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Writ Petition No: 325 of 1963, decided on 1st May 1967.

, Ss. 18 & 20‑Order passed by Custodian declaring property to be evacuee property‑Judicial and not administrative order ‑ Power of C3istodian to take measures for purposes of "administering, preserving and managing evacuee property" vesting in him‑Declaration of certain property as non‑evacuee property ; not an act for such purposes.

S. 18‑Order of Custodian, passed in review, declaring property to be evacuee property‑Final‑Cannot be set at naught by fresh application under S. 18 either in original or appellate or re visional jurisdiction.

, S. 36(5)‑Review ‑ Notice‑ Natural justice -Custodian granting declaration that property was evacuee property ‑Review of order made without giving notice to party concerned‑ Held, against provisions of S. 36(5) and violative of principles of natural justice.

S. A. Jamali for Petitioners.

P. Ramchandani and Kishan Chand for Respondents Nos. 4 and 5.

Dates of hearing : 30th, 31st March and 4th April 1967.

‑This petition under Article 98 of the Constitu tion challenges the validity of the order of the Custodian Mr. Masud Ahmad dated 22nd March 1960 whereby he granted a declaration to the petitioners before him.

2. The property in dispute is a plot bearing No. 113 measuring about 1.20 acres situated at Phuleli Road. Hyderabad. This plot was recorded in the Revenue Records in the name of Seth Heralal son of Shrichand and this Hiralal on Partition migra ted to India where he died. In the year 1950 the petitioners who are 29 in number and numerous other displaced persons occupied this plot, some by allotment by the Rehabilitation authorities and others without it. The Deputy Rehabilitation Commissioner, Hyderabad, while dealing with the request of the occupants for allotment had by his letter of 24‑10‑50 enquired from the City Mukhtiarkar, Hyderabad whether the owner of survey number in question was evacuee. A report was received by the City Mukhtiarkar that the land was evacuee as the Khatedar Hiraial had migrated to India. Some of the allotment orders which have been produced in this case and which relate to the petitioners are marked D, E, F, G and H. On 2‑11‑50 Seth Sukhdev son of Udbadas, the respondent No. 4 in this petition, applied to the Collector, Hyderabad, that the refugees who were occupying this plot may be driven out. The Collector obtained a report from the Deputy Rehabilitation Commissioner on 11‑11‑50 and informed the respondent No. 4 that the plot in question was an evacuee property. The respondent No. 4 then made an application before the then Custodian Mr. Akbar Husain that the properties mentioned in the list annexed to the application may be declared to be non‑evacuee. The plot in question was one of such properties. Upon that application Mr. Akbar Husain passed an order on 15‑1‑51, the operative part of which is in the following terms:

The properties are, therefore, not evacuee property except the plot in Vishin Nagar which stood in the name of Hiralal who died in India I am assured that this plot was set apart for charity and will remain so set apart. The entire property is thus not an evacuee property."

It may be stated that the plot in Vishin Nagar referred to by the Custodian is the plot tit dispute.

3. The occupants from whom the respondent No. 4 was demanding rent applied to the Deputy Custodian complaining about it who issued notice to the respondents 4 and 5. On behalf of these respondents the copy of the order of Mr. Akbar Husain passed on 16‑1‑51. was produced whereupon the Deputy Cus todian declined to take any action on the application of the occupants. Having learnt of the existence of the order of Mr. Akbar Husain in these proceedings the original petitioner No. 1 Inayatullah son of Husain Bux, who died during the pendency of this petition and is now represented by his legal representatives, filed an application on 16‑1‑51 for the review of the aforesaid order. The Custodian then issued notice to the respondents 4 and 5 who appeared before him and produced documents and after several hearings passed an order on 3‑5‑56 'declaring the a plot in question as evacuee property. This order was passed by Mr. Mansoor Alam who had by that time become the Custodian. The respondents 4 and 5 then made an application under section 18 of the Ordinance XV of 1949 corresponding to section 22 of Act XII of 1957 for a declaration that the plot in question was non‑evacuee property. This application after hearing was rejected by the Assistant Custodian by his order dated 3‑2‑59. The respondents 4 and 5 preferred an appeal before the Additional Custodian which appeal was dismissed by order dated 17‑8‑59. Against this 'a revision was filed before the Custodian by the aforesaid respondents. This revision was heard by the then Custodian Mr. Masud Ahmad who allowed it by the impugned order passed on 22‑3‑60. Neither Inayatullah nor any other occupant of the plot was made a party in the proceedings commencing upon the aforesaid application of the respondents 4 and 5 under section 18 of the Ordinance and were not heard at any stage until the impugned order was passed.

