Find a Lawyer

Constitutional Petition No. S‑136 of 1984, decided on 16th October, 1986.

‑‑‑S. 25‑‑Ejectment from evacuee trust property‑‑Conditions for‑‑Person in possession of evacuee trust property could be ejected, there from, if his possession or occupation was unauthorized or contravened any of the terms and conditions under which such property was held by him‑ Failure to pay public dues or wilfully causing damage to property would also result in eviction of person in possession‑‑Person in occupation could be evicted on ground that such property was required for public purpose by Federal Government‑‑To eject a person from such property, service of notice would be imperative before ejectment takes place.

‑‑‑S. 25‑‑Ejectment from evacuee trust property‑‑Notice, object of‑ Object of giving notice to affected party is to give opportunity of placing his views thereon before Authority with regard to proposed action‑‑Authority cannot proceed further unless it considered representation of affected party and rejected same‑‑Object of giving notice to affected party was not only to defend himself against proposed action but would also be necessary for authorities to decide any such representation which was filed by party against proposed action in accordance with law, before finally ejecting him from premises.

‑‑S. 25‑‑Constitution of Pakistan (1973), Art. 199‑‑Notice of ejectment‑ Validity of‑‑Notice in cyclostyled form wherein number of grounds were mentioned and some of them were scord off, held, would hardly show application of mind on part of authorities before passing of order of ejectment‑‑Where appellate order only confirmed original notice of ejectment without assigning any reason or without adverting to contentions of affected person, such order could not be sustained‑‑Order of ejectment passed in contravention of S. 25 being illegal could be set aside by High Court in its constitutional jurisdiction.

Abdul Rashid and 2 others v. Member Board of Revenue Baluchistan P L D 1986 Quetta 280 ref.

Frontier Cloth Mills v . Sales Tax Officer 1972 S C M R 257 and Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others P L D 1972 S C 279 rel.

‑‑‑Art. 199‑‑Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), S. 25‑‑Constitutional jurisdiction, exercise of‑‑Omission of specific prayer in prayer clause‑‑Effect‑‑Mere omission on part of affected person to make a specific prayer in prayer clause, held, could not disentitle him to relief, if otherwise he was entitled thereto on facts and circumstances of case. ‑‑[Pleadings].

K . A. Wahab for Petitioner.

S. H. Fani for Respondent.

Date of hearing: 16th October, 1986.

This order will govern the disposal of the above noted two constitutional petitions filed by the two different tenants of the same building. The petitioners in the above petitions are the tenants of Premises No. G‑1 and G‑2 in the building bearing No.RB‑9/7.

In Petition No. 134 of 1984 the tenant was served with an ejectment notice on 18‑4‑1984 by respondent No.l requiring him to vacate the premises within 7 days of the service of the notice. The notice was set aside in appeal by the Administrator, Evacuee Trust Board (respondent No.2) on 9‑5‑1984 on the ground that the requirements of law were not fulfilled. Thereafter, the petitioner was served with a show‑cause notice dated 22‑5‑1984 calling upon him to show cause within 7 days of the service of the notice as to why he should not be evicted from the premises in his occupation. In response to the above notice the petitioner submitted a detailed explanation dated 9‑6‑1984 and it is alleged that without hearing the petitioners and without considering the above representative of petitioner he was directed by notice dated 16‑12‑1984 to vacate the premises within 7 days of the service of the notice. The petitioner filed appeal under section 16 of Act XIII of 1975 before respondent No.2 against the notice dated 16‑12‑1984 but the same was rejected on the sole ground that notice dated 16‑12‑1984 was issued by the respondent No.l after complying the legal formalities. In Petition No. 136 of 1984 the petitioner has been served with an ejectment notice dated 16‑12‑1984 asking him to vacate the premises within 7 days of the service of the notice. Against this notice the petitioner filed an appeal under section 16 of the Act before respondent No.2 who rejected the same on the ground that all legal formalities were complied with by the respondent No.l before issuance of that notice. It is not disputed by the learned counsel for the respondent that the petitioner in Petition No. 136 of 1984 was not given any notice to show cause against the proposed ejectment before service of ejectment notice dated 16‑12‑1984 as was done in the case of petitioner in Petition No. 134 of 1984. The learned counsel for the petitioner in the above petitions jointly contended that the orders of ejectment were passed against them against the principles of natural justice as they were condemned unheard. It is also contended that there is nothing on record to show that the premises occupied by the petitioners were required by the Federal Government for any public purpose which is a condition precedent for passing of an order under section 25 of the Act. Learned counsel for the respondent on the other hand contended that there is no provisions in the above Act for hearing the affected party before passing an order under section 25 of the Act. It is alternatively contended that the present petitions are not maintainable as the petitioners failed to exhaust the alternate remedy available to them under the Act.

