P L D 1966 Supreme Court 781 (PLP)

Respondents Nos. 1, 4 and 6-9: Ex parte. Mahboob Elahi, Advocate Supreme Court instructed by Amir Ahmad, Attorney for Respondent No,

2. Khurshid Hasan Hafiz, Advocate Supreme Court instructed by Naziruddin, Senior Attorney for Respondent No.

3. M. B. Khizar Tamimi, Attorney (absent) for Respondent No.

5. Date of hearing: 2nd June 1966. CORNELIUS C. J.-This appeal by special leave raises a difficult question as to the nature of a certain property, viz. No. 7, Nisbet Road, Lahore, which was owned by a Hindu who emigrated to India at the time of Partition. After the death of this person Santosh Lata his widow and his sons returned to Pakistan and on the 7th September 1948, their properties in Lahore including the property in question were restored to them by order made under the West Pakistan Protection of Evacuee Property Act, 1948. There was an equitable mortgage on this particular property in favour of the New Bank of India on which the Bank sued and obtained a decree for sale dated the 28th February 1952. In execution of this decree the property was sold in an auction on the 17th November 1956, for Rs. 97,000 to the present appellants, who paid 25 percent of the auction price on the spot. The balance was due on the 3rd December 1956. With reference to this very property, the Custodian, Evacuee Property had held on the 30th November 1955, in. a case to which the widow aforesaid and a Begum Muhammad Ismail, who was allottee of a part of the property, were parties, 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." In this case such conditions had been imposed at the date of restoration in 1948. After a further hearing, on the 6th December 1955, the Custodian confirmed his view by saying that the property in the case before him was evacuee property. The orders exhibit little in the way of construction of the relevant statutes. They can fairly be described as resting on an ipse dixit. This decision had been given about a year before the auction sale mentioned above, and before that sale took place on the 27th October 1956, the judgment-debtors put in an application asking for stay of sale on the ground that the Custodian was treating the property as evacuee property. However, the sale took place, but on the 30th November 1956, the auction-purchasers themselves made an oral request for extension of time to deposit the balance of the money, giving the same reason, viz., that the Custodian was treating the property as evacuee property. The Executing Court extended time until the 31st December 1956. Later, on the 25th January 1957, the judgment-debtors withdrew their application and thereupon the Court ordered the auction purchasers to deposit the balance of the purchase price on or before the 30th January 1957. They deposited it on the 27th January 1957. In the meantime on the 4th December 1956, the judgment debtors had filed an application to avoid the Executing Court's order extending time for deposit of the balance of the price and on this application the Executing Court made an order on the 15th March 1957, to the effect that, under law, time could not have been extended and therefore a resale should take place. However, the auction-pur chasers moved a revision against this order before the High Court where a Division Bench set it aside on the 26th November 1958. Proceedings in the execution sale had not been finalized when on the 13th February 1959, the allottees moved applications before the Executing Court to the effect that the house was evacuee property and could not be sold in execution. These allottees are respondents Nos. 1 to 4 in this appeal. This objection was allowed by the Executing Court by order dated the 12th April 1960, by which certain conditions were imposed upon the objectors. They failed to comply and on the 22nd July 1960, the Executing Court proceeded to confirm the sale. Against that order three revisions were filed in the High Court. One was by the allottees challenging the validity of the confirmation order. The other two were by the auction-purchasers. In the first, it was contended that the order of the 12th April 1960, allowing the objection of the allottees was bad in law, and that the Executing Court should have referred the matter to the custodian who had exclusive jurisdiction. The other was against certain consequential directions contained in the Executing Court's order of confirmation of the 22nd July 1960, but here too the plea was put forward that there should have been reference to the Custodian. All three revision petitions were heard together by a learned Single Judge of the High Court. The petition moved by the allottees was accepted, with the consequence that the orders setting aside the sale was restored, and the auction-purchasers were held entitled to refund of their monies in full. The first revision petition filed by the auction-purchasers was dismissed with costs. No order was made on the second of their petitions. Special leave to appeal against this order was granted by this Court to examine further the contention raised that by the effect of the restoration of this property to its original owners the 7th September 1948, the property had ceased to be evacuee property in view of the law laid down by the Supreme Court in the case P. G. Bhandari (PLD1941SCS9 ). The point was also taken that since the earlier order of the Custodian had been passed in the absence of the auction-purchasers as well as of the mortgagor and the mortgagee, a fresh decision by the Custodian was necessary for which purposes a reference should be made. We have heard Mr. Bashir Ahmad in support of the appeal and Mr. Mahboob Elahi has replied on behalf of the allottees. A central feature of this case is that the Supreme Court in the case of P. G. Bhandari aforesaid examined the order of the Custodian of the 30th November 1955, referred to above, and differed from it in a considered judgment in which all the relevant statutes were examined. In that judgment attention was also given to the effect of a Central Government Notification of the 12th August 1960, by which "all property which may have been restored under any law to any evacuee" was exempted from all the provisions of the Administration of Evacuee Property Act, 1957, with effect from the date of the restoration. This exemption has been considered in the judgment under appeal where the following observation in the Supreme Court judgment has been quoted, viz.:- "it (i.e., the exemption) remains as an indication of the view 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." The words used clearly indicate that in the view of the Supreme Court, the exemption was to be effective with retrospective effect. That follows necessarily from mention of the "provisions of the earlier laws," all of which had ceased to have effect before the Act of 1957 came into force. The learned Judge in the High Court has come to the conclusion that whereas the exemption is effective in respect of restoration under the West Pakistan Protection of Evacuee Property Act, 1948, nevertheless, it cannot be regarded as having retrospective effect, on the ground that the notification could only take effect from the date of its latter conclusion cannot be publication. With respect the sustained on the learned Judge's own view, and it is in any case inconsistent with the construction placed upon the notification by the Supreme Court in the judgment aforesaid. 