P L D 1959 (W (PLP)

SHABIR AHMAD, J.

‑‑On the 24th of March 1959, Messrs Nawa‑i‑Waqt Publications Limited presented to this Court a petition (Civil Revision No. 94 Of' 1959) under section 43‑A of the Pakistan (Administration of Evacuee Property) Act, XII of 1957, as amended by the Pakistan (Administration of Evacuee Property) (Amendment) Act XLV of 1958 against the order passed by the Custodian, Evacuee Property, Punjab, orl the 1st of June 1955, whereby it. had been held, inter alia that Lakhshmi Insurance Company Limited was not an evacuee concern. The petition was considered at the preliminary hearing by my brother Kaikaus, J. who directed notice to issue to Messrs. Lakhshmi Insurance Company. On the 11th of June 1959, the application (Civil Miscellaneous No. 1017 of 1959), which will be disposed of by this order, was presented by Sh. Abdul Rashid Advocate on behalf of Lakhshmi Insurance Company, the respondent to the revision petition, and in this application it was prayed that as, because of the amendment of the Pakistan (Administration of Evacuee Property) Act XII of 1957, by Ordinance XXVIII of 1959, called the Pakistan (Administration of Evacuee Property) (Amendment) Ordinance, 1959, no petition could be made by a private person, the petition (Civil Revision No. 94 of 1959) presented by Messrs Nawa‑i‑Waqat 1'ohlica'iloac Limited on the 24th of :larch 1959 should be dismissed as being not maintain able. Notice of this application, was sent to Messrs Nawa‑I- Waqat Publications Limited and Sheikh Khurshid Ahmad, Advocate, appearing, on their behalf, has opposed the application presented by Messrs. Lakhshmi Insurance Company for the dismissal of the petition for reversion.

2. In order to fully understand the points that were raised during arguments by the learned counsel for the parties, it is desirable to have a clear picture of the law as it stood on the 24th of March 1959 when the petition for revision was presented to this Court and the changes brought in the law by Ordinance No. XXII of 1959 which was promulgated by the President of Pakistan on the 11th of April 1959 and was published in the Gazette of Pakistan Extraordinary dated the 14th of April 1959. The main enactment regarding evacuee property is the Pakistan (Administration of Evacuee Property) Act XII of 1957, which was amended by Act XLV of 1958 passed by the then National Assembly of Pakistan on the 8th of September 1958 which had received the assent of the then President of Pakistan on the 23rd of September 1958. By the amending Act of 1958, sections 43‑A and 43‑B were inserted after section 43 in Act XII of 1957. These sections read as follows :‑ "43‑A. Revision by the High Court :‑(1) if in any case in which a Custodian has, on or after the first day of January 1953, declared any evacuee or evacuee property to be a nonevacuee 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 anything in this Act or in any other law for the time being in force, send, within six months of the commencement of the Pakistan (Ad ministration of Evacuee Property) (Amendment) Act, 1958, or within three months of such declaration, which ever be later, the record of the case to the High Court for the purpose oh 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 provisions of 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 subsection, call for the "record of any such case as is referred to therein, not being a case the 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. "(3) Any case, the record of which has been sent to the High Court under subsection (1) or has been called by the High Court under subsection (2) shall be heard by a Bench of not less than two Judges of the High Court, and in respect of such case the provisions of section 98 of the Code of Civil Procedure, 1908 (Act V of 1908) shall, so far as may be, apply. "(4) Where the High Court passes an order to the effect that any evacuee property declared to be non‑evacuee property should not have been so declared, and such property is or has been in the hands of a bona fide purchaser or purchasers for adequate value, the High Court shall determine the amount of compensation to be paid to such purchaser or purchasers after such property has revested in the Custodian." "43‑B. Any order passed by a Custodian declaring any evacuee to be non‑evacuee or any evacuee property to be non evacuee property shall take effect, and be deemed always to have taken effect, subject to such order, if any, as the High Court may pass under section 43‑A." It will be noticed that subsection (2) of section 43‑A conferred a right on private persons to move the High Court so that the legality or propriety of the order of the Custodian with regard to any person who has been declared non‑evacuee or with regard to any property which had been declared to be non‑evacuee property may be examined. It was under the provisions of subsection (2) of section 43‑A of the Pakistan (Administration of Evacuee Property) Act, XII of 1957. as amended by Act XLV of 1958, that Messrs Nawa‑i‑Waqat Publications Limited had presented the petition for revision, the dismissal of which the present application seeks on the ground that it is no longer maintainable. Ordinance No. XXII of 1959 said in its 5th section that for the existing sections 43‑A and 43‑B of the Pakistan (Administration of Evacuee Property Act No. XII of 1957 as amended by Act XLV of 1958, the following sections 43‑A and 43‑B shall be substituted :‑ "43‑A. Certain cases to be inquired into by Tribunal.‑

