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Writ Petition No. 556 of 1960, heard on 17th March 1972.

Cannot be conferred on tribunal by consent of party where none in law exists.

Muhammad Afzal v. Board of Revenue and another P L D 1967 S C 314 rel.

Meraj Din v. Director of Health 1969 S C M R 4 held not applicable.

Mst. Murad Bibi v. Mst. Ramzan Bibi 1968 S C M R 1007 distinguished.

S. 18 and Pakistan (Administration or Evacuee Pro perty) Act (XXII of 1957). S. 43(4)‑Application made by B and I under S. 18 of Ordinance XV of 1949 and declaration sought by them granted by Deputy Custodian and confirmed by Additional Custodian in 1952‑Seven years later Custodian of Evacuee Pro perty, issuing notice of sun motu revision to I but not to heirs of B (minor sons of B)‑Held: order sought to be interfered with in revision was passed in respect of entire property and not in respect of rights of I alone and therefore notice to minor sons of B was also necessary‑Proceeding taken without notice to minors, held, without lawful authority.

S.3‑Scope and true import of S. 3‑Meaning of term "treat ed as evacuee property"‑Property never taken over by Custodian or by Rehabilitation Authorities on assumption that it was evacuee property nor property ever handed over to any displaced person in pursuance of any allotment order ‑ Such property held, never treated as evacuee property by relevant day i.e. 1‑1‑57‑Custodian, in circumstance, not competent to deal with property as evacuee property‑Property declared non‑evacuee property on 26‑3‑52 and declaration confirmed by Additional Custodian on 12‑6‑52‑No proceeding in respect of property, held, could be said to be pending thereafter and notice of sun motu revision issued on 13‑11‑59 by the Custodian, hold, not covered by provision of subsection (2) of S. 3.

Syed Ali Iqtidar Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan, Lahore PLD 1964 Lah. 274; Custodian of Evacuee Property, West Pakistan v. Doreen Barkat Ram and another Civil Appeal No. 61 of 1963 and Qutab Ali v. Custodian of Evacuee Property, Lahore and others PLD 1964 SC 58 ref.

Sh. Bashir Ahmad and Sh. Abdul Manan for Appellants.

Fazle Mahmood for Respondent.

Dates of hearings 20th, 21st, 26th January; 9th February 1971 and 17th March 1972.

On 23-4‑1935 Bakht Bedar Shah, who was the father of the first three petitioners and grandfather of the other four, sold 1097 kanals of land in Chak No. 223 and 235/R. B., Tehsil and District Layallpur to Sohan Singh, now admittedly an evacuee. Bakht Bedar Shah died in 1945. On 30‑10‑1947, the petitioners filed the usual declaratory suit as reversioners on the grounds that‑

(1) the sale was without consideration;

(2) it was also without necessity.

This suit was filed against Sohan Singh. The Custodian of Evacuee Property was not made a party although the country had become Independent on 14‑8‑1947 and Sohan Singh had already left for India on account of the disturbances that followed in the wake of Independence.

2. On 19‑2‑1948, the suit for possession was decreed in favour of the three sons. On 1‑3‑1948 they took over possession of the land. On 24‑10‑1950 the petitioners presented an application under section 18 of Ordinance XV of 1949 for a declaration before the Deputy Custodian of Evacuee Property that the land in dispute was not evacuee property. By his order dated 26‑3‑1952, the Deputy Custodian granted the declara tion prayed for and sent his orders to the Additional Custodian of Evacuee Property for confirmation.

3. On 12‑6‑1952, the Additional Custodian of Evacuee Property confirmed the aforesaid orders passed by the Deputy Custodian.

4. On 13‑11‑1959, i.e. more than seven years after the confirmation of the order by the Additional Custodian of Evacuee Property, the Custodian of Evacuee Property issued notice sun motu to the sons of Bakht Bedar Shah only but not to the grandsons who were then minors, in the exercise of his revisional powers. In consequence of this notice, on 8‑2‑1960, the Custodian of Evacuee Property set aside the order of confirmation and remanded the case to the Additional Custodian of Evacuee Property for further inquiry.

5. The matter came up before the Additional Custodian and by his order dated 4‑6‑1960, he declined to grant the declaration prayed for by the petitioners initially.

6. A Revision Petition directed against this order was dismissed by the Custodian of Evacuee Property by his order dated 16‑7‑1960.

