P (PLP)

Z. Kitchlew, for the Punjab Province. JUDGMENT.

‑This second appeal has arisen out of a suit for declaration. The plaintiffs respondents brought the suit for a declaration on 23rd of August 1948 that shops Nos. 3389 and 3390 situated in Galli Gurdwara Kalan, Lyallpur were their property and their allotment to defendants Nos. 3 and 4 by the Rehabilita tion Department was illegal and unauthorized and that they should be put back in possession of the same. The West Punjab Govern ment and the Shop Allotment Committee were also impleaded as defendants Nos. 1 to

2. The trial Court found that the property was "abandoned" and as such `it could be allotted by the Rehabi litation Department. On this finding the suit was dismissed. The plaintiffs preferred an appeal to the senior Sub‑Judge Lyallpur, who took a different view and held that the expression "abandoned" had been wrongly constructed, the property in suit could‑ not be dealt with by the Rehabilitation Department. He, therefore, reversed the decree of the first Court and decreed the suit. Malik Muhammad Iqbal, defendant No. 3 has now come up in second appeal. It is undisputed that on the creation of two Independent Dominions on the 14th of August 1947, the shops in dispute were occupied by non‑Muslim tenants under the plaintiffs. They left the West Punjab for good and the shops were unoccupied. These were allotted to the defendants who entered into possession 'on 23rd of March 1948. It further transpires that before that date on 20th of January 1948, the plaintiffs owners made a petition to the Deputy Custodian Lyallpur, (the same Senior Sub‑Judge who disposed of the appeal) under section 8 of the West Punjab Ordinance VII of 1947 praying for a declaration that the property in question was not "evacuee" property and the declaration asked for was given on 23rd of March 1.948. In the course of the proceeding Malik Muhammad lqbal appellant appeared before the Deputy Custodian and admitted that his landlords were the petitioners, i.e. the plaintiffs‑respondents. On the same day, i.e., 23rd of March 1948, a suit for ejectment of Mehar Singh son of Dal Singh etc., was brought by the plaintiffs‑respondents under section 13 (3) (it) of the Punjab Urban Rent Restriction Act, on the ground that the shops were needed by the owners themselves and that rent for about eight months had not been paid. An ex carte decree was obtained on 11th of May,1948. The copy of this order is marked Exh. P.

