P L D 1961 (W (PLP)

ANWARUL HAQ, J.‑The petitioner, Mst. Hirabai, a Hindu lady, was resident of Hyderabad, and went away to India in June 1947 to join her husband and three sons who had been living in Bombay ' since prior to the partition of the country. In her absence, her fourth son Lilaram continued to manage her properties in Pakistan. She returned to Hyderabad in September 1948. In the meantime, her agricultural lands, measuring 405 acres had been treated as "abandoned" by the Rehabilitation Authorities, and allotted to refugees. Her husband made a representation to the then Government of Sind, which was pleased to pass an order on the 1 5th of September 1948, (Annexure A on p. 35 of the paper book), allowing the ‑ petitioner to take the produce of some of her lands for Kharif 1948 and also directing the Collector of Hyderabad to restore the lands to her in case she comes back and lives in Pakistan. In pursuance of this order, the petitioner's husband, Dr. Parsram Bulchand, addressed a letter to the Collector of Hyderabad on the 23rd of September 1948, informing him that his wife had come back to live in Pakistan. On the same date, the Collector recorded a note that Mst. Hirabai had come to see him, and immediate action‑ should be taken to comply with Government . order in the case, ad the land restored to her. This order is at annexure B (p. 37 of the paper‑book). It is averred that the lands were actually restored to the petitioner.

2. Sometime after the restoration of her lands, it is alleged, the Rehabilitation Department threatened to allot them to refugees, with the result that the petitioner was forced to make an applica tion on the 27th of July 1949 to the Deputy Custodian of Evacuee Property at Hyderabad under sections 11 and 1 3 of Pakistan (Protection of Evacuee Property) Act of 1949, praying for a declaration that she and her property were not evacuee. The Deputy Custodian passed an order on 6‑2‑1950, (Annexure D on pp. 51‑57), holding that the applicant was an evacuee, and all her properties were evacuee properties, and thereby dismissing her application. The learned Deputy Custodian based his decision on the grounds that the petitioner had left Pakistan due to dis turbances, that she remained in India continuously for 15 months, that she had no intention of returning to Pakistan, and did so only on learning of the allotment of her agricultural lands to the refugees, that on her return she entered into an agreement with one Seth Hussaini for the sale of her agricultural lands and the Seth's heirs had obtained an ex parte decree for specific perform ance, and finally that an evacuee could not turn herself into a non‑evacuee merely by a temporary return to Pakistan for reasons of expediency, such as disposal of the property.

3. The petitioner went up in appeal to the Custodian of Evacuee ‑ Property, who was then Mr. Akbar Hussain. By an order dated the 5th May 1950 (Annexure E on page 59), Mr. Akbar Hussain referred the matter to the Central Government under section 3 of Ordinance XV of 1949, for a decision as to whether the petitioner and her properties were evacuee or not. He expressed the opinion that the petitioner became an evacuee when she left Pakistan in June 1947, but the undertaking given by the Sind Government, and the restoration of her property on her return, made the position somewhat difficult, and necessitated a reference to the Central Government. The Central Government sent a reply on the 30th of May 1950 (vide Annexure A‑1 on p. 93) inviting the Custodian's attention to a letter from the Rehabilitation Commissioner, Sind, dated the 3rd of May 1950 and section 44 of Ordinance XV of 1949 and requesting that such action as the Custodian may consider necessary, may be taken in the matter. It was added that if Hirabai had since ceased to be an evacuee, her case would seem to fall under section 19 of the Ordinance. On receipt of this reply from the Central Govern ment, Mr. Akbar Hussain proceeded to decide the appeal by his order, dated 24th June 1950 (Annexure F on page 61). It is a brief order, and the operative part may be reproduced here with advantage "It seems to me, having regard to the orders made by the Collector in compliance with the orders of the Sind Government that Mrs. Hirabai has ceased to be an evacuee under section 5 of Ordinance XV III of 1948. Her son has been managing the lands and it is proved that he has paid the land assessment throughout the period from September 1947 to February 1950. In this circumstance the question of an application under section 19 of Ordinance XV does not arise. I allow the appeal and hold Mrs. Hirabai Parsram to be not an evacuee, and her property not evacuee property."