(1) The Central Government may, by notification in the Official Gazette, constitute a Tribunal, to be called the Evacuee Property Inquiries Tribunal, consisting of not less than two members, one at least of whom shall be a person who is or has been a Judge of High Court. (2) 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 a non‑evacuee or non‑evacuee property, as the case may be, the Central Government may, notwithstanding anything contained in this Act or in any other law for the time being in force refer the case to the Tribunal. (3) Where a case is referred to the Tribunal under sub section (2), the Central Government shall send to the Tribunal a statement of the case together with the record relating thereto. (4) The Tribunal may, after perusal of the record and the statement, confirm the decision of the Custodian, or hold such inquiry as it may consider necessary, and in doing so, call for report from the Custodian or any other authority, and take any further evidence, and may pass such order as may be deemed fit: Provided that the Tribunal shall not pass any order modi fying or reversing the declaration of the Custodian without giving the person affected thereby an opportunity of being heard. (5) All questions before the Tribunal shall be decided in according with the opinion of the majority of its members, and, if the members are equally divided in opinion, in such manner as may be prescribed." "43‑B.‑Any order passed by a Custodian declaring any evacuee to be non‑evacuee or any evacuee property to be non evacuee property shall take effect and be deemed always to have taken effect subject to the order of the Tribunal under section 43‑A." By its 7th section, Ordinance No. XXII of 1959 enacted that the Pakistan (Administration of Evacuee Property) (Amendment) Act No. XLV of 1958, was repealed.

3. The contention of Sheikh Abdur Rashid, the learned counsel for the applicant, was that because the law, as it stands after the promulgation of Ordinance No. XXII of 1959, does not allow a private person to move the High Court with a view to that Court's examining the propriety or legality of an order passed by the Custodian with regard to a person being non evacuee or any property being non‑evacuee property, the petition for revision presented by Messrs Nawa‑i‑Waqat Publications Limited on the 24th of March 1959 cannot proceed and must, therefore, be dismissed. The reply made by Sheikh Khurshid Ahmad, Advocate, to this contention of Sheikh Abdur Rashid, Advocate, was that though after the date of the promulgation of the Ordinance no private person can file a revision petition for having the legality or propriety of the order of a Custodian with regard to a person being non‑evacuee or any property being non evacuee property examined, the petitions already filed which were pending at the time when Ordinance No. XXII of 1959 was pro mulgated cannot be deemed to have abated and their decision must be governed by the law which was in force at the time when they were presented. In this connection Sheikh Khurshid Ahmad, Advocate, pointed out, inter alia, that Ordinance No. XXII of 1959 did not say anything about petitions whether made by the Central or the Provincial Government or by a private person which may be pending in a High Court at the time of the pro mulgation of Ordinance No. XXII of 1959, and urged that the omission of the law‑making authority to make any provision with regard to revision petitions validly instituted under the provisions inserted in the Pakistan (Administration of Evacuee Property) Act XII of 1957 by the Pakistan (Administration of Evacuee Property) (Amendment) Act XLV of 1958 made it clear that those petitions were to continue to be governed by the law in force at the time when they were instituted.

4. In support of his contention that Ordinance XXII of 1959 did not result in the abatement of the revision petition which had been presented to a High Court under section 43‑A of Act XII of 1957 which had been replaced by section 43‑A introduced in Act XII of 1957 by Ordinance XXII of 1959, Sh. Khurshid Ahmad, Advocate, invoked the provisions of section 6 of the General Clauses Act, X of 1897. The relevant part of that section reads as follows :‑ "

6. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not‑ (a) * * * * * * * * * * (b) * * * * * * * * * * (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed ; or (d) * * * * * * * * * * (e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forefeiture or punishment as aforesaid ; and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." Though section 6 of the General Clauses Act, 1897, mentions only Acts and Regulations, but it is clear from section 30, of that Act that for the purposes of section 6, as of some other sections the word "Act" shall be deemed to include an Ordinance. Sheikh Abdur Rashid, Advocate, for the applicant tried to meet the contention of Sheikh Khurshid Ahmad by saying that section 6 of the General Clauses Act, 1897, was applicable only where there had been merely a repeal of an enactment and could not apply where an Act had been repealed and re‑enacted with modifications and as in the present case the repealed enactment had been re‑enacted with some modifications, section 6 of the General Clauses Act, 1897, was inapplicable. He did not, however, cite any authority to support his contention and in fact two decisions of the Supreme Court of India, namely, State of Punjab v. Mohar Singh (A I R 1955 S C 84), Indira Sohanlal v. Custodian of E. P. (A I R 1956 (S C.) 77), which he cited for another purpose have taken the view that section 6 of the General Clauses Act, 1897, was not inapplicable where a repealed enactment had been re‑enacted with modification. I have given the matter my anxious consideration and have arrived at the conclusion that section 6 of the General Clauses Act, 1897, is as applicable where a repealed enactment is re‑enacted with modi fication as it is where there is a simple repeal. The only provision of the General Clauses Act, 1897, which deals with the,' effect of the repeal of an enactment followed by its re‑enactment with modifications is section 24 but as that section says nothing about the point that falls for determination in the present case, nor does any other provision of the General Clauses Act, 1897, it may be safely inferred that the legislature intended to place repeal of an enactment at the repeal of any enactment and its, re‑enactment with or without modification on the same footing for purposes of the matters dealt with in section 6 of the General Clauses Act.

