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Constitutional Petition No. 533 of 1970, decided on 26th November 1975.

-- S. 2-Evacuee property, declaration as to transfer of ownership --Custodian's approval of power of-attorney -Power of attorney to manage or supervise property on behalf of Indian national never approved or accepted by Custodian-Property continued to remain evacuee property-Power of attorney could not be deemed to have been automatically accepted by mere fact of confirmation of sale being previously accorded by Additional Custodian-Custodian, held, justified in holding that character of property as evacuee did not change by confirmation of sale by Additional Custodian on basis of power of attorney neither produced in Court nor accepted or approved by Custodian.

Abdul Vali Ansari and others v. Custodian of Evacuee Property, Karachi and another P L D 1967 Kar. 130 not fol.

Nazar Ali v. Secretary, Ministry of Rehabilitation P L D 1963 Kar. 575 and Sungreen & Co. v. Qamar Din Muhammad Hashwani and others P L D 1958 S C (Pak.) 148 ref.

-- S. 3(1) read with subsection (2)(b)-Evacuee property, declaration-

Contention that disputed property could not be treated as evacuee property after 1-1-1957 under S. 3(1) - Held, fallacious-Sub section (2)(b) of S. 3 creates an exception to bar created by S. 3(1) Power of attorney of agent to manage property not having been accepted or approved by Custodian, property, held, could still be declared as evacuee property.

Mohsin Tayabally for Petitioner.

Sayeed A. Shaikh for Respondents Nos. 1 and 2.

Sadiq and Ghulamally for Respondent No. 3.

Date of hearing ; 26th November 1975.

The dispute is in respect of a plot of land bearing Survey No. 13, Ward No. W. O. 4, measuring 370 square yards. The plot of land also has some construction thereon. It was purchased by respondent No. 4 through a private sale by Jehalas Virji on 3rd May 1948. On 8th September 1949. the respondent No. 4 executed and delivered a power of attorney in favour of one Qayyum for the management of the property. In the year 1949, the attorney moved an application for the confirmation of sale of the property before the Custodian authorities and the Additional Custodian vide his order dated 15th May 1950, confirmed the sale.

2. The disputed property was occupied by several tenants including the respondent No. 3. An application was moved by the tenants including respondent No. 3 to the Additional Custodian (Judicial) praying that the property be declared as evacuee property. The Additional Custodian (Judicial) vide his order dated 22nd December 1952, rejected this application and declared that the property was a non-evacuee property.

3. On 1st May 1962, the respondent No. 4 gifted the property to the petitioner. The respondent No. 3 again moved an application on 7th January 1963, purporting to be an application under section 2 of the Pakistan (Administration of Evacuee Property) Act, 1957 (hereinafter referred to as "Act XII of 1957"). They requested the Custodian to declare the property as evacuee property. The Custodian after hearing the parties declared the property to be evacuee property, on 15th June 1970. This petition is directed against the above-said order of the Custodian.

4. The main contention of the learned counsel for the petitioner is that once the property had been declared as non-evacuee by the Additional Custodian on 15th May 1950, and the same was confirmed the Custodian could not hold that since the respondent No. 4 was a permanent resident of India and ordinary power of attorney given by him to Kayoom Ali for the management of the property having not been specifically approved by the Custodian authorities the status of the property remained evacuee. He has relied upon Abdul Vali Ansari and others v. Custodian of Evacuee Property, Karachi and another (P L D 1967 Kar. 130) and argued that the expression "accepted" or approved' used in section 2(2)(c)(ii) of Act XII of 1957 does not envisage that there should be an express order to the effect that the power of attorney was confirmed by the Custodian. According to him the approval can be evidenced by any act of the Custodian and in this case the Additional Custodian had accepted the power of attorney when be declared the property as non-evacuee on 15th May 1950. In this case it has been held that;

The requirement prescribed by this provision of law is that the authority of the agent to manage the property should either be accepted or approved by the Custodian. It would be noted that two words are used together with regard to the agent's authority. These words are "accepted" and "approved". "To approve" means "to confirm authoritatively". If the Legislature had merely used word "approved", one could not have hesitation to agree with Mr. Lari that express confirmation of the agent's authority to manage the property was necessary both under the Ordinance as well as under the Act. But this word appears with the other word "accepted", and it would not be unreasonable to say that both the words were not intended to cover the same meaning. The word "accept" has been defined in Shorter Oxford English Dictionary to mean "to take or receive with consenting mind ; to receive with favour." "To receive with favour" is something different from "to confirm authoritatively" which is the meaning of the word "approve." The use of the two words "approve" and "accept" creates the impression that it is not necessary that the agent should be expressly and authori tatively confirm in his authority to manage the property."

