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Civil Appeals Nos. 19 and 35 of 1957, decided on 13th November 1957.
(On appeal from the judgment and decree of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 12th July 1956; in First Appeal No. 47 of 1953).
---Under local landlord‑Rights of to occupy building for period of un-expired portion of lease-Allotment of‑Allottees, held, not tenants and not entitled to benefit of Rent Restriction laws‑Sind Rent Restriction Act (X of 1947), S. 9‑Pakistan (Administration of Evacuee) Property Ordinance (XV of 1949), S. 20‑Pakistan Rehabi litation Ordinance (XIX of 1948), S. 8 (2) (b).
The co‑lessee of a building owned by a local landlord became an evacuee, and his rights to occupy the building with the other lessee therefore vested in the Custodian who acquired in the building precisely the same rights as the evacuee lessee had against the owner. These being evacuee property, were allotted to M etc. up to the 30th September 1950, when the lease was to come to an end in accordance with the agreement between the owner and the lessees. Upon an application by the owner to the Deputy Custodian that restoration of possession of the building on the expiry of the lease on 30th September 1950, be made a condition of the allotment, the Deputy Custodian ordered that he had no jurisdiction to do so holding that the allottee's interest under the allotment order would subsist till 30th September 1950, and that thereafter it would be for the Rent Controller to decide whether the allottees had a right to continue the possession.
Held, that the position of M etc., was that of allottees pure and simple. They were neither transferees of immovable property so as to become substituted for the Custodian as the tenants of the owner nor tenants or sub‑tenants of the Custodian because no lease was given to them by the Custodian himself, the allotment in their favour having been made by a different authority.
The allottees were not tenants of the property in dispute. The position of a person to whom property has been allotted, unless the allotment amounts to a lease by the Custodian, is not that of a tenant at all, and the incidents of his possession are determined exclusively by a special law, namely, the Rehabilitation Ordinance and the Administration of Evacuee Property Ordinance.
The Sind Rent Restriction Act was not at all applicable to the occupation of evacuee property which had been allotted by a Rehabilitation Authority.
The Sind Rent Restriction Act was a Provincial Legislative measure while the two Ordinances were promulgated by the Centre and were latex in date. It was therefore obvious that if there was any conflict between the Rent Restriction Act and either of the two Ordinances, the latter would prevail, not only on the ground that the Ordinances were later in date and were laws passed by the Central Legislature but also on the ground that their subject‑matter was much more special and restricted, than the general provisions of the Sind Rent Restriction Act which governed the' relations of landlord and tenant for the purpose of fixation of rent and eviction from the rented property.
In case of conflict, actual or possible, the provisions of the Ordinances must override the provisions of the Sind Rent Restriction Act. If this position be kept in view, then the Rent Restriction Act will not at all apply to evacuee property and a person who has been put in possession of evacuee property under an allotment by a Rehabilitation Authority and the conditions for whose occupation of the evacuee property have been fixed by the Custodian, cannot at all be entitled to the benefit of section 9 of the Act and neither the Custodian nor a Rehabilitation Authority can make such benefit available to him. This should be considered to have always been the legal position ; but now the matter is con cluded by section 5 (2) of the Pakistan (Administration of Evacuee Property) Act, 1957, which provides that for the removal of doubts it is hereby declared that nothing in any other law controlling the rents of, or evictions from any property, shall apply or be deemed ever to have applied to evacuee property. This provision amounts to declaratory legislation by which the existing law relating to the controlling of rents and evictions from property has to be interpreted, and if that provision applies the Deputy Custodian exceeded his jurisdiction by making it one of the conditions of the allotment that so long as they went on paying rent they could not be evicted from the property by any Court or authority.
The question of evicting the allottees on the expiry of the tease was a matter for the Rehabilitation Authority by virtue of section 8 (2) (b), Pakistan Rehabilitation Ordinance XIX of 1948).
-- S. 13‑8‑Order to be final must be within power of authority making it.
Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non‑existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded. On this view the orders made by the Rehabilitation Board and the Central. Government refusing to eject the respondents which were based on that part of the Deputy Custodian's order which was in excess of his jurisdiction were void and not final within the meaning of section13‑B of the Rehabilitation Ordinance, and it was the Rehabilitation Commissioner's order directing ejectment of the respondents that became final in law.