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. The Supreme Court judgment was, however, delivered in 1961, whereas the contrary decision by the Custodian is of the year 1955. The learned Judge in the High Court has held that the Custodian's order of 1955 was operative as a final and conclusive order vis-a-vis the jurisdiction of the Civil Court from the time when it was made. When it was represented before him that the Supreme Court in the judgment aforesaid had, after full consideration of all the relevant statutes, pronounced to the effect that by the fact of restoration of evacuee property to its original owner, the evacuee status previously belonging to that property was obliterated, the learned Judge opined 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, was debarred from reaching a similar conclusion in view of the bar of jurisdiction contained in the Act of 1957. It is urged before us that the auction-purchasers do not seek to obtain from the Civil Courts any decision contrary to a decision given by the Custodian within his exclusive jurisdiction. Ever since 1960, their prayer in the High Court has been that the matter should have been referred to the Custodian for final decision. Since then, a stronger ground has appeared for making such a reference, namely, the considered judgment delivered by the Supreme Court in the case of P. G. Bhandari, which net only interprets the Central Government notification of exemption of the 12th August 1960, but also finds that on a true construction of all the relevant statutes, the result must follow that by the act of restoration of evacuee property to its original owner, the property ceases to remain evacuee property and thus comes within the general jurisdiction of the Civil Courts for all purposes. Consequently, it is urged that the learned Judge in the High Court was in error in attributing finality to the decision of the Custodian given in the year 1955. The question has been retained as a living issue in the execution proceedings ever since the year 1956. For the object of those proceedings, from the point of view of the auction-purchasers clearly was that the property should be treated as non-evacuee property. The Custodian is given power by section 43 of the Act of 1957 to review a predecessor's order, and here the circumstances clearly combine to require that he should be given an opportunity of reviewing the order of 1955, passed in this very case. MR. Mahboob Elahi for the allottee-respondents argued that by the effect of section 3-A of the Act of 1957, there is a bar against property which has been treated as evacuee before the 23rd September 1958 being thereafter treated as non-evacuee. On its being pointed out that the Amending Act of 1958, by which section 3-A was added to the parent Act, was itself ' repealed by an Ordinance of the year 1959, he urged on the strength of section 6-A of the General Clauses Act, 1897 that this repeal would not have the effect of taking section 3-A out of the parent Act. It is not necessary in this judgment to examine this argument in detail. The effect of section 6-A of the General Clauses Act is not absolute, as the wording of the section itself shows. The operation of that section is dependent upon the intention of the repealing Act as construed from its words.) However, even assuming that section 3-A is still a part of the Act of 1957, reference to subsection (2) of this section clearly shows that the bar of jurisdiction does not apply where there is pending at the time when this section became lave an action or a proceeding which is being continued with the object of ensuring that the property in dispute is not treated as evacuee property. It is quite clear that from a date in 1956, the auction-purchasers in this case have been pursuing proceedings in the Civil Courts whose purpose was to have the property in dispute treated as non-evacuee property, although in the year 1955, before ever they became interested in it, had been declared by the Custodian to be evacuee property. Consequently, it seems sufficiently clear that the bar of jurisdiction under section 3-A is not applicable to the continuation of the present proceedings, and there is accordingly still an opportunity to refer the matter to the Custodian to review the order of his predecessor in respect of the property here in dispute. Under section 43 (6) of the Act of 1957, the Custodian has power to do so without limit of time. In our opinion, there are very good reasons that the appropriate action to be taken in this case is that a reference should be made to the Custodian to reconsider the order of 1955 made by his predecessor in respect of the; property in dispute. By the Constitution it is required that all authorities should act in aid of the Supreme Court. It may be repeated here that the view taken in the Custodian's order of 1955 was expressly over-ruled by the Supreme Court in the case of P. G. Bhandari. There is also for consideration by the Custodian the question of the exempting notification by the Central Government of the 12th1 August 1960. Valuable property is involved, and it is entirely); appropriate that the authority having exclusive jurisdiction to decide the point upon which the decision will turn should be asked to reconsider the previous order which is based on a view somewhat summarily reached and which is contrary to the law declared by the Supreme Court on the point after proper construction of the statutes and instruments in force at the time when the Custodian made his order. It is, of course, possible that in the interval the original owners or some of them may have become evacuee again, and that would be a question for the Custodian to decide. We accordingly allow this appeal, and setting aside the order of the learned Single Judge, we direct that the three revisions in question should be restored to the file, and that a reference should 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. The Custodian will be at liberty to consider whether the property re-acquired the status of evacuee property in consequence of any actions or movements of some or all of the evacuee owners after that date. The decision of the Custodian will be communicated to the High Court and will be the basis upon which the Civil Revisions will thereafter be decided. Costs of this appeal will be costs in the cause. A. H. Appeal allowed.