P L D 1962 (W (PLP)

FARUQUI, J.' ‑This writ petition is directed against the order dated 27th August 1959 passed by the Custodian, Evacuee Property West Pakistan and Karachi, whereby he held that he was not competent to review an earlier order of the Custodian because he was of the opinion that the repeal of the amending Act XLV of 1958 by Ordinance XXII of 1959 had the effect of reviving the proviso to section 43 (6) of Act XII of 1957 which had been deleted by Act XLV of 1958.

2. The facts leading up to the impugned order, as stated In the writ petition, may very briefly be stated. The petitioner is in occupation of the premises bearing No. 1734 situated in Ward‑A, Hyderabad. It is the case of the petitioner that the property bearing Surveys Nos. 1734 and 173.5 belonged to one Dayaram son of Kishanchand who migrated to India in 1948 and became an evacuee; that after the migration of Dayaram his father Kishanchand, who continued to live at Hyderabad, got his name mutated as an owner of the said property, but when this came to the notice of the Custodian Department the Assistant Custodian by his order dated 31‑1‑58 held that the said mutation was illegal and consequently the revenue record was amended and the name of Dayaram was brought back on the City Survey Record in respect of both the aforesaid premises. Kishan chand then moved the Deputy Custodian, Hyderabad, who, by his order dated 15‑9‑58, set aside the earlier order dated 27‑8‑58 and declared the two premises to be non‑evacuee and as belonging to Kishanchand. A reference was then made to the Custodian by the Rehabilitation Department and the matter came up before Justice A. M. Jan who, in his order dated 27‑12‑58, expressed Some doubt about t se validity of the order of the Deputy Custodian but he kept the case on his file to see if it was fit one for review. Notices for this purpose were issued to the parties. The matter (hen came up before Masood Ahmad, J. who had in the meantime been appointed Custodian. There were three connected matters before him relating to the same question. These were No. F. 3 (6)/59, No. F. 2 (60)/58 and No. F. 2 (70)/58. The first was in the nature of a suo motu review, the second arose out of a revision application by the present petitioner and the third was a reference by the Rehabilitation Department. All these three matters were in effect disposed of by the order, against which the present writ petition is directed and which was passed in No. F. 3 (6)/59 (suo motu).

3. The question which the learned Custodian framed was whether the order dated 30th January 1950 (sic) passed by the Custodian of Evacuee Property, whereby the property of Kishan chand had been declared to be non‑evacuee, could be set aside and he came to the conclusion that the proviso to subsection (6) of section 43 of Act XII of 1957 was still in operation and that prohibited the review of any order passed before the 17th day of November, 1956 declaring any person to be not evacuee or any property to be not evacuee property.

4. Section 43 of the Act contains provision for appeal, revision and review. We are concerned with the question of review which is contained in subsection (6) to which the proviso referred to above related. This may be conveniently reproduced: "43 (6). The Custodian or Additional Custodian may on application made to him in this behalf within the prescribed period or of his own motion at any time and after giving notice to the parties concerned and the Rehabilitation Authority, review his own order or an order passed by his predecessor‑in- office on any ground whatsoever as the justice of the case may require Provided that no final order passed on or before the seventeenth day of November, 1956, declaring any person to be not evacuee or any property to be not evacuee property shall be reviewed." This proviso was omitted by Act XLV of 1958 Pakistan (Administration of Evacuee Property) Amendment Act of 1958 by its section 4 (a). This amended Act came into force on 23rd September 1958 and it is necessary to refer to some of its provisions. It also introduced section 3‑A after section 3 of Act XII of 1957. This new section reads as follows: "3‑A. (I) Notwithstanding anything contained ire this Act, no person or property treated as evacuee or as evacuee property immediately before the commencement of the Pakistan Administration of Evacuee Property) Amendment Act, 1958 shall be declared to be non‑evacuee or, as the case may be, non‑evacuee property, on or after such commencement. (2) Nothing in subsection (1) shall apply to any evacuee in respect of whom or to any evacuee property in respect of which any action has commenced or any proceedings are pending immediately before such commencement as aforesaid for treating such evacuee as non‑evacuee or such evacuee property as non‑evacuee property." Another amendment was brought in by section 4 of this amending Act which read as follows: "

