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Criminal Revision No. 780 of 1964, decided on 21st February 1966.

S. 145 (1), (4), second proviso-Attachment of property-Obligatory on Magistrate under subsection (I) to give grounds of his being satisfied about existence of dispute likely to cause breach of peace--No such obligation, however, attaches under second proviso to subsection (4) to state grounds regarding existence of "emergency".

Unlike subsection (1) of section 145, Criminal Procedure Code which makes it obligatory on the Magistrate to make an order in writing stating the grounds of his being satisfied about the breach of peace, there is no such obligation attached in the second proviso to subsection (4). Once, the Magistrate is satisfied regarding the existence of a dispute likely to cause a breach of peace concerning any land or water or boundaries there of within the local limits of the jurisdiction, he can move in the matter in the manner provided in subsection (1), of course, stating the grounds of his being so satisfied. It might be a case of emergency at the very outset, or might subsequently develop into one. If it had been the intention of the Legislature to make obligatory on the Magistrate the statement of grounds -regarding existence of emergency, there was nothing to prevent it from saying so, as was done in subsection (1). It is not, therefore, at all necessary for the Magistrate to give reasons to show that an emergency did exist.

Ss. 145(4), second proviso & 146 read with S. 537-Order of attachment of property Omission by Magistrate, to make preliminary order in conformity with apparently mandatory provision-Not sufficient to vitiate attachment order-Such order curable under S. 537.

State v. Muhammad Azam P L D 1960 Pesh. 47 and Mohan Lai and another v. Mst. Morni A I R 1933 Pesh. 88.

Ss. 7, 25 & 29 read with S. 3-Dispute concerning evacuee property-Jurisdiction of criminal Courts barred-Evacuee property acquired by Central Government under S. 3 vests in Govern ment for certain purposes only and not absolutely-Such acquisition does not invest criminal Courts with fresh jurisdiction-Criminal Procedure Code (V of 1898), Ss. 145 & 146.

Rahim Bakhsh v. Ahmad Bakhsh P L D 1964 S. C 189; Malik Muhammad Sharif v. Akram and others P L D 1954 Lahore 640; State v. Abdus Sattar and others P L D 1965 Karachi 305; M. Jamil Asghar v. The Improvement Trust, Rawalpindi P L D 1965 S C 698 and Devachand Muljimal v. The Deputy Settlement and Rehabilita tion Commissioner, Karachi P L D 1965 S C, 356 ref.

Abid Hassan Minto for Petitioners.

Malik Muhammad Jaffar for Respondent.

Dates of hearing: 15th, 16th, 17th and 22nd November 1965.

This petition for revision arises out of proceeding under section 145 of the Criminal Procedure Code pending in the Court of Additional District Magistrate, Rawalpindi, initiated at the instance of the respondent. The dispute relates to the possession of two flats Nos. 1 and 2 known as New Charli Villa near Pindi Point, Murree. The respondent claimed the transfer of the premises on the basis of his possession and challenged the auction proceedings before the Rehabilitation Commissioner, who re-opened the case giving rise to Writ Petition No. 1270/R-1963 filed by Muhammad Din, father of the petitioner, in which arguments were heard by a Division Bench of this Court more than a year ago, and the judgment was reserved as there were several writ petitions pending in this Court on rehabilitation matters relating to evacuee pro perties in Murree.

