MUHAMMAD YAQUB Versus KHALID SHAFAQAT

DORAB PATEL, J. ‑The dispute in this Letters Patent Appeal relates to a house bearing No. 35‑A West C. S. No. 34/74/77 situated in the Amil Pioneer Co‑operative Housing Society, Hyderabad. This Society is now known as Cosmopolitan Housing Society, and I shall refer to it as the Society, and to House No. 35‑A as the said House. According to the appellant, the said house was originally owned by one Mr. Thadani who had transferred it to his. wife in accordance with the Rules of the Society. Thereafter, Mrs. Thadani, who became evacuee, sold the said house for Rs. 13,000 on 8‑3‑1949 to one Danesh who sold it a few months later to one Akhtar Ahmed for Rs. 14,300.. The said Akhtar Ahmed then made an application under section 12 of the Pakistan Administration Evacuee Property Ordinance, 1949 for the confirma tion of these sales, and they were confirmed by the Deputy Custodian,. Evacuee Property, Hyderabad by his order dated 30th May, 1950. After obtaining this order, the said Akhtar Ahmed sold the said house to one Shah,. who in turn sold it on 4‑2‑1951 to the appellant for a sum of Rs. 17,000. Meanwhile, as the Deputy Custodian's order confirming the sales in favour of Akhtar Ahmed had not been challenged, it became final, and the appellant obtained vacant possession of the said house, and it is admitted that his, occupation has thereafter not been disturbed. However the said house: remained, on the Register of Evacuee Property, and was allotted in ear‑marking proceedings to the first respondent on 9‑12‑1959. The usual Appendix was, issued in favour of this respondent, who associated the second and third respondents with him in the purchase of the said house from the Settlement Department ; it was also admitted before us that these respondents have now paid the full price for the transfer of the said house. However, on 8‑4‑1963 an Inspector of the Settlement Department submitted a report that the said house was owned by the appellant. Meanwhile, these respondents had approached the local Excise and Taxation Department for a certified copy of' the P. T. I of the said house, but this was refused on 12‑4‑1961 on the ground that the said house was not evacuee property. Nearly two years later, these' respondents made an application to the Additional Settlement Commissioner,. Hyderabad. in which they prayed for an enquiry about the said house, and a Deputy Settlement Commissioner was directed to hold an enquiry and submit his report. This he did on 5‑6‑1963, and submitted that as the said house was owned by a Muslim, its transfer to the first three respondents should be cancelled. The Additional Settlement Commissioner accepted this report by his order dated 6‑6‑1963, and directed that the first three respondents be informed of the cancellation of the transfer in their favour. Accordingly, by his letter dated 17‑6‑1963 the Deputy Settlement Commissioner, Hyderabad, informed these respondents that the transfer of the said house to them by the Settlement Department had been cancelled.

2. After more than a year, these respondents filed an application on 3‑10‑1964 before the Additional Settlement Commissioner against the order by which the transfer in their favour had been cancelled. The Additional Settlement Commissioner treated the application as a Review application, set aside the decision contained in the Deputy Settlement Commissioner's letter of 17‑6‑1963 and upheld the transfer of the said house to the first three respondents. The appellant, therefore, filed a Revision before the 4th respondent against this order on 2‑12‑1964. The contention in this Revision Application was that, as the Review Application of the first three respondents had not been allowed on the ground of an arithmetical or clerical error, the Additional Settlement Commissioner had no jurisdiction to entertain it. Secondly, as the Additional Settlement Commissioner was of the view that the Deputy Custodian's order in favour of the above‑mentioned Akhtar Ahmed might not relate to the said house, but to some other property, the appellant challenged this finding, and further submitted that as the Deputy Custodian's order bad become final, the said house had ceased to be evacuee property in 1950, and was, therefore, not available for transfer by the Settlement Depart ment. In a very well considered order dated 19th May 1965, the 4th respondent held that the Deputy Custodian's order of 30th May 1950 related to the said house, and I may pause to point out that this part of his order was not challenged before us by Mr. Akhtar Mahmood, learned counsel for the first three respondents. Then, as to the question whether the said house was evacuee property and had passed to the compensation pool, as held by the learned Additional Settlement Commissioner, the 4th respondent pointed out that whenever there was a dispute about the question of the status of property, the Custodian was the sole Judge of the dispute, and the Settlement Department was bound by the Custodian's decision. Accordingly as the Deputy Custodian, Hyderabad had by his order dated 30th May 1950 confirmed the sale of the said house in favour of the appellant's predecessor in‑interest, and as that order had become final, the 4th respondent pointed out that he was bound by this order. Accordingly, he held that the said property bad ceased to be evacuee in view of this order, and had, therefore, not passed to the compensation pool, so that all subsequent proceedings in favour of the first three respondents were illegal. The 4th respondent further, held, in the events that had happened, that the Additional Settlement Commissioner had no jurisdiction to review the order of the Additional' Settlement Commissioner against the first three respondents, as Settlement Commissioners had been deprived of this jurisdiction on the promulgation of Ordinance Il of 1962 on 13th January 1962. Finally, he held in the alterna tive that even if the Additional Settlement Commissioner's jurisdiction to review his orders had been saved, the application of the first three respondents for a review was grossly time‑barred, and the delay in filing it had neither been condoned by the Additional Settlement Commissioner nor was such as should have been condoned. Accordingly, on these grounds, he allowed the Revision and set aside the Additional Settlement Commissioner's order against the appellant.

