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Civil Appeal Nos. 17 and 18 of 1957, decided on 31st January 1958.
(On appeal from the order dated 5th November 1956 of the High Court of West Pakistan Karachi Bench in Writ Petition No. 5 of 1956.)
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Art. 160‑Special leave to appeal to Supreme Court‑Granted to consider whether Custodian has no power to admit additional evidence in revision proceedings pending before him under S. 36 (4), Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949).
S. 36 (4)‑Custodian may take further evidence in case which has come before him in revision either at instance of a party or on his own initiative.
Held, that while revision is not ordinarily a re‑opening of the whole matter, that view, is not appropriate to the interpreta tion of a statute like the Pakistan (Administration of Evacuee Property). Ordinance. (XV of 1949). The dictum flows from considerations relevant to provisions contained in the Civil Procedure Code which apply mainly to litigation between private parties. Such litigation is governed by precise use of procedure, in which the parties have a vested right, for the simple reason that by the failure to exercise the rights conferred upon them by these procedural provisions they may be prejudiced in regard to their claims.
The aim and purpose of the Evacuee Property Ordinance is wholly different. It is clear that the primary duty of the Custodian of Evacuee Property is to place himself in possession of all evacuee property with the object that it should not be used in an unauthorised manner by un-entitled persons, but that it should be applied by due process of law to the relief of distress among refugees and the rehabilitation of economic conditions in the country at large. For the due discharge of these functions it is essential that the Custodian should have the widest power that may be necessary for the ascertainment of what is and what is not evacuee property. It is unnecessary to emphasize the difficulties which by the nature of the circumstances, or by the art and guile of those who are interested to retain evacuee property for their own illegal profit, might lie in the way of a Custodian in discharging his functions. It might require a series of proceedings before the truth might at last stand revealed. It would tie the bands of a Custodian unjustifiably, and detrimentally to the discharge of his functions if it were to be held as a matter of law that his powers of revision under section 36 of the Ordinance do not extend to the taking of such further evidence as he may consider necessary in the particular circumstances of a case which, either at the instance of a party, or upon his own initiative, has come before him in revision.
Sahibrai's case P L D 1957 S C (Pak.) 63 ref.
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--- S. 2 (2) (c) (ii)‑Whether the same person acting as agent and lessee is a suitable person to be approved as an agent (Quarae).
A. Aziz, Senior Advocate Supreme Court (M. A. Pesh Imam, Advocate Supreme Court with him) instructed by M. Siddiq, Attorney for Appellants.
Manzur Qadir, Senior Advocate Supreme Court (A. S. Farooq, Advocate Supreme Court with him) instructed by M. A. Rehman, Attorney for Respondents.
A. K. Brohi, Senior Advocate Supreme Court (M. H. Ahsan, Advocate Supreme Court with him) instructed by S. A. Majid, Attorney for Appellant.
Manzur Qadir, Senior Advocate Supreme Court (A. S. Farooq, Advocate Supreme Court with him) instructed by M. A. Rehman, Attorney for Respondents.
Dates of hearing : 27th and 28th January 1958.
.---‑These appeals are brought before the Court by special leave granted to the two appellants, Sungreen & Co. Ltd., and the Custodian of Evacuee Property at Karachi respectively. The appeals are directed against an order of the Division Bench of the High Court of West Pakistan granting a writ of certiorari in respect of an order made by the Custodian of Evacuee Property at Karachi on the 19th November 1955. This order purported to be made under section 36 (4) of the Administration of Evacuee Property Ordinance No. XV of 1949, in relation to an appellate order of the Additional Custodian (Judicial) dated the 18th February 1953, dismissing an appeal brought by Messrs. Sungreen & Co. Ltd., against an order of the Deputy Custodian (Judicial) of the 20th September 1952, confirming the sale of certain evacuee property in favour of three persons namely Nomanbhai, Zenul Nomanbhai and Dawood Nomanbhai. The Custodian by his order set aside the con firmation of the sale. In the High Court the learned Judges, quashed the Custodian's order.
