Mst. HAZARABAIMERCHANT vs MUHAMMAD ISMAIL AND Other
This is a civil review petition filed against a previous judgment of the Supreme Court of Pakistan concerning the interpretation of evacuee property laws and allotment orders. The core legal question revolves around whether an order passed by a Rent Controller under the Karachi Rent Restriction Act, 1947, prior to the extension of evacuee laws to Karachi, could be deemed an allotment of evacuee property under section 18 of the Pakistan (Administration of Evacuee Property) Act, 1957, and whether a wife could claim independent possession through her husband. The court dismissed the review petition, holding that the Rent Controller's order could not constitute an allotment of evacuee property since evacuee laws were not applicable to Karachi at the relevant time, and reaffirming that a wife residing with her husband merely occupies as a licensee and possesses no independent right for the purposes of the relevant notifications. The key principles established relate to the strict temporal and jurisdictional application of evacuee property allotment provisions and the legal nature of a wife's joint occupation.
- Can an order passed by a Rent Controller under the Karachi Rent Restriction Act, 1947, before evacuee laws were extended to Karachi, be deemed an allotment of evacuee property under section 18 of the Pakistan (Administration of Evacuee Property) Act, 1957?
- Does a wife residing in evacuee premises with her husband hold independent possession so as to take advantage of the extended definition of possession under Notification No. F. 1(27)/59-SI dated 13th October 1959?
- Section 18, Pakistan (Administration of Evacuee Property) Act, 1957
- Section 18(1), Pakistan (Administration of Evacuee Property) Act, 1957
- Section 18(2), Pakistan (Administration of Evacuee Property) Act, 1957
- Section 14(2), Pakistan (Administration of Evacuee Property) Ordinance, 1949
- Karachi Rent Restriction Act, 1947
1. HAMOODUR RAHMAN, C. J.-This is a petition for the review of E judgment of this Court delivered on the 14th September 1972, in Civil Appeal No. K-23 of 1970 (Muhammad Ismail v. The Chief Settlement Commissioner and others).
2. Learned counsel appearing in support of this petition has urged only two points. The first is that this Court, in arriving at the conclusion that the order passed by a Rent Controller under the Karachi Rent Restriction Act, 1947, could not be deemed to be an allotment under subsection (1) of section 18 of the Pakistan (Administration of Evacuee Property) Act, 1957, had overlooked the provisions of subsection (2) of the said section. This subsection reads as follows :- "Every allotment of evacuee property made between the first day of March 1947, and the commencement of this Act, shall be deemed to have been made under subsection (1)."
3. This point was specifically considered in the judgment of this Court, and it was, after quoting the whole of section 18, said :- "This argument would, no doubt, have been tenable if, as contended by the learned counsel for the appellant, it could have been shown that the allotment, under whatever law made between the first of March 1947, and the 15th of March 1957, was made for the purposes of rehabilitation of displaced persons or for their social and economic rehabilitation in Pakistan."
4. The order of the Rent Controller, on which reliance as placed in the present case, was made at a time when the Evacuee Laws had not been extended to Karachi and, therefore, the order could not, within the meaning of subsection (2) of section 18 of the Pakistan (Administration of Evacuee Property) Act, 1957, be an allotment of "evacuee property".
5. Furthermore the contention of the learned Advocate that the omission of the words "may for the purposes aforesaid" occurring in subsection (2) of section 14 of the Pakistan (Administration of Evacuee Property) Ordi--nance, 1949, from the provisions of subsection (2) of section 18 of the Act of 1957 also made a radical difference, is without any substance.
6. As already indicated under section 18, subsection (2) of the Act of 1957, the allotment had to be of "evacuee property" and not of any property. In the present case, the order of the Rent Controller was made at a time when the Evacuee Laws were not extended to Karachi for directing the letting of the premises to Mr. Merchant in exchange for accommodation given up by him in Bombay to the owner of the premises in dispute. The order could not, therefore, be an order for allotment in respect of any "evacuee property".
7. The next contention of the learned counsel is that this Court's finding that the petitioner Mrs. Hazarabai Merchant was not in her own right entitled to take advantage of the extended definition of "possession" under Notification No. F. 1(27)/59-SI dated the 13th October 1959, was an error apparent on the face of the record. We are unable to agree, because, until the coming into force of the notification of the 7th of March 1960, a wife bad no independent right, if she was only living in an evacuee premises with her husband. Such occupation of the wife was occupation as a licensee of the husband and not in any independent right. The possession given under the order of the Rent Controller was given to her husband, Mr. Merchant, and not to her. Therefore, she could not take advantage of his possession under such an order of the Rent Controller to claim to be in continuous unauthorised occupation under the Notification of the 13th of October 1959.
8. We see no substance , therefore, in either of the points urged in support of this review petition which is accordingly dismissed with costs to the caveators.