P L D 1958 Supreme Court (Pak (PLP)

CORNELIUS, J.‑This appeal by special leave granted to the appellants, Hamidullah and Abdul Majid Asi, calls in question a direction issued by the High Court of West Pakistan, Lahore, in exercise of the power conferred by Article 170 of the Constitution. The case before the High Court related td an item of evacuee property situated in the town of Lahore, namely, the Capitol , Cinema, and by the order under appeal, it was directed that the "management of the petitioner should be continued" in respect of this Cinema. The petitioner before the High Court was Rai Khurshid Ahmad Khan, who is the first respondent in this appeal. The present appellants were not parties to the petition before the High Court, where the only respondents were the Rehabilitation Commissioner (General), West Pakistan, and the Secretary of the West Pakistan Industries Rehabilitation Board. One question, which has been raised before us is as to the locus standi of the present appellants to‑ institute and pursue the present appeal. The contention involves some consideration of the facts, and will be dealt with more fully later, but it may be stated at once that the grant of special leave by this Court in exercise of its power under Article 160 of the Constitution is made ex debito justitiae, and is not hedged about with any con siderations of a technical nature. Where the party seeking relief is an aggrieved party, and it appears that no other mode of relief is available to it in law, this Court has in the past exercised power under that Article to examine the case raised by such party. By the order of the High Court, injury has clearly been caused to the present appellants. They had gained the management of the Capitol Cinema for themselves, by making the highest bid at an auction held by the Rehabilitation Commissioner (General), (this being the means by which a "manager" for the property in question and other such properties is under the existing orders selected), and had paid in advance considerable sums of money as a condition of retention of the management. They have been prevented from exercising the right of management, and thereby gaining a profit for themselves by the order under appeal. It seems also that the appellants have no other means of gaining redress than by ‑way of an appeal from the order of the High Court. It may be added that the Rehabilitation Commissioner (General), West Pakistan, has sup ported the appeal in all respects. The statute governing the matters in dispute before the Court is the Pakistan (Administration of Evacuee Property) Ordinance, 1949, by S. 14 of which a Rehabilitation 'Authority may, for the purposes of the Rehabilitation of refugees, among other purposes, allot‑ any evacuee property to any person. The Capitol Cinema became available for allotment in the year 1954, and either in that year or in the following year, it was allotted to nine several persons, one of whom was Rai Khurshid Ahmad Khan. In accordance with the practice, an estimate was made of the probable annual income from the property, which was fixed at Rs. 43,000, and this sum was divided up among the nine allottees according to fixed percentages, that of Rai Khurshid Ahmad Khan being 21 per cent. Thus Rai Khurshid Ahmad Khan gained a right to receive out of the income of the property, a sum of approximately Rs. 9,000 per year. In order that a profit should be made, it was necessary that the Cinema should be operated. It should be mentioned that the projector and other machinery installed in the Cinema, as well (as) what has been 'described in the proceedings as the "furniture", were the private property of a person named Muhammad Sadiq, to whom sums were payable by the operator for the use of these articles by way of rent. Also it seems that repairs to the furniture were chargeable to Mr. Muhammad Sadiq. In July 1953, the Central Government had issued certain "terms and conditions" prescribed by that Government "in connection with the allotment of Industrial concerns", including cinemas. The power to prescribe is this respect appears to have been derived from S. 45‑A of the Ordinance, which gives general powers to the Central Government "for the purpose of regulating the administration of any evacuee property". The document in question is Annexure `B' presented along with the written statement of the Secretary of the West Pakistan Rehabilitation Board in the High Court, and paragraph 19 is relevant to the question of selection of a manager. The relevant portion of this paragraph is reproduced below:‑ "The Rehabilitation Commissioner shall have the authority to appoint at his 'discretion any of the co‑allottees as the manager of the factory/concern and all disputed cases o1 management of the factory shall be decided by the Rehabili tation Commissioner and his decision shall be final". It was apparently thought necessary to make it clear that by this term, no exclusive right to the managership should be construed to vest in the allottees, for in paragraph 22, the following provision was made, viz.:‑ "In suitable cases, the Rehabilitation Commissioner may appoint, if it is considered necessary in the interest of the efficient and smooth working of the factory, a paid manage to run the said factory. Such manager may be an outsider or from amongst the allottees." By the time when it became necessary .to select a manage for the Capitol Cinema, the system in vogue was