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Judgment
Mehar Singh, J.
1.This is a petition under Article 226 of the Constitution and the facts out of which it has arisen are these.
The Petitioners are Muslims, and are residents of villages Mohammadpura and Jhal. These villages before the formation of Pepsu state were part of the territory of former Pa-tiala State. In 1947, on account of disturbances the Petitioners left their villages, in the former Patiala State, and took up residence in Maler-kotla town in the former Malerkotla State, It is a fact admitted on all hands that they never left the territory of infdia.
Their lands were taken possession of as ''evacuee property by the Custodian in the former Patiala State u/s 5, Patiala Evacuees (Administration of Property) Ordinance, 2004 Bk. (19 of 2004Bk.). Since then the lands have been in the possession of the Custodian. According to the Petitioners on their application in 1950 they were declared ''non-evacuees'' by the Custodian, but in spite of that the lands were leased out to them.
In 1954 same were leased to some refugees. In consequence of this last lease an attempt is being made to dispossess them of the lands. The Petitioners aver that the order of the Deputy Custodian leasing their property to others is illegal, inoperative and ultra vires. They further say that it is in violation of their fundamental rights to hold their property.
They, therefore, pray for a writ of certiorari to quash the orders of the Deputy Custodian and a writ of mandamus directing the Respondents, of whom Respondent 1 is the Director of Rehabilitation (Custodian) and the second is Sub Divisional Magistrate of Malerkotla (Deputy Custodian), not to interfere with their possession of the lands or to do any act'' or pass any order prejudicial to their rights In the same.
In his affidavit the Custodian affirms that the lands of the Petitioners have been vested in the Custodian since 15-8-1947 according to law, that the Petitioners are not ''evacuees and it has been so found by the officers in his department but that is in their application for restoration of the same, that the Petitioners were lessees of the same lands and a little over Rs. 20,000/- as rent is in arrears against them and they have not paid the same, and that the Petitioners remained in the territory of former Malerkotla State.
In Section 2 of Patiala Ordinance 9 of 2004 Bk. the definitions of ''evacuee'' and ''evacuee property'' are-
(b) ''Evacuee'' means any Muslim displaced from his usual place of habitation in Patiala State;
(c) ''Evacuee property'' means all property whether movable or immovable which belongs to or was occupied by an evacuee and has been abandoned either temporarily or permanently or otherwise left uncared for by him, and includes the interest of an evacuee in any business, Arm or company whether incorporated or not;
The Petitioners admittedly left their habitation in their village in the former Patiala State and took up residence in Malerkotla town in 1947. They were thus under Patiala Ordinance 9 of 2004 Bk. ''evacuees'' and since they had "left their lands uncared for the same was ''evacuee property''. It was in view of this position off the law in the former Patiala State that the. Custodian u/s 5 of the Patiala Ordinance 2004 Bk took possession of the lands of Petitioners as evacuee property.
On the formation of Pepsu ''State in 8, Patiala Ordinance 9 of 2004 Bk. was relied by Section 33, Pepsu Evacuees (Administra-n of Property) Ordinance, 2006 Bk. (13 of )6 BK). In this Ordinance the definitions of acuee and evacuee property'' are given in (d) and (e) of Section 2, which are:
(d) ''evacuee'' means a person ordinarily sident in or owning property or carrying on siness with in the territories comprised in the tiala and East Punjab State Union who on count of civil disturbances, or the fear of ch disturbances, or the partition of the coun-
(i) leaves, or has since the first day of arch 1947, left the said territories to a place it side India, or
(ii) cannot personally occupy or supervise property or carry on his business or watch is interest or enforce his rights in respect tereof;
(e) ''evacuee property'' includes all property which an evacuee has any right or iterest but does not include any mov-ble property in his immediate physical pos-ssion;
It is again clear that'' Petitioners were evacuees under Sub-clause (ii) of Clause (d) of Section 2 of Pepsu ordinance 13 of 2006 Bk. and their lands left the two villages named above were evacuee roperty under Clause (e) of the said section. Accord-ng to Section 4 of pepsu. Ordinance 13 of 2006 Bk. all vacuee property vested in the Custodian and so he lands of the Petitioners remained vested in he Custodian as evacuee property.
