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Writ Petition No. 706 of 1957, decided on 5th January 1959.
S. 16 read with Ss. 12 (3), 15 and 17‑Confirmation of transfer necessary under S. 16 even if Custodian has approved transfer for purpose of registration.
The scheme of sections 15, 16 and 17 is that under section 15 an approval of the Custodian for transfer of property is required and under section 17 the transfer is to be effected. By comply ing with the provisions contained in sections 15 and 17, all that is achieved is a mere transfer of the property and any right or interest in that property would be acquired only after compliance under section 16 of the Ordinance is made.
There is no bar on the registering officer registering the sale deed, but such a transfer of property will by no means confer a title on the person in whose favour the property has been transferred. Compliance with section 16 is mandatory and therefore any property which has not been confirmed under section 16 will not be deemed to be a property of which the transferee could be said to be the owner.
S. 36‑Appeal may be preferred by one not a party to proceedings provided he is an "aggrieved person"‑Appeal by a trespasser who had raised structures on evacuee land held to be competent.
Registration of transfer of a plot of land was sanctioned by the Deputy Custodian, and subsequently, the transfer was confirmed under section 16, Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949). A third person who was in unauthorised occupation of the plot and had raised a construction on it, appealed against the order of confirmation.
Held, that the unauthorised occupant, having raised a construction on the plot, was an "aggrieved person" and so his appeal was competent even though he was not a party to earlier proceedings.
Ordinance (XV of 1949) being special legislation, the meaning to be attached to the words "aggrieved person", is of a wider significance than what may have been attributed to them elsewhere.
Punjab Province v. L. Sitaram and others P L D 1956 F C 157 ref.
Messrs Thakar Dass Pyara Lal v. Custodian, Evacuee Property East Punjab, Jullunder and another A I R 1950 East Pb. 175 and Ram Das v. W. G. Rogers A I R 1931 Lah. 585 distinguished.
Sharifuddin for Petitioner.
S. Khawaja and A. A. Fazeel for Respondents.
Dates of hearing : 4th and 5th December 1958.
‑The petitioner has filed this writ petition with a prayer that a writ in the nature of certiorari and/or maudamus may be issued quashing the orders dated 7th November 1951, 1st June 1953 and 15th May 1956, passed by respondents 2 and 3. A prayer has also been made that respondents 2 to 5 may be directed to restore possession of the plot in question to the petitioner.
The facts giving rise to this petition briefly are that the petitioner agreed to purchase at Karad (Bharat) on 1st April 1948, a plot bearing Survey No. 527 (Old No. I. 13/5) measuring 1757 square yards situated in the Garden East Quarters at Karachi from one Krishnaji Vithoba Darweshi for a total sum of Rs. 10,000. The petitioner paid to the seller Rs. 8,000 on the same day being the part payment towards the purchase‑money. The petitioner at the time of this transaction was carrying on business at Karad and was residing there with his family. It is alleged that the petitioner was endeavouring to transfer his assets to Pakistan with a view to eventually settle here and that the transaction in question was one of the series of transactions by which the peti tioner intended to transfer his assets to Pakistan. The petitioner, it is further alleged, went away to Europe and after he returned he filed an application on 15th May 1951, before the Deputy Custodian (Judicial), Evacuee Property, Karachi for permission to register the sale‑deed in respect of the said plot. The Deputy Custodian (Judicial), Evacuee Property, Karachi, granted the necessary certificate and authorised the Sub‑Registrar to register the conveyance deed by his order dated 17th May 1951 (Filed with the petition as annexure B). The balance of consideration of Rs. 2,000 was deposited on the same day in the office of the Deputy Custodian. The Deputy Custodian (Judicial), however, while granting the certificate said that the vendee should have the transaction confirmed under section 16 of the Ordinance XV of 1949. Consequently the conveyance deed was executed an6 registered before the Sub‑Registrar on 28th May 1951.
