1983 PLP 1026 (CLC)

(c) Cantonment (Requisitioning of Immovable Property) Ordinance (IV of 1948)‑ --‑S. 2 (1)‑Cantonments Rent Restriction Act (XI of 1963), S. 17 Provisional Constitution Order (I of 1981), Art. 9‑Requisitioning of Immovable Property‑De‑requisitioning‑Letter withdrawing de‑requisitioning order not showing necessity or expediency prompting Government to re‑requisition property‑Cannot be considered fresh order of requisitioning Letter withdrawing de‑requisitioning basically seeking to undo for no cogent reason what it agreed to do earlier, held, mala fides without lawful authority and set aside. Muhammad Saleem for Petitioner. Munir A. Sheikh, Deputy A.‑G. for Respondents. Dates of hearing : 26th and 27th March, 1983. This is a constitutional petition filed by Abdul Ghafoor, petitioner, against the Federation of Pakistan (through the Secretary, Ministry of Housing and Works, Islamabad), The Joint Estate Officer, Estate Office, Rawalpindi, and the Military Estate Officer, Rawalpindi, respondents, calling in question the order dated 8th March, 1982 passed by the Govern ment of Pakistan, Estate Office, Rawalpindi, withdrawing an earlier order of de‑requisition of the petitioner's house de‑requisition

2. The brief facts of the case are that on 7th August, 1975 the peti tioner's house No. 1231. situated in Tariq Abad (Lal Kurti), Rawalpindi Cantonment, was requisitioned by the Military Estate Officer, Rawalpindi, respondent No. 3, under section 2 of the Cantonment (Requisitioning of Immovable Property) Ordinance, IV of 1948. The said order is annexed as Annexure `A' to the petition. On 25th August, 1975, an award was made by respondent No. 3 fixing the rent of the said house as Rupees Three Thousand (Rs. 3,000) per annum payable with effect from 13th August, 1975 to 12th August, 1978. The said letter is annexed as Annexure `B' to the petition. On 23rd December, 1981, the Government of Pakistan, Ministry of Housing and Works, Islamabad, issued a letter to the Joint Estate Officer, Estate Office, Rawalpindi, stating that it had been decided to de‑requisition house No. 1231 situated in Tariq Abad (Lal Kurti), Rawalpindi, for the owner's use only on vacation by the existing occupant. The letter further stated that the owner may be informed that in case the house was rented to a private party, including a foreigner or a foreign mission, the same would be re‑requisitioned by the Government and the owner would be liable to action under para. 4 of the Rawalpindi (Requisitioning of Property) Regulations, 1959, promulgated through Martial Law Rugulation No. 71 read with the Ministry of Works, Irrigation and Power Notification No. W/32/20/59, dated 18th August, 1959. The letter finally stated that the de‑requisition was subject to adjustment of Government dues, if any, and production of requisite affidavit by the owner. Copy of the said letter was endorsed to the petitioner, which he received. The said letter is annexed as Annexure `E' to the petition. On 13th January, 1982 the Estate Office, Rawalpindi, intimated through a letter to Mr. Riaz Ahmad Mir, occupant of the said house, informing him that the same had been de‑requisitioned by the Works Division vide its letter dated 23rd December, 1981 and requested him to make it convenient to visit their office on 20th January, 1982 in respect of the said matter. Copy of the said letter was endorsed to the petitioner, with the noting that be should also visit the Estate Office on the same date, which letter the petitioner received. The said letter is annexed as Annexure F' to the petition. Mr. Riaz Ahmad Mir, occupant of the house, however, did not vacate the same. On 24th February, 1982, the petitioner filed an application before. the . Cantonment Rent Controller for the eviction of the Government of Pakistan from the bungalow to dispute, Notice of the said application was served on the Government on 28th February, 1982. On 8th March, 1982, the Government of Pakistan (Ministry of Housing and Works), Islamabad, by their letter addressed to the Joint Estate Officer, Estate Office, Rawalpindi, intimated to the latter that their earlier letter dated 23rd December, 1981 may be treated as withdrawn. Copy of the said letter is annexed as Annexure `G' to the petition. Being aggrieved by the said letter, the petitioner filed the present writ petition which is now before me for disposal. 3. 1 have heard the arguments of Mr. Muhammad Salim, Advocate for the petitioner, and Mr. Munir A. Sheikh, Deputy Attorney‑General, who has appeared for respondents Nos. 1 to 3, and have also perused the depart mental file, relating to the Government of Pakistan (Ministry of Housing and Works), Islamabad. There cannot be any doubt that the petitioner's house No. 1231 situated in Tariq Abid (Lal Kurti), Rawalpindi, was de requisitioned by the Government of Pakistan (Ministry of Housing and Works), Islamabad, on 23rd December, 1981. The letter of the Estate Officer, Rawalpindi, dated 13th January, 1982 addressed to Mr. Riaz Ahmed Mir, the occupant of the disputed house, also makes it clear that the said house was de‑requisitioned by the Government vide its letter dated 23rd December, 1981. The condition imposed in the Government of Pakistan's letter dated 23rd December 1981 derequisitioning the house is ultra vires of section 3 of the Cantonment (Requisitioning of Immovable Property) Ordinance, 1948. By virtue of the de‑requisi tioning order, the Estate Officer, Rawalpindi, was duty bound to give vacant possession of the disputed house to the petitioner within a reasonable time, The 'same not having been done by the Estate Officer, Rawalpindi, the petitioner was tempted to move the Cantonment Rent Controller for the eviction of the Government from the premises in ques tion.

4. No cogent and bona fide reasons have been given to support the with‑drawl order of 8th March, 1982. The de‑requisitioning order having been communicated to the petitioner, a vested right accrued in him, which could not be withdrawn later by the Government in the absence of anything to B show that fraud or deception was practised by the petitioner to deceitfully secure the said order. The departmental file rather shows that the Govern ‑1 sympathetically considered the request of the petitioner to release the house for the petitioner's personal use. Impliedly; therefore, Government agreed to find for the existing occupant alternative accommodation. Even assuming that section 22 of the General Clauses Act applies to the instant case; the order of 8th March, 1982 withdrawing the earlier order of de‑requisition would basically be mala fide, unless Government. could Show that it had strong evidence to support the plea that the petitioner had already agreed to alienate or lease out the property, which defeated the very object for which the property was de‑requisitioned, or that fraud or, deception was . practised by the petitioner to deceitfully secure the derequisition order. The withdrawal order of 8th March, 1982 appears only to have been passed to dislodge the eviction petition, filed by the petitioner and to protect Mr. Riaz Ahmad Mir's occupation. It basically seeks to undo, for no cogent reason, what it' agreed to do earlier. The withdrawal order, there fore, basically is mala fide. The contention of the Deputy Attorney‑ p General that the Governments letter of 8th March, 1982, should be treated as a fresh order of re‑requisition, cannot be accepted. The said letter does not 'show the necessity or expediency prompting the Government to re‑requisition the property, which it is necessary to disclose in view on section 2 (1) of the Cantonment (Requisitioning of Immovable Property) Ordinance, 1948.

5. The upshot of the above discussion is that the letter of the Government of Pakistan dated 8th March, 1982, withdrawing its earlier order of de‑requisition, is mala fide and without lawful authority and is hereby, set aside. The respondents shall now deliver vacant possession of house No. 1231, situate in Tariq Abad (Lal Kurti), Rawalpindi, to the petitioner, within a reasonable time, not exceeding a month from the date of announce ment of this judgment. The respondents shall pay the costs of this petition. M. Y. H. Petition accepted.