3. The first three respondents, therefore, filed a Constitutional Petition in this Court to challenge this order of the 4th respondent dated 19th May 1965, but they only sought relief against this order and not against the Deputy Custodian's order of 30th May 1950, on which the impugned order was based, nor did they implead the Custodian in their Petition. The. appellant contested the Petition, and one of the grounds on which he opposed it was that the Deputy Custodian's order of 30th May 1950 (to which I will refer as the said order) had become final, therefore, the said house had, from the date of the said order, ceased to be evacuee property. The learned Single Judge, who heard this Petition, however, appears to have been of the view that the said order was illegal, because the sales on which the appellant relied were not sales in law at all, as they had not been registered ; and in coming to this conclusion, the learned Single Judge relied upon a judgment of the Supreme Court in Chaturbai v. Muhammad Ayub and others (1971 S C M R 156). Accordingly, he allowed the Petition by his judgment dated 1st March 1971 ; therefore, the appellant filed a Letters Patent Appeal against this judgment, which we have heard with the able assistance of Mr. Khalid Ishaque and Mr. Akhtar Mahmood, learned counsel for the appellant and for the first three respondents respectively, and I will now consider the arguments advanced before us.

4. On the facts stated, it is very clear that there was a dispute about the status of the said house, therefore, Mr. Khalid Ishaque submitted that the Custodian alone had the jurisdiction to decide this dispute and relied in support of this submission on the judgments of the Supreme Court reported in Muhammad Jamil Asghar v. Improvement Trust (P L D 1965 S C 698) and Mehtab Khan v. Reha bilitation Authority and another (P L D 1973 S C 451). As these judgments support learned . counsel's submission, Mr. Akhtar Mahmood very fairly conceded that the question of the status of the said house had to be decided by the Custodian, and in reference to the said order, which had admittedly been allowed to become final, Mr. Akhtar Mahmood's further submission was that if the said order amounted to an order confirming the sales, or, the so‑called sales, as leaned counsel described them, in favour of the appellant, then, the said house had ceased to be evacuee property from the date of the said order, with the result that it had been illegally transferred by the Settlement Autho rities to the first three respondents. He, however, submitted that the said order was not an order confirming any sales, but only an order approving of the agreement of sale dated 8‑3‑1949 between the evacuee owner and the above‑mentioned Danesh ; therefore, the appellant or his predecessors‑in‑‑interest should have filed a suit for specific performance on the basis of the said order, but as no such suit had been filed, the said house remained evacuee, and had, therefore, passed to the compensation pool and had been lawfully transferred to the first three respondents. Thus the controversy between the parties is about the construction of the said order, and I would examine the arguments advanced by Mr. Akhtar Mahmood in this respect.

5. At the outset I have to point out that the learned Single Judge had the advantage of access to the file of the Custodian about the said house, and a Division Bench of this Court, which had earlier beard the Appeal, had directed the Settlement Department on 9‑1‑1974 to produce all relevant files, and the bye‑laws of the Society. Unfortunately, this has not been done, but according to both the learned counsel, the parties were also permitted to file copies of all relevant documents. The respondents have filed some but not .all relevant documents and the first of these is a copy of the agreement dated 23‑1‑1949 between the Hindu lady who became evacuee and the above mentioned Danesh. As submitted by Mr. Akhtar Mahmood, this is only an agreement to sell the said house, and because the document is only an agreement, learned counsel's further submission was that the Deputy Custodian could only have and bad given approval to this agreement, so that the appellant was thereafter required under the evacuee laws to file a suit for specific performance, which admittedly he had not. The question thus raised turns on the state of the law at the relevant time, the application filed by the appellant's predecessor‑in‑interest, the above‑mentioned Akhtar Ahmed, and the said order.

