P L D 1964 Supreme Court 616 (PLP)

Respondents 1 to 11, 13, 16, 19 and 21 to 129 : Ex parte. Date of hearing: 29th April 1964. HAMOODUR RAHMAN, J.‑

This appeal, by special leave, is directed against the judgment and order of a Division Bench of the High Court of West Pakistan dismissing a writ petition. The appellant is a joint stock company which was incorpo rated in the year 1904 with its registered office at Amritsar. It carried on extensive banking business at various places within the then Province of Punjab including Lahore and, in the course of its aforesaid business, acquired considerable properties at various places in the said Province. After the Partition of the country and the coming into force of the West Punjab Protection of Evacuee Property Ordinance VII of 1947 the properties of the appellant situated at Lahore and other places in the then Province of West Punjab became evacuee properties under the abovementioned Ordinance and became vested in the Custodian. The Rehabilitation Department also allotted these properties to several displaced persons, who have been made respondents here in, for their social and economic rehabilitation. Under the said Ordinance `evacuee property' meant the property of an evacuee in West Punjab or property which had vested in an evacuee under any trust or other instrument and an evacuee meant "any person who has been or is absenting himself from West Punjab owing to the late disturbances or who is unable personally to occupy, supervise or take possession of his property in West Punjab or, in the case of a corporation, whose business or undertaking has ceased to operate wholly or partially owing to the said disturbances or is being operated by an unauthorised person or an agent or a manager appointed after the 15th of August 1947, whose appointment has not been approved by the Custodian." But after the promulgation of the Pakistan (Administration of Evacuee Property) Ordinance No. XV of 1949 "any property belonging to a joint stock company, the registered office of which was situated before the 15th day of August 1947, in any place in the territories now comprising India and continues to be so situated after the said date" was excluded from the definition of "evacuee property" by section 2 (3) (ii) thereof. As the appellant was a joint stock company, whose registered office was situated before the 15th of August 1947, at Amritsar in India, and is even now at Jullundur in India, its properties, it is said, ceased to be evacuee properties as from the date of the coming into force of the said Ordinance, namely, the 15th of October 1949, although the appellant itself was an evacuee within the definition given in section ‑2 (2) (d) thereof. Since some of the properties of such joint stock companies had already been taken possession of by the Custodian under previous legislations and been allotted to refugees by the Rehabilitation Authorities, it was further provided y subsection (3) of section 6 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949:‑ "6 (3) 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." In view of these provisions the appellant moved the Custodian authorities under section 18 of the said Ordinance for a declaration that its properties were not evacuee properties. Such declarations were granted by the Deputy Custodian, Evacuee Property, Lahore, on the 18th of June 1952, and the 11th of November 1954, subject to confirmation by the Custodian. The Deputy Custodian (General), Evacuee Property, Lahore, con firmed these declarations but at the same time stated that the Custodian will not be dispossessed of the properties till the Central Government had passed orders as contemplated by sub section (3) of section 6 of the Ordinance of 1949. It appears that these provisions of Ordinance XV of 1949 relating to the properties of corporations have been continued un changed in subsequent legislations also. Thus under the Pakistan (Administration of Evacuee Property) Act XII of 1957 the properties of joint stock companies having registered offices at a place situated in India and continuing to be so situated since Partition still remain excluded from the definition of "evacuee property", and subsection (3) of section 7 of the said Act still requires that where such property has already vested in the Custodian under any previous law then in force shall, notwithstanding the above exclusion, continue to remain so vested until the Central Government by notification in the official Gazette directs that the Custodian shall be divested and dispossessed of any such property. The appellant, accordingly, after obtaining the various declarations referred to earlier repeatedly moved the Central Government to pass orders divesting and dispossessing the Custodian of the properties of the appellant, but without any success. In these circumstances when the Displaced Persons (Compensation and Rehabilitation) Act, 1958, came to be promulgated the appellant moved the Settlement Commissioner and the other relevant authorities to exclude the properties from the purview of the Act of 1958, but they refused to do so until orders as contemplated by subsection (3) of section 6 of the Ordinance XV of 1949 and subsection (3) of section 7 of the Act XII of 1957 had been passed by the Central Government. Thereafter, on the 28th of August 1959, a notification was actually issued under section 3 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, purporting to acquire with certain exceptions all immovable properties situated in the Province of West Pakistan and a scheme was framed for the transfer of the said properties to certain categories of persons. Since such a transference of rights would have seriously effected the interests of the appellant in its properties, it moved a writ petition in the High Court on the 16th of September 1959, seeking not only the issuance of a writ of mandamus on the Republic of Pakistan directing it to issue necessary orders under subsection (3) of section 7 of Act XII of 1957 divesting and dispossessing the Custodian of