5. Having held that section 6 of the General Clauses Act, 1897, is applicable where an enactment is repeated but re‑enacted with modification, I proceed to consider whether or not the contention of Sheikh Khurshid Ahmad, Advocate, that the revision petition presented to this Court by the Nawa‑i‑Waqat Publications Limited has to be decided on merits in spite of the change in the law, can be accepted. Clauses (c) and (e) of section 6 of the General Clauses Act, 1897, which have been reproduced in an earlier part make it clear that if an Act is repealed proceedings taken under it can continue but this is subject to the condition mentioned in that very section namely that a contrary intention does not appear from the repealing enactment. The question that arises, therefore, is whether Ordinance XXII of 1959 which by its 7th section repealed Act XLV of 1958 which had conferred on a private person the right to question the order of a Custodian holding a person to be non‑evacuee or some property to be non‑evacuee property, expresses the intention, directly or by implication, that the petitions presented under section 43‑A of the Pakistan (Adminis tration of Evacuee Property) Act XII of 1957 inserted by the Pakistan (Administration of Evacuee Property) (Amendment) Act XLV of 1958 should not be proceeded with. There is not a singly word in any of the provisions of Ordinance XXII of 1959 with regard to the petition which were pending at the time of its promulgation and as the law‑making authority could not have been unaware of the fact that the provision sought to be repealed permitted private persons to put in petitions the reticence with regard to the fate of these petitions is, in my opinion, proof of the fact that it was not intended that the provisions contained in clauses (c) and (e) of section 6 of the General Clauses Act, 1897, were not to be acted upon. The fact that Ordinance XXII of 1959 did not allow a private person to put in a petition which can p now be put in by the Central Government only fortifies me in my view that the pending proceedings were to continue to be governed by the law which was in force at the time they were instituted, as is the general rule in such like cases.

6. The point was not raised by the learned counsel for the applicant but I have considered whether section 43‑B of Act XII of 1957 inserted by Ordinance XXII of 1959, which is to the effect that an order passed by a Custodian declaring any evacuee to be non‑evacuee or any evacuee property to be non‑evacuee property shall take effect and be deemed always to have taken effect subject to the order of the Tribunal under section 43‑A, does not by implication make the provisions of clauses (c) and (e) of section 6 of the General Clauses Act, 1897, inapplicable to the present case, by reason of the fact that nothing is said therein with regard to the orders of the High Court passed on petitions presented under section 43‑A of Act XII of 1957 which was inserted by Act XLV of 1958. Act XLV of 1958 enacted that the order of a Custodian was to be examined by two Judges of the High Court while the Tribunal to be set under section 43‑A as inserted by Ordinance XXII of 1959 is to consist of at least two members of whom one should be a person who is either a Judge of the High Court or should have been such Judge. As worded section 43‑A of Act XII of 1957 as inserted by Ordinance XXII of 1959 can mean that one or more members of the Tribunal could be Judges of the Supreme Court but it is clear that the intention was that the highest qualification required of a member is present or past judgeship of the High Court. It is clear that a Tribunal mentioned in Ordinance XXII of 1959 can consist of two members, one of whom may have lesser qualification than a past or present Judge of the High Court I cannot bring myself to believe that the intention of Ordinance XXII of 1959 was that the opinion given by two Judges of the High Court with regard to the finding of a Custodian should have no weight, but that of the Tribunal no member of which need be a serving Judge of the High Court should hold the field, and have, therefore, arrived at the conclusion that section 43‑B of Act XII of 1957 inserted by Ordinance XXII of .1959 does not make clauses (c) and (e) of section 6 of the General Clauses Act, 1897, inapplicable to the revision petitions presented to the High Court under Act XLV of 1958.

7. During arguments the learned counsel for the parties cited a number of decisions, but because most of them did not specifically deal with the point that arises in the present case, I do not consider it necessary to deal with them. However, the following cases :‑ (1) Condicalo Hypolito Constancio Noronha v. Damji Devi Ji and others 1954 A C 49. (2) The Colonial Sugar Refining Company Limited v. Irving 1905 A C 369 ; and (3) Karim Shah v. Mst. Zinat Bibi I L R 22 Lah. 773, which were cited by Sheikh Khurshid Ahmad, Advocate, lend considerable support to the contentions raised by him.

8. In view of what I have said above, I find no force in this application which is dismissed with the result that Civil Revision No. 94 of 1959 will be beard by this Court. I have mentioned already that Revision Petition No. 94 of 1959 was beard by my brother Kaikaus, J. at the preliminary hearing. If the proceedings of Kaikaus, J. were irregular on the ground that according to section 43‑A of the Pakistan (Administration of Evacuee Property) Act XII of 1957, inserted by Act XLV of 1958, the petition was to be heard by two Judges, this Bench should be deemed to have admitted the petition to a hearing by two Judges. MASUD AHMAD, J.

‑I agree. K. M. A. Application rejected.