P L D 1958 Custodian (W (PLP)

(f) Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), S. 19‑Property restored may be acquired by Government under S. 3, Displaced Persons (Compensation and Rehabilitation) Act (XV of 1958) on payment of compensation to evacuee. (Obiter). Mahmud Ali Qasuri for Applicant. Karam Elahi Chauhan assisted by Muhammad Daud for Rehabilitation Authority. A. M. JAN.--‑ This is a petition dated 16‑12‑1957 filed by Mr. P. G. Bhandari through Mr. Mahmud Ali Qasuri, Advocate, in which it is stated that the petitioner is the owner of bungalow No. 6, Race Course Road, Lahore, and a building known as Bank House, in Bank Square, the Mall, Lahore ; that the petitioner happened to be in Dalhousie at the time of Partition but returned from there shortly afterwards ; that during his absence his property was taken possession of by some people without any authority from him and he applied for its restoration under the provisions of the West Punjab Ordinance No. VII of 1947 ; that the property was restored to him by Mirza Abdul Rab, Additional Custodian of Evacuee Property on 10‑5‑1948 ; that the Rehabilitation Authority applied for review or revision of this order to the then Custodian of Evacuee Property, Mr. Justice S. A. Rahman (Now a Judge of the Supreme Court of Pakistan), who rejected the application on 24‑I1‑1951 ; that the Rehabilitation Authority then applied for ;a review or revision of Justice Rahman's order to the present Custodian who, after recording evidence of several witnesses and examining numerous documents, rejected the petition on 18‑11‑1956 ; that the tenants occupying the above mentioned property do not pay rent and in a suit filed by the petitioner against Hibson & Company, one of the tenants occupy ing a portion of the Bank House, the defendant Company raised the objection that the Civil Court had no jurisdiction because the petitioner was an evacuee and his property was evacuee property ; that the point raised was referred by the Civil Court to the Deputy Custodian of Evacuee Property at Lahore who held by order dated 25‑1‑1954 that the petitioner was an evacuee and his property was evacuee property but as the property had been restored to him by ,4 the Additional Custodian he was competent to have his tenants ejected through Civil Courts without the intervention of the Custodian ; that dissatisfied with the findings of the Deputy Custodian that the petitioner was an evacuee and his property was evacuee property he filed a petition for revision of that order which is pending in this Court and prays that, in view of the restoration order dated 10‑5‑1948, upheld by two Custodians on 24‑11‑1951 and 18‑11‑1955, a declaration may be granted that the petitioner is a non‑evacuee and his property is non‑evacuee property ; that it may also be declared that the petitioner is entitled to recover the rents of the property and eject the default ing tenants through Civil Courts and if the Custodian is in doubt as to whether the petitioner is an evacuee and his property is evacuee property or not he may refer the case to the Central Government under sections 4 and 55 of the Administration of Evacuee Property Act, XII of 1957. Section 4 says that if any question arises whether a person is an evacuee or not the Custodian may refer the question to the Central Government whose decision shall be final and section 55 says that the Central Govern ment may by notification in the Official Gazette exempt any person or class of persons or, any property or class of property from the operation of all or any of the provisions of the Act. As regards the prayer for an order that the petitioner is entitled to recover the rents of his property and to eject the defaulting tenants through Civil Courts, that order has already been given by Deputy Custodian of Evacuee Property in his order dated 25‑1‑1954 which is stated, in the petition dated 16‑12‑1957, to be connected with this case and I hereby confirm that order and declare that the petitioner shall have the right to sue for rent and for ejectment of tenants or unauthorised occupants of the property restored to him. i.e., Bungalow No. 6, Race Course Road, Lahore, and the building known as Bank House on the Mall, Lahore, without any reference to or a intervention of the Custodian, because the landlord's rights were restored to him for all, practical purposes on certain conditions relating to transfer etc.. I have given a detailed judgment, dated 18‑11‑1955, in respect of this restora tion which may be usefully read with this order. In Revision Petition No. 14 of 1954 from the order of the Deputy Cus todian, dated 25‑1‑1954, which will be disposed of by this order, it is prayed that the portion of the Deputy Custodian's order holding the petitioner to be an evacuee and his property to be evacuee property may be set aside and in this subsequent Petition, Miscellaneous No. 1 of 1958, dated 16‑12‑1957, it is prayed that if I am in any doubt about the status of the petitioner I may