NAZAR MUHAMMAD Versus CUSTODIAN OF EVACUEE PROPERTY, WEST PAKISTAN LAHORE

The facts in this petition are that the petitioners Nazar Muhammad ands four others purchased agricultural land in Tehsil Shahdadpur from one Muhammad Luqman. The purchase was evidenced by a registered sale deed dated 12‑7‑1949. The said Haji Luqman had purchased the same property from evacuees Gujanmal and others by a registered sale deed dated 8‑6‑1949. The petitioners made an application for confirmation of sale in their favour before the Deputy Custodian, Nawabshah. Such application was dismissed on 14‑9‑1956 on the grounds that the petitioners bad not obtained income‑tax certificate and bad not produced the original sale‑deed. It may be stated that the Advocate appearing for the petitioners before the Deputy Custodian had on the date of final hearing made an application for adjournment which had been refused. No doubt the original sale‑deed was not produced but there is no contest on the point that sale in favour of the petitioners was registered in accordance with law. Even in regard to the income‑tax certificate the established position is that the income tax certificate was obtained by the petitioners but only after the dismissal of their application for confirmation by the Deputy Custodian. The petitioner thereafter, filed appeals, revision and even review applications before the Additional Custodian and Custodian but they did not succeed in obtaining the confirmation of the sale. The petitioners thereafter, filed a constitutional petition in the erstwhile High Court of West Pakistan at Karachi which was registered as Petition No. 212 of 1963. A Division Bench dismissed the petition but in para. 7 of its judgment the following observations were made :

"Mr. S. A. Nusrat, however, contended that as the income‑tax certificate, bad been obtained by the petitioners, it was open to the learned Custodian to give relief to the petitioners by condoning the delay, if any, in the production of the certificate and by directing the confir mation of the sale dated 8‑6‑1949. We do not say that this relief could not be given to the petitioners. However, the petitioners cannot obtain any relief from this Court. because the orders against which they have come cannot be treated as invalid in any way. It is, however, open to the petitioners to approach the Custodian, or any competent officer in his Department, for such relief as they may be entitled to In view or the fact that the petitioners and their predecessor‑in‑title purchased the land in question for valuable con sideration by registered sale‑deeds and that at the relevant times there was genuine impression created by the Administration of Evacuee Property Rules, 1950 that income‑tax clearance certificate was not required for or for confirmation of sales or agricultural lands, we have no reason to doubt, that necessary relief, if legally permissible, will be extended to the petitioners."

By its terms the judgment of the Division Bench allowed a way open to the petitioners for seeking redress from authorities functioning under the Administration of Evacuee Property Act of 1957. Such judgment was not challenged and acquired finality.

2. The petitioners thereafter made a fresh application before the Deputy Custodian of Evacuee Property and the said application was dismissed on 18‑1‑1968. It seems that respondent Mir Asad Ali (Respondent No. 5) who had in the meantime been allotted the land in question was impleaded as a party in this application for confirmation of sale in favour of the petitioners, and was heard. On behalf of respondent Mir Asad Ali a contention was raised that the application was not maintainable because the petitioners had already exhausted ail the legal remedies which were available and failed to obtain an order of confirmation of sale. Such legal remedies as have been referred to in the order of the Deputy Custodian were the remedies resorted to by the petitioners before the filing of previous constitutional petition. Additionally it had been contended before the Deputy Custodian that the petitioners were seeking review of an earlier order of the predecessor Deputy Custodian which had been further confirmed by the Deputy Custodian and the Custodian. The Deputy Custodian came to the conclusion that the previous orders operated as res judicata despite the order of High Court; and. dismissed the application. The petitioners thereafter, filed an appeal before the Additional Custodian of Evacuee Property which too was dismissed on 29‑4‑1968. The petitioners thereafter, filed a revision application which was dismissed by the Custodian of Evacuee Property of West Pakistan, precisely on the same reasoning that was adopted by the Deputy Custodian. It is under these circumstances that the present petition has been filed.

3. I have heard Mr. Muhammad Ashraf Umrani, the Advocate for the petitioners and Mr. Muhammad Idris Qureshi, the Advocate for the, allottee Mir Asad Ali (respondent No. 5). The remaining respondents namely, the Custodian of Evacuee Property, Additional Custodian of Evacuee Property, Deputy Custodian of Evacuee Property and the Additional Settlement Commissioner (Lands), Sanghar, have not appeared or defended the petition.

4. Before entering into the arguments raised on behalf of the parties, I must state clearly that after the order of the Division Bench of the High Court, the Deputy Custodian, the Additional Custodian and the Custodian did not at all consider the merits of the case. In fact all three-function arties, under the Administration of Evacuee Property Act, 1957, had decided the case on the point that the matter was res judicata inasmuch as a decision of the Custodian was already available in the case. On such ground the learned Advocate for the petitioners has also contended before me that the Deputy Custodian did not hold any enquiry into this case. t will deal with that aspect of the case later.