In this case the learned Custodian has held that Akbar Ali was an Indian national and was a permanent resident there. He was unable to come and manage the property. He appointed Kayoom Ali as his attorney in 1949 to manage and supervise his property but this power of attorney was never got approved by the Custodian. There is no evidence on record to show that Kayoom Ali was appointed an agent for the management and supervision of the property by Akbar Ali. In this case, on the basis of the enquiry held by him he has reached the conclusion that in spite of the fact that the property was confirmed as non-evacuee property by the Additional Custodian on 15th May 1950, its status remained that of an evacuee property because there is no evidence that Akbar Ali who is admittedly an Indian national ever had any concern with the property in question. It is strange to note that even the power of attorney was not available on record to show that the same was executed for the specific purpose of getting the property confirmed by the Additional Custodian, or also for other purposes such as management and supervision of the property. No other evidence to show that Akbar Ali retained any interest in the property when it was being originally managed by his attorney has been produced.

The learned counsel for the first respondent (Custodian, Evacuee Property. Karachi) has argued that the fact that the property was confirmed would not make any difference so far as its evacuee character is concerned. He has placed reliance on Nazar Ali v. Secretary, Ministry of Rehabilitation (P L D 1963 Kar. 57). In this case it was held as under;-

"The third ground is equally hollow. It is wrong to contend that by the mere fact that the sale was confirmed one can conclude that the authority of the attorney who brought about transaction was indirectly approved. On the contrary, it appears that the petitioner never asked for an approval of the power of attorney with the result that no attention was paid to it. The omission cannot be used by the petitioner as a point of merit in his case."

In the above case an appeal was filed to the Supreme Court and the Supreme Court dismissed the appeal. It was held by the Supreme Court that since the authority to manage the evacuee property after 20th February 1957, was not approved by the Custodian the property continued to be the evacuee property. Nazar Ali's case applies to the facts of this case in all the fours because in this case also though the confirmation of sale of the property was obtained by the respondent No. 4 (attorney) but the power of attorney to manage the property was never got approved by the Custodian authorities. The learned counsel has further placed reliance on Sungreen & Co. v. Qamar Din Muhammad Hashwani and others (P L D 1958 S C (Pak.) 148). In this case it was held as under;

"Appellant's contentions are that the order in question should be set aside on two grounds, namely, that the price paid is inadequate and that in spite of the orders of confirmation the property in question would remain evacuee property because the vendee-respondents are residing in India and their property is being occupied, supervised or managed by their attorney Qamar Din whose authority to do so has not been accepted or approved by the Custodian as required by section 2 (c)(ii). We may state here that it was admitted before us that the authority of Qamardin to occupy, supervise or manage the property in question has not been accepted or approved by the Custodian as yet. The question opposed by the contention on this ground was therefore one of substantial, not to say of primary importance. If it may be held that the property was evacuee property because a person who qualified for the description of "evacuee" had the interest in it then it was immaterial whether the sale on 3rd November 1974, was confirmed or not. The confirmation by itself could not prevent from being regarded as evacuee property."

The contention of the learned counsel, therefore, that the confirmation had been accorded by the Additional Custodian as far back as 15th September 1950, the power of attorney was therefore accepted automatically and the property could not be treated as evacuee property has no force, because in spite of the fact that the property was confirmed on 15th May 1950, the power of attorney to manage or supervise the property on behalf of Akbar Ali who is admittedly an Indian national was never approved or accepted by any authority in the Custodian Department. The property therefore remained evacuee property and the learned Custodian was justified in holding that its character as evacuee property did not change by virtue of the fact that on the basis of the power of attorney issued by the re3pon dent No. 4 to his Attorney an application had been moved for confirmation of the sale and the sale was actually confirmed on 15th May 1950.

The learned counsel for the petitioner has next argued that due to mischief of section 3(1) of Act XII of 1957 the disputed property could not be treated as evacuee property after 1st January 1957. This argument is equally fallacious because subsection (2)(b) of section 3 creates an exception to the bar created by section 3(1). This subsection lays down as under :--

"Subsection (2).-Nothing in subsection (1) shall apply . . . . .

(b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the 20th day of November 1974, has not been approved or accepted by the Custodian."

Under section 3(1) of the Act XII of 1957 the properties which were managed by an agent and the power of attorney of the agent to manage the property had not been accepted or approved by the Custodian have been excluded from the operation of section 3(i) of Act XII, 1957. The instant case falls within the purview of this subsection and therefore it cannot be argued that the order of the Custodian was not maintainable under section 3 of Act XII, 1957.

6. The learned counsel for the respondent No. 3 has supported the contention of the petitioner. Obviously, it seems that the petitioner and respondent No. 3's interests do not clash and therefore respondent No. 3 did not consider it necessary to oppose the petitioner's contention.

7. As a result of the above discussion, I am of the view that the petition has no substance and the same is therefore dismissed but with no order as to costs.

S. A. H Petition dismissed.

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