--‑Whether will entertain appeal from interlocutory order.
Held, that it is the settled practice of the Supreme Court that it does not ordinarily interfere with interlocutory orders.
Where an owner of valuable property had been deprived of its possession for as long as seven years owing to a mis understanding of the law by the Custodian, the Deputy Custodian, the Rehabilitation Board and the Central Govern ment, and if the interlocutory order was not interfered with, he was confronted with the possibility of being kept out of possession for several years more until the suit, the First Appeal, a Second Appeal and an appeal to the Supreme Court were decided;
Held, that it was a fit case for interference.
Bashir Ahmad, Senior Advocate, Supreme Court, Sardar Muhammad Iqbal and S. M. Sadiq. Advocates, Supreme Court, with him), instructed by Zahir Abbas, Attorney for Yousaf Ali.
Manzur Qadir, Senior Advocate, Supreme Court (Karam Elahi Chauhan, Advocate, Supreme Court, with him), instructed by M. Siddiq, Attorney for Muhammad Aslam Zia and others.
Dates of hearing : 11th, 12th and 13th November 1957.
Civil Appeals Nos. 19 and 35 of 1957, both by special leave, are from a consolidated judgment of a Division Bench consisting of Constantine and Waheeduddin Ahmed, JJ. Of the Karachi Bench of the High Court of West Pakistan. In Appeal No. 19, Yousaf Ali Mandviwala is the appellant and Muhammad Aslam Zia, Riazuddin and Muhammad Hussain the Respondents. In Appeal No. 35, the respondents of Civil Appeal No. 19 of 1957 are the appellants and the appellant of that appeal' the respondent. In this order, Yousaf Ali will be described as the appellant and Muhammad Aslam Zia, Riazuddin and Muhammad Hussain as the respondents.
The appeals arise out of a complicated and somewhat amusing litigation. The subject‑matter of the litigation is the property known as Seth Mandviwala Building, situate in Serai Quarters of the City of Karachi. This property belongs to the appellant, who on 23rd October 1945, gave it on a five years' lease to Jotumal Awatmal and Sundardass Kishan chand. The lease was to commence from 1st October 1945, and end on the 30th September 1950, the monthly rent agreed between the parties being Rs. 1,400. The building was to be used as premises for a hotel called the "Kashmir Hotel" and the lessees were not to assign the lease or sub‑let the premises without the written permission of the lessor. If the lessees failed to pay the monthly rent or committed any breach of the terms of the lease, the lessor after giving notice in writing of one week for the compliance of the conditions of the lease was at liberty to determine the lease before the expiry of the stipulated period of five years, the lessees being liable in that event to pay arrears of rent as well as the rent for the un-expired period of the lease. Rent for the whole period of the lease was payable even if tile lessees gave up the lease or vacated the premises earlier. On the expiry of the period of the lease, the lessees were to vacate the premises and deliver possession thereof to the lessor. If they failed to vacate the premises on the determination of the lease, they were liable to pay enhanced rent at the rate of Rs. 1,800 per month.
It appears that the lessees started the contemplated hotel business, the share of Jotumal Awatmal in the business being one‑fourth and that of Sunderdas Kishenchand three‑fourths.
On partition, Sunderdass Kisherichand left Pakistan and his interest in the lease was declared evacuee property. On 1st April 1950, this evacuee property was allotted to the Respondents by Mr. M. Ishak, Deputy Rehabilitation Commis sioner Karachi on the following conditions :‑---
(1) the allottees were to start the old business immedi ately, the share of Jotumal Awatmal in the business being one‑fourth and of each of the three allottees one‑fourth ;
(2) one of the allottees, by their mutual agreement was to act as the Managing partner of the concern ;
(3) the allotment was subject to such terms and condi tions, rules and regulations as might be determined by the Custodian or varied from time to time by Government orders;
(4) the allotment was to be valid up to 30th September 1950 unless determined earlier by any Rehabilitation Authority for the contravention of any of the terms and conditions of the allotment ;
(5) If at any time any of the allottees severed his con nection with the concern, he was to give a month's notice in advance to the Rehabilitation Commissioner ; and
(6) the allottees, from the date of their occupation, were to pay rent to the landlord and such other taxes as were payable in respect of the property. In case of any dispute about the rent the allottees were to be bound by the decision of a competent authority.