to put up the right of managership to auction among the co‑allottees, and to give the management to the highest bidder. Accordingly, it September 1955 such an auction was held, which was confined to co‑allottees of the Capitol Cinema, and at this auction the highest bid offered was Rs. 1,17,000 by Rai Khurshid Ahmad Khan. This sum he undertook to pay to the Rehabilitation Department, in addition to rent and rehabilitation fee payable to the Department and the sums payable by way of rent to Mr. Muhammad Sadiq, in addition to which other substantial obligations were undertaken e.g., to pay compensation for all materials in the Cinema at the time of taking possession, to undertake all seasonal and other repairs to the building and the machinery, and to pay "arrears of repair charges carried Out by the previous allottee or allottees", as well as arrears of electricity and water bills etc. Clearly, the estimate of Rs. 43,000 prepared by the department at the time of the allotment was wholly unrealistic. Out of the sum which the successful bidder contracted to pay there was left a large balance after the fixed allowances of the original nine allottees had been paid, and this sutra was utilised by the Department under the powers, for the purposes of the aforesaid Ordinance, including allotment of allowances to other refugee claimants. Such an allowance of Rs. 200 per month was fixed to be paid out of the surplus income of the Capitol Cinema to the present appellants, and it was in this capacity that they were invited by the Rehabilitation Department to participate in the auction of the managership of this Cinema held in January 1958, where they made the highest bid of Rs. 1,44,000, and for a short time were given possession of this Cinema. That possession was lost in consequence of the order here under appeal. It was contended on behalf of the respondent, Rai Khurshid Ahmad Khan, that the appellants had no locus stand] to bid at the auction mentioned above, because they did not enjoy the same status and character of allottees such as belonged to Rai Khurshid Ahmad Khan and his eight co‑allottees at the original allotment. The point, as has been observed already, is a purely technical one. The expression] "allottee" is not a term of art in law, and for its proper construction reliance may properly be placed upon the practice' of the Rehabilitation Department to which the operation of the relevant law has been entrusted. This forms a sufficient basis for the conclusion that, so far as concerns the right to bid at the auction in question, by virtue of having a share in the surplus income of the Cinema, the appellants exercised that right as, persons entitled to it. They are, therefore, proper parties to any litigation instituted with the object, whether direct or subsidiary, of preventing them from exercising that right. It should be mentioned here that the reason for the auction of January 1958 was that the Rehabilitation Commissioner had decided that irk view of certain circumstances which will be detailed presently, the managership of Rai Khurshid Ahmad Khan should hot be continued after the 31st December 1957, but that the right should be re‑auctioned among the co‑allottees excluding Rai Khurshid Ahmad Khan. The latter immediately moved a petition, for the present writ in the High Court, but failed to obtain an order for interim stay of proceedings in the Rehabilitation Department, with the result that the auction was duly held. The appellants thus have a direct interest in the property in dispute, which has been injuriously affected by the order under appeal and they are, therefore, entitled to institute the appeal. The objection as to their locus standi is clearly without substance. Reverting now to the management of Rai Khurshid Ahmad Khan, it should be mentioned that by S. 20 of the aforeraid Ordinance, the power to "appoint a manager for carrying on any business or undertaking of the evacuee" vests in the Custodian, who is, however, empowered to make a delegation, and such a delegation was made in favour of the Rehabilitation Commis sioner (General), West Pakistan, as far back as October 1949. It is in recognition of this delegated authority that paragraph 19 of the Central Government's "terms and conditions" specifies the Rehabilitation Commissioner as the person competent to appoint a manager. As has been seen, that power is exercisable in the discretion of the Rehabilitation Commissioner and under the) general law, the power‑ of appointment in such circumstances includes a power of dismissal or removal. Again, it is undeniable that the power of appointment of a manager includes power to fix all the terms and conditions of the managership, which would include the duration of the managership. In the case of Rai Khurshid Ahmad Khan, when he gained the managership at the auction of September 1955, it was settled that he would retain a up to the 31st December 1956, at a monthly rate proportionate to an annual payment of Rs. 1,17,000 in addition to the other dues already mentioned. Towards the end of the year 1956, the question was discussed at high level in the Rehabilitation Department, as to whether there should not be a fresh auction of the managership of all cinemas, which were under the control of the Department. The final decisions are contained in a document, which is Annexure `C' attached to the written statement of the Rehabilitation Board. Although it was mentioned