P L D 1959 (W (PLP)

MASUD AHMAD, J.--‑The following writ petitions, by‑ means of which the validity of an order, dated the 24th June 1957, passed by the Custodian of Evacuee Property, West Pakistan, Lahore, is being challenged, will be disposed of by this judgment, because all of them relate to the same matter: (1) Writ Petition No. 755 of 1957. Messrs Koolaire Limited, The Mall, Lahore vs. The Custodian of Evacuee Property and others. (2) Writ Petition No. 816 of 1357. Messrs Meskey & Son, The Mall, Lahore vs. The Custodian of Evacuee Property and others. (3) Writ Petition No. 833 of 1957. The Pakistan International Air Lines Corporation vs. The Custodian of Evacuee Property and others.

2. Briefly stated, the facts of these cases are as follows :‑ One Mr. H. S. Dass, son of Piarey Lal, owned a part of a building on the Mall, Lahore, known as The Mall Mansion. This property consisted of a big show room, the greater part of which was occupied by Messrs Piarey Lal & Sons, Motor Dealers, and the rest by a concern known as Koolaire Limited, which was said to have been started by Mr. H. S. Dass in the year 1946. There were three workshops behind the show room, in one of which was housed the workshop of Koolaire Limited and in the other two the business of Messrs Piarey Lal & Sons was carried on. There was also a service station attached to the workshops. Mr. H. S. Dass, after the Partition, left this country, but returned in the year 1948 or 1949 and, therefore, the Custodian restored this property to him, on the condition that he should normally reside in Lahore. After restoration of this property, one of the workshops occupied by Messrs Piarey Lal & Sons was given, on lease, by Mr. H. S. Dass, on the 1st January 1949, to a newly‑formed concern known as Meskey & Son, which was being run by Mr. Muhammad Shafi Khan, father of Mr. Muhammad Bashir? the present Managing Director of Koolaire Limited, who, at that time, was an employee of Messrs Piarey Lal & Sons. This lease was renewed for a period of eleven months in January 1950. Mr. H. S. Dass con travened the conditions on which his property was restored and, by an order dated the 27th April 1950, the order of restoration was cancelled by the Custodian ; the result of which was that his property was taken over by the Rehabilitation Department. Messrs Maskey & Son were, however, allotted the workshop occupied by then by the Deputy Rehabilitation Commissioner, by his order dated the 25th October 1951 and Messrs Koolaire Limited were allotted the portion, of the show room and the workshop in which this concern carried on business. Both these concerns, at that time were being managed by Mr. Muhammad Bashir, son of Mr. Muhammad Shafi Khan deceased, who con tinued to occupy the show room and the workshop of Messrs Piarey Lal & Sons, though no actual business appears to have been done by that firm after the year 1950. A part of the residential flats over this property also continued to be occupied by Mr. Muhammad Bashir, though no copy of any allotment order relating to this part of the property had been placed on the record.

3. Messrs E. H. Jafar & Sons Limited gave an application on the 1st February 1955 to the Custodian of Evacuee Property, Punjab, in which it was alleged that Mr. Muhammad Shafi Khan had taken possession of the property belonging to Messrs Piarey Lal & Sons and by making false representations had obtained a declaration from the Deputy Custodian of Evacuee Property with regard to a part of this property. It was further alleged that no rent of this property was being paid and a request was made that the property, regarding which no declaration had been obtained by Mr. Muhammad Shall Khan and which he was holding by, making false representations, may be allotted to them. The Custodian, by an order dated the 2nd February 1955, asked the Rehabilitation authorities to look into the matter and to make a report to him. On the 8th March 1955, the Rehabilitation Commissioner forwarded a report recorded by his Under Secretary, Mr. Islam‑ud‑Din, in which the whole history of the case was given and it was suggested that action should be taken with regard to the premises of Messrs Piarey Lal & Sons only, because they had not paid rent to the extent of Rs. 30,

