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Writ Petition No. 500 of 1964, decided on 6th January 1966.

S. 4(3) read with Central Government Notification No. 1376‑RR/ 4R‑59 dated 15‑4‑59‑Factum of property being evacuee disputed Custodian alone, under S. 41, Pakistan (Administration of Evacuee Property) Act, 1957, competent to decide nature of property Custodian, has jurisdiction, despite fact that property might have been acquired by Notification No. 1376‑RR/4R‑59 dated 15‑4‑59, to entertain and adjudicate question whether property on date of notification was or was not evacuee property‑Property found by Custodian to be not evacuee‑Cannot form part of compensation pool‑Mere agreement to sell evacuee property Property, does not cease to be evacuee unless agreement confirmed by Custodian and decree for specific performance obtained also confirmed by him‑In absence of confirmation by Custodian property, by Notification No. 1376‑RR/4R‑59 dated 15‑4‑59, vests in Government and ceases to be evacuee property Custodian thereafter ceases to have jurisdiction whatsoever in respect of same‑Pakistan (Administration of Evacuee Property) Act (X11 of 1957), Ss. 20 & 41.

Muhammad Jamil Asghar v. Improvement Trust P L D 1965 S C 698 and Devachand Muljimal v. Deputy Settlement and Rehabilitation Commissioner P L D 1965 S C 356 ref.

S. 2 (e)‑Pakistan Administration of Evacuee Property) Ordinance (XV of 1949), Ss. 18 & 16‑Pakistan (Administration of Evacuee Property) Act (XII of 1957), Ss. 20 & 22‑Specific Relief Act (I of 1877), S. 12.

S. 4‑Notification No. 1376‑RR/4R‑59 dated 15‑4‑59 and Notification No. R5/1‑60 (1462) dated 8‑6‑60‑Effect of two notifications read together.

There is no indication in the Notification No. R5/1‑60 (1462) dated 8‑6‑60 whether it is in super-session or in modification of the earlier Notification No. 1376‑RR/4R‑59. dated 15‑4‑59. The later notification obviously refers to the land which was not covered by the earlier notification of the Central Government dated 15th April 1959. By the earlier notification all lands which were under allotment had been acquired. The notification dated 8th June 1960 applies to evacuee agricultural lands other than those which were under allotment and an exception was created in respect of the land with regard to which any proceedings were pending on the date of that notification under the Pakistan (Administration of Evacuee Property) Act, 1957. The effect of the two notifications when read together is that all the evacuee agricultural land which had been validly allotted prior to the 15th of April 1959 ceased to be evacuee property after the notification of the said date even if a proceeding (other than a proceeding for a declaration that it was not evacuee property) was pending in respect of any such land under the Administration of Evacuee Property Act, 1957. The rest of the evacuee agricultural land remained vested in the Custodian till the 8th of June 1960, when the same, except the land about which any proceedings including those for the confirmation of the transactions were pending under the Pakistan (Administration of Evacuee Property) Act, 1957 were acquired under section 4 of the Displaced Persons (Land Settlement) Act, 1958.

Hafiz Abdul Ghafoor for Petitioner.

Ataullah Sajjad A. A.‑G., Major Ishaq Muhammad Khan, S. C. (Legal) and Saeed‑ur‑Rehman for Respondents Nos. 1 and 2.

Ch. Muhammad Yahya with Ch. Zamir Ahmad Khan for Respondent No. 3.

Dates of hearing: 4th and 6th January 1966.

‑This is a petition directed against the order of the Custodian of Evacuee Property, West Pakistan, Lahore, dated the 28th of December 1962, whereby he dismissed Appeal No. 187 of 1962, which was pending before him against the order of the Deputy Custodian, dated the 28th of November 1962, on the ground that he had no jurisdiction to deal with the case after the property in dispute had been acquired under the Displaced Persons (Land Settlement) Act, 1958.