The allotment purported to be under clause (e) of sub section (2) of section 8 of Ordinance XIX of 1948, as amended by Ordinance XVI of 1949 read with subsection (1) of section 14 of Ordinance XV of 1949.
Though under the terms of the registered lease the tenancy was automatically to expire on 30th September 1950, the appellant on 25th May 1950 applied to the Deputy Custodian Karachi praying, inter alia;
(1) that the terms of the original lease may be confirmed and made binding upon the allottees ;
(2) that restoration of possession of the property on the expiry of the lease on 30th September 1950, be made the main condition in the order of allotment ; and
(3) that arrears of rent with interest and municipal taxes and the rent from 1st April 1950, onwards be ordered to be paid regularly to the appellant.
On 29th September 1950, i.e., only a day before the lease was to expire, the Deputy Custodian disposed of this appli cation, by, to say the least, a very queer order. He fixed the rent at the rate of Rs. 1,936 per month, the rent which was already being paid by the allottees on the date of the order, confirmed the shares which had been fixed by the Deputy Rehabilitation Commissioner and the management by one of the allottees, and declared that the allotment was to be valid up to 30th September 1950. But as to the appellant's prayer for restoration of possession on the expiry of the lease on 30th September 1950, he said :‑--
"Applicant's main prayer, inter alia, is that the restoration of possession of the property on the expiry of the lease on 30th September 1950, be made the main condition in the order of the allotment. I am afraid it would be beyond my jurisdiction to do so. It is true that the only interest that vested in the Custodian was the lease rights of the evacuees. It therefore follows that the allottees' interest under the allotment order would automatically come to an end on 30th September 1950 (i.e., date of expiry of lease term), there being no provision for renewal in the lease deed. But this does not mean that this Court has power on this account to order restoration of possession to the landlord. Section 9 of Sind Rent Restriction Act, 1947, clearly provides that no order for recovery of possession shall be made by any Court so long as the tenant pays or is ready and willing to pay the rent and to perform other conditions of the tenancy. There is nothing on record to show that the lessees have infringed any of the lease conditions. On the other hand the applicant has himself admitted that he has received cheques on account of rent. It is none of allottees' fault if he has deliberately chosen not to cash these cheques on flimsy grounds. It has not been shown or argued that the provisions of this section are repugnant to those of administration of Evacuee Property Ordnance XV of 1949. All that has been argued is that this section does not apply to leases for business. I can see no such limi tations in the wordings of the section. So the facts remain that the allottees' interest under the allotment order would subsist till 30th September 1950, and thereafter it would be for the Rent Controller to decide whether they have a right to continue the possession".
It is this officer's view that section 9 of the Sind Rent Restriction Act, 1947, would be applicable to the case on the expiry of the lease and that thereafter it would be for the Rent Controller to decide whether the allottees had a right to con tinue in possession, that has been responsible for all subsequent litigation and consequent complications. There would have been no trouble at all if the Deputy Custodian had made a straight forward order that since the allottees had been inducted into possession on the distinct understanding that the lease was to expire on 30th September 1950, they shall have to vacate the premises on that day. As it is, it is the expression of an opinion by him that the matter was governed by the Sind Rent Restriction Act 1947, that has actually kept the owner out of possession for more than a period of seven years. As will be shown later, the main point requiring determination in these appeals would be whether the view that the Deputy Custodian formed of his powers and of the application of the Sind Rent Restriction Act was correct.
The subsequent steps that the unfortunate owner took to have possession of his property restored to him need riot be stated in detail. He first approached the Custodian for revision of the Deputy Custodian's order, but his application was dismissed for default and a subsequent application for the restoration of the dismissed application also tailed. He then approached the Rehabilitation Board who by their order dated the 17th July 1951, referred to the condition imposed by the Deputy Custodian that the question of possession after the 30th September 1950, would be determined under the ordinary law and dismissed the appellant's application for restoration of possession. The appellant approached the Central Govern ment for the revision of this order but the Custodian acting on behalf of that Government dismissed the petition for revision by endorsing the Deputy Custodian's view that what was evacuee property had ceased to exist after 30th September 1950, and that therefore there was no property in respect of which powers given to a Rehabilitation Authority by section 9 (2) (b) of the Rehabilitation Ordinance XIX of 1998 could be exercised.
