P L D 1957 (W (PLP)

LARI. J.

The petitioner is a building contractor who had been specially called from Delhi on the eve of Partition for executing certain emergent works for the Government of Pakistan and was allowed the use of the lot in question for the purposes of building a godown to store construction materials and accommodating his staff. The constructions then entrusted to the petitioner were completed and the Department wanted the petitioner to vacate the premises but relying on a Circular No. 37/6/50-Estate, dated the 12th December 1950, marked D the petitioner prayed that the plot be allotted to him on payment of rent. This was ultimately agreed to and the petitioner was allowed to remain in posses sion on payment of Rs. 100 per month excepting the period during which he had executed works for the benefit of the Government of Pakistan. Subsequently, the Government required the plot. They cancelled the allotment and called upon the petitioner to vacate the premises. The petitioner declined and his case is that he was threatened with forcible ejectment without recourse to any Court of law. The respondents who are the Government of Pakistan and the Estate Officer allege that the petitioner never became a lessee and was all along a mere licensee whose license could be revoked at any time by the Government and that the Government was entitled to eject the petitioner with the use of minimum force necessary for the purpose without, having recourse to any Court of law. The first point that requires determination in the case is whether the petitioner was a lessee or a mere licensee. There can be no doubt that the petitioner was originally allowed use of the premises for storing construction material and accommodating his servants during t'he continuance of the constructions in hand. It is beyond dispute that during this period the petitioner put up various permanent structures. When the constructions were 'completed, the Department wanted him to vacate the premises but a Government Circular No. 37/6/50-Estate dated the 12th December 1950, came handy to him. This Circular recited that it had been finally decided that all existing cabins/stalls/shops of temporary or pucca type which have been unauthorizedly constructed/ erected should be regularised with effect from the date they were constructed/erected after the owners thereof had signed an agreement form and that the rent would be recovered from them from the date of regularisation. The petitioner basing his, case on this Circular applied on 15th June 1951, that the plot of land be allotted to him. His application was recommended to Government, as would appear from letter No. 722/103 dated the 25th January 1952, where the Chief Engineer said: "Again on your approaching me on the 15th August 1951, your case was sent to Government recommending regular allotment of the area until such time as the land is required by the Government. You showed your willingness to pay the necessary charges and enter into an agreement. Under the circumstances you are advised to pay the rent of Rs. 100 a month which appears reasonable." It seems that the recommendation of the Chief Engineer was accepted, as would appear from the Memorandum signed by the Assistant Estate Officer to the petitioner on 2nd March 1955. It ran thus: "The present occupant of shop/cabin allotted to Mr. Azim Khan for Godown at Jacob Lines is directed to contact the undersigned on any working day except Friday and Saturday, between 2 and 3 p. m. before the 15th March 1955. for payment of Rs.

which stands against the allottee upto 2/55 at Rs.

p. m. In case he fails to do so ejectment will be effected without any further notice." The petitioner agreed to the payment of rent and has continued to pay the same. A notice was however issued to him on 29th July 1955 in the following terms :- "Whereas it has been found that Mr. Azim Khan has occupied Government land unauthorisedly at Jacob Lines and has not vacated it though he was requested to do so vide this office letter No. nil dated nil. He is, therefore, requested to vacate the said plot and give vacant possession to the Enquiry Office, P; P. W. D. concerned within fifteen days from the date of receipt of this memo ; failing which this office will be constrained to take unpleasant action of getting the said plot vacated on expiry of the period specified above by force, if necessary". To us it appears that the petitioner though originally a licensee was accepted as a lessee by Government. The counsel for the parties have placed before us a number of cases bearing on the point. It is not necessary to refer to all these cases. The basis of all the decisions is that the essential feature which distinguishes a lease from a licence is the presence of exclusive possession in the case of lease and its absence in the case of licence. It is beyond doubt that the petitioner has been in exclusive possession of the plot and has put up a number of permanent constructions thereon. The plot is practically enclosed by a compound wall. The respondents stipulated rent and have been accepting the same. The petition, therefore, has to be considered on the basis that the petitioner is a lessee and not a mere licensee. Mr. Nasiruddin, counsel for the respondents, contended that a lease to be operative must comply with the provisions of Article 135 of the Constitution which requires that all contracts made in exercise of the executive authority of the Federation shall be expressed to be made by the President and