7. The property having thus been declared evacuee property, the petitioners proceeded to file the writ Petition which is being disposed of by this order. The matter was referred by a Division Bench to a Full Bench. The Reference was for the purpose of resolving the controversy over the correct Inter pretation of section 3 of Act XII of 1957. On 5‑3‑1964, the Reference was answered and the judgment is reported in Syed Ali Iqtidar Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan. Lahore (P L D 1964 Lah. 274). The case was kept by the office for a year and a half under the impression that the Full Bench had finally disposed of the matter. After the expiry of this period, the Department applied for resurrection of the case and the same came up before a Division Bench. No notice of it was issued to the petitioners and the case was dismissed in default on 2‑3‑1966.

8. The petitioners applied for withdrawal of the ex parte order and for restoration of the petition successfully. The case has now come up before me for being disposed of on merits in the light of the answer given by the Full Bench referred to above.

9. The question for consideration before the Full Bench was the scope and true import of section 3 of Act XII of 1957. In the words of the Fall Bench it had to consider whether section 3‑

"has completely taken away the jurisdiction of the Custodian to declare any person or property as Evacuee, who or which was not treated as evacuee immediately before the Ist of January 1957 or is it still open to him to declare the person or properties as Evacuee without any limitation "

10. After having considered the problem from various angles and after hearing lengthy arguments from both sides, the Full Bench returned the following answers:‑

(1) that no person or property can be declared as evacuee or evacuee property after 1‑1‑1957 if it was not treated as such before that date by the Custodian. The treatment referred to in this section indicates that some overt act must have been done by the Custodian or the Rehabilitation Authorities. Mere vesting of the properties in the Custodian under section 7 or holding possession under section 11 will not mean that such properties were treated as evacuee properties. If a person has been declared as a non‑evacuee, his property cannot be declared to be evacuee property. If the Custodian has confirmed a transaction or approved the right of supervision, management and possession of any property such properties also cannot be declared as evacuee properties;

(2) all cases in which action has commenced or proceedings are pending immediately before 1‑1‑1957 are outside the purview of section 3(1);

(3) (3) only those properties are covered by clause (b) which are in unauthorised possession, management or supervision of certain parties. These persons cannot be the owners of the property. Amongst them will all the cases of their agents, transferees claiming their right after 1-3-1947 through the evacuee. It will also cover the case of a Trespasser."

11. Mr. Fazl‑e‑Mahmood who appeared for the Custodian submitted that the petitioners were now estopped from objecting to the jurisdiction of the Custodian of Evacuee Property to pass the impugned order because they had accepted the order dated the 8th of February 1960, by taking part in the proceedings before the Additional Custodian which culminated in the order dated the 4th of June 1960 and by later on invoking the jurisdiction of the Custodian of Evacuee Property to challenge this order which resulted in the order of the Custodian, dated the 16th of August 1960. Reference in this connection was made to the judgment of the Supreme Court in Meraj Din v. Director of Health (1969 S C M R 4). It was a Civil Petition for Special Leave to appeal which was dismissed and the Leave to Appeal was refused. Frankly speaking, T fail to understand how this decision of the Supreme Court has any bearing on the matter before me. In that case, Meraj Din petitioner was compulsorily retired from service with retrospective affect. He challenged it by filing a writ petition before the High Court which was dismissed in limine. The Officer had been transferred from the Directorate of Health to the Secretariat, on the expiry of his leave, he had refused to join duty in the Secretariat and had reported back to the Directorate. The High Court, it was so held by the Supreme Court‑

"was justified in saying that it would not assist the petitioner as that would amount to encouraging indiscipline in the service. It would have been much better for the petitioner to have moved in the matter after carrying out the order of transfer."

If this decision is relevant at all, it is for the purpose of repelling the argument of learned counsel for the respondent as in that case the Supreme Court was of the view that the order should have been first carried out and then a petition should have been filed.

