P L D 1957 (W (PLP)

MUHAMMAD BAKHSH, J.

This is a petition for a writ of certiorari etc., challenging the validity of the order passed by Mr. Mansoor Alam, the Custodian of Evacuee Property, on 17th May 1956. The petitioner is an Association which was founded as far back as 1866 and it was a charitable institution which looked after and maintained cows. It was a Hindu concern. It was registered on 25th April 1938, under section 26 of the Companies Act, 1913. This Association has got its own Memorandum and Articles of Association, and is alleged to own properties in the Federal Capital worth about Rupees fifty lacs. After partition, several members of this Association went away to India and therefore the question of the petitioner was taken up by the Custodian Department. On 28th January .1950, the then Additional Custodian, Judicial (Mr. S. A. M. Jafry) declared the petitioner to be an evacuee and the Rehabilitation Authority was asked to take steps for the allotment of this property for the purpose of rehabilitation of refugees. The Rehabilitation Authority allotted it to one Dr. Swallhay. An appeal was taken to the then Custodian (Akbar Hussain), and he stayed further proceedings of the Rehabilitation Department. Subsequently, Mr. Akbar Hussain heard the appeal and passed an order on 18th July 1950, whereby he allowed the application and declared the petitioner to be non-evacuee and its property to be not evacuee property. Thereafter one Ibrahim again made a petition on nth September 1951, that the petitioner be declared to be an evacuee and its property as evacuee property. The grounds of this petition were not new. The learned advocate for the petitioner has taken us through it and we find the important and relevant passages of this petition are a reproduction of the points taken by Mr. Jafry in para. 13 of his order. The matter then was dealt with by a Deputy Custodian, Judicial, (Wajid Ali Shah) who again declared the petitioner as an evacuee and its properties to be evacuee property. This order was passed on 18th August 1953. From that the petitioner went in revision to the Custodian, Evacuee Property (Mansoor Alam) who, by his order dated 17th May 1956, confirmed the order of the Deputy Custodian and dismissed the Revision Application. It is against this order that the petitioner has now come to this Court with this petition for a writ. The order is being challenged on several grounds including the one that the order of Mr. Akbar Hussain passed on 18th July' 1950 was final and that the Deputy Custodian (Wajid Ali Shah) had no jurisdiction to re-open the matter. The impugned order of the Custodian himself therefore is an order without jurisdiction. In order to understand the impugned order and its implications it is necessary to refer to the evacuee law as it stood from time to time. First in point of time comes the Pakistan (Protection of Evacuee Property) Ordinance, 1948, hereinafter called for the sake of brevity as Ordinance XVIII of 1948. According to this an evacuee was defined as meaning a "person who by reason of the disturbances arising out of the setting up of the Dominions of Pakistan and India, has been or is absenting himself from Pakistan and whose property in Pakistan is for the aforesaid reason not personally occupied, supervised or kept by him or whose business or undertaking in Pakistan has for the aforesaid reason ceased whether wholly or partially to be carried on or is being carried on by an unauthorised persons". Then came Ordinance XV of 1949 under which an "evacuee" (with reference to our present case) was defined as a "person who is resident in any place in the territories now comprising India or in any area occupied by India and who for that reason is unable to occupy, supervise or manage in person his property in Pakistan, or whose property in Pakistan has, whether wholly or partially, ceased to be occupied, supervised or managed by any person, or is being Occupied, supervised or managed by an unauthorised person". By Ordinance XV of 1949. Ordinance XVIII was repealed. Then came Act VI of 1951 which made certain amend ments in Ordinance XV of 1949, Under this Act an "evacuee" (with reference to our present case) was defined as a "person who is resident in any place in the territories now comprising India or in any area occupied by India and (i) is unable to occupy, supervise or manage in person his property in Pakistan, or (ii) whose property in Pakistan has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by a person whether duly empowered in this behalf by him or otherwise, whose authority or right so to do on or after the aforesaid date has not been accepted or approved by the Custodian, or (iii) in the case of a Corporation whose business or undertaking in Pakistan on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances, or the fear of such disturbances, has ceased to function wholly or partially, or is being carried on by persons whether duly empowered in this behalf by the Corporation or its management or otherwise, whose authority to do so on or after the first day of March, 1947 has not been accepted or approved by the Custodian". It will be seen from above that before clause (iii) applied to a case it was necessary that the Corporation must reside in any place in India. This mistake in drafting seems to have been checked up subsequently and then came Act XXXI of 1951, which further amended Ordinance XV of 1949. Ordinance XV of 1949 as in force at present moment derives its shape and form from the original Ordinance XV of 1949 as amended by Act VI and XXXI of 1951. Now under this Act XXXI of 1951 the original clause (iii) was omitted and two new clauses to the original section 2 (2) were brought into being. These clauses were separately numbered as clauses (d) and (e) and they read as follows :- "(d) Whose business or undertaking in Pakistan in the case of a Corporation, has on account of the setting up of the Dominions of Pakistan and India or on account of civil disturbances or the fear of such disturbances, ceased to function, wholly or partially, or is being carried on by persons (whether duly empowered in this behalf by the Corporation or its management or otherwise) whose authority to do so on or after the first day of March 1947, has not been accepted or approved by the Custodian ; or (e) being a joint stock company more than fifty per cent. of the shares of which are held by persons who are evacuees". It was further laid down as follows :- "The amendments made by this section shall be deemed always to have been made and shall have effect accordingly". This is the whole survey of the legal position with regard to the definition of the word "evacuee" (with reference to our present case). It will be seen from Act XVIII of 1948 that Mr. Akbar Hussain was perfectly right when he set aside the order of the Deputy Custodian (Jafry). In order to declare the petitioner as an evacuee under Ordinance XVIII of 1948 it was necessary to establish first that