1. The real point for determination is whether the Rehabilitation Department could permit the occupation of the shops in question to any person. Under Section 4 of Ordinance IV of 1947 the Rehabilitation Commissioner was authorized to "(c) arrange for the re‑opening and carrying on of any abandoned business or undertaking or (d) permit the occupation of any abandoned building in his possession by refugees or other persons". Under section 5 the possession or control of any abandoned land or building could be assumed. The expression abandoned" is defined in section 11 and is as follows :‑-- "(a) the expression `abandoned', in any reference to a business or undertaking, means such a business or undertaking as has ceased wholly or partially to operate owing to the flight of its owner; or any of the employees (including workmen) from the Province in consequence of the late disturbances, and in any reference to any land or building, means any such property as has been left unoccupied owing to the flight of the owner, tenant or occupier, for the aforesaid reasons". A mere look at the definition would easily reveal that any property left unoccupied whether by the owner or tenant or occupier in consequence of the "late disturbances'.' could be taken under control by the Rehabilitation Department for the purpose of restoring the economic life of the province and the settlement of the persons who had to seek refuge in the West Punjab from the adjoining territory, i.e., the East Punjab. The property may have been at the time of the disturbances with the owner or with the tenant or any other occupier. The only necessary condition to be fulfilled was that whoever was in occupation of the property should have gone away on account of the disturbances. In the present case, Mehar Singh, etc., non‑Muslims were carrying on their business in the shops, the property of the plaintiffs. The tenants went away and for that reason the property became unoccupied. It might be noted that about the 14th of August 1947, it was not under the actual possession or occupation of the owner himself but was let out to the tenants, presumably on the monthly basis. The shops in dispute thus fell within the definition of "abandoned" pro perty. The learned Senior Sub‑Judge has given the expression "abandoned" a very narrow meaning not supported by the wordings of the definition. He observed "the reasonable and common sense interpretation of section (a) of Ordinance IV of 1947 will be that a building belonging to a Muslim West Punjab, but leased to a non‑Muslim for not any definite period, will not become abandoned property on the migration of the tenant only from the province. The phrases "tenant" or "occupier" in the sub‑clause should be held to relate to tenants of property of non -Muslims which would become "abandoned" on migration of both the owner and the occupier but not on the migration of either of them. Section 6 of the Ordinance recognizes existing leases of non‑Muslim's property in favour of Pakistanis and this provision supports the above interpretation". According to this interpretation the property of a Muslim, though in the possession or occupation of a non‑Muslim 'who had departed, could never be considered "abandoned" property which could be allotted to a refugee or other person. This interpretation is not borne out by the language used and would defeat the object for which Ordinance No. IV of 1947 was enacted. The property may be occupied by the owner himself, or it may be occupied by a tenant or occupier under the owner. Where the owner himself is in occupation and did not leave the West Punjab even though a non‑Muslim, it would not become "abandoned" property and he would be compe tent to continue in possession without any interference from the Rehabilitation Department. Where the owner is a Muslim and the tenant being a non‑Muslim had left, there is nothing to prohibit the Rehabilitation Department to put a person in possession in place of the one who had migrated from the Province. It could only be thus that some place of business or residence could be found for a person who had on account of the "late disturbances" abandoned his own home and settled in the West Punjab. In this way the owner would on no account be prejudiced; all that would happen would be that instead of a non‑Muslim tenant, a Muslim tenant on the same terms might be substituted. The leases referred to in section 6 apparently contemplate leases granted for a fixed term by non Muslims before the Partition of the Province in favour of the persons who are still residing in the Province and are ready and willing to carry out the conditions thereof. Section 6 could not, therefore, support the conclusion of the learned Senior Sub‑judge. It was vehemently maintained by the learned council for the respondents that on the departure of the non‑Muslim tenants, the lease came to an end and the landlords, i. e., the plaintiffs respondents, should be considered to have entered into possession. There are two answers to this argument. In the first place, the property was "left unoccupied" by the flight of the tenants and as such, it fell within the definitions of "abandoned" property as contained in section 11(a) of Ordinance IV of 1947. The ordinary presumption of law, if any, that on the exit of the tenant the property shall be taken to have come back in the possession of the landlord, shall be affected by Ordinance IV of 1947 and to that extent the so‑called presumption shall not, apply. In the second place, the plaintiffs‑respondents themselves did not consider that the tenancy had terminated as would be evident from their own suit decided by Exh. P.1 on 11th of May 1948. Till then the non‑Muslim tenants were still considered to be tenants liable for the payment of rent and as it was not regularly paid; the suit for ejectment under section 13 of the Punjab Rent Restriction Act was filled. The case may be looked at from a simpler standpoint. If the non‑Muslim tenants had not left the Province, they were entitled to continue in possession as long as they continued to pay rent and fulfilled the other conditions and the landlords could only turn them out in accordance with the provisions of the Punjab Urban Rent Restriction Act. The communal disturbances, in the middle of August 1947 compelled migration of 'people on a large scale and Ordinance IV of 1947 aimed at repairing the "dislocation in the economic life of the Province caused by the abandonment of property ..on account of the owners, ..the tenants, etc., having left the Province . . ..." and securing "the orderly absorption into the economic structure of the Province of persons who have sought refuge in the Province on account of the late disturbances in the adjoining territories". Whatever rights of occupation as a tenant were possessed by the non Muslims, these were utilized for the purpose of putting persons in possession of shops and building's to restore the normal life in the Province. The landlords could get from the new, refugee tenants forced upon them the same rent as from their, old non‑Muslim tenants and could sue for ejectment in the same mariner, as they would have been in a position to sue the non‑Muslim tenants. Much capital was sought to be made of the declaration obtained on 23rd of March 1948 that the property in suit was not an "evacuee" property. The petition, as already observed was made under the West Punjab Ordinance No. VII of 1947. This Ordinance provided for the vesting of "evacuee" property in the Custodian. The "evacuee property" was defined‑in section' 20 as any property, in the West Punjab which owing to the recent disturbance, the owner cannot personally occupy or supervise, and "evacuee" meant the owner of such property. This Ordinance was promulgated on 1st December 1947 and Ordinance IV of 1947 was promulgated earlier on 9th of September '1947. The Ordinance VII of 1947 does not say anything as to "abandoned" property as defined in Ordinance 1V of 1947. The Ordinance VII of 1947 deals with a different matter. The property which the owner could not occupy or supervise on account of the disturbances became vested in the Custodian and that could also be used for the purpose of rehabilitation of persons from‑across the border. The declaration under section 8 could be either: (a) that the property in question is not evacuee property or (b) that it is evacuee property to a limited extent only. The owners undoubtedly of the shops in dispute are the plainti9s living in the West Punjab who could supervise though they were not personally, in occupation thereof. It could not, therefore, be `evacuee ' property for the simple reason that the owners had' not evacuated. This declaration that the property is riot "evacuee" property would be wholly irrelevant as regards the rights of the refugee tenants to continue in occupation on payment of rent to the owners. It was not the tenants who claim any interest of their own in the shops; they were put into possession by the Rehabilitation Depart ment and they were no better and no worse them the non‑Muslim tenants who‑were accepted as tenants by the owners themselves on payment of certain fixed rent. There is nothing to prevent the landlords from making an application to the Rent Controller under the Punjab Urban Rent Restriction Act that they should be put into possession on any of the grounds detailed in section 13 of the Act. The present suit for declaration is wholly mis conceived. In desperation it was argued for the respondents that Ordinance IV of 1947 was ultra vires. This was never alleged, anywhere before. The learned counsel urged that "rehabilitation" was not mentioned in the Provincial List in Schedule 7 of the Government of India Act. "Rehabilitation" surely would not be found there. The Government were taking action as regards the property within their jurisdiction and dealing with it in a manner which might promote public peace and order. There is nothing to suggest that the Ordinance in question was ultra vires. The Government of the West Punjab and the Shop Allotment Committee defendants No. 1 and 2 support the claim of the appellant. For the reasons given above, I would accept this appeal with costs against the plaintiffs respondents. The decree of the lower appellate Court is set aside and that of the trial Court is restored with the result that the suit for declaration brought by the plaintiff's shall stand dismissed. K. M. A./A. H. Appeal accepted.