shall be executed on behalf of the President. We do not think so. There is no written lease in this case and it is to be spelt out of the correspondence between the petitioner and the Government as well as the payment and accept ance of rent. Such a contract should be valid in view of the provisions of the Contract Act. This point came for consideration before the Supreme Court of India in Chatturbuj Vithaldas v. Moreshwar Parshram (A I R 1954 S C 236). Their Lordships at page 243 observed:- "It would, in our opinion, be disastrous to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspondence and that every petty contract must be effected by a ponderous legal document couched in a particular form". The directions in Article 135 are merely directory and not mandatory. A contract otherwise completed would not be rendered void simply because it does not comply with the provisions of Article 135 of the Constitution. The second vital point in this petition is whether the respondents are entitled to evict the petitioner by force without having recourse to a Court of Law. It may be assumed for the purpose of this writ petition that the res pondents had right to terminate the lease and have done so, The point, however, 'remains whether the respondents have to take legal steps for ejectment of the petitioner through a competent Court or can themselves eject the petitioner em ploying minimum force necessary for the purpose. There was a conflict of authority on this point and we issued notices to certain leading Advocates for appearing amicus curiae. One of them Mr. Sharifuddin appeared before us and we are thankful to him for the assistance that he has rendered. Mr. Nasiruddin appearing for the State placed a number of authorities in support of his contention that the common law principles prevalent in England and equally applicable to Pakistan permitted a lessor to eject his lessee by use of minimum force necessary for the purpose. He placed reliance on the following appearing in Halsbury's Laws of England, Volume 20, page 280: "Where the tenant fails to deliver up possession, the landlord is entitled to re-enter and take possession, subject only to certain statutory restrictions. Thus he can re-enter where the tenant has abandoned possession, or where he can effect the entry peaceably ; and even if he enters forcibly, and is thus liable to criminal proceedings under the statutes, yet the tenant has no civil remedy against him in respect of the entry, or in respect of the eviction, if no more force than is necessary is used". The basis of this para. appears to be that if a tenant is ejected by force, no civil remedy is available to him for getting redressed. That may be the position in England but is not so in Pakistan. Section 9 of the Specific Relief Act provides a remedy in such cases. It says: "If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof. notwithstanding any other title that may be set up in such suit. Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof". If a tenant is ejected- without his consent he can bring al suit for recovery of possession under section 9 quoted above. The learned counsel next relied upon the case of Hemmings and Wife v. The Stoke Poges Golf Club, Limited, and another (1920 K B D 720). This case however cannot be pressed into service where the dispute is not between a master and a servant. Bankes, I.. J., page 731, clearly stated: "The question has not been argued or considered, and I express no opinion upon it except to indicate that in considering what may amount to a forcible entry a dis tinction has apparently always and very naturally been drawn between the case of a person who occupies premises by virtue of his employment as a servant, and the case of a person who occupies as a tenant". The case is an authority for the proposition that a master can expel his servant from the premises allotted to him in his capacity as servant by using minimum force and we have held to that effect in case of Siddiq Ahmad son of Abdul Latif v. Estate Officer, Government of Pakistan being Writ Petition No. 283 of 1957 (P L D 1957 Kar. 887). We were next referred to the case of Aglionby v. Cohen (1955 A E L R 785). This case no doubt supports the contention of the State. But it merely follows Hemmings case which we have noticed earlier and about which we have said that it is only an authority for the proposition that a master can use force for ejecting the servant from the premises allotted to him in that capacity. The last case relied upon is the case of State of West Bengal v. Birendra Nath Basunia and others (A I R 1955 Cal. 601) This case laid down that there is no rule or principle which makes it obligatory for the lessor to resort to Court and obtain an order for possession before he can put out the lessee who has refused to quit the land even after his right to remain on it has terminated. He is perfectly entitled to throw out the lessee himself, if he can and resume possession of his own property. The learned judge have relied on the position as stated in Halsbury's Laws of England, Volume 20, page 280 referred to earlier and have remarked that this passage represents the true position. The learned Judge unfortunately failed to take note of section 9 of the Specific Relief Act. This clearly stipulates that no person has a right to eject a person in possession except through the instrumentality of a Court of Law. The common-law right conceded to a lessor in England cannot be granted to a lessor in Pakistan. The effect