P L D 1960 (W (PLP)

YAQUB ALI, J.‑

By this petition the Punjab Co‑operative Bank Limited having its registered office at Amritsar (Punjab, India) seeks the issuance of a number of writs to the Republic of Pakistan, the Province of West Pakistan, and various officials of the Rehabilitation and Resettlement of Refugees Departments to issue a notification under section 7 (3) of Pakistan (Administration of Evacuee Property) Act (XII of 1957), divesting and dispossessing the Custodian of Evacuee Property of sixteen items of property belonging to the petitioner which are at present allotted to respondents Nos. 7 to 129, to quash the proceedings for requisitioning of the said properties under section 3 of Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), and restraining them from including the properties in the evacuee pools under section 4 or taking any other action for their transference under the said Act. Many other ancillary prayers have also been made in the petition which it is unnecessary to mention, because the crux of the petitioner's case is that on the coining into force of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), which excluded the property belonging to a joint stock company the head office of which was situated, before the 15th day of August, 1947, in India from the definition of "evacuee property", the properties in question ceased to be evacuee, though for a limited purpose they continued to vest in the Custodian of Evacuee Property under section 6 of the Ordinance.

2. If the interpretation put by the petitioner on the defini tion of "evacuee property" and the scope and object of section 6 of the Ordinance be accepted as correct, then whether this Court has jurisdiction to direct the Central Government to issue a notification under section (3) of section 6 to divest and dispossess the Custodian of the petitioner's property or not which is a moot point, the main purpose of the petition will have been achieved viz., that the properties in question being un‑evacuee, could not have been acquired by the Central Government under the Displaced Persons (Compensation and Rehabilitation) Act and under section 3, nor included in the pool of evacuee property to be transferred to refugee claimants and others. But having heard Mr. Zahir Abbas, the learned counsel for the petitioner, who argued this case with great zeal and ability, and examining the Evacuee Laws which have held the field since the 9th of September, 1947, we have come to the conclusion that the petitioner's property having once become evacuee under the West Punjab Protection of Evacuee Property Ordinance (VII of 1947), continued to retain that character notwithstanding the change in the definition of "evacuee" and "evacuee property" brought in by Ordinance XV of 1949.

3. In the hierarchy of Evacuee Laws, the first to come into force was the West Punjab Evacuee Property (Preservation)' Ordinance (V of 1947). The definition of "evacuee" given in the 12th section of this Ordinance reads as follows:‑-- "The expression "evacuee" means any person or corporation resident in West Punjab who or which left West Punjab on or after the first day of January, 1947, without appointing any person to protect his or its property left in West Punjab, and evacuee property' means property left in West Punjab by any such evacuee." This was followed by the West Punjab Protection of Evacuee Property Ordinance (VII of 1947), which is of more elaborate character and in its 20th section "evacuee property" and "evacuee" are defined as under :‑ "Evacuee Property" means any property in the West Punjab which owing to the recent disturbances, the owner cannot personally occupy or supervise, or take delivery of from the place of deposit, or in the case of a corporation property which forms the assets of any business or undertaking which has ceased wholly or partially to operate owing to the said disturb ances," and "Evacuee means an owner of such property." Under the 4th section of the Ordinance the Custodian was autho rised to assume possession of or control over evacuee property by a general or special order, and from the date of the order, the holder of any such property, if any, was to be deemed to hold it on behalf of the Custodian. On the 23rd of December 1947, a notification was issued by the Custodian assuming possession and control of all evacuee property in the Province of West Punjab.

4. Soon after the promulgation of Ordinance VII of 1947, the West Punjab Protection of Evacuee Property Act (VII of 1948) came into force. The definitions of "evacuee" and "evacuee property", so far as they relate to a corporation, provided in this Act are substantially the same as in the preceding Ordinance. The provisions of section 4 empowering the Custodian of Evacuee Property to assume possession of and to take control over evacuee property are also similar in both the enactments. Twenty‑third section of the Act further provided that notwith standing the fact that the West Punjab Protection of Evacuee Property Ordinance (VII of 1947), ceased to operate any rule made, anything done and any action taken by or under the said Ordinance shall be deemed to have been made, done or taken, so far as may be, in exercise of the powers conferred by or under this Act as if this Act had come into force on the 9th of September, 1947. By virtue of this provision, the petitioner's property continued to be evacuee and remained in possession and control of the Custodian.

