P L D 1957 (W (PLP)

LARI, J.

The facts leading to this writ petition may be summarised as under: The plot in question was allotted to respondent No. 1 on 8th July 1949, by the then Collector and Deputy Rehabili?tation Commissioner, Karachi by means of an order which runs thus: " . . . . . . plot of land No. 538/4 in Garden East Quarter, measuring 1333/1/3 square yards belonging to ?Evacuee' Atmaram Hashmatrai Jaisinghani is hereby leased out to Dr, Miss Zubeda Peer Muhammad for a period of three years. Final terns and conditions of lease will be determined later in consultation with the Custodian of Evacuee Property." On 19th November 1949, the applicants made an applica?tion to the Deputy Custodian, Karachi in which they alleged that the plot was lying vacant and the same may be allotted to them and that they were ready to pay the lease money that is fixed. No order disposing of this application has been put. in in evidence. On 21st November 1949, the Custodian Department accepted Rs. 16-14-0 from the applicants and issued the following receipt: "Received from M. S. Malik rupees (in words sixteen and annas fourteen only) Rs. 16-14-0." Sometime later the applicants submitted a site plan for building a bungalow on the plot but the same was not sanctioned by the Municipal Corporation, as they did not furnish proof of ownership or allotment. The applicants however continued with the construction without the necessary sanction and ultimately put in an application before the Rehabilitation Officer on 11th April 1950 in which they stated: "My clients have no accommodation of any kind whatso?ever. They have been compelled to use the above plot for their residence and as such they have constructed a house, plan of which attached herewith for their personal use. The plans are submitted to the Karachi Municipal Corpo?ration for their approval but the approval is not given as my clients are neither the owners nor the allottees." It was prayed in the above application that a suitable order may be passed to enable them to get possession from the Corporation and be free from prosecution or any order of demolition by Corporation or Government. The respondent No. 1 having come to know of this encroachment on the plot put in an application on 22nd February 1951, before the Rehabilitation Commissioner to eject the Petitioner. The relevant portions of this application are as follows "I have to inform you that an abandoned open plot of land No, 538/4 in Garden East Quarter, measuring 1333/1/3 square yards has been leased out to me, vide. Collector and Deputy Rehabilitation Commissioner, Karachi, under his Order No. Reh/1912/A. R. C. dated the 8th July 1949. I find that an unauthorised person Mr. Malik has forcibly occupied the plot and constructed a bungalow thereon. The illegal action of Mr. Malik has already been proved and the Karachi Municipal Corporation has cut off the water connection whereas the City Deputy Collector, Karachi, has forwarded the case to the Public Prosecutor, for ejecting Mr. Malik. I request that you will kindly issue necessary order directing the ejectment of the illegal occupant Mr. Malik. I am prepared to pay the cost of the bungalow which Mr. Malik has constructed on the plot provided the amount is determined by an arbitrator appointed by you in this behalf." The Rehabilitation Board decided this application on 15th March 1951 and ordered that the plot along with the building be handed over to Miss Zubeda Peer Muhammad. She will however have to pay the cost of the building as determined by the P. W. D. The applicants applied for review of the order and the same was rejected by an order dated 24th May 1951. The applicants then filed a review petition to the Central Government under section 13 (a) of Ordinance XIX of 1948. This was disposed of by an order dated 5/7th September 1951. The revising authority dismissed the petition with the following operative order: "The result is that the revision petition to dispute the allotment order is rejected. The order passed on the review side by the Rehabilitation Board, in so far as it relates to the allotment of the plot, is maintained. The Board's order that the house is to be delivered to the opposite party on payment of the amount of compensation fixed by the Board is set aside. The Rehabilitation Authority shall order removal of the house and clearance of the site within a reasonable period of time to be specified for it. But the petitioner will have the option either to remove the structure within the time allowed or in order to save himself from loss, to adjust terms with the opposite party for the price of the structure within the same period of time. In case the petitioner fails to comply with the aforesaid order, the site shall be cleared without affording any further latitude to the petitioner." A few days later on 19th September 1951 the petitioners applied to the Custodian for their appointments as Managers under section 20 of Ordinance XV of 1949 of the plot and creation of charge on the said plot. They also filed a civil suit on 25th October 1951. This suit was ultimately with?drawn on 23rd March 1956. The petitioner under section 20 of Ordinance XV of 1949 came up before Mr. Justice Muhammad Bakhsh the then Custodian who rejected the same primarily on the ground that order of the Central Government dated 5th September 1951 confirming the allotment in favour of Respondent No. 1 was final and could not be questioned in view of section 13-A of Ordinance XIX of 1948. The Custodian however also went into facts and held adversely to the applicants. The applicants applied for review of this order which was ultimately rejected on 5th February 1955. In between some other developments took place. The Ministry of Refugee and Rehabilitation, Govern?ment of Pakistan, came to know that the applicants wanted to demolish the building rather than let it pass in possession of Respondent No. J and directed the Chief Commissioner to acquire the bungalow constructed on the plot by the applicants. The Chief Commissioner in the first instance requisitioned the bungalow under section 9 of Ordinance XIX of 1948 by means of an order dated 11th November 1952 and took over actual possession. Subsequently the Chief Commissioner acquired the said bungalow by means of an order