P L D 1956 (W (PLP)

YAQUB ALI, J.

‑This is a petition under section 223‑A of the Government of India Act 1935 for issue of an appro priate writ to restrain the Deputy Rehabilitation Commissioner, Lyallpur, from ejecting Chaudhary Khadim Mohy‑ud‑Din (Petitioner) from a bungalow situated on Samundri Road, Lyallpur. The petitioner is a refugee from Ferozepur, and as result of Partition has abandoned considerable agricultural and residential property at that place which is valued, in the petition before us, at Rs.2,80,

000. On his migration to Pakistan, the petitioner settled in Lyallpur and was allotted the bungalow in question on 9th of September 1947. This bungalow is situated near the bus‑stand of the Punjab Govern ment Road Transport Service and is required by the Punjab Road Transport Board in connection with the scheme for nationalization of transport services in the Province. The Board obtained the sanction of the Ministry of Refugees and Rehabilitation, Government of Pakistan, for the acquisition of this bungalow in 1952 and certain steps have since then been taken under the Land Acquisition Act for its acquisition. On 7th of October 1955, the Deputy Rehabilitation Commis sioner, Lyallpur, issued a notice of ejectment to the petitioner from this bungalow purporting to be in exercise of powers delegated to him under section 8 (2) (b) of the Pakistan Rehabilitation Ordinance XIX of 1948. The only ground mentioned in this notice was that the occupant will be provided alternative accommodation in Lyallpur. Under section 8 (2) (b) of the said Ordinance, the Deputy Reha bilitation Commissioner is authorised to eject summarily an occupant of evacuee property on the grounds that (i) he has been found to be in unauthorised possession of evacuee property, (8E) he has failed to observe the conditions of allotment, or (iii) has been considered to be an unsuitable person to hold the property allotted to him, Since none of the above‑mentioned conditions applied to the facts of this case, the allottee, on 15th of October 1955, filed the present application, under section 223‑A for issue of an appropriate writ to restrain the rehabilitation authority from ejecting him. During the pendency of this petition, the Deputy Rehabilitation. Commissioner, Layallpur, has, on 21st of October 1955, issued another notice to the petitioner for his ejectment on the ground that he has been considered to be an unsuitable person to hold the property allotted to him. On the back of this notice, the reason given for his ejectment is that the bungalow in the occupation of the petitioner has been acquired for the Punjab Road Transport Board and the petitioner has been allotted the bungalow previously occupied by the Principal, Khalsa College, Lyallpur as alternative accommodation. In view of this notice, the petitioner applied for joining, the Punjab Road Transport Board as a party to this petition and a similar application was also made by the Board. The Punjab Road Transport Board has filed a written statement in which it is, inter alia, stated that on an applica tion made by it, the Central Government authorised the Provincial Government to acquire the bungalow in the occupation of the petitioner and the latter has issued notifi cations under sections 4 and 6 of the Land Acquisition Act for this purpose. On the instructions of the Central Govern ment, and in consequence of the inquiries made by the Collector, it was decided to provide alternative accommoda tion to the petitioner, and the Deputy Rehabilitation Com missioner, Lyallpur, has been moved by the Provincial Government it this behalf. The proceedings under the Land Acquisition Act for the acquisition of this bungalow were still continuing. These averments in the written state ment were supplemented at the hearing by Mr. S. M. Jilam, Legal Adviser of the Punjab Road Transport Board, who stated from the bar that the two notices for the ejectment of the petitioner were issued at the instance of the Central and the Provincial Governments. Since the ground on which the petitioner was sought to be ejected by the Deputy Rehabilitation Commissioner, Lyallpur, was not warranted by the provisions of section 8 (2) (b) of the Pakistan Rehabilitation Ordi nance XIX of 1948, we called upon the learned counsel for the Punjab Road Transport Board to show cause why this petition should not be allowed and an appropriate writ issued to the rehabilitation authorities restraining them from ejecting the petitioner. The learned counsel contended that in so far as this bungalow was required ‑for a public purpose, the petitioner had become an unsuitable person within the meaning of section 8 (2) (b) of the said Ordinance. It is obvious that the unsuitability of an allottee must be determined with reference to his personal qualities and not with reference to the object for which the property allotted to him is required by the Rehabilitation Department. The submission made by the learned counsel was so devoid of force on this point that he eventually abandoned it and conceded that he could not defend the two notices issued by the Deputy Rehabilitation Commissioner, Lyallpur, on this ground. The learned counsel nevertheless contended that this petition was liable to