6. As the question is of construing the intention of the said Akhtar Ahmed in filing his application under the evacuee laws, I have to point out that the Pakistan Protection of Evacuee Property Ordinance, 1948 (XVIII of 19481 was in force when Akhtar Ahmed filed his application, and section 12, which is the only relevant section in this Ordinance, reads as follows :-

12. Transfer of evacuee property.‑(1) No transfer of any right in or over or to any evacuee property made by an evacuee, his agent, assignee or attorney, on or after the 1st August 1947, shall confer any right or remedy on the parties to such transfer or any person claiming under any of them unless such transfer is confirmed by the prescribed Custodian upon application made to him in that behalf within the prescribed period.

(2) The Custodian shall not confirm a transfer unless‑

(a) the consideration is paid in his presence or, in the case of exchanges or past transfers, the transaction is proved to the satisfaction of the prescribed Custodian to be a bona fide one for adequate consideration ; and

(b) there is produced before him a certificate signed by the prescribed. income‑tax authority certifying that no objection to such transfer on the ground that it might cause loss to the revenues of Pakistan exists.

7. I now turn to Akhtar Ahmed's application, but as the said house: is situated in a housing society. I would first explain that the provisions for the compulsory registration of sales of immovable property are contained in section 54 of the Transfer of Property Act, 1882, and in section 17 of the Registration Act, 1908. However, section 32 of the Sind Co‑operative Societies Act, 1925, which is admittedly relevant to the dispute between the parties, prescribes that the relevant provisions of section 17 of the Registration Act shall not apply to "any instrument relating to shares in a Society notwith standing that the assets of the Society consist in whole or in part of immov able property". The word "Society" here means a housing society, and according to Mr. Khalid Ishaque. under the rules of the Society in which the said house was situated, the property in the houses remained with the Society. What the Members acquired was only a permanent right of occupation in the houses constructed either by them or by the Society (this is not known), and the condition of membership was the holding of shares in the Society. Further, according to learned counsel, the ownership of 10 shares entitled the Member to a house, and as the interest which thus passed to the Member was not the right of ownership of the house, this arrangement w is not hit by section 54 of the Transfer of Property Act. Mr. Akhtar Mahmood admitted that there were housing societies which followed this procedure. But he was not aware of the rules of the Society. Obviously, the rules of the Society are relevant. because the question whether registration could be dispensed: with cannot possibly be decided without a careful examination of these rules ; hence the direction by the Division Bench that the Settlement Department should produce these rules. Unfortunately, this has not been done.

8. I now turn to the application of the said Akhtar Ahmed ; its heading states that it is under section 12 "of the Pakistan Ordinance No. XVIII of 1948". The first paragraph of the application states that the applicant had "purchased" the said house from one Danesh "for an adequate and valid consideration of a sum of Rs. 14,300 only plus Rs. 500 only for 10 shares each of Rs.

50. The second paragraph of the application asserts that this. sale had "been affected as per rules of the Pioneer Amil (now Cosmopolitan Co‑operative Housing Society Limited, Hyderabad, Sind) by a joint applica tion for transfer of 10 shares and the above‑mentioned house and has been. Duly sanctioned by the President of the aforesaid Society, and accordingly mutation has been effected in the Registers of the aforesaid Society". The next two paragraphs deal with the transaction between the evacuee owner and Danesh, and the language used in these paragraphs is the same as in the first two paragraphs. Not only is the transaction described as a purchase, but the consideration is stated to be Rs. 13,000 and described as adequate. It is also expressly stated that the sale "was effected as rules of the Society and was duly sanctioned by the president of the aforesaid Society on 8‑3‑49." This means that the applicant was relying on the rules of the Society read with section 32 of the Sind Co‑operative Societies Act. This is also clear from the 5 th paragraph which states that the purchase money for the sale by Danesh to the applicant had been duly paid "and the Transfer Deed in favour of the applicant was duly signed and executed, attested and registered before the president of the aforesaid society on 8‑3‑49 and 19-7‑49 respectively after the said vendors produced a clearance of Income‑tax authority . . . . ." I have quoted the relevant portions of the application verbatim, and I find it impossible to accept Mr. Akhtar Mahmood's submission that the application was for the approval of the agreement of sale between the evacuee owner and Danesh. Confronted with this difficulty, Mr. Akhtar Mahmood referred me to the last paragraph in the application and submitted that it was vague. This paragraph reads :

"It is, therefore, prayed that the sale deed dated 8‑3‑49 and 19‑7‑49 between the applicant and the respondent No. 1 and between, respondents Nos. 1 and 2 may kindly be certified in order that it may be rendered valid for future use and purposes."