4. Amendment of section 43, Act XII of 1957.

In section 43 of the said Act, (a) in subsection (6), the proviso shall be omitted ; and (b) in subsection (7), after the words "foregoing provisions of this section", the words "and the other provisions of this Act," shall be inserted." A further amendment was made by section 5 by inserting two new sections, viz., 43‑A and 43‑B after section 43 of Act XII of 1957. Section 43‑A provided for a revision by High Court upon a reference by the Government in any case in which a Custodian had on or after the 1st day of January 1953 declared any person as non‑evacuee or any property to be non‑evacuee property. Section 43‑B laid down that any order passed by Custodian of the nature referred to above shall take effect subject to such order, if any, as the High Court might pass under section 43‑A. I have referred to the main amending sections of Act XLV of 1958, because the other provisions are generally of' a consequential nature arising from the three amendments mentioned above.

5. Then came Ordinance XXII of 1959, Pakistan (Adminis tration of Evacuee Property) (Amendment) Ordinance 1959. This consists only of seven sections and the main amendment that it introduced consisted of the substitution of the old sections 43‑A and 43‑B by two new sections bearing the same numbers. By section 43‑A the jurisdiction to enquire into the matters referred to in old section 43‑A was given to a Tribunal instead of the High Court. The new section 43‑A was on the same lines as the old ones except this that instead of the High Court the `Tribunal' was substituted. All other sections consisted of consequential amendments arising out of the new section 43‑A. By the last section the Act XLV of 1958 was repealed. The question which falls for consideration is as to what was the effect of this repeal.

6. The learned Custodian came to the conclusion that the effect of section 7 (repealing section) of the Ordinance of 1959 was to obliterate altogether the amending Act XLV of 1958 and the amendments made by that Act no longer remained in oper ation. Upon this view he held that the old proviso to subsection (6) of section 43 of the main Act was revived which prohibited the review of an order passed on or before 17th November 1956. And since the first order in this case was passed long before 17‑11‑56 the learned Custodian held that he was not competent to review that order.

7. Section 6‑A of the General Clauses Act Is as follows: "6‑A. Repeal of Act making textual amendment in Actor Regulation.‑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 emended by the express omission, insertion or substitution or any mater, then, unless a different intention appears, the repeal shall nest affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal." The obvious effect of this provision in the present case would be that the repeal of Act XLV of 1958 would not affect the continuance of any amendment which had been made by it in the main Act (Act XII of 1957), unless a different intention appeared The learned Custodian has inferred the contrary intention from two circumstances : Firstly, he observed that if the only object of promulgating the Ordinance of 1959 was to substitute sect on 43‑A and section 43‑B of Act XLV of 1958 by the two new sections 43‑A and 43‑B. it would have been unnecessary to repeal the amending Act of 1958. The following portico of the order of the learned Custodian may be reproduced "The last mentioned two sections were substituted by two other sections, bearing the same numbers by the amending Ordinance 1959, and if that had been the only object of promul gating the Ordinance of 1959, and if the intention was to keep alive the amendments made by the amending Act of the year 1958, it would have been unnecessary to "repeal the amending Act of 1958, by section 7 of the Ordinance."

8. The second reason given by the Custodian is that if it was the intention of the legislature not to obliterate the amend ments brought out by Act XLV of 1958 the result would be that section 3‑A, which was inserted by the Amendment Act of 1958, would stand side by side with sections 22 and 41 of the main Act, and this, according to the learned Custodian, would create an inconsistency. I shall now proceed to deal with both these points.

9. Ordinance XXII of 1959 was a temporary legislation and was to remain in force until the 31st day of December, 1960 and it was expressly provided that thereafter the amendments made by this Ordinance in the Act XII of 1957 shall cease to form part of that Act and shall be deemed to have been repealed. Subsection (2) of section 1 of the Ordinance provided as follows : "(2) It shall come into force at once and shall remain in force until the thirty‑first day of December 1960, whereupon the amendments ordered to be made in the Pakistan (Administration 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." If the repealing section was not there in this Ordinance the result would have been that after the 31st of December 1960 the Tribunal would have ceased to exist and the former section 43‑A and section 43‑B, which gave revisional jurisdiction to the High Court, would have been revived. This clearly was not con templated because the revisional jurisdiction of the High Court was substituted by the jurisdiction given to the Tribunal in respect of the same matters and this, according to the express provision of the Ordinance, was to last up to 31st December 1960. The intention was that all enquiries into the orders passed by the Custodian after the first day of January 1953 were to end by 31st December, 1960. And it was certainly not intended that on the expiry of the Ordinance XXII of 1959 the revisional jurisdiction of the High Court with respect to the same nature of the inquiry be revived. To that extent the different intention clearly appears. That, according to us, was the purpose of the repealing section 7.