000. The Custodian of Evacuee Property was pot satisfied with this report and, by an order dated the 22nd April 1955, returned the case to the Rehabilitation Commissioner, with the direction that he should personally look into the matter which involved very valuable property. Certain further enquiries were made into the matter and by an order dated the 29th May 1956, the Rehabilitation Commissioner, Lahore Division, allotted the portion of the building occupied by Messrs Piarey Lal & Sons to the Pakistan International Air Lines Corporation. He did not pass any order with regard to the rest of the property. Three revision petitions were filed before the Custodian against this order, presumably, under section 12 of the Pakistan Rehabilitation Act, 1956, which corresponded to section 13‑A of the Pakistan Rehabilitation Ordinance, 1948, and which has now been replaced by section 12 of the Pakistan Rehabilitation Act, 1956. Section 12 of the Act of 1956 is worded as follows:

12. Powers of revision by Government in specified cases. (1) The Central Government may, by order notified in the official Gazette specify the cases or class of cases in respect of which a revision petition may be made, and unless such order is published, no, revision petition against the order of any Rehabilitation Commissioner or Rehabilitation Board shall lie. (2) A revision petition made in pursuance of subsection (1) may, after such inquiry as may be considered necessary, be disposed of by the Custodian concerned ". Section 13‑A of the Ordinance of 1948, which corresponded to section 12 of the Ordinance of 1956, was worded as follows :‑ " 13‑A. Power of revision by Government in specified cases. (1) The Central Government may, by order notified in the official Gazette, specify the cases or class of cases in respect of which a revision petition may be made, and unless such order is published, no revision petition against the order of any Rehabilitation Commissioner or Rehabilitation Board shall lie. (2) A revision petition made in pursuance of subsection (1) may, after such inquiry as may be considered necessary, be disposed of by the Central Government or by such officer as it may appoint from time to time in this behalf ". The following notification was issued by the Central Govern ment on the 24th April 1952 under this provision of law :‑ " The revision petitions may be made only in the following classes of cases, namely :‑ (1) An order of allotment or cancellation of allotment of immovable evacuee property passed by a Rehabilitation Board, constituted in pursuance of section 12 of the Pakistan Rehabili tation Ordinance, 1948. (2) An order otherwise than in proceedings under sub section (4) of section 13 of the said Ordinance, of allotment or cancellation of allotment passed by a Rehabilitation Commissioner pertaining to urban immovable property, viz., a plot of land (building site) a house, a shop or a small industrial or business concern as is not within the purview of the aforesaid Rehabilitation Board ". It, was admitted that under section 13‑A of the Ordinance of 1948, powers to dispose of revision petitions were delegated to the Custodian of Evacuee Property by means of a separate notification, though no copy of such a notification has been placed on the record. After the Act of 1956 came into force, section ' 12 itself conferred the same powers on the Custodian, which previously the Central Government had conferred on him by means of a notification issued under section 13‑A of the Ordinance of 1948.

4. The first of the three revision petitions was filed by Messrs Meskey & Son on the 6th June 1956, the second by Messrs E. H. Jafar & Sons on the 14th June 1956, and the third by the Motor House Limited on the 21st June 1956. The first of these revision petitions was dismissed summarily by the Custodian of Evacuee Property, on the 22nd June 1956. The other two revision petitions were kept pending by the Custodian of Evacuee Property, who, after recording the follow ing order, forwarded the case to the Rehabilitation Commissioner on the 26th June 1956 for necessary action :‑ " I forwarded this case to the R. C. (G) by my order dated 22‑4‑55 for the reasons stated in that order and directed Khan Abdul Qayyum Khan, counsel for the petitioners Sir E. H. Jaffer & Sons, to appear before the R. C. (G). The learned counsel informs me that when his assistant appeared there the P. I. A. and some others had also applied for the show room of M/S Piyare Lal & Sons which was vacant and the learned R. C. allotted it to P. I. A. The petition of Sir E. H. Jaffar & Sons related to the entire premises consisting of two show‑rooms, two workshops and a service station and I wanted the R. C. to have the entire premises vacated, as suggested by the R. O. and the D. R. C. if the present occupants had no right to be there. Suitable allotment could then be made to deserving people but nothing had been said or done in this respect. I therefore, send the case back to the learned R. C. for taking action on the lines indicated in my above mentioned order. Messrs E. H. Jaffar & Sons and Mr. Rashid Ahmad of Motor House, Lahore, have filed petitions for revision against the order of the learned R. C., dated 29‑5‑

56. These petitions will remain pending until the R. C. informs me what action he has taken to implement my order, dated 22‑4‑

55. As this is an old case and the premises are very much in demand early action is requested. Mr. Mohtasham D. R. C. who was asked by me to come to Court and explain certain matters to me appears to be well acquainted with the history of this case. He is directed to approach the R. C. and explain the case to him ".

