P (PLP)

Vellani, J.‑This is an application for a temporary injunction restrai ning the defendant from taking possession of a portion of a flat in the possession of the plaintiff which has been allotted to the defendant under section 15 of the Sind Rent Restriction Act (X of 1947) as amended by the Sind Rent Restriction Amendment) Act (XXVI of 1948) which since 10th January 1949 enables a Controller to allot " so much of any residential premises as in the opinion of the Controller" is " Occupied in excess of the reasonable needs of the tenant." The suit is for a declaration that the order of allotment of the said portion to the defendant is ultra vires, without Jurisdiction and illegal, and for a permanent injunction restraining the defendant from taking possession of it. That such a suit lies, is clear from Muhammad Din v. Imam Din, A. I. R. (1948) Privy Council,

33. The facts as they emerged at the hearing of the application areas follows: The entire flat in suit was let by the landlord to the, plaintiff and was occupied by him in November 1948. On 14th February 1949 the Rent Controller allotted one room and one balcony in the flat to the defendant. Then on 28th 1949 the Rent Controller allotted the entire flat to the plaintiff; and on 13th April 1949 again allotted a room with a balcony therein (bathroom, kitchen and the water closet to be common) to the defendant. Upon the last allotment, the police on 20th April 1949 threatened to eject the plaintiff' and he, therefor}, filed an application in revision which was dismissed by Mr. Ghulam Hyder Moghul, Chief Judge of the Karachi Small Causes Court to whom it was made over for decision by the revising authority. The order is dated 4th June 1949 certified copy of which is annexure " B " to the plaint On 23rd June 1949 the plaintiff filed this suit and obtained an interim injunction. The grounds upon which the plaintiff states that the order of the Rent Controller as upheld by that of Mr. Ghulam Hyder Moghul is ultra vires, without jurisdiction and illegal are mentioned in para. 6 of the plaint. To these have been added two grounds by the application for amendment which was allowed on 80, August 1949. At the hearing, the plaintiff argued that although the allotment in his favour was dated 28th March 1949, has possession of the flat was lawful and had been regularised as on 10th January 1949 by clause 9 to section 2 of Act X of 1947 which contained a definition of the, term " vacant" introduced by the Amending Act XXVI of 1948. That definition reads as follows :‑ " (9) Vacant used in relation to any premises means and shall be deemed always to‑ have meant that the premises are unoccupied otherwise than by a landlord or a tenant; and in this clause notwithstanding anything to the contrary in clause (8) of this section or in any other enactment for the time being in force, the, expression " tenant " shell be deemed to exclude a person who has taken possession of any property without the prior consent of the landlord." The plaintiff's contention is that since he was a tenant in occupation with the consent of the landlord, the flat in question was not " vacant " within the meaning of this definition, and, therefore the Rent Controller could not allot it under section 1 5 of Act X of 194 7, except on considera tions which are in strict conformity with subsection (4) of that section which had been introduced by, the amending Act XXVI of 1948. That subsection reads as follows :‑ (4) For the purposes of this section as much of any residential premises as is in the opinion of the Controller occupied in excess of the reasonable needs of the tenant shall be deemed to be vacant. The plaintiff urges that the Rent Controller held no inquiry whatever as to the reasonable needs of the plaintiff and could have formed no such opinion as is requisite under subsection (4) of section 15, before he made the allotment dated 14th February 1949 in favour of the defendant. He refers to annexure " D " to the plaint which is a part of the Controller's record and says that even with regard to the allotment order, dated 13th April 1949 the question of the reasonable needs of the plaintiff was not inquired into or considered. Annexure " D " to the plaint reads as follows :‑ The plain of the flat in question is on the back. One room with balcony is to be given to Mahboob Alam under instructions of the administrator and two rooms be allowed to Rehmatullah as he is in possession of the flat. Room No. 3 with balcony may be given to Maqbool Alam and Room Nos. 1 and 2 may be allowed to Rahmatullah. Both Kitchen and W/C will be common, The main door will be common for both the parties. The door from Room No. 2 to balcony and from Room No. 2 to Room No. 3 will have to b‑ closed to avoid quarrels." It is necessary to examine the contentions of the plaintiff to see whether there is a prima facie case made out that the orders of allotment in favour of the defendant are ultra tires, without jurisdiction or illegal. The matter involves a question of interpretation of subsection (4) of section 15 of Act X of 1947 and one of the principal considerations that arise is whether these orders can be called in question in any Court, for section 22 of that Act says "

