P L D 1961 Supreme Court 89 (PLP)

(4) his son's account books would be open to inspection by the Rehabilitation Authorities. This order was clearly not sufficiently specific as to the rents which Mr. Bhandari could claim from his Bank House tenants, and in due course, a dispute arose, and was referred by Mr. Bhandari to the Rehabilitation Authorities, who replied on the 2nd July 1952, that tenants whom he himself had inducted, without intervention by the Rehabilitation Department, should pay him the rents agreed to by them under their leases, but tenants to whom premises had been allotted by the Rehabilitation Department were entitled to a rebate of one-third (presumably of the rental as in force prior to the Partition). The last paragraph of the letter may be reproduced in full :- "The property is now non-evacuee and the Rehabilitation Department is not concerned with your tenants who have taken portions of your premises directly from you without the intervention of the Rehabilitation Department." It was after this that on the 18th of August 1952 a reference was made by the Rent Controller in Lahore to the Custodian, of the question whether Mr. Bhandari could file suits against his tenants for ejectment and arrears of rent, and on this reference, on the 25th of January 1954, the Deputy Custodian held that Mr. Bhandari was an evacuee, and his property was evacuee property. The single ground advanced for this conclusion was that he "had left Pakistan after the 1st of March 1947, on account of Civil Disturbance or the fear of such disturbances," and therefore "he is even now an evacuee in view of the definition of `evacuee' as contained in clause (2) (a) section 2 of Pakistan Ordinance No. XV of 1949". It was further held that the order of restoration of the 10th May 1948, was merely "for management purposes". However, under that order, Mr. Bhandari was competent to have his tenants ejected through the Courts without the intervention of the Custodian, since the order of restoration had placed him under no restriction in that respect. Against this order, which was seriously prejudicial to him in view of the existing provisions of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949, Mr. Bhandari moved the Custodian in revision. This application was not decided by the Custodian until the 17th of June 1958. Mr. Bhandari had prayed that the Deputy Custodian's declaration that he was an evacuee and that the property was evacuee property should be set aside, and in a further application that if the Custodian were in doubt upon the matter he should refer the case to the Central Government, presumably for a final order under section 3 whether he was an evacuee or not. Later, however, the petitioner asked that the case should be decided by the Custodian himself, and the result was that in a lengthy order, the Custodian upheld the declaration of evacuee status made by the Deputy Custodian and on the same grounds. It is against this order that Mr. Bhandari was given leave to appeal, but before we proceed to examine the arguments presented before us on the two sides, mention should be made of certain intermediate proceedings. On the 19th January 1950, the Rehabilitation Authority had made an application to the Custodian asking that Mr. Bhandari's property should be declared evacuee property, and the former order of restoration should be vacated, and permission given to the Rehabilitation Authority to assume possession. The grounds upon which this application was made were that Mr. Bhandari had permanently settled in India, and seldom visited Pakistan, that his brother's son used occasionally to come to Pakistan to realize rent from Mr. Bhandari's tenants, and that Mr. Bhandari had first obtained employment in the Rehabilitation Department in India, but had resigned that appointment and taken to business in India. This application was described as a "review application", but the case did not require review of the previous order since the facts alleged, namely, that Mr. Bhandari had subsequently settled in India and after taking employment with the Government there had gone into business, would have sustained a fresh declaration that he was an evacuee. This application was dismissed by the Custodian on the 24th November 1951, by an order which clearly shows that the Rehabilitation Commissioner had given instructions that the application was not to be pursued. It seems that there had been some question as to Mr. Bbandari's intention to live permanently in Pakistan, and then Custodian was satisfied on the point through his having obtained from the Indian Authorities a permit for permanent residence in Pakistan, and having expressed to the Custodian an intention to live here permanently. For reconsideration of this order, the Rehabilitation Authorities on the 16th January 1953, moved a revision petition before the new Custodian on the grounds, firstly, that Mr. Bhandari had not fulfilled the conditions of the order of restoration of the 10th May 1948, that he was still a national of India and permanently resident in India, that his visits to Pakistan were merely occasional, and with a view to realize rents, that he