2. On the 19th of May 1964, the respondent made an appli cation under section 145, Cr. P. C to the S. D. M. Murree that the petitioner had broken open the lock of the premises on the 15th of May 1964, and had trespassed into it taking wrongful possession of the flat in dispute.- The Sub-Divisional Magistrate ordered ad interim attachment of property but subsequently, on the 25th of May, 1964, vacated the order of attachment taking the view that the Court had no jurisdiction in respect of evacuee properties. The respondent preferred yet an other application to the District Magistrate under section 145, Cr. P.C. reiterating earlier allegation of forcible occupation of flats by the petitioner and alleging that there was imminent danger of breach of peace calling for action under section 145, Cr. P. C. A further ground was, however, added that since the entire evacuee property in Murree had also been acquired by the Government which ceased to be evacuee pro perty and as such there was no bar to proceedings under sec tion 145, Cr. P. C. The District Magistrate marked the petition to the Additional District Magistrate whose two separate-orders dated the 17th of June 1964 and the 14th of July 1964 are the impugned orders in the case. In the earlier order the learned Additional District Magistrate, after giving briefly the background of the case, expressed his satisfaction regarding the existence of an apprehen sion of breach of peace over the possession of the flats, issued notice to the, parties and ordered the attachment of flats pending decision of the petition. In the subsequent order he dealt with the petitioner's objections, who was the respondent before him, firstly, that a previous application under section 145, Cr. P. C. between the same parties regarding the same property had already been disposed of by a Court of competent authority and a fresh application would not, therefore, be competent, and, secondly, that the dispute being in regard to evacuee property an application under section 145, Cr. P. C. would not lie even otherwise. The objections were overruled respectively on the ground that the first application had not been dealt with or disposed of on merits and that the property having been acquired by the Government vide Notification No. U-8-79 (4261), dated the 20th of November 1959, ceased to be evacuee property.

3. The following contentions were raised before me by the learned counsel for the petitioner

(i) That sections 7, 25 and 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, completely debarred the jurisdiction of the criminal Courts in the determina tion of the dispute relating to possession of evacuee properties and as such proceedings under section 145, Cr. P. C. were not competent. Reliance was placed in this regard on P L D 1965 Kar. 305. It was argued in this regard that the factum of possession at a particular point of time being material for the purposes of the transfer of evacuee property the jurisdiction of Civil and Criminal Courts had been purposely barred, as once they start interfering in these matter it would lead to a chaotic conflict of decisions.

(ii) That the acquisition of the property by the Government made absolutely no difference as it admittedly formed a part of the Central Government pool created with the object of rehabilitation and compensation of the displaced persons.

(iii) That assuming that the Additional District Magistrate had the jurisdiction the Sub-Divisional Magistrate had already come to a definite finding and as such no fresh application could be made before a Court of concurrent jurisdiction. As such, the Additional District Magistrate's subsequent order had the effect of revising the earlier order passed by the Sub- Divisional Magistrate which he was not competent to do, and,

(iv) finally, that the order of attachment could only be passed under the second proviso to subsection (4) of section 145, Cr. P. C. for which the pre-existence of emergency is a condition precedent of which there is no indication in the order, and in fact in the absence of any untoward incident between the first and the second application under section 145, Cr. P. C. coupled with the omission to give reasons showing existence of an emergency created no justification for the Additional District 'Magistrate-to order ad interim attachment of the flats.

4. As against this, the learned counsel for the respondent stressed the existence of vast jurisdictional scope of the Criminal Procedure Code under section 1(2). He vigorously contended that sections 7, 25 and 29 created no bar to the jurisdiction of the criminal Courts. It was argued that the impugned orders made sufficient compliance with subsection (1) of section 145, Cr. P. C. and no separate ground for the existence of emergency had to be mentioned or detailed as unlike subsection (1) of section 145, Cr. P. C. there is no reference to grounds in the second proviso allowing attachment in cases of emergency and assuming that it was necessary for the Additional District Magistrate to do so, the defect would not be so serious or incurable as to be vitiative of the proceedings. Reliance was placed on State v. Muhammad Azam (P L D 1960 Pash. 47) and Muhammad Ishaque v. Nur Mehal Begum (P L D 1961 S C 426). In answer to this argument that a Court of competent jurisdiction had already decided the matter which could not re-open, it was argued that the first order was not passed on merits. That even if it were so, the bar to fresh proceed ings in criminal Courts was only created by section 403, Cr. P. C., laying down certain conditions to be fulfilled. Finally, it was stressed that revisional jurisdiction is not to be liberally exercised and orders passed under section 145, Cr. P. C. by a Court of competent jurisdiction are not lightly to be interfered with.