After hearing the learned counsel for the parties, I am of the view that these petitions must succeed. It is an admitted position that petitioners are tenants of respondents and there are no allegations against them that they have controvened any of the terms and conditions A of tenancy. It is also an admitted position that the petitioners are being ejected from the premises on the allegations that the premises is required by the Federal Government for public purposes. Section 25 of the Act which empowers the respondents to eject a person in occupation of an evacuee property reads as follows:‑

The Chairman, an Administrator, a Deputy Administrator, or an Assistant Administrator may eject or cause to be ejected any person in possession or occupation of any evacuee trust property whose possession or occupation is not authorised by or under 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 has failed to pay public dues, or has wilfully caused damage to any such property or any person in occupation or possession of any evacuee trust property which is required for an object which is considered to be a public purpose by the Federal Government, after giving him notice, and for the purposes of such ejectment may use or cause to be used such force as may be considered necessary."

A careful reading of the above provisions will show that a person in possession of an evacuee trust property could be ejected there from either by the Chairman, the Administrator or Deputy Administrator or Assistant Administrator if his possession or occupation is not authorised by or under the provisions of the Act, has contravened or may have contravened any of the terms and conditions under which the property is held by him; has failed to pay public dues or has wilfully caused damage to the property. Persons in occupation of evacuee trust property can also be evicted under section 25 of the Act by the functionaries on the ground that the property is required for an object which is considered B to be a public purpose by the Federal Government. It is common ground between the parties that the cases of the above petitioiners fall under the last mentioned category of section 25. It is significant that in all cases where the functionaries decide to eject a person in occupation of an evacuee trust property in accordance with the provisions of section 25 of the Act, service of notice on such person is a must before the ejectment takes place. The learned counsel for the petitioners jointly contended that the object of service of notice mentioned in section 25 of the Act on the occupant is to afford him an opportunity to defend himself against the proposed action and as the petitioners were never afforded such an opportunity the action contemplated by the respondents is wholly without jurisdiction.