was actually doing some contract business in Delhi, that he had produced no certificate from the Central Government as required by section 19 of the Central Ordinance t of 1949 as a condition of restoration of property by the Custodian and that he was neither residing nor carrying on business in Pakistan. These again were fresh facts, on the basis of which it was open to the Custodian to declare Mr. Bhandari to be an evacuee. The Custodian made his order on the 18th November A 1955, dismissing the petition, inter alia on the ground of limitation. The case for the appellant rests thus on the order of the 10th May 1948, restoring his property to him, and upon the circumstance that although two efforts were made thereafter to have him declared as an evacuee on fresh allegations of fact, these efforts ended in failure, so that, if he is an evacuee at all, he is an evacuee only by reason of his having, as he admitted in his first petition, `temporarily left Lahore in September 1947". The argument advanced on his behalf is that the status of evacuee which he thus acquired under West Punjab Ordinance V of 1947 and continued under West Punjab Ordinance VII of 1947, and thereafter under West Punjab Act VIII of 1948, was of a wholly different character froth that of an evacuee under the Ordinance of 1949. The earlier enactments were clearly based upon the assumption that owners of property in West Punjab who had abandoned them by reason of the disturbances which attended the Partition, were going to return, and the duty of the Government was to take steps for the care and protection of that property with .a view to handing it over to them when they returned, charging them only the expenses which had been incurred in the course of the process of care-taking. The appointment of a Custodian was authorised "with a view to preserving evacuee property" not for its own sake, but "in contemplation of the return of the owners". The Custodian was placed under a duty to take possession of evacuee property and to take such further measures as he considered necessary "for preserving such property". By section 4 of the first Ordinance, it was provided that the owner of any proporty could after the issue of a notice by the Custodian of his intention to take possession thereof, object to the proposed action and provision was made for an enquiry by the Custodian whose result might be that all his actions in respect of the property would stand cancelled in case the objector was indeed the owner. The provision in section 8 was of a different character. It came into play only in favour of persons whose rights were derived from occupancy, or mere possession, or other legal status not superior in character to the two first-mentioned, such as liens. As to restoration to the owner, who was declared to be entitled to it, under the earliest Ordinance, this was almost completely devoid of conditions, but later, conditions were attached, among which the important condition was that the Custodian should be satisfied that the restoration would not be prejudicial to the "prescribed objects". As to this provision, the argument was that in a case where restoration was ordered by the Custodian under section 17 of the Act, it must be presumed that the Custodian had first applied his mind to the question whether his duty to carry out the prescribed objects required that he should retain the property in question in his possession, and that he had answered this question to himself in the negative before making the order of restoration. Under the law, he was empowered to attach conditions such as he thought fit, to the order of restoration, and these conditions would be binding upon the owner, according to their express terms, but not because of anything contained in or derived from the "prescribed objects." The Custodian was not empowered to apply evacuee property to fulfilment of the "prescribed objects". That was the function exclusively of the Rehabilitation Department, and in this case, that Department had clearly said they had no objection to the property being restored. Mention of the "prescribed objects" did not necessarily attract all the provisions of the Evacuee Property law to the property in the case, i.e. it may have ceased to be evacuee property by the mere fact of the owner ceasing to be a person who "has been or is absenting himself from ?West Punjab". But there could be no doubt of this when, after considering his duty under section 17 to retain the, property, if it was necessary for the purposes of the ?prescribed objects?, the Custodian made an order of restoration. The conditions he thought fit to impose were laid down under his statutory authority, and were not attracted by the property possessing any particular character. Among the conditions imposed, special attention was paid by Mr. Mahmud Ali to the condition that Mr. Bhandari should not transfer any of his property "without obtaining the permission of the Custodian under section 9 of the Act." It was urged that to require the Custodian's permission for a transfer was a valid condition, but the reference to section 9 was misconceived for that related expressly so transfers of