5. The parties appeared before the Rehabilitation Commis sioner Lahore Division, on the 6th November 1956, who forwarded the case to the Deputy Rehabilitation Commissioner, Lahore, with the following direction :‑ "I am, therefore, sending this case to the D. R. C., Lahore, who should consider the claims of all the parties and after considering these make allotment of the entire premises to one party. He should also take necessary steps for the ejectment of the present occupants, so that possession could be given to the party considered most suitable for this allotment ". This order of the Rehabilitation Commissioner was interpreted by Messrs Meskey & Son as being an order of their eject ment from the premises occupied by them. They, therefore, moved the Custodian of Evacuee Property by a miscellaneous petition and the Custodian passed a short order on this petition on the 15th November 1956, in which he observed as follows :‑ "He (Mr. Mahmud Zaman, Advocate) says that steps are being taken to eject Meskey & Sons and Koolaire Ltd. from the premises occupied by them without going into the question whether they have any right to be there or not. It is, there force, prayed that I may make my meaning clear to the D. R. C. who is dealing with the case under orders of the Rehabilitation Commissioner.* * * * * * * *What I had said in my order, dated 26‑6‑56 was that after consideration of various claims suitable allotments should be made to deserving people. I did not suggest that the entire premises, which are very large and extensive and can accom modate several different concerns, should be given to one party or concern only. The D. R. C. will see how the entire premises can be advantageously divided and then report who, in his opinion, are the deserving people to whom the various portions of the premises should be allotted ".

6. The Deputy Rehabilitation Commissioner, 'to whom the matter had been referred by the Rehabilitation Commissioner, Lahore Division, submitted a detailed report to that officer on the 13th March 1957, which contained certain proposals for allotment of the two show rooms and the workshops and the service station occupied by Messrs Piarey Lal & Sons, Meskey & Sons, and Koolaire Limited. The Rehabilitation Commissioner returned the case to the Deputy Rehabilitation Commissioner with the direction that he should himself pass an allotment order. On the 13th May 1957, therefore, that officer directed that the following' portions of the premises may remain with Mr. Muhammad Bashir Khan, on behalf of Meskey & Son :‑ (1) The left hand portion of the big show room on the front. (2) The workshop lying on the back to the right hand side detached from the main building on the front which already was in possession of Mr. Muhammad Bashir Khan. (3) The Service station adjacent to the workshop mentioned at No. 2 above. (4) The upper residential portion of the double storeyed building situated on the back of the front building and detached from it. The rest of this part of the premises was allotted to the Registrar, Co‑operative Socities, for being used for the co operative stores.

7. When the matter came up before the Custodian of Evacuee Property, in connection with the revision petitions filed by Messrs E. H. Jaffar & Sons and the Motor House Limited, against the order, dated the 29th May, 1956 of the Rehabilitation Commissioner, Lahore Division, he passed a detailed order, on the 24th June 1957, the operative part of which was as follows :‑ "I, therefore, consider that the need of the Motor House Ltd., to have a large show room is greater than that of Sir E. H. Jaffar & Sons and I accept their revision petition to the extent that they shall be given the show room of Piarey Lal & Sons and Koolaire Ltd., situated on the Mall with the workshop occupied by Meskey & Sons on rental of Rs. 1,500 per month on the condition that they shall surrender possession of the show room and the workshop occupied by them in Dyal Singh Mansion and sublet the same to Sir E. H. Jaffar & Sons * * * * * * * Premises marked 1, 2 and 3 on plan marked A will be given to Motor House Ltd., The Mall, Lahore, at a rental of Rs. 1,500 per month from 1st July, 1957 * * * * Premises marked 4 and 5 will be given to the Pakistan International Airlines from 1st July, 1957 at a rental of Rs. 250 per month. * * * * Premises marked 6 and 7 shall remain in possession of Mr. Bashir as the representative of Meskey & Son and Koolaire Ltd. at a rental of Rs. 250 per month from 1st July 1957 ".

