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Writ Petition No. 235/R of 1958, decided on 10th September 1958.

S. 7‑Confers power of ejectment on any Rehabilitation Authority.

S. 7 (2) (b)--Ejectment‑Notice necessary in all three categories of persons mentioned in cl. (b)‑Pakistan Rehabilitation Rules, 1951, R. 6 (a)

Unauthorised person" means person liable to be ejected under any category‑Notice mandatory‑Ground of ejectment to be stated in notice‑Notice necessary in interest of justice even if not provided by Rules‑Ejectment order without notice set aside in writ proceedings‑Constitution of Pakistan; Art. 170.

Held that the expression "unauthorised person" in R. 6 (a), Pakistan Rehabilitation Rules, 1951 bearing on ejectments under S. 7 (2) (b), Pakistan Rehabilitation Act (XVII of 1956), was intended to cover all the categories of persons which can be ejected under section 7 (2) (b). There seems to be no valid reason or principle for giving notice of proposed ejectment to "unauthorised persons" only and for depriving the other categories 'of persons to be ejected of the benefit of notice.

In the opinion of the framers of the rule all those persons who could be ejected under section 7 (2) (b) were "unauthorised persons" inasmuch as their position ceased to be "authorised" as soon as they failed to observe any of the conditions of allot ment, or subsequently became unsuitable persons to hold the property, or the property itself ceased to be evacuee property and, therefore, unretainable by an allottee under the Evacuee Property laws.

Further that setting out the ground of ejectment in the notice is implicit in the rule.

Even if provisions of notice in R. 6 were inapplicable to categories other than "unauthorised", notice is necessary in the interest of justice.

A writ of certiorari issues when such an opportunity is denied.

Where notice is required, not by law, but only by rules of natural justice it is not necessary that it should be given in any particular form or manner, so long as a person had had, some how, sufficient opportunity to meet the case against him.

Zahiruddin v. Rehabilitation Commissioner P L D 1956 Lah. 1090 distinguished.

Where a person to be ejected had no opportunity of meeting the allegation that he was a defaulter in rent'‑the sole ground on which he was sought to be ejected‑the order was set aside by the High Court in writ proceedings under Art. 170, Constitution of Pakistan.

M. Naqi Chaudhri for Petitioner.

Agha Abdul Ali for Advocate General for Respondents 1 to 3.

Shamim Hussain Qadri for Respondent 4.

Dates of hearing : 9‑9‑58 and 10‑9‑58.

The petitioner is an allottee of an evacuee shop (No. F 746) in Sua Bazar in the City of Lahore. A notice dated the 19^th of September 1957 was issued to him by the Additional District Rehabilitation Officer requiring him to appear on the 8th of October 1957 and show cause as to why he should not be ejected from the shop on account of "contravention of the terms of allotment" by "not carrying on business in the shop and having abandoned the same". The petitioner appeared before the A. D. R. O. on the 8th; but as 'the case was not reached on that date, it was, taken up on the next day. On the 9th the A. D. R. O's Reader recorded a statement of the petitioner and the respondent No. 4 Muhammad Amin, at whose instance a eject ment notice had been issued, and fixed the 19th for announcement of his order. The order, however, was actually announced on the 28th of October. The A. D. R. O. ordered the ejectment of the petitioner on the ground that‑ the petitioner himself was actually residing in Tahsil Dipalpur, where he had been allotted 8 acres of agricultural land and his brother, who had in his possession another allotted shop, was carrying on business in the shop in question. By the same order he allotted the shop to the' respondent Muhammad Amin. The petitioner s appeal to the D. R. C. was dismissed on the: 3rd of December 1957. The learned D. R. C. while upholding the order of the A. D: R. O. on the grounds on which it was based, also observed in his order that the petitioner had paid no rent until the date of the' A. D. R. O's order. The petitioner's revision petition to the Rehabilitation Commissioner, Lahore Division, was rejected on the 3rd of April 1958. The Rehabilitation Commissioner upheld the order of ejectment only on the grounds on which it was passed by the A. D. R. O. and did not mention the question of non‑payment of rent.

One of the grounds on which the order of the petitioner's ejectment has been assailed is stated as follows in the writ petition :

"According to the Government instructions no ejectments are to be made from evacuee property carrying a monthly rent upto Rs. 30. The rent of this shop is Rs. 25 per month".