evacuee property by an evacuee, his agent or assign etc. In this case, by returning to Lahore, with the requisite purpose and intention, Mr. Bhandari had ceased to be an evacuee. Such indeed was the conclusion of the Rehabilitation Department, as shown by the clear statement in their letter of the 2nd July 1952, which had been quoted above. The main burden of the argument for the appellant was that the restoration order of the 10th May 1948 ended once for all the condition of his being an evacuee, and his property being evacuee property. The conditions under which he held the property derived their force from the order of restoration, and the reference to section 9 of West Punjab Act VII of 1948, imposing a restriction on transfers, was misconceived. The restoration was incumbent upon the Custodian, in view of section 17, and represented a "transaction past and closed" which could not be affected by any subsequent statute on the same subject, whether prospective or retrospective. Emphasis was laid on the fact that by section 5 of the Central Ordinance No. XVIII of 1948, which superseded the West Punjab Act VII of 1948 (by the effect of repugnancy) it was provided that an evacuee should be certified to have ceased to be an evacuee, if the Custodian or other empowered authority were satisfied that "he has returned to Pakistan with the bona fide intention of permanent residence or of personally carrying on his business." Those were practically the same conditions applicable to the conduct of the evacuee which were requisite under section 17 of West Punjab Act VIII of 1948, vii. "if he (the evacuee) comes over to West Punjab to occupy his residence or run his business". Therefore, it was argued, Mr. Bhandari had by the order of restoration, gained recognition of the fact that he had returned to West Punjab with the intention of residing here and carrying on his business, i.e. that he was no longer an evacuee, and consequently his property must have ceased to be evacuee property, so that it could only be retained by the Custodian if required specifically for one or other of the prescribed objects. This was clearly not the case, and the property was restored subject to conditions, laid down by the Custodian under his statutory powers and not because of any disability attaching to the property, which were accepted by Mr. Bhandari because the conditions had statutory effect, and not by way of any admission that he was an evacuee or the property was evacuee property. In reply. Mr. Suhrawardv presented a lengthy argument which in later stages appeared to become somewhat involved.? He started by arguing that Mr. Bhandari became an evacuee in September 1947, and advanced the proposition that "once an evacuee always an evacuee", the solitary exception being by declaration by duly empowered authority under subsequent enactments of the Central Ordinance XVIII of 1948 and its successor Central Ordinance XV of 1949 and eventually the Central Act of 1957. He appeared to argue that the conclusion from the omission in the three West Punjab enactments of any provision for declaring a person a non-evacuee must be that so long as those enactments were in force, the rule was that once a person became an evacuee, he remained always an evacuee, and his property remained always evacuee property. Next, it was argued that there was provision contained in West Punjab Ordinance VIII of 1948 for declaration of non-evacuee status upon application by an evacuee, and reference was made to section 8 of that Act which empowered "any occupant or holder of evacuee property or any other person claiming an interest therein" to seek a declaration from the Custodian that a certain property was not evacuee property or was evacuee property to a limited extent only. An owner, it was submitted, must be deemed to be included within the general words "any other person claiming an interest therein". To this argument, Mr. Mahmud Ali replied that the owner who had the absolute rights could hardly be included within the description "any other person claiming an interest" in evacuee property. These general words were preceded by two specified descriptions of persons having claims in law to the property, namely, an occupant, by which would be meant a person in possession under authority from the owner, and the other a holder, meaning no more than a person with a possessory title, being inferior in validity to that of an occupant. There was, in Mr. Mahmud Ali's submission, a clearly visible descending order, and he urged with force that it would be wholly unreasonable to suppose that the law intended to include within the general words "any other person" etc. the man who had the real title in the property, and whose name should therefore have preceded the word "occupant". Mr. Suhrawardy next urged that the Custodian was both an administrative as well as a judicial officer, and an order of restoration being an administrative order, it could be withdrawn at any time at the discretion of the officer who made it. The argument was not pressed with any great force, and this was natural, for under the Constitution, rights in property cannot be sequestrated except by