I see nothing in the reliefs thus sought to support Mr. Akhtar Mahmood's criticism. In the first place, at the date of this application, the only relief that could have been sought was the confirmation of a transfer, which means, a sale, so that there was no question of obtaining approval of the agreement between the evacuee owner and Danesh. Secondly, the application expressly refers to transfer deeds, therefore, 1 am satisfied that the application was for confirmation of the relevant sales. That the applicant may have been in error about the meaning of a sale is a different matter, but his intentions are very clear.

9. I now turn to the said order which reads :

"This is an application for confirmations of a transfer for Rs. 13,000 dated 8th March 1949, executed by respondent No. 2 in favour of respondent No. 1 and transfer dated 19th July 1949 executed by respondent No. 1 in applicant's favour for Rs. 14,300 relating to respondents' interest in house No. 35/A West Portion, Amil Colony, Hyderabad (S) owned by Cosmopolitan Housing Society, Hyderabad (S). Respondents are absent in spite of service. Applicant has obtained possession. Income‑tax certificate has been filed. It is proved from the applicant's evidence that the transfers referred to above were made: for adequate consideration and that the transactions are genuine. Hence the above‑mentioned transfers are hereby confirmed"

The Deputy Custodian, who passed this order, was, according to both the learned counsel, a very experienced and honest officer. He has referred in this order not to an agreement but to "transfers". Now, if the order had merely confirmed the agreement of the evacuee, as submitted by Mr. Akhtar Mahmood, it would have referred to this agreement. Instead, it refers to the transfers dated 8‑3‑49 and 19‑7‑49, and at the end of his order, the Deputy Custodian expressly gives his approval to "the transfers referred to above". And as, according to Mr. Akhtar Mahmood, the transactions of 8‑3‑49 and 19‑3‑49 were not transfers, it is relevant to bear in mind that the applicant had based his case on the rules of the Society and section 32 of the Sind Co‑operative Housing Societies Act which exclude the relevant provisions of section 17 of the Registration Act. In all the circumstances discussed, I have no doubt that the Deputy Custodian confirmed what were described in the application as sales and transfers, and he did so by treating these transactions as sales. That he may have acted illegally in allowing the application before him under Ordinance XVIII of 1948 is another matter, but if so, the respondent could and should have challenged the said order in appropriate proceedings. Mr. Akhtar Mahmood, however, relied on the judgment of their Lordships in Cbaturbai's case and in another case which I will presently consider. However, the said order obviously has reference to the rules of the Society, and as these rules have not been produced, would we be justified in holding that an order of an experienced Judicial Officer was illegal? And :as Mr. Akhtar Mahmood challenged the said order, the burden of proving that it was illegal fell on him. Accordingly, it was for the respondents to have produced the rules of the Society, the more so as the 4th respondent had been directed to do so, and the failure to produce these rules reacts against their claim.

10. I now turn to Chaturbai's case on which Mr. Akhtar Mahmood naturally placed great reliance, as it related to a dispute between a member of the same Amil Society of which the evacuee owner in the instant case had been a member. Now it would appear that in Chaturbai's case admissions on behalf of Chaturbai had been made with regard to the membership of the 'Society, and as the learned Single Judge had relied on these admissions, Mr. Khalid Ishaque submitted that the learned Single Judge had erred in so doing, ,as the judgment of their Lordships was not a judgment in rem. Mr. Akhtar Mahmood by‑passed ibis objection by submitting that he would rely only on the passages in the judgment in which their Lordships have dealt with the practice of the Amil Society. Further according to Mr. Akhtar Mahmood, the facts in the case cited were the same as those in the instant case, because the sale on which the appellant Chaturbai relied was not a registered sale deed and had been effected by entries in the Society's records. Now it is also true, as submitted by Mr. Akhtar Mahmood, that their Lordships condemned this practice as illegal. Yakub Ali, J. who pronounced the judgment of the Court. observed at page 161 "that no title could vest in the appellant without a registered deed executed by the Society in favour of the appellant transferring to her the bangalow . . . . . .as required by section 17 of the Registration Act. And as admittedly the transfer of the bungalow had ‑not been registered, Yakub Ali, J. further observed (at page 162) : "The appellant bad thus acquired no title in the bungalow . . . .Even if it was assumed that the site was allotted to her by the Society and she had constructed the house thereon." Mr. Akhtar Mahmood relied on these observations and, as submitted, they are binding on us. However, they relate only to the construction of the Registration Act, whilst the appellant before us also relies on the rules of the Society and on section 32 of the Sind