The Pepsu Ordinance 13 of 2006 Bk. vas repealed by section 40, Pepsu Administration of Evacuee Property Ordinance, 2006 Bk. (17 of 2006 Bk.). In this. new Ordinance, the definitions of ''evacuee'' and ''evacuee property'' in Clauses. (c) and (d) of Section 2 underwent material changes as compared to the definitions of those terms under the previous Ordinance. Those definitions u/s 2 (c) and (d) of Pepsu Ordi-aance 17 of 2006 Bk. are
(c) ''evacuee'' means any person,
(i) who, on account of the setting up of the Dominions of India and Pakistan or on account of Civil, disturbances or the fear of such disturbances leaves or has, on or after 1-3-1947 left any place in the Union for any place outside the territories now forming part of India, or
(ii) who is resident in any place now forming part of Pakistan and who for that reason is unable to occupy, supervise or manage by person his property in the Union or whose property in the Union has ceased to be occupied, supervised or managed by any person or is being occupied supervised or managed by an unauthorized person, or
(iii) who has, after 1-3-1947, acquired in any manner, whatsoever any right to, interest or benefit from any property which is treated as evacuee property under any law for the time being in force in Pakistan.
(d) ''evacuee property'' means any property in which an evacuee has any right or interest or which is held by him under any deed of trust or other instrument, but does not include
(i) any movable property in his immediate physical possession;
(ii) any property belonging to a joint stock company, the head office of which was situated in any place now forming part of Pakistan before 15-8-1947, and continues to be so situated after the said date;
It is evident on consideration of these definitions and the admitted fact that the Petitioners never left India that according to these definitions they are not evacuees and their lands cannot be said to be evacuee property. The provisions relating to the vesting of evacuee property in the Custodian are to be found in Section 5 of Ordinance 17 of 2006 Bk. and the first two Sub-sections are material for the purposes of this case, which say-
5 (1) Subject to the provisions of this Ordinance, all evacuee property situate in the Union shall vest in the Custodian.
Where immediately before the commencement of this Ordinance an evacuee-property in the Union had vested in any person exercising the powers of a Custodian under any corresponding law in force therein, immediately before such commencement, the evacuee property shall, on the commencement of this Ordinance, be deemed to have vested in the Custodian appointed for the Union under this Ordinance.
In so far as Sub-section (1) of Section 5 is concerned there is no difficulty in reaching the conclusion that it relates to evacuee property as defined in Section 2 (d) of this Ordinance and as pointed out, under that provision the lands of the Petitioners are not evacuee property. In so far as Sub-section (2) of Section 5 is concerned the contention of the learned Counsel for the Respondents is that the words "any evacuee property" in this Sub-section mean such property as defined in Section 2 (e) of Pepsu Ordinance 13 of 2006 Bk. which was repealed by Pepsu Ordinance 17 of 2006 Bk. and not as defined in Section 2 (d) of the latter Ordinance.
There is no justification for holding that those words in Sub-section (2) of Section 5 refer to definition of evacuee property in the repealed Ordinance and it is obvious that the definition of evacuee property having been given in Ordinance 17 of 2006 Bk. that definition will apply to the use of that expression throughout thatOrdinance unless the contrary is stated, which is not the case here.
Therefore the words "any evacuee property" in Sub-section (2) of Section 5 of Pepsu Ordinance 17 of 2006 Bk. are to be interpreted in the light of the definition of evacuee property in Section 2 (d) of that very Ordinance and not in the light of any definition of that term in a previous and repealed Ordinance.
