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Writ Petition No. 72 of 1963, decided on 12th May 1967.

S. 3‑A [as inserted by Pakistan (Administration of Evacuee Property) (Amendment) Act (XLV of 1958)]‑Continuity of S. 3‑A not destroyed by repeal of Act (XLV of 1958) by Pakistan (Administration of Evacuee Property) (Amendment) Ordinance (XXII of 1959), S. 7‑General Clauses Act (X of 1897), S. 6‑A --[Muhammad Saeed v. Mohabbat Ali P L D 1966 S C 781 and Abdul Majid v. The Custodian of Evacuee Property, West Pakistan and others P L D 1962 Kar. 306 ref ].

S. 16-[as substituted by S. 7, Displaced Persons Laws Amendment Ordinance (XIII of 1964) on 28‑12‑1964]‑Not attracted to land which was already declared to be non‑evacuee property on 8‑1‑1963.

S. 3‑A‑Words "treated as evacuee property"‑"Treated" means that character of property must have been determined by Rehabilitation authorities or Custodian by judicial process after notice to owner‑Mere allotment as evacuee property not enough for application of S. 3‑A.

"Treated" in the sense in which it is used in section 3‑A means that the character of the property must have been deter mined by the Rehabilitation authorities or the Custodian by a judicial process after notice to the owner and the determination in this regard must be a final determination so that the affected party has a right to represent against the characterization of a property as an evacuee property and to prove that it is not so, and the matter be closed on him only if after a proper inquiry and adjudication the issue is finally disposed of one way or the other. In a contested case of this nature, the final adjudication in these matters would obviously be done only by the Custodian. To interpret the word "treated" in any other sense and to regard any declaration or any casual act of the Rehabilitation authorities in regard to the property as the "treatment of that property" to be evacuee property, would entail the risk of divesting real owners of their properties, amounting to expropriation, without any legal basis or moral jurisdiction, and the Legislature cannot in fairness be burdened with that intention.

Ss. 4(1) (2) & 5‑Evacuee property only can go to compensation pool‑Non‑evacuee property, even if mistakenly allotted cannot go to such pool‑[Muhammad Khan v. Chief Settlement Commissioner P L D 1962 S C 284 and Harikishan Mehra's case Civil Appeal No. 72 of 1961 ref.].

Reported or unreported rulings of Supreme Court equally binding on all Courts‑Constitution of Pakistan (1962), Art. 63.

There is no distinction whatsoever between reported and unreported judgments of the superior Courts for their legal efficacy on the question of law which they decide, in particular all decisions of the Supreme Court to the extent that they decide questions of law or are based upon or enunciate a principle of law have a constitutional sanction as binding on all other Courts in Pakistan as laid down in Article 63 of the Constitution. Such judgments are reported or not reported ‑as the Court may decide from the point of their importance for public publication, but this fact does not create any distinction in their legal effect.

Legal point as distinguished from point of jurisdiction may be permitted to be raised at a subsequent stage‑Jurisdiction, objection as to‑Means objection regarding competency or constitution of forum‑Pakistan (Administration of Evacuee Property) Act (VI of 1957), S. 3‑A‑Objection based on S. 3‑A concerns a legal point and not a point of jurisdiction- [Ghulam Mohy‑ud‑Din v. Chief Settlement Commissioner P L D 1964 S C 829 ref.].

S. 3‑A (2)‑"Actions" and "proceedings"‑Refer to actions and proceedings before Rehabilitation and Custodian "Action" a word of wide connotation and cannot be limited to action in Civil Courts.

S. 22 (2)‑Limitation for application or claims by interested persons‑Application held by Custodian to be not time‑barred Custodian acting properly within spirit of law under which he functions‑Interference by high Court in writ jurisdiction under Constitution of Pakistan (1962), Art. 98 "wholly unwarranted" Writ jurisdiction not to be exercised in aid of injustice‑ Allottees do not have any vested rights in evacuee property‑Such property vests in Custodian‑Custodian judge of his own cause‑Custodian's order under S. 22 after proper adjudication‑High Court would be reluctant to interfere on "legal technicalities"‑[Ataullah Malik v. Custodian, Evacuee Property P L D 1964 S C 236 and Tufail Muhammad and others v. Raja Muhammad Ziaullah Khan P L D 1965 S C 269 ref.].

