P L D 1958 (W (PLP)

Date of hearing : 3‑10‑

58. The petitioner alleges that he was carrying on business in the shop in question along with its allottee, one Shaukat Ali. After Shaukat Ali gave up the possession of the shop, the petitioner and respondents Nos. 2 and 3 applied for its allotment. The Rehabilitation authorities allotted one‑fourth of the shop each to respondents Nos. 2 and 3, and rejected the petitioner's application for allotment altogether. The petitioner filed a writ petition (Writ Petition No. 1067 of 1957) on the 17th of September 1957, challenging the order of the Rehabilitation Commissioner rejecting his claim to allotment. This writ petition was rejected by Shabir Ahmad, J., on the 7th March 1958. The petitioner has now filed this petition and wishes his case to be reconsidered on grounds which he had not taken in the earlier petition. There seems to be a general tendency amongst petitioners to move this Court under Article 170 of the Constitution a second, or even a third, time after the dismissal of their original petition. It is high time that it is clearly understood that such a course is not only impermissible but highly objectionable, as it leads to wholly unnecessary waste of this Court's time. The jurisdiction under Article 170 is discretionary and extraordinary. Even in the first instance it can be exercised only when a clear and strong case is made out. A second application, therefore, relating to the same subject‑matter or question can, if at all be entertained only in most exceptional circumstances. The petitioner has in this petition taken as many as seven new grounds. When asked as to which of these grounds he could not have taken in his earlier petition, learned counsel was able to point out only one, namely, that his first writ petition was dismissed only a few days before the Displaced Persons Act came into force and, therefore, he had no opportunity to claim the benefit of the provisions of section 29 of that Act. Learned counsel contends that as the petitioner is a claimant, he could not, in view of the provisions of subsection (2) of section 29 of the Displaced Persons Act, (herein after referred to as "the Act") be ejected at all. The contention is untenable because subsection (2) gives no protection against dispossession or ejectment. On the contrary, it excepts certain cases to which the general protection given by subsection (1) would be available. Section 29 runs as follows:‑ 29 (1) Notwithstanding anything contained in any other law for the time being in force, no order of ejectment passed on or after the seventeenth day of February 1958, by any authority in respect of any house or shop shall be given effect to, and where, in pursuance of any such order, any person has been dispossessed of any such house or shop, he shall be deemed to be in possession thereof. (2) Nothing in subsection (1) shall apply to an order of ejectment passed under this Act, or to any person dispossessed in pursuance of any such order, or to any person (other than a claimant) dispossessed in pursuance or as a result of an order passed before the aforesaid date by the Rehabilitation Commissioner or by the Custodian." It will be noticed that the first subsection provides : (1) that no order of ejectment passed on or after the 17th of February 1958, by any authority shall be given effect. to, and, therefore, no one shall be ejected or dispossessed in consequence of such an order, and (2) that when an ejectment has taken place under 'such an order, the person ejected shall be deemed to be still in possession and, therefore, entitled to be put into possession again. This provision was apparently necessary .to protect the persons who had been ejected between the 17th of February 1958, and the date when the Act came into force. The words " has been dispossessed" clearly, mean that the dispossession has taken place before the date on which the Act was enforced. Had it been the intention to provide f or the cases of dispossession after that date the provision would have been wholly unnecessary and redundant, because such cases are already covered by the first provision which prohibits the carrying out of the ejectment orders passed' on or after the 17th of February 1958. It is clear that subsection (2) does not provide against dispossession or ejectment at all. On the other hand, it was intended to exclude certain cases from the operation of the general rule laid down in the preceding subsection. It provides : (1) that an ejectment order passed under the Act shall have effect in spite of the provisions contained in subsection (1). In other words, only ejectment orders passed under any law other than the Act are to be ineffective. This provision was necessary in order to prevent the provisions of subsection (1) defeating the whole object of the Act. (2) The second provision, namely "or to any person dispossessed in pursuance of any such order" was inserted only by way of abundant precaution and is in fact included in the preced ing provision. (3) The last provision of this subsection is unhappily worded and often leads to confusion in understanding its real intention and object. Omitting the first two provisions just considered, the subsection would run :‑ "Nothing in subsection (1) shall apply . . . . . . to any person (other than a claimant) dispossessed in pursuance or as a result of an order passed before the aforesaid date by the'; Rehabilitation Commissioner or by the Custodian." Obviously the intention could not have been to save the orders of the highest authorities passed before the 17th of February 1958, because the first subsection has no effect upon the ejectment orders before that date even if they be of the officers of the lowest jurisdiction. The key to the understanding this provision is to be found in the words " dispossessed in pursuance . . . . of an order " words which also occur in the second provision of the first subsection. This provision relates to, and provides an exception to, the second provision of the first subsection, which, as has already been explained, is applicable only to the period between the 17th of February and the date when section 29 of the Act came into force. Thus the provision means that if a person has already been dispossessed between these dates, he shall not "be deemed to be in possession' under subsection (1), if the order of ejectment was that of either the Rehabilitation Commissioner of the Custodian. In other words, the operation of the second provision in subsection (1) has been confined to the orders of the inferior authorities. The words in brackets, " (other than a claimant) ", have the, effect of saving dispossession of a claimant within that period even if it took place in pursuance of an order of the Rehabilitation Commissioner or the Custodian. In the present case, it has not been contended by the petitioner's learned counsel that the petitioner was dispossessed after the 17th of February 1958. The Additional Rehabilitation Commissioner, while setting aside allotment in the petitioner's favour, had ordered the shop to be sealed as far back as the 1st of October 1956. There is nothing to show that this order was not carried out. The Rehabilitation Commissioner rejected the petitioner's revision petition against the Additional Rehabilitation Commissioner's order on 26‑8‑

57. It has not been alleged that the petitioner, even if he was in possession on that date, was not ejected until the 17th of February 1958. Thus the case is not covered by the first subsection of the 29th section and the petitioner is, therefore, not entitled to the benefit of that section. In fact subsection (1) has not been relied upon by the petitioner. The notion that simply because the petitioner is a claimant (of which allegation there is no proof on the record) he was not liable to ejectment even before the 17th February 1958, on account of the provision in the second subsection is entirely misconceived. A claimant cannot be ejected only after the date except in pursuance of an order under the Act. He could have been ejected before that date. The petition is rejected. A.H. Petition rejected,