12. Another case cited by learned counsel In favour of this proposition is Mst. Murad Bibl v. Mst. Ramzan Bibi (1968 S C M R 1007). In that case, Mst. Murad Bibi was in part occupation of the property in dispute which the Settlement authorities transferred to several persons including Mst. Ramzan Bibi. The transfer was challenged by a Revision petition before the Settlement Commissioner who remanded the case to the Deputy Settlement Commissioner for the determination of the rights of the respondents. By the same order, the learned Settlement Commissioner held that the petitioners were not at all entitled to the transfer of any portion of the building. The Dy. Settlement Commissioner, who heard the case on remand, refused to give any relief to the petitioners on the ground that the question of their entitlement had been finally turned down by the Settlement Commissioner. It was then that the petitioners challenged the orders of the Settlement authorities before the High Court unsuccessfully followed by a Letters Patent Appeal and a Petition before the Supreme Court. The Supreme Court held that the order of the Settlement Commissioner was binding on the petitioners so far as their entitlement was con cerned and "that order having been allowed to become final, could not be attacked before the High Court or before this Court".

13. The circumstances attending that case were wholly different from the facts of the one before me. Here, the Custodian remanded the case to the Additional Custodian for deciding the entire case on merits. He did not foreclose the question of the right of the present petitioners. If, therefore, they chose to have their rights determined by the Dy. Settle ment Commissioner in consequence of the order of remand, they are not debarred from coming to this Court. Be that as it may, the question is of jurisdiction and it is a settled principle of law that jurisdiction cannot be conferred by the consent of a party where none in law exists. If, therefore, the Custodian bad no jurisdiction in the matter, the mere fact that the present 14 petitioners did not agitate against the order of the Custodian at that time would make none the difference. The view taken by me finds support from the decision of the Supreme Court in Muhammad Afzal v. Board of Revenue and another (P L D 1967 S C 314).

14. It was submitted before me that since the initial application for declaration of the property as non‑evacuee was made by Ali Iqtidar Shah Dara on behalf of himself and his brother, the orders obtained by him could not enure to the benefit of his nephews, i.e. Iftikhar Mehdi, Ejaz Mehdi, Ali Hussain Shah and Naeem Hussain Shah, the grandsons of Syed Bakht Bedar Shah deceased. The order passed by the Custodian was in respect of the entire property which had been sold to Sohan Singh and not in respect of the rights of the petitioners alone. This submission of learned counsel for the petitioner does, therefore, not cut any ice.

15. The further submission that since they were not parties to the application for declaration of the property as non‑evacuee, no notice need have been issued to them by the Custodian when the latter decided to take up the case sun motu is equally devoid of any force. As already observed, the effect of the order of the custodian was that the entire property, including the interest of the minor was declared to be non‑evacuee property. The minors were, therefore, bound to be affected by a Revision of that order and the Custodian had no option but to have issued notice to them before determining their rights. Since none was issued by him, his order reopening the case so far as it relates to the nephews, would be without any lawful authority.

16. It is not denied that the Custodian of Evacuee Property was not a party to the civil suit filed by the petitioners as reversioners of the vendor which was ultimately decreed in favour of the three sons of Bakht Bedar Shah. The question is whether the decree passed by the civil Court in this suit is a nullity having been allegedly made in violation of sections 8 and 11 of Punjab Act II of 1948. Mr. Fazl‑i‑Mahmood placed reliance on the judgment of the Supreme Court in (Civil Appeal No. 61 of 1963) Custodian of Evacuee Property, West Pakistan v. Mrs. Doreen Barkat Ram and another. In that case, their Lordships observed that‑

"So far as West Punjab was concerned, it has to be noticed that under section 11 of the West Punjab Protection of Evacuee Property Act, 1948 which came into force on the 19th of February 1948 before the compromise decree in this case was passed, there was a similar exclusion of the jurisdiction of the civil Court with regard to such matters and sub section (2) of the said section provides‑

'11. Jurisdiction of civil Court barred in certain matters: (1) . . . . . . . . . (2) No decision of any Court on a claim such as is referred to in subsection (1) given between the 15th of August 1947 and the coming into force of this Act, shall be binding on the Custodian or shall affect the rights or interest of any evacuee in the property in question.'

So far, therefore, as the territories of West Punjab were concerned, the civil Courts did not form and after the 19th of February 1948 possessed any jurisdiction either to entertain or adjudicate upon any claim in any suit, appeal execution application or other proceeding as to whether any property is or is not evacuee property or as to what interest, if an, evacuee has in such property, except in a case where the claim has been referred to the civil Court by the Custodian authorities for the establishment of his or her title. On the 10th of July 1948, therefore, the civil Court had no jurisdiction to pass the Compromise Decree, the effect of which was to transfer certain evacuee properties to a non‑evacuee and to declare a charge over certain other immovable evacuee properties in favour of such a non‑evacuee."

