P L D 1964 (W (PLP)

(a) That the property in question is not trust property as it was merely a Janj Ghar (premises for marriage parties) and as such could not be considered to be trust property as per definition of the term and that no other authority except the Chief Settlement Commissioner or the respondent Board could declare the property to be trust property within the meaning of the Scheme of the Act. No such declaration having been made, the property could not be deemed ‑to be trust property. (b) That the respondents are not vested with any power to seal the property or summarily eject the tenants or occupants of the trust properties except in due process of law, and since no power has been exercised by the Chief Settlement Commis sioner under section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, the impugned orders were without lawful authority. (c) That the action was mala fide for the reason that the petitioners application for desealing had not been considered; they had been condemned unheard and that the orders dated the 11th of March 1964, had been obtained as against the peti tioners by the officials of the District Evacuee Trust Board by supplying false information to the authorities concerned.

3. In Writ Petition No. 397 of 1964 it has been averred that the petitioner Taj Din is running a general merchants business in Shop No. SE‑II‑31 S‑18, Naulakha Bazar, Mool Chand Trust, Lahore, which premises had been initially allotted to his father Ghulam Husain, a refugee from Amritsar, who expired some times in 1958. Petitioner No. 2‑Nawazish Ali entered into an arrangement with Petitioner No. 1 to run the business in partnership and this arrangement was regularised by means of a writing in 1962. It is further maintained that the petitioners have continued in possession and peaceful enjoyment of the Property and have been paying rent of the said premises regularly as and when demanded. With the setting up of the Evacuee Property Trust Board, a notice is said to have been served on petitioner No. 2 on the 10th of February 1964 by the respondent asking him to appear before the Additional District Magistrate on the 13th of February 1964, with a view to going into the legality of his possession of the said premises. This notice was complied with but on the 5th of March 1964, another notice was served on petitioner No. 2 to produce further evidence in support of his possession. This direction was again honoured and proof of possession of the petitioners was placed before the relevant authority, but to their dismay on the 24th of March 1964, the premises in question were sealed by an Inspector of the respondent with the help of the police. The order of sealing the premises and threatened ejectment of the petitioners was objected to in this Court on the ground that the respondent is not armed with any authority under the law to eject its tenants or persons in possession of the premises by force, without having recourse to the law of the land.

4. We have heard, the learned counsel for the parties in both the writ petitions which have certain common factors. The main, question arising for adjudication in both these writ petitions is whether the Evacuee Property Trust Board, constituted under the Scheme promulgated by the Chief Settlement Commissioner with the approval of the Central Government under section 16‑A of Act XXVIII of 1958, or the District Evacuee Trust Committees created under the said Scheme, has any legal sanction to order the summary ejectment of its tenants or persons in possession or occupation of evacuee trust properties. The learned counsel for the respondents has relied on section 16‑A of Act XXVIII of 1958 and para. 18 of the Scheme promulgated by the Chief Settlement Commissioner under the said section with the authority of the Central Government, which paragraph reads as under: --‑ "The general supervision of the property shall vest in the Board which shall do all things considered by it to be necessary, proper and expedient for the efficient maintenance, control, administration and disposal of such property, and for the application of the funds that may accrue there from to purposes hereinafter provided in the Scheme." The learned counsel contends that the respondents are empowered to do all things considered necessary, proper and expedient for the efficient maintenance, control, administration and disposal of such property, and, therefore, they are well within their rights to remove persons from the premises who are not desirable or whom they do not want to continue to be in possession whether authorised or un-authorised. In other words, the argument is that under paragraph 18 the maintenance, control and administra tion includes the power to summarily eject the tenants or persons in possession of such premises without having recourse to due process of law. This argument, when pursued to its logic conclusion, leads to absurd propositions and we decline to accept this interpretation of paragraph