dated 4th February 1953. The compensation was assessed at Rs. 41,356 by the Superintending Engineer, Administration Circle, Pakistan P. W. D. who had been called by the Chief Commissioner to assess compensation payable to the applicants. The Chief Commissioner allotted the bungalow to Munshi, J. on 13th Apri11953, and subse?quent to its being vacated by Munshi, J. its possession was delivered to Respondent No. 1 on 22nd April 1955. This writ petition was filed on 21st December 1955, praying that the orders of the Rehabilitation Board dated 15th March 1951, 24th May 1951 and of the Government of Pakistan dated 5/7th September 1951, rejecting review application directed against the orders dated 15th March 1951 and 24th May 1951 and the orders of the Chief Commissioner dated 11th November 1952 and 4th February 1953, requisitioning and subsequently acquiring the bungalow as well as the order of the Custodian dated 12th February 1952 and 5th February 1955 be quashed. The final order in relation to allotment in favour of Miss Zubeda is that of tae Government of Pakistan passed in revisional jurisdiction on 5/7th September 1951, while the final order of the Chief Commissioner acquiring the bungalow is dated 4th February 1953 and the question before us is whether a writ of certiorari quashing these orders should issue or not. A preliminary point was raised by the learned counsel for the respondents that the writ petition was a belated one and should be dismissed on that ground alone. This objection had not been taken in the counter affidavit and was raised after we had heard the counsel for the petitioners at great length. There is some force in this preliminary A objection but considering that the objection had been heard on merits we have decided not to go into this objection and dispose of the petition on merits. The orders relating to confirmation of the allotment passed by the Rehabilitation Board and the Central Govern?ment have been assailed on various grounds and it is desirable to deal with them. The first contention of the learned counsel for the petitioners is that there was no legal and complete order of allotment in favour of the respondent No. 1 and consequently the Rehabilitation Board and the Central Government were not legally justified in maintaining the same. The allotment had been made on 8th July 1949, when Ordinance XVIII of 1948 was in force, and it is argued that section 8 (1) of this Ordinance was not complied with. Section 8 (1) says: "Whenever any Rehabilitation Authority requires any evacuee property for the purposes of the Pakistan (Economic Rehabilitation) Ordinance. 1948, or of the, social and economic rehabilitation of refugees under any law for the time being in force, the Authority shall send a written intimation to that effect to the appropriate Custodian, containing as complete a description of the property as possible, and the property shall then be taken over by the Authority on such terms and conditions as may be agreed upon by the Custodian and that Authority". It is alleged that the above procedure was not followed. It may be so but merely a failure to comply with the provisions of section 8 (1) would not affect the validity of the lease for the following sub-clause, namely, 8 (2) says: "A person to whom a lease of evacuee property is granted by any Rehabilitation Authority without com?pliance with the procedure laid down in subsection (1) shall be deemed to be a lessee holding on terms and conditions agreed upon by the Custodian and the Rehabilitation Authority concerned, and the said Authority shall be deemed to be a duly authorised, agent of the Custodian for the purpose". There can be nothing clearer than the language of this section. To make an allotment valid it was not necessary that the requirements of section 8 (1) should be complied) with. It was nest argued that the terms and conditions of lease had not been determined and therefore the lease was invalid. It is nowhere laid down that the terms and conditions of the lease shall be simultaneously with the grant of the lease. It is open to the Custodian to determine the terms and conditions subsequently and when once those terms and conditions are laid down the lease shall be deemed to be on the terms and conditions determined by the Custodian. The grant of lease was definite and absolute. Only the terms remained to be decided and the law did not require that the conditions must be determined before the lease could be acted upon. The position is made clear by section 14, of Ordinance XV of 1949 which replaced Ordinance XVIII of 1948 on 5th October 1949. Sections 14 (2), (3), (4) and (5) are relevant. They run as follows: (2) "Every allotment of evacuee property made for the purposes aforesaid between the first day of March 1947, and the commencement of this Ordinance, shall be deemed to have been made under subsection (1). (3) Where any evacuee property has been allotted under this section the Rehabilitation authority making the allotment shall, as soon as may be, furnish to the Custodian such description of the property allotted and such parti?culars of the person to whom it has been allotted as may be prescribed. (4) The terms and conditions on which evacuee property, whether allotted before or after the commencement of this Ordinance, may be held shall be determined by the Custodian and the Custodian may revise or amend such terms or conditions. (5) Every person to whom evacuee property has been allotted shall be deemed to hold the property on the terms and conditions mentioned in subsection (4)". It is put beyond doubt by subsection 5 that terms and conditions may be determined subsequent to the allotment and once they are so determined the allotment shall be deemed to be held on those terms. There is no escape therefore from the conclusion that a lease or allotment contemplated by Ordinance XVIII of 1948 and subsequently by Ordinance XV of 1949 would come into operation as soon as an order granting lease or making an allotment came into existence. The terms and conditions are not a necessary part of the E order and may come into existence subsequently when they are so determined by the Custodian. Absence of deter?mination cannot possibly affect the validity of the allotment order made in favour of respondent No.