Co‑operative Societies Act. As section 32 expressly enacts that clauses (b) and (c) of subsection (1) of section 17 of the Registration Act shall not apply to the transfers specified in the section, I agree with Mr. Khalid Ishaque that the judgment cited is distinguishable on this ground. Secondly, the respondent in the case cited was, like the first three respondents in the instant case, a transferee from the Settlement Department of the property claimed by the appellant. Unlike the instant case, he had filed a Constitutional petition to challenge the legality of the orders obtained by Chaturbai from the Custodian declaring the property in dispute to be non‑evacuee, therefore, his claim was not hit by the bar of section 41(b) of the Pakistan Administration of Evacuee Property Act, 1 957. Unfortunately, the respondents in the instant case not only allowed the said order to become final, but they have also not challenged it in their Petition. Therefore in my humble opinion the judgment cited is distinguishable on this ground also, and on the other hand, I must emphasise here that the question when an order of the Custodian could be set aside or ignored in collateral proceedings did not arise for consideration in this case.

11. Mr. Akhtar Mahmood then referred us to Mehtab Khan's case and to a judgment of a Division Bench of the West Pakistan High Court reported in Ghulam Muhammad v. Custodian of Evacuee Property (P L D 1966 Lah. 953). But both these are cases in which the petitioner had been unsuccessful in obtaining the approval of the Custodian for his purchase from the evacuee owner, and as I have held that toe sale by the evacuee in the instant case was confirmed by the said order, which was allowed to become final, these judgments are not relevant to the instant case. Finally, Mr. Akhtar Mahmood referred us to the judgment of the Supreme Court in Custodian of Evacuee Property v. Rais Ghazi Muhammad (P L D 1973 S C 537), and learned counsel placed very great stress on this authority because the dispute in it related to Bahawalpur State in which, as in the Province of Sind, the Transfer of Property Act was in force. I may therefore point out that the respondent claimed to have purchased agricultural land from an evacuee in 1946, and the document described by him as a sale deed was really a sale agreement. But as he had paid the full sale considera tion he applied to the Custodian of Evacuee Property, Bahawalpur State for the confirmation of what he described as the sale deed. This application was rejected on the ground that the sale deed was not genuine. Later the respondent filed a Review Application which was allowed in December 1953, and thereafter, the property was not treated as evacuee. But after the Pakistan Administration of Evacuee Property Act, 1957 had come into force, the then Custodian, Mr. Justice Masood Ahmad, issued a notice to review suo motu the order of his predecessor, and in the exercise of his review powers, he set aside the order of his predecessor confirming the sale in favour of the respondent on the ground that this sale was not registered and was, therefore, inadmissible in evidence. The respondent challenged this order before the West Pakistan High Court in a Constitutional Petition, which was allowed on the ground that the Custodian was not competent to review his earlier order ` in view of the provisions of section 3 of the Pakistan Administration of Evacuee Property Act, 1957". The Custodian went in appeal against this judgment to the Supreme Court, and in allowing the appeal Waheeduddin Ahmed, J., who pronounced the judgment of the Court, observed at page 543 that "The document in question could not be received in evidence as it was not registered . . . . The contention of the learned counsel appears to be well founded. In view of the above lacuna in the sale deed it was not lawfully confirmed and, therefore, the case of the respondent is covered by section 3(2) (b) of the Pakistan Administration of Evacuee Property Act. (Act XII of 1957)".

12. Mr. Akhtar Mahmood submitted that at least these observations supported his case, because the sale in the instant case was also not registered therefore, in view of the observations quoted, the further submission was that the said house had remained evacuee, and learned counsel relied on the fact that the observations in the case were wide. I have quoted the observa tions relied upon. They are wide, but observations in a case necessarily have reference to the facts of that case, and the points in issue in that case. Accordingly, having given anxious thought to the judgment, in my humble opinion, it is distinguishable on at least three grounds. The first is that the appellant before us relies on section 32 of the Sind Co‑operative Societies Act, which dispenses with some of the requirements for registering a transfer. Secondly, Rias Muhammad Ghazi did not rely on the equity of part perfor mance contained in section 53‑A of the Transfer of Property Act. But the appellant before us does. Now, as this section was inserted in the Transfer of Property Act in 1929, in my humble opinion, it supersedes the relevant provisions of the Registration Act. And in Mst. Ghulam Sakina v. Umar Bakhsh (PLD 1964 S C 456), Hamoodur Rehman, J., as he then was, now the Chief Justice observed that "section 53‑A of the Transfer of Property Act makes an exception" to section 49 of the Registration Act. The third ground on which Rias Muhammad Ghazi's case is distinguishable as submitted by Mr. Khalid Ishaque is that there the question was whether the High Court was competent to set aside an order of the Custodian in the exercise of his exclusive jurisdiction. But in the instant case, although the Deputy Custodian's order is fatal to their claim, the first three respondents have neither impleaded the Custodian in their petition nor sought a declaration against it. This is probably because they allowed it to become final, but section 41 of the Administration of Evacuee Property Act, 1957, in so far as it is relevant states

"41. Jurisdiction of Courts barred‑(I) Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction‑

(b) to question the legality of anything done under this Act by or at the instance of the Custodian, or

(c) in respect of any matter which the Custodian is empowered by or under this Act to determine.

