AGAIN EDIT (PLP)

8. A. NuS&AT, l.‑This petition arises in the following circumstances

1. The petitioner it, in possession of a shop oonatructed partly on Plot No. Sol‑&1/10$, and partly on Plot No. Sol‑H‑1/107, out o which only the former plot happens to be evacuee trust property. The chop In question was rented out to the petitioner by the respondent No. 5 some time in 19'4, on monthly rent of Re. 55 which was later increased to Re. 60 per month. It Is alleged that in 1974, in the wake of survey of evacuee trust properties, the department of respondent No. 4 served the petitioner with a notice dated 22‑5‑1974 calling upon him to furnish proof regarding his entitlement to occupy the premises in question. The petitioner thereupon allegedly applied for renting out of the promises to him. However the question with regard to the entitlement of tenancy in respect of the evacuee trust plot was taken up by the respondent No. 4, after due notice to the petitioner and respondent No. 5, both having laid claim in respect of the same. The case set up by the respondent No. 5 was that Plots Nos. Sol‑H‑1/104 to 108 were formerly in possession of one Mr. Nariman Gamwala and then came Into her possession us his legal heir, where she was running a workshop alongwith another person. It was asserted that bar workshop garage covered some portion of Plot No. 108 and some portion was covered by a shop in possession of the petitioner. It was further stated by her that Plot No. 108 was purportedly leased out for a period of sixty years to Mr. Nariman Gamwala by a Hindu Mahunt of Hanuman Temple, who was not competent to do so. The respondent No. 4 on considering the rival claims of the parties by his order dated 6.6‑1975 held that the respondent No. 5 was entitled to claim tenancy of the entire Plot No.

108. The petitioner appealed against the said order whereupon the respondent No. 3, as per We order dated 29‑11‑19'75 held that tenancy in respect of the disputed plot could not be regularised In favour of respondent No. 5 and It was directed that the trust plot be demarcated and put to open auction after wide publicity. The matter was then taken up to respondent No. 2 in further appeals by both the petitioner and respondent No.

5. The respondent No. 2 decided the matter on 27-5‑1976 and restored the order of the 4th respondent, directing regularisation of tenancy in favour of respondent No.

5. The petitioner preferred a revision petition against the last order which was dismissed on 11‑1‑1977. The proceedings having been concluded, the respondent No. 4, served the petitioner with an ejectment notice dated 1‑2-1977, purporting to be issued, In the exorcise of power under section 25 of the Evacuee Trust Properties (Management & Disposal) Act, 1975, (hereinafter referred to as the calling upon him to vacate the house/shop factory plot bearing No Sol-B-1/108 G‑1". This notice was issued on a printed pro forma and significantly irrelevant description of property was not struck off. However it Is conceded by Mr. S. H. Mujtaba, learned counsel for respondents Not. 2 to 4, that the dispute relates only to open plot, which alone is evacuee trust property, and has no concern with any construction raised thereon. This fact is also conceded by the learned counsel for the parties, and rightly so, bemuse the relevant orders also mention this fact. The petitioner bas challenged the orders dated 11‑1‑1977 and 27‑5‑1976 passed by the respondents Nos. 1 and 2 respectively, ordering regularisation of occupation in respect of the disputed plot in favour of respondent. No.

5. The earlier order of tie third respondent dated 29-1‑1976, whereby the plot was directed to be auctioned hue, however, not been challenged. In the result the petition is directed only against the last two orders mentioned above. and the notice of ejectment date 1‑2‑1977 issued by the respondent No. 4.

2. Mr. Khalilur Rahman, learned counsel for the petitioner contended that since the petitioner was admittedly in occupation of a portion of Plot No. 108, covered by the shop rented out to him by the respondent No. 5, possession In respect of such area of the shop as was found to be on the evacuee trust plot, should have been regularised In favour of the petitioner by the respondents Nos. 1 and

2. The leaned counsel placed reliance upon a Circular No. P‑2/1/14/71 dated 31-8‑1975 issued by the Evacuee Trust Property Board laying down a policy decision with regard to the management of evacuee trust properties. It Is admitted by the learned counsel for respondents Nos. 1 to 4, that this circular forms basis of the decisions of the respondents Nos. I to 4, and the applicability or validity of the same Is not disputed on behalf of any party. Mr. Khalilur Rehman contended that the petitioners case was covered under paragraph 5 of the said circular and the petitioner admittedly being in possession of a portion of the disputed plot, even as unauthorised occupant, was entitled to its regularisation on payment of rent as against the respondent No 5, who admittedly did not occupy the same, having rented out the shop to the petitioner. The learned counsel for the department as well as the respondent No. 5. on the other hand, contended that since the petitioner had come into possession of the shop in 1974, his occupation could not be regularised because in terms of paragraph 4 of the Circular only possession of a person who had been in actual physical possession on or before 9‑7‑1971 could be considered. This contention of the learned counsel has no force. Paragraphs 4 and 5 of the relevant Circular reads as under :‑ "

4. The possession of occupants of evacuee trust residential houses and shops which existed before independence may he regularised on payment of rent in accordance with the Board policy from 1‑4‑1970 or from the date of actual possession, whichever is earlier provided the occupation of the person concerned is undisputed nor any case about it is pending before any authority or Court and the property is not required or likely to be required for a public purpose no can it be exploited for commercial purpose by the Board itself and the person concerned had been in actual physical possession on or before 9‑7‑1971 (the ninth day of July, 1971). The person concerned should file a declaration before the competent authority Deputy/Assistant Administrator in the enclosed performance.