The bewildered owner then applied to the Rehabilitation Commissioner for the ejectment of the allottees. This officer took a sensible view of the matter and ordered the ejectment of the respondents under section 8 (2) (b) of Ordinance XIX of 1948. He said :‑---
"There are 70 or 72 rooms in this hotel of which, accord ing to the occupants, they are getting rents ranging from Rs. 3 to Rs. 12 per day. It seems to me that the present occupants of the hotel are behaving in a most irresponsible manner by keeping the property without the consent of the landlord and without any allotment having been made to them by the Rehabilitation Board after the 30th September 1950. This state of affairs must end.
"But it is quite clear to me that even if the lease does not end on the date specified in the lease, the present allottees had no right to stay in the hotel after the 30th September 1950, because the Rehabilitation Board allotted the building specifically for a period of six months to them ending on the 30th September 1950. No further allotment was made to them. Their conduct, while they have occupied the building has been extremely unsatisfactory. The landlord wants the building for himself for his own use.
I think this period of occupation of the hotel without paying any rent and in a manner unsatisfactory to the landlord must end. I therefore order that the three occupants, namely, Aslam Zia. Muhammad Hussain and Riazuddin should be ejected from the hotel under section 8 (2) (b) of Ordinance XV (sic) XIX of 1948".
This order was passed on the 26th October 1953, and im mediately the respondents instituted a suit on the original side of the High Court for a declaration that the order of the Rehabilitation Commissioner was illegal, ultra vires, without jurisdiction, inoperative and void and for an injunction restraining the landlord from ejecting or evicting them from the building or disturbing their possession in pursuance of or through the aforesaid illegal order. This claim to relief was founded on the allegations that one of the conditions on which this allotted property was held by the respondents was that the question of possession after 30th September 1950, would be determined under the ordinary law, that they were there fore entitled to the protection of the provisions of the Rent Restriction Act and that the order of the Rehabilitation Board with which the Central Government refused to inter fere in revision had become final and could not be set aside by the Rehabilitation Commissioner. With the plaint of the suit, the respondents also submitted an application for a temporary injunction which was granted ad interim but vacated by Muhammad Baksh Memon, J. after notice to the appellant. The matter appeared to be, quite simple to the learned judge who held that the condition imposed by the Deputy Custodian that the question of possession after the expiry of the lease would be decided under the ordinary law was a fraud on the statute, that in imposing this condition that officer had exceeded his jurisdiction, that the order in question had the effect of taking away the right of the landlord to move the Rehabilitation Authorities under section 8 (2) (b) of the Rehabilitation Ordinance to throw out the allottees by the use of force if necessary, that the allottees were neither tenants nor licencees but trespassers after the 30th September 1950 and that the order of the Rehabilitation Commissioner directing ejectment of the allottees was final under section 4 of the Rehabilitation Ordinance. From this order of the learned Single judge, an appeal was taken to a Division Bench, who relying on section 13‑B of the Rehabilitation Ordinance held that the order of the Rehabilitation Board dismissing the appellant's prayer for restoration of the possession had become final and that the Rehabilitation Commissioner had no juris diction subsequently to order the ejectment of the respondents. It appears that before the appeal was heard by the Division Bench, the order of the Rehabilitation Commissioner ordering the ejectment of the respondents had been carried out but since counsel for the respondents stated before the Bench that his clients would be satisfied if instead of restoring possession to them a Receiver were appointed, the order made in the appeal was that a Receiver be appointed. Accordingly, by order dated 8th August 1957, the Official Assignee .was appointed Official Receiver of the property until the decision of the suit. Appeal No. 19 of 1957, is directed against this order of the Division Bench.
