P L D 1959 (W (PLP)

FARUQUI, J.‑This is a writ petition relating to an old dispute in respect of the tenancy rights in the tenement No. 9 of Noorbhoy Jafferji Building situated on South Napier Road, Karadhi. The petitioner No. 1 are the owners of the whole building. They are the old residents of Karachi and this' is their ancestral property. The tenement No. 9 in this building was in the occupation of one C. B. Kewalramani as a monthly tenant thereof. After partition Kewalramani was intending to migrate to India in the exodus which followed the partition. On 23‑2‑48, the landlords, peti tioners No. I Mr. Abdulla Esmail Sange, petitioner No. 2 and Kewalramani appeared before the Additional Collector and Deputy Rehabilitation Collector and Deputy Rehabilitation Officer, Karachi for the purpose of getting the transfer of the tenancy rights in respect of the tenement No. 9 recorded in favour of the petitioner No. 2 Mr. Abdulla Esmail Sange. It would be useful to reproduce the order of the Deputy Rehabilitation Officer which was passed by him on that day: "I am informed that the tenancy of tenement No. 9 of Noor bhai‑Jafferji Building, South Napier Road, Karachi is changing hands from Mr. C. B. Kewalramani, Advocate, to Mr. Abdulla Esmail Sange. The said transfer of the premises reported by :‑ The Old Tenant . . . . . Mr. Kewalram, Advocate, The Incom ing tenant. Mr. Abdulla Esmail Sange. The Landlord . . . . . Messrs. Noorbhai Jafferji & Sons has been recorded in this office." Before this took place, it appears that the respondent No. 3, Vazir Bhoy, who was later on joined by respondent No. 4, Mr. Qizilbash, had already occupied aFportion of this tenement with the consent of Kewalramani under the usual method of such tran sactions prevailing at the time when money used to be received by the outgoing occupants as the price of furniture, and on 12th of January 1948, Vazir Bhoy had applied to the Rehabilitation Officer for the allotment of the premises in question on the ground that be had been carrying on his business in the said premises with the consent of Mr. Kewalramani and had purchased his type writer and furniture etc. Having obtained the order dated 23‑2‑48 quoted above, the petitioner No. 1 sent a notice to the respondent No. 3 Vazir Bboy calling upon him to vacate the above premises. Vazir Bhoy then seems to have more energetically moved in the matter and on the 23rd of April 1948 the same Deputy Rehabilitation Officer passed another order, whereby he recorded the tenancy of the premises in favour of Vazir Bhoy (respondent No. 3), Mr. Abdulla Esmail Sange (petitioner No. 2) and Mr. Qizilbash (respondent No. 4). Mr. Sange had also been put by the said Mr. Kewalramani in a portion of the premises which was about J of the whole. A dispute then arose between the parties which was brought back to the Deputy Rehabilitation Officer, who on 15‑5‑48 passed an order, whereby he washed his hands of the whole affair by saying that since the premises ware not abandoned and the matter was in dispute between the tenants and the landlords, he had no juris diction as D. R. O. to interfere and that his two previous orders recording the tenancy were vacated. We should like to reproduce this order because it has been the main basis of the petitioners' cafe before us and a considerable argument has been based upon it. The order reads as follows: "This office order No. C‑618 dated 23‑2‑48 was made to record the tenancy of Mr. Abdulla Esmail Sange certified by the outgoing tenant, tenancy C. B. Kewalramani and the landlord, whereas the subsequent order No. 287 dated 23‑4‑1948 recorded in favour of the said Vazirbhai, Abdulla Esmail Sange and Qizilbash seems to have been obtained under misrepresentation of facts when the landlord and Mr. Abdulla state that they were never a party to the second request. Since the premises are not abandoned and the matter is in dispute between the tenants and the landlord, I have no jurisdic tion as D. R. O. to interfere. The above two orders record ing the tenancy are therefore hereby vacated. The parties are referred to the landlord and the Rent Controller. (Sd.) A. G. AGHA, Deputy Rehabilitation Officer, Karachi." It may be noted here that the Deputy Rehabilitation Officer when he passed these orders was purporting to act under the Sind Ordinance No. I of 1948. The parties then approached the Rent Controller, Karachi, who allotted the whole premises on 3‑7‑48 to the petitioner No. 2 Mr. Sange. Against this order of the Rent Controller there was an appeal by the Respondents Nos. 3 and 4 to the Collector, who allowed their appeal and his judgment was upheld in revision by the order of the Provincial Government dated 5‑8‑

