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First Appeal No.74 of 1972, decided on 9th February, 1987.

‑‑‑Ss. 42 & 54‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 16‑A‑‑Sale of evacuee trust property for realizing arrears of rent‑ ‑Effect‑‑O n failure of appellant to deposit arrears of rent of evacuee trust property in his possession, Chairman, Evacuee Property directed sale of such property for realizing arrears of rent‑‑Chairman not being authorised to order for sale of property for realizing arrears of rent in summary manner under provisions of Land Revenue Act (XVII of 1967), action taken by him in ordering sale of property in possession of appellant for purpose of realizing arrears of rent merely on basis of certain circular issued simply for giving guidance to recover arrears of rent and which had no legal sanctity, held, was wholly without jurisdiction and in excess of authority vested in Chairman‑‑Judgment and decree passed by Trial Court dismissing suit for declaration and permanent injunction filed by appellant against illegal action of Chairman, equally was not maintainable‑‑ High Court in exercise of appellate jurisdiction set aside order of Trial Court.

A. Majid for Appellants.

G.R. Warsi for Respondents.

Date of hearing: 9th February, 1987.

This First Appeal under section 96, C.P.C. is, filed by the appellants/ plaintiffs against the judgment and decree dated 23‑12‑1971 passed by the Addl. District Judge Dadu in Suit No.46/69 instituted by the appellants for relief of declaration and permanent injunction. The suit was resisted by the respondents and on the basis of the controversy following issues were framed by the trial Court:‑

"(I) Whether the plaintiffs have/had a share in the Rice Factory in Suit If so to what extent

(2) Whether the Rice Factory belonged to Ahmad Khan alone and he had gifted it to his wife defendant No.8 If so what is the effect

(3) Whether defendant No.2, could legally auction the Rice Factory in order to recover rental dues

(4) Whether defendant No.2, could legally auction the Rice Factory in order to recover rental dues

(4‑A) Whether defendant No.9 has legally purchased the Factory for consideration paid

(5) Whether defendant No.3 is an adult or a minor. If a minor what is the effect

(6) Whether the suit is not maintainable in law

(7) What should the decree be "

The plaintiffs in support of the case examined Muhammad Bux, Aziz Muhammad, Shah Muhammad and Niuhammad Saleh while the defendants examined Qamaruddin, Abdul Waheed, Haji Khair Muhammad, Khudadad and Jumo. The learned trial Court after hearing the parties held under issues Nos.1 and 2 that the appellant No.1 Muhammad Bux had 1/3rd share in the Floor Mill but the appellant No.2 has no share in the Mill. Under issues No.3 and 4 the learned trial Court held that defendant No.2/respondent No.2 had power to auction the property in suit and that such auction was legal and proper. Under issue No.5 the learned trial Court reached the conclusion that although the Defendant, No.3 was a minor at the time he gave his statement before the authority concerned but it did not affect the case in any manner. Under issue No.6 the suit was held to be maintainable but as a result of findings of the trial Court under issues No.3 and 4 the suit was dismissed.

The learned counsel for the plaintiff /appellants contends that the judgment and decree in the suit cannot be maintained as the order of defendant No.2 directing sale of the property belonging to the appellants for realization of the arrear of rent was an order wholly without jurisdiction. It is accordingly contended that the learned trial Court ought to have granted the declaration prayed for in the suit declaring the aforesaid action of defendant No.2 as illegal action. It is also contended 'by the learned counsel that after institution of the suit which was filed on 9‑7‑1969 the appellants were illegally dispossessed from the property by respondent No.2 but it may be stated here that in spite of the above fact the appellants have not yet applied for the amendment of the plaint so as to entitle them for appropriate relief in the changed circumstances of the case. Learned counsel for the respondents on the other hand contended that as the arrears of rent were not deposited the order for sale of the property by the respondent No.21defendant No.2 for purposes of realizing the admitted arrears was perfectly justified and legal. After hearing the learned counsel for the parties as length I am of the view that the judgment and decree passed by the learned trial Court dismissing the suit of the appellant cannot be maintained in law. It is an admitted position that the respondent No.2 in exercise of his powers as a Chairman, Evacuee Trust Properties, Dadu, had directed sale of the Mill situated in the disputed premises for realizing the dues of arrears of rent amounting to Rs.2,625. There is no provision either under the Displaced Persons (Comp. & Reh) Act, 1958 or in the Scheme framed under section 16‑A of the said Act by the Central Government in the year 1960 known as Scheme for the disposal of properties attached to Charitable religious or educational trusts or institutions which authorised respondent No.2 to order for sale of any property for realizing the arrears of rent under the provisions of Land Revenue Act. Learned counsel for the respondents contended that the power for realizing the rent of the property was exercised by respondent No.2 under a policy decision which is contained in a circular dated 6th June, 1985 printed at page 100 of the Manual of Trust Laws by M.A. Latif lst Edition. In order to appreciate the contention of the learned counsel for the respondents it will be advantageous to reproduce here the Circular relied by him in this behalf:‑

"Subject:‑ Procedure for the recovery of arrears of rent.