As the respondents rested their claim to continue in possession after 30th September 1950, on section 9 of the Sind Rent Restriction Act, one of the issues between the parties was whether the amount which had been fixed by the Deputy Custodian and which the respondents were willing to pay for the period subsequent to the expiry of the lease was rent proper or compensation for use and occupation, the con tention of the respondents being that the amount was rent because of the continuance of the tenancy under section 9 of the Sind Rent Restriction Act while the appellant's position was that after 30th September 1950, the respondents were trespassers and the amount due from them for the occupation of the property after the determination of the period of the lease was not rent but damages for use and occupation. The appellant refused to accept the payments tendered by the respondents because such payments were offered as rent and brought a suit on the original side of the High Court for recovery of Rs. 26,605 partly as rent and partly as damages for use and occupation. The main issue in this suit was whether the amount claimed for use of the property for the period subsequent to the determination of the lease on 30th Sep tember 1950 was rent or damages for use and occupation, there being no substantial dispute about the amount itself. The suit was heard by Muhammad Bachal. J. who by his judgment dated 5th June 1953, held that the respondents were not trespassers but licensees after the expiry of the lease on 30th September 1950, and that the amount for that period was due from them for use and occupa tion. He accordingly directed the appellant to withdraw the amount which had been deposited in Court by the respondents and made a decree for the balance, namely, Rs. 2,400 with costs in proportion and interest 6 per cent. on Rs. 2,400 from the date of the suit till payment. In appeal No. 35 of 1957, the sole point requiring determination is whether the amount decreed for the period subsequent to the expiry of the lease is rent or damages for use arid occu pation.
Besides some subsidiary points, the questions involved in these appeals are two---‑namely,
(1) whether the respondents were tenants of the appellant for the unexpired portion of the period of lease, i.e., upto 30th September 1950, and
(2) whether section 9 of the Sind Rent Restriction Act governed the relation of the appellant and the respondents after 30th September 1950.
There can be little doubt that Sundardas Kishenchand's interest in the property, leased to him and Jotumal Awatmal under the registered lease deed 23rd October 1945, was evacuee property which is defined by subsection (3) of section 2 of Ordinance XV of 1949 as meaning "any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity)". 'Property' itself is defined by clause (5) of subsection (2) as meaning "property of any kind, and includes any right or interest in such property". By reason of this definition therefore the evacuee property in this case was the right or interest of Sunderdas Kishenchand in the lease of the building known as "Seth Mandviwala Building", which was being used for the purposes of a hotel. By section 6 of the Administration of Evacuee Property Ordinance XV of 1949, Sunderdas Kishenchand's interest in the property namely, the right to occupy the building with Jotumal Awatmal, vested in the Custodian who acquired in the building precisely the same rights as Sunderdas Kishanchand had as against the owner. The powers and duties of the Custodian are defined by section 20 of the Ordinance and these include the power to sell evacuee property provided that in the case of immovable property or any evacuee business or undertaking he obtains the previous approval of the Central Government. Among the specific powers given to him, the power to transfer otherwise than by sale is not in cluded. His general powers under subsection (1) of section 20 include "such measures as he considers necessary or expedient for the purposes of administering, preserving and managing any evacuee property which has vested in him and (he) may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto". This general power may include the power to let or lease evacuee property. It is, however, nobody's case that in the present case the Custodian transferred the evacuee property, namely, the right of the evacuee to occupy with his co‑lessee Jotumal Awatmal the Mandviwala building upto 30th September 1950, so as to invest them with the same rights as the Custodian had by reason of that property having vested in him. Nor can it possibly be contended that the Custodian granted a lease or sub‑lease of such evacuee property to the allottees. The Law governing the situation which has given rise to this dispute is that where the allotment of any evacuee property is to be made to any person, two different autho rities, with distinct and mutually exclusive powers, have to act. Under subsection (1) of section 14 of the Administration of Evacuee Property Ordinance, 1949, the allotment of evacuee property rests with the Rehabilitation Authorities. This allotment has to be communicated to the Custodian who on receiving such information has, under subsection (4) of that section, to fix the terms and conditions on which such property may be held by the allottee. The terms originally fixed may be subsequently revised or amended. Under section 5, the person to whom the property is allotted is deemed to hold the property on the terms and conditions fixed by the Custodian, and if he fails to comply with any one of them the Custodian under subsection (6) may take possession of the property. In accordance with these pro visions the property in suit was allotted by the Deputy Rehabilitation Commissioner and the terms and conditions on which it was to be held were fixed by the Deputy Custodian. The position of the respondent was therefore that of allottees, pure and simple. They were neither transferees of immovable property so as to become sub stituted for the Custodian as the tenants of the owner nor tenants or