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Petitioner: MUHAMMAD TUFAIL VS Respondent: PROVINCE OF PUNJAB AND 5 OTHERS
Court Name: Lahore High Court Judge(s): Aftab Hussain Title: MUHAMMAD TUFAIL vs PROVINCE OF PUNJAB AND 5 OTHERS Case No.: Writ Petition No, 46 of 1977 Date of Judgment:1977-05-30 Reported As: PLD 1978 Lahore 87 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' This order will dispose of Writ Petitions Nos. 46/1977 and 225/1977 since most of the questions of fact and law are common. 2. The facts in Writ Petition Nos. 46/1977 are that the petitioner's Bungalow No, 147-B, Satellite Town, Gujranwala was under the tenancy of Aligarh Association which established a Primary School for Boys and Girls in the name of Aligarh Primary Girls & Boys School. The management of this school was taken over by the Government under Martial Law Regulation No, 118 from the month of October, 1972. This established a relationship of landlord and tenant between the petitioner and the Government. The Government defaulted in the payment of rent of the demised premises with the result that an application for its ejectment was filed by the petitioner on the 12th of April, 1974. On 3- 6-1975 an order under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance was passed by the Rent Controller directing the Government to deposit arrears of rent from 1-10-1972 to 31-3-1975 amounting to Rs, 12,000 before 4-6-1975 and to deposit future rent from the month of April before the 15th of each succeeding month. Respondent No, 1 deposited the arrears by the due date, but defaulted in the deposit of rent for the month of April, 1975. The rent for this month ought to have been deposited before the 15th of May 1975, but it was deposited on the 4th of June, 1975, By the order dated 5th of June 1975, the learned Rent Controller struck off the defence of the said respondent and ordered him to be ejected from the premises in dispute. An appeal filed by respondent No, 1 against this order was dismissed in default on the 26th of September, 1975. Respondent No, 1 filed a petition for restoration of the appeal, but that too was dismissed on 27-11- 1975. Thereafter a second appeal from Order No, 546/1975 was filed in the High Court which was dismissed on 7-5.1976. A Writ Petition No, 1393 of 1976 was filed by one Miss Samina Gulzar against
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the order of ejectment of an Educational Institution, but the same was dismissed on 7-12-1976. The petitioner's case is that this petition was filed with the collusion of the Education Department of the Government. 3. During the pendency of these proceedings, the Government issued D. 0. No, S. 0. (R & B)-2-1/75 dated 12-7-1975 directing its delegatee under the Requisitioning of Immovable Property Temporary Powers Act, 1956 to requisition the properties in possession of the Government for the purpose of running Educational Institutions since the owners for one reason or the other had been trying to get the building vacated. The delegatee in the case of the petitioner's premises was the Commissioner who was vested with these powers by a Notification issued on 16th of June, 1962. A notice dated 24-6-1976 was served upon the petitioner to show cause against the requisition. This notice was issued to him after the dismissal of S. A. O. No, 546/1975. The respondent in his reply dated 5-7-1976 toot exception to this requisition in view of the order of the Rent Controller which was maintained upto the High Court. He, on the other hand, moved the Rent Controller for execution of the order of ejectment, on which a warrant of ejectment was issued which was executed on the 3rd of January 1977 and possession of the premises was obtained by the petitioner. The goods lying in the school was given in the Superdari of Mahmood son of the petitioner. The warrant of possession is Annexure 'A'. The report of the Bailiff about the execution is Annexure B/1. The list of movable articles belonging to respondent No, 1 recovered from the premises in dispute is Annexure B/2 while the Superdari Nama in Annexure B/3. 4. On the same date when the execution of the order of ejectment was completed, an order of requisition of the premises in dispute was passed by the Commissioner, Lahore Division. This order (Annexure 'D') reads as follows :- ' I Khalid Javed, Commissioner, Lahore Division, Lahore in exercise of the powers vesting in me under subsection (1) of section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Power) Act, 1956, Act VII of 1956 read with the Home Department's Notification No, Judi- 16 (21)/60 dated the 16th June 1962, being satisfied that it is necessary and expedient to requisition the building described in the Schedule below, do hereby requisition the same, for the purpose it is being used at present. (2) I also order the owner of the property requisitioned to negotiate, as soon as possible, with the District Education Officer, Gujranwala for fixing, by agreement, the amount of compensation payable to the said owner and failing agreement to move the District and Sessions Judge, Gujranwala, who has been appointed by me as Arbitrator for the purpose of section 6 of the above Act, to assess the compensation due. SCHEDULE S. No.Name of the propertyDescription of the propertyName of the owner 1.Aligarh Eng. Girls High Scoool, Gujranwala.B-XXVIII-27-A. S: 1- (147-A)Muhammad Tufail, 6-Guru Nanak Pura House No. 593, Gujranwala
Given under my hand the seal of my office this 3rd day of January, Nineteen hundred and seventy seven (3-1-1977). (Sd.) 1-1-1977 Commissioner, 3-1-1977 Lahore Division, Lahore.
