1. GHULAM SAFDAR SHAH, J..-These two appeals, by leave of the Court. Are directed against the consolidated judgment of the Lahore High Court, dated 29-4-1971, by which the appellant's Writ Petitions Nos. 900 of 1970 and 901 of 1970 were dismissed on the ground that being `alien enemy' residing in enemy territory, it could not seek any relief against the impugned orders of respondents.
2. It may be mentioned that since the questions of law and facts in both these appeals, except for the assessm ent years, are the same, both will be disposed of by this judgment.
3. The background of this litigation (and here I would confine myself to the facts of Civil Appeal No. 86 of 1971) is that Messrs Associated Cement Companies Limited (the appellant in both cases, and hereinafter referred to as the Company) was incorporated in India. It owned in Pakistan two cement factories, one located at Wah and another at Rohri in the Province of Sind. By sale agreement. Dated 12-,3-1965, these two factories were sold by the Company to the then Government of West Pakistan for approximately Rs. 3,75,00,000 payable to it in India, over a period of seven years at the rate of Rs. 50,00,000 per annum ; in the said sale agreement, which was underwritten by a bank guarantee, provision was made for the tax liability of the Company in Pakistan for which the Company had deposited with its bank at Karachi a sum of Rs. 1,00,00,000 ; however, after the declaration of war with India in September 1965, and the `consequent promulgation of Defence of Pakistan Ordinance and the Rules made thereunder, the Company's assets in Pakistan, in view of the following three notifications of then Government of West Pakistan, were taken over by the Custodian, Enemy Property :- Government of West Pakistan Industries, Commerce and Mineral Resources Department- "(1) Notification No. II-I-75/65, dated September 29, 1965.-In exercise of the powers conferred under Government of Pakistan, Ministry of Commerce Notification No. SD-ICI-284/2-65, dated the 11th September 1965, the Government of West Pakistan is pleased to appoint the Director of Industries, West Pakistan, as Deputy Custodian under rule 182 of the Defence of Pakistan Rules in respect of the payments to be made in satisfaction of the purchase agreement of the following :-
(1) Dalmia Cement Co., Karachi.
(2) Dandot Cement Factory, Dandot.
4. (3)'Associated Cement Companies Limited, Bombay--(1) Wah Cement Factory, Wah, and .
(2) Itohri Cement Factory, Rohri
(2) Notification No. VII-1-3/65 (EPC), dated April 25, 1966:-In continua- petition of Government of West Pakistan Industries, Commerce and Mineral Resources Department's Notification No. II-1-75/65 dated the 29 September, 1965 and in exercise of the powers conferred under Government of Pakistan, Ministry of Commerce Notification No. SRO=207- (R)/65 dated the 11th September, 1965 read with Rule 182 of the Defence of Pakistan Rules and Paragraph 4 of the Enemy Property (Custody and Registration) Order, 1965, the Government of West Pakistan is pleased to appoint the Director of Industries and Commerce, West Pakistan, as Deputy Custodian, in respect of the Pakistan Provident Fund of the Associated Cement Companies Limited, held in the name of Messrs P. S. Mistry, P. K. Mistry and S. N. Cooper as Trustees of the said Fund, and any other properties of the Associated Cement Companies Limited. (3) Notification No S. R. O. 10(F)/71, dated March 11, 1971.-In supersession of the Government of West Pakistan I. C. And M. R.
5. Department's Notification No. II-1-75/65 dated the 29th September, 1965 and No: VII-I-3/65(EPC) dated the 25th April, 1966, and in exercise of the powers conferred on it by clause (b) of sub-rule (1) of rule 182 of the Defence of Pakistan Rules as continued in force by section 2 of the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 read with the Government of Pakistan Ministry of Communications Notification - No. S. -R. O. 62(K)/68 dated 5-1-1968, the West Pakistan Enemy Property Management Board appoints the Additional Custodian of Enemy Property for West Pakistan as Additional Custodian to demand and receive payments to be made in satisfaction of the purchase agreement of the following :-
(i) Associated Cement Companies Limited, Bombay--(a) Wah Cement Factory, Wah ; and (b)
6. Rohri Cement Factory, Rohri ; and in respect of-
(ii) Pakistan Provident Fund of the Associated Cement Companies Limited held in the names of Messrs P. S. Mistry, P. K. Mistry and S. N. Cooper as Trustees of the said Fund and any other properties of the Associated Cement Companies Limited."