Their Lordships also repelled the contention that subsection (3) of section 41 of Act XII of 1957 protected all and every decree "purported to be passed during the said period by a civil Court." Their Lordships observed that it protected "only such decrees which were competently passed." They proceeded to observe that‑

"On the 10th July 1948, as far as West Punjab was concern ed, the jurisdiction of the civil Courts there had already been excluded with regard to such matters by section 11 of Act‑1948 and, therefore, the civil Courts at Lahore had no jurisdiction at the relevant time to pass any decree on the basis of the compromise and the same could not be approved or accepted by the Custodian under subsection (3) of section 41 of the Act of 1957. The contention that the Custodian had the power even to approve of invalid decrees, is not tenable. The excep tion made by subsection (3) of section 41 is available only in the case of decrees or orders passed by a civil Court or other authority in respect of any evacuee property between the dates mentioned therein only if such a decree or order is made com petently in the lawful exercise of the jurisdiction of that Court or authority. A decree or order passed without jurisdiction is a nullity and it would be wholly unreasonable to hold that the Legislature Intended to give by subsection (3) of section 41 of the Act of 1957 any power to the Custodian to accept or approve of something which did not exist in the eye of law."

17. This decision makes all the difference to the rights of the petitioners in the present case. The West Punjab Protection of Evacuee Property Act, 1948 came into force on the 19th of February 1948. It is for this reason that their Lordships held in Mat. Doreen Barkat Ram's case that the civil Courts in the West Punjab did not possess any jurisdiction in such matters "from and after the 19th of February 1948. " The suit in the case before me was filed on the 30th of October 1947. It was decreed on the 19th of February 1948, i.e. on the day of the West Punjab Protec tion of Evacuee Property Act, 1948 came into force. This decree was, therefore, a nullity.

18. Learned counsel for the respondent vehemently argued that section 41, subsection (3) of Act XXI of 1957 read with section 34 of Ordinance XIV of 1949 being retrospective in operation, the decree of the Senior Civil Judge was a complete nullity. Their Lordships while disposing of Doreen Barkat Ram's case did take these sections and their effect into consideration and it was after that their Lordships came to the conclusion that decrees passed on and after the 19th of February 1948 alone were without any jurisdiction.

19. Section 41(3) very clearly gave to the Custodian the power to accept or approve only any decree passed between the 1st day of March 1947 and the 15th day of October 1949. No doubt it meant a decree which a civil Court had jurisdiction to pass Since in the Punjab that jurisdiction had been taken away on 19th of February 1948, the effect of section 41(3) of the Act of 1947 would be that the Custodian would be in a position to approve only decrees passed between the 1st day of March 1947 and the 19th day of February 1948 because any decree passed after that date was, by virtue of the provisions of section 11 of the Act of 1948, without jurisdiction per se and the Custodian could not even take into consideration a decree which had been passed without jurisdiction.

20. The order passed by the Deputy Custodian of Evacuee Property on 26‑3‑1952, was, it is correctly asserted, not final be cause it had to be confirmed by the Custodian of Evacuee Property. The Custodian of Evacuee Property who alone had the power under the statute to proceed under section 18 of Ordinance XV of 1949, passed an order on 31‑8‑1950 which was published in the Gazette of 15th of September 1950 making an allocation of duties in which it was, inter alia, provided that:‑

"Proceedings under sections 16, 17, 18 and 34(2) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 shall be initially taken before the Deputy Custodian of the District where the whole or any part of the property in dispute is situated, subject to the condition that no order passed by any Deputy Custodian in cases where the valuation of the property involved is more than Rs. 5,000 shall become effective unless it is confirmed by the Custodian"

It was contended that this order of the Deputy Custodian was never confirmed by the Custodian and had been confirmed only by the Additional Custodian of Evacuee Property on 12‑6‑1952 who had no power to do so. Reliance was placed on the fact that while in the aforementioned Notification Additional Custodian had been mentioned in paragraph 4 which dealt with proceedings under sections 2(9), 19 and 36, had not been named in paragraph 1, which is relevant to the case before me. Learned counsel for the Custodian, however, could not deny that on the 18th of January 1952, the same Custodian of Evacuee Property issued another order which runs as follows:-

"In exercise of the powers conferred on me by section 20(2)(r) of the Pakistan (Administration of Evacuee Property) Ordinance 1949 and rule 5 of the Administration of Evacuee Property Rules, 1950, and in continuation of my order dated 31‑8‑1950, regarding allocation of duties between the Deputy Custodians and Officers of the Rehabilitation Deptt. I, S. A. Rehman, Custodian of Evacuee Property, Punjab, Lahore, hereby delegate all my functions and powers under the said Ordinance and Rules in favour of Malik Fateh Khan, Additional Custodian of Evacuee Property, designate, except the powers of Revision under section 36(4) of the Ordinance, with regard to orders passed by the Additional Custodian, and of Review, under section 36(5) of the Ordinance, with regard to the orders passed by the Custodian, from the date he takes over charge of his duties as such."