A. S. Salam for Petitioner.

Major Ishaq Muhammad Khan, Settlement Commissioner (Legal) for Respondent No. 1.

Ch. Bashir Ahmad for Respondent No. 2.

Date of hearing : 11th April 1967.

The petitioners, who are refugee displaced persons, have brought this writ petition under Article 98 of the Constitution for a declaration that the order (Annexure II) passed by the learned Custodian, Evacuee Property, West Pakistan, Lahore, dated the 8th of January 1963, whereby he had held the land in dispute, measuring 39 kanals and 2 marlas, in village Ali Sherwan, Tahsil Khanewal, District Multan, as non‑evacuee property, belonging to the respondent, Mst. Khem Bai alias Mst. Ghulam Fatima (hereinafter to be referred to as the respondent) is without lawful authority and of no legal effect. But of the land in dispute about twenty seven kanals were at first temporarily allotted to the petitioners and subsequently confirmed in their favour permanently in the year 1951‑52 and they have been in pos session of it ever since. The respondent made an application to the Deputy Rehabilitation Commissioner on the 16th of November 1959, claiming that the land belonged to her and was wrongly allotted to the petitioners. This application was accepted by the Deputy Rehabilitation Commissioner on the 29th of August 1960, The petitioners went in appeal against that order to the Court of the Additional Rehabilitation Commissioner, who reversed the order of the Deputy Rehabilitation Commissioner, holding that the learned Deputy Rehabilitation Commissioner had no jurisdic tion to declare the land as non‑evacuee property which had been confirmed in favour of the petitioners in the year 1952. The respondent then filed an application on the 4th of July 1961, under section 22 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) in the Court of the Deputy Custodian Lahore, to enforce her claim that the property in dispute was non‑evacuee property which had been gifted to her by Khushi Ram, a brother of her deceased husband, Loku Ram. This application was resisted by the petitioners on the grounds, inter alia, that the application was hopelessly time barred and as the land had since been acquired by the Government under the Displaced Persons (Land Settlement) Act of 1.958, vide notification dated the 15th of April 1959, it could not be treated as non‑evacuee property. The learned Deputy Custodian rejected the respondent's application for the reasons that the alleged gift in her favour had not been effectively made as she had never been put into possession and that the application was hopelessly time barred. The order of the Deputy Custodian is Annexure I dated the 24th of April 1962. The respondent challenged this order by an appeal in the Court of the Custodian who accepted it and passed the impugned order. The learned Custodian has found that on the evidence led before him there was no doubt that Khushi Ram being the sole owner of 27 kanals of land and a co sharer in a joint Khata to the extent of 12 kanals and 2 marlas had gifted the same to the respondent without any challenge from anyone, and that the respondent had taken possession of the land in pursuance of the gift. According to the Khasra Girdawris which were produced before the learned Custodian, the respon dent was recorded as the owner of the land and Muhammad Bakhsh and Imam Bakhsh as the tenants, paying Batai to her right up to the year 1947. Loku Ram, the husband of the respondent, had died a few Sears before Partition. Khushi Ram also died some time before Partition and the two sons of the respondent from Loku Ram, namely, Aish Ram and Ghani Sham Ram, migrated to India on Partition. The respondent had embraced Islam before Partition and had married one Bahawal Bakhsh.

2. The gift in favour of the respondent was entered in Mutation No. 116 (copy Exh. P. Y.) which was attested on the 22nd of March 1941 The learned Custodian has held on the point of limitation for the application under section 22 of Act XII of 1957, mentioned above, that the respondent had been making representations to the Rehabilitation authorities, asserting her claim to the ownership of the property in dispute, and had succeeded once in getting an order in her favour from the Deputy Rehabilitation Commissioner which, however, was reversed by the Additional Rehabilitation Commissioner in the year 1961, which led her to file the aforesaid application. The learned Custodian has further observed as follows:‑--

"In my opinion, the appellant cannot be deprived of her right of ownership in the land in dispute merely on technical grounds. Her case appears to be quite genuine. I am therefore, inclined to hold that the application was not barred by time."

