GOVERNMENT OF N.-W.F.P. Versus ILTAF HUSSAIN

MOHAMMAD ISHAQ KHAN, J.‑‑ This revision petition arises in the following circumstances:

Fazle Qadir and Fazle Ilahi, the predecessors‑in‑interest of respondents 1 to 14, were owners of 159 kanals and 4 marlas of land situate in Mahal Kakshal, Tehsil Peshawar. Through .a mortgage deed registered on 20‑5‑1919 the land in suit was mortgaged to Sardar Arjun Singh, Prem Singh and Uohrach Singh for a sum of Rs.10,000 for a period of 3 years. This transaction was entered in the Revenue Record and also in the Jamabandi for the subsequent years. They were respectively shown therein as mortgagors and mortgagees. As the mortgagors failed to pay the amount, the mortgagees filed a suit for foreclosure which was decreed on 28‑1‑1933 and in execution of this decree the mortgaged land was sold in auction and was purchased by Prem Singh and Arjan Singh. This litigation finally concluded by the dismissal of the revision petition of the mortgagors by the then Judicial Commissioner, N.‑W.F.P., vide his judgment dated 15‑5‑1936 where-after a sale certificate in favour of the mortgagees was issued on 5th of May, 1937. On the basis of this sale certificate mutations Nos. 195 and 231 were attested in favour of the auction purchasers on 17‑2‑1940 and 7‑7‑1940 respectively. Despite the fact that these mutations were entered in the jamabandi for the year 1940‑41, the entry was subsequently crossed and a note was appended to the effect that these mutations had been sent for review. An endorsement in red ink was also made in the record to the effect that these mutations were in respect of sale in favour of the non‑Muslim auction‑purchasers. In the Jamabandi for the year 1946‑47, which was prepared in the year 1950‑51, this land was shown in khata No.87 and 88 as the property of Fazle Karim and others and Sardar Udham, Prem Singh and Uohrach Singh were shown as its mortgagees. In Khata No.88 there was an endorsement that mutation No.230 was sent for review. But it may be mentioned here that these mutations are not traceable on the record and the case of Sirajuddin son of Gul Sher, respondent No. 15 herein, who subsequently lodged proceedings regarding the suit land, was that the original Muslim owners in collusion with the Revenue Staff had managed to remove these mutations and got it recorded that the same had been sent for review. The suit property thus remained in possession of the Mulsim owners as hidden evacuee property. Respondents 1 to 14 then applied for the redemption of the land which was allowed on 19th of March, 1976 without disclosing the relevant facts. Accordingly they got it redeemed without payment of the mortgage amount. Sirajuddin, respondent No. 15 herein, unearthed the concealed property and moved the Settlement Authority for the allotment of this land in satisfaction of his claim. He also moved the Revenue Authorities for the rectification of the record. Acting on his application the Collector, Peshawar, by the order dated 22‑10‑1971 ordered the correction of the revenue record and accordingly mutations Nos. 1486 and 1483 were duly attested in the names of the evacuee owners. An appeal against this order also failed which was dismissed by the Additional Revenue Commissioner, Peshawar, on 24‑1‑1972. As the necessary mutations had been attested, this land was treated as concealed evacuee property and allotted to Sirajuddin, respondent No.15 on 19th of February, 1972 by the Settlement Commissioner (lands). It was entered in the Register RLII and confirmed in his favour in satisfaction of his claim. Thereafter Sirajuddin sold the disputed land to Mazhar Yar Khan, respondent No.16 herein. In the meantime respondents 1 to 14 herein filed a revision petition before the Member Board of Revenue, NWFP and by his order dated 30th of June, 1972 referred the matter to the Custodian Evacuee Property under section 41 of the Pakistan Administration of Evacuee Property Act, 1957, for determining as to whether the disputed land was evacuee property or not and set aside the orders of the Collector and the Additional Commissioner. Later on Deputy Custodian of Evacuee Property by an order dated 8‑10‑1973 held the property to be "nonevacuee". Both Sirajuddin and Mazhar Yar Khan, respondents 15 and 16 herein preferred separate appeals before the Custodian of Evacuee Property who while treating the appeal as revision petition upheld the order of the Deputy Custodian and dismissed the revisions accordingly. Thereupon, Sirajuddin filed a revision petition in the High Court a/s 43‑A (2) of Act XII of 1957 but did not succeed. The High Court also dismissed the revision petition. Sirajuddin then approached the Supreme Court of Pakistan but vide order dated 16‑12‑1980 his petition for Special Leave to Appeal was also dismissed by their lordships of the Supreme Court.

