P L D 1961 Supreme Court 523 (PLP)

CORNELIUS, C. J.-This appeal by Sugni Chand is brought by special leave to call in question an order of the Evacuee Property Enquiries Tribunal dated the 25th November 1959, which was made in the following circumstances. Sugani Chard -was declared an evacuee by the Deputy Custodian of Sukkur district on the 7th September 1949. That declaration was reversed in appeal by the Custodian, Mr. Akbar Hussain, on the 22nd July 1950. In 1951, Chapter V-A was added to the Pakistan (Administration of Evacuee Property Ordinance XV of 1949. It provided for persons to be declared "intending evacuees", and for the consequences of such declaration. There was nothing in law to prevent a person who had been declared a non-evacuee from being later declared an "intending evacuee". On the 26th May 1952, an Additional Custodian, Mr. Riazuddin Ahmad, held that Sugni Chand was an "intending evacuee". Against this declaration, Sugni Chand filed a revision petition before the Custodian (No. 403 of 1952). While this petition was pending, a Deputy Custodian, Mr. Irshaduddin, held on the 31st May 1954 that Sugni Chand had been guilty of transferring some immovable property belonging to him without the sanction of the Custodian. Under section 23-D which appears in Chapter V-A of Ordinance XV of 1949, the penalty for such behaviour is that the Custodian may "by notification in the official Gazette, declare that any property in Pakistan in which any such person has any right or interest shall be deemed to be evacuee property". Mr. Irshaduddin declared that all Sugni Chand's property in Pakistan was evacuee property, but no notification was issued in consequence. Against this order, two petitions were filed, namely, a revision before the Custodian, which is No. 133 of 1954, and an application under section 18 (1) of Ordinance XV of 1949 before an Assistant Custodian. The Assistant Custodian dismissed this application recording one finding of fact, namely, that the property alleged to have been sold without permission was immovable property, and one finding of law, namely, that he was not competent to vary the order of a Deputy Custodian, and that the proper remedy was by way of appeal to the Custodian. Against this order of the Assistant Custodian an Appeal No. 51/51 of 1956 was filed before the Additional Custodian, who was still Mr. Riazuddin Ahmad. Ordinance XV of 1949 was repealed by Ordinance XVIII of 1956 by which the same provisions were re-enacted in modified form, and the provisions relating to "intending evacuees" were continued in Chapter VI of the new Ordinance. Ordinance XVIII of 1956 was repealed by Ordinance XX of 1956, which re-enacted 'most of the provisions of Ordinance XVIII of 1956 in modified form, but excluded the Chapter relating to "intending evacuees" as well as the definition's affecting intending evacuees, and their property. This was on the 17th November 1956, and on the 15th March 1957, the National Assembly of Pakistan passed the Pakistan (Administration of Evacuee Property) Act, 1957 which repealed Ordinance XX of 1956, while re-enacting most of its provisions in modified form. The provisions relating to "intending evacuees" which had been excluded from Ordinance XX of 1956 were not re-enacted. The two enactments namely, the two Ordinance of 1956 and the Act of 1957 were made indirect continuity, so that there was no gap between any two of them. On the 6th September 1957, Mr. Muhammad Bakhsh Memon, Custodian of Evacuee Property made an order applicable to fourteen proceedings which were pending before him, viz., two appeals and twelve revision's among which was included the Revision Petition No. 403 of 1952 by Sugni Chand, to the following effect, namely: "There being no provision in our present Act relating to the Intending Evacuees all these 12 cases (sic) mentioned in this note abate. No further proceedings are to go on and all notices and orders will stand discharged and vacated. The properties which have been treated as Evacuee Properties will no longer be treated as such. They will be non-evacuee properties." No order was made in respect of Sugni Chand's other Revision Petition No. 133 of 1954, but it appears that on the 3rd December 1957, three months after the making of the above order, this petition was withdrawn as being infructuous. Basing upon the action taken by the Custodian, Mr. Riazuddin Ahmad on the 31st October 1957 made an order dismissing Sugni Chand's Appeal No. 51/51 of 1956. Mr. Riazuddin Ahmad held in positive terms that the appellant was no "longer do intending evacuee". It is thus clear that in the relevant period ending the 31st October 1957, there had been made against Sugni Chand an order that he was an evacuee, another order that he was an "intending evacuee" and a third order that his properties were evacuee property ; and that Within that period each of these orders had been vacated. In these circumstances, the case appears to us to have fallen within the wording of subsection (2) of section 43-A, inserted in 1959 in Act XII of 195.7, which provided that "if in any case in which a Custodian has on or after the first day of January 1953, declared any evacuee or any evacuee property to be a non-evacuee or non-evacuee property, as the case may be, the Central Government may, notwithstanding anything contained in this Act or in any other law for the time being in force refer the case to the Tribunal". This was the Evacuee Property Inquiries Tribunal which the Central Government had constituted under subsection (1) of the same section. The wording of sub section (2) left something to be desired in point of clarity. The object of the reference to the Tribunal could only be that a doubt should be resolved as to whether or not a person was an evacuee or certain property was or was not evacuee property. Subsection (2) however, commences with the statement of fact that a Custodian had made a