' It has been stated at the' bar, and not contradicted by the respondents, that Rs. 25 per month is the gross rent and that the petitioner has to pay only Rs. 17 per month after the usual deductions permitted by the Rehabilitation Department. To this objection respondents 1 to 3 replied, in their written statement by asserting : "ejectment proceedings could be taken against the defaulter in rent of commercial and income yielding premises. He was a defaulter in rent, hence ejectment proceedings were started against him under Deputy Rehabilitation Commissioner's order dated the 3rd of December 1957 (which was passed before 17th February 1958), the date specified under section 29 of Act XXVIII of 1958)". It is thus admitted that the petitioner could not be ejected on the ground mentioned in the notice.

Both the learned counsel for respondents 1 to 4 have frankly admitted and, in view of the written statements of the Rehabilitation authorities, rightly‑that in the present case the petitioner, could have been ejected only if he were a defaulter in rent'. The petitioner's contention is that his ejectment is illegal because the notice which was given to him by the A. D. R. O, did not mention default in rent' as a ground of his proposed ejectment and he was never given any other notice at arty stage of the proceedings before the Rehabilitation Authorities to meet that allegation against him. As alleged in the written statement of the respondents 1 to 3, the contention of the respondents' learned counsel is that although the A. D. R. O's order, being based upon impermissible grounds, is illegal the petitioners' ejectment is justified by the D. R. C.'s order. As it has not been shown, or even contended, by the petitioner's learned counsel that the D. R. C. was incompetent to order ejectment himself in the first instance, the position taken up by, and on behalf of, the res pondents must be held to be admissible because section 7 of Act XVII of 1956, on the face of it, appears to confer power of ejectment upon any Rehabilitation authority'. The only questions, therefore, which call for consideration and decision in this case are : (1) Did the D. R. C. order the petitioner's ejectment on the ground that the latter was a defaulter in rent ; (2) Whether such an order could have been passed without giving the petitioner notice of the allegation either under the sixth rule of the Pakistan Rehabilitation Rules, 1951, or in accordance with the requirements of natural justice ; and, (3), If the last question be answered in the negative, whether the requisite notice, or opportunity, has been in this case given to the petitioner.

As to the first question, namely, whether the petitioner was at all ejected for being a defaulter in rent', it has already been pointed out that A. D. R. O. did not order the ejectment on that ground. The D. R. C. also agreed with the reasons given by the A. D. R. O. for his order in the following words :‑

"I have heard the learned counsel for the parties and have gone through the allotment record. There is the statement of Ghulam Muhammad himself on the record of this case, that he is the allottee of 8 acres of evacuee area in Dipalpur Tehsil, that he has got no allotment permit for the shop situate in Suha Bazar, that he sometimes goes to live in Dipalpur and in his absence his brother does business in the shop and that his real brother Jan Muhammad is also the allottee of a separate evacuee shop".

After this, the learned D. R. C. proceeded to add :‑

"The appellant also admitted in his statement that he had got no proof of the fact that he owned a shop in Delhi. He has also admitted that by the time the allotment order appealed against was passed, he had paid no rent either for the shop in question or for the separate evacuee house allotted to him". It is thus clear that while writing the order it struck the D. R. C. to mention some other circumstances which, in his view, justified the dismissal of the petitioner's appeal before him. That he mentioned these circumstances merely by way of moral, and not legal, justification for the petitioner's ejectment is apparent from the fact that the consideration mentioned in the first sentence, namely, that the petitioner had no proof of having owned a shop in Delhi, was no ground under section 7 (2) (b) of Act XVII of 1956 for ejecting an allottee of an evacuee property. Again the fact, even if true, that the petitioner had paid no rent for the shop in question could not, without giving the petitioner an opportunity to explain the circumstances in which the rent was not paid, per se lead to the conclusion that he was a 'defaulter in rent'. In his appeal to the Rehabilitation Commissioner the petitioner alleged that he had "been paying the rent of the shop in dispute since then and there are no arrears standing against his name". This ground was not considered by the R. C. who as already stated, upheld the ejectment order only on the ground mentioned in the A. D. R, O's. order. Can it, therefore, be said that the petitioner was ejected on the ground that he was a 'defaulter in rent' The original order of the A. D. R. O, and the last order passed by the Rehabilitation Commissioner do not even mention that ground. The fact that the highest Rehabili tation Authority did riot uphold the order of ejectment on that ground is again a strong circumstance in support of the view that in fact the petitioner was not ejected on the ground that he was a defaulter. In any case the R. C.'s order in revision is illegal because he has upheld the ejectment on grounds on none of which it could have been made.

