the repealing enactment that the office of the Custodian of Evacuee Property as such, shall in any manner continue in existence.
18. With the repeal of Act, XII of 1957, all statutory offices and officers appointed against them to exercise powers under the Act ceased to exist. Thereafter only for a limited purpose of disposing of pending proceedings officers were to be appointed by the Provincial Government whose jurisdiction extended, as is clear from subsection (3) of section 2, only to dispose of such transferred or remanded proceedings in accordance with the provisions of the relevant Act or Regula--petition, which in this case, would be Act XII of 1957. But this by no means would indicate that it was intended to re-establish the office of the Custodian of Evacuee Property with the amplitude of powers and functions assigned to him under the repealed Act. This interpretation is further strengthened by examining the provisions of section 4 of the repealing Act which has the effect of entrusting the miscellaneous work of documentation and recovery of the outstanding does to the Board of Revenue, which otherwise fell within the ambit of the powers of the Custodian.
19. There is yet another aspect of this case, which is overlooked by this argument. Section 3 of the Repealing Act provides that all properties both urban and rural including the agricultural land, which may be available for .-disposal immediately before the repeal of the Act, shall stand transferred to the Provincial Government for disposal under separate, schemes framed in that behalf. It cannot, therefore, be contended that the properties which were formally evacuee vest in toe officer appointed under section 2 of the Repealing Act. It, therefore, follows that the powers under section 25 referred to above, no longer enure with such an officer but since the property vests on the coming into force of the Repealing Act in the Provincial Government, the power to recover rents and other dues would also veal in then under the relevant schemes and by virtue of section 4 the recoveries can be effected by the Board of Revenue.
20. It was next argued by the learned counsel that once jurisdiction has bean assumed by Mr. Justice Khudabakhsh Marri, the application cannot be thrown out on the ground of maintainability. The argument is obviously untenable as the application is still pending and had yet to be heard and disposed of. Since no final orders were passed, the question of maintainability of the pr-.Sent proceedings is obviously open to examination.
21. It was finally contended by Mr. Abdul Wahab that the present applica--tions are not fresh proceedings but ere incidental and consequential to the order of the Custodian dated 6-5-74.
22. Counsel relied upon 'K. A. Jelsin--ghani v. Custodian of Evacuee Property PLD 1965SC453,. In this case the question before their Lordships was neither the Custodian's power of review under section 43(6) of Act XII of 1957 which was taken away by Ordinance LXII of 1962, was still available in regard to pending proceedings. On an examination of the saving clause in Act LXIII of 1962 their Lordships came to the connclu--sion, referring to section 6 of the General Clauses Act, that it Is to be established that there exists a right and then a legal proceeding in respect of such right, before the provisions of section 6 can be invoked. In this connection it was observed as follows : "This does not appear to be applicable to a case where the only possible right which can be said to have accrued is the right to prefer a particular legal proceeding. From its working clause (e) (of section 6 of General Clauses Act) would apply to legal proceedings in respect of substantive rights which already accrued under a repealed enactment and would not cover a case where only a procedural right is granted."
23. It was further observed that the saving clause clearly spelled out a different intention as according to it review applications pending immediately before the commencement of the Amending Ordinance remained unaffected and, therefore, the power of suo motu review was not intended to be saved. It will be seen that this decision is relevant to the very first contention advanced by the learned counsel and totally deprives all its force. As to submission under consideration, I cannot see how the recovery of rent is a consequential matter so far as the order of the Custodian dated 6-5-74 is concerned. The subject-matter of adjudication before the Custodian in the main revision was whether the order of confirmation of sale was justified and, therefore, the question of recovery of rent is not in any way germane to the adjudication concluded by the order of the Custodian.
24. Mr. Akhtar Mahmood, learned counsel appearing for Travelogue Ltd. Very fairly conceded that if the order of the Custodian dated 6-5-74 finally disposed of all matters, his client would be out of Court as to the present proceedings. He, however, submitted that the crucial word in section 2(2) isthe word "proceedings" which is to be interpreted in contradistinction with appeal, revision and review.