The petitioner thereafter filed an application on 9th June 1951 for confirmation of sale before the Deputy Custodian (Judicial) Evecuee Property, Karachi, who by his order dated 23rd June 1951, confirmed the sale with retrospective effect. A copy of the order confirming the sale has been filed with the petition as annexure "C".
Respondent No. 4, who had unauthorisedly occupied the said plot and had raised construction on it and was not the party to the earlier proceeding filed by the petitioner filed an appeal under section 36 of the Ordinance No. XV of 1949. The appeal was allowed by the Additional Custodian (Judicial), Evacuee Property, Karachi, by his order dated 7th November 1951. The confirmation of the sale of the plot was by this order set aside. A copy of the order has been filed with the petition as annexure "D". The petitioner being aggrieved with this order filed a revision application before the Custodian of Evacuee Property, Karachi, who by his order dated 1st June 1953, rejected the revision application. The order rejecting the revision applica tion has been filed along with the petition as annexure "E".
The petitioner thereafter in or about the month of July 1955, filed an application before the Custodian of Evacuee Property for review of his order dated 1st June 1953. It is alleged that the petitioner filed some documents along with this application with a prayer that the documents be considered for the purpose of deciding the review application. The Custodian dismissed the review application on 15th May 1956. A copy of the order has been filed with the petition as annexure "F".
The petitioner had in the meantime filed a suit against respondent No. 5, in the Chief Court of Sind being Suit No. 645 of 1951, for possession of the plot and after the establishment of the District Courts at Karachi the said suit was transferred to the Court of Second Sub‑Judge First Class and renumbered as Suit No. 202 of 1956. The suit was dismissed on 8th November 1957 on a preliminary issue whether the Court had jurisdiction to try the suit. The judgment of the Court by which the suit was dismissed is filed with the petition as annexure "G".
This petition has now been filed for quashing the orders of respondents 2 and 3 mainly on the following grounds:
(1) That confirmation proceedings as required by section 16 of the Ordinance No. XV of 1949, were not necessary in view of a certificate granted under section 15 of the Ordinance. The confirmation proceedings being unnecessary, the consequent orders passed on account of that were without jurisdiction and therefore void.
(2) That respondent No. 4, had no authority to file an appeal under section 36 of Ordinance No. XV of 1949, he being not an aggrieved party as contemplated by that section. The decision on such an appeal having been filed by respondent No. 4, and the consequent orders passed in revision and review were, therefore, without jurisdiction.
(3) That the orders passed in appeal being illegal, the orders passed in revision and in review were in illegal exercise of jurisdiction with material irregularity. Alternatively the orders passed in review and revision were instances of refusal to exercise jurisdiction vested in respondent No. 2.
We shall discuss these points in the order in which they have been given above.
Point No. 1.‑The learned counsel for the petitioner has placed reliance upon sections 15 and 17 of the Ordinance No. XV of 1949. Section 15 reads as under :‑
"15. Prohibition of transfer of property generally :‑The Central Government may, by Notification in the Official Gazette, declare that in such area and for such period as may be speci fied in the notification, the transfer of any property or class of property, or the creation of any right or interest therein or encumbrance thereon, shall be prohibited, and where any such declaration has been made, no such transfer or creation shall be made during the period in the area except with the previous approval in writing of the Custodian Provided that nothing in this section shall prevent the transfer of movable property of which an evacuee has immediate physical possession".
Section 17 reads as follows :‑
17. Registration of documents and mutation of names : (1) Where any document required to be registered under the Registration Act, 1908 or any application for mutation of names purports to create or transfer any right or interest in any property in contravention of the provisions of section 16 or section 23‑A of this Ordinance. no registering officer shall register the same, and no revenue officer shall sanction any mutation of names in respect thereof, unless the party present ing the document or making the application produces a certi ficate from the Custodian that the property is lot evacuee property or that the transaction has been confirmed or that the property is not property belonging to an intending evacuee or that the Custodian has sanctioned the transaction.