Assuming, however, that the D. R. C. did treat the fact of non‑payment of rent by the petitioner as a ground for ejectment, the question arises whether the petitioner was ever given notice to meet that charge against him. It has been contended by the respondents' learned counsel that notice under rule 6 is required only in the case of an "unauthorised person" and not to a regular allottee. It is interesting to note that in their written statement the Rehabilitation Authorities averred: "There is nothing on the record to show that the shop in question was regularly allotted to him." In fact there is documentary evidence on the record to show that the petitioner is a regular allottee of the shop. Be that as it may assume, for the purpose of the respondent's contention, that the petitioner is not an "un authorised person". Section 7 (2) (b) of Act XVII of 1956 empowers a Rehabilitation Authority to eject a person in possession of any abandoned land or building (a) whose possession has not been authorised by the Rehabilitation Authority ; or (b) who has failed to observe the rules and conditions of allotment ; or (c) who has been subsequently found, in the opinion of the Rehabilitation Authority, to be an unsuitable person to hold the property allotted to him ; or (d) where the property in his possession has subsequently lost the character of evacuee property. Rule 6 runs as follows :‑

"Summary ejectment.‑The procedure for summary ejectment under clause (b) of subsection (2) of section 8 shall be as follows :‑

(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 ;

Sub‑rules (b) and (c) also relate to an "unauthorised person". It would be observed that while the rule expressly professes to lay down the procedure for ejectment under section 8 (2) (b), under which ejectment can be made on four different grounds, the entire procedure laid down in that rule (and there is no other rule in parri passu) would be confined, if the respondents' contention is accepted, to only one of the four classes of cases in which an ejectment order can be made. The expression "unauthorised person" in the rule does seem, at first sight, to suggest that the rule relates only to one category of persons to be ejected under that provision. Apart from the opening sentence of the rule the contents of sub‑rules (b) and (c)‑and particularly the latter‑strongly indicate that in fact the rule was intended to cover all the categories of persons which can be ejected under section 7 (2) (b). There seems to be no valid reason or principle for giving notice of proposed ejectment to "unauthorised persons" only and for depriving the other categories of persons to be ejected of the benefit of notice. In fact notice to the other persons is just as, or even more, necessary. An unauthorised person has only to show if he can, an allotment order in his favour; while a person against whom a contravention of the conditions of allotment is alleged, may have to collect and produce quite a substantial amount of evidence.

The expression "unauthorised person" used in rule 6, has not been defined either in the Rules or in the Act. That expression, as such, is also not used in section 7 (2) (b): wherein the words are : "Any person in possession of any abandoned land . , . . . . whose possession thereof has not been authorised by the Rehabilitation Authority". To hold that this language means, as obviously it does, precisely the same thing as the expression 'unauthorised person' in rule 6 would lead to such an incongruous and illogical result, which the framers of the rule could not have intended. It seems that in the opinion of the framers of the rule all those persons who could be ejected under section 7 (2) (b) were "unauthorised persons" inasmuch as their position ceased to be "authorised" as soon as they failed to observe any of the conditions of the allotment, or subsequently became unsuitable persons to hold the property, or the property itself ceased to be evacuee property and, therefore, unretainable by an allottee under the Evacuee Property Laws.

In view of all these considerations I feel constrained to hold that 'unauthorised person' in rule 6 means a person liable, to be ejected', and that notice under that rule must be given to all occupants of evacuee properties whom it is proposed to eject.

I believe this conclusion is also consistent with the practice and conduct of the Rehabilitation Authorities so far. In this very case notice under rule 6 was given to the petitioner although he was not a person whose possession (had) not been authorised by the Rehabilitation Authority'. The notice itself did not mention that as the ground on which it was sought to eject him. He was to be ejected because he was alleged to have become an unsuitable person to hold the property. As the requirements of the rule, which are mandatory, have admittedly not been com plied with in this case by notifying the petitioner that he was a defaulter in rent' the petitioner's ejectment must be held to be illegal. I note that the rule does not expressly require that the ground of ejectment must be stated in the not be, but the facts that it does require that the notice must be of at least seven days (so that the person notified may have time to prepare himself to show cause as to why he is not liable to be ejected) and that justice and fair dealing require that every one should have a fair and full opportunity to defend his rights or interests, make the conclusion inescapable that the statement of the ground of ejectment in the notice is implicit in the rule.

