P L D 1957 (W (PLP)

(6) The Additional Rehabilitation Commissioner then allotted this land to the petitioner until the settlement of his claim. Pertinent portion of this order dated 28th December 1953, reads as follows: "

4. Under letter No. D. 1748/52 R. 11 dated 23rd August 1953, the Ministry of R. and R. has recommended that pending Mr. Sultan Ahmad's claim, his possession of the agricultural land may not be disturbed so that he may get a fair chance of allotment of this land on permanent basis under Resettlement Scheme.

5. As the Scheme is still under preparation the lease of the aforesaid land is provisionally allotted to Mr. Sultan Ahmad Japanwala until settlement of his claim under the Re-settlement Scheme which will be taken up and con sidered for purpose of adjustment". (7) The allotment of this land &to the petitioner was again considered by the Additional Rehabilitation Commissioner in 1955 and he passed his order on 28th March 1955, by which he renewed the petitioner's allotment until his claim for compensation was finally settled. This is an important order and it must be reproduced here: "An application for renewal of allotment of evacuee plot Survey No. 41 Deh Drigh Tappo Malir presented by Mr. Mohsin Siddiqi Advocate who appears for Mr. Sultan Ahmad Japanwalla allot tee. The reasons given are that the order of allotment mentions that the plot is pro visionally allotted to the applicant until settlement of his claim under the resettlement scheme and secondly that it would be equitable that the allotment is extended up to the date of the final settlement of the claim. I am satisfied that the prayer is reasonable and the absence of applica tion for the renewal of allotment was merely a technical omission and that too under the impression that the order sanctioning the allotment meant that the allotment was to subsist under the re-settlement scheme. As however the formal order of allotment was for a subsequent period of one year I hereby renew the allotment from the date of expiry of one year till the settlement of allottee claim by the Claim Commissioner or the Depart ment or until such time that the Rehabilitation Authority or its successor terminates it. A formal order of allotments provisional and temporary will be issued in these terms in favour of Mr. Sultan Ahmad Japanwala." (8) In spite of this order of the Additional Rehabilitation Commissioner, the Assistant Rehabilitation Commissioner issued the following order on 27th June 1955 "I am directed to inform you that the Additional Rehabilitation Commissioner, Karachi has been pleased to renew this office allotment order No. 15759/A. R. C. dated 28th December 1953, issued in your favour, for a period of one year on a purely provisional and temporary basis.

2. It may please be noted that the allotment can be termi nated by the Rehabilitation Authorities at any time without assigning any reasons and you will be required to surrender vacant possession of the land without claiming any compensation, right, title or interest in the land". It is clear that this order was not in terms of the order of the Additional Rehabilitation Commissioner dated 28th March 1955. (9) Then comes the important stage in the history of this case. In 1955 the petitioner applied for permission to convert one acre of this land into "Sikni". On 25th July 1955 the Custodian said that he had no objection to this. On 10th September 1955 the Chief Commissioner sanctioned the con version of one acre of this land into "Sikni" on payment of the difference of "Malkano" On 8th August 1956, the Collector of Karachi informed the Petitioner that the con version of this land into "Sikni" had been sanctioned after consulting the Rehabilitation Department. (10) After this conversion was sanctioned, the petitioner spent Ks. 23,672-12-0 on the said land. He has submitted the details of this expenditure (Annexure "G"). Among other things, be spent Rs.5,000 on digging a well into this land thereby the utility of the land was ostensibly increased.