due process of law, and having once restored property to an evacuee, if by that act the property ceased to be evacuee property and appertained in full right of ownership to the owner, then the Custodian could not purport -to exercise powers in respect of it, as if it were evacuee property unless the necessary conditions were satisfied, i.e. that the owner was shown to have been absenting himself or to be absenting himself from West Punjab, and then only by due process. To take back the property at discretion would be entirely outside the Custodians power. ??????????? Mr. Suhrawardy next urged that a condition imposed by the Custodian upon the restoration of the property had been infringed, namely, that after the restoration, Mr. Bhandari had gone away to India and had stayed there for a considerable time. He urged that this breach should be held sufficient to enable the Custodian to treat the property as if it were evacuee property once again. As to whether there was any breach, the facts are by no means clear, and what is clear is that too efforts made by the Rehabilitation Authorities to take advantage of allegations of such breaches ended in failure. At the same time there was in the Act, then applicable, provision for action to be taken against persons not complying with the orders of the Custodian, and reference was made to section 7 of the West Punjab Act VII of 1948, which made a non-compliance with an order made by the Custodian a cognizable offence punishable with two years' imprisonment. Moreover, it could not be urged with any force that every breach of a condition imposed by the Custodian whether or not the owner remained in West Punjab, would be deemed to render him a person who "has been or is absenting himself from West Punjab" which was the condition of his being an evacuee and consequently of his property being treated as evacuee property. ??????????? Mr. Suhrawardy argued that by December 1947, it had become apparent that evacuees from Pakistan were not going to return to Pakistan, in other words, that there was to be a permanent exchange of populations, and that from that time onwards, the duties of the Custodian should be considered, apart from all contemplation of the return of the evacuees. As to the fact alleged, namely, the emergence by December 1947, of a general belief that the evacuations from the two Dominions were permanent, there is no evidence on the record. In any case, as will have been apparent from the citation of provisions from the various statutes ending with the Central Ordinance XVIII of 1948, the provisions retained do not indicate any change of attitude or purpose, in regard to the respect to be shown for the rights of property owners who had left one Dominion and gone, over to the ether. The Central Ordinance XVIII of 1948, was promulgated on the 18th October 1948, and it employed the same definition for evacuee as the West Punjab Act VII of 1948. namely, a person who "has been or is absenting himself from Pakistan". The use of the word absent is clearly significant. It is a word which in a quite neutral way suggests non presence, without carrying any implications as to the nature of/ the non-presence, i.e., whether it is temporary or permanent, and whether it is isolated or a matter of repeated occurrence. When we say of a person that he is absenting himself from a place, we mean that he is staying away from the place, and it would be difficult to draw the conclusion from the mere use of these L words that we mean that his staying away is of a permanent character. The expression "has been absenting himself" has a similar character, and in one sense it could be thought to take the commencing point of the absence somewhat further back in time than is intended by the expression "is absenting", and in another sense, it might have reference to repeated absences, with which we are not concerned in this case. In any of the relevant senses; it seems to us to be quite plain that Central Ordinance XVIII of 1948, was not expressed to convey the impression that the transfer of populations was permanent. As has been pointed out already, this Ordinance was expressed to be made for "the protection and care of the property of evacuees", and the Custodian was expressly enjoined to take necessary measures for preserving and safeguarding the property of evacuees. The property was not to vest in him unless it had been so ordered by the Central Government. By this Ordinance, he was for the first time empowered to lease out evacuee property without limit of time. By the West Punjab Act VII of 1948, as by the two preceding West Punjab Ordinances, this power of leasing evacuee property was limited to one year. It seems clear that as time went on, the duty which the Government had undertaken, namely, to preserve and protect the property of evacuees in contempla?tion of their return, which could be referred to be the general duty of Government in relation to its subjects, to assist, in the maintenance of their legal rights as parens patriae, was assuming an appearance, which later became much more clear viz., that it became a duty of assuming title in the abandoned properties on the