refer the matter to the Central Government. I expressed my readiness to do so but then the learned counsel for the petitioner changed his mind and asked me to consider the arguments advanced by him and decide the case myself. I have held in a reported case, Begum Muhammad Ismail v. C Mst. Santosh Lata and the Rehabilitation Authority (P L D 1957 (Cust.) p. 10) that evacuee property after its restoration to the owner remains evacuee property and, for that reason, the restoration can be made subject to conditions and restrictions which the Custodian may choose to impose and that the provision of law regarding restoration provides for the restoration of evacuee property to an evacuee. The arguments advanced by the learned counsel for the petitioner against this view are that when the petitioner's property was restored to him the West Punjab Protection of Evacuee Property Act VII of 1948 was in force and under section 17 of that Act, unless the Custodian considered the restoration prejudicial to the prescribed objects of the Act, the owner of any evacuee property was entitled to restoration thereof, on such conditions as the Custodians thought fit, if he came over to West' Punjab to occupy his residence or run his business in this Province, etc., etc. In section 22, clause (d) of the aforesaid Act `evacuee' was defined as a person who had been or was absenting himself from West Punjab owing to the late disturb ances of who was unable personally to occupy, supervise or take possession of his property in West Punjab; and `evacuee property' was defined in clause (e) of section 22 as the property of any evacuee in West Punjab. Learned counsel for the petitioner has argued, that his client was not an evacuee because he had not absented himself from' West Punjab owing to the communal disturbances and, therefore, his property was not evacuee property. In my opinion his making an application under Section 17, West Punjab Protection of Evacuee Property Act VII of 1948 amounted to an admission) that the provisions of that Act were applicable to him and his property ; otherwise the proper course for him was to apply under section 8 of the D aforesaid Act for a declaration that the provisions of the Act had no applica tion and his property was not evacuee property because he himself was no an evacuee. This he did not do. The learned counsel for the petitioner has taken a great deal of trouble in tracing the history of evacuee laws from Act VII of 1948 up to the present day. His main contention is that the words "absenting himself" mean absenting for good and not absenting temporarily until the termination of the disturbances. In any case, the counsel contends, when the petitioner returned to Pakistan and made a statement before Justice S. A. Rahman that he .was going to reside permanently in Pakistan and Justice Rahman dismissed the petition for revision against the restoration of the property to the petitioner, by order dated 24‑11‑1951, he ceased to be an evacuee from that date and his property ceased to be evacuee property. For this the learned counsel relies upon section 5, Pakistan (Protection of Evacuee Property) Ordinance XVIII of 1948. This Ordinance was published in. the Gazette dated 18 10‑1948, more than five months after the order of Mirza Abdul Rab. section 5 says , that an evacuee who satisfies the Custodian or the Rehabilitation Authority or the Commissioner that he has returned to Pakistan with they bona fide intention of permanently residing or personally carrying on his, business shall case to be an evacuee upon the Custodian, Rehabilitation. Authority or Commissioner certify, in writing, the facts of such satisfaction. No certificate to that effect was given by Mr. Justice S, A. Rahman g Custodian, or the Rehabilitation Authority or the Commissioner in favour of Mr. Bliandari. Section 20 of the abovementioned Ordinance (XVIII of 1948) relates to, the restoration of property and says that unless in the opinion of the Custodian the restoration of any evacuee property to any, evacuee owner would be prejudicial to the purposes of the Ordinance; the owner shall, on application to the Custodian and on payment of any sum of money due from him, be entitled to the restoration of such property on such terms and conditions as the Custodian may deem fit if he ceases to be an evacuee. It is apparent from these two pro visions that whilst Ordinance XVIII of 1948 was in force the restoration of evacuee property to its owner was permitted only if he ceased to be an evacuee. This restriction was, however, removed by the Pakistan Adminis tration of Evacuee Property Ordinance XV of 1949 which by section 48, subsection (1), repealed the abovementioned Ordinance XVIII of 1948. The proviso to subsection (1) of section 48 is not applicable because nothing in this case was done under any of the provisions of the abovementioned Ordinance. Act VII of 1948 was in force when Mirza Abdul Rab passed the order of restoration and Ordinance XV of 1949 was in force