2. The Govt. N.W.F.P. through its Secretary, Settlement and Rehabilitation Deptt: and Chief Settlement and Rehabilitation Commissioner NWFP, Peshawar, petitioners herein, have now come to this Court with the present petition a/s 43‑A (1) of Act XII of 1957 with a prayer that on acceptance of this revision petition the agricultural land comprising in khasra Nos. 375, 377, 379, 380, 381, 366, 373, 363, 386, 360/1362/1, 376, 378, 364, 358, 365, 359/1, 361, 359, 371, 384 and 387 situate in Moza Khashal, Tehsil Peshawar, be treated as Evacuee Property by setting aside the orders dated 11‑3‑1974 of Custodian and 8‑10‑1973 of the Addl. Commissioner/ Deputy Custodian D.I. Khan Division.

3. We have heard Mr. Bashirullah Khan, Advocate‑General, for the petitioners and S.M. Zafar, learned counsel for the respondents at great length and with their assistance have gone through the record very minutely and carefully. The learned counsel for the respondents, it may be mentioned here, raised certain preliminary /legal and factual objections which are as under:‑

(a) Firstly that the land measuring 159 kanals 4 marlas was mortgaged with the non‑Muslims for a sum of Rs.10,000/‑ for a period of 3 years whereafter a suit was filed by the mortgagees and in these proceedings the land was sold in auction to Prem Singh and Arjan Singh where-after mutation No.195 was attested on 7‑2‑1940 and No.231 was attested on 7‑7‑1940 in favour of the auction purchasers but the entry was subsequently sent for review.

(b) Secondly, that as per jamabandi of 1946‑47 the land in dispute is shown in khata Nos. 87‑88 as property of Fazal Karim etc. the Muslim owners, and Sardar Prem Singh etc. were shown as mortgagees. It is also mentioned in the jamabandi that earlier mutations have been sent up for review.

(c) Thirdly, that respondents 1 to 14 are heirs of Fazle Karim and they remained in possession of the property and applied for redemption of the land which was allowed on 19‑3‑1976 without paying the mortgage amount.

(d) Fourthly, the learned counsel submitted that Sirajuddin, respondent No.15, moved an application in March 1971 alleging that the property is evacuee property and revenue record be corrected accordingly. On this application the Collector, Peshawar, vide order dated 22‑10‑1971 ordered the correction of revenue record and accordingly mutations No. 1480 and 1483 were attested in favour of evacuee owners. An appeal against this order was dismissed by the additional Revenue Commionssioner Peshawar on 24‑1‑1972 but in the meantime the property was allotted to Sirajuddin, respondent No.15, on 19‑2‑1972 who then sold it to Mazhar Yar Khan, respondent No.16. Against the order of Additional Commissioner Revenue, respondents 1 to 11 went to Member Board of Revenue who vide order dated 19‑5‑1972 set aside the earlier orders and remanded the case a/s 41 of the Administration of Evacuee Property Act, 1957.

(e) Fifth objection of the learned counsel for respondents 1 to 14 is that the Deputy Custodian vide order dated 10‑8‑1973 ordered that the property could not be declared as evacuee property in view of section 3 of the said Act which has created an embargo in this respect. Thereafter respondents 15 and 16 filed appeals before Custodian who while treating the same as revisions dismissed the same holding that the property cannot be treated as evacuee property.

(f) Sixth part, according to the learned counsel for respondents 1 to 14, starts when Sirajuddin and Mazhar Yar Khan came up before this Court a/s 43‑A (2) in revision but the same was dismissed on 20‑6‑1974. Thereafter the matter was taken to the Supreme Court of Pakistan but it also met the same fate on 16‑12‑1980.

(g) The seventh objection of the learned counsel is that the present revision by the Govt. was filed on 10‑6‑1974 which was admitted on 15‑1‑1975. The learned counsel for respondents 1 to 14 thus vehemently argued that Section 43‑A (2) deals with the point for declaring certain property to be non‑evacuee property and in this regard judgments of the Deputy Custodian, Custodian and that of this Court are clear on the point. He also referred to the judgment of the Additional Commissioner on the point who declined to declare the property in question as evacuee non‑Muslims property a/s 41 of the Pakistan Administration of Evacuee Property Act, 1957. The pronouncement by Qaiser Khan, Custodian, as he then was, is also to the effect that the suit property cannot now be treated as evacuee property. This Court as well as the Supreme Court of Pakistan have also dismissed the revision as well as petition of respondent No.15. They have refused declaration of the suit property to be the evacuee property in light of Section 3 of the said Act. It is this provision which has been taken note of by the Deputy Custodian and the Custodian.

