' MUHAMMAD HASHIM KHAN KAKAR, J.--- This constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), is directed against the orders dated 22nd January, 2001 and 10th July, 2000, respectively passed by the respondents Nos.1 and, with the following prayers:---
(i) Declaring that the orders dated 22-1-01 and 10-7-2000, passed by learned respondents Nos.1 and 2, are totally illegal, improper, without lawful authority and jurisdiction vested in them, as well as in violation of the judgments of this Hon'ble Court as well as Hon'ble Supreme Court and thus are of no legal consequence.-
(ii) Any other relief deems fit and proper in the circumstances of the case may also be awarded, along with the cost of petition, in the interest of justice."
2. The relevant facts for filing of the petition are that the plot bearing Municipal No,2-39/22 situated at Masjid Road, Quetta was a burnt plot, which was allotted to the father-in-law of the petitioner by the order of Deputy Custodian, Evacuee Trust Property, Quetta, after physical inspection of the site in the year 1948, who, after construction of superstructure of a shop, rented out the same to one Chaudhry Azizud-Din (predecessor-in-interest of respondents Nos.4 to 10) at a monthly rent of Rs,20, pertaining to the superstructure of the shop in question.
3. In the year 1976, the official respondents, without carrying out the survey, allotted the shop in question to, the predecessor-in-interest of the respondents, which was challenged and finally the fate of the litigation was decided by Hon'ble Supreme Court of Pakistan vide order dated 6th March, 1998. The relevant portion of the order is as under:-- "4. Mr. Muhammad Munir Paracha, learned counsel for the petitioner vehemently argued that notwithstanding the fact that the petitioner is a sublettee, he was entitled to the allotment of the shop in dispute under one of the scheme framed in pursuance of section 30 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. When asked to pinpoint the paragraph of the Scheme whereunder he was entitled to claim the shop in dispute, he was unable to quote one. Be that as it may, the High Court, after perusing the material available on record, was right in holding that silbstantial justice has been done and the order passed by the Chairman, Evacuee Trust Property Board, Lahore, did not suffer from any legal infirmity.
' Resultantly, petition is dismissed and leave is refused"
4. After the death of petitioner's husband in the year 1992, she submitted an application for restoration of tenancy in her name and her request was acceded to by respondent No,3 by means of order dated 20th June, 1992 and the then District Magistrate directed the EAC-1, Quetta for providing assistance to respondent No,3, in getting the vacant possession of the shop in question by means of letter dated 22nd May, 2000.
5. It was the predecessor-in-interest of private respondents, who, after the lapse of about 10 years, raised an objection that under the Scheme of Management and Disposal of Urban Evacuee Trust Properties 1977 (the Scheme of 1977), the property/shop in question could not be transferred in the name of the petitioner by means of filing of an appeal before respondent No,2, which was allowed through order dated 10th July, 2000, which resulted in setting aside the tenancy and direction for auction of the same. The petitioner then filed revision petition against the said order before respondent No,1, which was dismissed by means of order dated 25th January, 2001, hence this petition.
6. Heard Syed Ayaz Zahoor, Advocate, for the petitioner, M/s' Kamran Murtaza and Adnan Ejaz, Advocates, for respondent No,3 and Mr. Saleem Ahmed Lashari, Advocate, for private respondents Nos.4 to 10.
7. According to Syed Ayaz Zahoor, Advocate, the official respondents have passed non-speaking orders in clear violation of order dated 6th March, 1998, passed by Hon'ble Supreme Court of Pakistan. He contended, that respondent No,2, while accepting the appeal of private respondents, had gone into mere technicalities of the case and the order of transfer of leasehold rights in, favour of the petitioners, after the death of her husband on 20th September, 1992, was not in violation of the Scheme of 1977. He, lastly, contended that, in fact the shop in question was a burnt evacuee plot, which was allotted to petitioner's predecessorin-interest, namely, Syed Nazeer Hussain Shah by the orders of Deputy Custodian Evacuee Trust Property, Quetta, after physical inspection of the site as back as in 1948. The private respondents, in connivance with the department, raising a dispute in one or the other way over the shop in question, have dragged the petitioner in, unjustifiable litigation.
8. On the contrary, M/s Kamran Murtaza, Adnan Ejaz and Saleem Ahmed Lashari, Advocates, supported the impugned orders by referring the provisions of section 19 of the Management and Disposal of Evacuee Trust Property, 1977.
