1982S75 (PLP)

M. S. H. QURESHI J. These four appeals by leave of the Court, bearing Nos. 230 and 231 of 1979 and 117 and 118 of 1981, are directed against the judgment of the High Court dated 28‑10‑1979 passed in Writ Petition Nos. 6/R and 145/11 of 1977, whereby a Division Bench of the Lahore High Court quashed the earlier orders of the Custodian, dated 30‑11‑1955 and 6‑12‑1955, declaring the properties in question to be evacuee, and the order of the Custodian dated 14‑10‑1976 declining to review the said earlier orders in spite of a reference having been made to him for the purpose under the direction of the Supreme Court given in Civil Appeal No. 38 of 1965 reported as Muhammad Saeed v: Muhabbat Ali PLD1966SC781.

2. The dispute relates to property Nos. 52‑R‑89 and 52‑R‑91, known as 7‑Nisbat Road, Lahore. This and property Nos. 52‑R‑58 known as 4‑Nisbat Road, and 19‑R‑76 known as West End Building, all situate in the City of Lahore, were owned by Mst. Santosh Lata, widow of Roshan Lal Kapur, and her three sons (respondents 4 and 4 (i) to 4 (iii), hereinafter called the owners). They had migrated to India at the time of the Partition but had returned thereafter, and on their application made under section 17 of the West Punjab Protection of Evacuee Property Act (VII of 1948), the properties were restored to them on 7‑9‑1948 by the Additional Custodian (Mr. Abdur Rab), subject to the conditions that the refugee‑allottees in the properties would not be ousted or dispossessed, that the owners would have the landlords' right in respect of the properties, that they would not alienate the same and that upon their refusal to reside in Pakistan, the order of the restoration would stand cancelled. In respect of one of the properties, which was in possession of the Government, the Custodian (Mr. Justice S. A. Rahman) found, as per his order dated 11‑5‑1950, that the lady "had complied with the conditions of the restoration order" and accordingly allowed her to collect rent from the Government. Later, the owners obtained from the Rent Controller an order, on 4‑3‑1950, for ejectment of Mst. Umatul Hussain, also known as Begum Muhammad Ismail (appellant in Civil Appeals Nos. 117 and 118 of 1981). Upon an objection taken by the latter that the property was still evacuee, the executing Court made a reference to the Custodian under section 34 of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949). The Deputy Custodian, on 3‑5‑1955, held that the property was not evacuee, which decision was confirmed by the Deputy Custodian (General) on 26‑9‑1955, but on appeal, the Custodian (Mr. Justice A. M. Jan), on 30‑11‑1955, held that "the property having once been taken possession of as evacuee property and having vested in the Custodian does not cease to be evacuee property if it is restored to the owner on conditions imposed by the Custodian". He, thereupon, formulated two issues, namely, (1) "does evacuee property continue to be evacuee property after the restoration", and if so (2) "can a Civil Court or the Rent Controller pass an order of ejectment from such property against the occupant thereof". After hearing the parties, he held, on 6‑12‑1955, that the property was evacuee. The owners challenged the decision by filing Writ Petition No. 375‑R of 1958 but withdrew ‑the same on 29‑9‑1959 as they wished "to seek remedy under Ordinance XXII of 1959", which had come into force on 14‑4‑1959. However, before they could do so, the Central Government in exercise of the power under section 55 of the Pakistan (Administration of Evacuee Property) Act LXII of 1957, issued Notification No. SRO‑1025 (K), dated 12‑8‑1960, which exempted "all evacuee property which may have been, or is hereafter, restored, under any law for the time being in force, to any evacuee or any ‑person claiming to be the heir or survivor of an evacuee, from all the provisions of the said Act, with effect from the date of such restora tion".