In this view, it is apparent that even Under Sub-section (2) of Section 5 the lands of the Petitioners cannot be said to be evacuee property. In the repealing Section 40 of Pepsu Ordinance 17 of 2006 Bk. the first two Sub-sections are material so far as the present question is concerned and they are
40 (1) The Patiala and East Punjab States Union Evacuees (Administration of Property) Ordinance, 2006 Bk. is hereby repealed.
Notwithstanding such repeal, anything done or any action taken in the exercise of any power conferred by the Ordinance aforesaid shall be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance, and any penalty incurred or proceeding commenced under the repealed Ordinance shall be deemed to be a penalty incurred, or proceeding commenced under this Ordi-nence as if this Ordinance were in force on the day when such thing was done, action taken, penalty incurred or proceeding commenced.
It is urged on behalf of the Respondents that the saving in Sub-section (2) of Section 40 of Pepsu Ordinance 17 of 2006 Bk, means that the lands of the Petitioners continued to be evacuee property in spite of the fact that those lands do not fall within the definition of evacuee property as given in Section 2 (d) of this Ordinance, but Sub-section (2) of Section 40 makes the application of Pepsu Ordinance 17 of 2006 Bk. retrospective from the time when the property of the Petitioners was declared evacuee property and that being so, since u/s 2 (d) of this Ordinance the Petitioners'' lands are not evacuee property, those lands cannot be said to remain evacuee property because of the saving in Sub-section (2) of Section 40.
This view finds support from the observations of Chagla C.J. in '' Abdul Majid Haji Mahomed Vs. P.R. Nayak, at page 447, which observations of the learned Chief Justice relate to a parallel repealing provision in Section 58, Administration of Evacuee Property Act, 1950 (Act 31 of 1950), and which are
The language used in Section 58 is both striking and significant. It does not merely provide that the orders passed under the Ordinance shall be deemed to be orders passed under the Act, but it provides that the orders passed under the Ordinance shall be deemed to be orders under this Act as if this Act were in force on the day on which certain things were done or action was taken. Therefore the object of this section is, as it were, to antedate this Act so as to bring it into force on the day on which a particular order was passed which is being challenged. In other words, the validity of an order is to be judged not with reference to the Ordinance under which it was passed, but with reference to the Act subsequently passed by Parliament. Therefore if the order was a valid order judged by the Act, then its validity must be upheld although it was invalid or illegal or ultra vires, if judged with reference to the Ordinance.
So that in so far as the repealing Section 40 of Pepsu Ordinance 17 of 2006 Bk. is concerned the validity of any order relating to the lands of the Petitioners is to be judged according to the provisions of that Ordinance and not according to the provisions of an earlier Ordinance repealed by that Ordinance. The provisions of Sub-section (2) of Section 40 of the said Ordinance thus do not help the case advanced on behalf of the? Respondents.
The result is that on the date of the enforcement of Pepsu Ordinance 17 of 2006 Bk. - that date being 31-7-1949 - the Petitioners- ceased to be evacuees and their lands were no-longer evacuee property. At the same time the lands- were in the possession of the Custodian as evacuee property under the repealed Ordinance Al though in Section 14 of Pepsu Ordinance 17 of 2006- Bk. provision is made for restoration of evacuee-property to an evacuee, yet there is no provision for restoration of the property of a person, who ceased to be evacuee under that Ordinance and whose property ceased to be evacuee pro perty.
Then Pepsu Ordinance 17 of 200C Bk_was repealed by Section 55, Administration of Evacuee Property Ordinance, 1949 (27 of 1949). This- was a Central Ordinance. It is enough to say-that the Petitioners are not evacuees as that term is defined in this Ordinance and their lands are not evacuee property as defined in it.
The saving provision in Section 55 of this Ordinance is in the same terms as the saving provision in Section 40 of Pepsu Ordinance 17 of 2006 Bk. in so far as the present case is concerned. So that in regard to the Petitioners arid their lands the position under the Central Ordinance-27 of 1949 remains the same as was under Pepsu. Ordinance 17 of 2006 Bk. In Central Ordinance-27 of 1949, there is Section 16 relating to restoration of evacuee property to an evacuee, but there-is no provision for restoration of the property of persons placed as the Petitioners are in this case.
