P L D 1959 (W (PLP)

11. Before proceeding further let me state that apart from the order passed by Sir Thomas Ellis the petitioner has no case. If he had come to this Court on the simple basis that there was an allotment in his favour of a portion of house No. 1, Edwards Road, Lahore, and that I should in this writ petition grant him possession of that portion because the Rehabilitation Department were refusing to give effect to the order of allotment in his favour, I would have little difficulty in dismissing the petition. So far as the southern portion is concerned, that was never allotted to the petitioner in his favour and so far as the northern portion is concerned, the allotment in favour of Dr. Wasti was made on the 4th of November 1949 and the petitioner never objected to it. He filed no appeal against that order. Doctor Wasti has been in possession of that portion for about ten years and the petitioner has made no move at all to have him ejected from that portion. Apart from the legal objection which learned counsel for Dr. Wasti has put forward with respect to the contention of the petitioner that he is an allottee, the writ petition would have been dismissed on the ground of the long delay.

12. The ground of delay, however, does not apply to the enforcement of the order of Sir Thomas Ellis, and the question is whether the petitioner is entitled to have possession of a portion of house No. 1, Edwards Road, Lahore, delivered to him on the ground that that was the requirement of the order of Sir Thomas Ellis. On behalf of Dr. Wasti and the Rehabili tation Department, the following contentions have been raised with respect to the effect of the order passed by Sir Thomas Ellis :‑ (a) That he never passed any enforceable order, but in fact refused to pass any order on the ground that there was an order of the High Court which stood in his way. (b) That he did not even declare that there was a case of multiple allotment for he used the words prima facie and on the arguments addressed to me' which shows that he was not passing a final order. (c) That in any case he could not have held that the petitioner was an allottee of a portion of house No. 1, Edwards Road, Lahore, and he could not have directed that possession of that portion be delivered to the petitioner, these being matters beyond his jurisdiction. (d) That under section 29 of the Displaced Persons (Compen sation and Rehabilitation) Act, 1958, Dr. Wasti cannot be ejected.

13. Before proceeding to consider the first point, it will be convenient to reproduce here the Evacuee Property (Multiple Allotments) Act, 1957, (VII of 1957), as well as Rule 6‑A of the Pakistan Rehabilitation Rules, 1951 :‑ "

1. Short title, extent and commencement.‑(1) This Act may be called the Evacuee Property (Multiple Allotments) Act, 1957. (2) It extends to the whole of Pakistan. (3) It shall come into force‑-- (a) in the Federal Capital and in West Pakistan at once, and (b) in East Pakistan, or any part thereof, on such date or dates as the Central Government may, by notification in the official Gazette, appoint. "

2. Definitions.‑

In this Act, unless there is anything repugnant in the subject or context, `multiple allotment' means the allotment to one person, in his own name or in the name of his wife or in the name of any relative dependent on him, of more than one piece of evacuee property, and any person who obtains, in his own name or in the name of his wife or of any relative dependent on him, the allotment of more than one such piece for his residence or of more than one such piece for his place of business; obtains a multiple allotment: Provided that a person who so obtains one such piece for his residence and another for his place of business shall be deemed not to have obtained a multiple allotment: Provided further that a person who obtains such allotment of agricultural land under the Rehabilitation Settlement Schemes approved by the Central Government or of industrial concerns in accordance with the orders of the Industrial Rehabilitation Board appointed by the Central Government, shall be deemed not to have obtained a multiple allotment. "

3. Powers to reopen multiple and irregular allotments.‑-- (1) Notwithstanding anything inconsistent contained in any other law or enactment or in any instrument having effect by virtue of such law or enactment, the Central Government may appoint a person who is or has been a Judge of a High Court to investigate every allotment of evacuee property in respect of which any irregularity by way of multiple allotment has been committed or appears ‑to him to have been committed and authorize him to reopen any multiple allotment and pass suitable orders thereon. (2) Any order made under subsection (1) shall be final and shall not be called in question in any judicial proceeding in any Court.

4. Repeal.‑The Evacuee Property (Multiple and Irregular Allotments) Ordinance, 1956, is hereby repealed". "Rule 6‑A‑Execution of orders concerning multiple or irre gular allotments.‑(1) The Rehabilitation Authority, immediately on receipt of an order made under subsection (1) of section 3 of the Evacuee Property (Multiple and Irregular Allotments) Ordinance, 1956, (XXIV of 1956), shall pass an order in accordance with the terms thereof. (2) Any order passed under sub‑rule (1) shall be served on the person concerned in the manner prescribed in rule 8, and once it has been so served, any other person who holds, retains, occupies, or takes possession of the property thereafter shall be deemed to hold, retain, occupy or possess the property for and on behalf of the person concerned with knowledge of that order and no further order shall be served on such other persons. (3) It the person concerned, or the person deemed to hold, retain, occupy or possess the property for and on behalf of such person, fails to comply with any order served under sub‑rule (2) within seven days of the service thereof, the Rehabilitation Authority shall cause a case to be registered and dealt with by the police in the manner provided in that behalf in clause (c) of rule 6."