5. In the same year, the administration of evacuee property was taken in hand by the Central Government of Pakistan and two Ordinances, one for the protection of evacuee property and the other for economic rehabilitation of the country, were promulgated. Under the provisions of the Pakistan (Protection of Evacuee Property) Ordinance (XVIII of 1948), "evacuee" and "evacuee property" were defined as follows:‑-- " `Evacuee means any person who by reason of the disturbances arising out of the setting up of the Dominions of Pakistan and India, has been or is absenting himself from Pakistan and whose property in Pakistan is for the aforesaid reason not personally occupied, supervised or kept by him or whose business or undertaking in Pakistan has for the aforesaid reason ceased whether wholly or partially to be carried on or is being carried on by an unauthorised person," and "`Evacuee property' means the property in Pakistan owned by an evacuee or vesting in him under any trust or instrument and includes property in Pakistan obtained from an evacuee by lease, sale or exchange on or after the 1st August 1947." The 6th section of the Ordinance conferred on the Custodian of Evacuee Property powers similar to those in section 4 of Ordinance V1I of 1947 and Act VII of 1948. There is no repeal or saving section in this Ordinance, but in the 4th section it is laid down that the provisions of this Ordinance and rules made thereunder shall have effect notwithstanding anything inconsistent therewith in any other enactment or in any instrument having effect by virtue of any such enactment. Thus, except in the case of any repugnancy between the West Punjab Act VII of 1947 and the provisions of this Ordinance, both were to hold the field simultaneously.

6. In 1949, the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), replaced Ordinance XVIII of 1948, and brought in significant changes in the Evacuee Laws of the country. Since the principal contention of the learned counsel is based on the definitions of "evacuee" and "evacuee property" in this Ordinance, it will be advantageous to reproduce them verbatim:‑-- "2 (2) "evacuee" means any person who (i) on account of the setting up of the Dominions of Pakistan and India, 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 (ii) acquires or, has acquired, on or after the aforesaid date, in any manner whatsoever, any right to or interest in or benefit from any property which is treated as evacuee property under any law for the time being in force in India, or in any area occupied by India, or (iii) is resident in any place in the territories now comprising India or in any area occupied by India and who for that reason is unable to occupy, supervise or manage in person his property in Pakistan or whose property in Pakistan has, whether wholly or partially, ceased to be occupied, super vised, or managed by any person, or is being occupied, supervis ed or managed by an unauthorised person ; (3) "Evacuee property" means any property in which an evacuee has any right or interest, or which is held by or for him in trust, and includes‑ (a) any right or interest in joint Hindu family property which would accrue to the evacuee upon the petition of the same, or (b) property obtained from an evacuee after the twenty‑eighth day of February 1947 until confirmed by the Custodian, but does not include‑ (i) any movable property in the immediate physical possession of any evacuee, or (ii) any property belonging to a joint stock company the head office of which was situated, before the fifteenth day of August 1947, in any place in the territories now comprising India, and continues to be so situated after the said date." These definitions were twice amended in 1951. Amending Act VI of 1951, inter alia, added the following sub‑clause to clause (c) of subsection (2) of section 2:‑-- (iii) "In the case of a Corporation whose business or undertaking in Pakistan on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances, or the fear of such disturbances, has ceased to function, wholly, or partially, or is being carried on by persons (whether duly empowered in this behalf by the Corporation or its management or otherwise) whose authority to do so on or after the first day of March 1947, has not been accepted or approved by the Custodian." The second Amendment Act (XXXI of 1951), further modified the definitions of "evacuee" and "evacuee property" by substituting sub‑clause (iii) with the following sub‑clauses:‑ "(d) Whose business or undertaking in Pakistan, in the case of a Corporation, has on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances, or the fear of such disturbances, ceased to function, wholly, or partially, or is being carried on by persons (whether duly empowered in this behalf by the Corporation or its management or otherwise) whose authority to do so on or after the first day of March 1947, has not been accepted or approved by the Custodian ; or (e) being a joint stock company more than fifty per cent. of the shares of which are held by persons who are evacuees." It was further provided that the amendment made by this Act shall be deemed always to have been made and shall have effect accordingly.