3. Meanwhile, another litigation had arisen in respect of the disputed property, i.e. 7‑Nisbat Road, which had been under an equitable mortgage in favour of the New Bank of India (respondent No. 3). The Bank obtained a decree for sale of the property on 28‑2‑1952. In the execution proceeding of the decree, the owners, on 27‑10‑1956, objected to the execution on the ground that the property was evacuee. However, the property was, in execution of the decree, sold by auction on 17‑11‑1956 and was purchased by Sh. Muhammad Saeed (deceased respondent No. 2). The owners later withdrew their objection on 25‑1‑1957. But before the proceedings in the execution sale could be finalized, the allottees of the property, namely, (1) Begum Darab Sultana, (2) Hakim Bashir Ahmad deceased and (3) Muhabbat Ali deceased, appellants in. Civil Appeal Nos. 230 and 231 of 1979 and (4) aforesaid Mst. Umtatul Hussain, filed applications objecting to the sale on the ground that the property was evacuee. The objection was allowed by the executing Court on 12‑4‑1960, subject to certain conditions imposed on the objectors. As they failed to comply, the executing Court confirmed the sale on, 22‑7‑1960. This led to the filing of three revisions in the High Court, one by the allottees challenging the validity of the confirmation of the sale, and the other two by the auction‑purchasers. The case of the allottees was that the matter should have been referred to the Custodian for a declaration as to the status of the property. The High Court held that the Custodian's order of 6‑12‑1955 was operative as a final and conclusive order vis‑a‑vis the jurisdiction of the Civil Court and accordingly accepted the petition of the allottees, restored the order setting aside the sale and allowed the auction purchasers the refund of their moneys. The attention of the learned Judge of the High Court had been drawn to the decision in P. G. Bhandari v. Rehabilitation Authority, Lahore PLD1961SC89, wherein a similar order of the Custodian declaring a restored property to be evacuee had been set aside and it had been ruled that by the fact of the restoration of the property to its original owner, the evacuee status previously belonging to that propriety was obliterated, but he expressed the view that whereas it was .possible to give effect to that opinion in deciding a writ ,petition against an order of the Custodian, the High Court or any other Court acting as a Civil Court would be barred from reaching a similar conclusion in view of the bar 'of jurisdiction contained in Act XII of 1957. The auction‑purchasers then came to the Supreme Court in Civil Appeal No. 38 of 1965 (P L D 1966 S C 781). This Court, after examining the history of the relevant legislation, the view taken in Bhandari's case and the effect of the Central Government's Notification of 12‑8‑1960, held that the view taken in the Custodian's order of 1955 had been expressly overruled by the Supreme Court in Bhandari's case, that the notification was retrospective in effect and that as the property had been restored on 7‑9‑1948, it should under the law laid down by the Supreme Court, follow that as from that date the property had lost its evacuee status. The Court, after further observing that the question had been retained as a living issue in the execution proceeding ever since the year 1956, and that section 3‑A of Act XII of 1957 was not applicable to the continuation of the proceeding, concluded that there was still an opportunity "to refer the matter to the Custodian to review the order of his predecessor in respect of the property herein disputed". The appeal was accordingly allowed, the order of the High Court was set aside and it was directed that the revisions be restored to the file and a reference be made to the Custodian "for a fresh decision", by way of review of the order of 1955, on the point whether the property in question remained evacuee property after the restoration of the 7th September, 1948". It was further observed that the Custodian would be at liberty to consider whether the property had re‑acquired the status of evacuee property in consequence of any actions or movements of some of the evacuee owners after that date. The decision of the Custodian was to be communicated to the High Court, on the basis of which the civil revisions were to be decided.

4. The matter was accordingly referred to the Custodian. The Deputy Custodian after recording evidence submitted the case to the Custodian. The learned Custodian agreed that "after restoration of an evacuee property to its original owner the same ceases to be evacuee and vests absolutely in the owner", but he did not find it possible to review the order of his predecessor as, according to him, the power to review suo motu, as was required in the case, had been taken away by amendment of section 43 (6) of Act X1.1 of 1957 by the Pakistan (Administration of Evacuee Property) (Amendment) Ordinance (LXIII of 1962) and all he could do under the amended provision was to remove only clerical or arithmetical errors arising from any accidental slip or omission, but the question of any such error on the face of the record did not arise. On this view of the matter, he declined to review and answered the reference accordingly, vide his order dated 14‑10‑1976.