declaration as to "any evacuee or any evacuee property," that the person is a non-evacuee or the property is non-evacuee property, and, if that were taken literally, there would appear to be no fact of doubt included within the premises. A reasonable interpretation might be that the reference to a Tribunal is justified in any case in which a question of the status of a person or the nature of property for the purposes of the Act has been raised and has ended in, a decision in favour of the person being a non-evacuee, or the property being non-evacuee property, and that condition is clearly satisfied in the present case. The Tribunal found that Mr. Muhammad Bakhsh Memon was wrong in holding by means of a consolidated order that all the fourteen proceedings covered by that order had abated owing to the repeal of the provisions relating to "intending evacuees" in the Act. They considered that the Custodian should have examined each case on its merits and decided as to the effect in each particular case of the provisions of section 6 of the General Clauses Act, 1897 in relation to pending proceedings. The relevant provisions of that section may be briefly stated as follows, i.e. here a Central Act repeals any enactment, then, unless a different intention appears, the repeal shall not affect any obligation or liability accrued or incurred under any enactment so repealed, or prejudice any legal proceeding or remedy in respect of such a liability or obligation, but on the contrary all such legal proceedings and remedies should be continued or enforced as if the repealed Act had not been passed. Relying upon this provision, the Tribunal made an order reversing the orders of the Custodian dated the 9th September 1957, and of Mr. Riazuddin Ahmad dated the 31st October 1957, and declaring that the two proceedings which these authorities had purported to terminate by means of these orders were still pending. They directed, consequentially that the second revision pending before the Custodian on the 9th September 1957, namely, No. 133 of 1954 which had been withdrawn as infructuous after the making of the order of that date, should also be treated as if it was pending. It is against this order that Sugni Chand was granted leave to appeal. It was contended before the Tribunal that the Act of 1957 contained an expression of intention contrary to this provision in section 6 of the General Clauses Act. The Tribunal thought that such an intention should be by expression having the effect of destroying the earlier rights and liabilities, or of making new provisions of a nature incompatible with or contrary to the existing rights and liabilities. Their attention was drawn to subsection (1) of section 3 of the Act of 1957, reproducing a section of the same number in Ordinance XX of 1956 to the effect that no person or property not treated, as evacuee or evacuee property immediately before the 1st day of January 1957, shall be treated as evacuee, or as the case may be evacuee property on or after the said date. In the Act however there was a saving in the second subsection to the effect that it would not prejudice any pending proceeding, and therefore a person or property in respect of whom or which there was pending immediately before the 1st January 1957, a case as to whether he was an evacuee or the property was evacuee property would not be within the protection of the section, i.e., such person could be treated as an evacuee, and the property could be treated as evacuee property after the Ist day of January 1957. In this case, it is quite clear that on the Ist January 1957, there was pending before the Custodian as well as the Additional Custodian, proceedings in which the question was raised by Sugni Chand, in an appeal and revisions against orders to the contrary, that he was not "intending evacuee" and that his property was not evacuee property. An intending evacuee, it should be mentioned, was defined generally as a person "against whom an intention to settle in the territories now comprising India or in any area occupied by India is established from his conduct or from documentary evidence", and the definition further provided that the term should include any person who- (a) has transferred his assets in whole or in part to India, otherwise than for financing a particular transaction or for maintenance of the members of his family ; or (b) has acquired an interest or right in any property which is treated as evacuee property in India ; or (c) has attempted to effect an exchange between his properties in Pakistan and any property situated in India. These are all matters which are subject to proof, and relate to a particular time, that is to say the intention to emigrate to India is to be guaged in relation to conduct either appearing generally or by one of the modes of presumptive proof at a particular time. It is not necessary within the terms of the definition that the intention should be established by being carried into effect, so that though a person who was held to be an "intending evacuee" might urge that by remaining in the country, he had exhibited a contrary intention annulling that found against him, yet the legal consequences of the finding would be based upon a conclusion as to his intention .at a particular time in the past. From, this finding the consequences which follow are contained in Chapter V-A of the Ordinance of 1949, and may be briefly stated as follows, viz., (1) that he could not transfer any immovable property without the previous sanction of the of investigation regarding his property as well as of control over the property, (3) that if there was contravention of the -condition of previous sanction of the Custodian before transfer of immovable property, all the property in Pakistan of such person could be declared evacuee property, and finally (4) that the Custodian could demand from such person in case he had acquired evacuee property in