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5. This order was communicated as is apparent from Annexure 'C' by the Assistant to Commissioner on telephone to the Deputy Commissioner, Gujranwala who communicated it by a letter Annexure 'C' to the District Education Officer, Gujranwala asking him to inform the petitioner to ensure that the possession of the property remains with the Education Department. The order of requisition was, however, served by the District Education Officer on the petitioner on 7th of January 1977 when he was already in occupation of the property. 6. It may be stated that the case of the Government is that an official of the Educational Department presented the requisitioning order at the time of execution of the order of the Rent Controller, but the respondent refused to accept it. There appears, however, to be no warrant for this assertion in view of Annexure 'C' which mentions a telephonic message and not receipt of the requisitioning order itself. The case of the petitioner on the other hand is that two hours after the possession of the building had been taken, respondents Nos. 5 and 6 same to the spot with the local police and other persons and forced an entry into the building, broke open the locks and reoccupied it on the pretext of a letter Annexure 'C' which itself was unsigned at that time. This assertion is supported by an affidavit. Moreover the documents of execution of warrant Annexures B/1, B/2 and B/3 also prove that the possession of the property had been taken before service or the order of requisition. There is no affidavit in support of the assertion that this order was communicated to the petitioner at the time of execution. It is not, however, the case of the respondents that this order was brought to the notice of the Bailiff who had gone to execute the warrant and who was the proper person and to whom it should have been communicated. 7. At the time of arguments the learned counsel for the respondents urged that an objection about the legality of the execution has been filed before the Executing Court and since that objection petition raised a disputed question of fact, the same could not be decided by this Court. The learned counsel was directed to show the copy of the objection petition to me. On the next date of hearing, however, it appeared that no such objection petition has been filed. On the other hand two applications, one dated 31-3-1977 and the other dated 21-5-1977 have been filed but they are only for return of the goods taken in Superdari by Annexure B/3. There is no objection at all to the execution. This also is proof of the fact that the order was not communicated at the the time of execution of the warrant of ejectment. 8. The facts In the other case are rather simple. Bungalow No, 456-C situated In Satellite Town, Gujranwala which is owned by the petitioner Soon Taj Muhammad Khan was let out by him to Khawaja Ghulam Ahmed in the year 1966 at a rent of Rs, 250 per month. Khawaja Ghulam Ahmad started Khawaja Modern High School in these premises. This private school was also taken over by the Government under Martial Law Rep. Lotion No, 118. According to the facts given to me by the learned counsel for the parties, after the relationship of landlord and tenant was created between the petitioner and the Government, re-assessment of rent was made by some Government Official and thereafter the Government offered rent to the petitioner at a unilaterally reduced rate of Rs, 60 per month, which was not acceptable to him. Thereafter a sum of Rs, 1,000 was paid. The Government contended that this should be treated as rent for 8 months at the rate of Rs, 125 per month while the petitioner who was within his rights to do so, remained adamant that it was only 4 months rent. The proceedings of ejectment were started in the year 1975 on grounds of default in the payment of rent from 1972 onwards. The Government representative admitted during the hearing of the application for ejectment that the rate was Rs, 250 per month. The application was allowed on the 27th of March, 1976. The appeal filed against it was dismissed on 2-11-1976. A Writ Petition No, 2810/1976 was filed by one Muhammad Suleman on the 20th of November 1976 to challenge the ejectment from the Educational institution, but the same was dismissed in March, 1977. According to the petitioner this writ petition was initiated and filed at the instance and with
