P L D 1955 Sind 47 (PLP)

CONSTANTINE, C. J.

Shyam Kotia Building was held to be evacuee property according to a letter, dated the 28th December, 1953, addressed by the Deputy Custodian (Mr Faruq) to the Additional Rehabilitation Commissioner, Karachi. In this building there are, as the record shows, at least two flats, and one of these, the subject of the application, is in the possession of the applicant, Captain Gomes. He bases his title to possession on an allotment order addressed to the landlord dated 23rd January, 1947, issued by the then Rent Controller under section 15 - (1) of the Sind Rent Restriction Ordinance 1940, directing that flat No. 10 "be let out to Captain A. L. Gomes after it is vacated by Mr. Cheong Kong." Capt. Gomes has consistently claimed that he went into possession either in January or February, 1947. It appears that the landlord became insolvent : for in an application dated 6th June, 1952, the applicant claims to have paid all rent due to the Official Assignee, and 'Mr. Jaffri, the A. R. C. refers to a letter O. A./1580, dated 14th June, 1952, substantiating this claim. It appears that the Official Assignee handed over the insolvent's estate to the Custodian. The application dated 6th June 1952, was for allotment, and the applicant explains that the motive was to obtain a formal order in order that the Custodian would sanction repairs. Upon the application on 7th June 1952, Mr. Jafri noted the applicant's claim to have been in possession "prior to partition" and on 28th June, 1952, after seeing the site and describing the flat and the applicant's family, Mr. Jaffri directed the filing of documents to prove occupation since. (sic) partition. On 9th October, 1952, opponent 3 sought allotment of half the flat as being in excess of the applicant's requirements. On 28th October, 1952, the applicant was examined by Mr. Jaffri and stated he had occupied the fiat since February, 1947, arid held receipts for rent paid to the Official Assignee from the beginning. On February 21st, 1953, opponent 3 applied to the Chief Commissioner and Rehabilitation Commissioner for allotment of -half the flat. Mr. Jafri reported on February 28th that Capt. Gomes had been residing, there since January, 1947, under an allotment issued at that time by the Rent Controller, and described the flat and the applicant's family. The Rehabilitation Commissioner directed that the Additional Rehabilitation 'Commissioner Khan Bahadur Khan should visit the flat and report. (We are not concerned with another fiat in the same building also dealt with in the same report). After inspecting the flat the Additional Rehabilitation Commissioner (opponent No: 1) allotted to opponent 3 two of the four rooms in Capt. Gomes' possession and issued notice on 21st November, 1953, to applicant to show cause why he should not be evicted therefrom. The same day Mrs. Gomes (the applicant, her husband, being ill) submitted that division of the flat was impracticable and unfair to him, and further stated the following grounds in paras 6 and 7. "

6. That the flat was lawfully occupied by Capt. Gomes on a valid allotment No. A. M. 323 of 1947, dated 23rd January, 1947 of the Rent Controller who made it with due regard to Capt. Gomes' reasonable' requirements.

7. That the property vested in the Custodian on 1st March, 1947, and it is submitted that the said vesting under the Ordinance is subject to the statutory tenancy created by the Rent Restriction Act and that the allotment by the Custodian was not necessary except in respect of tenancies created after 1st March, 1947. On 12th January, 1954. Khan Bahadur dealt with the question of balance of con venience : he then wrote