21. I have before me a certified copy of the order of the Additional Custodian, Evacuee Property dated 12‑6‑1952 confirm ing the order of the Deputy Custodian, of Evacuee Property, Layallpur in this case. This order was signed by Malik Fateh Khan. From the facts given above, it is, therefore, clear that Malik Fateh Khan exercised the powers of the Custodian to confirm the order of the Dy. Custodian as the delegate of the Custodian by virtue of the Notification referred to above and there was no lacuna in this order on that score.

22. The petition was sought to be dismissed on the basis of yet another argument. It was submitted that section 7 of Ordi nance XV of 1949 made it incumbent upon "every person who is in possession; supervision or management of any Evacuee property, or property which he owns or has reason to believe is evacuee property shall, as soon as may be, but not later than such date as may be notified by the Central Government in the official Gazette, intimate to the Custodian, in writing, his willing ness to surrender such property to the Custodian or to any person authorised by the Custodian in this behalf, and shall surrender the same if called upon by the Custodian or any person authorised as aforesaid." Reference was also made to section 8 which requires similar persons to submit detailed accounts in respect of the monies received or benefits derived from such property. It was submitted that since it was not done by the petitioners, the property in dispute has to be treated as concealed evacuee pro perty. Sections 10 and 11 of the Act of 1957 were also referred to as being in the same terms as the aforementioned sections of the Ordinance of 1949. By this argument, the property was sought to be brought within the exception to section 3 of the Act of 1957. The judgment in Qutab Ali's case was referred to and the following observations at page 63 were pressed into service:--

"To all intents and purposes, therefore, the property in question became 'evacuee property' in the hands of the appel lant, in October 1949, when that Ordinance was promulgated. There was no allotment made by a competent authority, of the property in dispute, in favour of the appellant and consequently subsection (3) of section 7 of the Ordinance (which contains an exception to the provisions of subsection (2) could not be invoked by the appellant to nullify the effect of subsection (2). Again, sections 10 and 11 of Act XII of 1957 made similar provision and laid a duty on person in the position of the appellant, to intimate to the Custodian that they held properties of this character, which had not been subject of a confirmation order by the Custodian and that they were willing to surrender them. They had moreover to submit accounts of the income they derived from the properties in their possession. A similar obligation was also incorporated in subsection (1) of section 3 of the Displaced Persons (Land Settlement) Act, 1958. No action was taken by the appellant under these provisions of law within the time allowed therefore and it must consequently be held that he concealed the proper facts from the Custodian and the property in question became 'concealed evacuee property' within the meaning of section 3 of the 1958‑Act. The mere fact that during mutation proceedings, in appeal before the Collector in 1949, a notice had been inserted in 'The Maghribi Pakistan' calling upon the evacuee owners to appear before the Collector, cannot be pressed into service as amounting to the furnishing of relevant information to the Custodian. The protection, if any, available to the appellant under section 3 of the 1957‑Act, therefore, was taken away by this latter provision of the 1958‑Act."

These observations are not attracted to the facts of the case before me. In that case, the matter did not come up before the Custodian. Qutab Ali purchased the land by an oral sale from Bhola Ram on 6‑7‑1947, kept it in his possession without any information to the Custodian till on 3‑6‑1959 he was directed by the Deputy Rehabilitation Commissioner, who was also the Settlement Officer, to obtain a No‑Objection Certificate from the Custodian with regard to the transaction in his favour. It was not so in the case before me. Here, the petitioners presented an application to the Custodian under section 18 of Ordinance XV of 1949 on 24‑10‑1950 and obtained a declaration in their favour. The Custodian and the Rehabilitation Department were thus put in possession of all the facts regarding the property by the petitioners but the former did not choose to treat it as Evacuee Property. It is, therefore, too late in the day to suggest that the property could be dubbed as concealed evacuee property or that the dictum of Qutab Ali's case adversely affected the interests of the petitioners in the property involved in the present case.