that re‑auction might produce a higher income, it was decided that action should be confined to greater severity in penalising of defaults in payment of "co‑allottees' shares and rent". It was decided that as to the past a defaulter would be one who "had defaulted even once during six months prior to the 31st December 1956", and for the future a person would be a defaulter if he had defaulted in payment "by a single day", and that all defaulters should be "debarred from the future management". Upon the removal of a defaulter there would be a re‑auction. As regards the determination of whether or not a managing allottee was in default, the provision made was as follows:‑ "The fact whether a particular act of a managing allottee could come under the category of `default' or not would be decided by the Deputy Rehabilitation Commissioner at his discretion". It was also expressly decided that where a managing allottee was not a defaulter there would be "no bidding or dislocation" and " their management should be extended beyond 31‑12‑19". Although these decisions were not expressed in legal form,' there can be no doubt that they were taken by the Rehabilitation Commissioner in exercise of his statutory powers, and were of a general nature applicable to all persons falling within the category of managing allottees of cinemas. It was stated before us that these decisions have been applied in the case of all cinemas generally. Therefore, although it might be thought that these decisions did not create any legal or vested right in any e managing allottee, yet, being of a general nature, applicable to all managing allottees, and having been reached in exercise of powers vested in the Rehabilitation Commissioner by statute, they constitute a law of which the application may be invoked by an affected person, at least on the basis of the constitutional provision that "all citizens are equal before law and are entitled to equal protection of law" (Article 5). In January 1957, the Rehabilitation Department decided that `Rai Khurshid Ahmad was a defaulter and they commenced action for his replacement as managing allottee, whereupon he moved the High Court and obtained a writ to prohibit the proposed action The following sentence in the order of the High Court under appeal provides an indication of the finding reached in the earlier case:‑ "The question, however, whether there was a default on the part of petitioner in paying off his co‑allottees has been decided in favour of the petitioner in the previous writ petition and should be regarded as concluded." In the present case, no question is raised of non‑payment of the co‑allottees' share, and the default which was laid at the door of Rai Khurshid Ahmad Khan at the end of the year 1957, was confined to the allegation of non‑payment of rent and rehabili tation fee in respect of the entire period of his management from September 1955 onwards. It should be mentioned in this connection that in December 1956, the Central Government had decided that allotments of evacuee industrial concerns, including cinemas, would be extended for a period of a year. Later, it was made clear that the; extension would cover arrangements for management as well. Later still on the 16th January 1957, the Central Government expressly declared that their earlier Press Notes of the 6th and 28th December 1956, extending allotments as well as managing arrangements, were not to be understood to mean that these arrangements were not subject to cancellation for breach of terms and conditions applicable thereto. Such an explanation was indeed hardly necessary, in view of the fact that by the terms and conditions which the Central Government had itself prescribed the power of appointment of managers and by clear inference the power of dismissal or removal or managers was to vest in the Rehabilitation Commissioner. This power was in fact derived from the delegation made by the Custodian as far back as 1949. However, in view of the writ issued by the High Court, the managership of Rai ‑Khurshid Ahmad Khan was allowed to continue for the year 1957. In the course of that year, in July, intimation was sent to Rai Khurshid Ahmad Khan, that the rent of the Cinema had been fixed at Rs. 1,150 per month. This had not been possible earlier for a number of reasons into which it is not necessary to enter. In October 1957, the amount due from Rai Khurshid Ahmad Khan on account of rent and rehabilitation fee was assessed by the Deputy Rehabilitation Commissioner at Rs. 32,

388. This was either communicated to Rai Khurshid Ahmad Khan or it became known to him otherwise, for on the 24th of October 1957, he sent a written counter‑claim to the Rehabilitation Department in the sum of Rs. 33,342‑11‑6, made up as below:‑ Rs. a. p. (1) General repairs 16 822 15 6 (2) Maintenance of machinery 3,018 7 0 (3) Estimates for necessary repairs 12,056 0 0 (4) Arrears of hire for Government News Reels 1,445 5 0 Total 33,342 11 6 A reply to this claim was sent by the Rehabilitation Board on the 17th December 1957, but before this, on the 8th December 1957, a formal notice had been sent to him by the Board intimating that the sum of Rs. 32,388 had been reported by the Deputy Rehabilitation Commissioner to be due from him on account of arrears of rent and rehabilitation fee of the Capitol Cinema which had not been paid in spite of repeated demands, and giving him notice to show cause within seven days