48. On 5‑8‑4948, the Rent Controller, in compliance with the order passed in revision by the Provincial Government, allotted I of the said premises to the respondents Nos. 3 and 4 and J to the petitioner No. 2 Mr. Sange. On 9‑8‑1948, the landlords, namely the petitioner No. 1, filed a suit against the present respondents Nos. 3 and 4 in the Chief Court of Sind for a declaration and for ejectment of the respon dents Nos. 3 and 4 from the premises. This suit was decreed on 1st August 1950, against which the respondents Nos. 3 and 4 filed an appeal being appeal No. 24/50 which was admitted and has been kept pending awaiting the decision of this writ petition. The matter was taken up by the Custodian Department on an application made by the respondent No. 3, whereby it was claimed that the tenancy rights of the Hindu Evacuee Mr. Kewalramani had become evacuee property. Before the matter could be dealt with by the Deputy Custodian (Judicial), the petitioners filed a writ petition in the Chief Court of Sind praying that the Deputy Custodian be restrained from proceeding with the enquiry. This writ petition was dismissed on 17‑9‑54, whereby it was held that the Deputy Custodian had jurisdiction in general to deter mine whether a property was or was not an evacuee property. It was also observed that if a plea of res judicata was raised before him, he would have the jurisdiction to determine that point also. The matter then went back to the Deputy Custodian, before whom it was urged on behalf of the landlords that the order of the Deputy Rehabilitation Officer dated 15‑5‑48 was final and operat ed as res judicata and that the re‑opening of the same question was barred. The Deputy Custodian overruled this objection by his order dated 24‑3‑

55. Against this order, the landlords filed a revision application before the Custodian which was heard and decided by Mr. Riazuddin, Additional Custodian (Judicial) by his order dated 4‑12‑

57. It was then that the present writ petition came to be filed praying for the quashing of the said order of the Additional Custodian amongst others and for a writ directing the respondents to forbear from taking any action whatsoever in respect of the premises in dispute. We have heard Mr. Abdul Latif Khan, the learned counsel for the petitioner No. 1 and Mr. Sange in person at some length, and have come to the conclusion that this writ petition must fail. It was contended by the learned counsel that Kewalramani was merely a month to month tenant on the basis of a contract between himself and the landlords and that all his rights in the tenancy had come to an end before he migrated to India and became an evacuee, and hence there was nothing left which could vest in the Custodian. It was urged that Kewalramani had surrendered his tenancy which brought about an end of his right and interest in the disputed premises and that thereafter Mr. Sange had become a contractual tenant in respect of the whole premises, i.e. tenement No.