(2) If any question arises whether any document presented for registration or any application made for mutation of names purports as aforesaid, the registering officer or the revenue officer, as the case may be, shall direct the party concerned to apply to the Custodian for a certificate under subsection (1), and shall not register the document or grant the application without such certificate".
The learned counsel for the petitioner has argued that the transfer of any property or class of property would not be effected unless it was with the previous approval in writing of the Custodian and that in case where such a previous approval was given, what was necessary was fiat the transfer should be regis tered under section 17 of the Ordinance. According to him, once such a transfer was effected it became final and conferred a legal right on the person in whose favour the transfer was registered, He further argued that in such case confirmation of the sale as contemplated by section 16 of the Ordinance No. XV of 1949 would not be necessary. We are unable to find ourselves in agreement with the learned counsel for the petitioner. The scheme of sections 15, 16 and 17 is that under section 15 an approval of the Custodian for transfer of property is required and under section 17 the transfer is to be effected. By complying with the provisions contained in sections 15 and 17, all that is achieved is a mere transfer of the property and that any right or interest in that property would be acquired only after compliance wider section 16 of the Ordinance is made. Apart from this the order dated 17th May 1951, filed with the petition as annexure "B" in clear terms required the petitioner to have the sale confirmed. In view of such a condition having been laid down and in view o; what is stated in section 16 of the Ordinance, we are of the view that the confirmation proceedings were necessary and had to be resorted to before a right in the property could be said to have been conferred on tile petitioner.
The learned counsel for the petitioner also placed reliance on. section 12 (3) of the Ordinance which reads as under :‑
"12 (3) Nothing contained in the foregoing subsection shall‑
(a) prevent a Registering Officer from ordering registration of a deed of sale or exchange relating to evacuee immovable property, or a Civil Court from ordering specific performance of a contract of sale or exchange of any such property where the sale or exchange of the contract of the same has been duly confirmed or approved by the Custodian and the required certificate has been granted by him".
His argument was that a registering officer after a certificate had been granted under section 15 of the Ordinance by the Custodian would not be barred from registering the deed of sale. As we have already said that there is no bar on the registering officer registering the sale deed, but that such a transfer of property will by no means confer a title on the person in whose favour the property has been transferred. Compliance of section 16 is mandatory and therefore any property which has not been con firmed under section 16 will not be deemed to be a property of) which the transferee could be said to be the owner.
Point No. 2.‑The next point argued by the learned counse for the petitioner was that respondent No. 4, had no right or authority to file an appeal under section 36 of the Ordinance XV of 1949. According to him, section 36 authorised only the person aggrieved to file an appeal. Section 36 contemplates an appeal being filed by* any person aggrieved by a final order under sections 16, 18, 19, or section 23‑A passed by the Deputy Custodian or Assistant Custodian. The order against which an appeal had been preferred by respondent No. 4, was passed by the Deputy Custodian and that the order appealed against was passed under section 16 of Ordinance XV of 1949. The only point on which the learned counsel laid stress was that the person who filed the appeal was not an aggrieved person as required under section 36 of the Ordinance XV of 1949. The admitted position in the case is that respondent No. 4 had occupied this plot and had raised construction on it and invested several thousand rupees. The point urged isT that respondent No. 4 being an un authorised occupant was a trespasser and therefore no legal right to file an appeal had accrued to him merely because he had raised the construction which he had done obviously at his own risk. The learned counsel had placed reliance upon two cases reported in Messrs Thakar Dass Pyara Lal v. Custodian, Evacuee Property, East Punjab, Jullunder and another (A I R 1950 East Punjab 175) and Rain Das v. W. G. Rogers (A I R 1931 Lah. 585). Both of these cases, according to us, do not apply to the facts of the present case. In the first case the question was that an allotment made ‑in favour of the person by the Provincial Govern ment was cancelled by the Custodian. The‑ point taken in that case was that the person in whose favour an allotment order existed was a person who could be said to be an aggrieved person within the meaning of section 36 of Ordinance XV of 1949, and had therefore the right to file an appeal. The decision given was that no c could have a right to appeal unless he could show that a decision had been pronounced against him which had wrongly deprived him of something or wrongly refused him, something or wrongly affected his title to something. In other words, the decision was that the words "aggrieved person" did not really mean a man who was disappointed by a benefit which he might have received if some other order had been made, The facts of the second case related the case of an insolvent's hotel which was granted on lease in a public auction. The prior lessee of the hotel who was neither the creditor nor the highest bidder was not considered to be an aggrieved person within the meaning of the expression as used in section 75 of the Provincial Insolvency Act, 1920. The facts of this case are entirely different. The facts as we have already stated are that respondent No. 4, had raised construction on the property and would have been obviously affected adversely if the decision of the Deputy Custodian confirming the sale in favour of the petitioner had prevailed.