principle of escheat, and of distributing these properties among refugees for the purpose of rehabilitating them individually and collectively, and for repairing the dislocation in the economic life of the country caused by mass exodus of a section of the property owners. A first sign of this appears in the West Punjab Ordinance VII of 1948, where reference is made to vesting of evacuee property in the Custodian by order of the Government. It is significant that no such vesting order appears to have been made under this statute, or either of the two statutes of West Punjab and the Centre by which it was succeeded, and that eventually, in Central Ordinance No. XV of 1949, an express provision was included in section 6 whereby all evacuee property was vested in the Custodian with effect from 1st March 1947. It was on this provision that the Deputy Custodian in the present case rested his decision that Mr. Bhandari's property was vested in the Custodian, a decision which was maintained by the Custodian in the order under appeal. That will require to be discussed in detail later, but it is sufficient for the present to point out that on the 10th May, 1948, when West Punjab Act VII of 1948, was in force, the rule of preservation of the property of subjects was still in force, and the doctrine of escheat had not yet come into play, although certain tentative provisions for its application were included in the law, to be enforced at its discretion by the Provincial Government. Mr. Suhrawardy next referred to the provisions of section 4 (3) (b) of West Punjab Act VII of 1948, which empowered the Provincial Government to vest in the prescribed Custodian "the right to pool together and to transfer such evacuee property as may be prescribed to refugees or other persons" as an indication of the belief that the abandonment was permanent. It has been pointed out already that no such vesting orders were ever made, and moreover the Custodian's power under the Act were confined to the granting of lease for a period not exceeding one year, and that is applied also in section 13 (b) to property which had been "ordered to vest in him". Mr. Suhrawardy's argument that because the earlier statutes of the West Punjab did not provide for a declaration of a person who had once been an evacuee, as a non-evacuee, therefore, it must be held that at least under these Acts, the proposition "once an evacuee always an evacuee" was of absolute validity, is quite plainly unconvincing. It does not take account of the purposes and the beliefs underlying these earlier enactments, which seem clearly to be that properties abandoned by subjects should be looked after by the Government believing that they would return. The intention was not to impose any disabilities upon persons in relation to the properties which they owned in West Punjab, merely by reason of their having been absent, or being absent from West Punjab on account of the disturbances. Mr. Suhrawardy appeared to ignore altogether the possibility that a person who was absenting himself from West Punjab might very well be just over the border between West Punjab and the North-West Frontier Province, or the Province of Sind. In such a case there would not be the slightest ground for imposing any disability whatsoever on such person, in respect of his owner?ship rights, and the Government's interference with these rights would be confined essentially to the duty of looking after his property which he himself was enable to perform, by reason of the Government's own failure to perform its duty of maintain?ing law and order. That being the case, the provision in section 17 of the West Punjab Act VII of 1948, namely, that property might be restored to such a person who had been taking refuge outside West Punjab on account of the disturbances, but had returned to take residence in his own house, or to run his business, should be interpreted in the simplest and the most complete sense, without any mental or legal reservations except such as should be made clearly to appear in express terms, as indeed section 17 in terms provided. Moreover, when for the first time provision was made under law for a declaration of non-evacuee status in favour of an evacuee, the requisites were precisely the same as those under section 17 of the West Punjab Act VII of 1948, namely, the return of the evacuee to reside in his house or to undertake his business. In later enactments, the regaining of non-evacuee status was hedged around with formalities, and this was natural, because by that time the principle of escheat had come into operation, but it is plain that actions taken under the West Punjab Act VII of 1948, which ceased to have effect in October 1948, cannot be judged in relation to intentions underlying, and effects produced by provisions under subsequent laws made when conditions had become totally different. Mr. Suhrawardy placed a certain amount of reliance upon the argument adopted by the Custodian in the decision given by him in the case of Begum Muhammad Ismail v. Mst. Santosh Lata (PLD 1957 Cust. (W.P)10). The argument is as below:- ?I consider that evacuee property after restoration under section 