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Writ Petition No: 303/R of 1959, decided on 12th January 1960.

S. 7 (2) (b) read with r. 6, Pakistan Rehabilitation Rules, 1951‑‑Show‑cause notice‑Out of question, where claim of person to be ejected had been negatived after full inquiry‑Benefit of notice taken to have been waived when objection not raised before Rehabilitation Authorities‑Affidavit that objection was raised but not noticed by Rehabilitation Authorities not allowed to be raised at argument stage of writ petition.

The allotment order in favour of H was made the subject of an appeal by I. The A. R. C. allowed the appeal and allotted the premises to I. The matter was taken by H before the R. C. in revision, who, after holding a further probe, armed the decision of the A. R. C. and dismissed the revision petition.

H then preferred a writ petition in the High Court where it was argued for him that show‑cause notice, as required under section 7 (2) (b) of the Rehabilitation Act, read with rule 6 of the Rehabilitation Rules, 1951, had not been issued to the petitioner, and the proceedings for ejectment were therefore, without jurisdiction.

Held, that the foundation of the claim of H was the allotment order which was being taken before the higher authorities, and if after the fullest inquiry the claim had been negatived there was no question of any opportunity having been denied to him as required under rule 6 of the Rehabilitation Rules. The object of the rule was fully satisfied if it could be predicated that both the contemplated action and the reason for the action were known to the person proceeded against. Full opportunity had been given to H leading even to further investigation, and in this view of the matter the argument had no substance.

Moreover, as the ground of lack of notice was not agitated before the Rehabilitation Authorities, the objection was taken to have been waived. There was no proposition of law under which, in a matter of procedure, unless it was grounded on public policy, it could be stated that a party for whose benefit, it was intended could not have waived its benefit.

Affidavit to the contrary was not allowed to be filed at the argument stage of the writ petition.

Badrul Jalil v. Wali Muhammad P L D 1956 S C (Pak.) 259 distinguished.

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

Ghulam Muhammad v. Abdul Hamid Khan P L D 1958 Lah. 1007 dissented from.

Raja Muhammad Anwar for Petitioner.

Mian Abdul Khaliq for Respondent.

Nemo for Respondent No. 2

Date of hearing : 12th January 1960.

The controversy in this petition centres round shop No. B‑III- 15S/172 situate at Gujranwala. This shop along with another was in the possession of Mian Abdul Hamid. Izhar Elahi respondent applied on the 10th of July 1956, to the Rehabilitation Authorities intimating that Mian Abdul Hamid's occupation of both the shops was unauthorised. Some other persons also preferred a similar complaint. An inquiry was held and by order dated the 28th of December 1956, the Deputy Rehabilitation Commissioner ordered the shop to be taken back from Mian Abdul Hamid, and was allotted to Haji Muhammad Yusuf petitioner, who is said to be a cousin of the aforesaid Mian Abdul Hamid. The allotment in favour of the petitioner was made the subject‑matter of an appeal, and by his order dated the 23rd of September 1957, the Additional Rehabilitation Commissioner allowed the appeal and allotted the premises to the respondent. The matter went before the Rehabilitation Commis sioner on the revisional side. The Rehabilitation Commissioner, at the instance of the petitioner, addressed a query. There was a further probe and a report was submitted intimating that the petitioner had extensive business in Madras and was a B‑Class refugee, and was doing joint business with his cousin Mian Abdul Hamid, the person who was found, to be in an unautho rised occupation of both the shops. After considering the report, the Rehabilitation Commissioner affirmed the decision on appeal of the Additional Rehabilitation Commissioner. The present petition is directed against the aforesaid orders.