5. The judgment of the Division Bench had acquired finality and the relevant passage appearing in the judgment has been reproduced by me above. Such passage clearly indicates that the learned Judges had directed the functionaries in the Department of the Custodian to consider the question of confirmation of the sale in case the petitioners made an application. What had persuaded their Lordships to make such a direction or observation were two facts. The first that the sale in favour of the petitioners being by way of a registered document and for valuable consideration, it was unfair that they should by deprived of the property. Secondly, that on account of a general impression prevailing that income tax certificates were not required for confirmation of sales of agricultural properties, the petitioners had been refused confirmation on the ground that did not appear to be just and reasonable to the learned Judges of the Division Bench. However, the position is absolutely clear that the petitioners had purchased the property by a registered sale‑deed and even income‑tax certificate had been obtained by them while the proceedings were still pending before the functionaries of the Custodian's Department viz., earlier than invoking the constitutional jurisdiction of the High Court on the previous occasion.

The learned counsel for the petitioners has vehemently urged before me that the directions contained in the judgment of Division Bench were mandatory and required to be complied with by the Deputy Custodian. On the other hand Mr. Idris Qureshi, appearing for the respondent No. 5 has argued that the directions were in the nature of obiter dicta and that the Division Bench had only suggested that if a remedy was legally available the same may be advanced in favour of the petitioners. The learned Advocate has also contended that the question of confirmation of the sale was res judicata in so far as the authorities in the Department of the Custodian were concerned.

The question that then directly arises is whether the directions contained in the judgment of the Division Bench had any binding force and were mandatory in nature. The directions were not obiter dictum for the simple reason that an obiter dictum is an observation which is either not necessary for the decision in the case or does not relate to material facts in issue. The ,directions of the High Court materially decided the issues in the case and it .did relate to the material facts in issue. Such directions could be legally made and the judgment of the Division Bench was not challenged and has acquired finality. In fact these directions concluded the decision of the Division Bench. On the other hand the argument is to the effect that the authorities in the Department of the Custodian having already dealt with the case of confirmation of the property of the petitioner, made such decisions final. I fail to understand the argument because the Division Bench of the High Court in spite of knowing the correct situation made these directions. The directions clearly meant to state that despite the earlier decisions of the Custodian and his inferior functionaries; the petitioner's application, if ever made, was to be considered on merits and in the light of the directions con tained in the said judgment. It would thus seem that despite earlier proceed ings before the Custodian and his inferiors, the Division Bench was of the view that the matter could be reopened and decided on its merits.

It then falls for consideration whether the respondents namely, the Custodian, the Additional Custodian, and the Deputy Custodian could have dismissed the application filed by the petitioners, merely on the ground that ‑the matter had been agitated earlier and decided against the petitioners.

Firstly the earlier order of the Deputy Custodian could not be termed to be a final order because the only groan is on which confirmation of site was refused were non‑production of income‑tax certificate and the original deeds. By the time the matter came up before the Division Bench the petitioners had obtained a certificate from the Income‑tar Authorities and there is no doubt that the sale in their favour was registered because the Additional Custodian had even created a charge in their favour. That would mean that confirma tion had mainly been refused on the ground of income‑tax certificate not having been obtained. In these circumstances the question aril‑,s if a second application was maintainable. A second application was permitted by the Division Bench to be filed: bat even otherwise I am of the view that the earlier order of the Deputy Custodian refusing confirmation could not be termed to be final within the meaning of section 43 of the Pakistan Adminis tration of Evacuee Property Act. In such context the learned Advocate for the petitioner has relied on the observations of Kaikaus, J. in the case of Ata Ullah .Malik v. Custodian of Evacuee Property, West Pakistan (P L D 1964 S C 236). This, case was decided by the Full Court. Kaikaus, J. wrote the judg ment of the minority but in the said judgment there are observa tions in regard to repetition of application for confirmation of sale in cases where the sale had been earlier refused on the ground of grant of income‑tax certificate. In such context Kaikaus, J. observed as follows : '

"I find no force in this contention. Whenever there is a condition to be complied with by a party before the proceeding becomes competent the dismissal of that proceeding for failure to comply with the condi tion precedent does not debar the submission of a fresh competent proceeding. Examples of such conditions precedent will be found in the failure to pay court‑fees or to deposit one‑fifth of the pre emption money in a pre‑emption suit or to procure sanction of a liquidation Court for filing a suit against an insolvent. The word `final' in section 43 would only mean that a point which has been decided in a proceeding cannot be, reagitated. If the application wag dismissed on the merits, the merits could not be agitated again, but 8 if the application was dismissed because of want of an income‑tax clearance certificate the only point that was decided was that a valid clearance certificate did not exist. That point cannot be agitated again except by way of appeal. review or revision but the filing of a fresh application which is supported by a clearance certificate is not Incompetent."