4. It appears that upon an application by the respondents 4 and 5 the Additional Settlement Commissioner after notice to some of the occupants passed an order on 30th June 1962 relying on the order of Mr. Masud Ahmad excluding the plot in question from the compensation pool. It was then that Inayatullah and 28 other occupants filed this petition challenging the validity of the said order.

5. While deciding the revision petition the Custodian Mr. Masud Ahmed took the view that the order of Mr. Mansoor Alam dated 3‑5‑56 was passed on the administrative side. The learned Custodian then proceeded to deal with the order of the Additional Custodian and observed that this had ignored the contents of a partition deed whereby Hiralal, in whose name the plot stood in the Revenue Records, had on payment of a sum of Rs. 39,600 given up all his claim in the joint family property. He further observed that there was oral evidence of the petitioners and 5 others to the effect that the petitioners before him were trustees of the income realised of this plot and this income was spent on charitable purposes. He pointed out that this evidence bad stood unrebutted and there was no reason to disbelieve it. He then went on to conclude that the petitioners before him were not evacuees and if they sere holding the property in dispute as trustees the property had to be declared as non‑evacuee property. In this view of the matter he set aside the order passed by the Assistant and Additional Custodian who had rejected the applica tion under section 18 for the declaration sought in this regard.

6. The validity of the order of Mr. Masud Ahmad was challenged before us on the following grounds: (1) That the order of Mr. Mansoor Alam which was passed after notice to the respondents 4 and 5 and on consideration of such evidence as was produced before him was a judicial order and not an administrative order by which the earlier order of Mr. Akbar Husain was reviewed. For that reason, the order of Mr. Mansoor Alam had attained a finality and the fresh pro ceedings under section 18 by the respondents before the Assistant and Additional Custodian and also before the Custodian were incompetent and the order passed by Mr. Masud Ahmad was without lawful authority; (2) that the impugned order which was passed without notice at least to Inayatullah on whose application the order of Mr. Mansoor Alam was passed was against the provisions of law and in disregard of the principle of natural justice; and (3) that the impugned order suffers from errors patent on the face of the record and the learned Custodian had failed to consider evidence which would have shown that the property was not a trust property and had belonged to Hiralal.