5. I now proceed to consider the relative merits of the arguments advanced by the learned counsel on both sides.

6. Taking the last point first, it may be stated that the argument has nothing to commend itself, as unlike subsection (1) of section 145, which makes it obligatory on the Magistrate - to make an order in writing stating the grounds of his being satisfied about the breach of peace, there is no such obligation attached in the second proviso. Once, the Magistrate is satisfied regarding the existence of a dispute likely to cause a breach of peace concerning any land or water or boundaries there of within the local limits of the jurisdiction, he can move in the matter in the manner provided in subsection (1) of course, stating the grounds of his being so satisfied. It might be a case of emergency at the very outset, or might subsequently develop into one. If it had been the intention of the Legislature to make obligatory on the Magistrate the statement of grounds regarding existence of emergency, there was nothing to prevent it from saying so, as was done in subsection (1). I am, therefore, of the view that it was not at all necessary for the Magistrate to give reasons to show that an emergency did exist. Even otherwise, there are authorities to the effect that an omission of any preliminary order by the Magistrate in conformity with what otherwise appears to be a mandatory provision, is not considered sufficient to vitiate the order and has been held curable under section 537, Cr. P. C. Reference may be made in this regard to State v. Muhammad Azam in which reliance was placed on Mohan Lal and another v. Mst. Morni (A I R 193 3 Pesh. 88). The argument, therefore, stands repelled.

7. Coming now to the objection that the Sub-Divisional Magistrate had already passed an order in the case under section 145, Cr. P. C., and no fresh application could be made before a Court of concurrent jurisdiction, it can be overruled on two grounds. The argument is that the subsequent order of the Additional District Magistrate had the effect of revising the earlier order passed by the Sub-Divisional Magistrate which the former was not competent to do. In the first instance, no final order had been passed by the Sub-Divisional Magistrate on merits, and taking the view that he had no jurisdiction, he vacated his earlier order. The question of jurisdiction was decided on merits by the Additional District Magistrate only after the case had been referred to him by the District Magistrate afresh for disposal and as such, I am of the view that he was quite competent to deal with it and the order passed by him after hearing the arguments of the learned counsel on both sides was perfectly valid.

8. Likewise, I am not inclined to agree with the second point raised by the learned counsel for the petitioner as in spite of its acquisition by the Central Government, under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, its vesting in Central Government is for certain purposes and does not render the proviso of the Displaced Persons (Compensation and Rehabilitation) Act, XXVIII of 1958 inapplicable, as the object is only to create a pool with a view to dispose of the properties by transfer to claimants and others. This was the view taken by their Lordships of the Supreme Court in Rahim Bakhsh v. Ahmad Bakhsh (P L D 1964 S C 189). As such, the acquisition would not invest criminal Courts with fresh jurisdiction in case it is held to be barred under sections 7, 25 and 29 of the Displaced Persons (Compensation and Rehabilitation) Act, XXVIII of 1958.

9. The sole question which remains to be determined, there fore, is whether the jurisdiction of the Criminal Courts is barred by this section or not. Section 7 of the Displaced Persons Act, XXVIII of 1958, deals with the exemption of the properties constituting rehabilitation pool for certain purposes and reads thus:

"7. No property which forms part of any of the pools constituted under this Chapter shall be liable to proceed against for any claim in any manner whatsoever in execution of any decree or order or by any other process of court or other authority."

Section 25 of the Act which deals with the question of jurisdiction reads as follows:-

"25. Save as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act.

Section 29 confers powers of ejectment on the Settlement Commissioner and reads as follows:-

"29. The Chief Settlement Commissioner may eject or cause to be ejected any person in possession or occupation of any evacuee property (or any property acquired under section 3) whose possession or occupation is not authorised by any of the provisions of this Act, or who contravenes or may have contra vened any of the terms and conditions under which the property is held by him, or who, when called upon, has failed to pay public dues, or has wilfully caused damage to (any such property) allotted to or occupied by him, and for the purpose of such ejectment use or cause to be used such force as may be considered necessary.

(2) The Chief Settlement Commissioner may delegate the powers under subsection (1) to any Settlement Commissioner or Additional or Deputy Settlement Commissioner."

