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Writ Petition No. 488 of 1957, decided, on 9th December 1957.

, S. 12‑Custodian whether acts in a quasi‑judicial capacity‑Person in possession of property alleged to be evacuee ‑Whether to be given an opportunity to be hard.

Where it was contended that when the Custodian pro ceeds under section 12 of the Administration of Evacuee Property Act, 1957 he acts not in a quasi‑judicial capacity but as an administrative officer and consequently an order passed under that section is only an administrative order and there fore no opportunity of being heard need be given to the party concerned.

Held, that even if the Custodian acts under section 12 of the Administration of Evacuee Property Act, 1957 as an administrative officer, the provision of the section is such that the Custodian has to ascertain facts and law and therefore he is under a duty to act according to the principle of natural justice. The provision of section 12 of the Evacuee Property Act, 1957 requires judicial consideration by the Custodian of various facts and of law. The Custodian has to consider whether the property which is alleged to be in possession of the person is evacuee property or not; this could be a mixed question of fact and law. It is only on facts proved that the Custodian can come to the conclusion that the property in question said to be in possession of the person was evacuee property. He has also to consider whether the person who was in possession of evacuee property was in such posses sion after the approval of the Custodian or after his possession had been authorised by the Custodian. All these questions, are mixed questions of fact and law and the Custodian has to consider these questions in a judicial or at any rate in a quasi‑judicial manner.

, Ss. 2 & 12‑Person alleged to be in unauthorised possession of evacuee residential building converting it into a hotel after partition‑Whether business of hotel can be treated as evacuee property.

A was in possession of an evacuee building and was running a Hotel therein. The Custodian, holding that A was in unauthorised possession of the building and also holding that the building in his possession was a residential building prior to partition which A had subsequently converted into a Hotel, acting under section 12 of the Administration of Evacuee Property Act, 1957 directed A to be ejected from the building and at the same time requested the Rehabilitation Commis sioner to take possession of the Hotel and to run it under his own supervision. On the question whether under the circum stances, the Hotel business could be treated as evacuee property and taken possession of by the Custodian or the Rehabilitation Department.

Held, that the order of the Custodian showed that the building in question was a residential one before partition and it was only after partition that converted it into a Hotel. As such the running concern viz., the Hotel was not evacuee property and the order of the Custodian passed in respect of the Hotel was without jurisdiction.

R. v. Manchester Legal Aid Committee All England Law Reports 1952 V. 1 and Board of Education v. Rice (6) (1911) A C 182 ref.

Province of Bombay v. Khushaldas A I R 1950 S C 222 and Nakkuda Ali v. M. F. De S. rlayaratne 1951 A C 66 disting.

S. Mahmud Raza for Petitioner.

Riaz Ahmad for Respondent.

The present writ petition arises under the following circumstances. The petitioner Abdul Kadir Ayub is in occupation of a three storied building situated at Rampant Row, Akhund Abdul Rehman Street, Karachi. The building belonged to an evacuee, namely, Gayanmal Shewaram. According to the petitioner the building was in possession of one Abdul Majeed as a tenant who was running a hotel known as "Madras Hotel" since 1948.

The petitioner's case is that he purchased the running concern, namely, the hotel business for Rs. 31.500 on 19th Sep tember 1949. He paid rent to the Custodian through a cheque for the period from 1st February 1948 to 30th September 1952 on 17th September 1953. He has filed a copy of the said receipt.

The petitioner received a notice from the Assistant Cus todian, Karachi to appear before him. The petitioner gave his statement setting out the facts and the circumstances leading to his possession of the said building. The Assistant Custodian passed an order directing that the tenants should not pay rent to the petitioner. The petitioner filed a revision from that order to the Custodian which was fixed for hearing on 6th September 1957. On 6th September 1957 when the revision application came for hearing the learned Custodian, it is alleged by the petitioner, without hearing him passed the following order

"The order has already been passed requesting the Rehabi litation Commissioner to evict the applicant. This applica tion does not lie. Summarily dismissed."

