P L D 1965 (W (PLP)

Muhammad Ali Sayeed for Respondent. Date of hearing : 9th February 1965. This is a Second Appeal which has arisen from a suit bearing No. 1924 of 1958 which was filed by the present appellant against the Rent Controller of Karachi. The plaintiff-appellant had questioned the order of the Rent Controller by which the fiat occupied by the plaintiff-appellant was requisitioned and has asked for a declaration that it was ultra vires, void and inoperative. He bad also asked for a permanent injunction to restrain the Controller from evicting the appellant from the premises.

2. The facts which form the background of this appeal are that the appellant was in occupation of flat No. 1 of Ismailji Building, Arambagh Road, Karachi, which he left and occupied another flat bearing No. 4 in Sheristan Building, situated on Strachen Road. He is said to have occupied the new flat in June 1958 and to have received a notice in August 1958, to show cause as to why it should not be requisitioned. The Controller ultimately requisitioned the flat and an appeal preferred by the appellant against the order of requisition was dismissed by the Chief Commissioner of Karachi, vide his order dated the 5th of September 1958. The appellant was not satisfied with that order; therefore, he filed the said civil suit. The suit was dismissed: the appellant, therefore, went in First Appeal, which was also dismissed. He has come to this Court in Second Appeal.

3. This appeal was originally heard by Constantine, J., before whom reliance was placed on behalf of the appellant on a Division Bench judgment in Vali Muhammad v. Controller (P L D 1957 Kar. 400) The argument which was pressed before the learned Single Judge was that, in accordance with the decision of the Division Bench, requisition of a premises could not be made in terms of section 11 of the Sind (Requisition of Land) Act of 1947 if it "materially" interfered with the ordinary avocation of life and enjoyment of property. The learned Single Judge felt that the words "material interference", which were used by the Division Bench and were sought to be utilised on behalf of the appellant did not correctly represent the meaning of section 11 of the Sind (Requisition of Land) Act of 1947; therefore, he referred the matter to a Full Bench. The Full Bench has returned its reply by its order dated the 1st of December 1961, vide Syed Rafiq Ali v. The Rent Controller, Karachi (P L D 1962 Kar. 174), with the result that the appeal has now been placed before this Court for disposal in the light of that decision.

4. The view that has been explained in the Full Bench judgment is that an order of requisition should be such as not to cause more dislocation than is consonant with the purposes of the Act in the ordinary avocations of life and enjoyment of property. This, according to the view, means that the need for requisitioning is to be compared with the dislocation of life and enjoyment of property that would take place as a result of the requisitioning order. The comparison between the need and the dislocation can be methodically made if there is a scheme of the Government indicating its total need so that the dislocation caused by it to the individuals may be compared; but if there is no scheme and the total need of the Government is not disclosed, then the individual whose right is affected is necessarily pushed to the necessity of comparing his own inconvenience with the need of the individual for whom the premises is requisitioned. When such a comparison is made it necessarily leads to the expression of grievances, by the individual who is hit by the order of requisition, to his poverty, family requirements or need for alternative accommodation. These grievances are repelled by the authorities by saying that there is no mention of such needs in section 11 of the Sind (Requisition of Land) Act, 1947. This reply, however, does not satisfy the aggrieved person, nor does it squarely meet the legal situation because the comparison between the need and the dislocation has got to be made under the law in spite of the fact that methodical comparison is made impracticable when the total need of the Government is not disclosed.

5. It follows from the above explanation, which is contained in the Full Bench judgment, that in the absence of a scheme envisaging the entire need of the Government, the defence of the person who is hit by a requisitioning order is bound to be based on personal inconveniences and personal requirements because that is the only way in which the purport of section 11 of the Sind Requisition Act can be given effect to in such circumstances.