Even if rule 6 be inapplicable to this case there can be no manner of doubt that in all justice it was incumbent upon the Rehabilitation Authority to have given the petitioner notice in the sense of a full and fair opportunity to meet the charge of being a defaulter in rent'. In England a writ of certiorari issues when such an opportunity is denied. On behalf of the respon dents reliance was placed upon the last sentence in the following paragraph in the judgment of this Court in Zahiruddin v. Rehabi litation Commissioner (P L D 1956 Lah. 1090).

"A minor argument was also addressed to us in relation to the notice of ejectment . . . . . We doubt whether this provision (rule 6 of the Rehabilitation Rules) would apply to an unauthorised person, but even if it did, the petitioner has been through so many proceedings that by this time he has had sufficient notice of what is intended to be done to him and has had sufficient opportunity of showing cause."

The question whether notice, as required by rule 6, where the rule is applicable is indispensable was neither argued nor considered in that case. There can, however, be no doubt that. where notice is required, not by law, but only by rules of natural justice it is not necessary , that it should be given in any particular form or manner, so long as a person had had, somehow, sufficient opportunity to meet the case against him. The important fact to be noticed in Zahiruddin's case, however, is that their Lordships held that even where rule 6 is inapplicable sufficient opportunity to show cause is necessary.

In the present case it is obvious from the facts recited in the beginning of this judgment that the petitioner had no opportunity of meeting the allegation that he was a defaulter in rent. It was only in his order that D. R. C. mentioned that the petitioner "had paid no rent". He never called upon the petitioner to show that the latter had paid up the rent due from him or that he was not a defaulter. The petitioner in his revision petition to the Rehabilitation Commissioner complained, inter alia, that he had "been paying the rent of the shop in dispute since then (i.e., from 25‑5‑50 when his possession was authorised by the Rehabi litation Officer and he was asked to pay rent) and there are no arrears outstanding against him". But the Rehabilitation Commis sioner did not consider the matter at all and upheld the ejectment order on grounds upon which it could not admittedly be supported. The petitioner has thus been ordered to be ejected without giving him any opportunity to refute the charge‑the sole charge upon which he could be ejected‑levelled against him by the D. R. C. in his order, just by the way. In fact the D. R. C. was not at all conscious that he was upholding the ejectment order on that ground. As has been already pointed out he treated that circumstance only as a further moral justification for the order.

The only other point (not raised by the respondents' learned counsel) which remains to be considered is whether the petitioner had himself admitted in his statement before the A. D. R. (which according to the learned D. R. C. contained the admission) that he had paid "no rent". I find no such admission in that state ment. On the contrary the learned D. R. C. has grievously misread the statement. All that the petitioner appears to have stated before the A. D. R. O., in respect of that matter, was; "The rent of the shop is due from me". There is no mention of the period for which it may have been due, whether only for a month, or more or less. The petitioner's learned counsel showed me a large number of receipts of rent paid by the petitioner before and after the ejectment order. Be that as it may, the A. D. R. O. did not call upon the petitioner to show that he was not a defaulter, neither was that an issue before him; nor did he refer to it in his order. I find that the learned D. R, C. has mis‑stated the petitioner's statement before the A. D. R. O. in several respects, which it is unnecessary to consider for the purpose of this petition. The petitioner did not admit before the A. D. R. O. that he was a defaulter' or that any rent was due from him to the extent that may be considered, within the meaning of section 8 (2) (b), either to have failed to observe any of the conditions of the allotment' or to have become an unsuitable person to hold the property.

The ejectment order against the petitioner must, for the reasons stated above, be held to be contrary to law and justice and the respondents are hereby directed not to eject the petitioner from the shop in question in accordance with any order passed in the proceedings which culminated with the revisional order passed by the first respondent on the 3rd of April 1958. The petitioner shall have his costs in this Court against the first three respondents.

A. H. Petition accepted.

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