On behalf of the petitioner two points are made out. In the first place, that the petitioner was not given an opportunity to be heard on 6th September 1957 when his revision applica tion came for hearing. In the second place it was urged that the hotel business is not an evacuee property and therefore the possession of the same by the Custodian or the Rehabilitation Department is illegal. We would consider these two questions separately.

So far as the first question is concerned, namely, that the petitioner was not given an opportunity to be heard on his revision petition Mr. Riaz the learned counsel for the Custo dian has ably contended that the order was only an administra tive order and therefore the question of the petitioner having been given an opportunity to be heard did not arise. Mr. Riaz contended that when the Custodian is proceeding under section 12 of the' Administration of Evacuee Property Act 1957 he Acts not as a quasi‑judicial body but as an Administra tive Officer. Section 12 of the Evacuee Act, 1957 reads as under :‑

If any person who is in possession, supervision or management of any evacuee property or property which he knows or has reason to believe is evacuee property‑ and whose authority or right to occupy, supervise or manage such property after the twenty‑eighth day of February 1947, has not been accepted or approved by the Custodian does not surrender such property to the Custodian or the person authorised by him in this behalf then, without prejudice to any other action or penalty to which such person may other wise be liable, the Custodian may use such force as is necessary for taking possession of such property and may or this purpose, after giving reasonable warning and facility to any woman not appearing in public to withdraw, remove or break open any lock, bolt or door, or do any other act necessary for the said purpose.

Mr. Riaz contended relying on the above provision of the Act that the order passed by the Custodian was only an adminis trative order. He also relied in support of his contention on two cases in Province of Bombay v. Khushaldas S. Advani (A I R 1950 S C 222) (since deceased) and after him his legal representatives (a) Go vindram Khushaldas_and (6) Ramchand Khushaldas and others) and Nakkuda Ali v. M. F. De S. Jayaratne (1951 Appeal Cases 66).

We have given our careful consideration to the contention raised by Mr. Riaz and we have come to the conclusion that even if we were to accept the contention of Mr. Riaz the pro vision of section 12 of the Evacuee Act is such that the learned Custodian has to ascertain facts and law and therefore tie is under a duty to act according to the principle of natural justice. In this connection the observations made by Parker, J. in R. v. Manchester Legal Aid Committee (All Eng. L R 1952, V. 1) relying on the observations of Lord Loreburn in Board of Education v. Rice ((1911) A C 182) are as follows :‑

An administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of and are not in accordance with the practice of a Court of law.

In the case of Board of Education v: Rice Lord Loreburn, L. G. was of the view that the administrative body also should give a fair opportunity to those who are parties in the contro versy for correcting or contradicting any relevant statement prejudicial to their view. The provision of section 12 of the Evacuee Act as reproduced above requires the judicial con sideration of the Custodian of various facts and of law. The Custodian has to consider whether the property which is alleged to be in possession of the person is an evacuee property or not; this could be a mixed question of fact and law. It is only on facts proved that the Custodian can come to the con clusion that the property in question said to be in possession of the petitioner was an evacuee property. He has also to consider whether the person who was in possession of the evacuee property was in such possession after the approval of the Custodian or after his possession has been authorised by the Custodian. All these questions are mixed questions of fact and law and the Custodian has to consider these questions in a judicial or at any rate in a quasi‑judicial manner.

The cases relied upon by Mr. Riaz the learned counsel for the Custodian also do not apply to the facts and the circum stances of the present case. The case of Province of Bombay reported in A I R 1952 S C 222 would not be applicable to the present case as in that case the question was whether the building was required for public purpose or not which the Supreme Court held to be subjective determination by the executive. So far as section 12 is concerned the Custodian has not to give any subjective determination of any fact before proceeding under section 12 of the Evacuee Act, 1957. So far as the case of Nakkuda Ali reported in 1951 Appeal Cases 66 is concerned that would also not apply to the facts of the present case. In that case the Controller of Textiles while proceeding under regulation 62 had to determine whether there was any reasonable ground to believe that a dealer was unfit before he cancelled his licence. This was a subjective satisfaction and therefore their Lordships of the Privy Council came to the conclusion that this was an executive order. As we have already given our reasons the provisions of section 12 of the Evacuee Act are not similar to that of regulation 62 of the Defence (Control of Textiles) Regulations, 1945 of Ceylon.