17 of Act VII of 1948, and the corresponding section 19 of Ordinance XV of 1949, remains evacuee property and for that reason, can be made subject to conditions and restrictions which the Custodian may choose to impose. The provisions mentioned above relate to the restoration of evacuee property to an evacuee, and according to section 2, sub?section (3), Evacuee property Ordinance (XV of 1949), `evacuee property' means any property in which an evacuee has any right or interest. It is significant to note that paras. (i) and (ii) of clause (c), section 2, subsection (3) which exclude certain properties from the category of evacuee property do not provide that evacuee property after restoration to the evacuee owner shall cease to be evacuee property." The argument does not suffer from excess of elaboration. It is not necessary for us to consider in this decision whether the proposition that even after restoration, evacuee property continues to be evacuee property can be rightly advanced in relation to section 19 of the Central Ordinance XV of 1949. But we are clearly of the opinion that the extension of the proposition to the West Punjab Act VII of 1948, is not possible, at least not by the method of analogy by mere reference. We have been at pains to show how marked a difference there is between the conditions which the earlier statutes were designed to meet, and the purposes which they were expressed to secure, on the one hand, and those which underlay the stringent provisions introduced for the first time in Central Ordinance No. XV of 1949. We are further in agreement with the argument of Mr. Mahmud Ali that the Custodian's power of imposing conditions, upon an owner to whom property was restored, was a statutory power having no connection with the retention by the property of any particular character. In other words, the power to attach such conditions arose after the property had ceased to be evacuee property, and to argue that the power was there because the property was and continued to be evacuee property is to argue in a circle, and to ignore the fact that the provisions of section 17, West Punjab Act VII of 1948, clearly provided for three actions by the Custodian in a sequence viz., (1) a decision that he need not retain the property for any of the prescribed objects, (2) restoration of the property to the entitled owner and (3) imposition of conditions upon him in relation to such restoration. Mr. Suhrawardy attempted to interpret the expression "owner of evacuee property" under section 17 of the West Punjab Act VII of 1948, as meaning "evacuee owner of evacuee property" but that appears to us to be impossible, at least in the circum?stances of the case, for Mr. Bhandari had only once been absenting himself from West Punjab that is from September 1947, to February 1948, when he made his application, after returning to West Punjab to reside here and to look after his business, and by thus returning he bad ceased to be a person who was absenting himself, and therefore ceased to be an evacuee owner. The further argument by Mr. Suhrawardy that a person might move backwards and forward between India and Pakistan so that his property was evacuee property one day, and the next it was not, and by such a process the law would be reduced to futility, is taken care of by the interpretation that the words "has been absenting" could cover a case of repeated though temporary absences. Mr. Suhrawardy argued that by the order of the 10th May 1948, only the landlord's rights were given to Mr. Bhandari, and therefore it could not be thought to have been a complete restoration. The argument does not appear to possess substance, for it is clear that the Bank House was occupied by tenants inducted by Mr. Bhandari, and the Custodian clearly had no inten?tion of giving him vacant possession of that property. As to his house on the Race Course Road, the delivery of possession to him of one half of this house was clearly not mere restoration of "landlord's rights," as distinct from the right of occupation. With respect to the other half, he had only "landlord's rights" in that sense, since under the orders of the Rehabilitation Department, Mr. Shaft was tenant thereof, and could not be ejected, except with the consent and under the orders of that Department. As to this latter point, it is to be noted that Mr. Shafi is the only person who is resisting the present appeal. Neither the Rehabilitation Authority nor the Custodian has any interest left in the case, and as to Mr. Shaft it was stated at the Bar and not denied that the Rehabilitation Authorities had taken steps in law to eject him from the house on the ground of non-payment of rent over a period of several years so that it now amounted to Rs. 11,753-6-0. An ejectment notice was issued to Mr. Shafi on the 11th January 1960, by the Deputy Rehabilitation Commissioner, against which he appealed to the Chief Settlement and Rehabilitation Commissioner without success, and thereafter by order dated the 4th July 1960, the Deputy Settlement and Rehabi?litation Commissioner made an order for the ejectment of Mr. Shafi under section 16 of the Pakistan Rehabilitation