Section 30 regulates the relationship between the occupants and the transferees and gives protection to occupants who cannot be ejected for a period of six years from a house or shop and for a period of three years from an industrial concern, cinema house, or printing press from the date of the transfer, except for non payment of rent, subletting, parting with the possession or committing acts destructive or injurious to the properties. All these sections read together strongly support that the Chief Settlement Commissioner has been invested with vast powers of ejectment of any person in possession or occupation of any evacuee property or any part acquired under section 3 of the Act, and if possession or occupation is unauthorised or there is a contraven tion of the terms and conditions, or default in payment, or wilful damage to the property, the person in possession or occupation could be ejected and if necessary by use of force as well. Then again, the dates of possession are very material and carry with them certain rights and liabilities in respect of these special type of properties which are to be dealt with and disposed of in a manner specially prescribed in this special Legislation. Any order regarding possession of such a property would obviously be an order by a Court in respect of an action to be taken in exercise of any power conferred by an order under this Act, and would be hit by the latter part of section 25, which says that "no injunction, process or order shall be granted by any Court or any other authority in respect of any action to be taken in exercise of any power conferred by or under this Act". An order under section 145, Cr. P. C. is undoubtedly an order relating to the possession of such property.

10. The question whether section 25 of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, operates as a bar to the jurisdiction of a Criminal Court under section 145, Cr. P. C. does not seem to have been directly considered but was collaterally examined in Malik Muhammad Sharif v. Akram and others (P L D 1954 Lah. 640) by a Division Bench consisting of Mr. Muhammad Munir, former Chief Justice of Pakistan and Mr. M. R. Kayani, former Chief Justice of this Court. Their Lordships held the view that section 12(1) of the Pakistan Administration of Evacuee Property Ordinance of 1949 operates as a bar against Magistrate's order. Subsection (1) of section 12 of the aforesaid Ordinance is as follows:-

"12.-Exemption from legal process.-(1) Property which has been taken by, the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court."

The language of this section is undoubtedly much clearer, forceful and forthright than that of section 25 of Act XXVIII of 1958, and admits of no doubt, and as stated earlier, an order of attachment of evacuee property acquired by the Central Government which obviously relates to possession of such property clearly falls within the category of orders envisaged by the latter part of section 25 of Act, XXVIII of 1958, even if a dispute likely to cause breach of peace exists concerning such property. Such an apprehension could still be met by having recourse to action under section 107, Cr. P. C. In an answer to a similar argument addressed by Mr. Yaqoob Ali Khan, now Judge of the Supreme Court, Muhammad Munir, C. J. who delivered the judgment observed as follows:-

"The principle eventually laid down in Ex Parte: Walton was that a statute may be construed contrary to its literal meaning when a literal construction would result in an absurdity or inconsistency, and the words are susceptible of another construction which will carry out the manifest intention. In the light of this principle Mr. Yaqoob Ali Khan's contention is that a literal construction of subsection (1) of section 12 would result in the absurdity that where a dispute relating to immovable property exists, a Magistrate would have no jurisdiction to take the necessary measures to remove a danger of breach of peace by resorting to the proce dure provided in sections 145 and 146 of the Code of Criminal Procedure for the solution of such dispute. We do not think that such absurdity or inconsistency is the necessary result of a literal construction of the subsection in question. Where the apprehension of a breach of peace arises out of disputed possession of immovable property, the Magistrate would still be competent to take action under section 107 of the Code of Criminal Procedure. He could also draw to such danger the attention of the Custodian who is possessed of an un-exhaustible armoury of powers to take property. 1n our opinion absurdity or inconsistency, even inconvenience, would not be the inevitable result of the plain construction of the subsection which, in the absence of overriding considerations to the con trary, we must adopt. The evacuee law is a highly special form of law, and, as would appear from the several provisions of the Ordinance of 1949, the underlying intention of the Legislation was to make the Custodian the exclusive judge of how evacuee property was to be dealt with and what orders in respect of it were to be made.

The difference in language notwithstanding, these observations in my view are applicable with full force to the corresponding provi sions in the Displaced Persons (Compensation and Rehabilitation) Act, 1958.

11. The same question was also considered by my learned brother A. S. Faruqui, J. in State v. Abdus Sattar and others (P L D 1965 Kar. 305). Although it was not considered necessary by, his Lordship to give a definite finding on this question, and it' was held that section 12 of the Ordinance 15 of 1949 was not in pari materia with that of section 25, Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958; nevertheless, one cannot avoid the impression that his Lordship was thinking on almost similar lines as would be clear from the following observation:-

"There is considerable force in the argument that section 25 of the Displaced Persons (Compensation and Rehabilitation) Act 1958 bars the jurisdiction of the Criminal Court in respect of a property which has been acquired by the Central Government. Section 25 reads as follows:

"25 .......

