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Petitioner: MAJ. MEHTAB KHAN NOOR MUHAMMAD VS Respondent: THE REHABILITATION AUTHORITY JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): N/A Title:MAJ. MEHTAB KHAN NOOR MUHAMMAD vs THE REHABILITATION AUTHORITY
JUDGMENT
Reported As: PLD 1973 Supreme Court 451 Result: H. Judgment JUDGMENT ANWARUL HAQ, J.-This judgment will dispose of Civil Appeals bearing Nos. 92 and 93 of 1967, which involve common questions of law and fact. The appellant in the first case is Major Mahtab Khan, who purchased agricultural land measuring 282 kanals and 19 marlas, situate in village Topi, tehsil and district Rawalpindi, from three evacuees named Kartar Singh, Ragabir Singh and Baldev Singh on the 20th of May 1947 under a registered sale deed for Rs. 8,958. He obtained possession of the lands under the said sale, and mutation was also sanctioned in his name on the 27th of May 1947. Since then he has been continuously shown as owner of the property in the relevant revenue records. The land purchased by Major Mahtab Khan from the three evacuees was part of a joint khata measuring 613 kanals 19 marlas. The remaining area of 331 kanals was purchased by Noor Mohammad, appellant in the second appeal, and one Maulvi Ghulam Haider Khan Jandali. In their cases also the sales were effected through registered sale deeds, possession delivered and the necessary mutations effected by the Revenue authorities. During the year 1954-55, the partition of the joint khata was carried out by the three vendees, and this position was reflected in the Settlement record prepared in that year. During the years 1953 to 1960, the appellants in both cases sold some of the lands as building sites to a number of persons, who have since constructed residential houses thereon. However, in September 1960 the Enforcement Staff examined the matter at the instance of one Col. Inayat, and advised tae appellants to obtain confirmation of the sales in their favour under section 20 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), from the Custodian of Evacuee
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Property, as the sales had been effected after the 1st of March 1947. The appellants accordingly made the necessary applications on 8-9-60, and also prayed for condonation of delay under section 5 of the Limitation Act mainly on the ground that they were residents of Azad Kashmir and were not aware of the requirements of evacuee laws obtaining in Pakistan. These applications were dismissed as time--barred by the Deputy Custodian of Evacuee Property on 19-11-60. The appellants filed appeals before the learned Custodian of Evacuee Property, but they were also dismissed by his order dated the 9th of December 1960, on the ground that ignorance of law was no excuse, and that he had already declined to condone delay in another similar case decided by him on the 3rd of December 1960, namely, Appeal No. 779 of 1960 (Mohammad Nawaz v. Bhagwan Das). The learned Custodian repelled the contention that by virtue of subsection (1) or section 3 of Act XII of 1957 (hereinafter referred to as the Act) the property could no longer be treated as evacuee property after 1-1-57, as it had not been so treated immediately before that date. The appellants then moved the successor Custodian in review, but failed. While dismissing the review applications by his orders dated the 18th of July 1961, the learned Custodian stated that he did not find any legal justification to disturb the order made by his predecessor in due exercise of his discretion, but nevertheless these were cases in which the vendees could, if so desired, have the properties transferred to them on payment of 13 years' rent (public dues), and 1i times the present market value, in terms of the policy contained in letter No. 9793-PI, Reh/60 dated the 14th of duly 1960, from the Settlement Com--missioner (Policy), Lahore to all Deputy Settlement Commis-- sioners in West Pakistan and Karachi. He further observed that the charge which had been created or which might be created by the Custodian Department in favour of the appellants on account of the sale price paid by them genuinely to the evacuee owners would have to be adjusted towards the extra price that they would now have to pay. Finally, he directed that a copy of his order should be sent to the Chief Settlement Commissioner, West Pakistan, who might like to initiate steps to protect sales which had been held by the Custodian to be genuine and for adequate consideration, but which could not be confirmed because of the impediment of the rule of limitation, as such bona fide vendees were morally, although not legally, entitled to indulgence in the recognition of their title, their failure to get their transactions confirmed by the Custodian being due primarily to ignorance of the requirements of evacuee laws on the subject, rather than to any desire on their part to conceal the transactions. Having failed to obtain confirmation of their sales from two successive Custodians of Evacuee Property, the appellants filed direct appeals in the Supreme Court under Article 160 of the 1956 Constitution