23. The application before the Deputy Custodian of Evacuee Property was admittedly filed by Syed Ali Iqtidar Shah Dara on his own behalf as well as his two brothers, Major Riaz Hussain Shah and Syed Mukhtar Shah. It is urged that he did not have any authority on behalf of his two brothers to do so and the orders passed by the Deputy Custodian can, therefore, not enure to their benefit. This objection should have been taken before the Deputy Custodian of Evacuee Property for then Ali Iqtidar Shah Dara would have been in a position either to produce a regular power of attorney on behalf of his two brothers or to know that he was fighting for himself alone. It is too late in the day to take any notice of this objection. Moreover, it cannot be denied that Major Riaz Hussain Shah and Syed Mukhtar Shah have all along accepted the position taken up by their brother Ali Iqtidar Shah Dara and have never denied his authority to have applied on their behalf. In fact, it was for them and them alone to have objected if they so wanted and it is not for the representative of the Custodian to do so today, particularly when the Deputy Custodian and the Custodian never raised any objection on this score when the proceedings were pending before them.

24. I have also indicated above that the order of the Deputy Custodian of Evacuee Property is in respect of the entire property and the transaction that had taken place whereby the sale of the property had been made in favour of Sohan Singh. The order of the Deputy Custodian is, therefore, in respect of the entire transaction and the mere fact that one beneficiary or the other was not a party to the proceedings before the Deputy Custodian, would not make any difference so far as the character of the property is concerned.

25. The dictum of the Supreme Court in Qutab Ali v. Custodian Evacuee Property, Lahore and others (P L D1964 SC 58), may be adverted to at this stage for the purpose of determining the correct meaning of the expression "treated as Evacuee Property." The following observation of their Lordships appears at page 62 of the report:‑

"One suggestion may be that Evacuee properties whose occupiers, supervisors or managers had been recognised by the Custodian and, therefore, the properties in their charge had not been taken over for allotment to refugees, would be covered by the protection. But the approval of the Custodian of the possession by such persons, would be accompanied by a recognition on his part that the property was Evacuee property and in that sense, it may be possible to argue that it had been treated as Evacuee property. The expression "treated as Evacuee property" may, perhaps, be equated with a formal adjudication of its nature by an order of the Custodian or its actual user, by or by the Rehabilitation authorities on the assumption that it was Evacuee property for purposes authorised by the relevant law."

26. As would be clear from the resume of the facts of this case given in the opening part of the judgment, it cannot be said with any justification that the property in dispute was "treated as evacuee property" in the present case. There is no indication that, at any stage, the property was either taken over by the Custodian or by the Rehabilitation authorities on the assumption that it was Evacuee property or that, at any stage, the possession of the property was made over to any refugees in pursuance of any order of allotment passed by the Rehabilitation authorities. It is, consequently, clear that this property was never "treated as Evacuee property" by the relevant day, i.e., the 1st day of January 1957.

27. The answer returned by the Full Bench to the first question as well as the dictum of the Supreme Court in Qutab Ali's case, lead to the irresistible conclusion that the Custodian had no authority, whatsoever, in view of the provisions of section 3 of Act XII of 1957, already referred to above, to treat the property as evacuee property after that date or to deal with it in any manner whatsoever.

28. The nest question is whether there were any proceedings pending immediately before the 1st day of January 1947 for treating the property in question as Evacuee property or not it has already been seen that the Deputy Custodian of Evacuee Property had consequent upon an application of the sons of Bakht Bedar Shah declared the property to be non‑evacuee property on 26‑3‑1952 This order was confirmed on 12‑6‑1952 by the Additional Custodian no action, whatsoever, was pending before the Custodian, or the Rehabilitation authorities in this case up to the 13th of November 1959 when the Custodian of Evacuee Property suo motu issued notice to the sons of Bakht Bedar Shah. Since there was no proceeding pending immediately before the Ist day of January 1957, the exclusion contained in section 3 of Act XII of 1957 in respect of properties regarding which proceedings were pending on the appointed day does not apply to the present case.

29. For the reasons mentioned above, this writ petition is accepted with costs and the impugned orders of the Custodian of Evacuee Property and the Additional Custodian of Evacuee Property are declared to be without lawful authority and of no legal effect.

K. B. A. Petition accepted.

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