6. Mr. Muhammad Ali Sayed appearing for the respondent took the stand that the view expressed by the Full Bench does correctly reflect the central idea of section 11 as well as the manner in which its provisions can be enforced. In this connection, he read out the following part of the order of the Chief Commissioner, Karachi, by which he had dismissed the appeal: "No one has questioned the need for requisitioning accommodation. There are several Government employees belonging to the small income group who have no accommodation whatsoever. The need for providing them with accommodation is there. What we have to see when ordering requisition of any property is that minimum possible inconvenience is caused to the ordinary citizen." The above observations indicate that the Chief Commissioner was alive to the central consideration which is behind section 11, that is, the need of the Government and its comparison with the disclocation that is likely to be caused by the order of requisition. In this case, Mr. Muhammad Ali Sayed contended, owing to the absence of any disclosure of the total need of the Government, that the need of the individual for whom requisition is made is to be compared with the dislocation that is likely to be caused to the individual who is to be affected by the requisition. This comparison, according to counsel, will be in favour of the order of requisition because the appellant whose accommodation was requisitioned was not in need of the flat which he chose to occupy in 1958. He had a flat in his possession with bigger rooms than the flat in which he came. The only reason that he has given in his own statement for vacating the previous flat and coming into the new flat was that the previous fiat was situated in a locality which was unhealthy and noisy, and that under medical advice he surrendered it to the owner of the flat. In cross-examination be has, however, admitted that the number of the rooms which are contained in the new flat is the same as in the former flat with the only difference that, in the new flat their sizes are smaller. The new flat is situated only at a distance of about two furlongs from the spot at which the previous flat was situated. Moreover, the new flat is also situated on a main road. He has, no doubt, stated in cross-examination that there is no smoke or noise in the new flat. This statement of the appellant needed explanation, but the allegation has been made without disclosing any reasons for the difference between the two premises. Mr. Lakhani, counsel for the appellant, took the stand that the previous flat was situated above a hotel, while, the new flat was not so situated; but there is nothing on the record to support this stand of counsel. In view of this state of evidence, the conclusion, according to Mr. Muhammad Ali Sayed, should be that the choice of the present appellant in favour of the flat which has been requisitioned was not owing to any necessity. The Rent Controller has suggested, and the Chief Commissioner has accepted the suggestion, that the appellant was in the habit of making money by changing accommodations one after the other. Mr. Lakhani has justified those acts of the appellant by saying that in Karachi no accommodation is available without paying a large Pugree for it and that, therefore, if the appellant changed accommodations and received Pugree, it was merely the ordinary consequence of the conditions of the society. He referred in this respect to the observations contained in Vali Muhammad v. Controller in which it has been pointed out that the mere fact that some body charges Pugree is not a sufficient ground for requisitioning his accommodation in terms of section 11 of the Sind (Requisition of Land) Act, 1947.

7. Mr. Lakhani may be right in taking the stand that the payment of Pugree is a necessity of life in Karachi. He 'nay even be right in taking the stand that the payment or receipt of Pugree is not by itself a sufficient ground for dispossessing a person. But this explanation is not an answer to the stand taken on behalf of the respondent that the present appellant came into the new flat without the necessity for doing so. In this view of the matter the choice of the present flat made by the present appellant leaves it without the support of the necessity for doing so. The conse quence of such a situation would be that the order requisitioning the premises will not be hit by the provisions of section 11 of the Sind (Requisition of Land) Act, 1947.

8. Mr. Lakhani next took the stand that the purpose for which the premises was requisitioned was not a genuine one because the order indicated that a servant of the Central Govern ment had to be accommodated in it, but a servant of the Provincial Government has been accommodated in it and has continued to be accommodated in it ever since. In support of the .c contention that if the purpose for which an order of requisition is made is specified in it but the requisitioned premises is not used for that purpose, then that order is bad, Mr. Lakhani has relied on Hussain Haji Ahmed v. S. Ashhad Ali (P L D 1957 Kar. 874). The difficulty in the way of counsel, however, is that there is nothing on the record to show as to who was the first occupant of the premises. The stand becomes weaker when it is realised, as disclosed by Mr. Lakhani himself, that the order of requisition was made in August 1958, but the appellant continued to occupy it till June 1961. This means that, by the time the appellant vacated the premises, change in the use of the premises was likely to take place without having relation to the situation in which the order was made. The effect of this change should not affect the validity of the order which was made in August 1958.

9. Mr. Lakhani has further contended that owing to the transfer of the capital of Pakistan from Karachi to Islamabad in 1960, the need of accommodation for the Central Government servants in Karachi has considerably decreased and that a large number of premises have been derequisitioned by the Government on that account. In this respect, again, there is nothing on record to indicate that the stand taken by counsel is correct. Counsel explained the reason of the absence of the supporting material by saying that the transfer of the capital took place during the pendency of the proceedings ; therefore, there could not be any plea with respect to it, nor could there be any material with regard to it on the record. The explanation does give an adequate reason of the omission, and the change that has taken place might, when proved, be a good ground for getting the premises derequisitioned, but it is not a good ground for questioning the validity of the order as and when it was made.

10. In view of the foregoing, the conclusion is that this appeal cannot be accepted. It is, therefore, dismissed, but in view of the circumstances of this case, the parties are left to bear their own costs. S.Q. Appeal dismissed.