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2. Pursuant to this agreement the plaintiffs deposited with the Custodian a sum of Rs. 1,50,000/-on 31st August, 1952, as security for the due filment and observance of the conditions as to-regulate payment of instalments of rent, but it appears that the plaintiffs did not pay the security deposit of Rs. 7,00,000/- for price of goods agreed to be purchased by them. It appears that the plaintiffs remained in possession of the properties, which were notified as evacuee properties, till February 1954. On 12th February, 1954, the Custodian served a notice upon the plaintiffs, purporting to do so in exercise of the powers vested in him by Section 13 of the Administration of Evacuee Property Act, 1950, calling upon the plaintiffs not to remove stocks of raw materials, finished goods and other properties from any of the three Ambarnath Mills or the Bobbin Factory at Tardeo' or the godowns or offices at Bombay and also prohibiting the plaintiffs from raising any monies on the security of the stock of finished goods, goods in process, raw materials, etc., and further directing the plaintiffs to submit a daily report to the Custodian of all the transactions entered into by them including payments made and received, and further directing the plaintiffs to furnish in writing such information as may' be required from time to time relating to the quality, quantity, nature, approximate value and the place of storage at raw materials, finished goods and goods in process. The notice was given because the plaintiffs had committed default in payment of rent and in giving the guarantee for Rs. 7,00,000/- and Clause 5 of the agreement and for other defaults. On 15th February, 1954, the plaintiffs filed a petition on the original side of this Court for a Writ prohibiting the Custodian from holding an enquiry under Section 12 of the Administration of Evacuee property Act and from enforcing certain directions given by that officer to the plaintiffs by notice, dated I2th February, 1954. That application was heard by my brother Mr. Justice Tendolkar, and he held by his order, dated 31st March, 1054, that the Custodian had no authority in exercise of powers under Section 12 of the Administration of Evacuee Property Act to cancel or terminate an agreement to which the Custodian was a party. Mr. Justice Tendolkar also held that the other directions given by the Custodian, which could not be split up as to make them applicable to evacuee property only, were also in excess of the jurisdiction of the Custodial). Accordingly Mr. Justice Tendolkar issued the Writ prayed for.

3. Against that order an appeal was preferred. The Court of Appeal held that the Custodian had. under Section 12 of the Administration of Evacuee Property Act, 1950, power to cancel the lease granted by him. It, was observed by the Court that there was no warrant for holding that the power Of the Custodian under Section 12 of the Administration- of Evacuee Property Act could be exercised only in respect of leases granted by the evacuee and that the power of the Custodian extended to all leases, the subject-matter of which was evacuee property. The Court, however, confirmed the derision of Mr. Justice Tendolkar in so far as it related to the other directions given by the Custodian by his order dated 12th February, 1954. The Court accordingly set aside the order prohibiting the Custodian from proceeding with the show cause notice under Section 12 of the Administration of Evacuee Property Act, and confirmed the order to the extent to which the notice of the Custodian Fought to give directions to the plaintiffs.

We are, however, concerned in this case to decide whether the Displaced Persons (Compensation and Rehabilitation) Act is a law with respect to property which is declared by law to be evacuee property. The property, which is the subject matter of the suit, is declared by virtue of authority of law to be evacuee property. It is true that under the Administration of Evacuee Property Act the Custodian is given the power to issue a notification that certain property is evacuee property, but once that notification is issued the property becomes by operation of law evacuee property and in our judgment, it must be regarded as declared by law to be evacuee property. The expression 'law' used in Clause (5) docs not mean merely the direct expression of the will of the Legislature; in its context the expression 'law' must include the lawful expression of the will of some authority to whom power is delegated by the Legislature. The expression property declared by law to be evacuee property", in our judgment includes property which is declared by notification issued by the Custodian under the Administration of Evacuee Property Act to be evacuee property.

It was urged that the expression 'evacuee property' not having been defined in the Constitution, if it was open to a subordinate legislature to amend the, definition of the expression 'evacuee property', so as to include in that expression property which was not at the date of the commencement of the Constitution according to the definition in force evacuee property, it would in substance enable a subordinate legislature, without following the procedure prescribed for amendment, of the Constitution, to amend the Constitution. Mr. Desai says that, only that class of evacuee property, which could in law be declared to be evacuee property at the date when the Constitution wag passed, must be regarded as evacuee property for the purpose of Clause and If the legislation related to that class of property, then only it is saved by Clause(5) of Article 31 of the Constitution and not otherwise. The expression! "evacuee property" has, however, not been defined! in the Constitution.