7. We have heard the counsel for the parties at some length and the conclusion that we have reached is that the first two points must prevail. In that view of the matter it was not necessary to go into the third question. It was the contention of Mr. Ramchandani appearing for the respondents 4 and 5 that the order of Mr. Akbar Husain passed on 16‑1‑51 was itself an administrative order, and, therefore, when that order was reviewed by Mr. Mansoor Alam, the proceedings before him must also be taken to be of administrative character. For that reason‑ it was urged that the proceedings, which were started after the passing of this order by an application under section 18 of the Ordinance before the Assistant Custodian, were competent. We are not impressed by this argument. The circumstances, in which Mr. Akbar Husain's order was passed have been briefly indicated above. It may be noted that it was specifically stated para. 6 of this petition that the respondent No. 4 had on 2‑11‑50 applied to the Collector, Hyderabad that the refugees be driven out and the said Collector had, upon an inquiry from the Deputy Rehabilitation Commissioner, Hyderabad, been informed on 11‑11‑50 that the plot in dispute was an evacuee property. It was further pleaded in para. 7 of the petition that after the said order the respondent No. 4 made an application before the Custodian of Evacuee Property for a declaration that the numerous properties including the plot in dispute mentioned in the list annexed to the application may be declared as non‑evacuee. In this application the respondent No. 4 was shown as an applicant and No. 5 was shown as opponent. This also appears from the title of the copy pf the order of Mr. Akbar Husain dated 16‑1‑51. It was, further alleged in para. 7 of the petition that the Custodian Mr. Akbar Husain after making due inquiry granted the declaration prayed for. In the written statement filed by the respondents 4 and 5 the statements made in paras. 6 and 7 of the petition were admitted. It was added that the order of the Custodian dated 16‑1‑51 was a valid order. Now, we may refer to section 18 of the Ordinance which corresponds to section 22 of Act X1 I of 1957. It provided that any person claiming any right or interest in any property treated by the Custodian or Rehabilitation authority as evacuee property may prefer a claim to the Custodian that the property is not evacuee property or his interest 'in the property has not been affected by the provisions of the Ordinance. In this case it has been seen that the Rehabilitation authority had treated the plot in question as evacuee property and it was then that the respon dents 4 and 5 had applied to the Custodian for a declaration that the properties mentioned in the application including the disputed property be declared as non‑evacuee. Such a declaration was granted by Mr. Akbar Husain and we are unable to see how such an order can be said to have been passed in an administrative capacity. The claim by the respondents 4‑and 5 was clearly one made under section 18 of the Ordinance and the declaration by the Custodian was under that provision. We asked Mr. Ramchandani as to under what other power the Custodian could grant such a declaration and all that we were told was that this could have been done under section 20 of the Ordinance. That section, however, merely empowered the Custodian to take such measures as are necessary for the purposes of administering, preserving and managing any evacuee property which had vested in him. We do not see how the declaration of a property as non‑evacuee property could be said to be an act for the purposes of administering, preserving and managing evacuee property.

8. We then come to the order passed by Mr. Mansoor Alam in review. It has been pointed out that when the order of Mr. Akbar Husain was disclosed before the Deputy Custodian by the respondents 4 and 5, Inayatullah, the petitioner No. 1, applied to the Custodian for the review of that order. That power was given to the Custodian under subsection (5) of section 36 of the Ordinance, whereby he was empowered after giving notice to the parties concerned to review his own order. Such a notice was given by Mr. Mansoor Alam to the respondents 4 and 5 and there were several hearings in the case as stated in the petition and Mr. Dingomal had appeared before him and had produced a certified copy of the partition deed. This was gone into by Mr. Mansoor Alam and taking such evidence that was produced before him including the record‑of‑rights filed by the Rehabilitation authority which showed that the plot stood in the name of Hiralal he reached the conclusion that the plot in dispute, which stood in the name of Hiralal, was an evacuee property. He accordingly set aside the order of Mr. Akbar Husain. It is plain to us that by . no means this elaborate order can be said to have been passed by Mr. Mansoor Alam on the administrative side. The review pro ceedings themselves were of a judicial character and were directed against the order of Mr. Akbar Husain which, in our opinion, was passed under section 18 of the Ordinance. This order of Mr. Mansoor Alam thus attained a finality and could not have been set at naught by a fresh application under section 18 before the Assistant Custodian. Mr. Ramchandani, however, submitted that the order of Mr. Masud Ahmad may be treated as an order passed in review against the order of Mr. Mansoor Alam. That the Custodian had very wide power in review cannot be disputed, but let us see if the impugned order can be said to be an order passed in review. On the face of it the title of the order says that this was a matter in revision under section 43 of Act XII of 1957 against the order of the Additional Custodian dated 17‑8‑59. The order provides by saying that this was a revision petition against the order of the Additional, Custodian by means of which he had dismissed the petitioners' appeal against an order of rejection of their application under section 18 of the Ordinance of 1949. In order that a review can be said to have been made the orders sought to be reviewed should have been the subject‑matter of the proceedings. It is, however, plain to us that Mr. Masud Ahmad was not even attempting to review the order of Mr. Mansoor Alam. The only reference to that order was that it was passed on the administrative side. How then can it be said that the order passed by Mr. Masud Ahmad was in exercise of his powers of review under section 43 of the Act. Our conclusion, therefore, is that the effect of the order of Mr. Mansoor Alam could not be negatived by a fresh application under section 18 of the Ordi nance. In that view of the matter we declare that the proceedings before the Assistant Custodian and the Additional Custodian and the revision from that to the Custodian Mr. Masud Ahmad were without lawful authority.

