P L D 1961 (W (PLP)

This is a petition by Ghulam Nizam‑ud‑Din Sabri under clause 2 (4) of the Presidents' Laws (Continuance in Force) Order, 1958, for the issue of a writ of certiorari for quashing the order of the Deputy Rehabilitation Commissioner dated the 12th of July 1958, and subsequent orders passed in consequence of it.

2. The relevant facts giving rise to this petition, as alleged by the petitioner, are as follows. The petitioner took on lease a portion of the Kirpa Ram Building situated on the Mall, Lahore, from its evacuee owner in the year 1949, and thereafter it was duly allotted to him by the Rehabilitation authorities. It consists of three rooms on the first floor of the building. His brother Ghulam Moin‑ud‑Din Sabri is in occupation of another flat of the same building. Sometime in September 1957, Ch. Abdul Qayyum, respondent No. 3, was allotted a flat on the first floor of that building which is just below the flat occupied by the brother of the petitioner. Since 1949, the petitioner has been using the roofs of the rooms which are in his possession. On the 27th of February 1958, respondent No. 3 put up a wooden door to block the petitioner's passage to the roofs of these rooms. The petitioner reported the matter to the Deputy Rehabilitation Officer, Civil Lines, and the Urban Secretary (Rehabilitation). On the 18th of March 1958, the Deputy Rehabilitation Officer, Civil Lines, served a notice on respondent No. 3 to remove the door. The copy of the notice is Annexure A. In the meantime the petitioner's application to the Urban Secretary (Rehabilitation) was marked to the Additional Rehabilitation Commissioner, Lahore, for disposal. Instead of complying with the notice dated the 18th of March 1958, respondent No. 3 submitted an application to the Deputy Rehabilitation Officer Civil Lines, to allot him the roofs of the rooms in possession of the petitioner. On the 3rd of July 1958, the Deputy Rehabilitation Officer, Civil Lines, submitted a Report to the Deputy Rehabilitation Commissioner, Lahore, suggesting that the roofs of these rooms ]?e allotted to respondent No. 3, and he sought his ‑permission to proceed against the petitioner‑with regard to the roofs in dispute. On the 12th July 1958, the Deputy Rehabilitation Commissioner passed the following brief order :‑ "D. R. O.'s proposal at `A' overleaf is approved." The copy of the report of the Deputy Rehabilitation Officer and the order of the Deputy Rehabilitation Commissioner is Annexure B. The report of the Deputy Rehabilitation Officer was based on the assumption that the petitioner was also in occupation of two other roofs and that the roofs in dispute were lying surplus. The petitioner then submitted a review petition to the Deputy Rehabili tation Commissioner which was decided by him on the 2nd of October 1958. In this order the learned Deputy Rehabilitation Commissioner remarked that the two brothers were in possession of three roofs and that the roofs in dispute were not used by them. He also observed that both the brothers had separate allotment chits for the respective portions of the building. He clarified the position by making the following observation :‑ "I am afraid no ejectment is contemplated. It is merely the use of the upper roof which is being given to the respondent. The accommodation in the portion, which is in possession of Ghulam Nizam‑ud‑Din, although he is a single person, shall remain with him." The copy of this order is Annexure C. On the 15th of May 1959, Khan Ahmad Raza Khan, Additional Rehabilitation Com missioner, passed an order on the petitioner's applications which had been referred to him by the Urban Secretary (Rehabilitation) that the orders of the Rehabilitation authorities regarding the roofs in dispute should be implemented. Thereafter the Deputy Settlement and Rehabilitation Commissioner sent a memo. dated the 25th of July 1959, to the petitioner asking him to let Ch. Abdul Qayyum use one of the roofs in his possession. The copy of this memo. is Annexure E. The petition‑ar filed a revision petition against the order of Khan Ahmad Raza Khan. The Rehabilitation Commissioner, by his order dated the 23rd of February 1960, dismissed the revision petition and directed that the order should be implemented. The petitioner submitted a review petition which was rejected on the 4th of May 1960. On the 16th of May 1960, the petitioner found pasted on his flat a notice of ejectment issued by the Deputy Settlement Commissioner, Lahore, directing the petitioner to vacate the roofs in dispute within 48 hours of the receipt of the memo. and deliver its possession to respondent No.

3. The copy of this notice is Annexure L. The petitioner then submitted this writ petition to this Court.

3. The facts narrated above were not controverted by the respondents except the fact that the roofs were being used by the petitioner. The sole question which requires determination is whether the Deputy Rehabilitation Commissioner could have passed the order dated the 12th of July 1958. Learned counsel for respondent No. 3 referred to section 18 of the Pakistan (Admini stration of Evacuee Property) Act, 1957, and contended that the Deputy Rehabilitation Commissioner could have passed the order under that section. That Act mainly deals with the powers of the Custodian to manage the evacuee property. Section 18 of the Act merely points out that the Rehabilitation authorities are empower ed to allot to any person any evacuee property of which the Cus todian has taken possession under section 13 of the Act. In my opinion, section 7 8 of the Act has got no application to the question involved in this petition. Major Ishaque Muhammad Khan, Settlement Commissioner (Legal), who appeared on behalf of the Rehabilitation authorities, conceded that section 18 had no application to the facts of the case. He, however, relied on clause (d) of section 7(2) of the Pakistan Rehabilitation Act, 1956. This clause provides that a Rehabilitation authority may, subject to the prescribed conditions, settle refugees on any abandoned land or in any abandoned houses and grant to any refugee or other person a lease of any abandoned business or undertaking. Section 7 of this Act corresponds to section 8 of Ordinance XIX of 1948. It is true that all the allotments are made by the Rehabilitation authorities under clause (d) of section 7 (2) of the Pakistan Rehabilitation Act, 1956. The question, however, is whether the Rehabilitation authorities are empowered to re allot property to another person without getting the first allottee ejected to accordance with the provisions of section 7 (2) (b) of the Pakistan Rehabilitation Act. In my opinion whenever property is allotted to a person, the allotment becomes final, unless it is challenged in appeal, revision or review, and, subject to the orders passed in appeal, revision or review, the allotment order stands intact. Major Ishaque Muhammad Khan conceded that the rooms and their roofs had been allotted to the petitioner. He, however, maintained that without taking any steps to eject the petitioner, the Deputy Rehabilitation Commis sioner could have re‑allotted the roofs of these rooms to respon dent No.