Ordinance No. XV of 1949 being a special Act is not to be controlled by what is laid down in the Civil Procedure Code or in any other law specifically. The case reported :n Punjab Province v. L. Sitaram and others (P L D 1956 F C 157) is a clear authority for this. It was held in this case that "Ordinance (XV of 1949) is really a piece of legis lation which concerns itself with administration rather than with adjudication, "adroit administration" concerning what is conducive to the welfare of the evacuees under the changed situation, rather than what is required by law under the strict principles of legal jurisprudence. It is a legislation of extremely special nature providing a special machinery' for dealing with an extraordinary situation. Decisions in cases relating to evacuee property have to depend on grounds of policy and not only on considerations that weigh with Courts of law". The proceedings are under an special law and therefore the meaning that can be attached to the el words "aggrieved person" will be much wider considering what has been said in the decision quoted above. We are, therefore, of the view that respondent No. 4, was an aggrieved person within the meaning of section 36 of Ordinance XV of 1949 and had the right to file an appeal and as such the consequent decision giver in appeal was within jurisdiction.
Point No. 3.‑The last point urged by the learned counsel for the petitioner was that the Custodian had given decisions it revision as well as review far beyond the scope of evidence or the record. According to the learned counsel the inferences drawn by the Custodian were not warranted by law and that before such inferences could be drawn, it was necessary that an oppor tunity should have been given to the petitioner to rebut such inferences. The admitted position in the case is that the petitioner had not filed docunhnis or affidavits at the time where he filed an application for confirmation of sale. Be also did no; do so when an appeal was filed against that decision. He also failed to file any documents at the time when he had filed revision application. Nothing appears on the record by way of an applica tion from the petitioner or from his counsel requesting the Custodian for additional evidence to be taken. The document were in his possession and nobody prevented him from producing them for the purpose of being considered by the Custodian. What has happened in fact is that the petitioner at the time when he filed review application had produced some documents and the order of the Custodian dated 15th May 1956 passed on that application reads as under Mr. Manzar‑i‑Alam has filed some fresh evidence consisting of letters received by post from the vendor but I am not satisfied that there was any sufficient cause for the fresh evidence not having been produced before the Court below. Even the fresh evidence does not prove that there was any completed transaction of sale. All that it shows' was there were some negotiations for sale and that the applicant was unwilling to enter into it. This evidence therefore, even if admitted, would not militate against the findings of fact recorded by the learned Additional Custodian (Judicial) and affirmed by my predecessor".
This order would indicate that the documents which had been filed along with the review application were considered by the Custodian. The Custodian was of the view that the documents produced would not prove the case of the petitioner and would not entitle him to have the sale in his favour confirmed. In view of this we are of the view that there is no substance in the point raised by the learned counsel for the petitioner that the Custodian had passed the orders on the evidence which did not exist on record. We also find ourselves unable to agree with the conten tion of the learned counsel for the petitioner that the inference drawn by the Custodian were not based on any evidence on record. The petitioner had been given every opportunity to prove his case and he can really have no legitimate grievance that he had not been given an opportunity to prove his case or rebut the possibility of adverse inferences being drawn.
We therefore are of the view that there is no substance in the writ petition and we accordingly dismiss it with costs.
A. H. Petition dismissed.
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