4. The learned counsel for respondents 1 to 14 vehemently argued that for the first time revision has been allowed in such like cases under section 43‑A of the Administration of Evacuee Property Act 1957 which runs as under:‑

"Section 43‑A. (1) If in any case in which a Custodian has, on or after the first day of January 1953, declared any evacuee or any evacuee property to be non‑evacuee or, as the case may be non evacuee property, the Central Government or the Government of West Pakistan considers it necessary so to do, it may, notwithstanding any thing in this Act or in any other law for the time being in force send, within six months of the commencement of the Pakistan (Administration of Evacuee Property) (Amendment) Act‑,.1958, or within three months of such declaration, whichever be later, the record of the case to the High Court for the purpose of satisfying itself as to the legality or propriety of the order passed by the Custodian, and the High Court may pass such order in the case as it may deem fit.

(2) Notwithstanding the provision of the Subsection (1), the High Court may, on an application made to it in this behalf by any person within the period specified in the said sub‑section, call for the record of any such case as is referred to therein, not being a case to record of which has already been sent to the High Court, for the purpose of satisfying itself as to the legality or propriety of the order passed by the custodian, and may pass such order as it may deem fit.

And according to this Section the Central Govt: or the Govt: of West Pakistan, could send, within 6 months of the commencement of Pakistan (Administration of Evacuee Property (Amendment) Act 1958 or within 3 months of such declaration, whichever be later, the record of the case to the High Court for the purpose of satisfying itself as to the legality or propriety of the order passed by the Custodian, and the High Court may pass such order in the case as it may deem fit, regarding any evacuee property to be evacuee property or non‑evacuee, as the case may be. Learned counsel thus argued that the present revision has not been filed within the stipulated period and the same is also not competent because the matter has been thrashed up to Supreme Court of Pakistan. He stressed great emphasis on the point that a/s 43‑A (1) and (2) the Government cannot avail this provision for coming to this Court because where special provision is available, this provision is excluded. In this case the Custodian had dismissed the revision‑petition on 11‑3‑1974 and according to the learned counsel as per provision of Section 43‑A of the Act record should have been forwarded within the specified period but instead of sending the record a revision petition was filed in this Court on 19‑6‑1974. This Court treating the revision as regular one admitted it on 15‑1‑1975 which means that the record of the present case was before this Court for the first time on 15th January, 1975 whereas the Govt: has been given a specific time of 3 months. According to the learned counsel for the respondents the case of the Govt: Petitioner herein, is under sub‑section (1) and not sub‑section (2) of section 43‑A. In support of his arguments the learned counsel cited an authority reported in the Lakshmi Insurance Co. Ltd. and others v. Nawa‑i‑Waqt Publications Ltd., and others (PLD 1968 SC 215) wherein their Lordship have observed as under:‑

"(d) Pakistan (Administration of Evacuee Property) Act (XII of 1957), S.43‑A‑High Court competent to interfere only with declarations made by a Custodian after 1‑1‑1953‑Declaration made prior to such date excluded from purview of High Court's jurisdiction‑‑Order passed in compliance with an original order passed prior to 1‑1‑1953 not give jurisdiction to High Court‑ Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), S.3‑Final determination of status of a person under S.3 not within power of High Court to interfere with under S.43‑A‑‑High Court's interference under S.43‑A on basis of a party's "confession", compromise or agreements disapproved".

He further placed reliance on Mohammad Hakim Mian Vs. Mafizullah Dhupi and others (PLD 1960 Dacca 114) wherein it has been observed as follows:‑

"(b) Interpretation of statutes‑ ‑Enactments regulating procedure in Courts‑‑Strict compliance imperative.

Enactments regulating the procedure in Courts are usually imperative and not merely directory. If, for instance, a right of appeal is given with provisions requiring the fulfilment of certain conditions, such as giving notice of appeal and entering into recognizances, or transmitting documents within a certain time, strict compliance with these provisions would be imperative and non‑compliance would be fatal to the appeal."

The gist of the arguments of the learned counsel for respondents to 14 was that under the law the present revision petition is not competent and the petitioners have failed to approach this Court within the specified period.