Act, 1956, by force, if necessary, forwarding at the same time a copy of his order to the Senior Superintendent of Police. These proceedings have since been stayed, but they clearly show that any right which Mr. Shaft claimed to remain in possession on the basis of the restoration order of the 10th May 1948, would be complete?ly illusory. In the course of the argument, Mr. Mahmud Ali placed before the Court a copy of a notification issued by the Central Government on the 1st of August 1960, under section 55 of the Pakistan (Administration of Evacuee Property) Act, 1957, which empowers the Central Government to exempt any property or class of pro?perty from the operation of the Act, and which reads as follows:? "The Central Government is pleased to exempt all evacuee property which may have been restored under any law to any evacuee from all the provisions of the Act with effect from the date of the restoration." Mr. Suhrawardy challenged the vires of this notification, in particular its retrospective character, but it remains as an indica?tion of the view of the Central Government, that by an act of restoration of evacuee property to an evacuee, under the provisions of the earlier laws, all taint of evacuee status was erased from both person and property. That is a result which in our opinion follows from a consideration of the history of the relevant law and upon a true construction of section 17 of the West Punjab Act VII of 1948. Finally, Mr. Suhrawardy referred to section 48 of Central Ordinance XV of 1949, the effect of which may be briefly stated as follows so far as it is relevant for the purposes of this case. The West Punjab Act VII of 1948, being a law in force in the area of West Punjab before the commencement of Central Ordinance No. XVIII of 1948, everything done under the West Punjab Act was to be deemed to have been done under the corresponding provision, if any, of Central Ordinance XVIII of 1948. The restoration of the 10th May 1948, was ordered under section 17 of the West Punjab Act of 1948, which in material particulars is very closely similar to section 20 of the Central Ordinance XVIII of 1948 and therefore the order of restoration should be deemed to have been made under the latter Ordinance. That Ordinance was however repealed by Central Ordinance XV of 1949, by section 48, which however continued the effect of everything done under the repealed Ordinance "so far as may be" with reference to any corresponding provision in the Central Ordinance XV of 1949. Mr. Suhrawardy then referred to section 19 of Central Ordinance XV of 1948, which makes the possession of a certificate from the Central Government or a person duly authorised by that Government, a necessary condition of the restoration of any evacuee property to "the evacuee or such person claiming as aforesaid (who) would have been entitled if this Ordinance were not in force." Mr. Suhrawardy argued that the condition of certificate front the Central Government not having been complied with, the restoration under the earlier statute could not be deemed to be valid under the later laws of 1949, and subsequent years. The argument is good so far as it goes, but it fails to meet the major argument of Mr. Mahmud Ali, namely, that with reference to the terms of West Punjab Act VII of 1948, construed with full regard to all the purposes and intentions underlying that statute, the restoration of the 10th May 1948, to Mr. Bhandari represented, a transaction which had been completed and was thus "past and closed" beyond the possibility of being affected by any subsequent law. We have given careful consideration to the numerous contentions advanced by Mr. Suhrawardy in support of his argument that the property of Mr. Bhandari, even after its restoration to him, as far back as the 10th May 1948, under the law then in force, continued to be evacuee property. That law seems plainly to have been designed and enacted for the simple purpose of protecting abandoned properties in order to preserve the rights of h their owners, and never to have been intended or applied so as to effect a sequestration or diminution of the rights of such owners, merely by reason of their having absented themselves tempora?rily from West Punjab. The act of restoration of his once abandoned property to a returned owner under that law would ex hypothesis have the effect of excluding it from the general operation of that law, saving only such express powers as the law might reserve to the empowered authorities in the particular context. In other words, these powers were such as were exercisable, by special provision in the law, after the property had ceased to be evacuee property. We consider that the proper order for the Custodian to have been made upon the petition was a declaration that after the 10th May 1948, Mr. Bhandari's property was no longer evacuee property, and we therefore allow this appeal and setting aside the order of the Custodian, direct that for it should be substituted a declaration that the property in question ceased to be evacuee property with effect from the 10th May, 1948. The appellant will have his costs of this appeal against Mr. Shafi. A. H.