1983 PLP 1063 (CLC)

SAIJAD ALI SHAH, J.‑This petition calls in question requisition order in respect of flat No. B‑2, 4 Bath Island as illegal and without lawful autho rity. there in the building who were asked to vacate and against some of them rent cases were filed. By passage of time some flats became vacant in which the petitioners accommodated their officers. The flat in dispute was subject matter of litigation and rent case was pending but the petitioners succeeded in getting vacant possession from the tenant. This flat was allotted by the petitioners to their officer by name Mr. Abdul Aziz Arain, Administrative Manager. His name plate was affixed on the flat and some furniture was also moved in. The grievance of the petitioners is that the flat could not be requisitioned for the reason that it was in occupation and had been obtained and got vacated by the petitioners for the reason that it was to be allotted to Abdul Aziz Arain who had occupied it. No other grievance is made like right of hearing. Immediately after the flat was seized, which according to the Estate Officer was lying vacant, petitioners filed review application which was heard by Mr. Shafiq Ahmed Khan, Deputy Commissioner and D. M. (South) Karachi. Petitioners, counsel Mr. Virjee appeared before the Deputy Commissioner and made submissions against the order of requisition but his application was dismissed after proper hearing having been given. Before us also Mr. Virjee has submitted that the flat in question could not be requisitioned for the reason that it was in occupation of the officer but he has failed to produce any evidence in support of his assertion. On the contrary record shows that various pleas were taken but none of them could be substantiated. We have seen the application for review filed by the petitioners before the Deputy Commissioner. Ground taken therein is that sustained attempts‑were made to get the possession from the tenant and in this context rent case was filed but ultimately petitioners managed to get the vacant possession and right from the beginning this attempt was made to get the possession for the benefit of their officer Abdul Aziz Arain. Petitioners have failed to produce any evidence with regard to the litigation or rent case filed in the Court and in order to show that in fact the ejectment was being obtained for the benefit of their officer named. Not a single document of the rent case has been filed. Not only in respect of the flat in dispute but also in respect of other flats. It is stated in the review applica tion that after the possession of the flat was obtained, petitioner allocated it to Abdul Aziz Arain, who had put his name plate on the flat and also moved some furniture in the said flat, The flat used to be regularly opened and cleaned by tile servants of the company and very recently the allottee was to move in. Now it is very clear from this assertion that allottee has not taken possession so far and it is admitted that he had not moved in there. At another place in the review application, it is stated that plans were under way for moving more furniture into the said flat, and due to certain unavoidable circumstances Abdul Aziz Arain, Manager Admn. of the petitioners could not occupy the premises. This statement appears to b self‑explanatory and flat was vacant and even furniture was not moved and the possession was not taken over as alleged. In another paragraph o the review application it is stated that Abdul Aziz Arain allottee of the flat had locked the premises and a full time paid Chowkidar of the petitioners was also present in the property. It will suffice to say that before the yr Deputy Commissioner who was hearing the review application petitioner did not produce any evidence in support of the various pleas made by him as stated above. Firstly it has not been specified as to what furniture was moved in secondly the Chowkidar was not examined. However, Abdul Aziz Arain was examined before the Deputy Commissioner and stated that he had been residing for the last two years in a flat near Civil Hospital, Karachi. He did not make positive assertion that he moved into the flat. We have perused the order passed by the Deputy Commissioner on the review application. It is speaking order in which all the contentions raised by the petitioners have been adequately met. Even before the Deputy Commissioner petitioners did not produce the list of the articles of furniture which were alleged to be lying in the flat. Documents relating to the mitiga tion and rent cases were also not produced. In the memorandum of petition filed in this Court the petitioner has reiterated that some furniture was moved into the disputed tenement and as the tenement needed the repairs the same could not be occupied by Mr. Abdul Aziz Arain. However, the Chowkidar of the petitioners, who is on the petitioner's payroll was looking after the said tenement which used to be regularly opened and lighted awaiting the residence of Mr. Arain. Emphasis was made by Mr. Virjee that Chowkidar was there as such constructive possession was with the petitioners and there was furniture also in the flat. As stated before, the Chowkidar was not examined before the Deputy Commissioner neither a list of the articles 'of furniture was produced before the Deputy Commissioner nor before this Court. We directed the learned Advocate‑General, who appeared for the respondents to bring the relevant record and show us the inventory of the articles made at the time of sealing of the flat. In compliance the inventory has been produced. Perusal of this inventory shows that the flat was vacant and only the fixtures in the bath room, kitchen and other rooms such as fans, bath tubs, wash basin etc., have been specified. At one place in the inventory few articles of furniture are mentioned such as one broken chair, one broken table and one cot spring without bedding but these articles have been erased. Be that as it may and if we assume that these articles were there, they were not sufficient to show that flat was in occupation and ready for habitation. Mr. Virjee has cited some authorities in support of his contention but they are not of any avail to help him because they are distinguishable and are not attracted to the facts of the instant case. He has cited the case of Miss Neema v. West Pakistan through Chief Secretary (P L D 1969 Kar. 622). In this decision word "occupation" is defined to mean "to hold possession of", "to reside in", "to dwell" and "to stay". It is further held that building under construction neither furnished, nor ready for residence but containing building material and watched by owner's servants or agent, is neither ready for occupation nor occupied as residence but can be stated to be in the process of completion of residence. Another reported decision cited is the case of Muhammad Siddig and another v. Addl. Deputy Commissioner, Karachi (P L D 1978 Kac 384). In this decision "occuption" is defined as house furnished orready for habitation, containing furniture, beds, household and personal articles ready for use by owner at any time when he chooses to occupy the house. In such circumstances it is held, that it can be said that house is in occupation of the owner although temporarily he may not be residing there. Another case cited is decision in Muhammad Hassan v: Mir Muhammad Murad (P L D 1977 Quetta 84). The relevant point at issue was whether the house was in occupa tion or not at the time of sealing. Petitioner satisfied the Court that she was in occupation of the house, Chowkidar and gardener were there and the house teas fully furnished and she was out of Quetta for a short period to attend her ailing husband. It was held that the house was in occupation of the petitioner at the time when it was sealed: It is quite obvious from the cases cited and relevant portions are reproduced above that they do not come to the aid of learned counsel for the petitioners in the instant case and are distinguishable. These cases have no' application whatsoever to the facts of the instant case where there is absolutely no evidence of occupation when the flat was sealed. In these' circumstances we find no reason whatsoever to interfere and the petition is~ dismissed.