2008 PLP 540 (CLC)

MUHAMMAD KHALID ALVI, J.

Brief facts of the case are that undisputedly petitioner is owner of the vehicle in dispute which was on lease with respondents Nos.1 and

2. Respondent No.4 seized the said vehicle on 29-11-2007 for the purposes of general elections (2007-2008) on the instructions of D.O.(R).

2. It is contended by the learned counsel for the petitioner that under section 3 of the Punjab Requisitioning of Motor Vehicles (Temporary Powers) Ordinance, 1970 it was imperative for the authority D.O.(R) to give a notice of right of hearing before seizing his vehicle. It is further submitted that the petitioner is being deprived of the use and also the lease money by the respondents.

3. On the other hand, learned Law Officer contends that a right of appeal is provided under section 4 of the Punjab Requisitioning of Motor Vehicles (Temporary Powers) Ordinance, 1970, therefore, this petition is not maintainable. It is further submitted that respondent No.4 had taken over the possession of the vehicle in dispute from respondents Nos.1 and 2 which is a Semi-Government Organization. It is further submitted that the act is bona fide in order to facilitate the process of elections. With reference to sections 13 and 14 it is contended that jurisdiction of this Court is barred.

4. Learned counsel for respondents Nos.1 and 2 maintains that petitioner and respondents Nos.1 and 2 are bound by their lease agreement since the vehicle in question was taken over by respondent No.4, therefore, respondents Nos.1 and 2 for this period are not bound to make payment to the petitioner under the lease agreement. Petitioner, if so advised, may seek his remedy from the Election Commission for the purposes of compensation.

5. I have considered the arguments advanced by the learned counsel for the parties.

6. Undoubtedly, section 3 of the Punjab Requisitioning of Motor Vehicles (Temporary Powers) Ordinance, 1970 authorizes D.O.(R) to take control of a motor vehicle if needed for any public purpose but the condition precedent is that a prior notice has to be given to the owner and right of audience is also to be provided to him. Admittedly, no such notice was given to the petitioner who is the owner of the vehicle, therefore, taking possession of the vehicle without notice is inherently illegal and without lawful authority.

7. So far as the question of compensation/lease amount during this period is concerned, the vehicle was in possession of respondents Nos.1 and 2 from whom it was taken by respondent No.4, therefore, respondents Nos.1 and 2 are bound to pay lease money for the said period to the petitioner. However, respondents Nos.1 and 2 will be entitled to claim compensation from the Election Commission in accordance with law. Since the seizure of the vehicle was inherently defective on account of non-issuance of notice, respondent No.4 is directed to restore the custody of the vehicle to respondents Nos. 1 and 2 forthwith.

8. Needless to observe that despite there being a right of appeal provided in the Statutes since the order is inherently defective on account of non-issuance of notice, therefore, this petition can be directly entertained without directing the petitioner to approach the alternate forum.

9. With this observation this petition stands disposed of. H.B.T./S-208/L Order accordingly.