when Mr. Justice S. A. Rahman and I, by our respective orders dated 24‑11‑1951 and 18‑11‑1955, upheld the order of restoration. According to section 2, subsection (2), Ordinance XV of 1949, an evacuee means, inter alia, a person who on account of the setting up of the two Dominions or on account of civil disturbances or the fear of such disturbances, on or after the first day of March 1947 leaves or has left any place in the territories now comprising Pakistan for any place outside those territories ; or who is resident in any place in the territories now comprising India or any area occupied by India and is unable to occupy, supervise or manage in person his property in Pakistan, etc., etc. ; and evacuee property, according to subsection (3), means any property in which an evacuee has any right or interest. According to this definition Mr. Bhandari had become an evacuee if he had left Pakistan on account of the setting up of the two Dominions or on account of civil disturbances or the fear of such disturbances. Learned counsel for the petitioner has argued that this provision of law must be very carefully interpreted because there may be civil disturbances after the first day of March 1947 between the Shias and the Sunnis of Pakistan and the Shias, being in a minority, may find it necessary to run away to Iran for protection. He asks whether in such a case the Shias would become evacuees. It is a hypothetical question, which need not be answered but in my opinion the disturbances contemplated by law are the "late disturbances" mentioned in section

22. Act VII of 1948, and not further disturbances. In any case it appears to me that if the evacuee property laws and the definition of an evacuee similar to that mentioned above are in existence when the Shias run away to Iran and leave their property unprotected it would be a good thing if they are treated as evacuees and their property is taken care of and preserved by the Custodian. Section 19, Ordinance XV of 1949, provides for the restoration of evacuee property on an application by an evacuee or his heirs or successors and the only consequence of such restoration provided by subsection (3), section 19, is that the Custodian shall stand absolved of all responsibility in respect of the property so restored. It is to be noted that the Custodian will be merely absolved from the responsibilities in respect of the property but will not be divested of the rights in respect of the property which, by virtue of section 6 of the abovementioned Ordinance, has vested and shall be deemed always to have vested in him from the first day of March 1947. There does not appear to be any provision in the abovementioned Ordinance or in the present Act, XII of 1957, enabling the Custodian to divest himself of the property vested in him by law. This can be done only by the Central Government and the petitioner is at liberty to apply to them in this behalf if he is advised to do so. He says that his difficulty will be that in spite of the Custodian's directions that he will have the right to sue for rent or for ejectment of tenants of unauthorised occupants the defendants will object to tile jurisdiction of the Civil Courts and even if the trial Courts decide in the petitioner's favour the question will be taken up to higher Courts and the petitioner will remain without any relief for years and will starve without any means of subsistence. He adds that the Income Tax authorities are insisting upon the payment of the taxes due from him and are not prepared to wait until he realizes the rents on which hp is being taxed. In these circumstances all that I can do is to direct the Rehabilitation Authority that if Mr. Bhandari makes an application to them to realize the rent of the property restored to him for his benefit or to eject unlawful occupants or recalcitrant tenants the Rehabilitation Authority shall take such measures as are allowed by law in this behalf regarding evacuee property and I hereby direct them to do so. It is further urged that if the property is treated as evacuee property it will be subject to allotment by the Rehabilitation Authority. As the landlord's rights in the property have been lawfully restored to the petitioner I hold that the property will no longer be subject to allotment by the Rehabilitation Authority. As regards the Government's right to acquire this property under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958, I suppose the petitioner will be entitled to some compensation if they decide to do so. The question has, however, not yet arisen and I am giving no finding on it. The Revision Petition No. 14 of 1954, dated 6‑2‑1954, and the Miscellaneous Petition No. 1 of 1958, dated 16‑12‑1957, are dismissed with the direction that the petitioner will have the right of either going to the Civil Courts or to the Rehabilitation Authority for relief in respect of the property restored to him subject to the conditions imposed by the restoration order. A. H. Petitions dismissed.