P L D 1958 (W (PLP)

(2) That the Ashram shall pay all survey and sanad feels expenses. (3) That the land shall be utilized for constructing building which shall be used only as a school and recreation ground attached to it for the children of Harijans studying at the school and in no way shall the same be utilized for any other purpose. (4) That the building shall be constructed and completed within 3 years from the date of sanction of the grant by the Revenue Commissioner for Sind. (5) & (6) (a condition for re‑entry in case of the breach of the conditions). The documents noted in the margin were a letter from Dr. Chimandas, the Chief Officer's report of the former Administrator and a further application from Dr. Chimandas expediting the matter and the sketch of the land. The Revenue Commissioner's order is merely " sanctioned". In the report of the President of the Municipality it was stated :‑ "Subsequently on 3rd June 1946 the said Dr. Chimandas applied to the Municipality for the lease being converted into 99 years' lease ..The Municipality sanctioned the request and submitted it for approval of the Revenue Commis sioner ..The Revenue Commissioner's approval was received." He then set out the various conditions of the grant and continued. That before the Honorary Secretary of the Ashram viz., Dr. Chimandas could comply with the conditions communicated to him and enter into an agreement, the said Honorary Secretary migrated to India and the Ashram ceased to function. Accordingly the sanction of the Municipality and the Revenue Commissioner became inoperative. The land therefore could not be said to have been validly trans ferred to the Ashram on 99 years' lease basis." In paragraph 4 of the petition it was stated :‑ " The conditions were communicated to Dr. Chimandas. He gave no reply. It appears that he did not pursue the matter further because the scheme of partition of India was announced on June 4, 1947." This paragraph of the petition was not denied by any of the respondents. The first question for consideration is whether from these documents and facts stated therein, I should infer that a contract for lease had been concluded between the Municipality and Dr. Chimandas. It is true that Dr. Chimandas had made a proposal, but we do not know the terms of that proposal except that he wished to have a 99 years' lease. So far as the correspondence goes, it appears that the conditions were laid down by the Municipality and that these were communicated to Dr. Chimandas. Section 7 of the Contract Act states :‑ " In order to convert a proposal into a promise, the acceptance must be absolute and unqualified." And it appears to me that when the conditions were communicated to Dr. Chimandas, what in fact took place, was the communication of a counter offer, and not the communication of acceptance of his proposal. Secondly, the only statement in the document, is that the conditions were communicated to Dr. Chimandas. There is nothing in the correspondence to show who signed this communication, and even assuming that such communication amounted to the formation of a contract, yet s. 53 (a) requires that the contract shall be signed by the transferor, which in this case according to s. 48 of the Sind Boroughs Act, 1925, mean the Chief Officer, or if the Administrator was in charge, the Administrator. Thirdly, Dr. Chimandas was already in possession and some further act beyond possession was necessary. No such act is on record either on his part or on the part of the Custodian. The Additional Custodian and the Custodian agreed that in the period of a lease is fixed, the Custodian's rights thereon do not extend beyond that period. As the learned Custodian said "what is vested in the Custodian under the law is the right of an evacuee whether it is of a proprietary character or otherwise. If it is a tenancy right or a lease right it must continue for the period for which it is fixed. If the tenancy right is from year to year the Custodian cannot claim any greater privilege than that which is allowed under the law for month to month tenancy. In this case, therefore, normally the lease‑rights of evacuee Dr. Chimandas which vested in the Custodian immediately after the partition could not go beyond the last day of March, 1948 ". The petitioner than obtained yearly leases from the Municipality from April 194&, until he obtained the lease for 7 years in 1956. The first allotment order on record regarding this land was made in 1955. It purported to be in exercise of power under S. 14 (1) of the Pakistan Rehabilitation Ordinance; 1949. This section authorises the Rehabilitation Authority to allot any evacuee property to any person, but it does not authorise the Rehabilitation Authority to allot non‑evacuee property. (The words " Pak Rehb. Ordinance " in the allotment appear to be a slip and a mistake for " Pakistan Administration of Evacuee Property Ordinance 15 of 1949". It was argued on behalf of the respondent that the petitioner should have approached the Rehabilitation Commissioner in revision before applying under S. 20 or filing a writ petition. Since S. 20 applies to his case and since the Custodian, and not the Rehabilitation Authorities is the final arbiter whether property is or is not evacuee property, it appears to me that the petitioner was perfectly justified in filing a writ petition under S. 20 of the Ordinance. When, therefore, the Custodian passed an Order upon the revision petition of respondent III holding that the property was evacuee property, the petitioner's only course to have the Custodian's order set aside" was to move this Court by way of writ petition. Respondent III obtained a lease from the Municipality, and one of the prayers of the petitioner is that this lease should be quashed. It does not appear to me that a lease granted by the Municipality is a fit subject of a writ petition. The Municipality, in granting a lease does not, in my opinion, act as a quasi‑judicial body, nor is there any duty cast upon the Municipality by~ statute or common law to grant a lease, hence neither certiorari nor mandamus lies, nor is there any question of fundamental rights concerned. The petitioner is at liberty to treat that lease which is inconsistent with his own lease as a nullity. Nor for the purpose of this writ petition can respondent III rely upon his lease to protect his possession, for he entered into possession under an allotment order which, as I have held above, was ultra vires of the Rehabilitation Authorities. I, therefore, quash the order of the Custodian declaring the property to be evacuee and the order of allotment dated July 29, 1955 passed by respondent I in favour of respondent III and the order dated December 3, 1956, passed by respondent II. I direct that respondents 1, 2 and 3 do restore possession of the property to the petitioner. The petitioner is entitled to receive one set of costs of the petition from respondents 1,2, 3 and 5, jointly or severally. A.H. Petition accepted.