2. The petitioner filed an application before the Deputy Custodian, Sargodha, on the 23rd of February 1956, for the confirmation of a transaction dated the 19th of May 1945, which was entered into between Mahant Gulab Singh, an evacuee, and Ghulam Rasul, his predecessor‑in‑interest. He alleged in his application that the evacuee had agreed to sell agricultural land measuring .434 kanals situate in village Noorpur Thai, Tehsil Khushab, District Sargodha, in consideration for Rs. 2,100.00 and that as a sum of Rs. 1,500.00 had been paid to Mahant Gulab Singh, the balance of Rs. 600.00 be received from him and that the agreement dated the 19th of May 1945, be confirmed. Ghulam Rasul had died and the petitioner filed the petition as his legal representative. The Deputy Custodian by his order dated the 19th of September 1959, held that the transaction was entered into in good faith and directed the petitioner to deposit Rs. 600.00. On deposit of the amount, the property was declared to be a non‑evacuee. Nazar Muhammad, respondent, who is the allottee of the land preferred an appeal against the said order and the Additional Custodian remanded the case by his order dated the 13th of August 1960 on the ground that the Deputy Custodian had passed the order without imp leading the allottee as a party The petitioner filed a revision petition before the Custodian who dismissed the same on the ground that according to the Central Government s Notification No. S. R. X/974 (K), dated the 26th of July 1960, issued under section 19 of the Pakistan (Administration of Evacuee Property Act, 1957, the transaction could not be confirmed because the whole of the agreed price of the land had not been paid prior to the 26th of July 1949. He, therefore, refused to grant a certificate to the petitioner under section 16 of the Act to enable him to file a suit for the specific performance of the agreement and also withheld the registration of the agreement under section 21 of the Act. The petitioner then applied for the review of the order and the Custodian by his order dated the 12th of May 1962, observed that the notification earlier relied upon by his predecessor in office did not apply to the instant case and he, therefore, by observing that the said notification did not invalidate the agreement of sale in favour of the petitioner, reviewed the order of his predecessor. He directed the Deputy Custodian to decide the case on merits after giving opportunity to the parties. The Deputy Custodian by his order dated the 28th of November 1962, dismissed the application and held that the agreement to sell relied upon by the petitioner was not a valid one. 'The petitioner filed appeal against this order which was dismissed by the Custodian on the 28th of December 1962, on the ground that the land in dispute had been allotted to the refugees and by virtue of the notification issued by the Government under the Displaced Persons (Land Settlement) Act, 1958, it stood acquired and vested wholly in the Central Government and the rights of the respondent had been extinguished. He held that he could not pass any order in respect of this property. It is against this order that the petitioner has filed this writ petition.

3. It was argued that the case of the petitioner before the Custodian was that the property in dispute was a non‑evacuee property and it was for the determination of the nature of the property that the petitioner had approached the Custodian. If the petitioner had in fact claimed this relief, we have no doubt that the Custodian could not have refused to exercise the jurisdiction. What is provided under the notification issued by the Government under section 4 of the Displaced Persons (Land Settlement) Act, is that the evacuee property is acquired and the same vested in the Central Government and the rights of the evacuees are completely extinguished. If, however, a particular property is not an evacuee property, it could not be covered by the said notification nor could the same form part of the Compensation Pool. In a certain case if a question arises before the Custodian that a certain property is not an evacuee property, the Custodian cannot refuse to exercise jurisdiction on the ground that the said property had vested in the Central Government by virtue of the Notification. What vests in the Central Government is the evacuee property but if the very fact whether the property is evacuee is disputed then the only authority competent to decide it is the Custodian. If he holds that the property is not evacuee property, then in that event, the notification issued for the acquisition of the property of course, will not be attracted to the said property. On the contrary, if he holds that the property is an evacuee one, he will have no jurisdiction left to pass any further order in respect thereof because the/property being evacuee stood vested in the Central Government. Thus the Custodian alone can determine the nature of the property as to whether or not it was an evacuee property at the time the notification was issued. It was held in Muhammad Jamil Asghar v. Improvement Trust (P L D 1965 S C 698):‑

"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."

In this view of the matter a question can always arise whether a property which was a subject‑matter of transfer by the Settlement Authorities was in fact an evacuee property at the time when it was acquired by the Central Government, and if the order of the Settlement Authority is challenged on this ground in any Civil Court, the decision on the question will again not rest with the. Civil Court but it will have to be adjudicated upon by the Custodian because under section 41 of the Pakistan (Adminis tration of Evacuee Property) Act, 1957 (XII of 1957), which is the law still in force "no civil or revenue Court or any other authority shall have jurisdiction to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property", and whenever any such question "arises in any Court, or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision . . . and the decision of the Custodian on the question stated‑ shall be conclusive." The Custodian thus has the jurisdiction notwithstanding the fact that the evacuee property has been acquired by Notification No. 1376‑RR/4R‑59, dated the B 15th of April 1959, to entertain and adjudicate whether a particular property on the date of the said notification was or was not an evacuee property.

