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Writ Petition No. 4 of 1954, decided on 24^th September, 1954.

Custodian‑Court‑Proceedings in inquiry judicial‑Evi dence Act, application of‑Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), S. 23‑Custodian's order based on no evidence‑Quashed‑S. 23, Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) empowers the Custodian to examine persons on oath.

The Evidence Act by section 1 provides that it applies to all judicial proceedings in or before any Court. The definition of Court in section 3 is that unless a contrary intention appears from the context, Court includes all judges and Magistrates and all persons, except Arbitrators, legally autho rised to take evidence.

The proceedings before a Custodian when he is conducting an inquiry under the Ordinance, as opposed to an administra tion matter, are judicial.

Where documents produced were not proved in accordance with section 60, Evidence Act,

Held, that the Deputy Custodian's order was passed without any evidence.

The order was quashed.

Dingomal N., for Petitioner.

Nasir Shahmir, for Respondents.

[This was a writ petition to quash the order of the Deputy Custodian, Sukkur, that certain buildings and the confection ery known as M. B. Mahngaram Factory installed in them, including machinery etc. was evacuee property to the extent of 0‑15‑0 share, belonging to an evacuee Hassanand. The petitioner later abandoned his claim in regard to a parcel of the buildings. After setting out fully the course of the litigation, between the petitioner and the evacuee, before the Deputy, Assistant and Additional Custodians and the Custodian, the judgment proceeded:]

‑We are therefore left with the order of the Deputy Custodian as the only order relating to the confectionery business, and Mr. Dingomal contends that this order has been passed without any evidence. We have summarised the judgment of the Deputy Custodian, and it will be seen that evidence on the part of Hassanand consisted of letters written by Hassanand, letters of the Income‑tax Officer and of the City Survey Officer. No proof of these letters was called. The facts stated in these letters were facts which were to be proved by oral evidence, Thus the provisions of section 60 of the Evidence Act were contravened.

The Evidence Act by section 1 provides that it applies to all judicial proceedings in or before any Court. The definition of Court in section 3 is that unless a contrary intention appears from the context, Court includes all judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence.

It is common ground that the Deputy Custodian was con ducting an inquiry. Mr. Nasir argues that these proceedings were only quasi‑judicial. We do not think that these proceedings were merely quasi‑judicial proceedings. Section 23 states that when holding an inquiry, the Custodian shall have the same powers as are vested in a Court under the Code of Civil Procedure when trying a suit in respect of enforcing the attendance of any person and examining him on oath or affirm ation, compelling the discovery and production of documents, articles and things, issuing a commission for the examination of witnesses, and any prescribed matter. Moreover for the purposes of section 196 and within the meaning of sections 193' and 228, every proceeding shall be deemed to be a judicial proceeding. Furthermore, in rule 11 framed under section 47 (1) is stated that the procedure laid down in the Code of Civil Procedure shall, as far as possible and subject to such modifica tion as the Custodian may direct, to followed. We have, therefore, no doubt that the proceedings before a Custodian when he is conducting an inquiry under the Act, as opposed to an administration matter, are judicial. It may be also pointed that the Custodian's Department itself recognizes the difference between the judicial functions of the Custodian and its administrative functions since certain officials are designated as judicial.

Nowhere in the Deputy Custodian's judgment is there stated to be any admission on the part of Bhagwandas or his witnesses that the alleged transaction related to not only the building, but to the confectionary business as well. The sale deed of 1944 mentioned no machinery except "an electric meter and electricity which were closed." The Kabuliayat of 1945 mention meter and electric fittings. The receipt states "and machinerywala". The application under section 18 was headed "and Machinery" and that the word "machinery" was mentioned in the first paragraph. That is all. We can find therefore nothing which can be construed as an admission that the contents of the buildings ever belonged at all to Hassanand.

We think, therefore, that the Deputy Custodian's order declaring the confectionery factory evacuee property, was passed without any evidence, and we consider that such an order was contrary to the principles of natural justice.

The order ordering possession to be taken of not only Suit Nos. 784 1‑A and 1‑B, but' also possession of the machinery in those buildings which was passed, being founded upon the judicial order of the Deputy Custodian, is unsup ported in so far as it relates to the machinery (except the meter and electric fittings) and other movables constituting the confectionary factory.

As regards building 784 2‑A and 2‑B, Mr. Nasir was uncertain whether possession of buildings had been taken in fact or not, and conceded that if possession had been taken, it had been wrongly taken.

The order, therefore, will be that the order of the Deputy Custodian E. P. Sukkur in application No. 5/51, dated 28^th August 1952 icy so far as it states that the 0‑15‑pannas share in the confectionery machinery installed therein belongs to res pondent Hassan and is evacuee property, is quashed. The possession of the building 784 2‑A and 2‑B and the machinery therein, if taken, is illegal.

A. H. Order quashed.

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