3. I think this contention has no substance in it. The provisions of the Pakistan Rehabilitation Act do not warrant such a proposition. There is no Independent provision in this Act, under which the Rehabilitation authorities could conceal a valid allotment. The only provision of law which can be utilised by the Rehabilitation authorities for this purpose is section 7 (2) (b) which provides as follows :‑ "7 (2) In particular and without prejudice to the generality of the powers conferred by the preceding subsection but subject to the provisions of this Act, a Rehabilitation Authority may -- (b) eject summarily with the use of such force as may be necessary any person in possession ,of any abandoned land, building, business or undertaking whose possession thereof has not been authorised by the Rehabilitation Authority, or, to whom such land, building business or undertaking has been allotted (whether the stock‑in‑trade or machinery involved in the business or undertaking has been sold to him or not) but who has failed to observe any of the conditions of the allot ment, or who has subsequently been found in the opinion of the Rehabilitation Authority to be an unsuitable person to hold the property so allotted, or any person in possession of any pro perty which, after it has been allotted to him as evacuee pro perty, has lost the character of being such property either by a declaration or by the operation of any other law for the time being in force."

4. It will thus be seen that if a person is in unauthorised possession of any abandoned land, building, etc., then the Reha bilitation authorities are empowered to eject him summarily with the use of such force as may be necessary. The procedure for summary ejectment is laid down in rule 6 of the Pakistan Reha bilitation Rules, 1951. But if he is an allottee of such land or building, then the power is given to the Rehabilitation authorities to eject him if he has failed to observe any of the conditions of the allotment order, or who has subsequently been found, in the opinion of the Rehabilitation authority, to be an unsuitable person to hold the property so allotted.

5. Without specifying the authority under which he was acting, the Deputy Rehabilitation Commissioner proceeded to allot the roofs in dispute to respondent No.

3. It was admitted that no notice had been given to the petitioner about it, and although the order was passed to his prejudice he was not given an opportunity of being heard. It is true that thereafter when he submitted a review petition he was heard by the Deputy Rehabili tation Commissioner, but the fact remains that when the order had been passed by him in the first instance, the petitioner had not been heard by him. He clarified his first order by saying in the review order that the ejectment of the petitioner was not contemp lated. If this position be accepted as correct, then how, without ejecting the petitioner from the roofs in dispute, could these roofs be allotted to respondent No.

3. After a careful perusal of the various provisions of the Rehabilitation Act, I am of the opinion that the Deputy Rehabilitation Commissioner had no jurisdiction to allot the roofs in dispute to respondent No. 3 without taking steps to eject him in accordance with the provisions of section 7 (2) (b) of the Act. Admittedly these steps were not taken. But even if an ejectment order had been passed, then as the order would have been passed after the 17th of February 1958, it could not have beer, given effect to in view of the provisions of section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as it then stood. Besides, I am also of the opinion that the Deputy Rehabilitation Commissioner had violated one of the principles of natural justice enshrined in the maxim, "audi alteram partem," that is to say, "no man shall be condemned unheard". In Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45) their Lordships of the Supreme Court were pleased to observe as follows :‑ "The rules of justice embodied in the maxim : audi alteram partem, 'No man shall be condemned unheard' is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute. As a just decision in such controversies is possible only if the parties are given the opportunity of being heard, there can be as regards the right of hearing, no difference between proceedings which are strictly judicial and those which are in the nature of a judicial proceeding though administrative in form." It is well established that a certiorari would lie where such al principle of natural justice is violated by the authority concerned.

6. Major Ishaque Muhammad Khan, however, pleaded that this Court should nor exercise this jurisdiction in this case, because respondent No. 3 has no open place to sleep during summer and he would be put to great inconvenience. Without going into the merits on this particular point, I would like to say that the occupants of the flat, which is now in occupation of respondent No. 3 must have been sleeping some where during summer before 1957, when this flat was allotted to respondent No.

3. I am given to understand that the whole of the Kirpa Ram Building now stands transferred to a third person and it will therefore, be for the new owner to deal with his tenants in accordance with law. I do not see any justification why the Rehabili tation authorities should be permitted to interfere with the rights of the tenants.

7. For the reasons stated above, I am of the view that the Deputy Rehabilitation Commissioner had no jurisdiction to pass the order dated the 12th of July 1958, and consequently, the order was illegal and void. It follows that all the orders passed subse quently on the basis of this order are also illegal and void. I accordingly issue a writ of certiorari and quash the order of the C Deputy Rehabilitation Commissioner dated the 12th of July 1958 and all the subsequent orders passed in consequence of it. As the point involved was not free from difficulty, the parties are left to bear their own costs. A. H. Order quashed.