why the allotment should not be cancelled. It will be convenient at this point to state briefly the contents of the letter of the 17th December 1957. It was said with reference to the item for general repairs, that these had "been carried out by you without obtaining prior approval, and these repairs did not involve major repairs". On a matter of detail, it was mentioned that this sum included certain items for repairs to "furniture" which did not belong to the Department, and the managing allottee was asked to separate such items and to present a fresh bill to the Deputy Rehabilitation Commissioner who was being asked to allow him the agreed rebate of 10 percent toward the building repairs. Next, with reference to the machinery, it was pointed out that the repairs had been carried out without the approval either of the 'Department or of the owner of the machinery, and therefore the claim had been totally rejected, but the managing allottee could claim 5 percent rebate on account of such repairs. Then, with reference to the estimates for future repairs, it was said that these could be carried out by the managing allottee, who would be entitled to claim 10 percent rebate in the rent on their account. As for the final item, on account of arrears of Government News‑Reels hire, he was asked to claim this sum from the previous operator of the Cinema, namely, Mr. Muhammad Sadiq. It seems that on the 18th December 1957, Rai Khurshid Ahmad Khan replied to this letter, for there is a reference to a letter from him of that date, in the last letter of the Rehabili tation Board, dated the 31st December 1957, whereby he was informed that his reply had been found unsatisfactory and that the Rehabilitation Commissioner had, therefore, decided not to extend the term of management beyond the 31st December 1957. It was upon the receipt of this letter that Rai Khurshid Ahmad Khan moved the High Court for a writ and obtained the order here under appeal. Before proceeding to consider the arguments presented in the appeal, it is necessary also to refer to a Press Note which was issued by the Central Government towards the end of the year 1957, to the effect that it had been decided "that allotments of evacuee industrial concerns which are due to expire on the 31st December 1957, will be extended for further period of six months subject to the condition that the allotment will be cancelled if a particular industrial concern was to be disposed of earlier according to the compensation scheme now under consideration". This Press Note contains no reference to managing arrangements, but Mr. Shaukat Ali appearing for Rai Khurshid Ahmad Khan has attempted to make use of it as a ground for claiming extension, on an argument, which appears to id fall into three propositions, viz. (a) that the right to manage evacuee property goes with the allotment of that property ; (b) that Rai Khurshid Ahmad Khan obtained the right to manage the Capitol Cinema to the exclusion of his co‑allottees by virtue of having been successful at the auction held in September 1955 ; and (c) that being in possession as manager on the 31st December 1957; he was entitled by virtue of the Central Government decision announced in the Press Note mentioned above to continue as manager for a further period of six months, since there was no question of the Capitol Cinema being disposed of under the compensation scheme. Mr. Shaukat Ali was at pains to repudiate the orders of the Rehabilitation Commissioner made on the 2nd January 1957, to the effect that the managing allottees, who were in default should be debarred from future management. In so doing, Mr, Shaukat Ali appeared to decline to take advantage of the principal basis upon which his client had obtained the order under appeal from the High Court. The facts, which have been stated earlier in this judgment make it clear that the argument upon which Mr. Shaukat Ali has chosen to defend the order of the High Court in his client's favour is wholly unacceptable. It is perfectly clear from the "terms and conditions" prescribed in the relevant respect by the Central Government in 1953, that, in a proper case, the Rehabi litation Commissioner has power to appoint an outsider as a manager of an industrial concern such as a cinema, being evacuee property. The contention that the right of management goes with allotment finds no support in the `law' relating to rehabilitation. This is a sufficient answer to the first of the propositions advanced by Mr. Shaukat Ali. His second propo sition is correct so far as it goes i.e. up to the 31st December 1957, Rai Khurshid Ahmad Khan ‑was rightfully the manager, having gained that right at an auction up to the 31st December 1956, and thereafter for a year, having enjoyed that right by virtue of the express extension of the period of management by the Central Government, and the inability of the Rehabilitation Department to establish that he was in default in relation to any of the payments due from him. But it is clear that after the 31st December' 1957, there has been no extension of his manage ment and on the other hand, there has been a clear order of the Rehabilitation Commissioner to the effect that it would not be extended. The Central Government's Press Note granting extension for six months must be interpreted as being subject to the exercise of power vested in the Rehabilitation Commissioner to cancel the managing arrangement for breach of the