7. Section 6 of Ordinance XV of 1949, declares that all evacuee property shall vest and shall be deemed to have always vested in the Custodian with effect from the first day of March 1947, and subsection (2) laid down that where any property in Pakistan belonging to a joint stock company has vested in any person exercising the powers of a Custodian under any law in force immediately before the commencement of this Ordinance, nothing contained in clause (3) of section 2 shall affect the operation of subsection (1), but the Central Government may by notification in the official gazette direct that the Custodian shall be divested of any such property in such manner and after such period as may be specified in the notification. By Amending Act VI of 1951, subsection (2) of section 6 was renumbered as (3) and after the words "vested in" the words "or been taken possession of by" and after the word "divestead" the words "or dispossessed" were inserted in it, so that the subsection as amended reads as follows :‑‑ "Where any property in Pakistan belonging to a joint stock company has vested in or been taken possession of by any person exercising the powers of a Custodian under any law in force immediately before the commencement of this Ordinance, nothing contained in clause (3) of section 2 shall affect the operation of subsection (1), but the Central Government may by notification in the official gazette direct that the Custodian shall be divested or dispossessed of any such property in such manner and after such period as may be specified in the notification." The law in force. immediately before the commencement of this Ordinance was Ordinance XVIII of 1948, but by virtue of the provisions of section 48 of Ordinance XV of 1949 the property which had vested in or been taken possession of and controlled by the Custodian under the West Punjab Ordinance VII of 1947, was covered by this clause. Section 48 reads as follows:‑-- "Provided that everything done, action taken, obligation, liability, penalty, or punishment incurred, inquiry or proceeding commenced, officer appointed or person authorised, jurisdiction or power conferred, rule made and order issued under any of the provisions of the said Ordinance, shall be continued, and so far as may be, be deemed to have been respectively done, taken incurred, commenced, appointed, authorised, conferred, made or issued under this Ordinance, and any enactment or document referring to any of the said provisions shall, as far as may be, be construed to refer to this Ordinance or to the corresponding provision thereof." "(2) Any provision of any law in force in any area immedia tely before the commencement of the aforesaid Ordinance and corresponding to any provision of that Ordinance, shall, so far as may be, be deemed to be a provision of the said Ordinance, and the provision to subsection (1) shall, wherever necessary, be construed accordingly." Any law in force in any area immediately before its commence ment has a reference to the West Punjab Act VII of 1948. It will be recalled that under the 23rd section of that Act notwith standing the cessation of operation of the West Punjab Protection of Property Ordinance (VII of 1947), any rule made anything done and any action taken by or under the said Ordinance shall be deemed to have been made, done or taken, so far as may be, in exercise of the powers conferred by this Act (Act VII of 1948), as if the Act had come into force on the 9th of September 1947. The possession of evacuee property taken by the Custodian of the West Punjab by notification published in the gazette of the 23rd December, 1947, thus became an action taken under Act VII of 1948, and under the provisions of subsection (2) of section 48 and Ordinance XV of 1949, reproduced above, the provisions of subsection (3) of section 6 of the Ordinance became applicable to it. Ordinance XV of 1949, was succeeded by two Ordinances, viz., the Pakistan (Administration of Evacuee Property) Ordinance (XVIII of 1956), and the Pakistan (Admi nistration of Evacuee Property) (Second) Ordinance (XX of 1956), which were replaced eventually by the Pakistan (Administration of Evacuee Property) Act (XII of 1957). The definitions of "evacuee" and "evacuee property" provided in these three enactments are similar to those of Ordinance XV of 1949, reproduced above, while the provisions of section 6 of the Ordinance have been reproduced in section 7 of the Act in almost identical terms.

