Find a Lawyer

EVACUEE PROPERTY, SOUTH ZONE, WEST PAKISTAN, KARACHI,

Writ Petition No. 524 of 1961, decided on 28th February 1963.

Legislation enacting certain laws as well as repealing certain proviso to provision in existing Act‑To be deemed not only an enacting law but also a repealing law‑[Pakistan (Administration of Evacuee Property) (Amendment) Act (XLY of 1958), S. 4‑Pakistan (Admi nistration of Evacuee Property) (Amendment) Ordinance (XXII of 1959), S. 7]‑[Abdul Majid v. The Custodian of Evacuee Property P L D 1962 Kar. 306 ref.].

Confirmation of transfer of property‑Does not amount to declaration that property is non‑evacuee‑Pakistan (Administration of Evacuee Property) Ordinance (XVIII of 1948), S. 12‑[Sungreen & Co. Ltd. v. Qamardin Muhammad Hashwani P L D 1958 S C (Pak.) 144 ; Ghazi Muhammad v. Custodian of Evacuee Property P L D 1960 Lah. 862 ref. and Zahiruddin Hasan v. Custodian of Evacuee Property P L D 1958 Kar. 518 considered].

‑Approval of authority of attorney‑Cannot be said to have been indirectly obtained by such attorney merely getting sale transaction in respect of property confirmed by Custodian under S. 20, Pakistan (Administration of Evacuee Property) Act (X11 of 1957).

Notification by Central Government acquiring evacuee property‑Vests "wholly and absolutely" in Central Government‑Custodian has no longer jurisdiction to grant approval of attorney of alleged Indian resident owner of such pro perty‑Pakistan (Administration of Evacuee Property) Act (X11 of 1957), S. 2 (2) (c)‑(Approval of attorney).

Where the property has vested in the Central Government in consequence of a general notification acquiring such property under S. 3 (1), Displaced Persons (Compensation and Rehabi litation) Act, 1958, it is all irrelevant to argue that the authority of an attorney can be approved under section 2 (2) (c), Pakistan (Administration of Evacuee Property) Act, 1957, because now the Custodian has no jurisdiction to deal with it, since it "wholly and absolutely" vests in the Central Govern ment whatever its antecedents may be.

Fakhruddin for Petitioner.

Sayeed A. Shaikh for Respondents 1 & 2.

S. A. Nusrat and A. K. Shaikh Asstt. A.‑G. for Respondents 3&4.

S. M. Raaa for Respondent 5.

Dates of hearing : 5th, 6th and 7th February 1963.

This writ petition was presented on the 21st of November 1961, with a prayer that the order dated the 14th of July 1960, of the Deputy Settle ment Commissioner, Karachi, and the orders dated the 24th of August 1960, and 9th of August 1961, of the Custodian of Evacuee Property, Karachi, be quashed.

2. The facts briefly stated are that the petitioner is a Muslim resident and national of India. He had purchased a plot of land with buildings thereon bearing Survey Nos. 53 and 54, Sheet No. S. R. 8, situated on Kutchery Road, Karachi by a registered sale deed dated the 27th of October 1948. The sellers were Mst. Chandrani alias Bhagwatibai and Sadjiwatlal who were apparently evacuees. The transaction was effected on behalf of the petitioner through his general attorney and son‑in‑law Ghulam Hussain. An application was made for confirmation of this transaction under section 12 of Ordinance XVIII of 1948, which was granted by the Additional Custodian (Judicial), by his order dated the 12th of August 1950. Subsequently, the property was managed through the attorney but he died and the petitioner‑

"appointed his nephew‑in‑law Mr. Hasan Ali as his attorney by a General Power‑of‑Attorney executed by him at Karachi on 4^th June 1959."

1n one of the flats which was a part of the property, A. D. Najmi, respondent No. 5 was the tenant. As this flat had been requisi tioned by the Government the new attorney of the petitioner demanded rent for the flat from the Rent Controller in response to which respondent No. 5 sent a cheque to the attorney of the petitioner but he refused to accept it. Subsequently, on the 18th of April 1959, respondent No. 5 along with a few other persons applied to the Custodian that the property was evacuee property because the power‑of‑attorney granted by the petitioner to Hasanali had not been confirmed by the Custodian. The Custodian ordered an enquiry to be held by the Deputy Rehabi litation Settlement Commissioner, Karachi. The enquiring officer issued notice to the petitioner, in response to which the petitioner submitted his written statement dated the 24th of June 1960. After hearing the parties, the officer gave his order on the 14th of July 1960. He held as follows :‑

"The property in dispute is, therefore, treated as evacuee property with effect from 17‑12‑49, in accordance with the provisions of clause (c) of subsection (2) of section 2 of the Pakistan (Administration of Evacuee Property) Act, 1957."