3. Mr. A. S. Salam, the learned counsel for the petitioners, who has argued the case with great industry, has not questioned the factum or the validity of the gift in favour of the respondent and therefore the findings of the learned Custodian on those points must prevail. The learned counsel rested his argument purely on a legal basis by submitting that by virtue of the Pakistan (Administration of Evacuee Property) (Amendment) Act, 1958 (hereinafter referred to as Act XLV of 1958), which was passed by the National Assembly on the 8th of September 1958, and received the assent of the President on the 23rd of September 1958, a new section 3‑A was inserted in pct XII of 1957 by which no person or property treated as evacuee or as evacuee property immediately before the commencement of that Act, i.e., before the 23rd of September 1958, could be declared to be non‑evacuee or As the case may be, non‑evacuee property on or after such commencement. Section 3‑A reads as follows:‑--

"3‑A. (1) Notwithstanding anything contained in this Act, no person or property treated as evacuee or as evacuee property immediately before the commencement of the Pakistan (Administration of Evacuee Property) (Amendment) Act, 1958, shall be declared to be non‑evacuee or, as the case may be non‑evacuee property, on or after such commencement.

(2) Nothing in subsection (1) shall apply to any evacuee in respect of whom or to any evacuee property in respect of which any action has commenced or any proceedings are pending immediately before such commencement as aforesaid for treating such evacuee as non‑evacuee or such property as non evacuee property."

The aforesaid Amending Act XLV of 1958 was repealed by Ordi nance XXII of 1959 which was promulgated on the 11th of April 1959, by its repealing section 7, saying that the Pakistan (Administration of Evacuee Property) (Amendment) Act (XLV of 1958) is hereby repealed. The question naturally arises whether section 3‑A as inserted in the parent Act XII of 1957 by the Amending Act XLV of 1958 survived after the repeal of the latter Act by Ordinance XXII of 1959. The learned counsel for the respondent submitted that the insertion of section 3‑A was a temporary measures as introduced by the Amending Act XLV of 1958 and it should be considered to have been removed from the statute book with the repeal of the Amending Act carried out by Ordinance XXII of 1959. The reply of Mr. Salam, which was endorsed by Major Ishaq Muhammad Khan, the learned counsel for the Rehabilitation Authority, was that section 6‑A of the General Clauses Act preserves the continuity of section 3‑A in spite of the repeal of the Act by which it was introduced. Section 6‑A, aforesaid, reads as follows:‑

"6‑A.‑Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not effect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal."

As held by their Lordships of the Supreme Court in the case of Muhammad Saeed v. Mohabbat Ali (P L D 1966 S C 781) the effect of section 6‑A of the General Clauses Act is not absolute as shown by the wording of the section itself, its operation being dependent upon intention of the repealing Act as construed from its words. Section 7 of the repealing Ordinance, couched in the words, as they are, of simple repeal, does not furnish any clue to the intention of the law‑giver that it was intended to destroy the legal continuity of section 3‑A which had been incorporated in A the parent Act by the Amending Act, as referred to above. The question was considered by Mr. Justice A. S. Farooqi in a case reported as Abdul Majid v. The Custodian of Evacuee Property, West Pakistan and others (P L D 1962 Kar. 306,), wherein his Lordship observed:‑

"The plain effect of section 6‑A of the General Clauses Act is that the repeal of an amending Act does not affect the continuance of the amendment which, in fact, becomes a part and parcel of the main Act. If such is the intention, it would have to be either expressly stated or there must appear clearly a different intention.