8. It was admitted before us that the petitioner had a number of branches in the Province of West Punjab at the time of Partition, all of which, excepting one in the city of Lahore, were closed down on account of disturbances, and migration of non muslim members of its staff to India. The Lahore Branch too has not conducted any appreciable banking business since August 1947. The business of the petitioner having partially, if not altogether, ceased to operate owing to disturbances soon after August 1947, its property became evacuee, and its possession was assumed by the Custodian on the 23rd of December 1947, under the provisions of the West Punjab Protection of Evacuee Property Ordinance (VII of 1947). Further, under the provisions of the economic rehabilitation ordinances and acts, which came into force from time to time they were allotted to respondents Nos. 7 to 129 as evacuee property. It is however, maintained that on the coming into force of the Pakistan (Administration of Evacuee Property) Ordinance X V of 1949, which excluded the property of a joint stock company, whose registered office was situated in India on or before the 15th day of August 1947, from the definition of evacuee property, property belonging to the petitioner became non‑evacuee though it continued to be possessed by and vested in the Custodian under section 6 of the said Ordinance till such time as the Central Government issued the requisite notification: Even if the definitions of "evacuee" and "evacuee property" in the Ordinance are interpreted with out taking into consideration the provisions of section 6, it is a moot point whether they took effect prospectively or retros pectively. On one view, properties, which had already become evacuee and whose possession and control vested in the Custodian and he had made them over to the Rehabilitation Department for allotment to refugees, continued to be evacuee under the doctrine of transaction past and closed. On the other view, the definitions being declaratory in nature, properties, which were excluded from their scope, could not continue to be evacuee, for this would render the new definitions nugatory to some extent. But the matter does not rest here. Firstly, while exclud ing the property of certain joint stock companies from the definition of "evacuee property", the legislature simultaneously provided in section 6 that until the Central Government decided to issue notification under subsection (3) property, which had already vested in or taken into possession by the Custodian, shall continue to vest in and be possessed by him. The operative part of subsection (3) is that the new definition of "evacuee" shall not affect the operation of subsection (1) in respect of properties belonging to joint stock companies which had their Head Offices situated in India on or before the 15th day of August 1947. Subsection (1) lays down that all evacuee property shall vest in the Custodian and shall always be deemed to have vested in him, but if by virtue of the new definition property belonging to a joint stock company, ceased to be evacuee then the provision of subsection (3) could not have the effect of vesting it in the Custodian or validating his possession thereof. The question of the Central Government issuing a notifica tion divesting or dispossessing the Custodian of such property after it had ceased to be evacuee therefore did not arise and the provision to that effect in subsection (3) is rendered meaningless. If the intention of the legislature in providing the new definition of evacuee property was to declare the properties owned by a certain class of joint stock companies as non‑evacuee, with retrospective effect it is difficult to reconcile it with the amend ments of the definition of "evacuee" and "evacuee property" made twice in 1951, reproduced above. Originally, joint stock companies, whose business was being conducted in Pakistan by duly empowered persons, were not treated as evacuee, but with the addition of sub clause (iii) of clause (c) of subsection (2) by the Amending Act VI of 1951, this latitude was taken away and it was provided that a corporation, whose business is being carried on by persons whether duly empowered in this behalf by the corporation or its management or otherwise, whose authority to do so on or after the 1st day of March 1947, had not been accepted or approved by the Custodian, became evacuee. By Act XXXI of 1951, another clause was added to the definition of "evacuee", which provided that "being a joint stock company, more than fifty‑one per cent. of the shares of which (corpora tion) are held by persons who are evacuee's and these definitions were given retrospective effect with the result that the joint stock companies which formerly did not fall within the definition of "evacuee", now became evacuee and their property vested in the Custodian and deemed to have always so vested. In face of this could it be said that Ordinance XV of 1949 released from its bondage properties of joint stock companies which had already become evacuee. The question is satisfactorily answered if the definition of "evacuee property" in section 2 and the provisions of subsections (1) and (3) of section 6 are read together as laying down that the property of a joint stock company, whose head office has been in India on or before the 15th day of August 1947, shall not be treated as evacuee in future and vest in or taken into possession by the Custodian. But if under the law immediately in force before the coming into force of the Pakistan (Administration B of Evacuee Property Ordinance (XV of 1949), it has already vested in the Custodian or taken into possession by him, then the new definition will not affect any change in its nature till such time as the Central Government may, by a notification, divest or dispossess the Custodian of it. To put it in other words, the relevant part of the definition of evacuee property may be read by combining the provisions of sections 2 (3) and 6 (1) as follows:‑-- (a)* * * * * * * (b)* * * * * * * * but does not include‑ (i) * * * * * * * * (ii) any property belonging to a joint stock company the head office of which was situated, before the fifteenth day of August 1947, in any place in the territories now comprising India, and continues to be so situated after the said date", "except the property which has vested in or taken into possession by any person exercising the power of a Custodian under any law in force immediately before the 1st day of January 1957, but the Central Government may, by notifica tion in the official Gazette, direct that the Custodian shall be divested or dispossessed of any such property in such manner and after such period as may be specified in the noti fication." The learned Advocate‑General, who had the advantage of perusing the policy files of the Central Government, informed us on this point that the new definition of "evacuee property" was not intended to exclude from its scope property of certain joint stock companies and that the provisions of subsections (1) and (3) of section 6 were enacted as a result of an Inter‑Dominion Agreement to restore the properties of such joint stock companies to them on a reciprocal basis, which did not materialise.