be dismissed on the following grounds: (i) The Central and Provincial Governments were necessary parties to this petition, because the Deputy Rehabilitation Commissioner, Lyallpur, in ordering ejectment of the petitioner was merely implementing the orders passed by the said Governments; (ii) the orders passed by the Deputy Rehabilitation Commis sioner, Lyallpur, for the ejectment of the petitioner, being executive in nature, could not be set aside or interfered with by this Court in exercise of its powers under section 223‑A of the Government of India Act, 1935, (iii) the Rehabilitation Commissioner (General), Punjab, has, by virtue of powers conferred on him under section 14 subsection (4) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, prescribed a condition that the Rehabilitation Commissioner or the Deputy Rehabilitation Commissioner may cancel any allotment when the premises are needed for a public purpose and (iv) the petitioner has an appropriate remedy by way of an appeal against the orders of ejectment which pre cludes him from invoking the extraordinary jurisdiction of this Court to issue a writ. Having carefully scrutinised these submissions, we have found no force in any one of them. The mere fact that the Deputy Rehabilitation Commissioner, Lyallpur has passed the orders for the ejectment of the petitioner the instance of the Provincial or the Central Government does not render it incumbent upon the petitioner to implead the said Governments as patties to this petition. Under law, it is the Deputy Rehabilitation Commissioner, who can order ejectment of an allottee or occupant of evacuee property and not the Central and Provincial Governments. The proper party to the present petition is, therefore, the Deputy Rehabilitation Commissioner, Lyallpur, and not the aforementioned Governments. As regards the second contention, the learned counsels has not been able to cite before us any authority that the jurisdiction of this Court to issue writs, under section 223‑A of the Govern ment of India Act 1935, is confined to only judicial orders. In support of the contention that the Deputy Rehabilitation Commissioner, Lyallpur was authorised to cancel any allotment of evacuee property, which was required for public purposes, the learned counsel drew our attention to Appendix V of the Manual of Instructions issued in 1949 by the Rehabilitation Department. This appendix prescribes a form in which orders of allotments of shops and houses should be made by the Deputy Rehabilitation Commissioners. One of the conditions of allotment provided in this form is that the Deputy Rehabili tation Commissioner will have inherent right to cancel any allotment when the "premises are needed for a public purpose. Under subsection (4) of section 14 of the Pakistan (Adminis tration of Evacuee Property) Ordinance XV of 194.9, the Custodian of Evacuee Property is authorised to determine the terms and conditions on which evacuee property, whether allotted before or after the commencement of that Ordinance, may be held, and the Custodian may revise or amend such terms or conditions. By virtue of clause (r) of section 20 (2) of the said Ordinance, the Custodian has delegated this power to the Rehabilitation Commissioner (General), Punjab, and the learned counsel maintained that the aforementioned condition of allotment, prescribed in Appendix V of the Manual of Instructions issued by the Rehabilitation Department, amounted to determination of a condition for holding allotment of evacuee properties under subsection (4) of section 14 men tioned above. No such notification or order made by the Rehabilitation Commissioner (General) Punjab has been brought to our notice whereby the allottees of evacuee pro perties in this Province shall be deemed to hold their allotments subject to that condition. The form of allotment prescribed in Appendix V mentioned above does not itself purport to have been made in exercise of powers under subsection (4) of section 14 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949. The instructions contained in this Appendix were issued in 1949; whereas the allotment in favour of the petitioner was made in September 1947. It is, therefore, difficult to understand how an order of allotment made in 1947 shall be deemed to include a condition of allot ment, which was prescribed, for the first time, in 1949. So far as the last contention is concerned, the learned counsel' has himself stated that the Deputy Rehabilitation Commissioner, Layallpur, has issued notices for the ejectment of the petitioner at the instance of the Central and Provincial Governments. In view of this, we do not consider it a fit case in which the petitioner should be compelled to pursue, in the first instance, his ordinary remedy before the rehabilitation authorities against the order of his ejectment which has been passed at the highest level by the executive authorities of the two Governments. We, therefore, allow this petition and direct the issue of a writ of mandamus to the Deputy Rehabilitation Commissioner, Lyallpur, restraining him from ejecting the petitioner from the bungalow in question in pursuance of the two notices issued by him on 7th and 21st October 1955. A. H. Petition allowed.