I am directed to inform you that the Board, vide item No.25 of the minutes of its 31st meeting held on 15‑12‑1964, has evolved the following procedure for the recovery of arrears of rent,

(i) Powers of the Deputy Commissioner/ Chairman District Evacuee Trust Committee.

(a) Where the arrears of rent do not exceed Rs.200 the tenant may be asked to pay half monthly amount first and the remaining in four equal monthly instalments alongwith the rent of the current month.

(b) where the arrears exceed Rs.200 but do not exceed Rs.500 one‑third of the amount of arrears may be recovered in advance alongwith the arrears of current month. The remaining amount of arrears may be recovered in six equal monthly installments alongwith monthly rent.

(c) Where the amount of arrears exceeds Rs.500 but does not exceed Rs.2,000 one‑fourth of the same be recovered in advance and the remaining amount, be recovered in one year in equal monthly instalments in the same manner.

(ii)Powers of the Commissioner Chairman, Divisional Evacuee Trust Committees.

(d) Where the arrears of rent exceeds Rs.2,000 but do not exceed Rs.5,000 the Commissioners Chairman Divisional Evacuee Trust Committees may make such arrangements that the amount is liquidated in full in 24 monthly instalments.

(iii) Powers of the Chairman Evacuee Property Trust Board. All other cases may be referred to the Chairman of the Board for necessary orders.

(i) The procedure mentioned at (a) to (d) is a concession to the tenants who are not in a position to pay the heavy accumulated arrears of rent in one instalment. It should not apply to the highly commercial units and big mansions,.

(ii) In the case defaulter does not pay the rent in accordance with the above procedure the recovery certificate should be sent to the Tehsildar concerned for total recovery as arrears of land Revenue."

A reading of the above Circular will show that the guidelines contained in the above circular were purely administrative in nature and were meant for the internal guidance of the department. The aforesaid instructions issued by the Board has no legal sanction behind them so as to vest the authorities with any jurisdiction which otherwise was not conferred on them by the Act or the Scheme frame there under. The fact that the circular referred to above mentioned that in case a defaulter did not pay the rent in accordance with the procedure mentioned therein, a recovery certificate may be sent to the Tehsildar concerned for recovery of total arrears as arrear of land revenue was not enough to vest the authorities with the jurisdiction to proceed for recovery of such arrears of rent as arrears of land revenue. There is nothing in Act 28 of 1958 or the scheme framed under Section 16‑A of the Act, which authorised respondent No.2 resort to the recovery of arrears of rent in the summary manner under the provisions of Land Revenue Act, 1967. 1, therefore, find no difficulty in holding that the action taken by respondent No.2 in ordering sale of the Mill for the purposes of realizing arrears of rent in respect of the plot which was an evacuee trust property was an order wholly without jurisdiction and in excess of the authority vested in the respondent No.2. The learned trial Court, therefore, could not dismiss the suit of the Plaintiffs as a whole even if it was of the B view that the other relief claimed in the suit namely the relief for permanent injunction could not be granted to the plaintiffs/appellants. However, this does not conclude the matter finally as it is admitted before me that although the order passed by the respondent No.2 related only to the sale of machinery installed in the premises the Evacuee Trust Authorities after sale of machinery also dispossessed the Appellants from the premises and allotted the same to respondent No.9. Learned counsel for the respondents is unable to justify the subsequent dispossession of the appellants from the premises as the order passed by respondent No.2 on 16‑4‑1969 (Ex.52/2) was only for sale of movable property lying in the premises for the purposes of realization of the arrears of rent and could not amount to an order for dispossession of appellant from the premises. The judgment and decree of the lower Court is accordingly set aside. The learned counsel for the appellant this stage made an oral request that his client may be permitted to amend the suit suitably in the circumstances of the case. Keeping in view the fact that the subsequent action of the respondents in dispossessing the appellants from the premises was prima facie unathorised and not justifiable under any provisions of the law. I am inclined to grant the oral request made learned counsel for the appellants for amendment of the plaint but as no proper application is made in this regard I remand the case back to the trial Court with the direction that upon a proper application being filed by the appellant the same may be disposed of in accordance with the law and thereafter the suit may be proceeded and decided according to law. There will be no order as to costs.

H.B.T/M‑163/K Order accordingly.

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