9. We are aware of a number of decisions of the learned Custodian and his subordinate officers declaring that while joint stock companies of the nature referred to above were evacuees, their properties were non‑evacuee, with which we find ourselves unable to agree. The definition of the status of a person or a corporate body in the evacuee laws was provided with the sole purpose of determining the character of his or its property, in order that it may be protected and made available for rehabilitating refugees from one country to the other, otherwise it was no concern of the Government of Pakistan or of India to define or declare the status of persons who are residents of a foreign country. We, therefore, find not much sense in specifically declaring certain joint stock companies evacuee and at the same time excluding their properties from the definition of "evacuee property" which had already vested in or taken into possession by the Custodian and made over to the Rehabilitation Department for resettlement of refugees and repairing the economic dislocation of the country. In this connec tion it may be recalled that after Ordinance XV was promulgated in 1949, the definition of "evacuee" was modified twice in 1951 to include in it more joint stock companies, which had previously escaped the application of evacuee laws and all these considerations will lead to the conclusion, arrived at earlier by us:

10. As no notification under section 7 (3) of Act XII, 57 was issued by the Central Government till the 1st of August 1959, when the Government of West Pakistan on the direction o the Central Government acquired all urban immovable evacuee property under section 3 of the Displaced Persons (Compensation C and Rehabilitation) Act (XXVIII of 1968) the question of directing the Government to issue the requisite notification does not arise for the property now vests in the Central Government and not the Custodian. In view of this, it is unnecessary to express any considered opinion whether it was obligatory on the Central Government to issue a notification under section 7 (3) of Act XII of 1957 at the request of the petitioner but as good deal of arguments were advanced before us on this point we may observe that on the whole we were not inclined to adopt the view that the authority of the Central Government to issue the notification was coupled with a duty in favour of the petitioner. The authorities cited by Mr. Zahir Abbas Board of Supervisers of Rock Island County v. United States (1867USSCR186LEd.p.419) Julius v. Bishop of Oxford ((1880) 49 L J R.Q B 577) Nichola v. Baker ((1890) 44 Ch. D 262), re‑Johannisherg Land and Gold Trust Company ((1892) 1 Ch. D 583), Rex v. Mitchell ((1913) 82 L J K B 153) and Border Rural District Council v. Roberts ((1950) 1 K B 716, 729), either do not support the learned counsel or are distinguishable on facts.