The facts necessary for proper understanding of the question arising in this case are as follows. A piece of land measuring 1866 square yards and situated on Mcleod Road Karachi, belonging to certain Hindus who, intending as they did to migrate from Pakistan, (an intention which they subsequently carried out) conveyed the said property by a deed dated the 3rd November 1947, duly registered in Karachi to Nomanbhai, Zenul Nomanbhai and Dawood Nomanbhai for a sum of Rs. 30,000. Apart from the visit paid to Karachi for the purposes of this deed it seems that the vendees were, at all material times, resident in Bombay, which since the Partition, is a part of India. On the 11th May 1948, by deed executed in Bombay, Nomanbhai and Zenul Nomanbhai appointed Qamardin Muhammad Hashwani a resident of Karachi to their attorney in relation to the land purchased by them in Karachi, for the management of the said land generally. By this time it appears that Dawood Nomanbhai was dead On the 10th May 1948 also at Bombay a deed was executed between the aforesaid vendees and the said Qamardin whereby the latter was authorised to build a three‑storeyed building upon the land in question, which the vendees undertook upon its completion to lease to Qamardin for a period of ten years at a monthly rent of Rs. 400. On the 30th November 1948, a lease deed for a period of ten years at a rental of Rs. 400 p.m. was dull executed by Nomanbhai and Zenul Nomanbhai in favour of Qamardin. One condition of this lease was that upon expiry its period the "entire construction on the ground floor shall hr the absolute property of the Lessors and the Lessee will not claim any compensation therefore from the Lessors" then on the 15th March 1949, Qamardin executed a lease of a built‑up portion of 906 square yards in favour of Sungreen & Co at a rental of Rs. 975 p.m. for a period of 10 years.
On the 14th October 1949, Qamardin applied to the proper authority for confirmation of the sale in favour of Nomanbhai and the other two vendees. This application was dismissed for default on the 13th December 1951: Many months later an application for restoration was made, which was granted on the 11th August 1952. An order confirming the sale was made the 20th September 1952, after examination on oath of Qamardin regarding the passing of the consideration, the reasonableness of the price, and the bona fide nature of the transaction. The Deputy Custodian declared that he was "convinced that the transfer in question was bona fide and for adequate consideration and that the same has caused no loss to Pakistan Revenues'". He confirmed the transaction on certain conditions, which indicate clearly that there had been a period during which the property was in the possession of the Custodian who had spent money thereon, and had also received rent from occupants. Sungreen & Co. appealed against this order to the Additional Custodian (Judicial). Prima facie they did not stand to gain as lessees from denying the title of their lessors, and it would seem that this action was the result of differences arising out of the tenancy. Among the grounds, there are allegations of fraud and collusion in regard to the sale deed and the authority of Qamardin to file the petition, but certain grounds appear to which sufficient attention has not been paid at any stage of the proceedings, and which are of Fundamental importance to the determination of the questions at issue in the present case. It was stated in the grounds of appeal that the vendees Nomanbhai etc. were Bharati nationals, and according to law they ‑were evacuees, that the sale of evacuee property by one Bharati national to another Bharati national was repugnant to the scheme of the evacuee law in Pakistan, and finally that the property was still evacuee property and vested in the Custodian of Evacuee Property. These were questions of the highest relevancy in the matter, for in the application which was decided by the Deputy Custodian (Judicial), the prayer was expressed in the following words :‑
"It is therefore prayed that the said property be declared as non‑evacuee or in the alternative the applicants pray that the sale deed be confirmed in favour of the applicants under section 12 of the Ordinance No. XVIII of 1948".
The latter Ordinance was replaced on the 15th October 1949, by the Pakistan (Administration of Evacuee Property) Ordinance, 1949 of which section 16, related to restrictions on transfers by evacuees and rendered confirmation by the Custodian a necessary condition of the passing of any interest by any such transfer of evacuee property. As was described in the section it should be mentioned that in section 48 of the latter Ordinance, the previous Ordinance of 1948 was repealed, but all proceedings and actions were ordered to be continued and be deemed to have been done under the new Ordinance. Therefore, it is appropriate to consider the questions arising in this case in relation to the relevant provisions of the Ordinance of 1948.