4. Three years later, that is, on the 24th of June 1953, Manzoor Ahmad, respondent No. 3, who had rented out a house of the petitioner, filed an application for review of Mr. Akbar Hussain's order, whereupon a notice was issued to the parties on 17‑7‑1953, but for some reason or the other, which is not readily apparent on the present record, final orders were not passed until the 18th of November 1958. In this order (which is at pp. 19‑33) the late Mr. Justice A. M. Jan, the then Custodian of Evacuee Property, observed that the letter of the Government of Sind dated the 15th of September 1948 did not declare Mst. Hirabai's property' to be non‑evacuee, nor in fact did Government have any power to do so according to law, as under the Sind Economic Rehabilitation Ordinance I of 1948 which was the law applicable on 15‑9‑1948, there was no provision for restoration of any land or building which had been abandoned. He went on to say "It was further clear that the restoration of evacuee property to an evacuee did not alter the status of the evacuee owner or the nature of evacuee property. This was considered to 'be a difficult point which had led Mr. Akbar Hussain to refer the matter to the Central Government, but he ignored the decision given by them which, according to law, was final and, without taking any evidence as to whether Hirabai had actually come and settled down here as a bona fide citizen of Pakistan and without imposing any conditions such as restriction on power to sell, held that she was a non‑evacuee and her property was not evacuee property." Mr. Jan then referred to; and followed, the decisions he had himself earlier given in two cases, viz., P. G. Bhandari v. Rehabilitation Authority (P L D 1958 Cust.) and Begum Muhammad Ismail v. Mst. Santosh Lata (P L D 1957 Cust. 10) wherein he had held that even after restora tion of evacuee property, the owner remains evacuee, and the property remains evacuee property: On this view of the matter he set aside the order of Mr. Akbar Hussain dated 24‑6‑1950, and restored the order of the Deputy Custodian, Hyderabad, dated 7‑2‑1950.

5. At the request of the learned counsel for the parties, the hearing of this petition was adjourned so as to wait the decision of their Lordships of the Supreme Court in Bhandari's appeal against the order of the learned Custodian. The appeal was accepted by their Lordships, and their decision is P. G. Bhandari v. Rehabilitation Authority Lahore (P L D 1961 S C (Pak.) 89) Mr. Dingomal Ramchandani, the learned counsel appearing for the petitioner, contends that as their Lordships of the Supreme Court have reversed the view taken by the late Mr. Justice Jan, in P. G. Bhandari's case, the very basis of the learned Custodian's order, passed in view in this case, has disappeared, with the result that the same must be set aside. The learned counsel appearing for the respondents, however, contends that the decision in P. G. Bhandhari's case, is distinguishable on the gr3unds that in that case the law applicable was West Punjab (Protection of Property) Act (VII of 1948) which was in terms radically different from the Sind Ordinance I of 1948 which calls for consideration in this case, and that the facts of the two cases are also completely different. Another point made is that the order of the Deputy Custodian was correct, and that of Mr. Akbar Hussain was not, and, therefore, even if the order in review be found to be defective in any manner, it should not be made to give way to an erroneous order:

6. It will be seen that in the present petition we are primarily concerned with the merits of the order in review passed by the late Mr. Justice A. M. Jan on the 18th of November 1958. and the correctness or otherwise of the earlier orders would come in for examination only collaterally, A close analysis of this order would show that Mr. .Ian thought fit to review Mr. Akbar Hussain's order on the following grounds :‑ (a) The letter of the Government of Sind dated the 15th of September 1948 did not declare Mst. Hirabai's property to be non‑evacuee, nor in fact did Government have any power to do so according to law under the Sind Economic Rehabilitation Ordinance I of 1948. (b) That the restoration of evacuee property to an evacuee did not alter the status of the evacuee owner, or the nature of evacuee property. (c) Mr. Akbar Hussain having referred the matter to the Central Government under section 3 of Ordinance XV of 1949, was bound by the orders passed by the Central Government which were final under the law, but Mr. Akbar Hussain ignored the decision given by the Central Government and held that the petitioner was a non‑evacuee, and her property not evacuee without taking any evidence, and without imposing any con ditions on her. (d) No order could have been passed declaring the petitioner non‑evacuee in the absence, of a certificate from the Central Government, as required under section 19 of Ordinance XV of 1949.

7. It is an admitted position that the petitioner did leave Pakistan in June 1947 and returned only in September 1948, when her lands were treated as abandoned property within the meaning of Sind Ordinance I of 1948, which had been promulgated on the 17th of March 1948. This Ordinance did not use the word "evacuee" or "evacuee property," but in view of the defini tion of these terms in the Central Ordinances XVIII of 1948 and XV of 1949, there is no doubt that at one stage the petitioner could be described as an evacuee, and this is the description applied to her by Mr. Akbar Hussain, in his orders dated 5‑5‑1950 and 24‑6‑1950 respectively. What then was the effect of the order of the Central. Government passed on the 15th of September 1948 and implemented on the 23rd of September 1948, restoring the agriculture all ands to her ?

