P L D 1961 (W (PLP)

SHABIR AHMAD, J.

An application was made by Mst. Karam Elahi and her two minor sons, Fazal Ahmad and Maqbul Ahmad, who were the heirs of Bashir Ahmad, to the Deputy Custodian Evacuee Property, Multan, for a declaration that the property left by him was not evacuee property. Bashir Ahmad was originally a Hindu but bad embraced Islam before his death, and besides the above‑mentioned three persons left other heirs who were Hindus. This application was granted by the Deputy Custodian of Evacuee Property, Multan. When the matter came up before the Custodian of Evacuee Property North Zone, Lahore, he agreed with the view expressed by the Deputy Custodian of Evacuee Property, Multan, and by his order dated the 17th of April 1961 declared the property to be non‑evacuee in character. Thereupon Mahmood Ali and some others, to whom the property had been allotted by the Rehabilitation Department as evacuee property, presented a petition for revision to this Court (Civil Revision No. 149 of 1961). This revision petition was admitted to a hearing on the 16th of June 1961 by my brother Bashir Ahmad, J. and myself, and an order was passed on that date that the status quo was to be maintained till the disposal of the revision petition. Mst. Karam Elahi and her two minor sons presented this application praying that the stay‑order passed on ‑the 16th of June 1961 be vacated because the revision petition presented to this Court was incompetent and consequently no stay‑order could have been passed. It is this application that would be disposed of by this order.

2. Whether or not the revision petition, presented by Mahmood Ali and six others is competent will depend on the relevant provisions of law dealing with the subject. As originally exacted, the Pakistan (Administration of Evacuee Property) Act (XII of 1957) did not contain any provision regarding the scrutiny except by the Central Government, of the orders of the Custodian whereby any property had been declared to be non‑evacuee property. However, by the Pakistan Administration of Evacuee Property (Amendment) Act (XLV of 1958), which became law on the 23rd of September 1958, some changes were brought about and one of them was the insertion of sections 43‑A and 43‑B after section 43 of Act (XII of 1957). Sections 53‑A and 43‑B, inserted by section 5 of Act XLV of 1958, were in the following terms: --‑ "43‑A. (1) 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, as the case may be, non‑evacuee property; and 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 (Administration of Evacuee Property) (Amendment) Act, 1958, or within three months of such declaration, whichever be later, the record of the case to the High Court for the purpose of 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." On the 14th of April 1959 came the Pakistan (Administration of Evacuee Property) (Amendment) Ordinance, 1959 (XXII of 1959). By section 5 of this Ordinance, sections 43‑A and 43‑B, inserted by means of section 5 of Act XLV of 1958, were replaced by the following sections 43‑A and 43,‑B :‑ "43‑A. (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 vase 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 modifying 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 accordance 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." Section 1 of Ordinance XXII of 1959 was in the following terms :‑ "(1) This Ordinance may be called the Pakistan (Aministra?tion of Evacuee Property) (Amendment) Ordinance, 1959. (2) It shall come into force at once and shall remain in force until the thirtyfirst day of December 1960, whereupon the amendments ordered to be made in the Pakistan (Administra?tion of Evacuee Property)‑ Act, 1957, by sections 2, 3, 4, 5 and 6 shall cease to form part of that Act and shall be deemed to have been repealed." While section 7 of that Ordinance reads as follows: "The Pakistan (Administration of Evacuee Property)' (Amendment) Act, 1958 (XLV of 1958) is hereby repealed." Further change in Act XII of 1957 was brought about by means of the Pakistan (Administration of Evacuee Property) (Amend?ment) Ordinance, 1960 (XLI of 1960), which was promulgated on the 10th of October 1960. By this Ordinance, section 43‑C was inserted after section 43‑B as it stood on that date.

3. Mr. A. R. Sheikh, learned counsel for the applicants, took up the position that at the time when, the impugned order of the Custodian was passed, the power to bear revision petitions against that officer's orders, which had been conferred, on High Courts by the Pakistan (Administration of Evacuee Property) (Amendment) Act, 1958, had been taken. away and, therefore, no petition for revision could be entertained by this Court. Mr. A. R. Bajwa, Advocate, who appeared for Mahmood Ali and others, who were respondents in the present application but petitioners in Civil Revision No. 149 of 1961, took up the position that the powers of revision which had been given to the High Courts by sections 43‑A and 43‑B of Act XII of 1957, inserted by Act XLV of 1958; existed on the date when the petition for revision was lodged in this Court and, therefore, this Court was competent to deal with the petition for revision. His contention was that as soon as sections 43‑A and 43‑B, inserted by Ordinance XXII of 1959, ceased to be law by reason of the provisions contained in subsection (2) of section 1 of that Ordinance sections 43‑A and 43‑B inserted by Act XLV of 1958 got revived and the order of a Custodian of Evacuee Property could thenceforth be challenged by the presenting of a petition for revision in the High Court.