sub‑tenants of the Custodian because no lease was given to them by the Custodian himself, the allotment in their favour having been made by a different authority Subject to certain incidents which attached to that allotment under the Rehabilitation Ordinance, the Custodian's function was merely to fix the terms and conditions on which the property was to be held by the allottees. The Custodian himself could not and did not put them in possession or allot the property to them. It is true that the Custodian could take possession of the property if the terms and conditions fixed by him were not fulfilled by the allottees but that fact alone would not make them tenants of the Custodian in the usual sense of the term. In respect of such breach of conditions, a Rehabilitation Authority has powers concurrent with those of the Custodian to eject. That authority irrespective of any breach of the conditions fixed by the Custodian, has also the power to eject an allottee if he is subsequently found to be an unsuitable person to hold the allotted property. And if any property allotted as evacuee property subsequently loses the character of its being such property, a Rehabilitation Authority may eject the allottee by force. It is therefore clear that the respondents were not tenants of the property in dispute. The position of a person to whom property has been allotted, unless the allotment amounts to a lease by the Custodian, is not that of a tenant at all, and the incidents of his possession are determined exclusively by a special law, namely, the Rehabilitation Ordinance and the Administration of Evacuee Property Ordinance. It is contended by Mr. Manzur Qadir that at least upto 30th September 1950 the possession of the respon dents was that of tenants within the meaning of subsection (8) of section 2 of the Sind Rent Restriction Act, 1947. A tenant is defined by that Act as meaning "any person by whom or on whose account rent is payable for any premises and includes every person from time to time deriving title under a tenant and also every person remaining in possession of the premises leased to him after the determination of the lease with or without the consent of the landlord". The argument is that rent for the building was payable by the allottees and that in any case they derived their title under the Custodian who himself was a tenant. But the Sind Rent Restriction Act is not at all applicable to the occupation of evacuee property which has been allotted by Rehabilitation Authority. The object of that Act which was passed in 1947, is to regulate the supply of accommodation in the Province of Sind and in particular to provide for controlling the rents chargeable for such supply of accommodation and for preventing in certain cases eviction from the accommo dation supplied, whereas the object of the Administration of Evacuee Property Ordinance passed in 1949 is to provide for the administration of evacuee property and that of the Rehabilitation Ordinance, passed in 1948, to make provisions for the restoration and maintenance of the social and economic life of Pakistan and the orderly settlement of persons who have taken refuge therein. The Sind Rent Restriction Act is a Provincial Legislative measure while the two Ordinances were promulgated by the Centre and are later in date. It is therefore obvious that if there be any conflict between the Rent Restriction Act and either of the two Ordinances, the latter will prevail, not only on the ground that the Ordinances are later in date and are laws passed by the Central Legislature but also on the ground that their subject- matter is much more special and restricted than the general provisions of the Sind Rent Restriction Act which govern the relations of landlord and tenant for the purposes of fixation of rent and eviction from the rented property. Besides, section 4 of both the Ordinances expressly provides that the provisions of the Ordinances and any rule or order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law. If the contentions of the learned Counsel for the respondents be correct, then on a comparison of the two Ordinances with the provisions of the Rent Restriction Act, it will be clear that in respect of evacuee property the Rent Controller will be exercising the functions which under the Ordinances have been assigned to the Custodian or the Rehabilitation Authorities. This could not have been intended inasmuch as it will lead to complete subservience of the authorities functioning under the two Ordinances to the Rent Controller. We have therefore not the slightest doubt that in case of conflict, actual or possible, the provisions of the Ordinances must override the provisions of the Sind Rent Restriction Act. If this position be kept in view, then the Rent Restriction Act will not at all apply to evacuee property and a person who has been put in possession of evacuee property under an allotment by a Rehabilitation authority and the conditions for whose occupation of the evacuee property have been fixed by the Custodian, cannot at all be entitled to the benefit of section 9 of the Act and neither the Custodian nor a Rehabilitation authority can make such benefit available to him. This should be considered to have always been the legal position ; but now the matter is concluded by section 5 (2) of the Pakistan (Administration of Evacuee Property) Act, 1957, which provides that for the removal of doubts it is hereby declared that nothing in an, other law controlling the rents of, or evictions from any property, shall apply or be deemed ever to have applied to evacuee property. This provision amounts to declaratory legislation by which the existing law relating to the controlling of rents and evictions from property has to be interpreted, and if that provision applies to 'the present case as it clearly does, the respondents have no case and the Deputy Custodian exceeded his jurisdiction by making it one of the conditions of the allotment that so long as they went on paying rent they could not be evicted from the property by any Court or authority.