7. The record would show that after the Custodian, Enemy Property took over the assets of the Company, the Income-tax Authorities created against the Company huge demand on account of Income-tax and in the proceedings before them the Custodian, claiming to be the legal successor of the Company, appeared, admitted the liability and consequently cleared the same out of the said sum of Rs. 1,00,00,000 ; however when the Company came to know of these proceedings, in which the Custodian had allegedly not properly represented its interest, it moved the Income-tax Authorities by appeals and references but the same were rejected as barred by time as also that being an `alien enemy' it had no locus standi to pursue any legal action in Pakistan. Faced with this situation, the Company filed in the Lahore High Court the above two Writ Petitions Nos. 900 of 1970.
8. And 901 of 1970, praying therein that the impugned orders of Income-tax Authorities be held to be without jurisdiction and of no legal effect on grounds, inter alia, that in the said proceedings the Custodian had no authority to represent its interest, that the ex parte assessment orders made against it, and the consequent demand notices issued thereunder, without giving it notice underth sections 22(3) and 29 of the Income-tax Act, were without jurisdiction, and that before declaring it as an assessee-defaulter, for the assessment years 1965-66 and 1966-67, they had failed to record any finding (which they were obliged to do) whether it was taxable in Pakistan. by it of the relevant law, namely, section 83, Civil Procedure Code, section 45, Specific Relief Act, Article 98 of the Constitution, 1962, the Defence of Pakistan Rules, 1965, Enemy Property (Custody and Registration) Order, 1965 and a large number of cases decided by the Municipal as well as foreign Courts. Against the judgment of the High Court leave was granted to the Company on 21-6- 1971 as under :- "Mr. Fazalur Rahman, the learned counsel for the petitioner has contended that the High Court has acted illegally in denying relief to the petitioner in writ jurisdiction under Article 98 of the late Consti--tution of 1562, which is available to any aggrieved party. It is contended that there are no words of limitation in the article to deny the relief under it to an aggrieved party even if it happens to be an `alien enemy'. It is submitted that the learned Judges of the High Court have been wrongly swa yed by the provisions of section 83 of the Code of Civil Procedure in deciding this matter, which being a subordinate legislation, cannot override the constitutional provisions of Article 98 of the Constitution.
9. As the question raised requires interpretation of the constitutional provisions, and is of first impression in this Court, we grant leave to appeal, as prayed for."
10. Mr. Fazalur Rahman, the learned counsel for the Company, has, in amplification of the said leave granting order, contended :-
(1) That the provisions of Article 98 of the Constitution, 1962, could not be controlled or whittled down by the Defence of Pakistan Ordinance and the Rules made thereunder, as they are in the nature of subordinate legislation, and consequently the High Court was in error to hold that the Company could not prosecute the writ petitions filed by it against the impugned orders ;
(2) that before passing the impugned orders, no notice was served on the Company, nor indeed was it heard in the subsequent appeals and references filed by it before the respondents, and consequently the said orders would be without jurisdiction ; and 3) that in the writ petitions filed by it in the High Court, all that the Company had endeavoured to do was to defend itself to which' in view of the well-settled legal position, there could be no objection.