2. The learned counsel for the petitioner has argued that the show‑cause notice, as required under section 7 (2) (b) of the Rehabilitation Act, read with rule 6 of the Rehabilitation Rules, 1951, had not been issued to the petitioner, and the proceedings for ejectment are, therefore, without jurisdiction. It appears to me that the objection of the learned counsel is without force. It was the allotment order of the petitioner which was made the subject‑matter of appeal, and he had sufficient notice even when an order was passed taking away the premises from Mian Abdul Hamid with whom he was working in joint business since 1947, and later when after a thorough inquiry he had an allotment order in his favour. Then the order of allotment in his favour was the subject‑matter of appeal and then of revision before the Rehabilitation Commissioner. The order of allotment in favour of the respondent was made on the 23rd of September 1957, and the order was passed after he had been fully heard and all that he could have said was urged by him. It is said there were some ambiguities and he made a request to the revisional authority to hold a further probe which was also done. After such a thorough inquiry held at the instance of the petitioner himself and a decision reached after he had been fully heard, it would be too late in the day to take the plea that he has not had the opportunity as required under the rules.

3. The learned counsel for the petitioner has cited before me an authority of their Lordships of the Supreme Court reported as Badrul Jalil v. Wali Muhammad (P L D 1956 S C (Pak.) 259) where the absence of a notice as required under rule 6 was declared to be fatal to the proceedings in ejectment taken against the respon dent before their Lordships. It is a short order but it is clear from the order that the Assistant Rehabilitation Commissioner proceeded to eject without any inquiry as to the nature of the possession of the person against whom the proceedings were directed. The respondent in that case was actually put out of possession without any show‑cause notice. The case is clearly distinguishable for whatever rights the respondent had, had to be examined before he could have been put out of possession. In that context, no recourse, to the higher authorities could have invested the original order with any jurisdiction. In the present case, the foundation of the claim of the petitioner was the order itself which was being taken before the higher authorities, and if after the fullest inquiry the claim had been negatived there was no question of any opportunity having been denied to him as required under rule 6 of the Rehabilitation Rules. In the present case the object of the rule is fully satisfied if it could be predicated that full opportunity in effect both of the contemplated action and the reason for the action are known to the person proceeded against. In the instant case, as I have already stated, full opportunity had been given leading even to further investigation, and in this view of the matter the objection has no substance and will have to be repelled.

4. Apart from that the benefit of the rule could be waived by the person for whose benefit it is intended. It is a matter of procedure no doubt partaking of a/ fundamental character, but in spite of it, it is open to a party not to insist on the benefits so conferred. In the present case it appears that the ground of want of notice was taken but in none of the orders of the Rehabilitation Authorities, the objection has been noticed. It should be taken to have been waived unless it is accompanied by some affidavit indicating that the point, though urged, was not noticed by the appellate or the revisional authority. That affidavit is lacking, and if it was the foundation of the attack, it was the plain duty of the counsel if he challenged the fact to put in an affidavit to that effect. The learned counsel for the petitioner expressed his willingness to file an affidavit now not from his counsel who he says is now dead, though it is represented by the learned counsel for the respondent that another counsel besides him appeared for the petitioner, but from the petitioner himself. I am not inclined at this stage to grant] any life to this objection in order to afford the petitioner another opportunity to put in an affidavit. I am clearly of the t view that the point was not agitated, and can, therefore, be taken to have been waived. I am not aware of any proposition of law under which, in a matter of procedure, unless it is grounded on public policy, it could be stated that a party for whose benefit it is intended could not have waived its benefit. In the instant case it shall be taken to have been waived.

5. The learned counsel for the petitioner also cited a Single Bench judgment of this Court reported as Ghulam Muhammad v. Abdul Hamid Khan (P L D 1958 Lah. 1007) in which the absence of notice as required by rule 6 of the Rehabilitation Rules, 1951 was considered fatal, but the authenticity of this judgment, if it is an authority for the proposition that even if full opportunity has been given, the defect if any cannot but be fatal, is considerably shaken by a Division Bench judgment noticed in the S. B. judgment itself. In the case reported as Zahiruddin v. Rehabilitation Commissioner (PLD 1956 Lah. 1090) a Division Bench of this Court had stated that even if the petitioner in that case had no initial notice he had sufficient notice of what was intended to be done to him and thus had sufficient opportunity of showing cause. This is a view with which I am in respectful agreement.

6. I find no substance in this petition and would accordingly dismiss it with costs.

A. H. Petition dismissed.

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