5. The order was challenged by the auction‑purchasers in Writ Petition No. 6‑R of 1977 and by the owners in Writ Petition No. 145‑R of 1977. The learned Judges of the High Court doubted the correctness of the view taken by the learned Custodian for the reason that the proceedings had been con tinuously pending "since before 1955" and that in any case the Custodian "might as well, in pursuance of the reference to him by the learned Supreme Court, have examined the matter. in view of the provisions of Article 190 of the Constitution which require all Courts and authorities to act in aid of the Supreme Court". The learned Judges felt that even if the Custodian was right in his judgment that he had no power to review, the substantial question still remained as to whether the orders of his predecessor passed in 1955 were valid in law. They came to. the view that Mr.. Justice A. M. Jan had fallen in error on 30‑11‑1955 as well as on 6‑2‑1955 in holding that the property in question was still evacuee. The reasons, in their opinion, were, firstly .that the properties had been restored in favour of the owners on 7‑9‑1948 which had been re‑affirmed on 11‑5‑1950 when it had been found that the owners had complied with the conditions of the restora tion order, secondly, that the orders of 1955 were not valid when the properties had already been restored in favour of the original owners, thirdly, that the Central Government's notification of 12‑8‑1960 had exempted the properties restored to the original owners from the provisions of Act XII of 1957 which notification had been found by the Supreme Court in Bhandari's case to be valid and having the effect of erasing all taint of evacuee status from the properties, a view later armed by the Supreme Court in the case Inter partes P L D 1966 S C 781 wherein the Custodian's order of 1955 had also been expressly overruled, and, fourthly, that the orders of 1955 had lost their efficacy on the issuance of the Central Government's notification dated 12‑8‑1960. Having so concluded, the learned Judges considered whether the matter should be referred back to the Custodian for a fresh decision but taking into account the fact that the litigation had been going on for more than a quarter of a century they thought that it was no use sending the case back as that would only involve unnecessary litigation and undue consump tion of public time and also as the Custodian had already held that he had no power to review. They felt that questions of locus standi or laches did not arise in the circumstances of the case as the petitioners in both the writ petitions had interest in the properties in dispute and had been in Courts over a quarter of a century. They, therefore, by their impugned judgment, declared the order of the Custodian dated 14‑10‑1976 as well the orders dated 30‑I1‑1955 and 6‑12‑1955 to be without lawful authority and of no legal effect.

6. Against this judgment of the High Court, the allottees, namely, Begum Darab Sultana, Hakim Bashir Ahmad deceased through L. Rs. and Muhabbat Ali deceased through L. Rs (appellants in Civil Appeal Nos. 230 and 231 of 1979) and Mst. Umatul Hussain, i.e. Begum Muhammad Ismail (appellant in Civil Appeal Nos. 117 and 118 of 1981) sought leave to appeal. Leave was granted to consider (1) whether the Custodian on the facts and in the circumstances of the case and also in view of the judgment of this Court dated 2‑6‑1966 (P L D 1966 S C 781) should have proceeded to decide the case referred to him under direction of this Court on merits and whether his finding that he had no jurisdiction to attend to this matter was correct under the law and (2) whether similarly the High Court had the jurisdiction to pronounce upon the non‑evacuee nature of the property in dispute when the Custodian felt lack of jurisdiction on his part in this respect.

7. Since Bhandari's case had been relied upon by the Supreme Court in directing the making of the reference in 1966, it may be helpful to being out the ratio decidendi of that case. The property in Bhandari's case, too, had been restored under section 17 of the West Punjab Protection of Evacuee Property Act (VII of 1948) on 10‑5‑1948 on similar conditions, such as (1) the restoration in favour of Bhandari was "regarding landlord's right", (2) he would not alienate the property without permission of .the Custodian and (3) he would reside and carry on business in a normal manner like any other national of Pakistan. Again as in the present case, the Custodian had, upon a reference made by the Rent Controller in an ejectment proceeding, upheld on 17‑6‑1958 the order of the Deputy Custodian declaring that the property was evacuee. P. G. Bhandari had challenged the order in an appeal by special leave under Article 160 of the 1956 Constitution. The Supreme Court noted that at the relevant time, the law enacted "was not expressed to convey the impression that the transfer of populations was permanent", that the law was expressed to be made for "the protection and care of the property of evacuees", that for this reason the Custodian was expressly enjoined to take necessary measures for preserving and safeguarding the property of evacuees and that the property was not to vest in him unless it had been so ordered by the Central Government. No such vesting order had been made until the coming into force of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949). In the view of the Supreme Court, "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". When their attention was drawn to the Custodian's order of 1955 in the present case, their Lordships, as regards the Custodian's proposition "that even after restoration, evacuee property continues to be evacuee property", categorically expressed that "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". They further expressed 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". On a challenge to the vires of the Central Government's notification dated 12‑8‑1960, in particular its retrospective character, their Lordships ruled that "it (the notification) remains as an indication 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". In the view of their Lordships,‑ the restoration of the property on 10‑5‑1948 to Bhandari represented 'a transaction which had been completed and was thus "past and closed" beyond the possibility of being affected by any subsequent law. In the end, it was observed that "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 their owners, and never to have been intended or applied so as to effect a seques tration or diminution of the rights of such owners, merely by reason of their having absented themselves temporarily 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 opera tion 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."