9. The next point that was argued was that if the proceed ings before Mr. Masud Ahmad were to be treated as review proceedings a notice at least to Inayatullah, on whose application the order of Mr. Mansoor Alam was passed and was favourable to him, had to be given. Section 36(5) of the Ordinance which corresponds to section 44(5) of the Act expressly provides that the Custodian may review his order but he can do so only after giving notice to the parties concerned. Mr. Ramchandani relied upon the judgment of Supreme Court in the case of Attaullah Malik v. Custodian, Evacuee Property (P L D 1964 S C 236). That, however, was a case which arose out of an application for confirmation of the sale of a property under section 20 of the Act. It was in that context that his Lordship, the Chief Justice, with whom Fazle Akbar, J. and Hamoodur Rehman, J. agreed, observed that the question whether the title in the property which is vested in the Custodian should be confirmed in favour of a transferee by the Custodian himself would appear to lie exclusively between the Custodian and the party seeking the confirmation. That, however, cannot be said to apply to a proceeding under section 22 of the Act where the very nature of the property is in dispute and the question has to be considered whether it is evacuee or not. Therefore, when upon an earlier application by a person in posses sion a declaration had been granted by the Custodian that the property was an evacuee property, if a review had to be made of that order or a contrary order was to be passed upon a fresh application, assuming that such an application was competent notice to that party must be given. We have no doubt that Inayatullah was a party concerned within the meaning of the term used in clause (5) of section 44. We are further of the opinion that the order of Mr. Masud Ahmad passed without notice to Inayatullah who was a party in the earlier proceedings was also in violation of the principles of natural justice and thus liable to be set aside. Indeed, a grievance was made that if Inayatullah or the other allottees had been given an opportunity they would have been able to produce evidence to show that the property was not a non‑evacuee property.

10. Mr. Ramchandani also urged that this petition suffers from laches and the petitioners had not come to Court with clean hands inasmuch as they have made certain wrong statements with regard to their want of knowledge of the order passed by Mr. Masud Ahmad. It was stated that at least some of the petitioners knew of these proceedings commencing upon a fresh application under section 18 and at least one of them had applied at one stage before the Additional Custodian to be made a party. It was further stated that Inayatullah was a Petition Writer and he used to attend regularly the office of the Rehabilitation authority at Hyderabad. It was, therefore, urged that the petition should be dismissed on the ground of laches. We were unable to agree. If Inayatullah had come to know 'of the proceedings pending at Karachi before Mr. Masud Ahmad or of the order passed by him we are inclined to think that he would have certainly attempted to oppose the proceedings and if an adverse order had been passed he would have challenged it earlier. The statement in the petition that the petitioners came to know of this order when an applica tion was made by the respondents 4 and 5 in 1962 for the exclusion of this property from the compensation pool would appear to be correct. We do not, therefore, agree that this petition is liable to be dismissed on the ground of laches or upon the ground that certain wrong statements were made with regard to the date of the knowledge of the petitioners regarding the impugned order. It may further be pointed out that there were as many as 29 peti tioners and there is nothing to show that even a few of them bad knowledge of the passing of the impugned order. All of them were at Hyderabad. Whereas the impugned order was passed without notice by the Custodian whose office was at Karachi.

11. In view of our conclusion we allow this petition and declare that the impugned order passed by Mr. Masud Ahmed was in excess of his powers and without lawful authority. In that view of the matter it is not necessary to go into the merits of the case on facts. We leave the parties to bear their own costs.

S. A. H. Petition allowed.

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