4. On the facts of the case the petitioner cannot claim that the property was not an evacuee property. He claims relief on the basis of an agreement to sell dated the 19th of May 1945. An agreement to sell does not create any right, title or interest in immovable property. The petitioner for that reason did not apply under section 18 of Ordinance XV of 1949 for a declaration that the property was not evacuee. He instead applied for the confirmation of the transaction. On the confirmation of the deed, the petitioner again could not acquire any right and the Custodian could in that event only direct him under section 16 of the Act to file a suit for the specific performance of the agreement. On the facts of this case the property would have continued to be an evacuee property under the Pakistan (Administration of Evacuee Property) Act, and it was only if the agreement had been confirmed, the decree for the specific performance had been obtained and then confirmed by, the L Custodian that the property could cease to be an evacuee property. It is in this context that we are to examine the notification of the Central Government and to see whether the Custodian was justified in passing the impugned order whereby he) refused to decide the appeal.

5. Section 4 of the Displaced Persons (Land Settlement) Act, 1958, reads as:‑

"14. Power to acquire land.‑(1) The Central Government may, for any of 'the purposes of this Act, by notification in the official Gazette, acquire any land within the Federal Capital.

(2) As and when so required by the Central Government, the Government of West Pakistan shall, for any of the purposes of this Act by notification in the official Gazette, acquire land situated in the Province (excluding the Federal Capital) as the Central Government may deem it necessary to acquire.

(3) On the publication of a notification under subsection (1) or subsection (2), the right, title and interest of any evacuee or persons claiming through him in the land specified in the notification shall, with effect from the date of such publication, be extinguished and the land shall vest wholly and absolutely in the Central Government free from all encumbrances.

(4) The Central Government shall prescribe the cases or class of cases in which, and the period within which any charge created by a Custodian on any land acquired under subsection (1) or subsection (2), or any decree granted by a Civil or revenue Court against such land, shall be satisfied or such compensation as is determined by the High Court under subsection (3) of section 43‑A of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), shall be paid, and the manner in which it shall be satisfied or paid.

(5) Notifications under subsection (1) and subsection (2) may be issued from time to tinge and may relate to‑

(a) all land generally; or

(b) any class of land; or

(c) all land situated in a specified area; or

(d) any particular land."

The Central Government issued a notification dated the 15tb of April 1959 which reads as:‑

"Whereas the Central Government, in pursuance of sub section (2) of section 4 of the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958), have asked the Government of West Pakistan to acquire for the purpose of the Act, all land as defined in clause (3) of section 2 thereof and situated in West Pakistan (excluding the Federal Capital), and already allotted under the West Pakistan Rehabilitation Settlement Scheme prepared by the Rehabilitation Commis sioner, West Pakistan under section 6 of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) with the approval of the Central Government.

Now, therefore, in exercise of the powers conferred by the aforesaid subsection (2), the Government of West Pakistan is hereby pleased to acquire all the land as so defined, situated and allotted."

The land in dispute had been admittedly allotted at the time when this notification was issued. The respondent claims that it was allotted to him in 1956. The notification, therefore, was clearly applicable to the said property and by the acquisition the Central Government stood vested with all the rights in respect thereof. It also resulted in the extinguishments of the rights of the evacuee in the said property. The result was that the property ceased to be an evacuee property. The Custodian under sections 16 and 19 could exercise the jurisdiction only if it was an evacuee property but after the said notification he indeed had no jurisdiction whatsoever. This question was considered by the Supreme Court in Devachand Muljimal v. Deputy Settlement and Rehabilitation Commissioner (P L D 1965 S C 356) and it was held as: --‑

.

"Even otherwise as soon as a property is acquired by Notifi cation under section 3 of the Act of 1958 it ceases to be evacuee and the Custodian has, thereafter, no further jurisdiction with regard to it.