4. To support his contention, Mr. Bajwa placed his reliance on section 6‑A of the General Clauses Act, 1897 (X of 1897), which is in the following terms :‑ "Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enact?ment so repealed and in operation at the time of such repeal." Though this section does not make any mention of Ordinances, but section 30 of the General Clauses Act, 1897, is to the effect that Ordinances stand on the same footing as Acts and Regulations for the purposes of the Act. As I read it section 6‑A of the General Clauses Act means that when a law which brought about some changes in an existing law is repealed the changes brought about by the repealed law have to continue in force unless the law which brought about the repeal made it clear that the inten?tion‑was that the repeal of the law would result in the repeal of the changes that had been brought about by it. An illustration would make my interpretation of section 6‑A of the General A Clauses Act clear. Suppose an Ordinance, which I will catl Ordinance B, had inserted a provision in another Ordinance, which I will call' Ordinance A, and Ordinance B itself is repeated by an Ordinance, which I will call Ordinance C, Ordinance C will not result in the repeal of the change, brought about by Ordinance B in Ordinance A unless it is apparent that the intention was that the change. brought about in Ordinance A by Ordinance B should also vanish.

5. The question that falls for determination is whether it was intended by the law‑maker, who promulgated Ordinance XXII of 1959, that notwithstanding the fact that Act XLV of 1958 had been repealed and sections 43‑A and 43‑B, inserted by it in Act XII of 1957, had been replaced by entirely different sections 43‑A and 43‑B on account of section 5 of the Ordinance, the sections did not get divested of all force for all times sub?sequent to the coming into force of the Ordinance. After giving the matter my anxious consideration, , I have arrived at the conclusion that the contention of Mr.‑Bajwa that sections 43‑A and 43‑B inserted by Act XLV of 1958 lost their force only till such time as sections 43‑A and, 43‑B, inserted by Ordinance XXII of 1959, remained in force cannot be accepted. My reason for this view is that if the intention had been that from the 14th of April 1959 to the 31st of December 1960 orders passed by a Custodian of evacuee property to the effect that certain property was non‑evacuee property could be challenged by the Central Government before a Tribunal set up for that purpose under the provisions of sections 43‑A and 43‑B inserted by Ordinance XXII of 1959 and by no other means, but after the 31st of December 1960 the High Courts could hear revision petitions against the orders of a Custodian as they had been competent to do under sections 43‑A and 43‑B of Act XII of 1957, inserted by section 5 of Act XLV of 1958, that intention would have been expressed in very clear words. I cannot lose sight of the fact that Ordinance XXII of 1959 did not bring about a simple repeal of Act XLV of 1958.which had inserted sections 43‑A and 43‑B to Act XII of 1957 but had brought into being entirely new sections 43‑A and 43‑B in their place and this was different from a simple repeal of Act XLV of 1958. It was not denied by Mr. Bajwa that there was nothing in the language employed in Ordinance XXII of 1959 to indicate that sections 43‑A and 43‑B of Act XII of 1957, as inserted by Act XLV of 1958, which could not have had any application between the 14th of April, 1959 and the 31st of December 1960, would revive on the 1st of January 1961, but he contended that by reason of the provisions of section 6‑A of the General Clauses Act, 1897, it had to be presumed that as soon as Ordinance XXII of 1959 ceased to have effect, Act XLV of 1958 became operative. This argument suffers from the infirmity that it assumes that sections 43‑A and 43‑B, inserted by Act XLV of 1958, continued in force even after the promulgation of Ordinance XXII of 1959 on the 14th of April 1959 but could not be invoked from that date till the 31st of December 1960. If Ordinance XXII of 1959 had not replaced sections 43‑A and 43‑B, inserted by Act XLV of 1958, by entirely different sections 43‑A and 43‑B, the contention of Mr. Bajwa that the repeal of Act XLV of 1958 by Ordinance XXII of 1959 could not amount to repeal of sections 43‑A and 43‑B, inserted in Act XII of 1957 by Act XLV of 1958, would have had force, but as new sections had replaced the old ones, the contention that the old sections remained ineffective only from the 14th of April 1959 to the 31st of December 1960 but regained their force on the 1st of January 1961 is clearly without any force.

6. Mr. Bajwa wanted to gain support for his contention by saying that it could not have been the intention that though the order of a Custodian of Evacuee Property that certain property was non‑evacuee in character should be open to scrutiny between the 23rd of September 1958, which was the date of the coming into force of Act XLV of 1958, and the 31st of December, 19oO on which date sections 43‑A and 43‑B, inserted in Act XII of 1957 by Ordinance XXII of 1959, were to stand repealed, such orders should be immune from scrutiny if passed after the 1st of January 1961. In view of the clear words used in Ordinance XXII of 1959 it is not open to Courts to hold that the intention of the law‑maker was any different from what it had been expressed to be when interpreting a law, the Courts have to find out the intention of the law‑maker but if that intention has been unambiguously expressed in the words used the Courts cannot say that the law‑maker had an intention other than that has been B expressed by the words employed to express that intention. At any rate, I do not see why it should be presumed that the intention otj the law‑maker was that the order of a Custodian declaring property to be non‑evacuee must be open to scrutiny at the instance of the Government or a private party at all times when one knows that no such provision existed between the coming into force of Act XII of 1957 and that of Act XLV of 1958. 1 would, therefore, hold that no revision petition to this Court was competent.

7. Having held that the revision petition does not lie, I C proceed to consider whether only the stay order passed on the 16th of June 1961 should be withdrawn or the revision petition itself should be disposed of. It having been held that the revision petition does not lie, it would be futile and waste of the time of everyone concerned to postpone the passing of an order that revision petition was incompetent and on that ground be dismissed. I would, therefore, dismiss Civil Revision No. 149 of 1961. The result of this order would be that the stay order passed at the preliminary hearing would stand automatically vacated. In the circumstances of the case I would pass no order as to costs. S. A. MAHMOOD, J.‑

I agree. A. H. ?? Revision dismissed.