1. It was next argued on behalf of the petitioners that they were lessees of the Custodian and consequently the allotment could not be maintained. Mr. Kadiruddin's case was that the receipt dated 21st November 1949, created a tenancy in favour of the petitioners and that being so the allotment could not be operated. Attention was drawn to section 16 (b) of Ordinance XVIII of 1948. The section itself however negatives the contention of the petitioners. It lays down that subject to the requirements of any Rehabilitation Authority under section 8 of the Ordinance the Custodian could grant lease in the prescribed form for any period. The power of the Custodian was subject to the powers of the Rehabilitation Authority under section

8. Admittedly allotment order had been made on 8th July 1949 and the alleged tenancy did not come into existence earlier than 21st November 1949 when the receipt is said to have been issued. On 21st November 1949, the Custodian could not exercise his power to grant a lease because that power was subject to requirements of section 8 of the Ordinance. The allotment having been made earlier the Custodian could not exercise his powers, if he did at all, to grant a lease in respect of a property which was subject to a lease already granted by the Rehabilitation Authority. Section 16 of Ordinance XVIII of 1948 however does not apply because this Ordinance had been replaced on 15th October by Ordinance XV of 1949. Section 20 of the new Ordinance which takes the place of section 16 of the Old Ordinance is a bit different. It says: "(1) The Custodian may take such measures as he considers necessary or expedient for the purposes of administrating, preserving and managing any evacuee property which has vested in him and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto. (2) Without prejudice to the generality of the provisions contained in subsection (1), the Custodian may- (a) carry on the business or undertaking of the evacuee ; (b) appoint a manager for the property of the evacuee or for carrying on any business or undertaking of the evacuee and authorise the manager to exercise any of the powers of the Custodian under this section ; (j) raise on the security of the evacuee property such loans as may be necessary ; (m) sell any evacuee property, notwithstanding anything contained in any law or agreement to the contrary relating thereto: Provided that the Custodian shall not under this clause or the next succeeding clause sell any immovable evacuee property or any business or undertaking which is evacuee property, except with the previous approval of the Central Government". This section 20 is further preceded by section 14 which provided that the Rehabilitation Authority may for the pur?poses of the rehabilitation of refugees or social and economic rehabilitation in Pakistan allot any evacuee property to any person. This Ordinance recognised two authorities in relation to evacuee property one the Rehabilitation Authority and the second the Custodian. By section 14 the Rehabilitation Authority was granted the right to allot properties to any person section 20 conferred powers on the Custodian to take such action as may be necessary or expedient for the purposes of administering, preserving and managing any evacuee property. This Ordinance is further to be read with Pakistan Rehabilitation Ordinance XIX of 1948. This Ordinance provided detailed machinery comprising the original and appellate authorities competent to make allotments. The contention of the learned counsel for the petitioners that mere issue of receipt by some officer of the Custodian Department conferred tenancy right, cannot be accepted for more than one reason. The powers of the Custodian under section 20 have to be read with powers of Rehabilitation Authority under section 14 of the same Ordinance. Allotment is the concern of Rehabilitation Authority and once a property has been allotted it cannot be dealt with by the Custodian under section 20 of the Ordinance. His only powers are to determine the terms and conditions of the