6. The learned counsel, however, relied on another notifi cation of the Central Government No. R‑5/1‑60 (1462), dated the 8th of June 1960, which reads as: --‑

"In pursuance of a requisition made by the Government of Pakistan and in exercise of the powers conferred on him by subsection (2) of section 4 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the "said Act)" the Governor of West Pakistan is pleased to acquire with immediate effect, for the purpose of the said Act, all lands (as defined in clause (3) of section 2 of the said Act) which are situated within the Province of West Pakistan (except the Federal Capital and the special Areas) other than‑

(i) Lands for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957, or under any law for the time being in force for the administration of evacuee property in West Pakistan has been accorded before the date of this notification, and

(ii) Lands with regard to which any proceedings are pending on the date of this notification under the Pakistan (Administration of Evacuee Property) Act, 1957."

It was argued that although the land in dispute became a part of the Compensation Pool under the earlier notification, the Central Government was competent to take it out from that and this it did under this notification and excluded the land with regard to which any proceedings were pending on the date of the issue of this notification under the Pakistan (Adminis tration of Evacuee Property) Act, 1957. It is true that the Central Government after the property was acquired by a notification, unless vested rights had accrued in consequence of the first notification, and this it was competent to do under section 21 of the General Clauses Act. If any such modification had been made, the property which ceased to be an evacuee property by a notification issued under section 4 would have again assumed the character of an evacuee property. This was so held by the Supreme Court in Sh. Rahmatullah v. Deputy Settlement Commissioner (P L D 1963 S C 633) where it was observed as:‑

"The argument then that any evacuee property acquired under section 3 becomes for all time part of the compensation pool is to that extent, and bearing to mind the character of the other properties which come into the pool, not capable of being accepted as an absolute proposition. It is to be remembered that the acquisition is by a mere notification, and not by a solemn and lengthy proceeding such as that provided in the Land Acquisition Act, or other instruments of a similar kind. I see no great difficulty in the way of applying the principle of section 21 of the General Clauses Act to a modification of a notification issued under section 3, such as will have the effect of excluding from the earlier acquisition, certain property specified in the second notification. It is, of course, settled law that power given by a statute to act by notification with prospective effect as in section 3, cannot be effectively exercised with retrospective effect, whatever the language that may be employed, and consequently the Central Government's notification of the 12th September 1959, must be supposed to have effect from that date and no earlier date, notwithstanding the use of words calculated to give it effect as from 8th August 1959. It is true that if in the interval between the two dates vested rights had accrued in consequence of the first notification, those could not be annulled by a mere notification of a later date."

7. The question, however, arises whether the notification dated the 8th of June 1960 is in super-session or in modification of the earlier notification dated the 15th of April 1959. There is no indication in the said notification to that effect. The later notification obviously refers to the land which was not covered by the earlier notification of the Central Government dated the 15th of April 1959. By the earlier notification all lands which were under allotment had been acquired. The notification dated P the 8th of June 1960, applies to evacuee agricultural lands other than those which were under allotment and an exception was created in respect of the land with regard to which any proceedings were pending on the date of that notification under the Pakistan (Administration of Evacuee Property) Act, 1957. The effect of the two notifications when read together is that all the evacuee agricultural land which had been validly allotted prior to the 15th of April 1959 ceased to be evacuee property after the notification of the said date even if a proceeding (other than al proceeding for a declaration that it was not evacuee property) was pending in respect of any such land under the Administration of Evacuee Property Act, 1957. The rest of the evacuee agricultural land remained vested in the Custodian till the 8th of June 1960 when the same, except the land about which any proceedings including those for the confirmation of the transactions were pend ing under Act (XXVIII of 1958), were acquired under section 4 of the Displaced Persons (Land Settlement) Act, 1958. In this view of the matter, the land in dispute had been acquired under the notification of the 15th of April 1959 and continues to remain vested in the Central Government notwithstanding the latter notification. The Custodian, the Additional Custodian and the Deputy Custodian, therefore, had no jurisdiction to pass any order in respect of the property after the 15th of April 1959.

8. The property in dispute was an evacuee property on the 15th of April 1959. It was acquired by the notification issued under section 4 of the Displaced Persons (Land Settlement) Act, 1958, That being so, the order of the Deputy Custodian dated 19th of September 1959 and all subsequent orders except the one passed by the Custodian on the 28th of December 1962, are without jurisdiction. The impugned order of the Custodian whereby he held that he had no jurisdiction to pass the order as the land in question vested wholly in‑ the Central Government, is unexceptionable. The writ petition, therefore, cannot succeed and is accordingly dismissed.

K. B. A.

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