8. The Sind Ordinance I of 1948 is a very short legisla tion, and was promulgated with a view to taking "immediate action to continue to restore and maintain the economic life of the Province, and to ensure the orderly settlement of persons who have taken refuge in the Province." In clause (a) of section 2, the word `abandoned' was defined with reference to land or building as meaning any `such land or building as has been left unoccupied owing to the migration from the Province of the owner, tenant or occupier, as the case may be.' Under section 3 the Provincial Government was authorised to appoint, by notifica tion in the official Gazette, a Rehabilitation Officer for the Province, and such number of Deputy and Assistant Rehabilitation Officers for any local area, as the case may be, specified in the notification. In section 4 of the Ordinance; were outlined the powers and duties of the Rehabilitation Officer in the follow ing terms:‑ "Subject to the provisions of this Ordinance, the powers and duties of the Rehabilitation Officer shall extend to the following matters; (a) to repair the dislocation in the economic life of the Province caused by the abandonment of certain lands and buildings and the closing down of certain businesses and undertakings on account of the owner, or as the case may be, the tenants, employees or workmen having migrated from the Province; (b) to secure the orderly absorption of refugees into the economic structure of the Province." In section 5 of the Ordinance it was provided that‑ the Rehabilitation Officer may make such general or special order not inconsistent with the Ordinance or any other law for the time being, as may be necessary, for the discharge of his functions. In particular, and without prejudice to the generality of this power, it was provided inter alia, that the Rehabilitation Officer may assume possession of any abandoned land, building, business or undertaking, and in respect of land he may grant a temporary lease to any refugee or other person or any abandoned land or building, including godowns, of which he has assumed possession for a term‑ not exceeding one year at a time. Sections 6, 7, 8 and‑ 9 of the Ordinance deal more exhaustively with the re‑starting or management of business undertaking, and provide that as soon as the Rehabilitation Officer assumes control of a business undertaking, it shall vest in the Provincial Government. Provision was also made for the restoration the owner of a business undertaking whose management had been taken over by the Rehabilitation Officer. But nothing was said about the vesting of the abandoned lands or buildings in the Provincial Government or their restoration to the owner.

9. The argument on behalf of the respondents in this case, as also that employed by the late Mr. Justice Jan in his order of review, is built upon the fact that this Ordinance is silent with regard to the restoration of the abandoned lands. It seems to be the contention that the Legislature deliberately omitted to make any provision for the restoration of abandoned lands, whose control was once assumed by the Rehabilitation Officer on the migration of their owner or tenants etc. It was emphasised that this intention is clearly, deducible from the fact that definite pro visions were included in the Ordinance regarding the restoration of business undertakings, but not so with regard to abandoned lands or buildings.

10. It seems to us that the contention is wholly unfounded, and goes against the very concept underlying this Ordinance. Ws have already mentioned that one, of the duties imposed by the Ordinance on the Rehabilitation Officer was to repair the disloca tion in the economic life of the Province caused .by the abandonment of certain lands and buildings on account of the migration of the owner or the tenants as the case may be, and section 5 of the Ordinance conferred a general power on the Rehabilitation Officer to make the necessary orders for the discharge of his functions. Now, it is clear that one way of repairing the dis location in the economic life of the Province, caused by the abandonment of agricultural lands, was for the Rehabilitation Officer to assume possession of such lands, and arrange for their temporary leases for a term not exceeding one year at a time, aw provided by the Ordinance; bat another, and perhaps more, effective, way of achieving the same and, would be to restore such lands to the rightful owner, if he returned to the Province, anti satisfied the Rehabilitation Officer that he was willing., to bring the lands once again under cultivation. Such an order of restoration could not, by any process of reasoning, be deemed to be outside, the purview of the Ordinance. In this conclusion, we are fortified by the following observations of their Lordships of the Supreme Court in P. G. Bhandari's case, which were no doubt made with reference to the relevant legislation of the former Province or West Punjab, but are nevertheless, directly relevant here. While dealing with an argument advanced by Mr. Suhrawardy, appearing for the Rehabilitation Officer in that case, their Lordships observed eon p. 101 of the report):‑ "It does not take account of the purposes and the beliefs underlying these earlier enactments, which seem clearly to be that properties abandoned by subject should be looked after by the Government believing that they would return. The intention was not to impose any disabilities upon persons in relation to the properties which they owned in West Punjab, merely by reason of their having been absent, or being absent from West Punjab on account of the disturbances, there would not be the slightest ground for imposing any disability whatsoever on such person, in respect of his ownership rights, and the Government's interference with these rights would be confined essentially to the duty of looking after his property which he himself was unable to perform, by reason of the Government's own failure to perform its duty of maintaining law and order."