11. "It is necessary at the outset to keep clearly in mind the meaning of the term `alien enemy' when used in reference to civil rights and liabilities. Its natural meaning indicates a subject of enemy nationality, that is, of a State at war with the King, and would not in any circumstances include a subject of neutral State or of the British Crown,. But thatthe sense in which the term is used in reference to civil rights. Ever since the great case of The Hoop (1 C Rob. 196) the law has been firmly established as pronounced in the judgment of Lord Stowell (then Sir William Scott) that one of the consequences of war was the absolute interdiction of all commercial intercourse or correspondence by a British subject with the inhabitants of the hostile country except by permission of the Sovereign. This branch of law was again considered as a result of Crimean War, and Willes, J., in delivering the judgment of the Court of Queen's Bench in Esposito v. Bawden (1857)
12. 7 E & B at p. 779 said it is now fully established that the presumed object of war being as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commercial intercourse and correspondence with the inhabitants of the enemy's country and that such intercourse, except with the licence of the Crown is illegal. This law was founded in earlier days upon the conception that all subjects owing allegiance to the Crown were at war with subjects of the State at war with the Crown, and later it was grounded upon public policy, which forbids the doing of acts that will be or may be to the advantage of the enemy State by increasing its capacity for prolonging hostilities in adding to the credit, money or goods, or other resources available individuals in the enemy State. Trading with a British subject or the subject of a neutral State carrying on business in the hostile territory is as much assistance to the alien enemy as if it were in the enemy State, and, therefore, for the purpose of the enforcement of Civil rights, they are equally treated as alien enemies. It is clear law that the test for this purpose is not nationality but the place of carrying on the business : Wells v. Williams 1 Ld. Raym. 282 ;_ McConnel v. Hector per Lord Alvanley, C. J. 3 Bos. & P. 113 ; Janson v. Driefontein Consolidated Mines 1902 A C 505 per Lord Lindley. When con--sidering the enforcement of civil rights a person may be treated as the subject of an enemy State, notwithstanding that he is in fact a subject of the British Crown or of a neutral State. Conversely a person may be treated as a subject of the Crown notwithstanding that he is in fact the subject of an enemy State. As Lord Kindley said in Janson v. Driefonteln Consolidated Mines 1902 A C 505: 'When considering questions arising with an alien enemy it is not the nationality of a person but his place of business during war that is important :"
13. And further (at page 880 of the judgment)
14. "Having now explained the meaning of 'alien enemy' for civil purposes, and having decided that such alien enemy's right to sue or proceed either by himself or by any person on his behalf in the King's Courts is suspended during the progress of hostilities and until after peace is restored the next point to consider is whether he is liable to be sued in the King's Courts during the war. To allow an alien enemy to sue or proceed during war in the Civil Courts of the King would be, as we have seen, to give to the enemy the advantage of enforcing his rights by the assistance of the King with whom he is at war. But' to allow the alien enemy to be sued or proceeded against during war is to permit subjects of the King or alien friends to enforce their, rights with the assistance of the King against the enemy. Prima facie there seems no possible reason why our law should decree an immunity during hostilities to the alien enemy against the payment of just debts or demands due to British or neutral subjects. The rule of law suspending the alien enemy's right of action is based upon public policy, but no considerations of public policy are apparent which would justify preventing the enforcement by a British or neutral subject of a right against the enemy."
15. It would thus be seen that the presumed object of war being as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commerial intercourse and correspondence with the inhabitants of the enemy's country as it is taken to be illegal. Trading with an enemy subject or the subject of a neutral State carrying on business in enemy territory would be as much assistance to the enemy as if A it were with the subject of enemy nationality carrying on business in enemy territory and, therefore, for the enforcement of civil rights, they are equally treated as alien enemies. The test for this purpose is not the nationality but the place of carrying on business. When considering the enforcement of civil rights a person may be treated as a subject of an enemy State, notwithstanding that he is in fact a subject of Pakistan or a neutral State.
16. Conversely a person may be treated as a subject of Pakistan notwithstanding that he is in fact a subject of the enemy State.
17. This principle of common law would find itself codified in section 83, Civil Procedure Code, 1908, which runs as under :- "83.-(1) Alien enemies residing in Pakistan with the permission of the Central Government, and alien friends, may sue in the Courts in the Provinces, as if they were citizens of Pakistan.
(2) No alien enemy residing in Pakistan without such permission, or residing in a foreign country; shall sue in any of such Courts.
18. Explanation.-Every person residing in a foreign country the Government of which is at war with or engaged in military operations against Pakistan and carrying on business in that country without a license in that behalf under the hand of a Secretary to the Central Govern--ment shall, for the purpose of subsection (2), be deemed to be an alien enemy residing in a foreign country."