14. The contention is that unless there was an order which gave some directions there was nothing with which the Rehabi litation Authority was to comply, and the correct interpretation of the order of Sir Thomas Ellis is that he had refused to give any directions. He had found that the application before him was for delivery of possession of a portion of house No. 1, Edwards Road, Lahore. He was of the opinion that on account of the order of the High Court, he could not pass an order. He may not have been correct in his interpretation of the law and as a matter of fact the High Court judgment may not at all have stood in his way. But he was of the opinion that it did stand in his way and, for this reason he had refused to pass any order. There was, therefore, no order which was to be implemented. In any case, it is next argued the order is only a declaratory order which cannot be executed. The Rehabilitation Authority is only required to pass an order in terms of the order of the officer appointed under section 3 and the only order the Rehabilitation Authority could pass in this case would itself be declaratory in form.

15. Had there been a clear declaration to the effect that the allotment in favour of Dr. Wasti was within the mischief of the Evacuee Property (Multiple Allotments) Act, 1957, I would have found no difficulty in holding that the order was to be imple mented even if it was in declaratory form. This is not a case of a declaratory decree which cannot be executed. It is a case of an order which the Rehabilitation Authority is bound to give effect to. If Sir Thomas Ellis had declared that there was a multiple allotment in favour of Dr. Wasti, the Rehabilitation Authority was bound to do all that should be the result of the declaration. The Rehabilitation Authority would be bound to consider Dr. Wasti a person in unauthorised possession and to take all such further action as they would in that event have taken. In fact, it will be observed, the Rehabilitation Commis sioner had not objected that there was no executable order. He was prepared to eject Dr. Wasti if the order of the High Court did not prevent such a course. Also I do not see why the officer appointed under section 3 should go further than declare that a particular case is one of multiple or irregular allotment.

16. Difficulty is, however, created by the language that Sir Thomas Ellis used while recording his opinion that this was a case of multiple allotment. I have already reproduced the relevant portion of his order. He has used the words "prima facie and on the arguments addressed to me". We do not use such words when we are recording a final judgment. It is true that we always give judgments on the arguments presented to us, but we do not feel the need of saying so when we are delivering a final judgment in a case and we never say it is our prima facie finding. It is unfortunate that the language used by Sir Thomas E Ellis has created this difficulty for it may be that he would have reached t: a same conclusion had he been recording a final judgment, but still it is a question of holding an allotment void and of ejecting a person out of property of which he has been in occupation for a very long time and I would, not act except on a clearly recorded finding. While I would have acted on the orders of Sir Thomas Ellis even if it was declaratory in form I am unable to hold that he has passed any order at all under the Evacuee Property (Multiple Allotments) Act.

17. In the way of the petitioner there is a further difficulty. Even if 1 were to regard this as a declaration, it would not entitle the petitioner to get possession of one‑half of house No. 1, Edwards Road, Lahore. While Sir Thomas Ellis was entitled to reopen multiple or irregular allotment, it was not within his jurisdiction either to declare that the petitioner was a valid allottee or that he was entitled to possession. He could not grant him possession. He could only pass orders declaring multiple allotments or such orders as flew out of declarations of multiple or irregular allotments From the fact that Dr. Wasti holds a multiple allotment of one‑half of house No. 1, Edwards Road, Lahore, it does not necessarily follow that the petitioner is a valid allottee of any portion. The only effect of holding that Dr. Wasti has multiple allotment would be that the allotment would be void, Dr. Wasti would be liable to ejectment and the premises would be open to fresh allotment.

18. There is still further difficulty in the way. The peti tioner's claim can only be with regard to the northern portion, for that; without doubt, is the portion with respect to which an order had been passed in his favour. He has allowed Dr. Wasti to keep the northern portion for about ten years. He never believed himself to be an allottee of the northern portion and, therefore, did not move the authorities by appeal, revision or otherwise against the allotment of the northern portion. If in the case of multiple allotment, it is not the first but only the subsequent allotment that is to stand cancelled, then the allotment which has to be cancelled in the present case would be the allotment of the southern portion in favour of Dr. Wasti which was made on the 27th of May 1952 and not the allotment of the northern portion. The fact that the petitioner misunder stood his position does not improve his case.