As this order was founded on the absence of approval of the autho rity of the new attorney, the petitioner took steps to get it approved without questioning the correctness of this decision. He made an application for this purpose to the Custodian, who dismissed it on the 24th of August 1960, on the ground that under subsection (1) of section 3 of the Displaced Persons (Compensation and Rehabi litation) Act, 1958, the property had vested in the Central Government in virtue of a notification and that he was not competent to make an order regarding it. He further observed as follows :‑

"The matter should, however, be brought to be notice of the Central Government, with the suggestion that the notifica tion issued under subsection (1) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, should be suitably amended, so that the Custodian may have the power to deal with the properties of Muslim residents of India and approve the authorities given by them to their agents in Pakistan:":

In view of this recommendation of the Custodian, the petitioner made representations to the Central Government and waited for its decision. He was lastly informed by the Ministry of Rehabi litation and Works on the 29th of August 1961, that his request could not be complied with. The letter stated as follows :‑

"(1) In order to keep your property free from the applica tion of the evacuee property law you should have appointed a Manager with approval of the Custodian in time ; and

(2) that you may now get a charge of your money created against the property in question through the Chief Settlement Commissioner if so advised by your legal adviser."

Paragraph (2) suggests that a charge could be created on the property which had vested in the Government. The petitioner did not act on this advice, perhaps because the legal opinion was against it. He applied to the Custodian for the review of the order dated the 24th of August 1960. It was dismissed on the 9th of August 1961, as barred by time.

3. Now the petitioner has come to this Court with the object of getting the three orders mentioned in paragraph 1 above quashed in exercise of writ jurisdiction. Counsel for the petitioner has advanced the following four arguments in support of the petition :‑

(1) The property was finally declared to be non‑evacuee property on the 12th of August 1950, which was before the 17th of November 1956; therefore, in virtue of the proviso to subsec tion (6) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, it could not be treated as evacuee property by the Deputy Settlement Commissioner on the 14th of July 1960.

(2) The sale of the property in favour of the petitioner having been confirmed by the Additional Custodian (Judicial) on the 12th of August 1950, the property became non‑evacuee property and could not be treated as evacuee property under section 2 (2) (c) of the above‑mentioned Act.

(3) The authority of the first attorney of the petitioner was indirectly approved by the Custodian, by the confirmation of the sale. The law had thus been once complied with ; there fore, the approval of the authority of the second attorney of the petitioner was legally unnecessary.

(4) The refusal of the Custodian by his order dated the 24th of August 1960, to approve the authority of the second attorney of the petitioner on the ground that the property had become vested in the Central Government in virtue of a notification issued under subsection (l) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act 1958, amounted to his refusal to exercise jurisdiction. Similarly, the dismissal by the Custodian of the review application of the petitioner on the 9th of August 1961, amounted to his failure to exercise jurisdiction.

The learned counsel has spent most of his time in trying to establish the first ground because he found himself in obvious difficulties for doing so. The proviso on which he has relied is as follows :‑

"Provided that no final order passed on or before the 17th day of November 1956, declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed."

This proviso was repealed by section 4 of the Pakistan (Adminis tration of Evacuee Property) (Amendment) Act, 1958 (XLV of 1958). The latter Act was repealed by section 7 of the Pakistan (Administration of Evacuee Property) (Amendment) Ordinance, 1959(XXII of 1959). The effect of the repeal of the repealing Act in terms of section 6 (a) of the General Clauses Act, 1897, could not be to "revive anything not in force or existing at the time at which the repeal" took place unless a different intention could be gathered from the law. A Division Bench of this Court has already held in Abdul Majid v. The Custodian of Evacuee Property (P L D 1962 Kar. 306) against the contentions raised by the Advocate. He, therefore, had a great urge to criticise that judgment but we did not allow him to do so, because we are ourselves respectfully in agreement with the same conclusion, and called upon the Advocate to satisfy us to the contrary because that was the first hurdle for him to cross. He argued that Act XLV of 1958, which repealed the proviso to subsection (6) of section 43 had enacted sections 43‑A and 43‑B. Ordinance XXII of 1959, not only repealed Act XLV of 1958, but has also enacted new sections 43‑A and 43‑B. It was, therefore, not merely a repealing but an enacting Ordinance. The purpose of enacting new law, counsel argued, leads to the conclusion that the intention was not merely to repeal but to resuscitate the repealed law. If the intention was to maintain the repeal of the proviso then according to counsel, Act XLV of 1958 would not have been repealed as a whole including section 4 by which the proviso was omitted. To draw the contrary inference that is to say that the intention by repealing Act XLV of 1958, as a whole was to maintain the repeal of the proviso which had already taken place counsel continued would amount to attribut ing to the Legislature a redundant act. To our mind, these contentions of the learned counsel reveal an unsuccessful effort to find something to say with the object of taking advantage of a non‑existing provision. It is irrelevant to argue that a legisla tion which enacts certain laws as well as repeals a certain proviso should be interpreted as an enacting law only and not as a repealing law also. 1t can be both. Moreover, there is no redundancy in repealing a law which has served its purpose. The first ground taken by the learned Advocate, is, therefore, not established in our view.