Section 16 of the new Ordinance provided that without confirmation by the Custodian, no conveyance made on or after the 1st March 1947, by or on behalf of an evacuee, should be effective to confer any right in the property to be conveyed unless it was confirmed by the Custodian. A time limit for the making of such an application was to be prescribed and in dealing with the application the Custodian was required to hold a summary enquiry in the prescribed manner. If a con veyance was of a nature prohibited by law, or if a certificate from the Income‑tax authorities that there was no objection to such a conveyance did not support it, the Custodian was enjoined to reject the application. He also was, empowered to reject the application if in his opinion, the transaction had not t into in good faith or for adequate consideration, if there was good reason why it should not be confirmed. In the absence of any such bar the Custodian was empowered to confirm the conveyance with or without such conditions as he "night thin", to impose. The effect of an order of confirmation is specified in clause (3) of section 2 of the Ordinance, which obtains a full definition of the expression "evacuee property". The relevant portion of this clause reads as follows:-
"(a) evacuee property' means any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity), and includes‑‑
(b) Property of as evacuee obtained by transfer on or after the first day of March 1947, until the transfer is confirmed by the Custodian;"
The definition clearly does not have the effect of rendering any property of an evacuee, in relation to which a transfer has been confirmed by the Custodian, non‑evacuee property. As was alleged by Sungreen & Co. in their appeal to the Additional Custodian. (Judicial), the transferee might also be an evacuee within the meaning of the latter expression, and in that case the effect of such a person having an interest in the property would render it evacuee property, despite the confirmation.
The definition of the expression "evacuee" is contained in clause (2) of section 2 of the Ordinance of which the following portion is relevant :‑
" evacuee' means any person‑.
(c) who is resident in any place in the territories now comprising India or in any area occupied by India and‑
(i) is unable to occupy, supervise or manage in person iii property in Pakistan ; or
(ii) whose property in Pakistan . . . is being occupied, supervised or managed by a person (whether duly empowered in this behalf by him or otherwise) whose authority or right so, to do on or after the aforesaid date has not been accepted or approved by the Custodian" ;
By "the aforesaid date" is meant the 1st March 1947. The relevancy of this definition will appear clearly from the following passage which is taken from the appellate order of the Additional Custodian (Judicial) upon the appeal of Sungreen & Co. The passage reads as follows :‑
"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 order of con firmation 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 Qamardin, whose authority to do so has not been accepted or approved by the Custodian required by section 2 (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 yet. The question posed by the contention on this ground was therefore one of substantial, not to say, of primary importance. If it were held that the property was evacuee property because a person who qualified for the description of "evacuee" had an interest in it, then it was immaterial whether the sale of the 3rd November 1947, was confirmed or not. The confirmation by itself could not prevent the property from being regarded as evacuee property. The Additional Custodian (Judicial) dealt with the question in this way. He was unable to find anything in the Ordinance which was a bar to the con firmation of the conveyance of evacuee property by one evacuee to another. He thought that the question of the legal effect of the confirmation was "altogether another matter", which "might have to be considered later on". On the point of adequacy of consideration, which was the first contention raised before him, he was content to refer to certain proof that the Hindu vendors had themselves bought the property on the 17th October 1942 for Rs. 26,000 and he took into consideration also "the fact that there was mass migration of non‑Muslims in 1947 and 1948". Accordingly he dismissed the appeal.
Sungreen & Company then took the matter in revision before the Custodian and again in their grounds they mentioned the same contentions regarding the nature of the property which they had raised in their grounds of appeal to the Additional Custodian (Judicial) and which have already been reproduced above. In particular, they contended that the property was still evacuee property and it was the duty of the Additional Custodian (Judicial) to have declared it to be evacuee property. They went further and said that the Additional Custodian (Judicial) was in error in not giving a decision on this point, which affected the status of Messrs. Sungreen & Co. in respect of the property. (It was stated before us that the proprietors of this Company are themselves refugees and that the Custodian is prepared to allot it to them). These contentions are placed in sharp relief by the circumstance already mentioned namely that the conditions attached to the order by the Deputy Custodian (Judicial) indicate that the order which he was making was to have the effect of taking possession out of the hands of the Custodian and placing it in the hands of Qamardin. If in law the property was still evacuee property such an order would clearly be erroneous.