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the collusion of the Education Department. Any way a requisition order apparently under the same direction of the Government which was given by D. 0. No, S. O. (P & B)-2-1-75 dated 12-7-1975 was passed on the 10th of January 1977 after service of a notice dated 22-6.1976 upon the petitioner. This requisitioning order is on the same form which has been reproduced above in connection with the other Writ Petition No, 46/1977. 9. The learned counsel for the petitioners argued that in both these cases the requisitioning order was passed to flout and make in executable the orders of ejectment passed by the learned Rent Controller under the provisions of the West Pakistan Urban Rent Restriction Ordinance and were, therefore, clearly mala fide. They also argued that the order had been passed by the Commissioner under orders of the Government and not in exercise of his own jurisdiction, which could be exercised after his personal satisfaction that it was necessary and expedient to requisition the petitioners' buildings. The order was, therefore, beyond the scope of the Acquisition of Immovable Property (Temporary Powers) Act 1956. Attack was also launched on the legality of the notice served in June 1976 upon the two petitioners on the ground that by that time, the Commissioner had no powers of requisitioning the petitioners' property under the Act. It was, further argued that in any case an order of requisition without, service of a notice on the occupant (the Education Department in these cases) was invalid in view of the mandatory provisions about the service of such notice in section 3 of the Act, In Writ Petition No 46/1977 it was further urged that since in view of the execution of the warrant of ejectment, the petitioner had occupied the property for his own use, the property involved in that petition could not be requisitioned under the Act. In this connection it was argued that the petitioner had sought eviction of the Government not only on ground of default, but also on ground of personal requirement of the premises for the petitioner's use. In Writ Petition No, 225/1977 it was further urged that the ma a fide of the Government is clear from the fact that although the school is located in Property Nos. 456-C and 457-C, but only the former premises have been requisitioned and not the latter. 10. Mr. Altaf Muhammad Khan, learned counsel for the respondents disputed the factum of delivery of possession to the petitioner in Writ Petition No, 46/1977. I have already dealt with this question at length and found this allegation to be incorrect. He challenged the locus stand! Of the petitioners since according to him only the occupant of the premises could challenge the requisition order. In regards to the attack on the notice served on the petitioner in June 1976, he argued that the basis of the attack was the assumption that the Commissioner was delegated with the powers under the Act of 1956 after this notice, but this was incorrect since such powers had been delegated as far back as in 1962. Alternatively he argued that the Act did not contemplate any notice to the owners of the property and as such the notices of June 1976 may be considered to be mere surplus age. On the point of mala fide he argued that two Writ Petitions Bearing No, 1393/1976 and No, 2810/1976 were filed by the students of the respective Institutions, but there was no collusion between them and the Education Department or the Government. He also argued that the exercise of discretion under the Act of 1956 even if it may result in the orders of the Rent Controller becoming inexecutable, cannot be considered to be mala fide. He further argued that the Government could issue a direction to its delegatee to make a requisition since the original power of requisition vests in the Government and the Commissioner acts as a delegatee only. Lastly he argued that the Educational policy of the Govern. Ment will suffer a serious set back if the discretion is exercised against the Government. 11. The West Pakistan Requisitioning of Immovable Property (Tem porary Powers) Act, 1956 in its section 3 provides that if in the opinion of the Provincial Government it is necessary or expedient to requisition any building for the use of any Officers or offices, the Provincial Government may be order in writing requisition any building and may make such further orders as appears to it to be necessary or expedient in connection with the Requisition Act. Provisos 1, 2 and 4 barred the
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requisition of certain properties or their requisition except under certain conditions. The first proviso provided that no building used for the purpose of religious worship or imparting education or situated in cantonment shall be requisitioned under the Act. The second proviso provided that evacuee building shall not be requisitioned except with the prior approval of the Central Government. The fourth proviso laid an embargo on requisitioning a house in the occupation of an owner. 