in which leave was granted on 9-4-62. Contem--poraneously, the appellants moved the Central Government for exempting the lands in dispute from the operation of evacuee laws, under section 55 of the Act. The Central Government did not agree to grant the exemption prayed for by the appellants, but nevertheless requested the then Custodian of Evacuee Property to re- examine the matter. In order to enable the Custodian to undertake this re-examination, the appeals pending in the Supreme Court were with drawn by the appellants. Ulti--mately, the learned Custodian reached the conclusion, embodied in his letter of the 23rd of April 1963, addressed to the Central Government in the Rehabilitation Ministry, that he had no jurisdiction to deal with the matter on account of the curtailment of the powers of review since the 7th of June 1962. He also expressed the opinion that the Government could no longer exempt these properties under section 55 of the Act from the operation of evacuee laws as they already stood acquired by the Central Government by means of a notification issued on 8-6-60 under section 4 of the Displaced Persons (Land Settlement) Act of 1958, and had since then vested wholly and absolutely in the Central Government and had ceased to be evacuee property. He, therefore, suggested that the Government might consider transferring these properties to the appellants in accordance with the rules and notifications issued by the Government on the subject.
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On the 5th of August 1963, the Chief Settlement Commis--sioner issued a notice to the appellants to show cause why the possession of the lands should not be resumed from them, as they were evacuee property. Instead of approaching the Government in terms of the suggestions made by two successive Custodians, the appellants invoked the extraordinary jurisdiction of the high Court by means of two separate petitions, under Article 98 of the 1962 Constitu--petition. Writ Petition No. 1070 of 1963 instituted by Major Mahtab Khan was dismissed by a Division Bench of the then High Court of West Pakistan on 14-4-64, whereas Writ Petition No. 1062 of 1963 moved by Noor Mohammad was dismissed by another Division Bench of the same High Court on 15-5-64. Both the Benches took the view that the learned Custodian of Evacuee Property could not be said to have acted illegally or arbitrarily in refusing to condone delay in the matter of filing applications for confirmation of sales under section 20 of the Act, and that the contention that the lands could not be treated as evacuee property after 1-1-57 in terms of subsection (PLD 1964 Lah. 274) of section 3 of the Act could not be accepted in view of the decision of the Full Bench of the High Court in Syed ali Iqtidar Shah Dara and others v. The Custodian, Evacuee Property (PLD 1964 Lah. 274). It is contended by the learned counsel, appearing for the appellants in the two cases, that the genuineness of the sales being beyond question, on account of the fact that they were effected by registered sale deeds and adequate consideration was paid before the Sub-Registrar in each case, the learned Custodian, who dismissed the appellants' applications for confirmation on 9-12- 60, clearly acted illegally and arbitrarily in refusing to con--done delay under section 5 of the Limitation Act. It is submitted that the maxim that 'ignorance of law is no excuse' is not absolute and has no application to a case where such ignorance can be demonstrated as a matter of fact, and that in any case, the learned Custodian was in error in refusing to condone delay simply on the ground that in another similar case he had refused to do so. It is contended that the appellants being residents of Azad Kashmir and there being a quick succession of evacuee laws in Pakistan between 1949 and 1957, sufficient cause had been shown for condonation of delay, and that cause would have been accepted if the learned Custodian had not allowed his mind to be influenced by extraneous considerations, such as the possibility of granting such condonation in other similar cases or re-opening of cases in which condonation had been refused. It is next contended that the Pakistan (Administration of Evacuee Property) Rules, 1950, framed under section 46 of Ordi--nance XV of 1949, in fact, ceased to be operative on the repeal of that Ordinance as they were not kept alive by any specific provision in the successive statutes which replaced the original legislation, namely, Ordinance XVIII of 1956, Ordinance XX of 1956 and Act XII of 1957. It is submitted that even section 24 of the General Clauses Act, 1897 is of no avail where there have bean successive replacements of the original statute, as this section only saves those rules, orders, notifications, etc., which are issued under the previous statute and not those which are only deemed to have been so issued by the application of this section itself. In other words, it is said, section 24 comes into play only if there is one repeal of the parent legislation, but cannot save rules made under a remote legislation with several Intervening statutes. It is further