9. It was next contended that the order of the Deputy Rehabilitation Officer, dated the 15th of May 1948 had determined the character of the property, namely the tenancy rights of the premises in question, and that the said order had become final, and the matter could not be re‑opened before the Custodian I shall first deal with the second contention of the learned counsel, because if the order dated the 15th May 1948 of the Deputy Rehabilitation Officer had become final, then the Deputy or the Judicial Custodian would obviously have no jurisdiction to go into the matter again. In order to appreciate the true position it would be necessary to examine the provisions of the Sind Ordinance No. I of 1948 under which the Deputy Rehabilitation Officer had purported to act when he passed the order dated 15th of May 1948. The preamble of the Ordinance reads as follows:‑ And " whereas the Governor of Sind is satisfied that circums tances exist which render it necessary for him to take immediate action to continue to restore and maintain the economic life of the Province and to ensure the orderly settle ment of persons who have taken refuge in the Province ;" Section 5 of the said Ordinance defines the powers of the Rehabilitation Officer wherein he has been authorised to make orders not inconsistent with this Ordinance in the discharge of his functions and in particular to assume possession of any abandoned land, building, business or undertaking and to deal with it by granting temporary lease and arrange for the re‑opening and carrying on of any abandoned business or undertaking. Section 2 (a) defines the word "abandoned" and reads as follows :‑ " `Abandoned ' with reference to a business or undertaking means such business or undertaking as has ceased wholly or partially to operate owing to the migration from the Province of the Owner of the business or undertaking or any of his employees (including workmen) ; and with reference to any land or building means any such land or building as has been left unoccupied owing to the migration from the Province of the owner, tenant or occupier as the case may be." Now, if we look into the order dated 15‑5‑48 of the Deputy Rehabilitation Officer all that it really means is that he had taken certain steps in respect of a certain premises, which he later dis covered he had no right to do as the premises were not abandoned property ; he therefore, vacated the previous orders whereby he had recorded the tenancy of the parties as on his own admission as contained in the order dated 15‑5‑48, he had no jurisdiction in the matter. The learned counsel for the petitioners, however, contended that the order dated 15‑5‑48 amounted to a declaration that the property, viz., the tenancy right was not an abandoned property and that this declaration was saved by the Saving Clause 48 of the Ordinance XV of 1949, so that the property could not subsequently be declared as an evacuee property. Section 48 reads as follows :‑ "

48. Repeal and savings.‑(1) The Pakistan (Protection of Evacuee Property) Ordinance, 1948, is hereby repealed ; Provided that everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceeding commenced, officer appointed or person authorised, jurisdiction or power conferred, rule made and order issued under any of the provisions of the said Ordinance, shall be continued, and, so far as may be, be deemed to have been respectively done, taken, incurred, commenced, appointed, authorised, conferred, made or issued under this Ordinance, and any enactment or document referring to any of the said provisions shall, as far as may be, be construed to refer to this Ordinance or to the corresponding provision thereof. (2) Any provision of any law in force in any area immediately before the commencement of the aforesaid Ordinance and corresponding to any provision of that Ordinance, shall, so far as may be, be deemed to he a provision of the said Ordinance, and the provision to subsection (1) shall, wherever necessary, be construed accordingly." The argument is that the Ordinance XV of 1949 having by the above section repealed the earlier Ordinance, viz., Ordinance XVIII of 1948, the order of the Deputy Rehabilitation Officer should be deemed to have been passed. under the repealed Ordinance by virtue of the second proviso to the aforesaid section. In order that this argument may be sustained, it mist first be held that the relevant provisions of Ordinance No. 1 of 1948 referred to above, corresponded with any provision of the Ordinance XVIII of 1948 and it must further be found that the Rehabilitation Officer under Ordinance No. I of 1948 had the power to declare that a property was not an abandoned property with the effect of excluding it from the operation of the sub sequent Ordinances. In our opinion, neither of these two conditions are fulfilled. The definition of evacuee property in the Ordinance XVIII of 1948 and more particularly in the Ordinance A V of 1949 is much wider than and even different f nom the definition of abandoned building, land, business or undertaking as is found in the Ordinance No. I of 1948. Even, the objects of the two Statutes are different. The object of the Ordinance No. I of 1948 was to continue to restore and maintain the economic life of the Province and to ensure the orderly settlement of the refugees whereas the object of the Ordinance XVIII of 1948 and Ordinance XV of 1949 was the protection and administration of evacuee property. The Rehabilitation Officer's jurisdiction under the Ordinance No. I of 1948 was attracted only if the building, land, business and undertaking was abandoned within. the meaning of the word as defined by section 2 (a) thereof, which meant that the business or undertaking should have wholly or partially ceased to operate or the building or land had been left unoccupied owing to the migration from the Province of the owner tenant or the occupier as the case may be. In the present case, the tenement No. 9 had admittedly not been left unoccupied and as such the Rehabilitation Officer had no jurisdiction to take any action in respect of the premises, a fact which he himself clearly admitted in his order dated 15‑5‑