10. With regard to the assumed inconsistency between section 3‑A on the one hand and sections 22 and 41 on the other, the first thing to note is that section 3‑A was added by the amend ing Act of 1958. The legislature did not consider it inconsistent with sections 22 and 41 of Act XII of 1957 and which were allowed to stand with section 3‑A. Section 3‑A, it may be noted, was in the nature of a converse rule to section 3 of the main Act. Section 3 provided that no person or property not treated as evacuee or as evacuee property immediately before the 1st day of January, 1957 should be treated as evacuee after the said date. Two exceptions were made, one of which was that it did not apply to such person and property in respect of which any action had commenced or any proceedings were pending immediately before the date mentioned in sub‑clause (1). Section 42‑A enacted a converse provision. It laid down that no person or property treated as evacuee immediately before the coming into force of this amending Act was to be declared non‑evacuee after the commencement of this Act. Subsection (2) made an exception to cases of person and property, in respect of which any action bad commenced or any proceedings were pending before the commencement of this Act. Section 22 provides for claim by interested person for a declaration that a property treated by the Custodian or a Rehabilitation Authority as evacuee property was not so or that his interest in the property had not been affected by the provisions of the Act. An application in this regard had to be made within the prescribed period. Section 41 of the main Act contains a bar to the jurisdiction of Courts for enter taining or adjudicating upon any question whether any person or property is or is not evacuee. Subsection (2) of that section provides that whenever such a question arises In any Court or Authority the question shall be stated and remitted to the Custodian for decision.

11. It appears to us that sections 22 and 41 could stand inspite of section 3‑A which had been introduced by the amending Act of 1958 and they were advisedly maintained. The repeal of these two sections would have left no power in the Custodian to declare a property as evacuee either in the pending cases or cases which came within the exceptions to section 3‑A. Moreover, as far as section 41 is concerned, its main purpose was to oust the jurisdiction of the Courts or any other authority. We, therefore, do not agree with the learned Custodian that one of the objects of the repealing section 7 of Ordinance XXII of 1959 was to obliterate section 3‑A. It may further be noted that the inconsistency, if any, in the provisions referred to above was not a new thing. It was there when the amending Act of 1958 introduc ed section 3‑A into the main Act which already contained sections 22 and

41. We are, however, of the view that there was no inconsistency and it was certainly not intended to remove the inconsistency, if any, by the repeal of amending Act of 1958 by section 7 of the Ordinance.

12. The plain effect of section 6‑A of the General Clauses Act is that the repeal of an amending Act does not affect the continuance of the amendment which, in fact, becomes a part and parcel of the main Act. If such is the intention it would have to be either expressly stated as it was indeed done in the case of subsection (2) of section 1 of the Ordinance of 1959 or there must appear clearly a different intention. In the present case there is no express provision, and we are clearly of the view that a different intention does not appear.

13. The words of section 6‑A of the General Clauses Act are so clear that no case law is required to appreciate its meaning. We may however note a case reported in Shree Gopal Paper Mills Ltd. v. Ram Labhaya Mal and others (A I R 1960 Pb. 375). In that case it was urged that since section 33 of the Industrial Disputes Act was amended by virtue of the Industrial Disputes Act XLVIII of 1950 and that Act was itself repealed by the Industrial Disputes Amendment Act of 1956, the earlier amendment ceased to exist and the law, therefore, stood as it was before the amendment. This contention was repelled and it was held that the repeal of an amending Act does not have the effect of destroying the amend ment.

14. We are, therefore, clearly of the view that the repeal of the amending Act of 1958 did not have the effect of reviving) the proviso to subsection (6) of section

43. It was expressly omitted by the amending Act of 1958 and it could not be resurrected except by an express provision or by necessary intendment. The learned Custodian was clearly in error In hold ing otherwise. He bad the jurisdiction to review the order in so, far as the proviso to subsection (6) had been omitted.

15. For the reasons given above we quash the order of the learned Custodian dated 27th August 1959 with one set of costs. The matter will now go back to the Custodian who will decide the case on merits. K. B. A. Petition accepted.