11. Suddenly on 26th May 1956, the petitioner received the following order from the Rehabilitation Commissioner:- "Please refer to is office letter No. Reh./1001/ARC of 1955 dated 27th June 1955 by which your temporary allotment of the agricultural land referred to above was extended for one year on a purely provisional temporary basis. The said allotment will therefore expire on 27th June 1955 and will not thereafter be renewed. You are therefore directed to deliver back possession of the land in question to this department on 27th June 1956." It is this order of the Rehabilitation Commissioner, which has been challenged by the Petitioner in this writ petition on various grounds, which I will discuss hereafter. The respondent has filed a counter affidavit whereby he contests the claim of the petitioner to remain in possession of this land. He said the land was allotted to the Petitioner provisionally and temporarily for agricultural purposes and the petitioner had no right to convert any portion of it into "Sikni" without the approval of the Rehabilitation Depart ment. The position taken by the respondent is that these allotment orders are nothing but licences granted to the allottees to remain in possession as long as these licences are in force. While the Advocate for the petitioner was arguing his case, it became abundantly clear that no notice had been issued to the petitioner before the Rehabilitation Commis sioner passed the impugned order. On that ground alone the petitioner was entitled to the relief sought by him, and then at that stage the learned Advocate for the respondent got up and made a statement that he was instructed to say that no order of ejectment had yet been issued, and before any such action was taken notice under section 8 (2) (b) of the Rehabilitation Ordinance would be given to the Petitioner. In my opinion this is a thin edge of the wedge and is a mere excuse to have the matter postponed. I am clear in my mind that the petitioner's case is not at all covered by section 8 (2) (b) of the Rehabilitation Ordinance. Under this provision of law the Rehabilitation Authority can summarily eject a person in possession of an evacuee property in the following four cases only, viz:- (a) If the possession has not been authorised by the Rehabilitation Authority, in other words, if the person in possession is a trespasser; (b) if the allottee fails to observe any of the conditions of allotment ; (c) if the allottee has subsequently been found to be an unsuitable person to hold the property so allotted. (d) if the property in question loses the character of an evacuee property. The petitioner's case cannot by any stretch of imagination be brought under these provisions. Apart from this, the order of the Rehabilitation Commis sioner says "You are therefore directed to deliver back possession of the land in question to this department on 27th June 1955". This is a clear order and direction which has been passed without notice to the petitioner. The next step after this order in the case of non-compliance will be to eject the petitioner summarily. On this ground alone the peti tioner is entitled to the relief sought by him because this order violates the principles of natural justice. This order of the Rehabilitation Commissioner is further vitiated by the following facts and circumstances. (a) The Additional Rehabilitation Commissioner directed on 28th March 1955 that the land be allotted to the petitioner until the final settlement of his claim and not for one year only. The order issued by the. Assistant Rehabilitation Commissioner on 27th June 1955 allotting the land to the petitioner for one year only was clearly in excess of the directions given to him by the Additional Rehabilita tion Commissioner. This order of the Assistant Rehabilita tion Commissioner being arbitrary and improper has no force and effect. (b) The conditions for allotment of agricultural land have to be prescribed by the Central Government. The conditions imposed by the Assistant Rehabilitation Commissioner on the petitioner have neither been prescribed nor approved of by the Government or the Custodian. (c) The Government, in their letter of 23rd August 1952, directed that the petitioners possession should not be disturbed until the final settlement of the scheme. This direction of the Government has been violated by the Assistant Rehabilitation Commissioner and the respondent. (d) The respondent has also lost sight of the fact that the petitioner has a charge on this property for Rs.5,000 cost and interest, and that he was put in possession by the Hindu owners who had given him possession. This was an additional ground for the respondent not to disturb the possession of the petitioner in this manner. (e) It was with the consent of the Rehabilitation Depart ment and the Custodian that the Petitioner was allowed by the Chief Commissioner to convert one acre of this land into "Sikni". This is what has been stated by the Collector of Karachi in his letter to the Petitioner on 8th August 1956. In spite of this it is most amazing to find an affidavit from the Respondent's side stating that the petitioner had no right to get any portion of the land converted into "Sikni" without the approval of the Rehabilitation Department. It appears this department does not remember things which it ought to remember, and that this department can go to any length in order to support their ill-considered orders. The conversion was done after full consultation with the Rehabilitation Department and therefore the respondent should have made some provision for compensating the petitioner who had spent a huge sum of rupees twenty-three thousand odd after conversion. The respondent by paying no attention this aspect of the case has violated the principles of natural E justice on the one hand and the principle underlying Article 15 of the Constitution on the other, When the Rehabilitation Authority raised no objection to the conversion of land into "Sikni", they must be presumed to have known that the petitioner would naturally spend big amounts over it. This has been completely lost sight of. In view of all these reasons, I would allow the petition and direct the issue of a writ of certiorari quashing the order of the Rehabilitation Commissioner dated 26th May 1956. 1 would further issue a direction to the respon dent not to disturb the possession of the petitioner until the final settlement of his claim. The respondent to bear the costs of the petitioner. MUHAMMAD BAKHSH AND MUNSHI, JJ.-Since there is difference of opinion, papers may be put up before the Senior judge for nominating third judge for disposal of this matter. CONSTANTINE, J.-(16th April, 1957)-I am concerned in this difference of opinion matter principally with three orders ; the first was passed by the Additional Rehabilitation Commissioner on 28th March 1955, stating, "As however the formal order of allotment was for a subsequent period of one year, I hereby renew the allotment from the date of expiry of one year till the settlement of allottee claim by the Claim Commissioner or the Department or until such time that the Rehabilitation Authority or its successor terminates it. A formal order of allotment provisional and temporary will be issued in these terms in favour of Mr. Sultan Ahmad Japanwala." The second order is that signed by the Assistant Rehabili tation Commissioner on 27th June 1955, this states :- "I am directed to inform you that the Additional Rehabilitation Commissioner, Karachi, has been pleased to renew this office allotment order No. 15759/A. R. C., dated 28th December 1953, issued in your favour, for a period of one year on a purely provisional and temporary basis. It may please be noted that the allotment can be termi nated by the Rehabilitation Authorities at any time without assigning any reasons and you will be required to surrender vacant possession of the land without claiming any compen sation, right, title or interest in the land." The third order is that of the Rehabilitation Commissioner dated 26th May 1956 in which he refers to the second order, and states that the allotment will, therefore, expire on 27th June 1955 and will not thereafter be renewed, and directs the petitioner to deliver back possession of the land in question to his department on 27th June 1956. My learned brethren differed upon this matter, but the Issues have been narrowed, in that Mr. Velliani, on behalf of the Rehabilitation Commissioner, has said that if I am of opinion that the Order applicable to this case is that of the Additional Rehabilitation Commissioner, passed on 28th March 1955, then the Rehabilitation Commissioner will be prepared to give the petitioner a chance of showing cause against the cancellation or curtailment of the period of his allotment and Mr. Sharifuddin, on behalf of the petitioner, had stated that he would be satisfied by such a direction. It appears to me that in this case the Additional Rehabili tation Commissioner had clearly said that the period of the allotment would be in the second alternative until such time that the Rehabilitation Authority, or its successor, terminates it, and it appears to me that the second 'order issued for the Additional Rehabilitation Commissioner must have been issued under a mistaken notion of the extent of the first order. I therefore direct that the Rehabilitation Commissioner do afford an opportunity to the petitioner of showing cause against the cancellation or curtailment of the period of his allotment. There will be no costs of this petition. A. H. Order accordingly.