8. When the orders of the Custodian of 1955 again came up before the Supreme Court for examination in the appeal of the auction‑purchasers in 1966, the Court observed that "the orders exhibit little in the way of construction of the relevant statutes", that "in the present case, there was an order of restoration of the 7th September, 1948, and under the law laid down by the Supreme Court it should follow that as from that date, the property lost its evacuee status", that "it may be repeated here that the view taken in the Custodian's order of 1955 was expressly overruled by the Supreme Court in the case of P. G. Bhandari" and that the same was "contrary to the law declared by the Supreme Court on the point after proper construc tion of the statutes and instruments in force at the time when the Custodian made his order."

9. Having so clearly and unambiguously expressed themselves about the Custodian's orders of 1955, their Lordships did not proceed to decide the matter themselves as they had done in Bhandari's case. This was perhaps because while Bhandari's case had come up in appeal from the Custodian's order itself, the auction‑purchasers' appeal bad arisen from a civil jurisdiction so that their Lordships thought it proper that the Custodian himself should review the orders under section 43(6) of Act XII of 1957, for which purpose they directed that a reference be made. Apparently the change in the provision of section 43(6), which had already taken place by virtue of Ordinance LXIII of 1962, had not been brought to their notice. By this Ordinance, the power of review as contained in section 43(6) had been taken away and in its place the following provision had been substituted :‑ "(6) Clerical or arithmetical mistakes in any order passed by any Custodian under this Act, or errors arising therein from any accidental slip or omission, may, at any time be corrected by the Custodian concerned or his successor in office:" A saving was made only in respect of review applications (1) which were pending immediately before the commencement of the Ordinance, and (2) on which proceedings had before such commencement started. As no 'Such review application had been pending before the Custodian at the relevant time, he was, when the reference was made to him in 1966, no longer possessed of powers to review. This Court as early as 1965, in K A. Jaisinghani v. Custodian of Evacuee Property PLD 1965SC453 , had held that suo motu review was not intended to be saved by the provision of section 4 of Ordi nance LXIII of 1962. In fact, it is not the case ‑ of any of the partie before us that the Custodian had such power. The view taken, therefore, by the learned Custodian in his order dated 14‑10‑1976 that he had no powers of review except for removing clerical or arithmetical mistakes was thus in accordance with law and not open to exception. The judgment of the High Court is, to this extent, liable to be set aside.

10. But this cannot be the end of the matter, for, if the Custodian had no power to review, the High Court could, in the exercise of its writ, jurisdiction, declare upon the legality of the Custodian's order of 1955. This is not disputed but it is urged that the writ petitions filed in 1977 suffer not only from delay of some twenty‑two years but were also liable to be dismissed on account of the conduct of the owners in having withdrawn their writ petition earlier filed. That writ petition, i.e. No. 375‑R of 1958, had been filed in 1958 but had been withdrawn in 1959 for the reason that the owners wished to seek other remedy. It is submitted by their counsel Mr. Aamir Raza A. Khan that the owners were not to blame for the delay of some 10 years from 1966 to 1976 which was the period consumed in answering the reference by the Custodian; that even though the owners had withdr4wn their writ petition in 1959 they had not given up other remedies, for the issuance of the notification dated 12‑8‑1960 was in no way less due to their efforts and that they had been pursuing the matter in the proceedings relating to the execution of the decree of sale. Be that as it may, the High Court had, for good reasons, decided to ignore the ]aches, if any, which it was competent to do and we see no justification for interfering with the exercise of its discretion. Both the orders of the Custodian of 1955 had been duly challenged in the writ petitions of 1977 and as such the High Court was well within its rights to pronounce upon the same too. This also takes care of the objection that if the Custodian's decision that he had no power to review was found correct, the High Court bad had no alternative but to dismiss the writ petitions and it could not go back to the orders of the Custodian of 1955.