terms and conditions laid down by him. No reference to managing arrangements is contained in that Press Note, but even if there was such a reference, the. effect thereof could not be otherwise than as stated above and or this purpose it is necessary only to make mention of the explanation given by the Central Govern ment on the 16th January 1957, in regard to similar Press Notes issued by it at the end of the year 1956, in relation to arrangements which were to expire on the 31st December 1956. It is evident, therefore, that if there is any strength in the case of Rai Khurshid Ahmad Khan to be preserved in his managership beyond the 31st December 1957, that strength must be derived from the terms and conditions laid down by the Rehabilitation Commissioner, under which he held the manager ship, i.e. on the basis of the argument which found favour in the High Court. The question then arises sharply for consideration whether, within the meaning of the governing instruments, there was a default by Rai Khurshid Ahmad Khan, upon which the action of the Rehabilitation Commissioner could be safely founded? The argument in the judgment of the High Court on this point is briefly to the following effect. It was said that Rai Khurshid Ahmad Khan had claimed a sum of over Rs. 16,000 on account of repairs, made under the orders of the District Magistrate, in respect of which he claimed adjustment. It was then said that while the letter of the 17th December 1957, by the Rehabilitation Board mentioned that the Deputy Rehabilitation (commissioner had been authorised to allow rebates of 10 per cent. and 5 per cent. on the rent on account of general repairs and repairs to machinery respectively, the final bill did not show that any such rebates had been allowed, but Rai Khurshid Ahmad Khan was still held liable for the full sum of Rs. 32,

388. Therefore, it was held that there had been no correct presentation of a bill, and consequently there could not be said to have been any default. This conclusion was thought to be "fortified" by the consideration that, in response to a representation by Rai Khurshid Ahmad Khan the Central Government had issued an order to the Rehabilitation Board not to use coercive processes against Rai Khurshid Ahmad Khan for recovery of rent etc. due from him. The wording of the letter last‑mentioned does not convey the impression that the Central Government desired in any way to interfere with the action of the Rehabilitation Commissioner in declining to extend the managership. , That aspect of the letter is clearly of greater relevancy to the case, as indicating that the Central Government itself did not interpret its Press Note issued at the end of 1957 in the manner which was pressed before us by Mr. Shaukat Ali. Whether or not coercive processes are employed to recover the sums, which may eventually be found to be outstanding against Rai Khurshid Ahmad Khan is not relevant to the questions for decision in this case. The reference to the orders of the District Magistrate con tained in the judgment of the High Court is, not supported by any documentary evidence upon the record. It should be noted that in his petition to the High Court Rai Khurshid Ahmad Khan had declared that he had submitted his claim on account of the repairs carried out under the orders of the Deputy Commissioner, Lahore, (who is the same person as the District Magistrate) as far back as June 1956, and August 1957. If that was a case, it should have been possible for Mr. Shaukat Ali to produce before us something in the nature of proof of the orders in question, but he was quite unable to do this, or to controvert the ground upon which this claim had been repudiated by the Rehabilitation Department viz. that the repairs, if they had been carried out at all, were carried out without their approval. It remains to consider the final argument upon which the order under appeal is based, namely, that because there was no correct presentation of a bill of Rai Khurshid Ahmad Khan, his failure to pay the amount claimed from him by way of rent and rehabilitation fee could not be regarded as a default. For this purpose it is necessary to consider the counter‑claim presented by Rai Khurshid Ahmad Khan in detail. It is for a sum slightly in excess of that claimed from him. It stands out very clearly that one item for no less a sum than R s. 12,056, is not on account of any moneys spent by him (Rai Khurshid Ahmad Khan), but is a mere estimate of the amount which he thought would be required for necessary repairs to the Cinema. The question having been raised whether he should at all continue in possession of the Cinema, his suggestion that for improvement of the Cinema, he should be given a credit of over Rs. 12,000 for sums not yet spent, can only be described as impertinent. As a counter‑claim, it was purely colourable, having no relevancy to the claim against him, except that of creating an illusion. Equally, it is clear that the items, which he claimed on account of the repairs to machinery and arrears of News‑Reels hire could not be related in any legal manner to his obligation to pay the rent and rehabilitation fee. These moneys were receivable by him, if at all, from a different source. Thus, as to one‑half of his counter-claim, it appears with the utmost clearness that it was totally without substance. As regards the other half, the founda tion upon which it was based, namely, the orders of the