22. An order made by the Provincial Government under section 20 and, subject to the provisions of that section an order of the Controller shall be final and shall not be called in question in any Court." In Emperor v. Sibnath Banerji, A. I. R. (1945) Privy Council, 156, their lordships considered the similar provisions of section 16, Defence of India Act. That section read:‑ 16. (1) No order made in exercise of any power conferred by or under ?his Act shall be called in question in any Court. (2) Where an order purports to have beep made and signed by any authority in exercise of any tower conferred by or under this Act, a court shall, within the meaning of the Indian Evidence Act, 1872, presume that such order was so made by that authority." Their lordships observed that subsection (1) assume that the order it open to challenge on the ground that it was not made in conformity with the power conferred heavily though the burden of proof may lie on the challenger. The power of the Controller in this case is that conferred by section 15 and it is said that the order made by the Controller was not made in conformity with section 15 and particularly with subsection (4) of it. Under that subsection the Controller can treat as vacant only so much of any residential premises as in his opinion is "occupied in excess of the reasonable needs of the tenant That provision in, express words puts upon the Controller the burden of forming an opinion as to objective facts namely, the reasonable needs of the tenant a d what hart of the premises is occupied by him in excess of them. These he has to determine or ascertain before he can form the requisite opinion. Not until he has formed the requisite opinion as to the prescribed objective facts can be proceed to allot any part of the premises in the occupation of a tenant to another person. The question is whether the Controller did form that opinion before making the allotments dated 14th February 1949 or 13th April 1949. Since the presumption omnia esse rite acta arises in this case and may be drawn by a Court under section 114 of the Evidence Act, the onus lies upon the plaintiff to show that the Controller did not form the requisite opinion its to the prescribed objective facts before he made the allotments. As respects the allotment dated 14th February 1949 the plaintiff alleged, and it was not denied, that the Controller made no inquiry from the plaintiff as to what his reasonable needs night be for on 28th March 1919 he allotted the whole flat without any reservation to the plaintiff himself ; (and as respects the allotment dated 13th April 1949 the plaintiff argue that it was clear from annexure "D" to the plaint that the Controller was carrying out the executive order of a superior officer.) The superior officer was considering whether a division of the flit could be conveniently made; and was not determining or considering the prescribed objective facts as to which the Controller had to form the requisite opinion. The vital matter under subsection (4) of section 15 is the opinion. In order to ascertain, whether that opinion existed in conformity with the provisions of subsection (4), all its provisions relating to the person whose opinion it has to be, and as to the area of that opinion, have necessarily to the considered. The relevant pinion, is that of the Controller ; the area or opinion is what part of any residential premises is occupied by a tenant in excess of his reasonable needs. In the Hubly Electricity Co. Ltd. v. The Province of Bombay (1949) 51 Bombay Law Reporter 551, the Privy Council had before it for interpre tation the provisions of clause (a) of subsection (1) of section 4 of the Indian Electricity Act (IX) of 1910. They are :‑ 4 (1) The Provincial Government may, if in its opinion the public interest so requires, revoke a license in any of the following cases, namely :‑ (a) where the licensee in the opinion of the Provincial Government, makes wilful and unreasonably prolonged default in doing anything required of him by or under this Act :" Their Lordships observed at p. 555 " The Lordships now turn to the question of Construction of section 4 (1)(a). Their Lordships rare unable to see that there is anything is the language of the subsection or in the subject matter to which it relates upon which to found the suggestion that the opinion of the Government is to subject to objective tests. In terms, the relevant matter is the opinion of the Government‑not the grounds on which the opinion is based. The language leaves no room for the relevance of a judicial examination as to the sufficiency of the grounds on which the Government acted in forming an opinion. Further the question on which the opinion of the Government is relevant is not whether a default has been wilful and unrea sonably prolonged but whether there has been a wilful and unreasonably prolonged default. Upon that point the opinion is the determining matter and if it is not for good cause displaced as a relevant opinion‑it is conclusive. But there the area of opinion ceases. The phrase " anything required under the Act " means " anything which is required under the Act. The question what obligations are imposed on licensees by or under the Act is a question of Law. Their Lordships do not read the section as making the Government the arbiter upon the construction of the Act or as to the obligations it imposes. Doubtless the Government must in expressing an opinion for the purpose of the section also entertain a view as to the question of Law. But its view on Law is not decisive. If in arriving at a conclusion it appeared that the Government had given effect to a wrong apprehension of the obligations imposed on the licensee by or under the Act, the result would be that the Government had not expressed such an opinion as is referred to in the section." The provision of subsection (4) of section 15 of Act X of 1947 are expropriatory of the rights of tenants or persons lawfully in occupation of premises aid the interpretation of its provisions must proceed on the basis that the legislature did not intend such expropriation of rights to take place except in complete conformity with its provisions. For the purposes of this application, I take the view that the plaintiff has produced enough material to establish at least Prima facie that the Controller omitted to form and wits not of the prescribed opinion before he made the allotments dated 14th February 1949 and 13th April 1949. It cannot be my purpose at this stage to decide the whole suit in which substantially the same questions together with others will arise for final decision ; and 1 am therefore content to say that upon the state of the matter as it has arisen at the nearing of th3iapplication for a temporary injunction, the plaintiff' has sufficiently discharged the burden upon him to make out a prim facie case of illegality. It might be said that the allotment dated 13th April 1949 was revised under section 20 and section 22 says that an order made under that section shall not be called in question. But section 22 assumes that there has before a valid order of allotment which has been considered in revision. An order ab initio invalid which has not been held invalid in revision does not become a valid order. The effect of the decision that there has bee in no order in conformity with the provisions of subsection (4) is that there was no valid order in existence at all. An order in revision must be considered in the context of and cannot he divorced from the order from which the revision arises. Even otherwise a perusal of the order of the revising authority which is annexure "E" to the plaint shows that an authority was considering the convenience of the parties and not the relevant opinion is as to the relevant opinion as to the stated objective facts. I have a no doubt that the balance of convenience is on the side of the plaintiff. In the present conditions of shortage the right that is sought to be expropriated is a very valuable right and once parted with cannot be effectively restored, without lengthy proceedings and a great deal of trouble. The result is that the plaintiff is entitled to the temporary injunction prayed for in his application and I confirm the interim injunction granted on 24th June 1949. Costs will be costs in the cause. A. H. Application granted