The result, therefore, is that if the property in dispute was treated as non‑evacuee property before the 23rd of September 1958, it cannot be treated as non‑evacuee in view of section 3‑A of the Act, already cited. The question arises, was it so treated Mr. Salam forcefully contended that its permanent allotment in favour of the petitioners to 1951 is a definite act of "treatment" by the relevant authorities, of the land in dispute as evacuee property. It was considered as a part of the evacuee pool and, therefore, allotted to the petitioners. A further argument addressed was that the land having been permanently settled on the petitioners, they have become its full owners under section 16 6 of the Displaced Persons (Land Settlement) Act of 1958. The argument built on section 16 ibid in the present case is demolished by the simple fact that before section 16 was enacted in 1964 by section 7 of the Displaced Persons Laws Amendment Ordinance, 1964, the Custodian by his order dated the 8th of January 1963, had already declared the land in dispute to be non‑evacuee property. In this behalf, a question of great interest arises as to what is meant by the "treatment of property" as evacuee property. Will the property be considered to be treated as evacuee property which, in fact, belongs to a Muslim owner but has somehow before allotted to refugees on a mistaken plea or belief that it was evacuee property And will the Muslim owner lose all his rights to his, own property merely because just a day before the 23rd of September 1958, a Rehabilitation Authority had chosen to allot it to a refugee without notice to the Muslim owner or notwithstanding his protest 'We considered that by the enact ment of section 3‑A in the Pakistan (Administration of Evacuee Property) Act, the Legislature could not have intended a whole sale and arbitrary destruction of vested rights by the cursery process of a mere declaration or an ex parte action by a Rehabilitation Authority that they were evacuee rights or by going further and allotting the same to other persons without a proper adjudication of those rights. It is against the principles of natural justice to deprive persons of valuable rights and properties without affording them an opportunity to defend those rights even though it be done to accommodate the teeming multitude of refugees. The law would defeat its own object, if for the sake of settlement of refugees, real owners were to be deprived of their properties and rendered without a refuge. It is in this context that the word "treated" has to be interpreted as used in section 3‑A for its correct connotation. In our view, "treated" in the sense in which it is used in section 3‑A means that the character of the property must have been determined by the Rehabilitation authorities or the Custodian by a judicial process after notice to the owner and the determination in this regard must be a final determination so that the affected party has a right to represent against the characterization of a property as an evacuee property and to prove that it is not so, and the matter be closed on him only if after a proper inquiry and adjudication the issue is finally disposed of one way or the other. In a contested case of this nature, the final adjudication in these matters would obviously be done only by the Custodian. To interpret the word "treated" in any other sense and to regard any declaration or any casual act of the Rehabilitation authorities, in regard to the property as the "treatment of that property" to be evacuee property, would entail the risk of divesting real owners of their properties, amounting to expropriation, without any legal basis or moral justification, and the Legislature cannot in fairness be burdened with that intention. In the present case, it is true that the land had been confirmed in favour of the present petitioners as displaced persons in the year 1951 but this was without the knowledge of the respondent and when for the first time she learnt about it in 1959, she moved an application to the Deputy Rehabilitation Commissioner that the land belonged to her, and her claim was accepted in August 1960. It was only after the Additional Rehabilitation Commissioner accepted the revision petition of the petitioners and an adverse decision was taken against her that she filed her application under section 22 of Act XII of 1957 which she pursued right up to the Court of the Custodian who has finally decided in her favour. In the restricted meaning which we have given to the word "treated" in section 3‑A as stated above, the land in dispute had never been treated as evacuee property prior to 23rd of September 1958. On the contrary, its proper adjudication by the Rehabilitation Authorities and the Custodian has been done after that date and the final result is in favour of the respondent.

4. The learned counsel for the petitioners addressed another argument on the same aspect of the case by submitting that the land is dispute had become a part of the compensation pool when a notification in this respect was issued in 1959, viz. on the 15th of April 1959. This argument suffers from a mis conception. It is only evacuee property which could go to the compensation pool and not non‑evacuee property, even though mistakenly it may have been allotted as evacuee property, Muhammad Khan v. Chief Settlement Commissioner (P L D 1962 S C 284) and the unreported judgment of the Supreme Court of Pakistan in the case of Harikishan Mehra fn Civil Appeal No. 72 of 1961, decided on the 4th of March 1962. If on a proper determination. it is discovered that the property allotted as evacuee property to the refugees was in fact non‑evacuee, it cannot and could not have formed part of evacuee compensation pool. We might here note an argument made by the learned counsel for the petitioners Mr. A. S. Salam, in regard to the unreported judgment of the Supreme Court, cited above, that unreported judgments of the superior Courts should not be allowed to be quoted and do not have a binding force. The objection, we feel, is wholly mis conceived. There is no distinction whatsoever between reported and unreported judgments of the superior Courts for their legal efficacy on the question of law which they decide, in particular all decisions of the Supreme Court to the 'extent that they decide questions of law or are based upon or enunciate a principle of law have a constitutional sanction as binding on all other Courts in Pakistan as laid down in Article 63 of the Constitution. Such judgments are reported or not reported as the Court may decide from the point of their importance for public publica tion, but this fact does not create any distinction in their legal effect.