8. The main ground, on which the validity of the Custodian's order dated the 24th June 1957 is being attacked by Meskey & Son and Koolaire Limited in their writ petitions, is that the two revision petitions, on which the Custodian passed that order, related to the allotment of a part of the premises occupied by Messrs Piarey Lal & Sons and in allotting the premises occupied by Meskey & Son and Koolaire Limited to the respondents, the Custodian acted in excess of his jurisdiction, and therefore, to that extent his order is void. It was, however, conceded by these petitioners that apart from the powers conferred on the Custodian by section 13‑A of the Pakistan Rehabilitation Ordinance, 1948, and the notification issued thereunder, the Custodian possessed the power under subsection (1) of section 18 of the Pakistan Administration of Evacuee Property Act, 1957 to amend and revise the terms on which these premises were allotted to the petitioners and, therefore, the Custodian, in exercise of this power, could enhance the rent which the petitioners were paying to the Rehabilitation Department before. In reply to these contentions, the learned counsel for the Custodian and the other respondents contended, firstly, that in exercise of the power of administering, preserving and managing evacuee property conferred on the Custodian by subsection (1) of section 25 of the Pakistan Adminis tration of Evacuee Property Act, 1957, he could give directions to the Rehabilitation Authorities in the matters of allotment of such properties and could, in exercise of his inherent powers, pass suit able order if his directions had been ignored, and, secondly, that the Rehabilitation Commissioner, Lahore Division, having passed an order of ejectment of the petitioners from the premises occupied by them, the Custodian could, in exercise of the powers conferred on him by the notification issued under section 13‑A of the Pakistan Rehabilitation Ordinance, 1948, revise that order and the petitioners cannot be allowed to say that such an order could not be passed by the Custodian in exercise of his revisional jurisdiction. In our opinion, neither of these two contentions raised by the learned counsel for the respondents has any force. The order dated the 6th November, 1956 passed by the Rehabilitation Commissioner, Lahore Division, was intended to convey certain directions to the Deputy Rehabilitation Commissioner, Lahore, and did not amount to an order of ejectment of the petitioners. Even if that order may be construed to be an order of ejectment of the petitioners from the premises occupied by them, no revision petition having been filed against this order by an aggrieved person, the Custodian could not suo motu take action under section 13‑A of the Pakistan Rehabilitation Ordinance, 1948, or section 12 of the Pakistan Rehabilitation Act, 1956. The miscellaneous applica tion presented by Meskey & Son, through Mr. Mahmud Zaman, Advocate, with reference to the order dated the 6th November 1956 could not be considered to be a revision petition under section 13‑A of the Pakistan Rehabilitation Ordinance, 1948, or under section 12 of the Pakistan Rehabilitation Act, 1956, and on that application the Custodian could not have interfered with the Rehabilitation Commissioner's order. Even assuming that he could do so, that application was disposed of by the Custodian by his order dated the 15th November 1956 and, therefore, the matter came to an end and could not be gone into again when the last of this series of orders was passed by the Custodian on the 24th June 1957.