19. A look at subsection (2) of section 83 (ibid) would show that it provides a complete bar against the Company, which is admittedly an 'alien enemy' residing in enemy territory, from suing in any Court in Pakistan. Furthermore, on the declaration of Indo-Pak-War of 1965, the Defence of Pakistan Ordinance, 1965, was promulgated in section 4 of which it is said that any B rule made under section 3 thereof shall prevail notwithstanding its inconsis--tency with anything contained in any enactment or law. Now in the following Rules, namely, the Defence of Pakistan Rules, framed under section 3, 'enemy' and 'enemy territory' have been comprehensively defined as under :- "2.-(2) 'enemy' means-any person or State at war with, or engaged in military operations against, Pakistan."
20. "2.-(3) 'enemy territory' means-
(a) any area which is under the sovereignty of, or administered by, or for the time being in the occupation of, a State at war with, or engaged in military operations, against, Pakistan, and
(b) any area which may be notified by the Central Government to be enemy territory for the purposes of these Rules or such of them as may be specified in the notification."
21. "161.-(a) `enemy' means-Any State, or' Sovereign or a State, at war with, or engaged in military operations against, Pakistan,
(b) Any individual resident in enemy territory, or
(c) anybody of persons constituted or incorporated in enemy territory, or in, or under the laws of, a State at war with Pakistan."
22. "169.-(1)(a) `enemy subject' means- Any individual who possesses the nationality of a State at war with, or engaged in military operations against Pakistan, or having possessed such nationality at any time has lost it without acquiring another nationality."
23. "169.-(2)(b) `enemy firm' means- Any firm, whether constituted in Pakistan or not, of which any member or members or officer is an enemy subject, and which is carrying on business in Pakistan."
24. It would be seen that these rules, in which the expressions `enemy' and `enemy territory' have been defined, are complementary to what has been said in subsection (2) of section 83, C. P. C. And the explanation appearing `' thereunder. It would, therefore, follow that the bar contained therein against an `alien enemy' from suing in any Courts of Pakistan, would be fully applicable to the Company which admittedly is an `alien enemy'.
25. Mr. Fazalur Rahman, the learned counsel for the Company has no cavil with this legal position. His grievance, however, is (and in this respect he was evidently relying on his contentions 2 and 3 reproduced earlier) that in the proceedings before the respondents the Company evidently was a defendant and so it had every right to be heard in defence and so also in the writ petitions filed by it in the High Court in which again the Company was essentially defending its interest against the impugned orders. In support of his contention, the learned counsel relied on Porter v. Freudenbers ((1915) 1 K B 857 ), * V/O Sovlfracht v. Gebr. Van Udenes Scheepvaart En Agenluur Maatscheppij ((1943) 1 A E L R 76), Maerkle and another v. British and Continental Fur Company Limited ((1954) 3 A E L R 50), In re : Reference No. 1 of 1965 (4), The State Bank of India Ltd. v. The Custodian of Evacuee Property, West Pakistan (PLD 1969 Lah. 1050 ) and William N. Mc Veigh v.
26. United States (20 L E U S 78-81 Wallace 11).
27. By going through these judgments, they do seem to support the learned counsel that if an enemy is sued in any Court in this country, he would have the right to appear in the proceedings and defend himself. But upon the peculiar facts of this case, these judgments would not help him. Unlike the case in hand in which the Custodian, Enemy Property has, in view of the aforesaid three Notifications, taken over the control and custody of the property of the Company in Pakistan, no Custodian seems to have been appointed in the cases reported in (1915) 1 K B 857, (1943) 1 A E R 76 and 20 Law Edition U S 78-81 Wallace 11-14, page 80. In (1954) 3 A E R 50 however, a Custodian of Enemy Property had been appointed under Trading with the Enemy (Custodian) Order, 1951 and when an action was brought in the Courts of England by two German nationals, who were `alien enemies, it was held that the said action could not be permitted to proceed, for the Custodian of Enemy Property was there and it was be who would have the power to initiate proceedings in his own name if he so desired.
