P L D 1957 (W (PLP)

QADEERUDDIN AHMED, J.

This writ petition challenges tile validity of the order dated the 22nd of September 1956 passed by the Additional Custodian (Judicial), Evacuee Property, in exercise of revisional jurisdiction, and the order of ejectment issued in pursuance of the order. The petition was presented on the 3rd of January 1957 and was subsequently amended by permission of this Court. The amended writ petition is dated the 18th of March 1957. The facts are that the petitioner is a carpenter and is carrying on his business as well- as residing in a tenement bearing No. 276-A, Khori quarters, Mirpurkhas. According to hire, he was a tenant of Sikh Landlord who migrated to India and thereupon he attorned to the Custodian, Evacuee Property, and has been paying rent to the Custodian's Department. On the 23rd of November 1956, the petitioner received a notice from the Deputy Rehabilitation Commis sioner Tharparkar, Mirpurkhas, to show cause why he should not be ejected from the premises. The petitioner submitted his explanation which was found unsatisfactory and 'the petitioner was called upon to vacate the premises. The premises were probably at this stage allotted to Nasim Ahmed. The petitioner filed an appeal which was accepted by the Additional Rehabilitation Commissioner and the order of the Deputy Rehabilitation Commissioner was set aside and the allotment issued in favour of Nasim Ahmed was cancelled. The appellate order is dated the 2nd of June 1956. Nasim Ahmed thereupon preferred a revision to the Additional Custodian (Judicial) Evacuee Property, which was accepted by his order dated the 22nd of September 1956, and the premises were again allotted to Nasim Ahmed. The petitioner challenges this order mainly on the grounds that he is a tenant, that the tenancy rights are not evacuee property, that he is not an unauthorised occupant and that the Additional Custodian (Judicial) E. P. has refused to exercise jurisdiction inasmuch as lie refused to determine the question of the non-evacuee nature of the tenancy rights. A counter-affidavit has been submitted on behalf of respondent No. 1 namely, the Deputy Rehabilita tion Commissioner, Tharparkar. This officer has impliedly denied that the tenancy rights are evacuee property, but no stand has been taken by hire, with regard to the failure of the Additional Custodian (Judicial) to exercise jurisdic tion. It was apparently intended by him that the Additional Custodian (Judicial) should reply to the objection regarding his failure to exercise jurisdiction as well as to certain other questions raised in the petition. The relevant para graphs of the petition and of the counter-affidavit are as follows "That the petitioner submits that the aforesaid order of the Respondent No. 2, dated 22nd September 1956, and the subsequent notice of ejectment by Respondent No. 1, (are ?) without jurisdiction inasmuch as the property in question namely, the tenancy rights are not evacuee and therefore not open to any allotment." "It is denied. The issuing of notice was corollary of the decision given by the Additional Custodian (Judicial) E. P." "Without prejudice to the above, it is submitted that the order of Respondent No. 2- is without jurisdiction inasmuch as a Revision under section 13-A (lies ?) against the orders of allotment or orders cancelling allotments, and in no proceedings the question of the allotment or its cancellation was directly in issue." "Without prejudice to the above, the order of Res pondent No. 2 is bad in Law in so far as it seeks to describe the petitioner as an unauthorised occupant of the premises in dispute." "These are points of law and the Additional Custodian (Judicial) can throw light on them." The Additional Custodian (Judicial) who is the respondent No. 2 has not taken the trouble of submitting a counter affidavit. Mr. Riaz Ahmad, Advocate, appeared for respondent No. 2 and reiterated what was stated by his client in his order with regard to his jurisdiction to decide the non evacuee nature of the tenancy rights. He did not proceed further than repeating several times that his client was a persons designata of the Central Government and had no jurisdiction to decide as to whether the tenancy right were or were not evacuee property. It was pointed out to him by Mr. Fakhruddin the learned counsel of the petitioner that this question has been the subject-matter of a judicial pronouncement by a Division Bench of the Chief Court of Sind and that according to this judgment which is Capt. A. L. Gomes v. Additional Rehabilitation Commissioner and others (P L D 1955 Sind 97) the Additional Custodian sitting as a nominee of the Central Government and dealing with a revision petition under section 13-A, Pakistan Rehabilitation Ordi nance, could not refuse to decide the question whether the petitioner's tenancy rights were non-evacuee property. It was held that such refusal was a refusal to exercise