9. The contention that in exercise of the powers conferred by subsection (1) of section 25 of the Pakistan Administration of Evacuee Property Act, 1957 and under the inherent powers vesting in the Custodian for administering, preserving and managing evacuee property, he could give directions to the Rehabilitation Commissioner and could modify the orders of allotment passed by him, is equally without any force. The object of the Evacuee Property Laws, as the preamble to the various Acts and Ordi nances would show, is to administer evacuee property, while the object of the Rehabilitation Laws is to restore and maintain the social and economic life of Pakistan and to provide for the orderly settlement of refugees. Under section 7 of the Pakistan Rehabili tation Act, 1956, which corresponds to section 8 of the Pakistan Rehabilitation Ordinance, 1948, one of the duties of the Rehabili tation Authorities is to settle refugees and other persons on, abandoned lands, houses, etc., and in exercise of this power, allotments of evacuee property are being made in favour of refugees and others. The existence of this power is recognised by section 18 of the Pakistan (Administration of Evacuee Property) Act, 1957, which corresponds to section 14 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. According to subsection (3) of section 18 of the Act of 1957, where any evacuee property has been allotted, the Rehabilitation Authority making the allotment is required to furnish to the Custodian the description of the property so allotted and the particulars of the persons to whom the allotment had been made. Under sub section (4) of section 18 of this Act, the terms and conditions, on which an evacuee property is to be held by an allottee, are to be determined by the Custodian and he can also revise or amend such terms or conditions. Under subsection (6) of this section if any person, to whom an evacuee property had been allotted, fails to comply with the terms and conditions on which the allotment was made, the Custodian can eject such a person and can take possession of the property. There is no provision in the Act of 1957 empowering the Custodian to allot any evacuee property, nor did any such provision exist in the previous Acts and Ordinances relating to administration of evacuee property. The choice of an allottee rests with the Rehabilitation Authorities and the Custodian, as trustee of the evacuee owners, can step in only for determining the terms and conditions on which such allotments are made. The powers conferred by section 13‑A of the Ordinance of 1948 and by section 12 of the Act of 1956 are independent of the powers conferred by the Evacuee Property Law under which the Custodian can take action for preserving, administering and managing any evacuee property with a view to safeguard the rights of evacuee owners. In exercise of the last‑mentioned power there fore, the Custodian could not, in our opinion, pass an order of allotment of evacuee property.

10. The next question requiring decision is whether such an order could be passed by the Custodian in exercise of revisional powers conferred on him by section 13‑A of the Ordinance of 1948, or section 12 of the Act of 1956. Both these provisions of law do not specify the nature of the powers conferred on the Custodian in such cases, but the provisions of subsection (4) of section 11 of the Pakistan Rehabilitation Act, 1956, which corresponds to subsection (4) of section 13 of the Pakistan Rehabilitation Ordinance, 1948, can furnish a guide for deter mining what powers are possessed by the Custodian in dealing with such revision petitions. The Rehabilitation Commissioner has been empowered by these provisions of law to call for the record of any proceedings pending before, or disposed of by an Additional or Assistant Rehabilitation Commissioner for the purpose of satisfying himself as to the legality or propriety of any order passed in such proceedings and to pass such order in relation thereto as he thinks fit. In the absence of anything to the contrary in the provisions relating to the revisional powers of the Custodian, it can be safely presumed that in disposing of such revision petitions the Custodian possessed similar powers, namely, that he could call for the records for the purpose of satisfying himself as to the legality or propriety of the order passed and to pass such order in relation thereto as he thought fit. But two limitations were placed on the powers of the Custodian by the notification issued by the Central Government under section 13‑A of the Pakistan Rehabilitation Ordinance, 1948. The first limita tion was that such revision petitions lay only against the orders passed by the Rehabilitation Commissioner; otherwise than in proceedings under subsection (4) of section 13 of the Ordinance, namely, all orders except orders passed in revisions by that officer. The second limitation was that such revision petitions lay only against the orders of allotment or cancellation of allot ment pertaining to urban immovable property, namely, a plot of land, a house, a shop, or a small industrial or business concern.