"Under subsection 2 of section 14 of Ordinance XV of 1949 every allotment of evacuee property made between the 1st March, 1947, and the commencement of the Ordinance has to be deemed to have been made under subsection 1. i.e., it has to be deemed to be made by the Rehabilitation Authorities, provided the order is made for the purpose of social and economic rehabilitation. The excess accommoda tion allotted by the Rent Controller to Mr. Gomes cannot possibly be accepted as a measure of economic rehabilita tion. A fresh order of allotment by the Rehabilitation Authority has to be passed in any case and such an order has been passed on 6th June, 1953. The objection advanced by Mrs. Gomes is therefore devoid of substance. The contention raised in para 7 of the statement is equally untenable as the property is evacuee and governed by Ordinance No. XV of 1949. The tenancy created by the Rent Restriction Act cannot override the powers given by the Ordinance". The last two sentences according to the applicant are a mis-statement of the law. The applicant applied in revision to opponent No. 2 Mr. S. Riazuddin Ahmad, Additional Custodian (Judicial) who by consent has been substituted for the Secretary, Ministry of Refugees. In his order of 24th June, 1954, on the merits he held against the applicant. On the point of law he stated. "It has also been contended on applicant's behalf that although the ownership rights in the flat in question are evacuee property, his tenancy rights therein cannot be treated as evacuee property because he has been in possession of the entire flat since before ist March, 1947. In my opinion I have no jurisdiction to determine in these proceedings whether or not applicant's tenancy rights are evacuee property. The fact remains that they have been so treated by the Rehabilitation Authority. Hence in view of the provisions of section 18 it is open to the applicant to file an application under section. 18 for a declaration that the Rehabilitation Authority has wrongly treated the tenancy rights as evacuee property. I understand that he has already filed an applica tion under that section today so that the status of his tenancy will be decided in those proceedings. Sitting here as I do, not as a Custodian but as person designate of the Central Government, it is not open to me to determine in these proceedings whether rights of the applicant in flat No. 10 are non-evacuee property and are therefore not-open to allotment". The Revising Authority therefore refused to determine the question whether the tenancy rights accruing before 1st March, 1947 could be treated as evacuee property on the ground that this question lay outside his jurisdiction. In our opinion this was a refusal to exercise a jurisdiction which he possessed an revision. Admittedly allotment orders were subject to his revision by virtue of section 13-A and notification there under : it is to be noted that there is no qualification of his' revisional powers in dealing with such orders. It is remarkable fact that though the Revising Authority says redress may be had from the Custodian under section 18 of Ordinance XV yet section 19-A of the same Ordinance provides that the Custo dian's order under section 18 shall gave the full effect of any allotment order under Ordinance 19/48. 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. But whether the remedy under section 18 of Ordinance XV/1949 is illusory or not ; it seems obvious to us that the revising authority was not devoid of jurisdiction as he thought. We have already stated that the notification under section 13A set no limits to his powers, once the condition of jurisdic tion, namely, the passing of an allotment order was satisfied. Counsel said that the Revising Authority might be flooded out by such petitions in revision : that argument was not serious and carried its own refutation : we ourselves may be inundated with revision applications, but that is no ground on which to deny jurisdiction to hear them. Counsel argued that you cannot have two authorities deciding the same question, and that where one authority has power to make a biding decision upon a certain matter another authority has no jurisdiction to decide that matter one may answer this by analogy : Government certainly can revise an order passed ultra vires by an Assistant Collector, even though the final authority to decide whether the order was ultra vires or not is a Civil Court. Counsel argued that in fact the appellant had not proved his tenancy before 1st March, 1947. Whether this is so or not and it is remarkable that in none of the notes or orders of the various officers has any doubt been cast upon his assertion that he entered into possession under a valid allot ment order before 1st March, 1947, the revising authority did not consider whether he had proved such tenancy of not he contented himself by disclaiming jurisdiction. Counsel further argued that property means the subject of rights of property, and that once a building is declared evacuee, all rights and interests of other persons-whether evacuees or not-vest in the Custodian as evacuee property. "Evacuee Property" in subsection 3 of section 2 is defined as meaning "any property in which an evacuee has any right or interest". . If then counsel's argument that property means merely the subject of rights of property is carried to its logical conclusion then if you have a building in which an evacuee has simple mortgage rights then the owner's rights, the tenants' rights, dominant easement rights and any other interest in the property, though all these interests belong to non-evacuees vest in the Custodian. This to us appears an absurdity. Moreover it is contrary to the principle contained in section 10 whereby the Custodian is authorised to take possession of property held by a plurality of persons where the evacuees holding amounts to a greater part of the property. It is also contrary to the principle in section 16, which denies effect to a transfer by an evacuee of an interest after March 1st, 1947: this section by implication saves transfers made by an evacuee before March 1st, 1947. Property is one of those loosely used words, with varied meanings, like the "slippery" word possession. It may mean an intangible subject of rights : it may mean the rights exercised over a subject. It is sometimes used with reference to the rights of ownership as distinguished from possession. One even has the expression Special property" applied to the rights of a bailee. In subsection 2 the definition mentions both the subjects of rights and the rights themselves, but we cannot conceive that the legislature intended to vest all property in which an evacuee had any right or interest (however small) in the Custodian and to divest rights (however great) of non-evacuees in such property. Again we have section 11 (4) which refers to persons who immediately before the 1st March, 1947, were tenants of a subsequent evacuee. This subsection protects payments made by such persons to the evacuee up to the 15th October, 1949. Section 6 (which vests evacuee property retrospectively in the Custodian as from 1st March, 1947), 11 (4) and 16 clearly require reading together. The retrospective effect of the Ordinance does not extend back further than 1st March, 1947: vesting in the Custodian starts from that day : transfers previous to that day are not hit by the Ordinance (see also section 23 regarding registration and mutation) : tenants dating back before Ist March, 1947, are not liable to repay to the Custodian sums paid to the evacuee between 1st March, 1947, and 15th October, 1949. Consistently with this, tenancies created after 1st March, 1947, confer no right ('a) because the evacuee's interests having vested in the Custodian, the evacuee was unable to create any interest (non dat quod non habet) and (b) because of the express prohibition in section

16. Hence it was necessary to provide for tenants whose rights subsist, but who had paid the evacuee and not the Custodian who had retrospectively become the landlord. If then the legislature has by necessary implication not interfered with .the ordinary law of the land in respect of transfers made before D 1st March, 1947, and if such transfers include tenancies and both these hypotheses are correct it would be inconsistent in the extreme for the Legislature to vest such tenancies in the Custodian or give him or the Rehabilitation Authorities the right to take possession from such a tenant on the ground that his tenancy now falls within the definition of evacuee pro perty : we refuse to impute such obvious inconsistency to the Legislature. It was necessary to consider the argument overruled above since if on the case put forward by the applicant himself his rights vested in the Custodian as evacuee property then the mere fact that the Additional Custodian had failed to determine the question would not have entitled him to relief. As it is, the appropriate writ is one of mandamus since the Revising Authority has refused to exercise its jurisdiction. We accordingly direct that the Additional Custodian as Revising Authority do decide whether the applicant's interest in Shyam Kotia Building is or is not evacuee property, and if it is not evacuee property whether the- Rehabilitation Authorities have powers to allot any portion of those premises in his possession. A. H. Writ ordered.