Deputy Commissioner, were wholly, absent from the record, and it does not appear that `any effort was made by him at any stage to furnish the necessary proof for the expenditure of so great a sum, which he was claiming in diminution of a perfectly straightforward claim' against him. It is, of course, undeniable that, if it be thought that it was a duty on the part of the Department to make an exact account with Rai Khurshid Ahmad Khan, and after striking "a balance, to provide him with an interval in which to make payment, before declaring him to be a defaulter and commencing action thereupon, the view taken by the learned Chief Justice of the High Court, that there had been no presentation of a proper bill and therefore no default, would have to be accepted as correct. That approach, however, ignores the extent to which the claims set up against the Department by Rai Kurshid Ahmad Khan were completely devoid of support in fact, this has to be borne in mind, along with the important point that under the existing arrangement, the managership of Rai Khurshid Ahmad Khan was to expire on the 31st December 1957. Moreover, the case was clearly not one to be treated on any precise technical basis such as is applicable in law to the enforcement of negotiable instruments or bonds. In cases of the latter kind, technical pleas may be raised in bar of suits under the law, and with success. But the ease of a person managing an item of evacuee property, which is being administered by the Rehabilitation Department in accordance with the large plan for the rehabi litation and relief of refugees, and the general restoration of proper economic conditions in industry and other spheres, is a wholly different one. Under the operative instruments in this case, the property was being managed under the control of the Rehabilitation Department by a single refugee‑allottee, for the benefit of his co‑allottees and generally for the purposes of the law relating to the administration of evacuee property. The position of such a person is akin to that of a fiduciary agent or trustee, for the Custodian of Evacuee Property on the one hand, and for the co‑allottees and the general purposes of the evacuee property law on the other. A person in such a position cannot allowed to claim a vested right to remain as manager once it has been established, in a substantial sense, that he is not worthy of the trust reposed in him. The provision for withdrawal of his managership, in case of default in paying sums rightfully due from him, appears tome to be the minimum, which is requisite as a control upon his actions as manager, in order to preserve the property for the uses to which the law intends that it should be put. The duly empowered authority, namely, the Rehabilitation Commissioner, had provided, after consulting all interests affected, that the fact of default should be found definitively by the Deputy Rehabilitation Commissioner. The words of the, operative clause are significant. They clearly excluded any narrow or precise construction of `the expression "default" by providing that the Deputy Rehabilitation Commissioner would have the power of deciding finally "whether a particular act of a managing allottee could come under the category of `default' or not". The necessary conclusion is that to establish a `default', under the condition relating to termination of a managing arrangement, ascertainment of a precise sum, as the sum due, and fixation of a date for payment are not essential requisites. The adoption of delaying tactics when presented with a claim may justly be placed in the category of "defaults". If such tactics were attended by, such devices as the, presentation of completely false claims, or claims which ' to 'the' knowledge of the manager could not be raised against the Rehabilitation Department,' the conclusion that the manager had no honest intention of meeting the demand of the Department, and was anxious only to prolong his possession of a profit‑producing property for, as long as possible, would be eminently reasonable. Upon such premises, a forfeiture on the ground of "default" would be within the process of the Department, which would indeed be under a duty to take such action without waiting for a complete settlement of accounts, if the valuable property in question were not to be allowed to be diverted to uses repugnant to rehabilitation law. Therefore, it seems to me that the letters of the 8th, the 17th, and the 31st December 1957, written by the Rehabili tation Board to the managing allottee, when construed in the light of the instruments by which the entrustment of d evacuee industrial concerns to selected allottees for management is governed, must be understood as amounting to a declaration by the Deputy Rehabilitation Commissioner that the acts of the, managing allottee fell to the category of "defaults", and a consequential refusal on the part of the Rehabilitation Commissioner to continue him in the management. These actions are in clear accordance with the instruments under which the management was assumed by Rai Khurshid Ahmad Khan, and the contrary view taken by the learned Chief Justice of the High Court cannot, in my view be supported. For these reasons, we allow this appeal, and would set aside the order under appeal. Since the appellants were not parties to the proceedings before the High Court, I would leave the parties to bear their own costs. A. H. Appeal allowed.