jurisdiction. The learned counsel of the Additional Custodian (Judicial) neither attempted to distinguish this authority, nor to put forward any additional arguments in support of his contention. Three counsel appeared on behalf of the three respondents. None of them had any substantial arguments to advance in support of the order of the Additional Custodian (Judicial). It cannot be denied that the question of the tenancy rights of the petitioner was before the Additional Custodian (Judicial) E.P. The Additional Rehabilitation Commissioner has mentioned in his order that the petitioner was paying rent regularly, and seems to have been influenced by this fact to a certain extent: It is impossible to say that the revision which was preferred from this order, did not involve the question of the payment of rent and its effect on the rights of the party which was paying the rent. The petitioner claims that the rights which accrued to him on account of the payment of the rent were non-evacuee property and that his question had a direct bearing on the decision of his revision application We cannot see how the revisional authority could disregard this aspect of the petitioner's case, and proceed to pass an order. It is a common experience that questions sometimes arise which involve multiple juris dictions. At such occasions if it is found that the authority which sits in judgment does not enjoy the jurisdiction to decide even collaterally some of the questions which have a direct bearing on the decision of the case, then it has to postpone the final adjudication and to refer that part of the case which may be outside its jurisdiction, to be decided by other authorities of competent jurisdiction. If a question which is clearly relevant and important for the purpose of the decision of the rights of the parties is disregarded and a decision is given, then such a decision cannot be satisfactory and just performance of judicial or quasi-judicial duties. In the present case, the view taken by the Additional Custodian (Judicial) is clearly erroneous as well as bad in law, and has been adopted in oblivion, if not in disregard, of a decision of the Chief Court of Sind on this point. The argument of the Additional Custodian (Judicial) for not deciding the question, in his own words, is as follows:- "Hence the question sought to be raised by the res pondent whether his tenancy rights in the building, which is admittedly an evacuee property, are (non ?) evacuee property, cannot be determined by me in this proceeding. This question can be decided only by the Custodian and not by the Central Government. Hence sitting here as I do as a persona designata of the Central Govern ment it is not open to me to do something which the Central Government itself could not do, namely, to deter mine the evacuee or non-evacuee status of respondent's tenancy rights in this shop." The Additional Custodian (Judicial) seems to have been under the impression that he was functioning as a part of the Central Government's machinery when he was exercising his jurisdiction as a revisional authority. This view is clearly erroneous. The Central Government did nominate him, but the nomination was made to exercise jurisdiction in terms of a certain law. His jurisdiction is determinable with reference to the terms of the law and not to the functions of the Government. The terms of the law require that he should exercise revisional jurisdiction on the questions rightly and properly involved in a dispute submitted for a decision before him and falling within the scope of his jurisdiction. It may be pointed out that in a case like the f present one the decision of a dispute as to whether a property is or is not evacuee property need not amount to declaring afresh its status as such but may amount only to deciding as to which party's contention regarding its treat ment as evacuee property is fair and just. If the Custodian's declaration under section 22 of the present Act (Act XII of 1957) or any corresponding provision of Law exists then it may be final. It would appear from the order of the Additional Custodian (Judicial) dated the 22nd of September 1956, that the Custodian has made no declaration with regard to the evacuee or non-evacuee status of the tenancy rights claimed by the petitioner, for if such a declaration was existing then the Additional Custodian (Judicial) would not have left the question open. It would appear however from para. 10 of the counter-affidavit of the Deputy Rehabili tation Commissioner, Tharparkar that the tenancy rights have been treated and are considered to be evacuee property. The petitioner's dispute therefore relates to this treatment only. Section 22 of the present Act (Act XII of 1957) lays down that :- "(1) Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that (a) the property is not evacuee property, or , (b) his . . . . . ." This is a permissive provision and there appears to be nothing in it which amounts to a prohibition against raising an objection to such treatment by way of appeal, revision or C review as the case may be under section 11 of the Pakistan Rehabilitation Act (Act XVII of 1956). Section 41 of Act XII of 1957, gives exclusive jurisdiction of certain matters to the Custodian. It lays down :