" The argument is that in so far as section 29 of the Act empowers the Settlement Commissioner to take action for ejectment of any person in possession of a property which is vested in the Central Government in a fit case, it must be held that the latter part of section 25 of the Act would bar the jurisdiction of the Criminal Court. It is argued that the words "in respect of any action taken or to be taken" include an action by the Settlement Authorities under section 29 of the Act. Two judgments have been cited before me. These are Malik Muhammad Sharif v. The Crown P L D 1954 Lah. 640 and S. A. Sattar v. Crown P L D 1956 Kar. 138. These decisions, however, are not applicable. They arose under the provi sions relating to administration of evacuee property which in material part is not in the same terms as section 25 of the Displaced Persons (Compensation and Rehabilitation) Act. These two decisions are with reference to section 12 of Ordinance IV of 1949 which is not in pari materia with section 25 of the Displaced Persons (Compensation and Rehabilitation) Act. I have, however, not found it necessary to decide the question of jurisdiction of the Criminal Court because it appears to me that in view of the fact that not only that the P. T. O. of Abdul Sattar had been cancelled by the Settlement Authorities and the property has been put to auction and purchased by a third person and that all these matters are subject-matter of the writ Petition No. 329 of 1964 pending in this Court it would be an abuse of the process of the Court to allow the recommencement of 145 proceedings at this late date. No useful purpose can be served by the restarting of those proceedings.

12. Although this question was not before their Lordships of the Supreme Court, but perhaps some advantage could also be derived from the following observation of their Lordships in M. Jamil Asghar v. The Improvement Trust, Rawalpindi (P L D 1965 S C 698), made in connection with the jurisdiction of the Settlement officers:

"They (the Settlement officers) determine whether "possession" of a party exists, whether a person is a claimant, what is the date of his possession and so on. With respect to the nature of the property however the Settlement authorities have no jurisdiction to record a binding determination. If the property was in fact not evacuee property and was not vesting in the Central Government the Settlement authorities could not grant to themselves any jurisdiction to deal with it by holding that it was evacuee property. Their orders would always be liable to challenge in an ordinary civil Court on the ground that they had no jurisdiction with respect to the property transferred at all."

13. The underlying object of section 145 is two-fold, firstly, to prevent a breach of the peace relating to the property such as land, water, etc. and secondly, to determine question of possession two months prior to the making of the initial order and restore it to the party dispossessed, irrespective of title. A possible conflict of views between the Settlement Authorities and the Criminal Courts in such a situation is easily conceivable.

14. It may be argued that the determination of the factum of possession of an evacuee property between such litigants after the acquisition of the same by the Government under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, would not be material in determining the respective rights of the parries. The answer is that since the acquisition by the Govern ment is only for certain specified purposes of transfer, etc. this would not affect the position. Besides, there might still be cases where such a possession might be considered material. In any case, when the Settlement authorities are competent to determine the point and can also order ejectment, my inference for the forego ing reasons is that it was intended by section 25 of the Act to oust the jurisdiction of criminal Courts under section 145, Cr. P. Code and the former operates as a bar to proceedings under the latter. I am aware of the fact that in Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi (P L D 1965 S C 356) their Lordships of the Supreme Court took the view that as soon as the property is acquired by a Notification under section. 3 of the Act XXVIII of 1958 it ceased to be evacuee and the Custodian had, therefore, no further jurisdiction with regard to it, but the point which is now before me was not precisely before their Lordships in that case, and their Lordships had only to determine the manner in which evacuee property attached to any charitable, religious or educational trust was to be treated, and particularly, whether or not it was to be dealt with separately under sec tion 16-A of Act XXVIII of 1958. It was in this regard that their Lordships gave the aforesaid obiter dictum, which in my opinion has no direct application to the instant case.

15. The result is that the revision petition is allowed and the impugned orders dated 14th July 1964 and 7th June 1964 passed by the Additional District Magistrate, Rawalpindi, are set aside.

S. Q. Petition allowed.

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