Mr. Manzur Qadir contends that subsection (2) of section 5 applies only to evacuee property and that the evacuee property, whatever it was, which was allotted to the respondents ceased to exist on the expiry of the lease on 30th September 1950. We are unable to accept this con tention. The evacuee property in the present case was the Mandviwala Building in so far as the original evacuee tenant was entitled to occupy it and though that tenant's interest ceased to exist on 30th September 1950, the Mandviwala Building still exists and the question of evicting anyone to whom it had been allotted by a Rehabilitation Authority is still a matter for the Rehabilitation Authorities. Only on this interpretation that provision of clause (b) of subsection (2) of section 8 of Ordinance XIX of 1948 which empowers a Rehabilitation Authority to eject summarily with the use of such force as may be necessary any person in possession of any property which, after it has been allotted to him as evacuee property, has lost the character of being such property either by a declaration or by the operation of any other law for the time being in force, can become intelligible and workable. There can be no doubt that the property "Mandviwala Building" was allotted to the respondents as evacuee property and that property lost the character of being evacuee property by operation of the law which makes a tenancy for a fixed period expire on the termination of the period fixed. Section 9 of the Rent Restriction Act was never applicable to the respondents' possession of this property and the Deputy Custodian completely misdirected himself when, assuming a jurisdiction which never vested in him, he fixed, as one of the terms and conditions of occupation by the allottee, the condition that on the expiry of the period of the lease the relation of the owner and the allottee would be governed by the ordinary law relating to the fixation of rent and eviction of tenants by the Rent Controller. The subsequent order of the Rehabilitation Board and the Central Government's order in revision were influenced by this decision of the Deputy Custodian which itself was null and void. We have no doubt that but for the complication introduced by the Deputy Custodian's order the plain position would have been clearly understood by the Rehabilitation Board and the Central Government that the Mandviwala Building having ceased to be evacuee property it was the duty of the authority which put the allottee in possession to remove him from possession if he did not willingly surrender possession and to restore the property to the original owner who was not an evacuee. Therefore the order refusing to restore possession made by the Rehabilitation Board and with which the Central Government refused to interfere, never became final within the meaning of section 13‑B of the Rehabilitation Ordinance, and it did not prevent the Rehabilitation Commissioner who is responsible for the general administration of that Ordinance from making an order under clause (b) of subsection (2) of section 8 of the Ordinance directing ejectment of the allottees by force. Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non‑existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded. On this view the orders made by the Rehabilitation Board and the Central Government refusing to eject the respondents which were based on that part of the Deputy Custodian's order which we have held to be in excess of his jurisdiction were void and not final within the meaning of section 13‑B of the Rehabilitation Ordinance, and it was the Rehabilitation Commissioner's order directing ejectment of the respondents that became final in law.
This being the exact legal position, we have to consider whether the appeal being from an interlocutory order, we should interfere with it. It is the settled practice of this' Court that it does not ordinarily interfere with interlocutory orders but here we are confronted with the position that the owner of valuable urban property yielding considerable rental income has for more than seven years been deprived of the possession of his property by a misunderstanding of the law by the Custodian, the Deputy Custodian, the Rehabi litation Board and the Central Government, and if we refuse to interfere now, he is confronted with the possibility of being kept out of possession for several years more until the suit the First Appeal, the Second Appeal, and the appeal to this Court by special leave are decided. We therefore consider it to be a fit case to interfere and set aside the order of the Division Bench by which a Receiver of the property was appointed. This was a case in which keeping in view the law and the merits of the dispute there should never have been any temporary injunction. Such injunction was dis charged by the learned, Single judge who was hearing the suit and the Division Bench took an erroneous view of the matter when it applied section 13‑B of the Rehabilitation Ordinance to the case and appointed a Receiver.
For the reasons detailed above, we accept Civil Appeal No. 19 of 1957 and as the point raised in Civil Appeal No. 35 of 1957, has also been determined, dismiss that appeal. The appellant will have his costs here and in the High Court.
A. H. Order accordingly,
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