P L D 1960 (W (PLP)

3. Dr. Swaleh went in revision against that order and the revision petition was decided by the Additional Custodian (Judicial) Evacuee Property on the 30th of April 1956. He revised the order passed in appeal and modified the allotment order made by the Collector in favour of Dr. Saiduddin Swaleh as follows :‑ "Accordingly the revision is allowed to this extent only that the top floor of the disputed house and the garage in the North‑Western corner of the disputed house are allotted to the applicant. He will close all windows and doors on the top floor which intrude on the privacy of the courtyard on the first floor. He will be entitled to use only that stair‑case which leads from the top floor to the lane on the western side through a godown or room on the ground floor." It is noteworthy that he did not allot the remaining accommo dation to anybody. He held that the allotment made in favour of Dr. Saiduddin Swaleh was valid and subsisting ; that Muhammad Ismail Ursani had no legal right to claim the house as it was allotted to his brother Muhammad Ishaq only ; and that Muhammad Ishaq had‑ "lost his legal status because he never appealed against the order of allotment in favour of the applicant (Dr. Saiduddin Swaleh) or the order of ejectment within the period prescribed by law." He observed that though the appeal was allowed by the Additional Rehabilitation Commissioner, this fact alone was not sufficient to support the contention that delay in presenting it had been condoned because the Additional Rehabilitation Commissioner had not applied his mind to this question and there was no application to condone delay on record.

4. Muhammad Ishaq, the allottee named in the allotment order made by the Rent Controller and his brother Muhammad Ismail whose petition to the Chief Minister of Sind was accepted by the Additional Rehabilitation Commissioner as an appeal, have now made this writ petition against the order of the Additional Custodian. Their learned counsel, Mr. Khalid Ishaque, has questioned the validity of that order on the ground that revision petition was barred by time; that the order of allotment made in favour of Dr. Saiduddin Swalleh by the Collector as a Rehabilitation Authority was without jurisdiction inasmuch as a valid order of allotment in favour of the petitioners and members, of `four or five other families' was in existence at the time when the Collector issued the new order of allotment without notice to the petitioners ; that ejectment proceedings were ordered by the Collector in spite of the cancellation of the order of ejectment by the Deputy Custodian and that they were commenced without first giving a notice of those proceedings under the Rehabilitation Rules.

5. Respondent No. 1, Dr. Saiduddin Swaleh, has filed a counter‑affidavit in reply to the petition; respondent No. 2, the Additional Custodian (Judicial) Evacuee Property has also opposed the petition through his counsel without submitting a counter‑affidavit. Dr. Saiduddin Swalleh has alleged in para graph 3 of his counter‑affidavit that the original order of allotment in favour of Muhammad Ishaq, petitioner No. 2, was never produced in any proceeding by petitioner No.

2. Muhammad Ismail, and that a copy that was produced before the Additional Rehabilitation Commissioner did not contain the woids "four or five other families". In paragraph 4 of the counter‑affidavit, he has alleged that the allotment order was "not valid within the meaning of the Rehabilitation Act" and did not confer any right on the petitioner, Muhammad Ismail. In paragraph 5 he has raised the contention that Muhammad Ishaq was not a party to the proceedings of appeal and revision before the Additional Rehabilitation Commissioner and the Additional Custodian (Judicial), and that, therefore, he had no right to file the present writ petition. He has further contended in paragraphs 7 and 8 of his counter‑affidavit that the allotment order in his favour by the Collector was not invalid for want of notice because the petitioners had been given adequate opportunity of disputing it during the hearings of the appeal and the revision application.