28. Reference No. 1 of 1965, In re (PLD 1966 Kar. 160) seems to be the first case from our own jurisdiction on this subject. The facts in that case were that after the outbreak of Pak-Indo-War 1965, the Office of the Karachi Bench of the then West Pakistan High Court made a reference to the Senior Judge as to how about twenty cases pending in the Court in which alien enemies were either plaintiffs or defendants should be dealt with. The learned Senior Judge accordingly, referred all these cases to a Division Bench for decision. The learned Judges constituting the Bench agreed with each other in regard to the conclusion, but recorded separate judgments. They agreed that the suits in which plaintiffs were alien enemies could not be allowed to proceed, but in which they were defendants they could proceed without any objection except that in the case of a counter claim therein, they would be deemed to be plaintiffs and to that extent they were to suffer the same disability as if they were plaintiffs. In the judgment of Waheeduddin Ahmad, J. (as he then was) there is no mention of the Custodian of Enemy Property. But in the judgment of Khamisani, J. This aspect was noted and he held that if enemy property is involved in the suit and the same vests in the Custodian of Enemy Property it would be open to him to continue or defend the suit. It would thus be seen that in that case, which was decided at a time when the Defence of Pakistan Ordinance and the Rules made thereunder were in force, the right of enemy to defend himself was recognised, if he was sued in any Court of Pakistan. But in case there existed the Custodian of Enemy Property then he would be replaced by the Custodian for that purpose.
29. The Enemy Property (Custody and Registration) Order, 1965, promulgated on September 9, 1965, would seem to set at rest any doubt about the right of an `alien enemy' to defend himself in proceedings instituted against him in a Court in Pakistan. Sections 4 and 5 of the said Order which are relevant in this connection, respectively, read as under :- ",4.-(1) Whenever by order made under sub-rule (1) of rule 182, the property of an enemy is vested in the Custodian, the Custodian may take or authorise the taking of such measures as he considers necessary or expedient for preserving the property, and, where the property belongs to an individual enemy subject, may incur such expenditure out of the property as he considers necessary or expedient for the maintenance of that individual or of his family in Pakistan.
(2) Without prejudice to the generality of the foregoing provision, the Custodian or such person as may be specially authorised by him in this behalf, may, for the said purpose,-
(i) carry on the business of the enemy ;
(ii) take action for recovering any money due to the enemy ;
(iii) make any contracts, and execute any documents in the name and on behalf of the enemy ;
(iv) institute, defend or continue any suit or other legal proceeding, refer any dispute to arbitration and compromise any debts, claims or liabilities ;
(v) raise on the security of the property such loans as may be necessary ;
(vi) incur any expenditure, including the payment of any taxes, duties, cesse4 and rates to Government or to any local authority, and of any wages, salaries, pensions or provident fund contributions to, or in respect of, any employee of the enemy, and the repayment of any debts due by the enemy to persons other than enemies ; and
(vii) transfer by way of sale, mortgage or lease, or otherwise dispose of, any property or any assesmefit, interest, profit or right present or future, arising therefrom or incidental thereto.
(3) In respect of the property of a person who is a citizen of Pakistan or the Ruler or a subject of an Acceding State, and who is an enemy within the meaning of clause (b) of rule 161, the Custodian shall have, in addition to the powers mentioned in sub-paragraph (2), the following power, namely :-
(i) the power to make payments to such persons and to his dependents ;
(ii) the power to make payments on behalf of such person to persons, other than those who are enemies under rule 161 of dues outstanding on the date on which such person became an enemy ; and
(iii) generally to make such other payments out of the funds of such person as may be directed by the Central Government."
30. "5. All enemy property vesting in the Custodian shall be exempt from attachment, seizure or sale in execution of a civil Court decree or orders of any other authority."