5. As regards the properties, which existed in the shape of open plots before Independence and were encroached upon subsequently and the unauthorised occupants have set up a cluster of houses thereon in shape of a colony, such properties may also be regularised, in the manner suggested in the preceding paragraph, in suitable cases encroachments on individual plots not falling in cluster or colonies, should also be dealt with in the same manner at your direction." A plain reading of the above two paragraphs shows that while a target date up to 9‑7-1971 is fixed in para. 4, there is no mention of any date in para.

5. Instead paragraph 5, lays down that properties which existed in the shape of open plots before Independence and were encroached upon subsequently and unauthorised occupants had set up a cluster of houses thereon in the shape of a colony, such properties may also be regularised. Mr. S. H. Mujataba, contended that paragraphs 4 and 5 tare to be read together and, therefore, the date mentioned in paragraph 4 would be a relevant consideration in respect of oases falling under paragraph 5 also. However this contention has no force because paras. 4 and 5 of the Circular deal with different categories of properties and are to be read independently, save to the extent of limited purpose mentioned in paragraph 5 i.e. the manner of transfer. The mention in para. 5, that "such properties may also be regularised, in the manner suggested in preceding paragraph", is not susceptible to tire interpretation that other consideration, namely the target date, mentioned in the preceding paragraph 4, would also be applicable to cases falling under paragraph

5. The key word is "subsequently" occurring after the word "Independence", without mentioning of any target date in para. 5 and, therefore, greater flexibility is allowed in cases of regularization of possession In respect of plots. The object behind the same appears to be rehabilitation of large number of displaced persons and this is apparent from the fact that transfer is allowed under paragraph 5 in cases where Un authorised occupants may have set up a cluster of houses on the plots in the shops of a colony. In suitable cases, encroachments on individual plots, not falling in cluster or colonies, is also permitted to be dealt with in the same manner as laid down in para.

4. As this main paragraph deals with cases of 'cluster of houses', this concession, applicable in suitable cases only, would necessarily cover such cases alone where a plot may have been encroached upon by any individual and who may have set up a "house" thereon. The benefit of this concession cannot be extended to cases of "shops" constructed on trust plots, since the main paragraph covers cases of houses only. The concession cannot travel beyond the scope of the main paragraph itself. In view of our above finding the cases of both the petitioner and the respondent No. 5 fall absolutely outside the purview of paragraph 5 of the Circular dated 31‑8‑1971 and none of them were/are entitled to regularisation of their respective possession. The case of respondent No. 5 is still worse, in that, she admittedly is not In occupation of at least that portion of the plot which is covered by the shop in possession of the petitioner. Her possession is unauthorised as per her own admission made to the effect that the Hindu Mahunt, who purportedly leased out the plot for sixty years to Mr. Nariman Gamwala, had no authority to do so. Even otherwise the alleged lease being fop a period of more than one year would be invalid for want of registration, The respondents Nos. 1 and 2, acted without lawful authority in regularising the occupation of the respondent No. 5.

3. This brings us to the consideration of ejectment notice dated 1.2‑1977 issued under section 25 of the Act. Section 25 of the Act reads as under :‑ "

25. Ejectment.‑The Chairman, an Administrator, a Deputy Adminis trator, or an Assistant Administrator may eject or cause to be ejected any person in possession or occupation of any evacuee trust property whose possession or occupation is not authorised by or under any of the provisions of this Act or who contravenes or may have contravened any of the terms and conditions under which the property is held by him, or who has failed to pay public dues, or has wilfully caused damage to any such property or any person in occupation or possession of any evacuee trust properly which is required for an object which is considered to be public purpose by the Federal Government, after giving him notice, and for the purposes of such ejectment may use or cause to be used such force as may be considered necessary." In view of our finding that the petitioner as well as the respondent No. 5 were not entitled to regularisation of their occupation, their possession would remain unauthorised and the plot is liable to be put to auction in terms of the order of the third respondent, which seems to be the only correct order passed in the matter, and which has neither been challenged nor have we chosen to set it aside. The jurisdiction of the Evacuee Property Trust Board to eject un authorised occupants under the provisions of section 25 of the Act, and paragraph 16 of the Scheme framed for the Management and Disposal of Evacuee Trust Property, 1971, is unquestionable. However, in so fu as the impugned notice dated 1‑2‑1977 is concerned, the same was issued In different context altogether, in the process of regularisation of possession of the respondent No.

5. The petitioner was sought to be ejected from the shop for the purpose of making over possession of the same to the respondent No. 5, and in the circumstances the said notice was clearly mala fide. Moreover the said notice was issued to this petitioner, treating him as un authorised occupant of the disputed plot, after occupation of the respondent No. 5 stood regularised. The respondent No. 4 ad no jurisdiction to issue, the said notice because admittedly the petitioner was tenant of responder No. 5, and the former would be deemed to be in constructive possession , the shop rented out to him and bb possession in this manner eras not independent. The unauthorised occupation of the respondent No. 5 having been regularised, it is not understood how the possession of her tenant was termed unauthorised for the purpose of securing his ejectment for the benefit of respondent No. S. After regularisation of possession of respondent No. 5, the respondents Nos. 1 and 2 were not concerned a to how the respondent No, 5 should have dealt with her tenant. In this limited context only, therefore, the notice of ejectment dated 1‑2‑1977, as it was then issued, by the 4th respondent, is also struck down a having been issued without lawful authority. It, however, should not be taken to mean that the respondents Nor. 1 to 4 will have no pourer to eject the petitioner in any other Independent proceedings taken up in respect of the plot according to law., The upshot of the above discussion, therefore, is that orders dated 11-1‑1971 and 27‑5-1976, passed by the respondents Nos. 1 and 2, and the notice of ejectment dated 1‑2‑1977 issued by the respondent No. 4, are declared a having passed/issued without lawful authority and the petition is allowed with costs. S. Q. Petition allowed.