This provision ousting the jurisdiction of the civil Courts has been in the. evacuee laws ever since the promulgation of Ordinance XVIII of 1948, and it was admitted before us that the said order had become final under the evacuee laws, yet the learned Single Judge ignored it. But could he do so? That is the real question in this appeal, whether the Court was competent to set aside the said order in collateral proceedings. I say the question is of the Court's jurisdiction to set aside the said order, because to ignore it, as the learned Single Judge has done, was to have set it aside. Now as this question did not arise for consideration in any of the judgments cited, we invited both the learned counsel to assist us, on it, but Mr. Akhtar Mahmood could only refer to the judgments which I have already considered and to the judgment under appeal, whilst Mr. Khalid Ishaque referred us to the judgment of the ;Supreme Court in Muhammad Hussain Munir and others v. Sikander and others (P L D 1974 S C 139).

13. In Muhammad Hussain Munir's case, their Lordships allowed an appeal against the judgment of the High Court by which the High Court had et aside the order of the Member, Board of Revenue under Article 98 of the 1962 Constitution on the ground that this order was without lawful authority. Muhammad Gul, J., who pronounced the judgment of the Court, approved of the decision of the Judicial Committee in Amir Hussain Klan v. Sheo Bakhsh Singh (11 I A 237), and after referring to the similarity between section 115, Civil ,Procedure Code and Article 98(2)(a) of the 1962 Constitution and Article 1S9(1)(a)(ii) of the present Constitution, he observed that the constitu tional jurisdiction of the High Court "being a creation of the Constitution stands on a higher pedestal than that under section 115, C. P. C. second: the former jurisdiction has a wider reach than under section 115, Civil Procedure ‑Code which is confined to subordinate Courts. However, that may be it is wholly wrong to consider that the above constitutional provision was designed to empower the High Court to interfere with the decision of a Court of tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong." As the said order is an order in the exercise of the Custodian's ,exclusive jurisdiction, these observations no doubt lend some support to Mr. Khalid Ishaque's submission. However, they relate to the question when an order is without lawful authority, whilst the question before u3 is when a Court can set aside an order in collateral proceedings, and, in my humble opinion, there cannot be any doubt that an order can beset aside in collateral proceedings only if it is a void order. I would quote here a passage from Rubinstein's "Jurisdiction and Illegality". After pointing out that an illegal act is subject to judicial review and maybe annulled in appropriate proceedings, the learned author states at page 4:

"Such an illegal act is usually termed a voidable act. Nullity, on the other hand, is the result of a purported exercise of authority which has no legal effect, whatsoever, an act which is void ab initio. It will be that the distinction between void and voidable acts depends on the method by which it is challenged. Voidable acts are those that can be invalidated in certain proceedings; . . . .On the otter hand, when an act is not merely voidable but void, it is a nullity and can be disregarded and impeached in any proceedings, before any Court or tribunal and whenever it is relied upon. In other words, it is subject to 'collateral attack'."

I would also refer here to two very interesting English cases: R. v. Barton (116E R 1311) and Barton v. Brieknell (116 E R 1313). In R. v. Barton, Barton find a writ of certiorari to challenge his. conviction, on the ground that the order of conviction con tained an error apparent on the record. The conviction was quashed. because it was based on a patent misreading of the law and I may pause to point out here that this is the ground on which the learned Single Judge set aside the said order. Now Barton was entitled to recover damages from the justices of the peace if hi; conviction was without jurisdiction. Accordingly he filed a suit against them for damages. But it was dismissed on the ground that the order of conviction, though illegal, was not without jurisdiction. Seventy years later, Lord Sumner re‑affirmed this principle and observed in R. v. Nat Bell Liquors Ltd. ((1922) 2 A C 128) that the supervision of certiorari "goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise". Thus, as aptly described by Rubinstein, this writ is "a remedy available for intra jurisdictional defects", and, as rightly pointed out by the learned author, even the writ of `mandamus' "is not confined to the question of jurisdiction and validity". I know that the ancient names of writs have now gone, but whilst this change may have enlarged the scope of judicial review, it has not otherwise altered the principles on which relief is granted. Therefore, in the language we use after the 1962 Constitution, an order without lawful authority may not be a void order.