31. The admitted position in this case is that by the aforesaid three Notifi--cations issued by the then Government of West Pakistan under sub-rule (1) of rule 182 of the Defence of Pakistan Rules, the property of the Company was vested in the Custodian of Enemy Property. This evidently satisfied the requirements of subsection (1) of section 4 (ibid). Now so far as the powers of Custodian are concerned they are contained in subsection (2) of the said section which includes, amongst others, his power to carry on the business of the Company, to recover any money due to the Company, to make on behalf of the Company any contracts and execute any documents, to institute, defend or continue any suit or other legal proceedings, to raise on the security of the D property such loans as may be necessary and to incur any expenditure, including the payment of taxes, duties, cesses and rates to Government or to any local authority. Now in the light of these extensive powers, which the Custodian undoubtedly has, it is difficult to subscribe to the arguments of the learned counsel for the Company that he (Custodian) had no authority to represent the Company in proceedings before respondents or else the Company had been wrongfully refused hearing in the appeals and references filed by it against the impugned orders.
32. The learned counsel, however, contended that under subsection (1) of section 4 (ibid), the duty cast on the Custodian of Enemy Property was to preserve the property of the Company. But in disregard of his said duty he not only accepted the illegal assessment orders of respondents, but also paid them out of the Company's funds without filing any appeals or revisions against the said orders. When the attention of learned counsel was invited to subsection (2) of the said section, in which the Custodian has been invested with the necessary power in this behalf, he countered that this subsection would be invalid, in view of the unmistakable legislative intent expressed in subsection (1) of section 4 (ibid) that the duty of Custodian was to preserve the property of the Company and not to waste it. Payment of illegal taxes, was evidently a waste of the enemy property. And hence the Custodian must be held to have committed the breach of his statutory duty. In support of his contention the learned counsel relied on the well known case of Keshav Talpade v. Emperor (AIR 1943 FC), which no doubt supports him. But this judgment was overruled by the Privy Council in the case of Madhavan Nair Emperor v. Sibnath Banerji and others (AIR 1945 P C 156). In that case also the vires of rule 26 of the Defence of India Rules, framed under subsections (1) and (2) of section 2 of the Defence of India Act, 1939 (which in the context of the present discussion would seem to be pari materia with subsections (1) and (2) of section 4 (ibid), had fallen for consideration, and the view taken by the Federal Court was that the said rule was invalid, for it went beyond the rule--making power which the Central Legislature had, under subsection (2) of section 2 of Defence of India Act thought fit to confer upon the Central Government. In overruling this view, however, their Lordships of the Privy Council held that they are "unable to agree with the learned Chief Justice of the Federal Court on his statement of the relative positions of sub-sections (1) and (2) of section 2, Defence of India Act, and counsel for the respondents in the present appeal was unable to support that statement, or to maintain that rule 26 was invalid. In the opinion of their Lordships, the function of subsection (2) is merely an illustrative one ; the rule-making power is conferred by subsection (1), and "the rules" which are referred to in the opening sentence of subsection (1) ; the provisions of subsection (2) are not restrictive of subsection (1), as indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by sub--section (1)". There can be no doubt-as the learned Judge himself appears to have thought-that the general language of subsection (1) amply justifies the terms of rule 26, and avoids any of the criticisms which the learned Judges expressed in relation to subsection (2).
33. Their Lordships are therefore of opinion that" I L R (1944) Born. 183 was wrongly decided by the Federal Court, and that rule 26 was made in conformity with the powers conferred by subsection
(1) of section 2, Defence of India Act.".
34. The learned counsel next argued that under sections 2 (2), 23 (4) and 46 of Income-tax Act (Act XI), 1922, the Company alone was recognised to be the assessee and consequently the Custodian of Enemies Property would be a stranger in the proceedings before the Income-tax Authorities and so the impugned orders passed in those proceedings would be without jurisdiction. The language of these sections, which need not be reproduced, no doubt supports the learned counsel. But section 4 of Defence of Pakistan Ordinance, 1965, would seem to provide a complete answer to his contention. This section runs as under "4. Effect of rules, etc., inconsistent with other enactments.-Any rule made under section 3, and any order made under any such rule, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Ordinance or in any instrument having effect by virtue of any enactment other than this Ordinance."
