1. B. Z. KAIKAUS, J.-Nazarali the appellant in this appeal by special leave is an Indian national and a permanent resident of Bombay. On the 7th of October 1948, having come to Pakistan, he purchased the property which is in dispute in this appeal, that is, a . Plot of land with buildings thereon bearing Survey Nos. 53 and 54, Street No. S. R.
8. Kutchery Road, Karachi, for a sum of Rs.83,000, from evacuee, by means of a regis--tered sale deed. He applied for a confirmation of this sale to the Additional Deputy Custodian and the sale was in fact confirmed on the 12th August 1950. He had entered into possession of the property when he purchased it and he continued to be in possession of it through his attorneys. On the 28th April 1960, A. D. Najmi, respondent No. 5, who was one of the tenants in this building applied to the Custodian for a declaration that the property was evacuee property. A copy of this application was sent by the Custodian to a Deputy Settlement Commissioner for "necessary action" because in the meantime on account of a notification by the Central Government under section 3 of the Displaced Persons (Compensation and Rehabilitation)
2. Act, all evacuee property had vested in the Government and was being dealt with by the Settlement authorities. The Custodian said, in the order forwarding a copy of the application that the Deputy Settlement Commissioner should treat the property as evacuee if he comes to the conclusion that it is owned by a resident of India and is being managed by a person whose authority to manage has not been approved by the Custodian. The Deputy Settle--ment Commissioner found the property to be evacuee property. The reason for its being so found was that the property belonged to a resident of India and was being managed by an agent whose authority to manage had not been approved by the Custodian. It may be stated here that the definition of "evacuee property" comprises a number of categories and one of the categories is property belonging to a resident of India which is being managed by a person whose authority to manage has not been approved by the Custodian. On the 25th July 1960, the appellant applied to the Custodian for approval of the power of attorney which he had granted to the person who was managing the property on his behalf. This application was rejected by the Custodian on 24th August 1960, on the simple ground that the property having in the meantime been acquired by the Central Government he had no jurisdiction to give his approval. The Custodian suggest--ed however in the order that the Government may amend the notification relating to acquisition of property so as to exclude cases like the one with which he was dealing. The appellant filed a review petition before the successor of the Custodian which was dismissed on the 9 August 1961 as time barred having been filed more than twelve months after the date of the order which was sought to be reviewed. The appellant then filed a writ petition in the High Court with a prayer that the order of the Deputy Settlement Commissioner and the Custodian, be quashed. The Writ Petition was dismissed by the High Court on the 28th February 1953. Leave to appeal had been granted in this case because some questions of law were raised to which reference will presently be made.
3. Learned counsel for the appellant has raised the following three points:
(i) the property in dispute not having been treated as eva--cuee property before the 10th January 1957, it could not, in accordance with section 3 of the Pakistan Administration of Evacuee Property Act, 1957, be treated as evacuee property after that date;
(ii) though property vested in the Government on account of the notification under section 3 of the Displaced Persons (Com--pensation and Rehabilitation) Act, the Custodian retained jurisdiction to deal with what was evacuee property before the notification; and
(iii) notifications issued from time to time under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act excluded the present property and therefore this property had not been acquired at all under the Displaced Persons (Compensation and Rehabilitation) Act.
4. For an appreciation of the first point it will be proper to reproduce section 3 of the Pakistan Administration of Evacuee Property Act. It runs: "3. Property not to be treated as Evacuee Property on or after 1st January 1957.-(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date.
(2) Nothing in subsection (1) shall apply-
(a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or
(b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February 1947, has not been accepted or approv--ed by the Custodian."
5. It will be observed that clause (b) of subsection (2) excludes from the operation of subsection (1) property which is being managed by an agent, whose authority so to do has not been approved by the Custodian. This exception prima facie covers the present case. Learned counsel for the appellant contends that clause (b) will apply only to a case where the agent was managing the property on the 28th February 1947. We are un--able to read any such limitation in the words of this clause. To attract the application of this clause only one circumstance is needed, that is, the authority to manage after 28th February 1947, should not have been approved by the Custodian.
6. The case before us is one where such authority has not been approved. .; reference to the definition of "evacuee property" will show that the intention of clause (b) was to exclude from the effect of sub--section (1) a particular category of evacuee property. As already observed the definition ofth "evacuee property" includes a number of categories having regard to different sets of circumstances that make property evacuee. One of these categories is the property of a person residing in India which is managed by an agent not approved by the Custodian. If no accept the conten--tion of learned counsel for the appellant clause (b) of section 3 as well as this part of the definition of evacuee property will apply only to a case where the property was already being managed by an agent before the 1st of March 1947. It would be a rare case where the property was being managed even before the 1st day of March 1947, by an agent, and there appears no reason for confining this part of the definition of evacuee property to a case where the management by an agent commenced before 1-3-1947.
7. With respect to point (ii) learned counsel for the appellant is unable to point out any provision in the Displaced Persons (Compensation and Rehabilitation) Act which would continue the jurisdiction which the Custodian had in respect of evacuee property even after the notification under section 3. The effect of section 3 is that on the publication of a notification under that section interests of all evacuees terminate and the property vests in the Government free from all encumbrances. The authority of a the Custodian is confined to evacuee property, and it cannot be urged in view of section 3 that the property retained its character of being evacuee even after the notification.
8. On the third point too the contention of learned counsel for the appellant fails. The first notification by the Government under section 3 of the Displaced Persons (Compensation and Reha--bilitation)
9. Act is of 8th August 1959. By this notification all evacuee property excepting agricultural lands and property for the acquisition of which proceedings were being taken under any law was acquired. In accordance with this notification the property in dispute would stand acquired by the Government on 8th August 1959. There was a subsequent notification of 12th September 1959, which purported to be an amendment of the first notification and in which it was stated that property with respect to which any proceedings were pending before the Custo--dian would not be covered by the notification of 8th August 1959. Assuming for a moment that the property which had in fact been acquired on 8th August 1959, could possibly again become evacuee property by a subsequent amendment of the notification, the situation before us is not affected because no ,proceeding was in this case pending on the 12th September 1959. The application by respondent No. 5 had been submitted only on the 16th April 1960. There was a statement in the judgment under appeal that respondent No. 5 had put in an application on the 18th April 1959, but there was no warrant in the record for this date which the learned Judge of the High Court appears to have taken from a statement in the writ petition. Learned counsel for the appellant is unable to take responsibility for the correctness of the date given in the writ petition and concedes that the date may be incorrect.
10. The Custodian had in the reply which he filed in the writ petition clearly stated that the application was of a date in April 19;;0. The order of the Custodian by which he forwarded a copy of the application to the Deputy Settlement Commissioner is of 28th May 1960. As there were no proceedings pending before the Custodian on 12-9-1959, the second notifica--tion is of no help to the appellant.
11. The result of out findings is unfortunate. We understand that the policy of the Government was not to take over property of Muslim residents of India, even though it fell within the defini--tion of evacuee property. We questioned learned counsel for the appellant as to why an application for approval of the authority of the agent had not been submitted before the notification under section 3 of the Displaced Persons (Compensation and Rehabilita--tion) Act because had such an application been put in the approval of the Custodian would probably have been just a formal matter and no question would ever have arisen of this property being evacuee property. Learned counsel replied that in cases like the present no applications were being put in because of the admitted policy of the Government. It seems to us a great hardship that whereas other persons who are in the position of the appellant are retaining their properties, the appellant should be singled out and his property taken over. However, this is a matter where only Government can help the appellant.
12. This appeal is dismissed, but there is no order as to costs.