India, the difference between the true value of such property and the price actually paid by him. All these consequences were to follow on finding that at a particular time the person in question had acted in one of the three prescribed modes, or quite generally that at a particular time in the past, he had evinced an intention of emigrating to India. Mr. Mahmud Ali for the appellant invited our attention to the fact that under section 23-D of the Ordinance of 1949, after a finding that an "intending evacuee" had contravened the condition of obtaining previous sanction of the Custodian before transferring any immovable property, his property does not become evacuee property by a mere order of the Custodian to that effect, but it is only upon the publication of a notification in the Official Gazette that in law the property is to be deemed to be evacuee property. He contends that in the present case, the order of the Deputy Custodian of the 31st May 1954, was not followed by any such notification, but in our opinion, the defect, if any, has no substantial effect upon the competency of the proceedings. The necessary conditions for the jurisdiction of the Tribunal, namely, that there should have been a question as to whether or not Sugni Chand was an evacuee and as to whether or not his property was evacuee property, and that the last order before the reference to the Tribunal should be in favour of the person and the property being non-evacuee are clearly satisfied in this case. Mr. Mahmud Ali further argued that in the absence of any provisions in the present Act for implementation of a finding that the property is evacuee property, no useful purpose is served by continuing the proceedings as has been directed by the Tribunal. We have not heard a full argument upon whether or not implementation of any order which may be made declaring Sugni Chand's property to be evacuee property on the basis that on the 26th May 1952, he was an "intending evacuee", is now possible. It is not necessary for us to decide the point in view of the fact that the principal questions still remain to be decided upon which the need for implementation would turn. The wording of the relevant portion of section 6 of the General Clauses Act would appear however not to favour Mr. Mahmud Ali's contention, and therefore prima facie, there would seem to be no good ground to be found in this argument for interfering with the Tribunal's order. Mr. Mahmud Ali argued that by section 6 of Act XII of 1957, which is at present in force, the Custodian is appointed "for the purpose of carrying this Act into effect" and he argued that to declare persons to be "intending evacuees", and to provide for sequestration of their properties is not one of the purposes of the new Act. The argument however fails to take into account that by the effect of section 6 of the General Clauses Act, the section in Act XII of 1957 which repeals the earlier Ordinance XX of 1956, itself has the effect that the proceedings fn question are to be continued and completed in the same t manner as if that law had never been repealed. By implication it is one of the purposes of Act XII of 1957 to give effect to such matters as are saved from the repeal of the earlier Act by the operation of section 6 of the General Clauses Act. Mr. Mahmud Ali also attempted to argue that the expression "Central Act" in section 6 of the General Clauses Act does not expressly include an "Act of Parliament" such as Act XII of 1957. A "Central Act" is defined in the General Clauses Act as an Act of the Central Legislature, and in the late Constitution of 1956, the Central Legislature of Pakistan was described as the National) Assembly or more briefly as Parliament, and "Central Acts" E are therefore in substance equivalent in all relevant respects to "Acts of Parliament." The last argument of a technical nature) presented by Mr. Mahmud Ali was that by virtue of Article 4 (1) of the Laws (Continuance in Force) Order, 1958, only such laws as were in force in Pakistan immediately before the proclamation of the 7th October 1958, were continued in force, and therefore the provisions relating to "intending evacuees" which had ceased to be effective of their own force long before the 7th October 1958, could not be thought to have been continued in force. The answer to that argument is that by virtue of section 6 of the General Clauses Act, the proceedings in respect of Sugni Chand and his property which have been continued in force, carry their own law with them, i.e., that they should be decided under the law relating to intending evacuees as it was at the time when E they were instituted, notwithstanding the repeal of these provisions. Therefore, in relation to these proceedings, the expression "law" occurring in Article 4 of the Laws (Continuance in Force) Order must be understood in a special sense, namely, as having reference to the special law which these proceedings carry with them for their proper determination. In our opinion, the order made by the Tribunal in this case is in accordance with the relevant law, and the appeal therefore falls to be dismissed. Mr. Mahmud Ali requests that it should be noted in our order that the present Custodian, Mr. Justice Khamisani, appeared as counsel in the earlier proceedings in Sugni Chand's cases, and that it will therefore be inadvisable that the case should be heard by him, and we note accordingly. He also raised the question as to the jurisdiction of the Custodian or any Additional or Deputy Custodian to make orders affecting property of an evacuee or an intending evacuee lying outside the jurisdiction of the authority making the order. That is a question which would fall to be decided upon the wording of the relevant statutes and instruments. We prefer not to make any obser vation upon it in this order. The appeal is dismissed, but in the circumstances we make no order as to costs. A. H. Appeal dismissed.