It is further contended by the petitioners jointly that as they are being ejected from the premises on the ground that the premises occupied by them is required for a public purpose by the Federal Government they are entitled to at least know about the order of the Federal Government under which it was decided to utilize these premises for an object which the Government considered to be a public purpose. Learned counsel for the respondent on the other hand contended that the notices issued to the petitioners in the above cases by the Deputy Administrator, Evacuee Trust Board, did indicate that the property was required for public purpose which according to the learned counsel substantially complied with the requirement of section 25 of the Act. With regard to the provision which required the authorities to serve a notice the affected person before his ejectment from the property/ premises, it is contended by the learned counsel that the object of giving such notice is fulfilled if the petitioner is notified about the intention of the authorities to evict him from the premises. After hearing the learned counsel for the parties at length I am unable to agree with the contentions of learned counsel for the respondent. The provisions regarding service of notice on the affected party before his eviction, in my humble opinion, are not illusory in nature. There cannot be any doubt that the object of giving notice under section 25 of the Act to the affected party is to give him an opportunity of placing his view point before the authority concerned with regard to the proposed action and if such representation is made by the affected party, the authority cannot proceed further unless it considers the representation of affected party and rejects the same. The fact that an order passed under section 25 of the Act is appealable lends support to the conclusion that the object of giving notice to the affected party is not only to provide him an opportunity to defend himself against the proposed action but it will also be necessary for the authorities to decide any such representation which may be filed by the affected party against the proposed action in accordance with the law before finally ejecting him from the premises. If the argument of learned counsel for the respondent, that the object of notice under section 25 of the Act to the affected party is only to make him aware about the proposed action and that the authority is neither bound to hear nor decide the representation of affected party, if filed, is accepted then the provision for appeal against the order passed under section 25 of the Act will be rendered nagatory and illusory. In Petition No. 134 of 1984 in reply to show‑cause notice served on the petitioner a detailed explanation was submitted to the respondent No.l by the petitioner but from the impugned notice it does not appear that this representation of the petitioner was ever considered by the authority concerned. The impugned notice is in, cyclostyled form on which number of grounds are mentioned and some of them are scored off. This hardly shows application of mind on the part of authorities concerned before passing the order of ejectment against the petitioner. The appellate order in this case only confirmed the original notice without assigning any reason or without adverting to the contentions of the petitioner. In the second case namely Petition No. 136 of 1984 without issuing any show‑cause notice to the petitioner, an order of ejectment has been passed straightaway against him which on its face is contrary to the provision of section 25 of the Act. Mr. Fani, learned counsel for the respondent very vehemently contended that there existed an alternate remedy by way of revision under the Act against the impugned actions which the petitioners have not exhausted before invoking constitutional jurisdiction of this Court and as such these petitions are not maintainable. Learned counsel in support of his contention referred to the case of Abdul Rashid and 2 others v. Member Board of Revenue Baluchistan P L D 1986 Quetta 280. The case relied by the learned counsel is of no assistance to him in the circumstances of the present case. On the contrary the observations by the Supreme Court in the case of Frontier Cloth Mills v. Sales Tax Officer 1972 SCMR 257 that where illegality appears on the face of the record, the writ jurisdiction may be invoked and exercised in favour of the party despite availability of statutory right of appeal supports the contention of the petitioners that they were entitled to maintain the present petition. Similarly in the case of Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others P L D 1972 S C 279 the Court held that in spite of existence of alternate remedy the Courts have exercised jurisdiction under the constitution where it is complained to the Court that the order was a nullity in the eye of law or wholly without jurisdiction. The following observations appearing at page 287 of report may be reproduced here with advantage: ‑

"It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as 'the C. D. A .') to make the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance its appeal under section 36 would have been an exercise in futility. It was held by the Supreme Court in Lt.‑Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others P L D 1961 S C 119, that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. It was further observed that one of the well‑recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority."

In view of above legal position I am of the view that in the circumstances of the present cases as the impugned actions taken by the authorities concerned suffered from illegality on their face and the statutory remedy by way of appeal having been resorted to by the parties but without any effect, the existence of a further remedy by way of revision under the statute which was purely discretionary in nature, could not be treated as a bar for exercise of jurisdiction by this Court under Article 199 of the Constitution specially where imminent threat of eviction E was looming over the heads of the petitioners. A reading of the impugned notices and orders in appeal will show that they were passed in a mechanical manner without application of mind of the concerned authorities and without following the procedure prescribed under the statute. I accordingly accept both the petitions and declare the two impugned notices and the orders passed by the respondent in appeal as without lawful authority.

Before parting with the cases I may state here that Mr. S . H . Fani, the learned counsel for the respondent also made a submission that in Petition No. 134 of 1984 the petitioner did not challenge the order of respondent No.2 in the prayer clause. It is accordingly contended by the learned counsel that in these circumstances, the order of respondent No.2 passed in this case cannot be declared as without lawful authority. This contention of the learned counsel has no substance. As many as 3 specific grounds are raised in the memo of petition challenging the validity of the order of respondent No.2. Respondent No.2 is a party in this petition and in the counter‑affidavit filed on behalf of respondent no such grievance was made. There is also an alternate prayer in the petition for grant of such other relief F against the respondents as may be found necessary and expedient in the circumstances of the case. In these circumstances, mere omission on the part of the petitioner to make a specific prayer in the prayer clause could not disentitle him to the relief if otherwise, he is entitled to it on the facts and circumstances of the case. There will however, be no order as to costs.

A . A . Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.