The Custodian in his order of the 19th November 1955 dealt with a number of points. He considered that the restoration of the application for confirmation was irregular, and the confir mation order of the Deputy Custodian should be set aside on that ground alone. He found that only two of the three vendees had executed the power of attorney in favour of Qamardin, and that the absence of the third vendee Dawood Nomanbhai vitiated the authority of Qamardin in relation to the application for confirmation. He considered that despite certain observations made by the Additional Custodian (Judicial) in his appellate order, Sungreen & Co. were an "aggrieved party" and therefore competent to appeal. In addition to the two other matters on which he found that the application for confirmation should fail, he also found that the consideration for the sale at the rate of Rs. 16 per square yard was "no price at all" and was "therefore absolutely negligible". Referring to section 16 aforesaid, he declared that the application for confirmation "has to be rejected if the consideration is not adequate". He found on the basis of three other conveyances produced before him in respect of other property lying in the vicinity of the property in the case, in which the prices were Rs. 61, Rs. 54 and Rs. 115 per square yard respectively, that Rs. 16 per square yard for the land in question was ridiculously low. He took into consideration that before the sale, the rent derived from the land was shown to be only R's. 109 per month, and set against that the facts that the lease to Qamardin on the 13th November 1948, was for Rs. 400 per month and that the sub‑lease was for Rs. 975 per month. On these grounds he accepted the petition and set aside the order confirming the sale.
The writ petition in the High Court was moved by Nomanbhai, Zenul Nomanbhai and Qamardin and the findings which went against the petitioners were called in question. In respect of the question of adequacy of price, it was urged that the three conveyances mentioned above were wrongly received in evidence during the hearing of the revision petition, and further that the conclusion of the Custodian was vitiated by failure to regard the evidence already on record, the most important of which was the proof that the same land had been acquired by the Hindu vendors in 1942 for Rs. 4,000 less than the price which the vendees had paid to them. It was further said that the prices paid in the other conveyances should have been evaluated in relation to the factors affecting each of the properties conveyed, "which could only be done at the proper stage and in accordance with the established procedure". Reference was made to a contention raised before the Custodian that land of which vacant possession can be delivered always sells higher than other land. It was also stated that a reputed firm of architects in Karachi had estimated the price of the land in November 1947, at Rs. 30,000. Emphasis was laid upon the rent derived from the land before the sale being only Rs. 109 and it was said that the subsequent increases were due to an expensive building having been constructed on the land. It was added that half of the land was still in the unauthorised possession of refuges and the vendees had been prevented thereby from taking possession of it.
The learned Judges of the High Court found that the Custodian was in error in holding that the Deputy Custodian had no power to restore the confirmation application after it had been dismissed in default, and further that no strict limitation applied to the making of the application for restoration. They thought that the application for confirmation by Qamardin who had been appointed attorney by only two of the three vendees was competent in view of the fact that section 16 provides that such an application might be made by any party thereto, and by any person lawfully authorised by such party. They did not disagree with the finding of the Custodian that Sungreen & Co. was an "aggrieved party". On the point of adequacy of the consideration, the learned Judges have said nothing as to the correctness or otherwise of the estimate reached by the Custodian that the price of Rs. 16 per square yard was totally inadequate. Instead, they dealt only with the argument raised before them that the Custodian had acted in excess of his powers in receiving evidence while dealing with the case on the revision side. It was contended before them that the Custodian, in revision was limited to calling for the record for the purpose of satisfying himself as to the legality or propriety of any order passed, and to make such order as he himself thinks fit. After referring to the rules they expressed their opinion as below :‑
"The inquiry is, thus to be formal and inter parties and evidence is to be led there. It appears to us to be incon sistent with the Ordinance and the rules that further inquiry should be made in revision".
By the "inquiry" first‑mentioned the learned Judges meant the summary inquiry directed to be held by' the Custodian under section 16. After referring to certain decisions, the learned Judges expressed the opinion that "a fresh inquiry is outside the scope of revision". Adding that the Custodian's order did not show that he was guided in allowing fresh evidence by the considerations mentioned in Order XLI, rule 27, Civil P. C., the learned Judges thought that the conclusion based upon additional evidence was "an error apparent on the face of the record". Leave to appeal was granted upon single ground viz.' to examine the correctness of the conclusion of the learned Judges regarding the power of the Custodian to admit additional evidence.