6. The last question raised by the respondent was referred by us to a Full Bench. In view of the opinion given by the Full Bench, our conclusion is that the petitioners were given adequate opportunity to present their point of view against the .allotment order made in favour of Dr. Saiduddin Swaleh. It seems clear that Muhammad Ismail represented not only himself but also his brother in presenting the appeal, and thus in revision. The appeal preferred by petitioner No. 2 was accepted by the Additional Rehabilitation Commissioner and the order passed by the Additional Custodian (Judicial) in revision indicates that a thorough hearing was granted to the parties. Mr. Khalid Ishaque tried to support his contention that an omission made at the initial stage by failure to give an opportunity to be heard could not be made up by subsequent opportunities of being heard however thorough they might be, by citing to us observations made in a text book and a few judgments. His proposition was that the Full Bench had not considered that a tribunal became coram non judice by not complying with principles of natural justice as much as by failing to comply with a statutory provision that prescribed a notice. This is not correct. The Full Bench has dealt with the situation that arises from an omission to afford adequate opportunity to be heard in violation of the natural principles of justice. No view to the contrary precisely on the question answered by the Full Bench has been brought to our notice. Counsel referred to Laws and Orders by C. K. Alien, page 276 ; Badrul Jalil v. Wali Muhammad (P L D 1956 S C (Pak.) 259) ; Muhammad Tufail v. Abdul Ghafoor (P L D 1958 S C (Pak.) 201) ; Abdul Ghafoor v. Rehabilitation Commissioner (P L D 1958 Lah. 48) ; R. v. Newmarket Assessment Committee ((1945) 2 A E R 371 at p. 374) and Secretary of State v. Mask & Co. (AIR 1940 P C 105 at p. 110). We need not distinguish and discuss them as the proposi tion which they were meant to support was itself founded on incorrect appreciation of the opinion of the Full Bench. Our conclusion is that the opportunity that was afforded to the petitioners in appeal and in revision was adequate and that they can have no grievance that they were not fully heard.

7. We have also satisfied ourselves by seeing the original allotment order, which is on the record of these proceedings, that it was issued in favour of the men named in it as well as "four or five other families". If copies of that order were not correct, nevertheless the original order is not questionable on that ground. Counsel for the respondent brought to our notice that a certified copy of the order taken from this Court also did not contain the words "four or five other families". If it is so, then it was a mistake of the copyist, because these words do appear in the original order which the respondents have not attacked as forged. We attach no importance, for the present purposes, to the allegation made by respondent No. 1 that correct copies of the order were not produced in previous proceedings, or that the respondent was granted an incorrect copy by the Copying Department of this Court.

8. Counsel for the respondents laid stress on their objection that the allotment order was not issued under the Evacuee and Rehabilitation Laws and that an order passed by the Rent Controller could confer no right on the allottees as to an evacuee property. He relied on M. N. Baker v. Federation of Pakistan (P L D 1956 Kar. 217) and Yousaf Ali v. Muhammad Aslam Zia (P L D 1958 S C (Pak.) 104) in support of his proposition: This objection was raised for the first time by respondent No. 1 in 1957 in reply to the present writ petition after about nine years of the date of the allotment order. In the meantime the Custodian's Department treated it as having been validly issued. The petitioners' allegation made in para graph 5 of the writ petition, that the Deputy Custodian had fixed the rent has not been denied by the respondents. Moreover, the Additional Rehabilitation Commissioner regarded the allottees in his appellate order dated the 1 I th of February 1956 as entitled to the rights of an allottee, and the Additional Custodian also treated Muhammad Ishaq in his revisional order dated the 30th of April 1956, as an allottee in virtue of the allotment order, though he held that subsequently he lost his legal status by not appealing against the second allotment order. This shows mat both Departments had adopted that order as their own. The respondent apparently knew this and did not question the order as ineffective before those authorities. We consider that it is now too late to raise this question : for had it been raised earlier, it is possible that further evidence would have been forthcoming to show that the Rehabilitation Authorities by treating the Rent Controller's order as valid had in effect made an allotment.

10. As the law stands today, the objection is not valid in view of the change brought about in law by subsection (2) of section 18 of the Pakistan (Administration of Evacuee Property) Act, 1957. It is as follows :‑ "Every allotment of evacuee property made between the first day of March 1947, and the commencement of this Act, shall be deemed to have been made under subsection (1)." The corresponding provision in the Pakistan (Administration of Evacuee Property) Ordinance, 1949 in section 14 (2) was as follows :‑ "Every allotment of evacuee property made for the purposes aforesaid between the first day of March 1947, and the com mencement of this Ordinance, shall be deemed to have been made under subsection (1)". . The words "for the purposes aforesaid" have been omitted and, therefore, the objection that the allotment was not made for purposes of the Rehabilitation Laws is no longer valid. Moreover, the date from which the subsection takes effect extends the period t to a time when the Evacuee and Rehabilitation Laws were not in existence. The intention of making the change in the law. therefore, obviously was to validate all allotments made during that period including those made by the Rent Controllers.