the petitioner had been absent or was absenting himself from Pakistan. That was not the case. Majority of the members of the petitioner had of course left but there were others behind who were carrying on the business of the petitioner. It will also be seen from Ordinance XV of 1949 as it stood at the very out-set that the petition filed by Ibrahim on 6th September 1951, had really no basis because under Ordinance XV of 1949 read with Act VI of 1951 the petitioner could not be declared an evacuee unless it was first established that the petitioner was resident in, any place in India, but by the time the Deputy Custodian who enter tained the petition of Ibrahim came to decide that case Act XXXI of 1951 had come into operation. The order of the Deputy Custodian is dated 18th August 1953. We now come to the main question involved in this petition. This question relates to the nature of the retros pective effect of the passage appearing in Act XXXI of 1951 and which passage has been underlined above. The learned advocate for the petitioner argued that Mr. Akbar Hussain's order being final and that being a judgment or a transaction past and closed Act XXXI of 1951 could not operate retrospectively so as to affect the vested rights of the petitioner. On this question we have heard elaborate arguments advanced by both the sides and we have come to the conclusion that the present case is hit by Act XXXI of 1951 and the definition of the word "evacuee" as given therein, will retrospectively cover the case of the petitioner. In this connection a passage appearing in Craies on Statute Law, Fifth Edition, at page 357 reads as follows :- "A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or consideration already past . . . . . It is a fundamental rule of English Law that no statute shall be construed so as to have as retrospective operation, unless its language is such as plainly to require such a consideration . . . . . . . . It is obviously competent for the Legislature, in its wisdom, to make the provisions of an Act of Parliament retro spective. No one denies the competency of the Legislature to pass retrospective statutes if they think fit, and many times they have done so . . . In Gardner v. Lucas, ((1878) 3 App. Cas. 582, 601) Lord O'Hagan said, 'Unless there is some declared intention of the Legislature-clear and unequivocal or-unless there are some circumstances rendering it inevitable that we should take the other view, we are to presume that an Act is prospective, and not retrospective". In the book on "The Interpretation of Indian Statutes" by Jagadish Swarup, at page 383 we have the following observations: "An Act may be called retrospective because it affects, existing contracts as from the date of its coming into operation. An Act may be `described as retrospective because it applies to actual transactions which have been completed, or to rights and remedies which have already accrued ; or it may apply to such matters as procedure and evidence ; and in each of those matters retrospective legislation has a different effect . . . . . . A statute if given retrospective affect when it is construed as taking away or impairing any vested right acquired under existing laws . . . . . The very intent of the rule of interpre tation is to prevent interference with rights of property etc., etc., except in cases where the unmistakable language of the Legislature demands a retrospective construction". In Barwari Gope v. Emperor (A I R 1943 Pat. 18) we have got a Full Bench ruling of that High Court on this point. The following is the relevant portion :- "How far a statute which repeals or alters the old law can be given retrospective operation can be briefly stated as follows : (1) upon the presumption that the Legislature does not intend to enact what is unjust, every statute which takes away or impairs a vested right acquired under existing law or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions or considerations already passed must be presumed to be intended not to have retrospective operation ; (2) if there are words in the enactment which either expressly state or necessarily imply that the statute is to be given retro spective operation, then the Act should have retrospective operation even though the consequences may appear unjust and hard ; (3) a statute is not to be construed to have a greater retrospective operation than its language renders necessary and (4) as no person has a vested right in any course of procedure, alterations in procedure are to be retrospective, unless there is some good reason against it". All these authorities clearly indicate that the words of the Legislature appearing in Act XXXI of 1951 are sol clear and unambiguous that we have no alternative but to t apply them retrospectively to the present petitioner's case. The learned advocate for the petitioner has relied on two English rulings reported in Day v. Kalland ((1896) 1 Ch. D 135) and Eyre v. Wynn-Mackanzei ((1900) 2 Ch. D 745) which relied on the first ruling. We, however, find that in those cases where was no clear stipulation as we find in Act XXXI of 1951. The learned advocate for the petitioner has also referred to Sm. Kusum Kumari Devi v. Custodian of Evacuee Property and others (A I R 1954 Pat. 238) but even there the case was different. There were no express words used to give retrospective affect and therefore their Lordships held that no statutes shall be constru to be of retrospective operation unless the terms of that ed statute expressly state that it is retrospective or such a construction arises out of necessary implication. The rule is based on the presumption that the Legislature does not intend what is unjust or that the transactions which have already created title to property should not be re-opened or thrown into doubt. This case is clearly distinguishable from our present case. We have, therefore, no doubt that this amendment in the definition of "evacuee" brought about by Act XXXI of 1951 must be construed as if it existed in Ordinance XV of 1949, as it originally came in on 15th October 1949. That being the case, no valid objection can be raised against the order of the learned Custodian dismissing the revision application of the petitioner and confirming the order passed by the Deputy Custodian. The learned Custodian came to the conclusion that the business or the undertaking of the petitioner had ceased, at least partially, if not wholly. That is a finding of fact which was based on some statements of the members of the petitioner, which statements seemed to have been given grudgingly and which could not be completed because the deponents avoided to attend. In any case, there is no doubt that the authority of those persons, who are managing the petitioner at the present moment, has not been approved of by the Custodian. We think, therefore, the petitioner has no case and we accordingly dismiss the petition and direct the petitioner to bear the costs of the respondents. A. H. Petition dismissed.