5. Major Ishaq Muhammad Khan also represented before us that the petitioners cannot be allowed to raise the plea of bar under section 3‑A, as it is a plea of bar of jurisdiction which was not specifically raised by them before the Rehabilitation or Custodian authorities and he cited Ghulam Mohy‑ud‑din's case in this behalf reported as P L D 1964 S C 829. We do not think that Ghulam Mohy‑ud‑din's case can be of any assistance fn this matter, as the plea that the property cannot now be treated as non‑evacuee property under section 3‑A is a legal plea regarding P its effect on the category of the property in dispute without in any manner affecting the competency or the constitution of forums where the determination was sought. And legal pleas may be permitted to be raised at a subsequent stage even though not taken up at the proper time. But the res pondent and Major Ishaq Muhammad Khan were on a sure ground when they submitted that whereas the case of the respondent ‑is not hit by section 3‑A (1), it is at any rate covered by subsection (2) of the same section. It is pointed out that the lady had been representing her case throughout before the relevant authorities as soon as she learnt about the inroad on her rights, and finally she instituted a claim under section 22 of Act XII of 1957 after the Additional Rehabilitation Commissioner directed her to do so. It is thus a pending case covered by subsection (2) of section 3‑A even if it were hit by subsection (P L D 1964 S C 236) of the same section, although, as held already, it is not. Mr. Salam submitted in answer to this argument that the respondent had never based her case under subsection (2) and this has never been her case before the relevant authorities. He submitted further that "action commenced and proceedings taken" as used in this subsection refer to actions before the civil Courts." "Action" is a word of wide connotation and cannot be limited to actions in civil Courts as suggested by the learned counsel. In the context of subsection (2) of section 3‑A this restriction as argued by the learned counsel appears to be wholly against the contemplation of the Legislature as under the Evacuee laws it is not the civil Courts which can decide the character of the property being evacuee or non‑evacuee, as the jurisdiction for that entirely vests in the Custodian. The learned Custodian has observed in his impugned order that the respondent has been making representations to the Rehabilitation authorities and once she actually succeeded in getting an order in her favour. It was only in the year 1961 when the Additional Rehabilitation Com missioner, Multan, finally disposed of the case against her that she filed her application before the Deputy Custodian, we are of the view that her representations which are covered by the words "action" and "proceedings" as used in subsection (2) of section 3‑A were pending for the final determination of the authorities before the enactment of section 3‑A and her case is, therefore, covered by subsection (2).

6. It remains to consider the question of limitation as regards the respondent's application filed under section 22 of Act XII of 1957. The learned counsel for the petitioners submitted that whereas the period of limitation is sixty days for the filing of such an application the starting period for which he counted from the date of allotment in favour of the petitioners in 1951, the respondent did not file her application until almost ten years thereafter, on the 4th of July 1961. The learned Custodian has held that her application was not time barred, taking into account the fact that she had been representing against the action of the Rehabilitation authorities in denying the ownership of her property and she filed her application under section 22 within time after her claim was rejected by the Additional Rehabilitation Commissioner and she was directed to put in a claim under section 22. The learned Custodian has further held that the respondent has a genuine case which should not be decided on technical grounds. It is clear that whereas the allottees do not have any vested rights in the properties allotted to them Ataullah Malik's case, it is the Custodian in whom such property vests and it is he who is the Judge in his own cause in the administration of this property. If the Custodian has acted properly within the spirit of the law under which he functions, any interference on our part in writ jurisdiction will be wholly unwarranted. Even if we were to find that there are any legal technicalities in favour of the petitioners and against the respondent, we would be very reluctant to deprive the respondent of her property which the learned Custodian on a proper adjudication has found to belong to her. As held by their Lordships of the Supreme Court in the case of Tufail Muhammad and others v. Raja Muhammad Ziaullah Khan (P L D 1965 S C 269) writ jurisdiction should not be exercised in aid of injustice. In the result, we dismiss the writ petition with costs.

A.H. Petition dismissed.

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