11. The reference itself was not incompetent. For, the relevant provi sion of section 41(3), whereunder the reference was made, had remained on the statute book until its repeal by the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance (XV of 1974), with effect from 1‑7‑1974. Even after the repeal, the said provision was available for all proceedings which had been pending immediately before the repeal and which even after the repeal would have been remanded by the Supreme Court or the High Court, though the pending proceedings or the matters to be remanded were after the repeal to be disposed of by an officer notified for the purpose by the Provincial Government.

12. It was, however, contended by Mr. Maqbool Sadiq, learned counsel for the auction‑purchasers, that a reference having already been made, culminating in the order of the Custodian of 1955 on the question of the nature of the property, a fresh reference could not be made respecting the same question. It was also argued by Major Ishaq Muhammad Khan. learned counsel for the appellants, that the property had not only been held to be evacuee by the Custodian in 1955 but had since then been included in the Compensation Pool and transferred in favour of the appellants and that as such it could not now be declared to be non‑evacuee property on account of the bar contained in section 3‑A of Act XII of 1957. The provision of section 3‑A had been introduced by the Pakistan (Administra tion of Evacuee Property) (Amendment) Act (XLV of 1958), which had been repealed by the Pakistan (Administration of Evacuee Property) (Amend ment) Ordinance (XXII of 1959). We must, however, observe that it is not and cannot be the purpose of the exercise before us to review this Court's judgment of 1966. The reference had been made in pursuance of that judgment, wherein it had also been held, as already mentioned earlier, that section 3‑A was not applicable to the present proceeding. Even otherwise, section 3‑A would be no bar to the exercise by the Central Government of the overriding powers under section 55 of Act XII of 1957 whereunder the notification dated 12‑8‑1960 bad been issued. The objections, therefore, have no place and are accordingly overruled.

13. The main points raised on behalf, of the appellants, however, were that the decision of the Custodian of 1955 having become past and closed matter, the same could not be re‑opened by a subsequent judgment of the Court or by a notification of the Government. For this, reliance was placed on Muhammad Yusuf v. Chief Settlement and Rehabilitation Commissioner (1) and I. T. O. v. Cement Agencies Ltd. (2). In the first cited case it had been held that the binding nature of decision of the Supreme Court was prospective and not retrospective and that a decision on a question of law does not render void of its own force all relevant orders of Courts or Tribunals made in the light of earlier interpretations. In the second cited case, relying upon the dictum of the Privy Council in Lemn v. Mitchel (3) and Commissioner of Income‑tax v. Tribune Trust (4), and of the Chancery Division in Eyre v. Wynn Mackenzie (5), that even a legisla tive measure like an Ordinance expressly given retroactive effect could not operate so as to annul a valid and existing judgment as between parties whose rights had been duly determined and according to the law which existed before the new Ordinance was passed, it was ruled that the judgment of the Supreme Court could not have the effect of re‑opening past and closed transaction. it was thus argued that the Central Government's notification dated 12‑8‑1960 could not re‑open the past and closed decision of 1955. It was further argued that the notification of 12‑8‑1960, which bad issued under Act XII of 1957, could, even otherwise, not affect the disputed property which had already become part of the Compensation Pool and thus subject to another law, that is, the Displaced Persons (Compensa tion and Rehabilitation) Act (XXVIII of 1958). These arguments proceed (1) P L D 1968 S C 101 (2) P L D 1969 S C 322 (3)LR 1912AC400 (4)PLD 1947PC247 (5) (1896) 1 Ch. D 135 from an assumption that what is past and closed, is the order of the Custodian of 1955 but the assumption is not tenable as in the view of the Supreme Court it was the transaction of restoration of the property in 1948 which was past and closed and beyond the possibility of being affected by any subsequent decision. Seen in this context, the judgment of the Supreme Court in Bhandari's case as also the notification of 12‑8‑1960, does not re‑open any decided matter but only re‑states and affirms the true nature of the property as obtaining in 1948. If this was not the intention, the notification would not have been clothed with retrospectivity. The property, therefore, upon its restoration in 1948, stood non‑evacuee and that status remained unaffected by the subsequent decision of the'. Custodian rendered in 1955. Mr. Aamir Raza A. Khan was, thus, justified` in submitting that the order of restoration of 1948 and the order of the Custodian of 1955 could not co‑exist and one had to yield place to the other. It is the Custodian's order of 1955, therefore, that must yield.