contended that in any case rule 12, which pre--scribes the period of limitation as 60 days from the date of the publication of these rules or from the date of the transac--petition, whichever be later, is inconsistent with sections 20 and 22 of Act XII of 1957, as both these sections are prospective and not retrospective in nature, and limitation could not run from a date in 1950, when the Act itself was enacted on the 15th of March 1957. It is submitted that in these circumstances even If the rules were held to be operative by the application of sec--petition 24 of the General Clauses Act, rule 12 would have to be struck down owing to its being inconsistent with the statute; or in the alternative limitation would have to be counted at best from the date of the enactment of Act XII of 1957, with the result that the delay would be of three years and not of 13
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years, as calculated by the learned Custodian, as the applications for con--firmation were submitted on the 8th of September 1960. It seems to the learned counsel that if this aspect of the matter had been properly kept in view by the learned Custodian he might have been disposed to condone delay, but nevertheless, his mistaken view of the law precluded him from doing so. Lastly, it is strenuously contended that the lands in dispute could not be treated as evacuee property after the 1st of January 1957, in view of the bar contained in subsection (1) of section 3 of the Act, for the reason that they were admittedly not treated as evacuee property Immediately before that date, and for the first time such a threat arose only in 1963 when the Chief Settlement Commissioner issued a notice in that behalf. At best, it is added, the threat might date back to September 1960 when the Enforcement Staff advised the appellants to obtain confirma--petition of their sales from the learned Custodian of Evacuee Property. It is submitted by the learned counsel that the except--petition contained In clause (b) of subsection; (2) of section 3 afore-- said does not include cases where a person is in occupation under colour of title as distinguished from an unauthorised occupant whose right, title or Interest to occupy, supervise or manage evacuee property has not been approved by the Custodian. Mr. Hidayat Ullah Mokal, appearing on behalf of the Custodian of Evacuee Property, does not dispute the genuineness of the two transactions under consideration, but refutes the various legal contentions raised on behalf of the appellants. He further raises an important preliminary objection regarding the availability of the Custodian's jurisdiction! To deal with these properties under Act XII of 1957 in view of their acquisition under section 4 of the Displaced Persons (Land Settlement) Act by means of a notificationissued in this behalf on the 8tb of June 1960. He submits that the lands having become a part of the compensation pool after their acquisition by the Central Government, the only authority competent to deal with them is the Central Government or the Chief Settlement Commissioner and not the Custodian of Evacuee Property. Mr. Mokal contends that in these circumstances the question of the confirmation of the sales in favour of the appellants can no longer arise and the only possible way of affording relief to the appellants would be in terms of the policy letter referred to in the review order made by Mr. Justice Sajjad Ahmad Jan as Custodian on 18-7-61 or in the light of any other provisions and powers that may be available to the Government in this behalf under the law. We shall first take up the preliminary objection raised by Mr. Mokal regarding the jurisdiction of the Custodian of Evacuee Property. Section 4 of the Displaced Persons (Land Settlement) Act is in the following terms :- "(1) The Central Government may, for any of the purposes of this Act, by Notification in the official Gazette, acquire any land within the Karachi Division. (2) As and when so required by the Central Government, the Government of West Pakistan shall, for any of the purposes of this Act, by Notification in the official Gazette acquire such land situate in the Province (excluding the Karachi Divi--sion) as the Central Government may deem it necessary to acquire. (3) On the publication of a Notification under subsection (1) or subsection (2), the right, title and interest of any evacuee or persons claiming through him in the land specified in the Notifi--cations shall, with effect from the date of such publication, be extinguished and the land shall vest wholly and absolutely in the Central Government free from all encumbrances. (4) The Central Government shall prescribe the extent to which and the period within which any charge created by a Custodian on any land acquired under subsection (1) or sub--section (2) or any decree granted by a Civil or Revenue Court against such land, shall be satisfied or such compensation as is determined by the High Court under subsection (3) of sec--petition 43-A of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) shall be paid, and the manner in which it shall be satisfied or paid.
