P L D 1960 (W (PLP)

On 18th November 1949, the then Custodian declared him to be non‑evacuee. On the application of one Muhammad Anwar of Nawabshah dated 5th September 1953, the Assistant Custodian, Nawabshah, started proceeding against Lalchand under sec tion 23‑A of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (hereinafter called the Ordinance). Lalchand was called upon to show cause why he should not be declared an intending evacuee. The proceeding under section 23‑A of the Ordinance continued en on 17th November 1956 Ordinance XX of 1956 was passed. This Ordinance XX of 1956 omitted Chapter V‑A of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. Chapter V‑A of the Ordinance dealt with declaration of a person as intending evacuee. Another very significant change which was brought about by Ordinance XX of 1956 was that no person or property not treated as evacuee or evacuee property immediately before the first day of January 1957 was to be treated as evacuee or evacuee property on or after the said date. After about four months the National Assembly passed Act XII of 1957. The legislature made certain modifications to the provision relating that no person or property not already treated as evacuee or evacuee property on or after 1st January 1957 was to be treated as evacuee or evacuee property. It would be sufficient ‑at this stage to state that pending proceedings for treating such person or property as evacuee or evacuee property was saved from the provision that persons or property not already declared evacuee before 1st January 1957 was not to be treated as evacuee. The Assistant Custodian on June 14, 1957 made a reference to the Additional Custodian as to what should be done with the proceeding initiated against Lalchand under section 23‑A of the Ordinance. The Additional Custodian ordered on 17th August 1957 the record to be consigned in view of the existing law. On 16th August 1958 the Assistant Custodian, Nawabshah. issued a notice against Lalchand to show cause why he should not be prosecuted under section 32 of Act XII of 1957 for concealing evacuee property. He was sought to be prosecuted on the ground that he was in possession of evacuee property left by his sons and daughters who were in India. Lalchand died on 7th September 1958 at Poona in India. He is said to have left a will dated the 25th August 1958 whereby he bequeathed all his property to his wife. On 7th October 1958 the Assistant Custodian, Nawabshah, issued a notice to the petitioner to show cause why the entire property should not be taken over as evacuee property". She was also called upon to render accounts of the properties of Lalchand. The Assistant Custodian by his order of 7th November 1958 came to the conclusion that the property of Lalchand was evacuee property. It may be mentioned that the learned Assistant Custodian has not given any clear finding that Lalchand was an evacuee and that his properties are evacuee properties. He concluded his finding on issue No. 1 holding that the "properties owned by Lalchand vest in Custodian after the order of Custodian i.e., 18‑11‑1949". The issue No. 1 was to the following effect "Whether Lalchand son of Nenumal has assumed the character of an evacuee and his properties as evacuee properties after 18‑1 I‑1949 ?" The short question for consideration is whether after the passing of Act XII of 1957 the learned Assistant Custodian, Nawabshah had jurisdiction to treat the property of Lalchand as evacuee property. In this connection, section 3 of Act XII of 1957 requires consideration. It runs as under :‑ "

3. Property not to be treated as evacuee property on or after 1st 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. (2) Nothing in subsection (I) shall apply. (a) to any person in respect of whom or to any property 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 28th day of February 1947, has not been accepted or approved by the Custodian." In view of the above provision two considerations arise firstly, whether the person or property of Lalchand was treated as evacuee or evacuee property immediately before the first day of January 1957 ; and secondly, 'whether any proceeding was pending immediately before the 1st January 1957 for treating Lalchand or his property as evacuee. Mr. Nusrat, the learned advocate for the Assistant Custodian, did not contend before us that the person of Lalchand or his property was treated as evacuee before the 1st of January 1957. He, however, very strenuously contended that proceedings within the exception given under section 3 (2) (a) were pending before the 1st of January 1957 for treating Lalchand and his property as evacuee. In support of this contention Mr. Nusrat relied on the proceeding commenced by the Assistant Custodian, Nawabshah, under section 23‑A of the Pakistan Administration of evacuee Property Ordinance, 1949. The question is whether the proceeding under section 23‑A can be said to be a proceeding "for treating such person as evacuee or such property as evacuee property". Under section 23‑A of the Pakistan Administration of Evacuee Property Ordinance, 1949 the Custodian could after calling upon the person whom he had reason to believe to be an intending evacuee to show cause why he should not be declared an intending evacuee‑declare him to be so after stating reasons. Section 23‑B of the said Ordinance gives the consequences of such declaration. The person who had been declared an intending evacuee could not transfer his immovable property without the permission of the Custodian. It cannot be said that the proceedings under section 23‑A of the Evacuee Property Ordinance, 1949 for declaring a person as "intending evacuee" is the same as. proceedings for treating a person as evacuee or his property as evacuee property. The Pakistan Administration of Evacuee Property Ordinance, 1949 makes a clear distinction between `evacuee' and `intending evacuee'. Section 2 of the Ordinance defines `evacuee', `evacuee property' and `intending evacuee'. It is not necessary for the purpose of the disposal of this case to reproduce the definitions of these terms. It has not been contended by Mr. Nusrat before us that there is no distinction between `evacuee' and `intending evacuee'. The most vita difference between `evacuee' and `intending evacuee' is that while the property of the evacuee vests in the Custodian that of the intending evacuee does not vest in the Custodian. The only embargo put on the, property of the intending evacuee is that he could not transfer the property without the permission of the Custodian. While not disputing that there is a basic difference between `evacuee' and `intending evacuee', Mr. Nusrat relied upon the words "any action has commenced" in section 3 (2) (a) of Act XII of 1957. He contended that "any action" is wide enough to include any action under section 23‑A of the Pakistan Administration of Evacuee Property Ordinance, 1949. It is true the words "any action" are wide enough to include even a proceeding under section 23‑A of the Ordinance, but when we read these words along with what follows it becomes clear that the `action' mentioned in sub‑clause (2) (a) of section 3 of Act XII of 1957 is limited to "treating such person as evacuee or such E property as evacuee property". The key word is `for' in sub clause (2) (a) of section 3 of Act XII of 1957. It is not "any action" that may have been commenced but the action must be with a view to treat such person as evacuee or such property as evacuee property. Moreover any proceeding that may have been commenced under section 23‑A of the Pakistan Administration of Evacuee Property Ordinance 1949 came to an end with the coming into effect of the Pakistan Administration of Evacuee Property Act, 1957. That this is the only reasonable conclusion is evident from the fact that the legislature did not provide any appeal from an order that may be passed under proceeding commenced under section 23‑A of the Ordinance. Section 43 of Act XII of 1957 does not make any provision for appeal, revision or review of any order that may be passed on proceeding commenced under section 23‑A of the Ordinance. Mr. Nusrat next contended that as an alternative remedy was open to the petitioner by way of appeal to the Custodian, the petition should be dismissed. It is not necessary to enumerate cases in which it has been held that where a judicial body acts without jurisdiction this Court can issue a writ of certiorari. For the reasons that have already been given it is clear that Lalchand has not been held to be evacuee before the 1st of January 1957 and no proceeding was pending before that date in holding Lalachand or his property as evacuee. The Assistant Custodian acted without jurisdiction in passing the impugned order dated the 7th November, 1958. We would for the reasons given above quash the order of the Assistant Custodian, Nawabshah dated the 7th November, 1958. Under the circumstances of the present case we would make no order as to costs. A. H. Order quashed.