18. The Evacuee Trust Board or the District Committees functioning under it have not been clothed with any power to take the law in their own hands and to evict its tenants in this summary manner by using force or throwing them out or sealing the premises so as to refuse them enjoyment and use of the premises. It has been maintained that the respondent Board has the Chief Settlement Commissioner as one of its members, which statutory functionary is empowered under section 29 of the Act to eject persons in possession of evacuee property, whether acquired or not by the Provincial Government under the notification issued on the 21st of August 1959, under section 3 of Act XXVIII of 1958. But this is exactly has not been done by the Chief Settlement Commissioner in these cases. If the Evacuee Trust Board or the Committees feel that certain premises should be got vacated, they can definitely have recourse to the powers of the Chief Settlement Commissioner, who may be moved in the matter, and then action taken in accordance with law, but this does not mean that for the mere fact that the Chief Settlement Commissioner is a member of the Board, the powers of the Chief Settlement Commissioner under section 29 can be exercised by the Board for summary ejectment of the persons in possession of Evacuee Trust Properties. The learned counsel for the respondents has reined on a Division Bench judgment by S. A. Mahmood and Abdul Hamid, JJ., in Writ Petition No. 517 of 1964; which order was passed in limine, wherein the learned Judges, after referring to para. 18 of the Scheme, have observed:

‑ We have held in similar cases that the power to maintain, control and administer includes the power to eject a person in possession. The District Evacuee Trust Committee can manage the property under paragraph 22 of the Scheme according to the instructions as laid down by the Board or the Divisional Committee from time to time. The Board can manage the properties through Divisional Committees under paragraph 21 of the Scheme and may delegate any of its functions and powers under the Scheme for the management of such properties. On the other hand, we have been referred to a Single Bench Judg ment of Mr. Justice S. A. Mahmood in Writ Petition No. 823 of 1961 decided on the 7th of June 1963, which the power to eject a person in possession by the Evacuee Trust Board or the District Evacuee Trust Committees has been considered in detail and it has been held that paragraphs 18 and 22 of the Scheme do not empower the said authorities to eject persons in possession in a manner other than in due process of law and we feel that the observations made by the Division Bench in Writ Petition No. 517 of 1964, of which Mr. Justice S. A. Mahmood was also a member, have to be interpreted in the light of the Single Bench judgment by the Learned Judge in Writ Petition No. 823 of 1961. We say so with great respect, because although the writ petition No. 517 of 1964 was dismissed in limine by the Division Bench after having taken into account the peculiar facts of that case, it has not been laid down that power to eject person in possession can be used in disregard of the law of the land. We are, therefore, of the view that the conflict in the two judgments is more apparent than real and, therefore, the view taken in the Single Bench decision in Writ Petition No. 823 of 1961 is the correct exposition of the law on the subject.

5. It has been argued by the learned counsel for the res pondents that since the Chief Settlement Commissioner can be approached by the respondent Committee, he (the Chief Settle ment Commissioner) can take action under section 29 of Act XXVIII of 1958 to eject the petitioners, the effect of the writ can be nullified in that manner by the subsequent unilateral action of the respondents, and in such circumstances it is not proper to issue a writ. In support of this proposition, the learned, counsel relies on Sh. Rehmatullah v. The Deputy Settlement Com missioner, Central `A' Karachi, and others (P L D 1963 S C 633) but we find that the ratio decidendi of that case is not applicable to the cases before us. Their Lordships of the Supreme Court in that case were considering the case of a person who was an allottee of a shop and had put in an `NCS' form for transfer of this property. His application had been rejected on the ground that the property had been acquired for the State Bank of Pakistan. His appeal before the Additional Settlement Commissioner failed and his revision petition before the Settlement and Rehabilitation Commissioner had also met the same fate. In the Supreme Court a writ of certiorari was asked for to quash the order of the Additional Settle ment and Rehabilitation Commissioner, coupled with a mandamus to the Settlement authorities to proceed on the petitioner's `NCS' form as required by law, and it was in this context that their Lordships of the Supreme Court held: "A non‑claimant displaced person has no vested rights in any property included in the compensation pool merely through being in possession of such property, though he may by virtue of section 9 set up a claim to transfer of such property to himself . . . . . . ." It was further held "In another view of the matter, it is clear that by Presidential Ordinance No. 2 of 1962, which added a second subsection to section 10 of the Displaced Persons Act, a marked change has been effected, namely, that whereas previously the authorities under the Displaced Persons Act were obliged to apply all property in the compensation pool for the payment of com pensation to claimants, and for relief to others, as provided by the Schedule and the Scheme, as from the date of the amending Ordinance, the Central Government was given power to transfer any property out of the compensation pool in the public interest. It is immaterial on what date such property came into the compensation pool, and therefore, if the view be taken that this property having once entered the compensa tion pool, cannot be dealt with otherwise than under the D. P. Act, it is open to the Central Government today to make an order under section 10 (2) of the D. P. Act, transferring the property to the State Bank of Pakistan, for it is clear beyond doubt that such a transfer would be in the public interest. The Court will not grant a writ to produce a certain effect when the law provides power to one of the parties affected by the writ, to nullify the Court's writ unilaterally and the circum stances enabling such action are found to be present."