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(5) Notification under subsection (1) and subsection (2) may be issued from time to time and may relate to- (a) all land generally ; or (b) any class of land ; or (e) all land situated in a specified area ; or (d) any particular land." The term land, as used In this section is defined in Clause (3) of section 2 of the Act as meaning evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including gardens, unsurveyed land and trees or buildings and other structures standing thereon and includes all rights of evacuee in such land, but does not include urban evacuee property or such evacuee land as may be declared by the Chief Settlement Commissioner as a building site. It will be seen, therefore, that for the purpose of acquisition under section 4 the property must be evacuee agricultural land on the date of the relevant notification. Once the notification is issued, A it has the effect of extinguishing the right, title and interest of any evacuee or person claiming through him to the land specified in the notification, with effect from the date of its publication, and the land shall vest wholly and absolutely in the Central Government free from all encumbrances. The first notification under this section was issued on the 15th of April 1959, by which all land allotted under the West Pakistan Rehabilitation Settlement Scheme prepared by the Reha--bilitation Commissioner under section 6 of the Pakistan Rehabilita--petition Act, 1956, was acquired. This notification obviously did not apply to the lands in dispute, as these lands had not been allotted, at any time, under the West Pakistan Rehabilitation Settlement Scheme. However, a second notification was then issued on the 8th of June 1960, by which the remaining land in the Province of West Pakistan, excluding the Federal Capital and Special Areas, was acquired. This notification contained two exceptions :- (i) Land for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957, or under any law for the time being in force for the administration of Evacuee Property in West Pakistan has been accorded before the date of this notifica--petition, and (ii) Lands with regard to which any proceedings were pending on the date of this notification under the Pakistan (Administra--petition of Evacuee Property) Act, 1957. Now, it is common ground between the parties, that these two exceptions are not attracted in the present case. We have already stated that for the first time proceedings in respect of these lands were initiated by the Enforcement Staff' in Septem--ber 1960, and the applications for the confirmation of the sales were made by the appellants after the Enforcement Staff had taken cognizance of the matter. It is, therefore, clear that on the 8th of June 1960, none of the exceptions contained in the notifi--cation were applicable for these lands. We also find that although in the year 1953 the lands were included within the Cantonment limits of Rawalpindi, yet they continued to fall within the definition of land as contained in Clause (3) of section 2 of the Act for they were agricultural lands at the time they became evacuee property by operation of law, and they have not so far been declared to be building sites by the Chief Settlement Commissioner. The lands would therefore be covered by the second notification issued on the 8th of June 1960, provided they could be treated as evacuee property on the date of the notification in spite of the prohibition contained in this regard in subsection (1) of section 3 of Act XII of 1957. This section is in the following terms :- "3. Property not to be treated as evacuee property on or after 1st January 1937.-(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee
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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. (2) Nothing in subsection (1) shall apply- (a) To any person in respect of whom or to any properly in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property ; or (b) To any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February 1947, has not been accepted or approved by the Custodian." It is an admitted position that although the lands had become evacuee property by virtue of the definition of that term as con--tained in Clause (3)(b) of section 2 of Act XII of 1957, namely, "property of an evacuee obtained by transfer on or after the test day of March 1947, until the transfer is confirmed by the Custo--dian", 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 