35. As already mentioned, under the power conferred on it by section 3 of the said Ordinance, the Central Government framed the Defence of Pakistan Rules which in view of section 4 (ibid) have been given ascendancy over anything inconsistent therewith contained in any enactment. The Enemy Property (Custody and Registration) Order, 1965, was enacted by the Central Government under the powers conferred on it by sub-rule (1) of Rules and so the said order rule 182 of the Defence of Pakistan e also would, in view of the legislative intent expressed in section 4 of the Ordinance, have ascendancy over all. Other laws including the Income-tax Act. From this it would follow that the Custodian of Enemy Property, in view of the extensive power conferred on him by the said Order, would seem to have supplanted the Company in this country for all purposes so long as the Company remains an `alien enemy'.
36. Mr. Fazalur Rehman, the learned counsel finally attacked the impugned order on the basis of Article 98 of the Constitution of 1962. He argued that the Defence of Pakistan Ordinance, 1965, the rules made thereunder and the Enemy Property (Custody and Registration) Order, 1965, being in the nature of subordinate legislation, could not control or whittle down the language of Article 98 (ibid).
37. He, therefore, contended that the writ petitions filed by the Company in the High Court were maintainable but they were wrongly dismissed. In support of his contention, the learned counsel also relied on the judgment of the Lahore High Court in the case of The State Bank of India Limited v. The Custodian of Evacuee Property, West Pakistan. In order to appreciate his contention Article 98 (ibid), in so far as it would be relevant, may be reproduced :- "98.-(1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law.
(2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law-
(a) on the application of any aggrieved party, make an order-
(i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do ; or
(ii) declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect ; or
(b) .
38. Now the judgment of the Lahore High Court in the case State Bank of India Limited v. Custodian of Evacuee Property, West Pakistan, on which the learned counsel has relied, needs careful examination. The facts in that case were that the State Bank of India Limited, in view of the State Bank of India Act (XXIII of 1955), took over the assets and liabilities of Imperial Bank of India which before Partition had commercial dealings with individuals, firms and Companies residing in territories which latter became part of Pakistan. After Partition the assets and liabilities of these Companies, which had become evacuees, were taken over by the Custodian, Evacuee Property who later claimed from the State Bank of India certain dues on their account. The State Bank of India, however, preferred its own claims against the said evacuees and demanded from the Custodian their satisfaction. Subsequently these claims and counter claims were gone into by the Custodian but in the end he again demanded from the State Bank of India certain amount, but himself refused to accept the counter claim of the latter. Faced with this situation, the State Bank of India filed in the High Court Constitutional petitions challenging therein the orders of the Custodian.
39. These petitions were admitted to regular hearing. But on the outbreak of Indo-Pak-War, 1965 they were dismissed by a learned Single Judge on the ground that the Bank was an `alien enemy' and so had no locus standi to prosecute them. In the Letters Patent Appeal, however, filed by the Bank through the Assistant Custodian of Enemy Banks (who was not a party in the original proceedings), the learned Judges of the Division Bench after reviewing the case-law on the subject recorded the following findings :- "The provisions of the C. P. Code are not, in terms, applicable to the proceedings under Article 98 of the Constitution ; but there is ample authority in support of the proposition that the principles contained in the Code, wherever found necessary, can be applied to those proceed--ings. While applying the principles contained in section 83, C. P. Code as enunciated by their Lordships of the Division Bench in the Karachi case, we will have to see as to what ii the true nature and content of the writs filed in the High Court by the State Bank of India. As explained earlier in paragraph 2 of this judgment, in all these writ petitions an order passed by the Custodian against the State Bank of India for the recovery of certain sums was challenged. In some of them, there was an additional prayer also. If we treat the proceedings before the Custodian in the nature of a suit, in that case the order by the Custodian for recovery of certain sums from the State Bank of India would have to be treated, notionally for the purpose of the present discussion, as decree in favour of the plaintiff (Evacuee Custodian) against the defendant (State Bank of India).