No doubt Kaikaus, J. dissented from the majority opinion on the decision of the case but in regard to the point in issue quoted above, the majority view was not different.

Secondly the High Court being the: Highest Court of the Province, its pronouncements and decrees are binding on all statutory functionaries in the Province. The powers of the High Court under the Constitution extend to giving directions and passing orders in the nature of mandates. Such C powers when exercised by the High Court decide questions in a cause. Finally subject of course to interference by the Supreme Court only. If the High Court had permitted the petitioners to seek relief from the Custodian or that subordinate functionaries, I fail to see how the relief could be refused only on the ground that the point had been decided by the Custodian and the inferior functionaries earlier and was as such ret judicata. The concept of res judicata is entirely different because that presupposes a finality attaching to the earlier decision which finality has not been displaced. The finality of the order of the custodian and the subordinate functionaries stood displaced by the judgment of the Division Bench and it is idle to think that the doctrine of res judicata in any manner prevented extension of relief to the petitioners. The learned Deputy Custodian while dismissing the application of the petitioners after the judgment of the Division Bench, relied on two cases reported in P L D 1964 Kar. 437 and P L D 1963 S C 109. I fail to see as to in what context have these two cases been considered or relied upon by the Deputy Custodian. In each one of these cases the observation as to the dictum is that precedents have to been understood with reference to facts of the particular case in which the judgment is given. In my view these two cases on the contrary lay down that the decision in each case was binding in the facts and circumstances of that particular case. These two cases had absolutely no relevance to the point in issue.

In my view therefore, the observations of the Division Bench were not obiter dicta and I am further of the view that the earlier proceedings and orders of the Custodian and the inferior functionaries did not operate as a bar contemplated by the doctrine of res judicata. The second application for confirmation of sale was therefore, maintainable and had to be disposed of on merits.

6. Mr. Idris Qureshi has further argued that the application for confirmation even otherwise had been earlier refused because the consideration paid was inadequate. I do not think I am called upon to answer that question one way or the other for the order that I propose to make in this case, but suffice it to say that such earlier order was also before tile Division, Bench.

Additionally it has been contended by Mr. Idris Qureshi that the learned Judges of the Division Bench had expresses that remedy should be provided if it was legally available. The earlier part of this judgment had dealt with that aspect of the case and I am of the view that the subsequent application for confirmation of sale was maintainable for the reason that the earlier orders were not final and even it the said orders were considered to he final the finality stood displaced by the judgment of the Division Bench. In fact the observation of the Division Bench war that if the remedy in the circumstances of the case war available the same should be extended and their Lordships bad also expressed that the matter maybe dealt within the light of their observations. In my view therefore, the subsequent application for confirmation was maintainable.

Mr. Idris Qureshi has further argued that since the land in question had been acquired under section 4 of the Displaced Persons (Land Settlement) Act, the Custodian was denuded of the powers of confirmation. In that context it cannot he overlooked that the notifications under section 4 of the Act made an exception in such cases where litigation was pending. The two notifications wee issued on 15‑4‑1959 and 8‑6‑1960. On these dates the applications either by way of revision or review were pending. However, this matter would require consideration by the Custodian and his subordinate functionaries and I would not express my view finally on that point.

7. On the other hand it has been urged by Mr. Muhammad Ashraf, the learned Advocate for the petitioners that under section 20 of the Pakistan.

Administration of evacuee property Act, 1957, the Custodian had to hold .a summary enquiry into the application. The learned Advocate's grievance is that no enquiry had been held into this case in regard to the bona fides of 4he transaction whereby the petitioners acquired or obtained the property. The order of the Deputy Custodian clearly shows that no such summary ,enquiry was held in regard to the validity of the transaction. and even for .such reason the order is liable to be set aside, along with the orders that followed.

8. In the result I am of the view that the judgment of the learned judges of the Division Bench was a mandatory judgment directing the Custodian and his subordinate functionaries to consider the application, if made, by ‑the petitioners in the matter of confirmation. I am firmly of the view that ‑the observations of the learned Judges of the Division Bench were not obiter dicta but binding on the Custodian. I further hold that the Deputy Custodian, the Additional Custodian and the Custodian misdirected them selves by holding that the matter was res judicata for the reason ,of previous pronouncements of the Custodian and his subordinate functionaries. In that regard the judgment of the High Court operated as a mandate. In the result the impugned orders are hereby set aside and I direct that the applica tion made by the petitioners under section 20 of Pakistan Administration of Evacuee Property Act, 1957, seeking confirmation of the property purchased ,by them requires to be decided by functionaries under Administration of Evacuee Property Act in accordance with law and in the light of the observa tions of the learned Judges of the Division Bench. In the circumstances of the case I allow this petition to the, extent indicated above but shall make no order as to costs.

K. B.A. Petition accepted.