5. The second ground of attack has more weaknesses in it than one. It is based on a presumption that confirmation of the sale amounted to a declaration that the property was a non evacuee property. The presumption is supported by Zahiruddin Hasan v. Custodian of Evacuee Property (P L D 1958 Kar. 518 at p. 520), but the contrary view has been expressed in Ghazi Muhammad v. Custodian of Evacuee Property (P L D 1960 Lah. 862 at p. 868), which is also the view taken by the Supreme Court in Sungreen & Co. Ltd. v. Qamardin Muhammad Hashwani (PLD 1958 SC 144 at p.147). More over, it is not correct to say that in no circumstances a pro perty which was once declared to be non‑evacuee property can be, treated as evacuee property.

6. 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 the transaction was indirectly approved. On the contrary, it appears that the petitioner never asked for the 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. Moreover, there is no justification whatsoever for raising the contention that there was no need to get the second, power‑of‑attorney approved.

7. The learned Advocate for the petitioner did pot put much effort in making his fourth ground convincing. He repeated his assertion that Mr. Justice Masud Ahmed failed to exercise his jurisdiction when he held that :‑

"The Central Government having acquired all evacuee properties situated in the Federal Capital, in accordance with a notification issued under subsection (1) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and as the property in dispute, which is situated in the Federal. Capital, was evacuee property at the time of the issue of the notification, I am not now competent to pass any order with regard to it, because the property, after acquisition, has ceased to be evacuee property."

As the learned Advocate has advanced no analytical arguments, we understand that he meant to say that as no change has taken place in the Custodian's powers and jurisdiction, he is still entitled as well as bound to perform the same functions which he could perform before the property vested in the Government. The property having been vested in the Government in consequence of an omission deliberately or inadvertently made in not approving the first power‑of‑attorney, it was the duty of the Custodian to rectify that mistake which would automatically result in the divesting of the property.

8. We have anxiously thought over the situation to find out the true legal effect of the notification by which the property has vested in the Government qua the mistake presumably committed by the Custodian's Department itself. In this case the Department cannot be blamed for any such mistake but the argument having come to our notice we wish to analyse it as it is, because similar contentions have been raised before us in one or two other petitions which have been made under Article 98 of the Constitu tion.

9. The true situation appears to us to be that there is an inherent error in the argument that as the jurisdiction and powers of the Custodian have remained unchanged, he cannot refuse to exercise them. The error is that the powers and the jurisdic tion have remained the same but the conditions in which they ar,

exercisable have become changed. It is immaterial whether the change has been brought about in consequence of an objection able omission or by a wrong order, because an omission or mistake, whether justified or not but committed in exercise of lawful jurisdiction, produces until legally rectified, as effective results as a proper action and a right order. Once the legal result has taken place it is wrong to argue that it should be disregarded. The change which has taken place, in consequence of the alleged omission or mistake, is that the property has "wholly and abso lutely" vested in the Central Government in virtue of subsection (3) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The Custodian may still have the authority to act as before and may be able by approving a power -of‑attorney to convert an evacuee property into non‑evacuee property, but such conversion, in this case would amount to making a declaration that the property still belongs to the petitioner who can be allowed to manage it through his second attorney. Such an attempt on the part of the Custodian would amount to ignoring, the true legal situation that rightly or wrongly the property now vests in the Central Government and that, therefore, the question of its being managed by the petitioner through an approved attorney has become irrelevant.

10. We would use an analogy to make our point of view clearer. Supposing that a physician skilled in the art of healing by mistake administers poison to a patient, who dies, later, the physician is pestered by the relations of the deceased to exercise his skill for administering an anti‑dote. The physician explains that his power and skill are the same as before the death of the patient but the death has rendered them ineffective. Applying this analogy to the powers and jurisdiction of the Custodian, we see that owing to a legal situation that existed at the time of the notification the property has vested in the Central Government. It is all irrelevant now to argue that the authority of an attorney can be approved, because now the petitioner has nothing to do with the property which was at one time bought by him and the Custodian has no jurisdiction to', deal with it, since it "wholly and absolutely" vests in the Central, Government whatever its antecedents may be. To contend that this result has been brought about by an omission or a mistake of the Custodian's Department makes no difference to the situation.

11. The conclusion is that none of the four grounds on which learned counsel for the petitioner took his stand is able to sustain and support the petition. It is accordingly dismissed with costs.

A. H.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.