1. MOHAMMAD SHARIF, J.-This is an appeal by our leave against the order of the High Court of West Pakistan, Karachi Bench, Karachi, dismissing the writ petition summarily on 10th of July 1956.
2. Plots Nos. 255/1 and 255/2 Garden West, Karachi, belonging to the Government, were leased out to one Jamnadas Vishindas for agricultural purposes for a long period of 80 years. The exact date of rte lease is not available from the record, but ft was a few years before the Independence. The appellants, carrying on the business of coal and lubricating oil, in the company of one Garlzon, obtained a sub-lease of the premises for 12 months from the 18th of December 1944 for the purpose of erecting a factory on the land and building a bungalow for residence. On the expiry of one year, no fresh lease was executed but the appellants continued in possession apparently without any objection. In March 1949, Jamnadas Vishindas, the original lessee from the Government, migrated from Pakistan and, in consequence, the plots, the subject-matter of the lease, became "evacuee" property.
3. Among the partners of the firm of the appellants, a partner Wadhumal Tejumal, died in December 1947 and his widow, Mst. Parbatibai, was taken as a partner in his place. During the subsequent years, some internal changes among the partners took place and most of a them also left for India.
4. In May 1951, the Rehabilitation Board, Karachi, refused to allot the above-mentioned plots to Karsondas Mulji, a partner of T. K. Brothers, and directed that a notice be issued to the appellants to vacate the said property within six months. Against this order, a petition for revision was filed by the appellants which was heard and decided by the Additional Custodian, Mr. Riaz--uddin Ahmad, on 16th May, 1952. He came to the conclusion that after the termination of the original lease of one year the appellants were permitted by their landlord, Jamnadas Vishindas to continue in possession so long as they continued to pay rent on the terms originally agreed. This was based on a letter, dated the 1st of December 1946, said to have been exchanged between the appellants and their landlord. It was further remarked that even the evacuee owner could not eject them as long as there was no breach of the conditions upon which the tenancy was held and, in addition, it was found that the appellants had spent a good deal of money in constructing the factory upon the land. The petition was allowed and the order of ejectment against the appellants was set aside.
5. The Assistant Rehabilitation Commissioner, Karachi, took the matter to the Custodian. He held that the letter of 1st of December 1946 relied upon by the appellants was not genuine and could have been prepared at any time. It was also found that the lease came to an end after the expiry of one year and that there had been frequent changes in the reconstitution of the firm of T. K. Brothers and for that reason it could not be said that the relationship of landlord and tenant, which had originally started in 1944, had continued to exist between the same parties. He, therefore, held that the appellants were in unauthorised occupation of the premises and on that account liable to be ejected. The Rehabilitation authority was authorised to take necessary action for recovering possession from the occupants. This order is dated the 20th of May 1956.
6. Aggrieved by the order of the Custodian, the appellants moved the High Court, Karachi Bench, for the issue of a writ under Article 170 of the Constitution. The learned Judges dismissed the petition in limine and held that the property, being "evacuee" property, the Custodian had every right to pass the order he did. The contention that the Karachi Rent Restriction Act governed the case was not accepted.
7. Leave was granted to see whether in the case of a property admittedly "evacuee" could the Rent Restriction Act be invoked by the appellants ?
8. It is undisputed that the plots Nos. 255/1 and 255/2 became "evacuee" property on the departure of Jamnadas Vishindas in 1949. At one stage an attempt was made by the appellants to have these plots allotted to themselves but this did not succeed. On the other hand, by an order, dated 12th of December 1950, Mr. Akbar Hussain, the then Custodian of Evacuee Property, called upon the present appellants to furnish accounts within 15 days.
9. The sole question for determination is ; whether the long possession of the appellants entitles them to any protection contemplated by the Sind Rent Restriction Act ?
10. The applicability of the Sind Rent Restriction Act (which is equally applicable to Karachi) to "evacuee" property was recently considered by this Court in Yousaf Ali v. Muhammad Aslam Zia and others (PLD 1958 SC (Pak.) 104). After an examination of the provisions of the Administration of Evacuee Property Ordinance XV of 1949 and considering the provisions of the Sind Rent Restriction Act, it was held that "the Sind Rent Restriction Act is not at all applicable to the occupation of evacuee property which has been allotted by a Rehabilitation Authority. The object of that Act which was passed in 1947 is to regulate the supply of accom--modation in the Province of Sind and in particular to provide for controlling the rent chargeable for such supply of accom--modation and for preventing in certain cases eviction from the accommodation supplied, whereas the object of the Administration of Evacuee Property Ordinance passed in 1949 is to provide for the administration of evacuee property and that of the Rehabili--tation Ordinance, passed in 1948 to make provisions for the restoration and maintenance of the social and economic life of Pakistan and the orderly settlement of persons who have taken refuge therein. The Sind Rent Restriction Act is a provincial legislative measure, while the two Ordinances were promulgated by the Centre and are later in date. It is, therefore, obvious that if there be any conflict between the Rent Restriction Act and either of the two Ordinances, the latter -- ill prevail, not only on the ground that the Ordinances are later in date and are laws passed by the Central Legislature but also on the ground that their subject-matter is much more special and restricted than the general provisions of the Sind Rent Restriction Act which govern the relations of landlord and tenant for the purposes of fixation of rent and eviction from the rented property". It was further observed that "the matter is concluded by section 5 (2) of the Pakistan (Administration of Evacuee Property) Act, 1957, which provides that for the removal of doubts it is hereby declared that nothing in any other law controlling the rents of, or evictions from any property, shall apply or be deemed ever to have applied to evacuee property."
11. It would thus be clear from the above that in the case of "evacuee" property, the eviction of a person in possession even under an allotment order duly made by the Rehabilitation Com-- missioner could not be restrained by any appeal to the Rent Controller. The same would apply with greater force where a person is in possession of "evacuee" property without any authority or allotment ; his possession would be wholly unau--thorised and under section 9 of Ordinance XV of 1949, it is open to the Custodian to take back the possession and use such force as may be necessary for the purpose. The, appellants cannot, therefore, resist the demand by the Custodian to surrender the possession of the property.
12. There is, however, one aspect of the case which has not received any consideration. The appellants took lease for the setting up of a factory which was done and it is not denied by the learned counsel appearing for the Custodian that there are on the premises a building and other constructions belonging to the appellants. The learned Custodian, while ordering the eviction of the appellants, has not given any direction as to what is to happen to the building etc. And whether the appellants, in view of their claim that the construction was made with the active or tacit approval of the Custodian or other relevant authority, are entitled to some compensation. The case is remanded to the learned Custodian to deal with this matter and dispose it of. Of course it will be open to him to recall the order of ejectment if he does not wish to pay immediately the compensation that may be found due.
13. The appeal is, therefore, allowed to the extent above indicated. There shall be no order as to costs which shall abide the event.