The Central Ordinance 27 of 1949-was repealed by Section 58 of Central Act 31 of''1950 The Petitioners and their lands are not respec tively evacuees and evacuee property as those terms are defined in Section 2 (d) and (f) of that Act. In the Act there is Section 16 under the pro vision of which, according to the case as urged on behalf of the Respondents, a recommendation has already been made by the Custodian, to the Custodian General for a certificate for restoration of the lands of the Petitioners, and: Sub-section (1) alone is material for the purposes of the present case says
16 (1) Subject to such rules as may be-made in this behalf, the Central Government or any person authorised by it in this behalf may; on application made to it or him by an evacuee-or by any person claiming to be the heir of an evacuee and, on being satisfied that it is just or proper so to do, grant to the applicant a.
certificate stating that any evacuee property which has vested in the Custodian and to which the applicant would have been entitled if this: Act were not in force, shall be restored to him. This provision obviously relates to ''an evacuee and ''evacuee property'', but as pointed out the, Petitioners are not evacuees and their lands are not evacuee property under the provisions. of the Act and so Section 16 of the Act can have not application to their case.
The learned Counsel for the respon dents refers to Sub-section (2) of Section 8 of the Act and contends that if the above view of Section 16 is correct, then the movisions of that section are not consistent with Sub-section (2) of Section 8. The Sub-section says
"8 (2) Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby, the property shall, on the commencement of this Act, be deemed to bo evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act and shall continue to so vest;"
On comparison of the provisions of Section 16 and Sub-section (2) of Section 8 of the Act, I do not find any inconsistency in them, for both relate to property that has vested as evacuee property in the Custodian and they obviously do not relate to property that is no longer evacuee property.
It has already been shown that long before Central Ordinance 27 of 1949 and in fact upon the enforcement of Pepsu Ordinance 17 of 2006 Bk., on 31-7-1949, the Petitioners were no longer under the law ''evacuees'' nor were their land evacuee property. So that neither to them nor to their lands the provisions of Section 8 and 16 of the Act can be applied. At the same time as pointed out the lands of the Petitioners have continued to be in possession of the Custodian and the question is how they are to be restored to those lands?
In exercise of its rule making powers Under Section57 of Act 31 of 1950, the Central Government has framed the Administration of Evacuee Property (Central) Rules, 1950, and Rule 37 provides-
When any property taken into possession as an" evacuee property is subsequently declared by the Custodian or any other competent authority to be a non-evacuee property, the Custodian may, on the application of any party entitled to the actual possession thereof, take such action as will place the parties in the same position in which they were on the date of possession. For this purpose, the Custodian may order the person in occupation of the property to vacate the same and the Custodian may use such force or authorise the use of such lorces as may be necessary for the purpose.
Initially the lands of the Petitioners were taken into possession by the Custodian in the former Patiala State as evacuee property and they were under the then prevailing law evacuees. It has been shown that since then the Petitioners are no longer evacuees and it follows that their lands cannot be evacuee" property. The Custodian has found that the Petitioners are not evacuees.
The learned Counsel for the Respondents contends that the Custodian has not given a declaration under Rule 37 that the lands of the Petitioners are not evacuee property, but the finding of the Custodian that the Petitioners are not evacuees comes to saying as much that their lands are not evacuee property. In his affidavit the Custodian has merely stated that the Petitioners are not evacuees but the Petitioners have produced a copy of the report of the Assistant Commissioner Rehabilitation (Deputy Custodian) of Barnala in which he has expressed the opinion that the Petitioners are not evacuees and their lands are not evacuee property.
In the circumstances of the case, it is not a case which falls u/s 16 of the Act but is one that should have been dealt with by the Custodian under Rule 37.
In the view taken above, the petition succeeds to this extent that a direction will issue to the Custodian to proceed under Rule 37 and to give relief to the Petitioners under that Rule. The parties are left to their own costs.