whatsoever before September 1960. As explained by the Full Bench in Syed A.I Iqtidar Shah Dara and others v. The Custodian, Evacuee Property and by this Court in Qutab A.I v. Custodian, Evacuee Property (PLD 1964SC58) and Abdul Khaliq v. Kishanchand (PLD1964SC 74), the word treatment, as used in section 3 of Act XII of 1957, connotes something more than the mere vesting of the property in the Custodian by operation of law. It indicates B that some overt act must have been done by the Custodian or Rehabilitation authorities to deal with the property as evacuee property. As no such act was done, in respect of the lands in dispute, immediately before the date specified in subsection (1) of section 3 of this Act, namely, the 1st of January 1957, the lands could not be treated as evacuee property thereafter and would not therefore be amenable to acquisition under section 4 of the Dis--placed Persons (Land Settlement) Act, unless they fell within the mischief of the exception contained in Clause (b) of subsection (2) of section 3 aforesaid. For detailed reasons given by us in Civil Appeal No. 32 of 1967 (The Custodian of Evacuee Property v. Rais Ghazi Mohammad) decided by us today, we have held that the protection granted by subsection (1) of section 3 of the Act is not available to properties occupied, supervised or managed by persons whose C authority or right so to do after the 28th day of February 1947 has not been accepted or approved by the Custodian of Evacuee Property and that these words are wide enough to include cases of vendees of evacuee properties where the sales were effected after the 28th day of February 1947 and they have not been con--firmed by the Custodian as required by section 20 of the Act. We have arrived at this conclusion In consideration of the com-- bined effect of the language used In Clause 2(b) of section 3 and the definition of the term `evacuee property' as contained in Clause 3(b) of section 2 of the same Act. It is, therefore, clear that the lands in dispute continued to be evacuee property and could be so treated on the date of the publication of the relevant notification under section 4 of the Displaced Persons (Land Settlement) Act, 1958, with the result that they stood validly acquired by the Central Government with effect from the 8th of June 1960, free from all encumbrances, consequent upon the extinction of the rights of their evacuee owners. It is, however, contended by the learned counsel for the appellants that in view of the provisions contained In section 5 of Act XII of 1957, any subsequent legislation dealing with evacuee property must be read as being subject to the provisions of this Act, with the necessary consequence that irrespective of the acquisition of property under the relevant Settlement laws, the Custodian shall continue to have jurisdiction to deal with it for the reason that it was once evacuee property. It is next submitted that even after their acquisition under section 4 of the Displaced Persona (Land Settlement) Act, the lands, nevertheless, continue to bear the label of evacuee property, as the vesting in the Central Government is only for the purposes of this Act and could not operate to
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deprive the Custodian of the exclusive jurisdiction con--feered on him by Act XII of 1957. In support of this particular contention a reference is made to sections 13, 24, 25(2)(w) and 43-C of Act XII of 1957 which, according to the learned counsel, show that the Custodian of Evacuee Property can deal even with non-evacuee property. One last point made by the learned counsel in this connection is that in any case as the confirmation of the sales is to take retrospective effect from the date of the transaction, any subsequent change in the character of the pro--perty by virtue of its acquisition under the Settlement laws could not affect the Custodian's jurisdiction. It is correct that section 5 of Act X11 of 1957 does contem--plate that "the provisions of this Act, and any rule or order made thereunder, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law", yet it is clear that the overriding effect given to this statute is not of such an absolute nature so as to deprive the Legislature of its power to undertake fresh legislation for dealing with evacuee property. In the first place, it is to be noticed that the provisions of this Act and any rule or order made thereunder are to over--ride "any other…
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