5. The Additional Advocate‑General appearing for the petitioners could not rebut the arguments of the learned counsel for respondents 1 to 14 and thus we hold that the preliminary objections regarding legal aspect as well as facts of the case raised by learned counsel for respondents 1 to 14 would prevail.

6. On facts of the case too, it is clear that the present case is not covered by the provisions of Section 43‑A of the Act because this section is attracted only when Custodian gives a declaration 6 regarding certain property. The question at the moment is whether the suit property can be treated as evacuee property or not and: against this there is no revision available to the petitioners. Regarding' concealment of facts we must say that keeping in view the judgments of the Deputy Custodian as well as the Custodian one would say that the facts were well‑known to both the forums. As the facts were before both the Custodians, therefore, there is no concealment of facts. Even the point that certain property is or is not an evacuee property is a question of fact and in this case this question has been thrashed elaborately by the lower forums and this Court in view of several pronouncements of the superior Courts on the point is not competent to go into a question of fact while exercising its revisional jurisdiction which is a limited one.

7. We have also taken note of ground No.8 in the grounds of the present revision petition which itself says that the property in suit was treated as evacuee property by the Additional Settlement Commissioner (Land) Peshawar for the first time on 19‑2‑1972 whereas Section 3 of the Act clearly says that certain property is not to be treated as evacuee property on or after Ist day of January, 1957. Section 3 is, therefore, reproduced below for ready reference:‑

"Sec.

3. Property not to be treated as evacuee property on or after January, 1957‑

(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee, or as evacuee property immediately before the first day of January, 1957, shall be treated as evacuee or, as the case‑may be, as evacuee property, on or after the said date."

In this case we must say at the cost of repetition that the two Custodians have come to the conclusion on a question of fact that the suit property is not an evacuee property, as such, the present revision petition is not available to the petitioners keeping in view 1 the factual and legal aspects of the case. The authority reported in Syed Ali Iqtidar Shah Dara and others Vs. The Custodian, Evacuee Property, West Pakistan, Lahore (PLD 1964 (W.P) Lahore 274) is a clear authority on the point and paragraph 18 thereof is reproduced below which follows as under:‑

"(1) That no person or property can be declared as evacuee or evacuee property after the lst of January, 1957 if it was not treated as such before that date by the Custodian. The treatment referred to in this section indicates that some overt act must have been done by the Custodian or Rehabilitation Authorities. Mere vesting of the properties in the Custodian under section 7 or holding possession under section 11 will not mean that such properties were treated as evacuee properties. If a person has been declared as a non‑evacuee, his property cannot be declared to be evacuee property. If the Custodian has confirmed a transaction or approved the right of supervision, management and possession of any party, such properties also cannot be declared as evacuee properties."

There is yet another authority on the point which is reported in The Rawalpindi Central Co‑Operative Bank Ltd. Rawalpindi v. Custodian, Evacuee Property, West Pakistan, Lahore and 3 others (PLD 1973 Lahore 230) paragraph 13 whereof is also reproduced as under:‑

"13. In Abdul Khaliq Abdul Razaq v. Kishanchand and others (2) the Supreme Court in interpreting the term "Treated" as evacuee property in the context observed that the "treating" must be obviously by some officer or authority who could control or make use of this property under the Act. So construed, "treating", must relate to either a declaration by the Custodian about the nature of the property or its user for the purposes of the Act by him, or by the Rehabilitation Authorities so as to indicate a consciousness of the actual or assumed nature of the property. In the opinion of the Court by the mere entry in the revenue record showing the owner of the property to be evacuee was not enough and as such it could not be said that a person or his property was "treated" as evacuee or evacuee property within the meanings of this section" . . . . . . . . . . . . "

Similarly, the case reported in Maj. Mehtab Khan v. The Rehabilitation Authority and another (PLD 1973 Sc 451) is also applicable on the point. It has been observed by their Lordships of the Supreme Court what follows:‑

"It is an admitted position that although the lands had become evacuee property by virtue of the definition of that term as contained in Clause (3) (b) of section 2 of Act XII of 1957, namely, "property of an evacuee obtained by transfer on or after the Ist day of March 1947, until the transfer is confirmed by the Custodian", and had therefore vested in the Custodian under section 7 of that Act, yet they had not been treated as evacuee property by any authority whatsover before September 1960 . . . . . . . . . . . .".

8. On the view of the matter that we take and while in respectful agreement with the authorities cited above, we are firm in our view that this revision petition is not competent and we would accordingly dismiss it with costs.

M.Y.H./572/P Petition dismissed.