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Writ Petitions No. 127 to 143 of 1955, decided on 7th February 1956.

, S. 223‑A‑Writ of Mandamus‑Against Rehabilitation Authority‑ Ejectment with out notice under S. 8 (2) (b), Pakistan Rehabilitation Ordinance (XIX of 1948)‑Writ may be issued in proper cases even if other remedy open.

There is no jurisdiction in the Rehabilitation Authority to eject an allottee if the latter has not been served with a notice under section 8 (2) (b) of the Pakistan Rehabilitation Ordinance (XIX of 1948).

Such an order of ejectment would be set aside and possession restored to allottees by writ of mandamus issued to Rehabilitation Authority.

Where want of jurisdiction is patent on the face, or the order is against natural justice, or where the alternative remedy is too costly or entails delay which may render relief valueless, writs may issue to set right the wrong even if there is other remedy open to the petitioner.

If a party is able to establish a case of the type above mentioned, the fact that he has not availed himself of the remedies by way of appeal or revision provided by the statute is not a bar to grant of relief by issue of a writ.

Secretary of State v. Mask & Co. A I R 1940, P C 105 ref.

Muhammad Nasim for Petitioner.

S. B. Mirza A. A. G. for Respondents.

‑These seventeen petitions are filed for the issue of a writ in the nature of Mandamus or any other appropriate writ commanding the respondents to restore to them the possession of the flats which had been allotted to them.

For the sake of convenience they have been heard together because they involve identical questions for determination.

In August 1947, 17 families of Chipa community migrated to Hyderabad from Ajmere‑Merwara. In November 1947 the Rent Controller Hyderabad allotted to the heads of the said families small vacant flats in Roop Mahal under the Sind Rent Restriction Act, 1947. On 26th November 1947 Watoomal landlord it is alleged, let out these flats to the petitioners. In July 1948, Watoomal migrated to India and it is alleged that from August 1947 to March 1955 the petitioners paid rent to the Deputy Custodian Hyderabad who recognised them as tenants of the flats and realised rents from them. Some petitioners' names and the payment of rents by them till 31st March 1955 are entered in the survey register of the Deputy Custodian.

On the 27th July 1955 respondent No. 1, the Rent Controller, Hyderabad, issued ejectment notices directing them to vacate the flats within a week on the ground that they would be removed to Latifabad. Their appeals to res pondent 2 the Deputy Rehabilitation Commissioner Hyderabad were summarily rejected on 1st October 1955 on the ground that the buildings were required for the One‑Unit Divisional set up. The petitioner were ejected by police force on 8th October 1955. They approached the Commissioner designate and the Rehabilitation Commissioner who allowed them to occupy the premises as an interim arrangement till the requisition of the buildings under section 35 of the Land Acquisition Act with the previous approval of the Central Government.

The affidavit filed by the P. A, to Respondent 2 does not disclose the authority under which the ejectment notices were issued and the learned A. A. G. cannot show the authority. The petitioners could only be ejected under section 8 (2) (b) Rehabilitation Ordinance, hereinafter refer red to as the Ordinance, which runs as follows :‑

"A Rehabilitation Commissioner may‑---

(b) Eject summarily with the use of such force as may be necessary any person in possession of any abandoned land, building, business or undertaking, whose possession thereof has not been authorised by the Rehabilitation Authority, or to whom such land, building, business or undertaking has been allotted whether the stock‑in‑trade or machingry involved in the business or undertaking has been sold to him or not but who has failed to observe any of the conditions of the allotment, or who has subsequently been found in the opinion of the Rehabilitation Authority to be an unsuitable person to hold the property so allotted, .

The procedure for summary ejectment under this Ordi nance is laid down in rule 6 of the Rehabilitation Rules, 1951 as under :‑

"(a) The Rehabilitation Authority shall in the first instance issue a notice to the unauthorised person to show cause within a period which shall not be less than 7 days why he should not be ejected ;

(b) After consideration of the representation if any, made by or on behalf of the unauthorised person and after taking such evidence as he may consider necessary, the Rehabilita tion Authority may make an order under clause (b) of the subsection (2) of section 8 which shall be served in the manner prescribed in rule 8".

It is conceded that these notices were not issued. The petitioner's case does not fall under any of the clauses of section 8 (2) (b). They were not ejected on the ground of their unauthorised possession or failure to observe a condition of allotment or unsuitability to hold the property allotted. They were ejected without authority of law. We consider that it is the duty of the Rehabilitation Commissioner to comply with the statutory requirements of section 8 (2) (b) of the Ordinance and rule 6 framed thereunder, for issue of notice. If he does not do so, no foundation is laid for the jurisdiction to eject the petitioners, and the proceedings taken by him are liable to be set aside. As the orders of ejectment were made without jurisdiction, the orders made on appeal could not improve matters in any way.

It is contended that writs are ordinarily not issued where there exists an alternative remedy equally efficient and adequate. But there was no inflexible rule that such writs can not be issued where the Court thinks it just and convenient to do so. The fact that it ordinarily does not do so is a question not of want of jurisdiction but of expediency. Whether the alternative remedy is equally efficacious or adequate is a question of fact to be decided in each case.

In the following cases a writ will be issued notwithstanding an alternative remedy whether under a statutory provision or otherwise :‑

(1) Where a tribunal assumes jurisdiction and the want of jurisdiction is patent on the face of it.

(2) Where the proceedings complained of are against the principles of natural justice, and

(3) Where the alternative remedy is too costly or entails such delay that the applicant would be irreparably preju diced or the remedy might prove valueless.

We are of the opinion that in these cases the proceedings were without jurisdiction and against the principles of natural justice having regard to the fact that the petitioners were ejected without the statutory notices and considering their representations under rule 6 of the Rehabilitation Rules. This Court would have jurisdiction to afford relief against the acts or orders of the authorities where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure Secretary of State v. Mask & Co. (A I R 1940 P C 105). If the above were established, the aggrieved party is not bound to pursue the statutory remedies provided by the Act, and the fact that he has not done so is no bar to the jurisdiction of the Court. It follows that the right to resort to Court would not be barred even if the statutory remedies were availed of for the same infirmity would attach to the final orders as would apply to the original one. We are also clear that if a party were able to establish a case of the type abovementioned, that he has not availed himself of the remedies by way of appeal or revision provided by the Act is not a bar to the maintainability of the application or the granting of relief to such applicant. The objection to the jurisdiction of this Court to interfere with the orders of the Rehabilitation Authorities must be repelled.

We therefore hold that this is a fit case in which a writ of mandamus should be issued against the respondents as prayed in clause (a) of para. 22 of the petitions. The res pondents will bear the costs of the petitioners. This judgment governs the 17 above‑mentioned cases.

A. H. Mandamus issued.

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