11. The revision petitions, which were pending before the Custodian when he passed his order dated the 24th June 1957, were against the order dated the 29th May 1956 passed by the Rehabilitation Commissioner, Lahore Division. By means of that order, the premises occupied by Messrs Piarey Lal & Sons, consisting of the right‑hand side of the front show room and the workshop on the backside, had been allotted to the Pakistan International Air Lines Corporation and assuming that this order had not been passed under subsection (3) of section 13 of the Pakistan Rehabilitation Ordinance, 1948, the Custodian could pass the same order which the Rehabilitation Commissioner could pass under the last‑mentioned provision of law, but he could not, on the pretext of making an enquiry into the matter, enlarge his own jurisdiction by passing an order of allotment of the premises occupied by Meskey & Son and Koolaire Limited, whose allotment had not been cancelled by the Rehabilitation Commissioner, by means of his order under revision. After having dismissed summarily the revision petition of Meskey & Son, by his order dated the 22nd June 1956, the Custodian of Evacuee Property returned the case to the Rehabilitation Commissioner and gave him certain directions, the result of which was that he extended the scope of the enquiry, so as to cover property other than that with regard to which the two revision petitions of Messrs E. H. Jafar & Sons and Motor House Limited were pending before him. His subsequent orders, in our opinion, suffer from the same defect. When the final order was passed by the Custodian on the 24th June 1957, he appears to have acted both as a revising authority under section 12 of the Pakistan Rehabilitation Act, 1957, and as Custodian of Evacuee Property and, therefore, passed an order of allotment of the whole of the premises owned by Mr. H. S. Dass, though the revision petitions, which he was dealing with, relat6d to a part of that property. In our opinion, as the Custodian had no power to allot evacuee property and as the two revision petitions, which he was required to dispose of, related only to that portion of the property which was occupied by Messrs Piarey Lal & Sons and which had been allotted to the Pakistan International Air Lines Corporation by the Rehabilitation Com missioner, by means of the order dated the 6th November 1956, he could pass an order only with regard to that part of the property and not with regard to the portion occupied by Meskey & Son and Koolaire Limited as allottees from the Rehabilitation Department. To the extent to which the Custodian acted in excess of his jurisdiction, we hold that his order is void.

12. The case of the Pakistan International Air Lines Corporation stands on a different footing. The premises occupied by Messrs Piarey Lal & Sons, consisting of a part of the front show room and the workshop towards the back, had been allotted to these petitioners by the Rehabilitation Commissioner, Lahore Division, by his order dated the 29th May 1956. By means of the order dated the 24th June 1957, part of this property has been allotted by the Custodian of Evacuee Property to the Motor House Limited. This part of the property being the subject‑matter of the revision petitions filed by Messrs E. H. Jafar & Sons and the Motor House Limited, the Custodian, in our opinion, was com petent to make the allotment unless it could be shown that no revision petition lay against the order dated the 29th May 1956. The learned counsel for the Pakistan International Air Lines Corporation contended that the Rehabilitation Commissioner's order dated the 29th May 1956 was passed under subsection (4) of section 13 of the Pakistan Rehabilitation Ordinance, 1948, and, therefore, in view of the powers conferred on the Custodian by means of the notification issued under section 13‑A of the said Ordinance, no revision lay to the Custodian. We are unable to accept this contention for the simple reason that the order of the Rehabilitation Commissioner was an original order of allotment envisaged by section 8 of the Pakistan Rehabilitation Ordinance, 1948, and was, therefore, subject, to the revisional powers con ferred on 'the Custodian under section 13‑A of the said Ordinance. The powers of revision conferred by subsection (4) of section 13 of the Ordinance of 1948 could not in our opinion, be availed of by the Rehabilitation Commissioner for the purpose of making an original order of allotment, and could be availed of only when an order of some kind is passed by a subordinate authority and the Rehabilitation Commissioner desires to modify or amend that order. The Custodian, therefore, in our opinion, was fully competent to revise this order and substitute it by his own order. In exercise of the writ jurisdiction, this Court, in our opinion, is not competent to enquire into the propriety of such an order and as the Custodian had jurisdiction to pass such an order in revision, we cannot, in exercise of the writ jurisdiction, question the propriety of that order. The petition of the Pakistan Inter national Air Lines Corporation has, therefore, no force and is liable to be rejected on the ground that the Custodian was fully competent to pass the order to which objection is being taken by them.

13. For reasons given above, Writ Petition No. 833 of 1957 is dismissed with costs, while Writ Petitions Nos. 755 and 816 of 1957 are accepted and a writ of certiorari is issued in these two cases quashing the order of the Custodian of Evacuee Property, West Pakistan, so far as it relates to the allotment of that portion of the property which was in occupation of the petitioners, in the two petitions. We also issue a writ to the respondents m both these cases directing that these petitioners should not be ejected from the premises occupied by them in pursuance of the Custodian's order. The Rehabilitation Authorities would, how ever, be at liberty to take such action against them as is open to them under the law. We also direct the respondents to pay costs of these proceedings to the petitioners in writ petitions 755 and 816 of 1957. K. B. A. Petition accepted.