40. Those proceedings have concluded, the State Bank of India filed the writ petitions challenging those orders (the notional decrees). Though the writ jurisdiction under Article 98 of the Constitution is not at all an appellate jurisdiction ; yet for the purpose of main--taining the continuity of the above-mentioned notion, it will have to be assumed, in this case, that when the State Bank of India applied to the High Court for setting aside the order (notional decree) passed by the Custodian, it was an appeal to the High Court by means of the application under Article 98 of the Constitution, seeking redress, as a notional defendant-judgment-debtor against the said notional decree passed in favour of the said notional plaintiff (the Custodian of Evacuee Property). Looking at the subject from this angle and applying the principles enunciated in the Karachi case, it becomes clear that the petition under Article 98 of the Constitution (in the form of an appeal as explained above) having been filed before the Emergency, could not be dismissed but would have remained pending ; and at the most the action on those proceedings would be suspended during the Emergency."
41. Having reached these conclusions, the learned Judges allowed the Letters Patent Appeal observing "in the light of the above discussion, the orders by the learned Single Judge cannot be sustained and the same are set aside in terms already announced on 7th February 1969, in our short order ; "that the writ petitions will be treated as and continued to be pending in this Court". We further hold that "the appellant has the locus standi to pursue the writ petitions and to file the Letters Patent Appeals. "There shall be no order as to costs".
42. It will have been noted that the Constitutional petitions in that case had been filed by the State Bank of India Limited sometime before the Indo--Pak-War, 1965. But when the: war broke out in that year the Bank having become an `alien enemy' was hell by the learned Single Judge to have no locus stand! To prosecute them. In the Letters Patent Appeal, however, the Assistant Custodian of Enemy Bank had appeared on the scene. But there is no indication in the judgment if the property of the Bank had, by virtue of an order passed by the Central Government under rule 182 of the Defence of Pakistan Rules (under which the Assistant Custodian of Enemy Property seems to have been duly appointed) vested in him. In order to clear this point, therefore, I personally searched for any such order of the Government but except for the Notification, dated 13th September 1965 (by which the Deputy Governor, State Bank of Pakistan, Karachi, was appointed as Assistant Custodian of Enemy Property, '"lest Pakistan, in respect of Companies carrying on the business of Banking including Co-operative Banking, I was unable to lay my hands on.Any other order/notification vesting in the said functionary the business of the State Bank of India Limited. Assuming, however, that the property of the said Bank had vested in him under a valid order of the Central Government, it would follow that in that event he would have stood supplanted in place of the Bank for all purposes so long as the Bank was to remain an `alien enemy'. And consequently there would be no objection against him to prosecute the said Constitutional petitions in his own name-especially when it was he through whom the appeal of the Bank before the Letters Patent Bench had been filed. If on the other hand the property of the Bank had not vested in him then the judgment in question would not help the Company in this case for the property of the Company was vested in the Custodian for all purposes so long as the Company was to remain an `alien enemy'.
43. The learned counsel lastly argued that in view of the legislative intent expressed in rule 182 of the Defence of Pakistan Rules and subsection (1) of section 4 of Enemy Property (Custody and Registration) Order, 1965, the Custodian of Enemy Property in this case was required to take such measures, which he considered necessary or expedient for preserving the property of the Company. But in disregard of his duty, he not only accepted and paid for the illegal assessment orders of respondents but also failed to file an appeal against the assessment orders by which the legitimate Managing Agency payments of the Company were illegally taxed by respondents. This contention of the learned counsel may or may not be true. But the interest of the ,Company seems to be fully protected under section 17 of the Defence of Pakistan Ordinance, which reads as under "17. Protection of action taken under the Ordinance.-(1) No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Ordinance or any rules made thereunder or any order issued under any such rule.
(2) Save as otherwise expressly provided under this Ordinance, no suit or other legal proceeding shall lie against Government for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Ordinance or any rules made thereunder or any order issued under any such rule."
44. If, as the learned counsel has contended, that the Custodian of Enemy Property in this case has mismanaged the affairs of the Company, squandered its property and had not properly represented its interest in the proceedings before respondents is true, then no sooner the state of war existing between India and Pakistan ceases than the Company would have the right to- institutex against the Custodian proper proceedings to recompens: itself for all losses damages, provided it would be able to satisfy . The Court that the Custodian had conducted himself otherwise than in good faith.