9. The record is indicative of the fact that, in fact, the property in question was a burnt evacuee plot, which was allotted to one Syed Nazir Hussain Shan (predecessor-in-interest of the petitioner) by orders of Deputy Custodian- Evacuee Trust Property, Quetta, after physical inspection of the site as back as in 1948. Thereafter, with the prior permission of the competent authority, superstructure was raised and it was rented out to the predecessor-in-interest of the private respondents at a monthly rent of Rs,20. The original allottee was Syed Nazir Hussain Shah and not the predecessor- in-interest of the respondents, viz: Chaudhry Aziz-ud-Din, who, initially, raised dispute over the shop in question and the matter went up to Hon'ble Supreme Court, which, ultimately, decided in favour of the petitioner. The record further reveals that both the impugned orders are also outcome of the appeal made by the predecessor-in-interest of the respondents. The official respondents Nos.1 and 2, while passing the impugned orders, have over-sighted, the provision i,e, Chapter III (B) of the Scheme of 1977, which speaks as under:-- "Chapter III RESIDENTIAL/COMMERCIAL BUILDINGS. AND PLOTS)
(B) On the demise of a tenant the tenancy of a unit/sub-unit shall be alienable in favour of the legal heir(s); provided that:---
(a) The conditions (a) and (b) mentioned in clause (A) above shall not be applicable to a case of change of tenancy in favour of the legal heir(s) as a deceased tenant;
(b) If the real brother(s) or father of the deceased tenant were/was sharing the business in a commercial unit/sub-unit with the deceased tenant, they/he shall also be eligible for change of tenancy along with other legal heir(s); and
(c) In case of change of tenancy in, favour of legal heirs on the demise of a tenant a representative shall be nominated by the legal heirs from amongst themselves who shall be responsible to pay the rent and to abide by all the terms and conditions of the tenancy, individually and severely."
10. We are of the opinion that the same facts and grounds were agitated by the private respondents and the matter was, ultimately, finalized by Hon'ble Supreme Court, while dismissing the petition filed by the 'predecessor-in-interest of private respondents, therefore, there was no occasion or any ground available with respondents Nos.1 and 2 to set aside the order passed by the Assistant Administrator on 20th June 1992, whereby, after the death of Syed Azhar Hussain, tenancy was restored in the name of petitioner Mst. Jamila Nargis, thus, the impugned orders are in violation of the judgment of this Court as well as Hon'ble Supreme Court.
11. We are conscious of the fact that under the provisions of section 19 of the Scheme of 1977, no government servant can be permitted to secure a tenancy except for residential purpose, but in the instant case, the tenancy could have been restored in the name of Syed Waqar, Azhar, who is the male son, of the petitioner. It is the intention of law that the entire dispute between the parties should be decided on merits and no one should be allowed to take benefits of technicalities. We have observed that it is a classical case of hardship, where a widow has been dragged in an unjustified prolong litigation by the respondents, knowingly that they are simply tenants in the disputed shop and the original allottee was the predecessor-in-interest of the petitioner, who constructed the existing structure of the shop at his own cost and had also been paying rent to the Board. The respondents had no legal right to challenge the status of their landlord (petitioner's predecessor-ininterest), who had given the shop in question to them as sub-lessee or licensee, because once a tenant is always a tenant. In the instant case, the respondents' possession over the shop in question is not in their independent capacity, but through the petitioner's predecessor- ininterest, to whom the superstructure belonged. Hence, neither their possession could be regularized under any provisions of law, nor they can be allowed to challenge the status of their landlords. Similarly, the official respondents, at the best what could be done, was to cancel the petitioner's tenancy in respect of the plot, after paying her the cost of superstructure according to the market value and, thereafter, to put the premises to auction on rent. Thus, the conclusion drawn by the respondents Nos.1 and 2, is one-sided. Further, as observed, it is the intention of the law that all the disputes between the parties should be decided on merits and no one should be allowed to take benefits of technicalities.
' In view of the above, we accept this petition and set aside the orders dated 10th July, 2000 and 22nd January, 2001, respectively passed by the respondents Nos.2 and 1. The respondent No,3 is also directed to vacate the shop in question from private respondents and put the petitioner into possession within a period of two (02) months, positively.