11. The objection that one of the petitioners was not a party to the proceedings of appeal and revision and that therefore he could not be a party to these proceedings was not pressed. This objection was meant indirectly to support the view of the Additional Custodian expressed in his order that Muhammad Ishaque, petitioner No. 1, lost his legal status by not preferring an appeal against the second allotment order. Counsel for the respondents expressed their inability to support that view. No objection had been taken in appeal before the Additional Rehabilitation Commissioner that all allottees should have joined or that the appellant did not have the locus standi to prefer the appeal. The objections that were raised in revision before the Additional Custodian were raised without realising that Muhammad Ismail was an allottee as a brother of Muhammad Ishaque, under the blanket‑allotment made in favour of several families, and that the rights of Muhammad Ishaque could not be adjudicated in revision if he was not considered to be a party to those proceedings. The view of the Additional Custodian that Muhammad Ishaque lost his status was the main ground for accepting the revision and has vitiated his order. It was erroneous because it was founded on the presumption that the second allotment order impliedly cancelled the previous allot ment order. There is no provision in the Evacuee and Rehabilita tion Laws authorising the cancellation of a subsisting allotment by making a new allotment. Moreover, an allottee cannot be ejected except when he fails to observe the terms and conditions of the allotment made to him or he is found in the opinion of the Rehabilitation Authority to be an unsuitable person to hold the l, property allotted to him. If during the subsistence of one allotment order another allotment order is issued then it is merely provisional and must remain floating in the air to settle down in the place of the former allotment when the former allottee is ejected. Its concurrent existence would not invalidate the former allotment order and therefore the former allottees need not have appealed against the second allotment order.

12. Counsel for Dr. Swaleh contended that the order pronounced in appeal was a nullity because the appeal was barred by time, as was held in revision. ' He conceded that the appellate authority had the power and discretion to condone delay but contended that the discretion was not exercised as the question of limitation was not brought to the notice of the appellate authority by the parties to those proceedings. The question whether the relevant facts and circumstances did constitute delay or sufficient cause for condoning the alleged delay, is one of law and we think that we can take cognizance of F them. We have ascertained the circumstances from counsel for the parties and from the record of the Rehabilitation Department. Counsel for the parties agreed that the Collector had issued the allotment order against which the appeal was preferred without notice to the previous allottees and that the ejectment proceedings also commenced without notice to them. We find from the Rehabilitation record that Ursani obtained the stay order or on the same day on which the allottees were threatened with eviction. Another application was made by Muhammad Ismail because his information was that ejectment proceedings had commenced again. There is no mention of the second allotment order in it, and as stated before, there was no need to appeal from it. The second application was treated as an appeal. It was an appeal against the further illegal attempt to forcibly eject the occupants in which the Additional Rehabilitation Commissioner gave relief by cancelling the second allotment order. Relief could be given to the appellant without cancelling it simply by setting aside the Collectors order of ejectment on the ground that no notice required by statutory rules had been given and that the Deputy Custodian's order of ejectment that was issued owing to non‑payment of rent had been cancelled by the Deputy Custodian himself on payment of rent. In these circumstances the appeal could not be said to be barred by time.

13. We have decided the objections raised by the respon dents first as they were the main hurdles in the way of the petitioners. The effect of our findings is that the allotment made by the Rent Controller was valid and subsisting and that) Muhammad Ishaque's rights created by that order were not lost by reason of his omission to go in appeal against the new order of allotment.

14. If the above findings are correct then for the rest, the order of the Additional Custodian passed in revision is innocuous. It has restored and modified the allotment order issued by the Collector but neither its existence nor the modification is detri mental to the petitioner ; nor has it been questioned by the respondents. Counsel for the petitioners has however questioned the validity of the entire order of the Additional Custodian on the ground that the petition on which the order was made was barred by time. He argued that a certified copy of the appellate order, from which revision was preferred, was despatched by post and that the period of limitation was to be computed from the date of posting. He relied on Ghulla Singh v. Sohan Singh and others (A I R 1922 Lah. 219) and T. E. Ebrahim Saheb v. The Regional Transport Authority (A 1 R 1951 Mad. 491) in support of his contention. The con tention cannot be upheld unless it is found that the post office was the agent of the petitioner who went in revision. We have looked up the original record and found that the order was despatched by post because it was not announced to the parties on the date of hearing. This circumstance could not make the post office the agent of the petitioner. Our conclusion is that the revision petition was not barred by time and that the order of the Additional Custodian is not questionable on that ground.

15. In conclusion the writ petition is accepted to the extent that the ejectment proceedings being based upon the Deputy Custodian's cancelled order of ejectment, are quashed. Order accordingly. A. H. Order accordingly.