11. There is no doubt that section 17 of the West Punjab Act VII of 1948 contained a specific provision for the restoration of the properties to, persons who had taken refuge outside West Pakistan on account of the disturbances, but later returned to the Province, while the Sind Ordinance I of 1941 did not contain any such specific provision with regard to agricultural lands, but for the reasons given above, we are of the view that the res toration of abandoned agricultural lands was not contrary to the legislative intent underlying the Sind Ordinance I of 1944, and for that reason the order of restoration passed by the Govern ment of Sind in September 1948 in favour of the petitioner, most be regarded as a lawful order, having the essential effect of chang ing the status of the petitioner and of her properties from evacuee to non‑evacuee, irrespective of the fact that these terms were not specifically defined or included in the Ordinance in question.

12. Since her return in September 1948, the petitioner has remain ed in Pakistan, and she was forced to take her case to the Deputy Custodian because of the threat of the Rehabilitation Authorities to allot her land to the refugees in spite of their earlier restoration to her under the orders of the Sind Government. The learned Deputy Custodian took note of the fact that since her return, the petitioner had tried to dispose of her authorities. That may be so, but it must be noted that when the properties were restored to the petitioner in September 1948, no conditions were imposed‑ on her regarding her power to dispose of the lands. That being so, the fact that at a subsequent date she entered into an agreement for the sale of her lands, cannot be used to nullify the effect of the Sind Government order in her favour.

13. The second ground pressed into service by the late Mr. Justice Jan for reviewing the order of his predecessor, was that the restoration of the evacuee property to an evacuee did not alter the status of the evacuee owner, or the nature of evacuee property. This was the argument which Mr. Jan had employed earlier in Bhandari's case as well as in the case of Begum Muhammad Ismail v. Mst. Santosh Lata. This argument was examined by their Lordships of the Supreme Court in Bhandari's appeal, and the: learned Chief Justice, who wrote the leading judg ment, observed as follows "It is not necessary for us to consider in this decision whether the proposition that even after restoration, evacuee property continues to be evacuee .property can be rightly advanced in relation, to section 19 of the Central Ordinance XV of 1949. But we are clearly of the opinion that the extension of the ‑ proposition to the West Punjab Act VII of 1948 is not possible, at 1‑east not by the method of analogy by mere reference. We have been at pains to show how marked a difference there is between the conditions which‑ the earlier statutes were designed to meet, and the purposes which they were expressed to secure, on the one hand, and those which underly the stringent provisions introduced for the first time in Central Ordinance XV of 1949. We are further in agreement with the argument of Mr. Mahmud Ali' that the Custodian's power of imposing conditions upon an owner to. whom property was restored, was a statutory power having no connection which the retention by the property of any particular character. In other words, the power' to attach such. conditions arose after the pro perty had ceased to be evacuee property, and to argue that the power was there because the property was and continued to be evacuee property is to argue in a circle, and to ignore the fact that the provisions of section 17, West Punjab Act VII of 1948, clearly provided for three actions by the Custodian in a sequence vir., (1) a decision that he need not retain the property for any of the prescribed objects, (2) restoration of the property to the entitled owner, and (3) imposition of conditions upon him in relation to such restoration."

14. We have already pointed out that although the Sind Ordinance I of 1948, did not have any direct provision for the restoration of abandoned lands and buildings to the returning owners, it was clearly designed to meet a particular situation, namely, the preservation and proper utilization of these lands and buildings with a view to restoring the economic.life of the county, and the intention was not to deprive the legitimate owner of his property, even if he returned to resume residence in the Province of Sind. It is clear, therefore, that the intention behind the Sind Ordinance was the same as that underlying the West Punjab Act' VII of 1948, with which their Lordships of .the Supreme Court were dealing in Bhandari's case. That being so, it is obvious that the proposition `'once an evacuee., always an evacuee," cannot hold good even in the present case, and the dictum of their Lordships given in Bhandari's case would apply with equal force.