12. These provisions have undergone some changes now by Act XVIII of 1957. It was provided that the embargo against the requisition of a house in occupation of an owner will be confined only to a residential house. Since the policy of the Government as is envisaged in D. O. No, S. O. (R & B--2- 1/75 is to requisition property for the use of an Educational Institution, an amendment became necessary in the Act of 1956 to lift the embargo on the requisitioning of properties for use of Educational institution and to confer powers on the Government to requisition such properties. This object was achieved after almost a year of to issuance of letter of 1975 by amendment of the Act of 1956 by Act XII of 1976. The Government was given the power by this Act to requisition immovable properties for the purpose of Educational Institutions also. The words in the first proviso "or imparting education" were deleted so as to remove the bar against the requisitioning of properties used for that purpose. 13. Another relevant provision in the Act of 1956 is its section 10 which authorises the Provincial Government to direct by the order notified in the official Gazette "that any power conferred or any duty imposed on it by this Act, shall in such circumstances and under such conditions, if any as may be specified in the direction, be exercised or discharged by such officer as may be so specified." 14. An important question which crops up in these cases is whether the Act of 1956 contemplates requisition of premises which are in occupation of persons other than those for whom they are required to be requisitioned or it allows the requisition of the property which is already In use for the very purpose for which requisition order is passed. The preamble of the Act shows that this law has been enforced in order to make provisions for temporary requisitioning of immovable property. As has been seen, section 3 which authorises the requisitioning of such property provides that the requisitioning order can be made subject to the following conditions I (1) In the opinion of the Provincial Government it should be necessary or expedient to requisition any property. (2) The requisition must be either for the use of any of its officers or offices or for the use of educational institutions. ' Subsection (3) of section 3 provides that "where the Provincial Government has requisitioned any building under subsection (1), it may use or deal with it In such manner as may appear to it to be expedient". 15. The term "requisition" is not defined in the Act. Its diction meaning is "the action of requisitioning ; a demand made by a person". The word "require" means "to ask for (some thing or person) authoritatively or imperatively, or as a right ; to demand, claim, insist on having." Section 3 will, therefore, mean that the Provincial Government is authorised to require from and make a demand upon owner/occupant of the Immovable property to hand over its possession of it for use of its officers o offices or of educational institution provided the Government thinks it expedient or necessary to make such an order. This section contemplates that the property should not be one which is already occupied by the Government or its officers or offices or its educational institution. The requisition must involve the taking of possession of the property. 16. The word "requisition" has been defined in the Defence of Pakistan Rules, 1971, as meaning "in relation to any property to take possession of the property or to require the property to be placed at the disposal of the requisitioning authority". This definition is in accord with the dictionary
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meaning of requisition which has been noticed above. The word "requisition" has been interpreted is Stroud's Judicial Dictionary (Third Edition). Paragraphs Nos. 4 and 6 at pages 2565 and 2566 are reproduced hereunder : "(4) Power to take possession of land was conferred by Regulation 51 of the Defence (General) Regulations, 1939. This was in effect a power to requisition premises (although the word 'requisition' is not used in the regulation) and is so treated in e.g. Circular No, 23/52, 'Request Doned Premises Now in Use for Housing' of the Ministry of Housing and Local Government. Power to requisition property other than land was conferred by Regulation 53 in terms. By Regulation 100 (1), 'requisition' means, in relation to any property, 'take possession of the property or require the property to be placed at the disposal of the requisitioning authority. ' Compensation for taking possession of land or requisitioning other property was authorised by the Compensation (Defence) Act, 1939 (2 & 3 Geo. 6, c. 75), section 17 of which defines the word 'requisition' in the same terms as Regulation 100 (1) above. (6) 'Requisitioning' is not a term of art and has different meanings. Its usual meaning is nothing more than hiring without taking the property out of the owner although the owner has no alternative whether he will accept the proposition of hiring or not. It may, however, involve the taking over of the actual domination of a chattel (The Steaua Romano, (1944) P. 43)." ' In