19. The respondents do not admit that there was even a valid allotment in favour of the petitioner. They contended that the mere passing of the order `allotted' does not amount to an allotment, and it is only when a formal order of allotment is signed and issued that a person becomes an allottee. In any case, they go on to contend, the order of allotment was passed under the Rehabilitation Order which had expired and the order had automatically come to an end. With the first part of this contention I would not agree. I do not accept that as long as a formal order of allotment is not signed and delivered, there is no allotment in favour of an allottee. If that were so, any allotment made by the Additional Rehabilitation Commissioner in appeal would have no force at all and either the Rehabilitation Commissioner or some other Rehabilitation Authority would be entitled to nullify the order of allotment by refusing to issue an allotment order. That would be granting a power of review which certainly is not contemplated by the Rehabilitation Act. Once an order of allotment is passed, a formal order has to be issued. It is like a judgment and decree. Judgment having been delivered, a decree must follow. However, the second part of the contention has force. The West Punjab Economic Rehabilitation Ordinance was promulgated on the 9th of September 1947. The Assembly Session began on the 5th of January 1948 and the 16th of February 1948, i.e., after six weeks from the beginning of the Session the Ordinance expired. The Rehabilitation Ordinance was not substituted by any Rehabilitation Act. The result was that after the 16th of February 1948, there was no Rehabilitation Law applicable to the Punjab till the Central Rehabilitation Ordinance was promulgated. As the West Punjab Economic Rehabilitation Ordinance was only a temporary statute, orders of allotment passed under it would cease to have force. Unfor tunately the Central Rehabilitation Ordinance also does no validate or continue the orders passed under the Punjab Rehabilitation Ordinance.

20. I would not, however, agree with the contention raised that section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, stands in the way of enforcement of the order passed under the Evacuee Property (Multiple Allotments) Act, 1957. Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as it originally stood, is as follows :‑ "

29. Ejectments.‑(1) Notwithstanding anything contained in any other law for the time being in force, no order of ejectment passed on or after the seventeenth day of February 1958, by any authority in respect of any house or shop shall be given effect to, and where, in pursuance of any such order, any person has been dispossessed of any such house or shop, he shall be deemed to be in possession thereof. (2) Nothing in subsection (1) shall apply to an order of ejectment passed under this Act, or to any person dispossessed in pursuance of any such order, or to any person (other than a claimant) dispossessed in pursuance or as a result of an order passed before the aforesaid date by the Rehabilitation Commis sioner or by the Custodian." It is amended by Order I of 1959 which came into force on the 26th day of March 1958. The following is the amended section:‑ "

29. Ejectments.‑(1) The Chief Settlement Commissioner nay ejector cause to be ejected any person in possession or occupation of any evacuee property whose possession or occupation is not authorized by 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, when called upon, has failed to pay public dues, or has wilfully caused damage to any evacuee property allotted to or occupied by him, and for the purpose of such ejectment use or cause to be used such force as may be considered necessary. (2) The Chief Settlement Commissioner may delegate the powers under subsection (1) to any Settlement Commissioner or Additional or Deputy Settlement Commissioner." Even the unamended section did not prevent dispossession in pursuance of an order passed before the 17th day of February 1958. In the present case the order of Sir Thomas Ellis was of the 8th of August 1.957, and if the order was one which contained a clear declaration, it could have been enforced on the very day on which it was passed. The. contentions put forward by learned counsel for Dr. Wasti are that the intention of the original section 29 was to prevent dispossession of persons under the Evacuee Property (Multiple Allotments) Act, 1957, and so far as the amended section is concerned the intention is that it is only the Settlement Commissioner who can now pass orders of ejectment. I am unable to agree with either of these two con tentions. The section, even as it originally stood, did not affect orders passed under the Evacuee Property (Multiple Allotments) Act, 1957, before the 17th of February 1958 and as amended it cannot be interpreted so as to take away all powers conferred on Rehabilitation Officers or on the Custodian by the Rehabilitation and Evacuee Property Acts. Learned counsel says when powers are granted to the Settlement Commissioner, there is an implication that the powers of the Rehabilitation Commissioner are taken away. I am unable to see any such necessary implication. If the intention was that the Rehabilitation Commissioner should no longer exercise the powers he possessed under the Rehabili tation Act, then the sections relating to these powers in the Rehabilitation Act, should have been replaced or at least a clear provision to that effect should have been inserted in the Dis placed Persons (Compensation and Rehabilitation) Act, 1958. As long as the relevant provisions of the Rehabilitation Act are not repealed, the Rehabilitation Authorities are entitled to exercise the jurisdiction vested in them. If I were to accept the con tention of learned counsel that the intention is to give all powers of ejectment to the Chief Settlement Commissioner, I would also have to hold that the Custodian possesses no powers of ejectment of persons in unauthorised possession of evacuee property. I have little hesitation in holding that these powers do vest in the Custodian even now.

21. This writ petition fails, but there is no order as to costs. A. H. Petition dismissed.