15. In this connection, their Lordships op the Supreme Court also referred to a notification issued by the Central Government on the 1st of August 1960, under section 55 of the Pakistan (Administration of Evacuee Property) Act, 1957 to the following effect: "The Central Government is pleased to exempt all evacuee property which may have been restored under any law to any evacuee from all the provisions of the Act with effect from the date of the restoration." The learned Chief Justice observed that this Notification gives an indication of the view of the Central Government that by an act of restoration of evacuee property to an‑evacuee, under the pro visions of the earlier laws, all taint of evacuee status was erased from both person and property. It seems to us that for this reason .as well, the proposition enunciated by Mr. Jan that the restoration of evacuee property to an evacuee did not alter the status of the evacuee owner or the nature of evacuee property, cannot be sustained.

16. We now take up consideration of the last two grounds which prevailed with Mr. Jan, namely, that in view of the final order passed by the Central Government under section 3 of Ordinance XV of 1949, Mr. Akbar Hussain could not proceed to declare the petitioner non‑evacuee, and, in any case, he could not do so in the absence of a certificate from the Central Govern ment under section 19 of the Ordinance. Under section 3 of the Ordinance, the decision of the Central Government is to be final on the question whether a person is 'an evacuee or not, when such a question is referred to it by the Custodian. In the present case, the Central Government did not take the trouble of passing any definite order on the reference made to it by Mr. Akbar Hussain. ' Instead of declaring positively whether or not the petitioner was an evacuee the Central Government expressed itself in rather vague terms by inviting the Custodian's attention to a letter from the Rehabilitation Commissioner, and requesting him to take such action as the custodian considered necessary in the matter: There is no doubt that the Custodian's attention was drawn to sections 19 and 44 of the Ordinance of 1949, but the decision of the question was left to the Custodian. In the absence of definite orders by the Central Government in E terms of section 3 of Ordinance XV of 1949, it was clearly unto the Custodian to decide the matter as he considered best. The action of the Custodian in deciding the question of the status of the petitioner cannot be termed as one ignoring the orders of the Central Government, for the simple reason that the Central Government had failed to pass any definite orders on the subject.

17. There is no doubt that the letter of the Central Government dated the 30th May, 1950, drew the attention of Mr. Akbar Hussain to section 19 of Ordinance XV of 1949, but there was no directive that Mr. Akbar Hussain must insist on the production of a certificate from the Central Government as prescribed by this section. It was, therefore, within Mr. Akbar Hussain's, jurisdiction to determine in the first instance whether section 19 applied to the case or not. This section contemplates that when an evacuee applies to the Custodian for restoration of evacuee property, the application should be accompanied by a certificate from the Central Government or from any person authorised by it in this behalf to the effect that the evacuee property may be restored if the evacuee is otherwise entitled thereto. It will : e seen that the requirement of producing such a certificate would apply to the case of an evacuee or any person claiming through him. In Mr. Akbar Hussain's view, the petitioner had already ceased to be an evacuee and, therefore, the question of an application under section 19 of Ordinance XV of 1949, did not arise. It is true that Mr. Akbar Hussain's wrongly cited section 5 of Ordinance XVIII of 1948 in connection with his observation that the petitioner had ceased to be an evacuee, as on the date the petitioners lands were restored to her, it was not Ordinance XVIII of 1948 which was in force, but Sind Ordinance I of 1948. It is, however, clear to us that the wrong citation of law which applied to the petitioner's case at the relevant time does not affect the merits of the con clusions reached by Mr. Akbar Hussain, namely, that the petitioner had ceased to be an evacuee by reason of the Sind Government order passed in 1

948. In other words, this was not a case where an evacuee was for the first time applying for restoration of her property under Ordinance, XV of 1949, and, therefore, the pro visions of section 19 of the Ordinance had no application. This conclusion flows directly from the fact that the petitioner had already ceased to be an evacuee by virtue of the Sind Government order in her favour.

18. For the reasons given above, we have come to the con clusion that none of the grounds on which Mr. Justice Jan based his order of review, can be sustained in law. On the contrary, the conclusion reached by Mr. Akbar Hussain to the effect that the petitioner and her property had ceased to be evacuee by virtue of the restoration order of the restoration order passed in her favour by the former Government of Sind on the 15th of September 1948, was correct and justified. . We would therefore, accept this petition and issue a writ of certiorari quashing the order passed by Mr. Justice Jan as Custodian of Evacuee Property on the 19th of November 1958. The result is that the order passed by the former Custodian, Mr. Akhtar Hussain, on the 24th of June 1940, stands restored. In view of the legal questions involved, we would leave the parties to bear their own cost. K. B. A. Petition accepted.