25. According to the submission of the learned counsel the Legislature intentionally used the word "proceedings" which is a term of wider connotation than the terms like appeal, revision and review which are judicial powers of recognised content. According to the learned counsel the term "proceedings" would include both administrative and judicial powers of the Custodian. Thus the submission in other words was that the power to recover rents vesting in. The Custodian under the repealed Act. Although administrative in nature, would nevertheless fall within the purview of the term "proceedings". In this context the learned counsel interpreted the words "may be pending" according to section 2(2) to mean proceedings in the above-mentioned sense, pending in tire eye of law although not in fact-- By this process of reasoning the learned counsel sought to contend that the provisions of the aforesaid subsection (2) of section 2 are aside enough to include the administrative proceedings which as a matter or consequence flow from disposed of case by the Custodian, to be taken up by an officer appointed under section 2(2) of the Repealing Act. The argument is no doubt luring but I am not inclined to agree. The word "proceedings" even though given a liberal construction canvassed for by the learned counsel cannot be stretched to mean proceedings notionally pending. It is well established rule of interpretation that the words are to be given their ordinary grammatical meaning unless a contrary intention is discernible from the statute. The dictionary meaning of the word "proceedings" is action, piece of conduct, and with the adjective legal, it men us steps taken in legal action. To my mind, therefore, even if proceedings would include administrative matters, the expression "all proceedings which, immediately before such repeal, may be pending before the authorities" clearly refers to concrete proceedings in which some action was initiated by the Custodian. In the present case no action was taken by the Custodian towards the recovery of the rent until the repeal of the enactment. In any case the present proceedings have been initiated at the instance of the private parties afresh and have no relation whatsoever to any pending action by the Custodian. I have already analysed she question whether the rent dues in respect of evacuee properties can be construed as consequential to the order of Custodian dated 6-5-74 and held that this matter does not fall within the ambit of powers conferred upon an officer appointed under section 2(2) of the Amending Act. I, therefore, find no force in the contention of the learned counsel that the aforesaid order of the Custodian did not dispose of all matters relating to the property and that the question of rent remained to be assessed and recovered as a consequ--ence of the aforesaid order. In this behalf it may further be stated that when the Custodian passed an order refusing to confirm a decision pertaining to evacuee property, he is not exercising jurisdiction with respect to the evacuee status of the property as the substance of the controversy under adjudication in such a case proceeds on the assumption that the property was originally evacuee property and, therefore, the transaction relating thereto required confirmation. It, therefore, follows that the order of the Custodian did not for the first time declare the property as evacuee, so that it could be said that as a consequence thereof the property was treated as evacuee for the first time. It was for the Custodian even when the matter relating to confirmation was pending adjudication to pats necessary orders to safeguard the rent dues in the event the transaction is finally not approved. The matter of assumption and recovery of rents is not, therefore, consequential to the aforesaid order but flows from the fact that the property originally was evacuee property.
26. It was finally submitted by Mr. Akhtar Mahmood that the legal represen--tatives of Qamaruddin bad challenged the aforesaid order of the Custodian by Constitutional Petition No. 1394/74 in which stay was granted. The petition was dismissed on 22-10-76. It was, therefore, contended that this must be deemed to be pending proceeding. However, since the High Court did not order the remand of the case as required by section 2(2), the officer appointed for the purpose will have no jurisdiction to deal with the case in any manner. In any case the present application was filed before the dismissal of the petition on 21-8-76 and, therefore, it could have been filed immediately after the order of the Custodian before the repeal of Act XII of 1957 came into effect.
27. For the foregoing reasons 1 am clearly of the opinion that the two applications submitted by Travelogue Ltd. And Kalimullah are incompetent and no action can, therefore, be taken thereon by this Court. The applicants may pursue their remedies before an appropriate forum if they are so advised.
28. Mr. Sabihuddin Ahmed learned counsel for Sungreen & Co. Opposed these applications and contended that once the property was declared as evacuee it formed part of the compensation pool and the Custodian ceased to exercise powers in respect thereof. He placed reliance on a case reported in PLD 1965 SC 356. But it is not necessary to "amine this point as in the view that I have taken the question of competency of these applications need not be pursued any further.