of section 9 of the Specific Relief Act has been construed in a number of Indian cases. The earliest case is that of Kunhi Komapen Kurupu v. Changarachan Kandil Chembata Ambu (2 M H C R 313). Their Lordships observed as follows:- " In cases under that section a lessor, who had dispossess ed otherwise than by due course of law a lessee whose term had expired, would be compelled to restore possession to the lessee. The plain object is to discourage proceedings calculated to lead to "serious breaches of the peace, and to provide against the person who has taken the law into his own hands deriving any benefit from the process. It was intended to obviate the effect of the possible application of English law to such cases. That law, as laid down in Harvey v. Bridges is that the freeholder, if entitled to eject the person in possession, may commit an indictable offence in doing so, and yet gain all the advantages of a legal possession and be perfectly secure against the action of the party assaulted." Similar views were expressed in the Full Bench case Wali Ahmad Khan and others v. Ajudhia Kandu (I L R (13) All. 537), Sofaeli Khan and another v. Woopean Khan and another (9 W R 123), and Rudrappa Bin Sankappa v. Narsingrao Ramchandra Keblikar and another (I L R 1905 Bom. 213). There are various authorities which support the view taken above that a lessor cannot on big own eject a lessee even though his tenancy might have been terminated. In the case of Nanak Chand and others v. State of Uttar Pradesh and others (A I R 1955 All. 165) their Lordships observed: " The petitioners do not really desire a decision in this petition with respect to their right and its nature in the land they occupy. Their main grievance is against the legality of the order directing their ejectment by force through the help of the police. Nothing has been shown on behalf of the opposite parties which would justify the aforesaid orders, dated the 2nd and 8th of February 1954. Whether the petitioners have got any right in the land in dispute or not, they are the persons in possession of the land and in case they have no right in the land they can be ejected under a proper process of law. Ordinarily they should be sued for ejectment. If they were to be evicted by the opposite parties by force, there should be some law which gives this power to the opposite parties. No such law has been referred to us." The learned Judge of the Pepsu High Court in the case of Mohindar Singh v, State of Pepsu and another (A I R 1955 Pepsu 61) observed :- "It may be, and it probably is true, that the petitioner has no valid title to the land, but that is a matter that would come for decision by a Civil Court when the res pondents should attempt to dispossess the petitioner of the land by a regular suit in a Court of law. It is admitted on behalf of the respondents by their learner counsel that there is no summary procedure provided by law in this State whereby the executive authorities can dispossess a mail of immovable property as has been done in the present case. It is, therefore, manifest that the action of the respondents in dispossessing the petitioner of the land by executive action and without recourse to law is illegal and without jurisdiction". In the case of Muhammad Khan son of All Slier and others v. The Crown (P L D 1949 Lah. 421) the facts were different, but the following observation by the Chief Justice of Pakistan, the then acting Chief Justice of Lahore High Court is pertinent: "His position after the partition was that of a pure trespasser, and though nobody has a right to dispossess by force a trespasser who is in settled possession of land, and such trespasser is entitled to defend by force his possession even against the rightful owner unless he is evicted in due course of law, be is not entitled to rely on a stray act or even intermittent acts of trespass as giving him a right to possession as against the true owner". The observation clearly implies that a person who has got settled possession cannot be evicted except through a Court of law. After a careful consideration we have come to the conclusion that a lessor in Pakistan is not entitled to common law right of ejecting a lessee without having recourse to a Court of law and the case of State of West Bengal v. Birendra Nath Basunia and others (A I R 1955 Cal. 601), was not correctly decided. These observations, however, would not apply to the case of a lessor who is also a master ; nor they should be taken to apply to the case of a licensor against a mere licensee. Mr. Nasiruddin also argued that the respondents had authority to eject the petitioner under the Crown Grants Act. We fail to appreciate this argument. The Act has relevancy only as to effect of a grant in the face of contrary provisions in some other enactments. We were referred to the case of Collector of Bombay v. Nasarwanji Rattanji Mistri and others (A I R 1955 S C 299). This case merely lays down that the nature of grant allowed by the State should be construed in the light of its terms, and not in view of the provisions of the Transfer of Property Act. No such question arises in this case. The petitioner is entitled to remain in possession till evicted in due course of law but the respondents have threatened to throw him out by force, The petitioner has thus succeeded in showing that an illegal wrong is about to be committed and is entitled to a writ restraining the respondents from ejecting the petitioner by force. We order accordingly. K. B. A. Writ issued.