the properties of the appellant but also writs of prohibition against the Governments of Pakistan and West Pakistan restraining them from issuing any notification under section 4 of the Displaced Persons Act of 1958, and writs of prohibition against the Settlement Authorities for prohibiting them from dealing with the properties under the said Act of 1958. Alternatively, writs of Certiorari were also asked for against either the Province of West Pakistan or the Settlement Authorities for quashing their respective orders, if any, made in pursuance of the provisions of the Act of 1958. The cancellation of the notification issued on the 21st of August 1959, by the Provincial Government acquiring all the immovable evacuee properties in the Province was also sought. It was urged in the High Court that the position of the properties of the appellant remained unchanged even under the Act of 1958. Under this Act "evacuee" and "evacuee property" were not defined but section 2 (15) thereof provided that "all other words and expressions used but not defined in this Act and defined in the Pakistan Rehabilitation Act, 1956, or in the Pakistan (Administration of Evacuee Property) Act, 1957 (Act XII of 1957) shall have the meanings respectively assigned to them in those acts." In view of these provisions it is urged that the definition of "evacuee" and "evacuee property" given in the Act of 1957 still holds good and under it a property belonging to a joint stock company whose registered office was before the 15th day of August 1947, situated in the territories now comprised in India and continues to be so situated, was expressly excluded from the definition of "evacuee property". Since the acquisition under section 3 of the Act of 1958 could only have been in respect of evacuee property, the properties of the appellant were not subject to acquisition under the Act of 1958. Neither could those properties be taken into the compen sation or rehabilitation pool or the rent pool. Learned counsel appearing in support of this appeal has also drawn our attention to a notification issued on the 30th of August 1961, alter the filing of the writ petition in the High Court, by the Ministry of Rehabilitation and Works, being No. S. R. O. 805 (K)/61, which purports to exempt a large number of banks including the appellant bank from the operation of the provisions of the Pakistan (Administration of Evacuee Property) Act, 1957. This exemption is purported to be granted under section 55 of the said Act which reads as follows:‑ "

55. Power to exempt.‑The Central Government 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 this Act," Learned counsel has urged that this notification not only takes the appellant out of the ambit of the evacuee property laws but also excludes its properties from the operation of the said laws. In view, however, of the specific provision of subsection (3) of section 7 of the said Act that a property of a joint stock company, if it has already vested in the Custodian by operation of any law prevailing before the coming into force of the said Act of 1957, shall continue to remain so vested until the Central Government makes an order divesting or dispossessing the Custodian of such property, this general exemption cannot prevail. The Act of 1957 not only dealt with evacuee property but also with the status of persons as evacuees. Section 55 contemplates that the exemption that may be granted may be either in respect of any person or class of persons or any property or class of property. The notification of the 30th of August 1961, only exempts banks as juristic persons from the operation of the said Act. It does not say anything about the properties of such exempted persons. It cannot, therefore, be said that this notification also excludes the properties of the appellant from the operation of the provisions of the Act o 1957. 'This notification was, of course, not before the High Court but since it does not, as we have indicated above, materially affect the legal position of the properties of the bank concerned, the question must still be examined without taking the said notification into account. The High Court has taken the view that once the properties of the appellant became evacuee property under the West Punjab Ordinance VII of 1947, the properties must continue to remain evacuee properties if the definition given in the Ordinance XV of 1949 is read together with the provisions of section 6 thereof as also upon the doctrine of a transaction past and closed. Learned counsel appearing for the appellant has, however, challenged the correctness of this view. According to him, the provisions of subsection (3) of section 7 did not control the definition of "evacuee property" given in subsection (3) of section 2 of the Act of 1957. This merely sought to give to the Central Government a further discretion of retaining, if otherwise necessary, a property which had earlier become vested in the Custodian, although it was being excluded by the Act of 1957 from the ambit of evacuee property and declared to be non- evacuee property. The effect of this cannot possibly be that the character of the property already vested in the Custodian will still remain unaltered, although the definition of "evacuee property" given in the Act provided otherwise. If, as the High Court has held the intention of the Legislature in making this provision was that once a property had been treated as evacuee property and vested in the Custodian, it could not change its character, then some of the other provisions of the Act would be rendered nugatory. But this is not the scheme of the Act, for, the Act itself provides that the Custodian or a Rehabilitation Authority may declare a property treated as evacuee property to be non‑evacuee property or may restore the possession of an evacuee property to an evacuee owner who produces a certificate from the Central Government to that effect. Similarly the power of exemption given under section 551 would be rendered nugatory if it was the intention of the/ Legislature that