"Save as expressly provided in this Act no civil or revenue Court or any other authority shall have juris diction- (a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property (b) to question . . . . . ." This provision of Law prohibits the entertainment or adjudi cation upon any question arising in any proceeding as to whether any property is or is not evacuee property, but it does not seem to prohibit the re-examination by way of appeal, revision or review of an order or decision passed or given by the Rehabilitation Authority which may amount to the treatment of a property as evacuee property. If this was not so then section 1 of the Pakistan Rehabilita tion Act, 1956 would have excluded the cognizance of this question from the scope of appeal, revision or review. It has not done so. The Additional Custodian (Judicial) has acted on the presumption that the building being an evacuee property he is entitled to treat the tenancy rights in the building also as evacuee property ; and if the person interested in the tenancy rights claims that they are not evacuee property then he should go to the Custodian for obtaining a declaration in his favour. In the meantime he seems to be prepared to act on the presumption and proceed to virtually deprive the claimant of his claim. Supposing for the sake of argument that the Additional Custodian (Judicial) was right in the view that he could not consider and decide as to whether the treatment of tenancy rights as evacuee property was right or wrong then he ought to have noted that under subsection 2 of section 41 of the present Act (Act XII of 1957) he was bound to state the question raised by the petitioner and to remit it to the Custodian for decision and to adjourn the proceeding until the decision of the Custodian was given. He has on the contrary proceeded to allot the premises to Nasim Ahmed as if no question regarding the treatment of evacuee or, non-evacuee nature of the tenancy rights had arisen before him. We are not able to appreciate the attitude of the Department with regard to the claim of the petitioner. The Deputy Rehabilitation Commissioner did not seem to have been troubled with the feeling of his inability to deal with any question involved in the appeal decided by him; and before us he has impliedly taken the stand in his counter affidavit that the tenancy rights are evacuee property. Taken as whole the attitude of the Rehabilitation Department seems to be that it can treat the tenancy rights to be evacuee property and act on the basis of this presumption by cancelling the allotment in favour of the petitioner and by allotting the premises to another person without giving a thought to the claim of the petitioner and to tell him after depriving him of his right to seek his remedy from the Custodian. There is neither consistency nor justice in this attitude as observed by Constantine, J. in the ruling referred to above. He has observed as under: "It is neither remedy nor consolation for a person evicted in favour of an allottee to obtain from the Custodian a declaration that he was wrongly evicted and at the same time a declaration that the allottee cannot be disturbed." The view taken by the Additional Custodian (Judicial) is erroneous whether considered from the point of view of the provisions of section 41 of Act XII of 1957 or from the E point of view of the provisions of section 11 of the Pakistan Rehabilitation Act (Act XVII of 1956). The basic error' made by him lies in the disregard of a distinction which exists between declaring or holding a property to be evacuee or non-evacuee which can be done by the Custodian only, and the treatment as evacuee property by the Rehabilitation Department of a property regarding which no such declaration has been made. The question of the propriety of such treatment falls within the scope of section 11 of Pakistan Rehabilitation Act (Act XVII of 1956). We are of the view that the Additional Custodian (Judicial) E. P. has failed to exercise his jurisdiction vested in him by this provision of Law. We do not purpose to examine the other objections raised by petitioner s counsel so that the rehearing of the revision may not be prejudice. We quash the order dated 22nd of September 1956 passed by the Additional Custodian (Judicial) Evacuee Property in Revision No. 70/156 of 1956 and all orders and directions passed or issued in pursuance thereof and direct that the revision petition be heard over again in the light of the above observations. The writ petition is accordingly accepted. Respondent No. 2 shall pay Rs. 150 as costs to the petitioner. A. H. Petition accepted.