6. It will be noticed that their Lordships of the Supreme Court while observing that the Court will not grant a writ to pro duce a certain effect when the law provides power to one of the parties affected by the writ, to nullify the Court's writ unila terally, further held that "and the circumstances enabling such c action are found to be present". We have, therefore, to see whether this condition mentioned in the concluding portion of the observation is available in the instant case. It cannot be presumed that if the respondents approach the Chief Settlement Commissioner, he will necessarily take action against the petitioners according to the dictates of the respondents because the Chief Settlement Commissioner as a creation of the statute has to function according to the provisions of the statute and no arbitrariness or perversity can be expected of him. Therefore, to say that circumstances enabling a unilateral action to nullify the Court's writ are present is something, which is in the realm of presumptuousness on the part of the respondents.

7. A striking example of issuance of writs by this Court, where it has been argued that the effect of the writs can be nulli fied by a later action of the respondent and, therefore, the writ should not be issued, will be found in cases of Government servants where writs are being issued by this Court when it is held that the constitutional protection guaranteed to the civil servants has been violated by the Government, Provincial or Central, although the said authorities are not precluded from taking action against the civil servant, after the issuance of the writ quashing the previous illegal order of dismissal or removal or that o reduction in rank, in accordance with law. The writs have no been refused simply for the reason that the effect of the writs can be nullified by a unilateral act of the employer because all that the Court says in such cases is that the action to be taken should be in accordance with law and not in any manner violation of the law of the country. Further, the Court in those cases also takes into consideration the fact that it is not necessary that if the employee is afforded a reasonable opportunity to show cause against the action proposed to be taken in regard to him, the punishing authority will come to the same conclusion which had been arrived at by it without hearing the employee and, therefore, it cannot be said that circumstances are present which will enable the employer to nullify the effect of the writ by a unilateral act of proceeding against the employee in accordance with law. Since in the instant case it is not claimed that the petitioners are immune from all law or they cannot be ejected even in due process of law and their only complaint is that their ejectment has been effected or is threatened in a manner not in accordance with due process of law, there cannot be any question of any 'circumstance being present which may enable the respondents to nullify the effect of the writ by any subsequent unilateral act.

8. We hold that the action of eviction of the petitioners should have been in accordance with law and not by taking the law in their own hands by the respondents. Illegal actions of the respondents are not to be perpetuated and this Court will not land its support to any action taken without lawful authority. The result, therefore, is that the orders passed by respondents on the 17th of December 1963 and the 11th of March 1964, with respect to the petitioners in Writ Petition No. 297 of 1964 are without lawful authority and are quashed. Similarly, we hold that the order dated the 24th of March 19,54, in Writ Petition No. 397 of 1964, is also without authority and the same is quashed. Both the writ petitions are accepted but there will be no order as to costs. S. Q. Petitions accepted.