Mangilal Karwa. v. The State of Madhya Pardesh and others (1) the term 'requisition' was explained as under "The term 'requisition' is used in the sense of taking possession of property for the purpose of the State or for such purposes as may be specified in the statute authorising a public servant to take possession of private property for a specified purpose for a limited period in contradistinction to acquisition of property by which title to the property gets transferred from the individual to the State or to a public body for whose benefit the property is acquired by the State but is taken out of the control of the owner for the time being for certain specified purposes. Even for this limited purpose, however, the owner becomes entitled to compensation, because 'requisition' of the property amounts at least to a temporary deprivation of the property." 17. Requisition, therefore, pre-supposes taking over of a building which is in possession of persons other than those for whose use It is required to be requisitioned. A building already in use of the Government Officers, or Offices or educational institutions, cannot, therefore, be requisitioned for the same use. This interpretation is further borne out by the provisions about notice to the occupant in subsection (3) of section 3 of the Act. This D provision can be invoked only when a person other than the Government or its employees or offices or educational institutions occupy the property. 1, therefore, am of the view that the property already in possession of the Government for the use of educational institutions cannot be requisitioned. The order of requisition is, therefore, absolutely without jurisdiction. 18. The other question is whether the two orders of requisition emanated from the Commissioner on his satisfaction about the expediency and necessity of the requisition or whether the Commissioner's orders, if passed under direction of his delegator, are valid in law. In order to answer these queries it is necessary to review some case-law and interpret section 3 of the Act read with its section 10. 19. As stated above, the powers under section 3 for the requisition of Inter alia the property in dispute have been delegated to the Commissioner of the Division. This delegation order confers powers under section 3 upon inter alia the Commissioner. 20. A requisition order under section 3 can be passed only if in the opinion of the requisitioning authority it is necessary or expedient to requisition any building. The effect of delegation of power under section 10 of the Act would be that such an opinion can be formed only by the delegatee where the order of requisition is passed by him. In case of (1) AIR 1955 Nag. 153 exercise of power
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by a delegatee of the Provincial Government, the word' "Provincial Government" must be substituted by the particular delegatee.- the Commissioner in the present case. The Government can form an opinion or act upon its own satisfaction about the expediency or necessity of requisitioning a property only if the order of requisition is passed by it. In case such an action is taken by the delegatee, the satisfaction of such necessity or expediency should be that of the delegatee and not that of the Provincial Government. 21. This question was considered by a Full Bench of the High Court of West Pakistan in Nasim Fatima v. Government of West Pakistan (1). It was held that 'satisfaction' being a condition precedent to the making of an. Order under rule 32 (1) (b) of the Defence of Pakistan Rules, if the power of detention under the above rule is conferred on the Provincial Government or another officer, then it must carry with it the power to be satisfied. The same view was taken by the Supreme Court in Ghulam Allan: v. Government of West Pakistan (2). A contrary view was taken by a Division Bench of the High Court of Sind & Baluchistan in Liaquat All v. Government of Sind (3) where it was held that notwithstanding delegation the satisfaction must be that of the delegator. This case was dissented from in view of the Supreme Court's view and the Full Bench view in Noor Muhammad v. District Magistrate (4). I am respectfully in agreement with the Lahore view. It follows from the principle laid down in the Lahore authority that the delegatee must act on his own satisfaction and not the satisfaction of the delegator. In the instant case the Government issued a peremptory direction to all its delegates to requisition premises in possession of the educational institutions run by it which are subject to proceedings of ejectment is competent Courts. This directive left no choice to the Commissioners in the matter of requisition. The Commissioner being an authority subordinate to the Government cannot take the risk of disobeying these directions. In these…
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