P L D 1961 Supreme Court 1 (PLP)

The facts were as follows. Certain premises known as the Murree Club Hotel owned by Mr. A. G. Khan were requisitioned by the then Punjab Government under the Punjab Requisitioning of Immovable Property (Temporary Powers) Ordinance, 1955, and remained in the possession of that Government for a period of about three months. The petitioners had been in occupation of the hotel under an agreement between the owner and Shujauddin Qureshi. Whether or not the document executed by the parties constitutes a lease is a question upon which it is desirable that we should say nothing in tnis judgment. It is described as an "agreement to lease". After the release by the Punjab Government, the petitioners again entered into possession, and it appears they are still in possession. Following the derequisition, both the appellant as well as Shujauddin Qureshi preferred claims for compensation to the Government. That of Shujauddin Qureshi was rejected, but to Mr. A. G. Khan about Rs. 32,500 were paid, out of which Rs. 8,250 was compensation for use and occupation of the hotel. This hotel formed part of a much larger estate, the whole of which had been requisitioned, and for the other premises requisitioned, a sum of Rs. 16,835 was assessed as compensation, in addition to Rs. 7,467 on account of modifications and repairs necessary for the restoration of the property to its former condition. The refusal to pay anything to Shujauddin Qureshi was based by the Government upon the consideration that it was not admitted that he and his colleagues were owners of the premises within the meaning of section 2 (iii) of the Punjab Requisitioning of Immovable Property (Temporary Powers) Ordinance, 1955. In the petition it was said that the refusal to accept them as "owners" was based on their "not having paid the entire lease money for the year 1955-56 prior to the date of tie requisition by the Government" In the petition, it was admitted that they had only paid Rs. 1,000 in cash, and in addition had incurred an expense of Rs. 804 on repairs, which was debitable to the lease money account, and as for the balance of the total rent which was Rs. 10,400, that was to be paid later. The petition then went on to say that even if the contention of the Government that the petitioners' case did not fall within the Ordinance, were correct, it would only make the petitioners' claim "stronger", since it would establish that the Ordinance was ultra vires of the Provincial Legislature for non-compliance with the provisions of section 299 of the Government of India Act, 1935 through having made no provision for payment to the petitioners for deprivation of their lessee rights. Consequently, it was urged, the whole action of the Government in requisitioning the premises and depriving the petitioners of possession would be illegal and ultra vires, and therefore it was said "Government was responsible for paying damages to the petitioners". The wording of the various clauses in the petition made it clear that what the petitioners were claiming was compensation for the profits which they could, but for the requisition, have made by running the premises as a hotel. The prayer reads as follows:- "That the petitioners pray as under:- (a) That a writ of mandamus be issued to respondent No. 1 to pay compensation at reasonable rates (not less than double the amount mentioned in para. 8 above) to the petitioners for the use and occupation by the Punjab Government of the premises during the year 1955-56 and for the loss occasioned to the petitioners thereby. (b) That a writ of prohibition be issued against respondent No. 1 directing it not to requisition the premises in question for the coming year. (c) That any other writ, order or direction that may be warranted by the circumstances of the case may be issued. (d) That the petitioners may be awarded costs of this application." The writ and direction actually issued by the High Court were expressed as below:- "We therefore, issue a writ of mandamus to respondent No. 2 directing him to refund the amount of compensation received by him from the Government, after deducting sums of Rs. 804 and Rs. 1,000 which he has adjusted towards the rent payable by the petitioners as second instalment for the year 1957 as claimed by him. This amount of Rs. 1,804 not refunded to Government (respondent No. 1) will be deducted by the Government from the amount of compensation which is found due for the requisitioning of the hotel, and for the assessment and payment of that compensation, we direct the Government to take proceeding afresh." It is evident that the relief granted bears no relation whatsoever to the relief asked for in the petition for a writ. Nowhere in the petition, had the petitioners asked that Mr. A. G. Khan should be required to make any payment either to them or to the Government. The Government in its reply to the petition had asserted that the petitioners were not within the definition of the expression "owner" contained in the relevant statute, which, in the opinion of the Government, was not ultra vires of the Provincial Legislature, but it was submitted that even if this were not correct, the proper remedy for the petitioners was by way of a regular suit for damages. As has been seen, the petitioners, own case was that if they were not within the meaning of the word "owner", then "the Government was responsible for paying damages" to them. The Government stated, perfectly correctly in our opinion, that "the petitioners' own claim is substantially one for damages and it is respectfully submitted that this is not the