48. The only effect of the said order was that the D. R. O., having recognised that he had acted without jurisdiction and set aside the previous steps which he had taken in respect of the premises. He neither made any g declaration nor he had any power to do so. We therefore hold that section 48 of the Ordinance XV of 1949 had no application to this case and the order of the D. R. O. was by no means saved by it. It may further be added that to give effect to the order of the D. R. O., as the petitioners would want us to give, would be in direct contravention of the, provisions of section 34 (3) of the Ordinance XV of 1949, which says that no decision of any Court or other authority on any question such as referred to in section 1 (a) between the 14th day of August 1947, and the commencement of this Ordinance shall be binding on the Custodian or affect any right or interest of any evacuee in any property affected by such decision. Section 34 (a) deals with the question of the determination whether a property or any interest in it is or is not an evacuee property. With regard to the plea that Kewalramani had surrendered his tenancy rights and as such there was nothing which remained to vest in the Custodian we find that the learned Additional Custodian (Judicial) has gone into the question of the fact of surrender at a great length and has come to the finding that there was no surrender in this case. We would not interfere with that finding of fact in the exercise of our writ jurisdiction. The Additional custodian had undoubtedly the jurisdiction to decide that question and there is nothing to show that in deciding that question he has committed any error apparent on the face of the record. It may however be useful to add that the facts, which are more or less admitted, do not establish the case of surrender. As far as the order of the Deputy Rehabilitation Officer dated 23rd of February 1948, is concerned, it shows that this looked more like a case of assignment of tenancy by Kewalramani in favour of Mr. Sange rather than of a surrender by him of his tenancy rights to the landlords. Admittedly, Mr. Sange had already come to occupy a portion of these premises, through Kewalramani who had also put Vazir Bhoy (respondent No. 3) into the larger portion of it. Having done so, it is difficult to see how then could be effectually surrender his tenancy in favour of the landlords. Surrender consists in the yielding up of the term by the lessee to the lessor accompanied by delivery of possession and the acceptance of the same by the lessor. A relinquishment by a tenant without surrender of possession is in effectual. The relevant provision of the Ordinance XV of 1949 which attracted the jurisdiction of the Custodian was contained in sections 6‑A and 6 (1), which read as follows :‑‑ " 6‑A. Occupancy or tenancy right not to be extinguished.‑ Where the occupancy right of an evacuee in any land or his right for a fixed term of years therein has vested in the Custodian, or where the Custodian has taken possession of such land, nothing in any other law for the time being in force shall operate to extinguish such right against the evacuee, and neither the evacuee nor the, Custodian shall be liable to be ejected from such land by reason only of any default of the Custodian. In this section `land' includes houses and buildings on land." "6 (1) Vesting of evacuee property in Custodian.‑All evacuee property vest and shall be deemed always to have vested tit the Custodian with effect from the first day of March 1947." . It would, therefore, appear that having regard to the retrospective character of this provision the Custodian had the jurisdiction t determine whether the rights of occupation of the evacuee Kewalramani were or were not an evacuee property so as to b dealt with by him. The Additional Custodian (Judicial) came to the conclusion that the tenancy rights of Kewalramani in the disputed tenement were to be treated as evacuee property. W do not find that this finding of the Additional Custodian is either without jurisdiction or suffers from an error apparent on the face of the record. For these reasons, we dismiss the writ petition with costs. A.H. Petition dismissed.