It has been pressed before us by Mr. Brohi on behalf of the Custodian that in dealing with an application for revision, the Custodian is required to give notice to the general public, where the matter is one of confirming a transfer. He contends that the intention of this provision is that any member of the public should be entitled to appear and assist the Custodian in deter mining the essential nature of the transaction, if necessary by production of evidence. He has referred to rules 11, 12 and 17 of the Administration of Evacuee Property Rules under which such public notice appears to be requisite. It seems to us however that the mere requirement of a public notice is not by itself sufficient for holding that any person who chooses to appear before the Custodian at the hearing of the revision petition gains thereby a vested right to lead evidence in the case. The stage of evidence is before the authority which dealt with the case as a matter of first instance. Revision is not ordinarily a reopening of the whole matter. However, we are clearly of the opinion that the view taken by the learned Judges of the High Court is (we say so with due respect) not appropriate to the interpretation of a statute such as the Ordinance here in question. The learned Judges have been guided in their view by considerations relevant to provisions contained in the Civil P. C. which apply mainly to litigation between private parties. Such litigation is governed by precise use of procedure, in which the parties have a vested right, for the simple reason that by the failure to exercise the rights conferred upon them by these procedural provisions they may be prejudiced in regard to their claims. The aim and purpose of the Evacuee Property Ordinance is wholly) different. It is clear that the primary duty of the Custodian of the Property is to place himself in possession of all evacuee Property with the object that it should not be used in an unauthorised manner by unentitled persons, but that it should he appeal by due process of law to the relief of distress among refugee and the rehabilitation of economic conditions in the country at large. For the due discharge of these functions it is essential that the Custodian should have the widest power that may be necessary for the ascertainment of what is and what is not evacuee property. It is unnecessary to emphasise the difficulties which by the nature of the circumstances, or by the art and guile of those who are interested to retain evacuee property for their own illegal profit, might lie in the way of a Custodian in discharging his functions. It might require a series of proceedings before the truth might at last stand revealed. Therefore, we consider that it would tie the hands of a Custodian unjustifiably, and detrimentally to the discharge of his functions if it were to be held as a matter of law that his powers of revision under section 36 of the Ordinance do not extend to the taking of such further evidence as he may consider necessary in the particular circumstances of a case which, either at the instance of a party, or upon his own initiative, has come before him in revision. (See in this con nection, the observations in the case of Sahibrai (PLD 1957 S C (Pak ) 63 ).
On this ground alone, it is clear that the order made by the learned Judges cannot be sustained. It is pressed before us however that the Custodian has failed to examine the additional evidence in the manner which was necessary for the attainment of a proper evaluation of that evidence in relation to the correct market value of the property in question at the relevant time. The record before us is not sufficient for determining whether in fact a sufficient opportunity was allowed to the vendees to challenge the effect of the documents which were laid before the Custodian in evidence for the first time. Nor does the order of the Custodian furnish any assistance in coming to this conclusion. His decision on the point appears to have been reached after somewhat superficial examination of figures only, and it must also be mentioned that in taking into account the two increases in the lease money, he has completely overlooked the fact that the premises demised by the subsequent leases included buildings. These defects appear to us to justify the return of the case to the Custodian for further consideration.
It is also clear from what we have said above that if is absolutely necessary for the making of an appropriate order in this case that the Custodian should also enquire into, and decide the question, whether the property is and has been at all material times evacuee property by virtue of the allegations that the new owners are themselves resident in India, and their agent Qamardin is a person whose appointment has not been approved as required by law. In relation to this question, the Custodian will necessarily have to consider whether after the execution of the lease deed in his favour, Qamardin can be said to be any longer a mere agent of the owners since he has developed an independent interest in the property. This question has another aspect also, namely whether a person who occupies two positions in respect of the property in question, one as agent and the other as a lessee from the owner in his own right, is a suitable person to be approved as an agent. Finally, a further question arises whether, in case the property be held to be evacuee property, the lease in favour of Qamardin is valid without the confirmation of the Custodian under section 16.
We accordingly allow these appeals with costs and hereby return the case to the High Court with the direction that they shall remit the case to the Custodian, who should be directed to make further inquiry as to him may seem fit, after furnishing a proper opportunity to the vendees, and to arrive at a considered conclusion regarding the true market value of the land in question on the material dates, and will also enquire into the other questions which have been formulated in the immediately preceding paragraph, and thereafter to decide the case in accordance with law.
A. H. Appeal allowed.
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