1989 PLP 3503 (MLD)

SALEEM AKHTAR, J.--The petitioner claims to be recorded tenant of a shop bearing City Survey No. D-232, situated at Darzi Gali, Mirpurkhas, which is an evacuee trust property. The petitioner was paying rent but in the year 1978 the respondent No. 4 applied for change of tenancy m his name on the allegation that the petitioner was employed as a Munshi by his father and has by misrepresentation obtained the rent receipts in his name. An Inspector of the respondent Department changed the tenancy in the name of respondent No. 4 and his name was mutated. The petitioner filed an appeal against that order before respondent No. 2 who allowed it with the following observations: "The file shows that all the notices from 9-12-1967 upto 1978 had been issued in the name of the respondent No. 2 who as per record of the office of the A.E./E.T.P. Hyd. was the tenant of this shop. It is also borne out from the record and also admitted fact that the rent had been deposited in the name of the respondent No.

2. The file also shows that the appellant made an application for change of tenancy on 18-10-1978 stating that the respondent was his employee and it is he who is the actual tenant and so his name should be entered as tenant in the record. Abdul Waheed who was posted as Assistant at that time in the office of the AA./E.T.P., Hyd., without any authority and without hearing the respondent No. 2 or receiving his objection, allowed the request of the appellant on 21-10-1978. This order is absolutely illegal and nullity in the eyes of law because firstly, Abdul Waheed as Assistant had no authority to pass this order and secondly such an order even by the Assistant Administrator could not have been passed without offering reasonable opportunity of hearing by the recorded tenant Abdul Rashid (respondent No. 2). Even otherwise the position taken by the appellant, is not borne out from the record and on the contrary it is apparent from the record that respondent No. 2, Abdul Rashid was a recorded tenant of this shop as per record of the Assistant Administrator's office." The respondent No. 4 filed a revision application before the respondent No. 1 who dismissed the revision on 22-3-1982 but made the following observations: 'The respondent No. 3 has already joined service in Municipal Committee, Mirpurkhas and is not now eligible to retain the tenancy of the shop in dispute as no Government servant or employee of an autonomous or a semi-autonomous body is permitted to secure the tenancy of any evacuee trust shop under clause 19 of the Urban Scheme of Evacuee Trust Properties, 1977. As both the petitioner and the respondent No. 3 have lost their rights for the tenancy of the shop for the reasons mentioned above, the shop should be got vacated from the existing occupant/occupants and rented out by public auction according to the procedure laid down under the scheme ibid." The petitioner has challenged this order in this petition. The petition came up for Katcha Pehsi on 23rd August, 1982 when notice was issued to the respondents and on 30th August, 1982 Mr. Manzoorul Haque, learned counsel for respondents 1 to 3 appeared. The Advocate for the petitioner stated that the property in dispute was lying sealed but Mr. Manzoorul Haque, Advocate did not accept this clam and he informed the Court that the property has been auctioned on 1.5-6-1982. The Court, however, ordered the respondents to "maintain status quo in respect of the property as obtained today" i.e. 30th August, 1982. Mr. Manzoorul Haque, Advocate states that the new tenant was inducted before the order of status quo was passed and he is in possession of the disputed property. This new tenant m question has not been impleaded as a party in this petition. Therefore, we refrain from passing any order which may affect his vested interest. The main ground for attacking the impugned order is that the observation quoted above was made by the respondent No. 1 without affording an opportunity to the petitioner of being heard and in this way his substantive right has been affected by an ex parte order. The observation made by the respondent No. 1 was never at issue in the revision application and this was an additional fact which was taken note of by respondent No.

1. From the controversy that has been raised .in these observations it is clear that it requires proper evidence and also proper interpretation of the provisions of the scheme under which the petitioner claims to be a tenant even if he is an employee of the Municipal Committee, which he has been since 1972 i.e. before the promulgation of the-scheme in 1977. We find force in this contention as the vested right of any party cannot be adversely affected without giving him an opportunity of being heard. Mr. Manzoorul Haque, learned counsel for respondents Nos. 1 to 3 contends that the new tenant is in possession and is paying rent to the respondents. Under these circumstances, we quash aforestated observations of respondent No. 1 and remand the case to him for making such proper enquiry as may be necessary for determining the entitlement of the petitioner in respect of the shop in question. The respondent No. 1 shall pass necessary orders after hearing the parties concerned and if necessary even after recording evidence of the parties. The petition stands disposed of in the above terms with no order as to costs. M.Y.H./A-606/K Case remanded.