11. It now remains to deal with the last contention of the petitioner that as some of the properties in dispute had already been declared non‑evacuee by the Custodian and Central Government could not have acquired them under section 3 of the Displaced Persons (Compensation and Rehabilitation) (Act XXVIII of 1958). Copies of certain judgment have been placed on the record, out of which Exh. P. 5 is the decision of Mian Muhammad Aslam, Deputy Custodian of Evacuee Property, Lahore, dated the 18th of June 1952, and Exh. P. 511 is the order of confirmation by the Custodian dated the 20th July 1957. As the property involved in this case is not the subject matter of the present petition, both the judgments are irrelevant, but it may be mentioned that no independent inquiry was made or a decision given regarding the status of the petitioner and its property by the learned Deputy Custodian and he merely relied on an earlier judgment of his, copy of which has not been placed on the present record. Exh. P. 6 is the copy of an order of the Deputy Custodian of Evacuee Property, Lahore, dated the 11th of November 1954, and Exh. P. 6/1 is the order of its confirmation by the Deputy Custodian (General), dated the 23rd of March 1955. By the former order, Ch. Aziz Ahmad declared that six of the properties in dispute in the present case we're non‑evacuee on his interpret ation of section 2 subsection (3) sub‑clause (c) (ii) of Ordinance (XV of 1949), but a note was added that the declaration did not mean that the Custodian's Court or the Rehabilitation Authorities had a right to deliver possession of the properties to the petitioner as they had already been taken into possession by the Custodian under the law in force immediately before the promulgation of Ordinance XV of 1949 and under subsection (3) of section 6 nothing contained in the above definition could affect the operation of subsection (1) of section 6 of the Ordinance. By the latter order, Mr. Abdul Majid Asghar confirmed the order of Mr. Aziz Ahmad and added that if the Central Govern ment considered the release of the petitioner's properties a report should be called from the Custodian before passing any final orders. Exh. P. 7 is another order of Mr. Aziz Ahmad, which proceeds on a concession made by the respondents that 2,000 shares of the Punjab Flour and General Mills Company Limited, Shahdara, belonged to the petitioner and were non‑evacuee. The Punjab Flour and General Mills Company Limited, Shahdara, and its property were, however, held to be non‑evacuee on the basis of section 2, subsection (2) clause (c), which provided that "being a joint stock company more than fifty per cent. of the shares of which are held by persons who are evacuee". Exh. P. 7/1 is the order of Mr. Irshad Ali Khan, Additional Custodian, in which without any further discussion he has confirmed the order of Ch. Aziz Ahmad. In it, there is also an observation that the Punjab Flour and General Mills Company Limited, Shahdara, was an evacuee and the Rehabilitation Department had taken it over as such on account of the fact that the greater number of the share‑holders were evacuees.

12. It will be noticed that the declaration granted by Ch. Aziz Ahmad to the petitioner that its properties were non evacuee, is based on his interpretation of the term "evacuee property" in Ordinance XV of 1949. According to the view we have expressed above, the decision of Mr. Aziz Ahmad is erroneous and partly contradictory in itself, for on the one hand he has declared the properties of the petitioner to be non‑evacuee and on the other declined to restore their possession the petitioner on the ground that they vested in and had been taken into possession by the Custodian and that the new definition of "evacuee property" did not affect the operation of subsection (1) of section

6. As subsection (1) as applicable only to evacuee property, it follows that by virtue of subsection (3) the property continued to be evacuee and the order is self contradictory. In writ jurisdiction, we are not obliged to imple ment an erroneous order, though it be with jurisdiction and therefore decline to issue any one of the writs asked for by the petitioner.

13. In the result, we dismiss the petition' but in view of difficult questions of law involved in its decision, leave the parties to bear their own costs. A.H. Petition dismissed.