P L D 1957 (W (PLP)

WAHIDUDDIN, J.--‑The property in dispute is owned by Messrs. Murlimal Santram & Co. The same was leased out to the Sind Government under an agreement of lease dated 26th May 1945, and since then it was in occupation of the Sind Government. According to the statement made at 'the Bar, buildings under the control of Sind Government are managed by a Housing Committee consisting of important Government Officials of the various Departments. On 22' December 1955, the bungalow in question was allotted by the Secretary of the Committee and the Executive Engineer, Karachi, Buildings Division. West Pakistan Government to the Petitioner Messrs. Murlimal Santram & Co. are evacuees and, therefore, the said bungalow was treated as evacuee property and allotted to respondent No. 3 on 6th of October 1955. The matter was agitated before the Rehabilitation Authorities, and the Custodian by his order dated 14th December 1955, confirmed the allotment in favour of respondent

3. The circumstances under which the allotment was made in favour of respondent 3 are worth considering : It appears that the Sind Government was using this property for one of its departments, known as "Soil Classification Office". As the Province of Sind was amalgamated with the other Provinces and formed into One‑Unit, this particular depart ment was also wound up and its records were to be transferred 'to some other place. Respondent 3 had probably some con nection with the Revenue Department of the Sind Government, and taking advantage of the shifting of the office of the Sind Government approached the Sind Revenue Minister Pir Ali Muhammad Rashdi and pursuaded him to hand over its pos session to the Rehabilitation Authorities on the condition that the property is allotted to respondent

3. This fact was brought to the notice of the Rehabilitation Department. The matter was referred by the Additional Rehabilitation Commissioner to the Revenue Commissioner of Sind, and it was confirmed that the Sind Government was about to vacate the premises in question. Thereafter the Rehabilitation Authorities allotted the premises in question to respondent

3. The petitioner is a Medical Officer and is in the service of the West Pakistan Government and is Medical Officer Incharge of the West Pakistan Government Medical Stores Depot. He came to know of the allotment order in favour of respondent 3 on or about 27th January 1956, when a notice for ejectment by the Additional Custodian Judicial was served upon him. He approached the Additional Custodian and also the Custodian to withdraw the order of allotment and ejectment but by order dated 14th February 1956 his application was dismissed by the Custodian of Evacuee Property. He then made an application under section 18 of the Administration of Evacuee Property Ordinance for a declaration that the tenancy rights of the property in dispute were not evacuee property and that it cannot be allotted to respondent

3. This application was dismissed on 15th February 1956 by the Deputy Custodian, Judicial, Evacuee Property, Karachi. The important point for consideration in this case is whether the tenancy rights of the property in dispute are evacuee property or, at any time, became evacuee property in view of the correspondence that passed between the' Rehabilitation Authorities and the Revenue Department of the Sind Government. It is an admitted fact that the property in dispute was leased out to the Sind Government in the year 1945 and, therefore, the tenancy rights were created in favour of the Sind Government, before 1st March 1947. As such, the tenancy rights created in 1945 cannot be considered to be evacuee property and, therefore, the Rehabilitation Authorities or for the matter of that the Custodian of Evacuee Property under the prevalent aw, had no right or authority to allot it to any other person. It is, however, urged by the counsel of the Rehabilitation Department and also by Mr. Riaz Ahmad counsel for respondent 1 that the Bind Government had surrendered their tenancy rights and, therefore, the property in dispute became available for allotment under 'the Rehabilitation Law. We have carefully examined the contention of the learned counsel for the respondents and are not prepared to agree with them. The property in dispute was managed by the Sind Government through the Housing Committee consisting of several officials. In fact, the property so far as its management was concerned, 'was looked after by the P. W. Department. So far as the allotment and its use was concerned, it was to be made or done through the Housing Committee. The tenancy rights never vested in the Revenue Minister of the Sind Government. The property was allotted for the use of the Soil Classification Office, and if they wanted to shift this particular office to some other place, and to vacate the premises, then it was their duty to inform the P. W. Department and the Housing Committee of the Sind Government. An intimation by the Revenue Depart ment that the Sind Government is intending to vacate the premises cannot, in our opinion, be considered to be a surrender of the tenancy rights in favour of the landlord. Under section 111 of the Transfer of Property Act there must either be an express or an implied surrender. Express surrender means a surrender by mutual consent and in writing between the contracting parties Implied surrender means surrender of the property by handing over possession or by doing an act whereby it can be established that the lessee has vacated the premises with a view to hand over possession to the landlord. These necessary ingredients are lacking in the present case. On the contrary, it appears that immediately the bungalow in question was vacated by the Soil Classification Office, the Housing Committee allotted it to the petitioner as one of its servants. The affidavit of the Secretary of the Housing Committee, Mr. Zahir Ahmad Vahidy is very clear on this aspect of the case. In fact, there is a telegram of the Council of Administration for West Pakistan dated 6th April 1955, whereby it was directed "that pending the formation of West Pakistan Government, no Provincial Government shall allot, distribute, sell, lease or otherwise dispose of any Crown land, Government Buildings and other Government assets". Even the Government of Sind by circular No. S. 13/30‑P‑3/54 (iii) dated 19th May 1955, informed all departments that accom modation whether for residential or office use which is in possession of Government employees should on vacation be handed over to the Executive Engineer, Karachi Buildings Division and Secretary, Housing Committee, Karachi and not disposed of in any other way. In view of these express directions by the Sind Govern ment and the Council of Administration of the West Pakistan Government, it is abundantly clear that the action of the Revenue Minister of the Sind Government and the Revenue Commissioner of Sind was illegal and not in any way operative. It will thus be clear that neither in law nor in fact, the Sind Government or its successor the West Pakistan Government, ever surrendered the tenancy rights of the property in dispute to the Rehabilitation Authorities or to the Custodian of Evacuee Property. The possession of the property in dispute always remained with the Sind Government or with its successor the West Pakistan Government and in law the tenancy of the property in dispute did not come to aril end. We are therefore oaf the view that the order of the Rehabilitation Authorities allotting the property in dispute to respondent 3, is illegal, and void. The order of the Custodian and the Deputy Custodian also confirming the allotment in favour of respondent 3 is also illegal and void. The result is that we allow the petition and issue a direction to the respondents not to interfere with the possession of the petitioner with regard to the property in dispute. The respondents are further directed to restore possession of that part of the bungalow which has been taken over from the petitioner. The respondents to bear the costs of this petition. A. H. Petition allowed.