once a property had vested in the Custodian a evacuee property it could not change its character. The object of incorporating a definition clause or section in] a statute is generally to declare that certain words or expressions used in that statute shall mean. The definition thus is, as a rule, of a declaratory character and normally applies to all cases which come within its ambit whatever might have been the position before. No question of retrospective operation arises in such a case, for, it cannot be said that because the object so defined did not fall within the ambit of the definition before its enactment it must continue to remain unaffected by that definition and its character unchanged. If this be so, then we see no reason why the same principle should not apply also in the case where an object previously covered by a definition is excluded from its scope. The evacuee legislation again was a temporary legislation created to meet a situation that had arisen by reason of the dis placement of population as a result of disturbances due, to the Partition of the country. Its provisions have, therefore, to be interpreted in that light. The position was uncertain when the West Punjab Ordinance of 1947 was enacted. It was designed to take steps for the immediate protection of properties left by persons belonging to a particular community. It was not known that as to how many of them, if any, would comeback and claim restoration of their properties. It was, therefore, necessary to give a wider definition to "evacuee property" in order to protect the uncared for properties, but later when the position had become crystallised in 1949 the definition was altered to meet the situation as it finally emerged. It cannot, therefore, be said that the intention, nevertheless, was to lay down an unalterable and unchangeable definition at such an early stage. The doctrine of transaction past and closed had also no application in the facts of this case, for up to 1949 when the definition was changed, no such action had been taken with regard to these properties which could have created any vested interest in such properties in favour of any other person. The mere allotment thereof to displaced persons did not alter their character or give to such persons any vested, rights in them. On the interpretation of the provisions of the Act of 1957, therefore, we are in agreement with the learned counsel that the properties of the appellant could not, after the Ordinance of 1949, have been legitimately brought within the ambit of the definition of "evacuee property" or be dealt with as such under the Act of 1958. It follows, therefore, that 'these properties could no have been acquired under section 3 of the later Act nor could they be taken into the compensation pool nor could the income from those properties be brought into the rent pool for the rehabilitation of refugees. The Custodian authorities, in our view, rightly interpreted the provisions of the Ordinance XV of 1949 and Act XII of 1957.The order of the Custodian declining to restore possession, although declaring the properties to be non‑evacuee properties, was also in consonance with the provisions of subsection (3) of section 7 of the Act of 1957. The order was, therefore, clearly made with jurisdiction and in the proper exercise thereof. The appellant, was, therefore, in our view, entitled to ask for writs against the Settlement Authorities for either prohibiting them from dealing with the properties of the appellant as evacuee properties or for quashing the orders if any, that they may have made on the above basis. So far as the writ of mandamus against the Government of Pakistan is concerned for the issuance of an order under sub section (3) of section 7 divesting and dispossessing the Custodian of the said properties the learned counsel has himself not pressed this relief, for, he appreciates that such an order would be in the discretion of the Government and in the absence of anything to show that the discretion had not been properly exercised or exercised mala fide, it would be difficult for the Courts to direct the issuance of a mandamus to the Government in that behalf. Neither the Settlement Authorities nor the Rehabilitation Authorities have appeared before us to oppose this appeal. But some of the allottees of these properties have appeared and filed objections. They have not been able to advance any cogent argument in support of their contention that these properties should be treated as evacuee properties and brought on to the compensation pool and transferred. Permanent transfer deeds have not been issued to any of the said respondents as yet. Only some provisional transfer orders have been issued after the announcement of the High Court judgment. These clearly cannot be maintained and must be set aside. But so far as the allot ments of the properties are concerned, learned counsel appearing for the appellant does not himself press for the cancellation thereof, for, until the order of the Central Government has been made divesting the Custodian, he is not legally entitled to ask for the cancellation of the allotment. The Rehabilitation authorities had the power to make such allotments even under the Ordinance of 1947. Neither their possession nor the Custodian's possession can, therefore, be disturbed for the present. In the circumstances, this appeal will be allowed and writs of prohibition and certiorari shall issue upon the Settlement Authorities directing them to refrain from taking any steps in respect of the properties of the appellant under the Act of 1958 and quashing the orders, if an made for bringing them on to the compensation pool or transfer ring them to any one. It is also declared that the Notification of Notifications issued under section 3 (2) of the Act of 1958 for acquiring evacuee properties shall have no application to the properties of the appellant and shall not affect them in any way. There will, however, be no order as to costs as there has been no effective contest in this matter. A. H. Appeal allowed.