proper forum for claiming damages". The Government did not claim any refund from Mr. A. G. Khan, nor does anything at all relevant to such a matter appear in Mr. A. G. Khan's written statement. The sums involved were by no means large, and it should have been evident from the facts alleged and admitted on the record, that Mr. A. G. Khan was a person who could very easily have met such a demand should it even have been made of him by the Government. Therefore, if any accounting in respect of the items of Rs. 10,400, Rs. 1,000, and Rs. 804 even fell to be done, no order of refund and no directions as to the accounting were at all necessary. The writ of mandamus issued by the High Court must be set aside on the grounds, firstly that, in the terms granted, it had not been applied for, and secondly, that it was wholly unnecessary. This writ was supplemented by a direction to the Government "to take proceedings afresh". Now, what has been found by the High Court in the case is that Shujauddin as a lessee possessed rights over immovable property, that is to say, the Murree Club Hotel, and by the operation of section 299 of the Government of India Act, no law can provide for the requisition of that property without providing for compensation to such a lessee in respect of his rights. The relevant Ordinance provided that compensation for the use and occupation of any requisitioned property should be paid to the owner, and by a definition, the meaning of the word "owner" was extended to include (1) a successor-in-interest of an owner, (2) a mortgagee in possession and (3) a lessee for a fixed period who has paid rent for the whole of that period in advance. It was plain that Shujauddin Qureshi who had not paid rent for the period of the agreement, viz., from the 1st February 1955 to the 31st January 1956, in advance, did not fall within the meaning of the expression "owner" used in the Ordinance, and therefore did not qualify for payment of compensation. The learned Judges of the High Court held that in so far as the relevant Ordinance did not provide for payment of compensation to a lessee who has not paid full rent in advance, it was ultra vires of section 299 of the Government of India Act. They did not examine the effect upon the case of the express contention of the petitioners that in case the law was ultra vires, then "the Government was responsible for paying damages", a contention which had the support of the Government to this extent, that if the law was indeed ultra vires, then the only remedy for the petitioners at law was by a suit for damages. It appears that the learned Judges thought that the same relief as could be obtained in suit for damages would be procured by directing "the Government to take proceedings afresh". Now, it is quite clear that the prerogative writs are-not a means whereby damages can be recovered for actionable wrongs. The occupation) by the Government of the premises could not, of course, be considered as a "wrong", since it had been effected by proper proceedings under an Act which was clearly valid in so far as it went. The defect to which the petitioners drew attention was that it did not provide for compensation for a certain class of interests not falling within the definition of "owner" and it was contended, not without force, that the Ordinance could not be interpreted so as to exclude the right of compensation in respect of such interests. But at the most, that would save a suit for compensation in money as against the Government. It would not give rise to a vested right in law of the nature requisite for enforcement by mandamus. The procedure of the Land Acquisition Act, 1894 was not attracted in the case, and there being intricate question of fact and law arising for decision, which would involve the reception of evidence (e.g., as to the validity in law of the agreement as constituting a lease, as to the profit-earning capacity of the hotel) the proper proceeding was clearly by way of a suit. It seems the petitioners contemplated such a suit in the initial stages, for they issued a notice to the Government under section 80, Civil Procedure Code. Moreover, it appears to have been overlooked, that in directing the Government "to take proceedings afresh" the High Court was requiring no more than a repetition of the process which had already been undergone, namely, a process under the Ordinance, and by theterms of that Ordinance, the petitioners were excluded from the category of persons qualified to receive compensation. Therefore, the commencement of fresh proceedings under the Ordinance could not in any way operate to the advantage of the petitioners. Mr. Abdul Haque for the respondents Shujauddin and others suggested that the proceedings which the Government might take under the High Court's direction would be in the nature of accounting, i.e., that the claim of Shujauddin Qureshi and other petitioners to be compensated could be examined and as much as is found due might be paid. We cannot conceive that the power of the High Court under Article 170 of the late Constitution can be drawn to the length of requiring a debtor to calculate how much is justly due from him and to make payment accordingly to his creditor. Those are matters which, in the absence of any special law applicable to the facts, are suitable only for decision in a civil suit. We find the writ and direction issued by the High Court in this case cannot be sustained, and we accordingly allow this appeal and we direct that they should be recalled. The appellant will have his costs against the petitioner-respondents throughout. A. H.??? Appeal allowed.