allotment. We say this because the powers of the two authorities have to be read in such a manner as not to create a conflict of authority. The land in question having been allotted on 8th July 1949, it was not open to the Custodian to create a tenancy right therein by virtue of section 20 of the Ordinance. In fact the Custodian did not create any lease in favour of the petitioners. An application was made for allotment on 19th November 1949, but no order has been filed to show that the prayer was accepted. It is argued that acceptance of money by way of rent itself has created a tenancy right in favour of the petitioners. This cannot be so. It is well established that payment of rent cannot create tenancy unless it is accompanied by circum?stances to show that the owner or the person authorised to create tenancy did in fact intend to create tenancy in favour of the person claiming the same. Here we have no order of the Custodian. Creation of lease would necessarily require determination of the period as well as the amount of rent. Who fixed the rent and when has not been shown by the petitioners. The Custodian Department is charged with the duty of realising rent from persons who were in possession of evacuee property from before 31st March 1947. When an official accepted any money towards rent he did not apply his mind to the consideration whether the person offering the rent was in fact a tenant or not. The Department merely accepted what was offered. By accepting the Department did not intend to create any right which did not already exist. That right can only be created by an officer of the Custodian Department authorised to do so. Powers under section 20 were not conferred on each and every officer of the Custodian Department. The rules framed under Ordinance XVIII of 1948 continued even after 15th October 1949 by virtue of proviso to section 48 of Ordinance XV. The relevant rules framed under Ordinance XVIII of 1948 laid down that the Custodian could by general or special order: "(1) Confer jurisdiction consistent with the provisions of Ordinance upon any Additional, Deputy or Assistant Custodian to deal with matters arising under the Ordinance in any area ; (2) prescribe the duties and powers consistent with the provisions of the Ordinance and these rules of each Additional, Deputy and Assistant Custodians ; (4) Except as may be specifically provided in these Rules, delegate any of his powers under the Ordinance or these Rules to an Additional, Deputy or Assistant Custodian with or without condition." The above would show that an Assistant and Deputy Custodian had only those powers of the Custodian which were conferred upon him by a general or special order. It is not shown that the Assistant Custodian or Deputy Custodian who accepted the rent on 21st November 1949, had the authority to exercise the powers conferred on the Custodian under section 20 of the Ordinance XV of 1949. When the above Rules were substituted by fresh Rules notified on 25th August 1950, similar Rules were adopted. Rule 5 (1) said: "5 (1) that subject to the provisions of the Ordinance that the Central Government may make any general or special order, provide for the allocation or distribution of, work to be performed by the Custodian an d Additional Deputy and Assistant Custodians. (2) that subject to such orders as the Central Govern?ment may make Additional. Deputy and Assistant Custodians and other officers or persons to whom the Custodian delegates any of his functions under the Ordinance shall discharge under the general superintendence and control of the Custodian such duties as may be assigned to them and within such areas as may be specified by the Custodian." The Rules framed under the Old Ordinance as well as the present Ordinance clearly show that the Deputy and Assistant Custodians could perform only such duties and powers as were assigned to them by the Custodian or by the Central Government. In the absence of any such delegation or authorisation only the Custodian could be deemed to exercise the powers conferred under section

