P L D 1955 Sind 91 (PLP)

VELLANI, J.

By an order dated 9th May 1950 of Mr. S. H. Raza the Rehabilitation Commissioner, Karachi, the Roxy Cinema was allotted to the petitioner and four others, the petitioner having a two-anna interest therein. The allot ment was valid for a period of 5 years unless terminated earlier by any Rehabilitation Authority for the contravention of any of the terms and conditions governing the allotment. At the end of the order was an acceptance of the terms and conditions upon which the allotment order had been made and an undertaking to give a month's notice of termination. Towards the end of 1953, namely, before the period of five years had expired notices were issued in the press inviting applications for the allotment of properties of which the Roxy Cinema was one and it was pointed out to respondent No. 2 that the Roxy Cinema had been allotted to the petitioner and four others for a period of 5 years which had not expired. The petitioner however had an interview with respondent No. 2 at which he informed him that the period of five years had been inserted in the allotment order by a clerical error. The petitioner applied for a fresh allotment of the Roxy Cinema as others had done. On 26th August 1954 The Rehabilitation Board constituted under section 12 of the Rehabilitation Ordinance of 1948 allotted the Roxy Cinema to six persons of whom the petitioner was not one. One Sh. Habibur Rehman who was in the same' position as the petitioner was also excluded from this allotment order and he moved in revision under the Ordinance. Thereafter the petitioner moved this petition seeking a writ of certiorari quashing the allotment order dated 26th August 1954 and a writ of prohibition directing the respondent No. 2 not to give effect to it. The case of the two respondents is that the period of five years mentioned in clause 3 of the order came in by a clerical mistake. On this question however there is nothing but the affidavit of the respondent No. 2 which has made that allegation. It is pertinent to observe that the order dated 9th May 1950 under the hand of S. H. Raza, the Rehabilitation Commissioner, Karachi sets out the terms under which the allotment is made for five years and has at the end an accep tance duly signed by the allottees of whom the petitioner was one. There was therefore a concluded contract upon which their respective signatures were put. There is no evidence that this contract was entered into on any mistake of fact. The clerical error alleged is said to have been discovered very much later towards the end of 1953 when the petitioner pointed out the existence of that term. The order dated 9th May, 1950 recites that it was made in exercise of powers conferred on S. H. Raza, the Rehabilita tion Commissioner, Karachi under clause (e) of subsection 2 of the Rehabilitation Ordinance XIX of 1948 as amended by the Ordinance XVI of 1949 read with subsection 1 of section 14 of Ordinance XV of 1949. Under section 8 the Rehabilitation Commissioner may make such general or special orders, not inconsistent with this Ordinance, as he may consider necessary for the proper discharge of his functions and under Clause (e) of subsection 2 he may arrange for the re-opening and carrying on of any abandoned business or undertaking on such terms and conditions as he may deem fit. The discretion as to what terms and conditions he will fix is that of the Rehabilitation Commissioner. It is the Rehabili tation Commissioner who has made this order and procured the acceptance of these terms from the allottees including the petitioner. It has been said that the petitioner applied for a fresh order of allotment at the end of 1953 after the respondent No. 1 had explained to him that the term of five years had been inserted in the order dated 9th May 1950 by a clerical error and that the petitioner was therefore estopped from taking up the position before this Court different from that which he took up, before the Rehabilitation Board in 1954. We can see no estoppel arising from these facts" as the respondents were not led in any way to change their position to their detriment. It was open to the petitioner to try and avoid a conflict with the respondents as he would certainly have done if there had been a fresh allotment in his favour. The petitioner was not in any way put to an election. It has been said that S. H. Raza, the Rehabilitation Commissioner was merely carrying out the orders of the Rehabilitation Board, appointed under section 12 of the Rehabilitation Ordinance, 1948 which had been set up for the allotment of industrial undertakings and that in the order dated 9th May 1950 he says that he was acting in pursuance of the decision dated 4th April 1950 of the Rehabilitation Board. The powers however which the order recites are those under section 8 subsection 2 Clause (e) of that Ordinance and since he had the power to do what he did and by the exercise of it bound the petitioner and other allottees to a contract, the question of the Rehabilitation Board acting under section 28 of the Ordinance is not material. In any event if the provisions had to be considered we should have to decide whether a Cinema is an industrial undertaking. The allotment order dated 26th August 1954 purports to re-allot Roxy Cinema during the period it is validly allotted to the petitioner-and other allottees under the order dated 9th May 1950 and to that extent is invalid. In order to give effect to it the Rehabilitation Commis sioner would have to eject the petitioner and other allottees under Clause (b) of subsection 2 of section 8 but there has been no failure to observe any condition of the allotment and the petitioner has not been found an unsuitable person to hold the property allotted nor has the property lost the character of evacuee property. The only other power of ejectment is upon the expiration of the period of five years mentioned in the Order dated 9th May 1950. For these reasons we issue a writ of certiorari setting aside the order of allotment date 26th August 1954 in so tar as it is made operative for the period before the expiration of five years from 9th May 1950. The Advocate for the petitioner has not appeared. We, therefore, award to the petitioner all costs except Advocate's fee. A. H. Writ issued.