14. I now turn to the judgment of the learned Single Judge. After referring to their Lordships' judgment in Chaturbai's case, he observed: "This decision brings about a collapse of the very foundation upon which the title of the (appellant) rests. I have also no difficulty in holding that the super imposition of an order of confirmation to a transaction which was otherwise invalid in law cannot in any way add to its sanctity of its legal validity". Now, in Chaturbai's case, the petition filed by the respondents to challenge the Custodian's orders was allowed because, according to Yaqub Ali, J., it "suffered from an error patent on the record", but the question here is whether the said order was void, because unless it was void it could not have been set aside in a collateral attack. According to the learned Single Judge, it was void because it confirmed a sale which was void in view of clause (b) of subsection (1) of section 17 of the Registration Act. But with respect, the question was more complicated. Section 32 of the Sind Co‑operative Societies Act is an exception to this cause (b). The appellant relies on it. Whether he can do so depends on the rules of the Society and the nature of the transfers confirmed by the said order. Now although the said order had reference to this complication, the learned Single Judge did not examine it. This was unfortunate, the more so as it was not alleged that the said order was contrary to the Society's rules. No doubt this was because the petition only contains an oblique reference to the said order as a "confirmation certificate" without any particulars whatsoever. But the first three respon dents cannot take advantage of their own faulty pleadings, and as the burden was on them to prove that the said order was void, they had to show that it could not be saved by section 32 of the Sind Co‑operative Societies Act. This they cannot do, because they have not produced even the Society's rules, and the result is their plea that the said house falls under clause (b) of sub section (2) of section 3 of Act XII of 1957 fails, therefore, the petition must be dismissed, as the said house was not evacuee after the said order.

15. However, if I am wrong, it is necessary to consider one of Mr. Khalid Ishaque's alternative submissions. According to learned counsel, the appellant's case was supported by section 53‑A of the Transfer of Property Act. Secondly, the equities were against the first three respondents because of their conduct, and here it is sufficient to refer to two circumstances. The first is that half the price for the P. T. D. of the said house had been paid by them after they had become aware of the appellants' claim. The second is that they have not clearly stated in their petition that the said house had been declared non‑evacuee by the said order. Whether the said order was legal or illegal is another matter. But it was their duty to have stated the position fairly in their petition. Instead, there is only an oblique reference to a "confirmation certificate" relied upon by the appellant. Such evasive pleadings are to be deprecated in a Constitutional Petition, and as a Constitu tional Petition is a discretionary remedy, Mr. Khalid Ishaque's further sub mission was that, in these circumstances, the learned Single Judge had erred in exercising his discretion in a Constitutional Petition in favour of the first three respondents.

16. The submission turns on section 53‑A of the Transfer of Property Act and Mr. Khalid Ishaque drew our attention to the fact that this provision had not been considered by their Lordships in the three judgments of the Supreme Court to which Mr. Akhtar Mahmood had referred us. This is correct, strange as it may seem. But as I showed earlier, their Lordships have held this section in Mst. Ghulam Sakina's case to be an exception to section 49 of the Registration Act. With this observation, I would now consider the section. It reads:

"53‑A. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferee or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

The said order proves that the evacuee owner had received the consideration fixed in the sale agreement, and it further holds that this was adequate. Secondly, it was neither disputed before us that the appellant was a transferee within the meaning of this section nor that he had obtained possession under the agreement. Therefore, we observed that his case appeared to be supported by this section. Mr. Akhtar Mahmood's reply was that the Custodian had succeeded to the rights and interests of the evacuee owner not by any agree ment but by the provisions of an overriding statute, namely, the evacuee laws which have been in force from time to time. This is correct, but the words "the transferer or any persons claiming under him" are wide enough to include a statutory transferer.

17. Learned counsel then took us through the provisions of the evacuee laws and submitted that even though the Custodian was the successor‑in- interest of the evacuee owner, the Legislature had enlarged his rights, therefore, the equity of section 53‑A would not be available against the Custodian. In this connection, learned counsel referred us to section 8 of the Administra tion of Evacuee Property Act, XII of 1957. This provision as submitted, confers on the Custodian wider rights against the tenant than had been enjoyed by the evacuee owner. Similarly, under section 10 the Custodian has rights which the evacuee owner could not have possessed. But while the Custodian's rights have been enlarged in certain respects, as submitted by Mr. Akhtar Mahmood, neither this Act nor any of the previous evacuee laws contained any provision curtailing the evacuee owners' liabilities under section 53‑A of the Transfer of Property Act. As the Legislature is presumed to be aware of the laws, this absence of an express provision with regard to section 53‑A means, in my humble opinion, that the Legislature did not intend to widen the Custodian's powers in this respect or to limit the evacuee owner's liabilities under this section. The learned counsel then referred us to judgments of learned Single Judges of this Court, but none of the judgments cited were on the precise point under consideration, nor is it necessary to examine them, because Mr. Khalid Ishaque referred us to a judgment of a Division Bench of this Court on the precise question before us.