14. Another argument and rather forcefully put by Major Ishaq Muhammad Khan was that the property having formed part of the Com pensation Pool by virtue of the notification dated 21‑8‑1959 issued under section 3(2) of Act XXVIII of 1958, the right, title and interest of any evacuee in the property with effect from that date stood extinguished and the property vested wholly and absolutely in the Central Government free from all encumbrances. On this basis, it was contended that the Custodian had no longer any authority to deal with the property and as such any reference made to him would be of no purpose. For this, reliance was placed on Devachand Muljimal v. Deputy Settlement and Rehabilitation Commissioner (1) and Haleema Bibi v. Chief Settlement and Rehabilitation Commissioner (2). The view taken in these authorities is that after the issue of notification acquiring the property, the Custodian ceased to have jurisdic tion with regard to the property and only the Settlement authorities had the jurisdiction to deal with it. This contention, too, has no force, for, it is not by the notification issued under section 3(2) of Act XXVIII of 1958 that evacuee status is conferred on a property but the notification is issued to acquire property as is already evacuee. It follows that if the property be not evacuee, its mere inclusion in the notification will not confer on it the status of evacuee property and the notification to that extent would be invalid. In Abdul Hameed v. M. C. Lyallpur (3), where a property bad been approved for sale by the Central Government prior to the issue of the notification under section 3(2), it was held that such property did not form part of the Compensation Pool. The same view was taken in isab Khan v. Muhammad Sher (4), in which it had been held that acquisition of property other than evacuee under section 4 of the Displaced Persons (Land Settlement) Act (XLVII of 1958) and its disposal under that Act would be without lawful authority. A similar view was taken by the Sind High Court in Z. H. Jamal v. Ghulam Haider Shah (5), where it was held that property not being evacuee property on the date of the notification cannot form part of the Compensation Pool. The basic question, therefore, remains whether the' property was evacuee property on 21‑8‑1959 when the notification issued; The answer is obviously no, for, upon the restoration on 7‑9‑1948 all taint of evacuee status had been erased from both person and property, (1)PLD1965SC356 (2)1971SCMR760 (3) P L D 1973 Lah. 339 (4) P L D 1975 Lah. 833 (5) P L D 1975 Kar. 738 as held in Bhandari's case. That being so, the property remained non‑evacuee in spite of the notification under section 3(2) of Act XXVIII of 1958.

15. The upshot of the above discussion is that upon its restoration in favour of the owners, the property stood non‑evacuee, that the restoration represented a transaction past and closed and thereby unaffected by the order of the Custodian of 1955 or by the notification issued under section 3(2) of Act XXVIII of 1958 and that the High Court had the jurisdiction and' justification, in the exercise of its writ jurisdiction. to hold so and, in consequence, to quash the Custodian's orders of 1955. It may be noted that as early as 1961 a Division Bench in Hirabai v. Custodian of Evacuee' Property P L D 1961 Kar. 422, had taken a similar view by relying on Bhandari's case.

16. The only point arising from the 1966 decision, which still remains to be settled, is whether the property had re‑acquired the status of evacuee property. The Custodian did not return a finding. The learned Judges of the High Court, however, expressed that it was nobody's case that the owners ever refused to reside in Pakistan. But it is urged on behalf of the appellants that the observation was not merited for evidence had been led on behalf of the appellants to establish the contrary and that the question being one of fact ought to have been decided first by the Custodian and not in the writ petition by the High Court. On the other hand, it is urged that a reference on this question was not mandatory as the direction was that "the Custodian will be at liberty to consider" the question. We are, however, of the view that since a direction had already been given by the Supreme Court and since the point is in controversy, it requires a decision which in terms of the direction has to be rendered by the Custodian, for which purpose the reference made to him was competent.

17. While, therefore, setting aside part of the judgment of the High Court as relates to the power of the Custodian to review suo mote, we maintain the other part whereby the High Court had held that the orders of the Custodian of 30-I l‑1955 and 6‑12‑1955 were without lawful authority and of no legal effect and that the property was non‑evacuee upon its restora tion on 7‑9‑1948. We now remit the matter to the notified officer with powers of Custodian to decide the question whether the property had since then re‑acquired the status of evacuee property in consequence of any actions or movements of some or all of the owners after that date and to communicate his decision to the High Court to enable it to dispose of the civil revisions. The appeals are disposed of in these terms. There will be no order as to costs. s. A. a. Appeal disposed of accordingly.