P L D 1960 Supreme Court (Pak (PLP)

S. A. RAHMAN, J:-Leave to appeal was given in this case to consider :

(1) Whether the respondent No. 1 acquired any right in the property for the protection of which the writ jurisdiction could be invoked ? (2) Whether respondent No. 1 was not a mere licensee allowed to occupy the house by reason of service ? The question arose in the following circumstances. House No. 124, Market Road, Rawalpindi Cantonment, was taken on lease by the Governor-General of Pakistan, represented by the Garrison Engineer, Rawalpindi, on the 31st of October, 1947 from its owner, Bakhshi Dina Nath. The Station Headquarters, Rawalpindi, allotted this house for residence to the first respon dent, Habibullah Butt, who was posted as Officer Supervisor, M. S. Branch, General Headquarters, Rawalpindi, the house being on the pool of the Station Headquarters of the C. A. O. Habibullah Butt retired from service on the 13th March 1954 and was asked to vacate the bungalow immediately and to hand over possession to the Garrison Engineer, Rawalpindi. He failed to do so and asked for time, so that he might get alternative accommodation from the Rehabilitation authorities. He is a refugee from India. Abdul Ghafoor Butt who was originally the second respondent to this appeal was the father-in-law of the first respondent and had apparently been residing with his son-in- law. He is now dead and is represented by his children. It will be convenient to refer to all these respondents as the contesting respondents. The first respondent was finally asked to hand over possession of the house to the Military Estate Officer by the 31st August 1956. The D. R. C., Cantonment Area, Rawalpindi, also sent him a notice to the same effect. At this stage, Habibullah Butt and Abdul Ghafoor Butt applied for a writ of mandamus or any other appropriate writ, to the High Court of West Pakistan, on the plea that they had obtained the premises in question on lease from the owner and had been subsequently allotted the house by the Deputy Commissioner, Rawalpindi. These allegations of the contesting respondents were controverted on behalf of the Defence Ministry of Pakistan and no attempt was made to substantiate them. A Division Bench of the High Court dealt with the matter and passed the following order :

"Malik Shaukat Ali has not been able to show that his clients obtained an allotment from the Rehabilitation Authorities. They should, therefore, be deemed to be in un authorised possession of evacuee property. It is not claimed for the Defencc Ministry that the property is requisitioned. It had not been shown under what power the notice of ejectment has been issued by the military authorities. They claim a lease from the Rehabilitation Department, but if that be the case, the lease does not confer a power of ejectment, contrary to evacuee law. We accept the petition to this extent, that the petitioners will not be ejected until proper proceedings have been taken against them for ejectment by the Rehabilitation Authorities. No costs. A writ in these terms should be issued to the Military Authorities. The legality of this order has been challenged in appeal on behalf of the Government of Pakistan, Ministry of Defence. There was ample material before the learned Judges to find that the premises in question had been leased out to the Governor-General of Pakistan by the original owner. Even if the owner became an evacuee subsequently, it was open to the Custodian or the Rehabilitation Authorities either to honour the lease or to cancel or disregard it if they so considered fit. The fact is that the Rehabilitation Authorities recognised the lease-rights of the Defence Department and continued to receive the rent from them. The first respondent appears to have applied to the D. R. C. for allotment of the premises in question, after the notice to vacate had been served on him. He was told that the premises were under the control of the Military authorities and were not open for allotment by the Rehabilitation Officers. Habibullah Butt, respondent 1, had himself been requesting the Military authorities from time to time to effect repairs to the premises, through the M. E. S. The position, therefore, admits of no doubt that he occupied the house as a mere lisensee under the Defence Ministry for so long as he was in service. His right to occupy the premises was determined as soon as notice was given to him to quit the pre mises and it was his legal duty to surrender possession to his licensor. After that notice, no legal right to retain possession inhered in him. With respect, it appears to us that the High Court miscon ceived the legal position in holding that the lease did not confer the power of ejectment, contrary to evacuee law No question arose of ejectment under the evacuee law in the circumstances of this case. As has been mentioned above, the, rehabilitation authorities were exercising no control over the property beyond recovering rent and the D. R. C. had even advised the first respondent to hand over the premises to the Military Estate Officer. As for Abdul Ghafoor Butt his possession was permissive, under the first respondent and he had obviously no independent right to hold the property. His claim stood or fell with that of the first respondent. Mr. Zakriyya Kitchlew, who appeared for the contesting respondents, attempted to argue that his clients being refugees, had a right to retain possession of the property which was evacuee property by virtue of section 29 of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958. This enactment protects even a person in unauthorised possession of evacuee property against ejectment, provided that no order for that purpose had been passed before the 17th day of February 1958. In terms, therefore, the amendment was not available to the respondents, as in the present case, long before this provision was enacted, the respondents' right to possession had been determined and hi, ejectment ordered. But as has been observed above, this question did not arise stricto sensu as the case did not fall to be decided with reference to the laws relating to evacuee property at all. Learned counsel for the respondents pleaded that his clients had not yet been given any alternative accommodation by the Rehabilitation authorities. This was not the concern of the Military authorities and does not, therefore, alter the legal position. This was clearly a case of a Government servant contumaciously refusing to surrender possession of a premises in respect of which he had lost all occupational rights. We, therefore, allow the appeal with costs and recall the writ or direction issued by the High Court. K. M. A. Appeal allowed.