20. Section 25 (r) of Ordinance XV of 1949 also says that the Custodian could delegate by general or special order all or any of his functions under this Ordinance to such officer and person as he thinks fit. When we asked the learned counsel for the petitioners to show whether under the distribution of work in force in November 1949, the Deputy Custodian who accepted the rent was authorised (to exercise) the powers conferred on the Custodian under section 20 of the Ordinance he failed to do so. During the above discussion we have assumed without deciding that the Custodian has power under section 20 of the Ordinance to lease out any property that he liked. After careful examination we have come to the conclusion that mere acceptance of rent by Deputy or Assistant Custodian could not create tenancy for firstly it is not shown that he was authorised to exercise powers conferred t on the Custodian under section 20 of the Ordinance, secondly the land had already been allotted and consequently could not be a subject-matter of a subsequent lease and thirdly acceptance of rent by itself without any intention to create tenancy right would not create tenancy. It was next argued that the Rehabilitation Board and the Central Government could not confirm the lease in favour of respondent No. 1 as she had been guilty of laches and was stopped from alleging her rights by the principles of acquiescence and estoppel. There is no allegation much less evidence that the bungalow had been constructed to the knowledge of respondent No.

1. In the absence of such knowledge no question of estoppel can possibly arise. It was contended that it was the duty of the respondent No. 1 to visit the plot and see whether constructions were being made. We do not find any warrant for such a duty on the part of respondent No.

1. She would consider it necessary to go to the spot when she thought of putting up construction and not otherwise. No other argument was put forward to assail the final order of the Central Govern?ment in regard to allotment in favour of respondent No.

1. The order of the Central Government is final by virtue of section 13 (b) of Ordinance XIX of 1948 and cannot be questioned in any judicial proceedings in any Court. To make out a case for a writ of certiorari the petitioners had to show either lack or excess of jurisdiction or mistake of law apparent on the face of the record. We do not find that the orders relating to allotment are vitiated in any way. Next is the order of the Custodian dated 7th September 1952, rejecting the application of the petitioners under section 20 of the Ordinance XV of 1949. Once it is held that the order of the Central Government dated 5/7th September 1951, is legal the Custodian could not but reject the petition. In view of this the order of the Custodian does not suffer from any infirmity. Lastly, we have to deal with the orders of the Chief Commissioner dated 11th November 1952, requisitioning the premises and order dated 4th February 1953, acquiring the property. These two orders were assailed on the ground that no notice was required by section 9 had been served on the petitioners. On perusal of the record it appeared that due notices had been duly served on the petitioners and the learned counsel for the petitioners had to withdraw his objections to the validity of these two orders. He however argued that proceedings in regard to assessment by com?pensation were gone into without notice to him. The section itself does not require that notice of actual proceed?ings in connection with assessment of compensation shall be given but it has been held by this Court that proceedings affecting any right of property shall be vitiated if notice thereof is not given to the person affected. The Central Government authorised the Superintending Engineer, Administration Circle, Pak. P. W. D. to assess the amount of compensation payable to the petitioners. The determina?tion of the amount without offering any opportunity to the petitioners to place their case before him is repugnant to the principles of natural justice. We have come to the conclusion that the order assessing the amount of compensa?tion should be set aside and the respondents Nos. 3 and 51 be directed to determine the amount of compensation after H hearing the petitioners. It would be open to the respondents to authorise any person to determine the amount but the person so appointed must hear the petitioners before reaching any conclusions. The result is that the petition fails except to this extent that a writ of mandamus be issued to respondents Nos. 3 and 5 to see that the amount of compensation is determined after notice to and offering an opportunity to the petitioners to place their case. The petitioners shall pay the costs of respondents No. 1, 2, 4 and

5. Respondent No. 3 shall bear his own costs. A.H.???????????????????????????????????????????????????????????????????????????????????????? Petition allowed in part.