18. In Muhammad and another v. The Custodian of Evacuee Property, West Pakistan, Karachi (P L D 1962 Kar. 312) the petitioners had agreed to purchase a property from a Hindu and had taken possession of it before the Hindu's death. They had however not paid him the full price. This was long before partition, but as the property was treated in 1955 as hidden evacuee property, they filed an application under section 22 of Act XII of 1957 for "a declaration about the non‑evacuee nature of their interest in the property", and as this application was dismissed, they applied for a writ of mandamus in this Court. The Custodian opposed the petition on the same objections which were advanced before us by Mr. Akhtar Mahmood. The learned Judges held that the Custodian had rightly treated the property as evacuee. They then proceeded to consider the effect of section 53 A of Transfer of Property Act and Act XII of 1957, Anwarul Haq, J., observed at page 314 "the property which would vest in the Custodian in any particular case would be the bundle of rights and interests which the evacuee concerned enjoyed on the 1st day of March 1947. The intention of the evacuee legislation is clearly to provide for the administra tion of evacuee property, and not for the improvement and enlargement of the rights of evacuees. In the present case, the only right which the evacuee heirs of the vendor possess in the land in question was the right to receive the balance of the sale price, and not the right to dispossess the petitioners. It is only this right that must be deemed to have vested in the Custodian under section 7 of the Act and no more. Viewed in this light there is no conflict between section 53‑A of the Transfer of Property Act and the relevant provi sions of Act XII of 1957." Accordingly, although their Lordships dismissed the petition, they observed that the Custodian should give the petitioners a declaration about their interest in the disputed property under section 22 of Act X11 of 1957.

19. The only difference between this case and the instant case is that, according to the said order, the evacuee owner was paid the full considera tion. This means that the appellant's case is on a higher footing than that of the petitioners in the case cited, therefore, on the assumption the said house is evacuee, on the rule laid down by Anwarul Haq, J., the appellant would have been entitled to a declaration about his interest in it under section 53‑A of the Transfer of Property Act. And the result of this section is that even if the P. T. D. obtained by the first three respondents is valid, as held by the learned Single Judge, these respondents can neither evict the appellant, nor demand rent from him, nor interfere with his possession of the said house. Mr. Khalid Ishaque described the P. T. D. as the empty shell of title, and this description is not inappropriate in the peculiar circumstances of this case.

20. In this background Mr. Khalid Ishaque's further submission was that as a constitutional petition was a discretionary remedy this was not a fit case in which it could have been allowed. In support of this submission learned counsel referred us to the observation of Hamoodur Rahman, C. J., in Raunaq Ali v. Chief Settlement Commissioner (PLD1973SC 236), Hamoodur Rehman C. J., observed at page 258: "an order in the nature of a writ of certiorari or mandamus is a discre tionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."

Reverting now to the circumstances which, according to Mr. Khalid Ishaque, brought the instant case within the rule laid down in these observations, the fact that half the price for the said house had been paid by the first three respondents after they became aware of the appellants' claim would not, I think, be relevant to the equities of the case, because litigation about evacuee property seems unfortunately to be the rule rather than the exception. Then, as to Mr. Khalid Ishaque's criticism of the pleadings, whilst I agree with it, in the circumstances of the case, we would not be justified in dismissing the petition on this ground. Finally, as to the appellants' equity under section 53‑A of the Transfer of Property Act, it is fully protected by the rule laid down by Anwarul Haq, J. in Muhammad and another v. The Custodian of Evacuee Property, therefore, the submission fails.

21. Mr. Khalid Ishaque criticised the judgment under appeal on other grounds also, but it is not necessary to consider these submissions because Mr. Akhtar Mahmood has failed to prove that the said order was void. Therefore, as it cannot be questioned in these proceedings, the result is that the said house ceased to be evacuee from the date on which it was passed, and this means that the learned Single Judge erred in setting aside the 4th respondent's order of 19th May 1965. Accordingly, I would set aside the judgment of the learned Single Judge and allow the appeal, but as it turned on a difficult question of law, I would not award costs.

JAMALULDDIN H. AHMED, J.‑I agree.

K. B. A. Appeal accepted.