The most important question so far as the present writ petition is concerned is whether the learned Custodian had any jurisdiction to pass the order that he has passed in respect of the running concern known as Madras Hotel. The order of the learned Custodian dated the 15th September 1957 is a speaking order and in order to decide this question it would be convenient to reproduce the same

"Madras Hotel situated at Rampart Row Road, Mithadar, Karachi‑2, is an evacuee property. The rent of this building was assessed by this Department at a very nominal figure of Rs. 180 p.m. At the time of partition this building was a residential one but later on it was converted into a Hotel. One A. K. Ayub is at present in unauthorised possession of this Hotel and he is running it and making huge profits. He alleges that he purchased this Madras Hotel as a running concern from one Abdul Majid for Rs. 31,500 in 1949. This tran saction was not confirmed by the Custodian nor is there any trace of this Abdul Majid. Ayub has declared his inability to produce him. I have no doubt that this Abdul Majid is a fictitious person and the allegation of Ayub is false. There are 30 rooms in this building and Ayub is making at least Rs. 3,000 p.m. from the rents thereof. This Ayub has no allotment order whatsoever, and he is a trespasser pure and simple.

In view of all these reasons I direct that this Ayub must be forthwith ejected from the possession of this Hotel. He should not be allowed to recover any rents from the tenants. He should submit the account of his earnings from the date he has been in possession. The Rehabilitation Commissioner is requested to take possession of the Hotel at once and he should for the present run it under his own supervision till such time that a final decision with regard to it is Ayub has made several unauthorised constructions and has also converted this building into a Hotel for his own personal gain and profit and therefore a notice should be issued to him to show cause why he should not be prosecuted under section 31 of the Evacuee Property Act XII of 1957."

We have come to the conclusion that the running concern known as Madras Hotel is not an evacuee property as held by the learned Custodian in his impugned order dated 15th Sep tember 1957. We have not considered any other evidence on the record except the order of the learned Custodian himself in coming to the conclusion that the said concern is not an evacuee property. We would now deal with the question whether this property is evacuee property or not.

The following facts appear from the order that we have reproduced above

(1) The building in question was a residential one before partition.

(2) Ayub has converted this building into hotel for his own personal gain and profit.

On these two facts which we find in the order of the learned Custodian the only conclusion that can be drawn is that so .far as the so‑called running business i.e. Madras Hotel is concerned it is non‑evacuee property. Admittedly before partition as would appear from the order the building was being used for residential purposes. It was only after the partition that the petitioner converted it into a hotel. We may here mention that we have not taken into consideration the facts alleged by the petitioner as to how he came in posse ssion of this hotel but we have confined ourselves to the findings arrived at by the learned Custodian himself in his order dated 5th September 1957 as reproduced above.

We may make it clear that our conclusions are confined only to the running concern and not to the building. We would also make no observations as regards the tenancy right.

We would for the reasons given above and having come to the conclusion that the running concern is non‑evacuee property, quash the order of the learned Custodian dated 15th September 1957. The possession taken over by the Rehabili tation Commissioner in consequence of the order passed by the learned Custodian on 15th September 1957, for the reasons that we have given, is illegal. We would order the Rehabili tation Commissioner to hand over the possession to the petitioner. The Custodian or the Rehabilitation Department after the possession of the running concern, which we have held to be non‑evacuee property, has been given over to the petitioner may proceed according to law in respect of the tenancy right. We would allow the costs of this petition.

K. B. A. Order quashed.

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