2002 PLP 124 (MLD)

Through this Constitutional petition, the petitioner has sought setting aside of order of requisitioning date 6‑3‑1978 of Property No.SEX‑XVII‑11‑S‑7, situated at Gunj Mughalpura, Lahore and for its declaration as illegal, without lawful and of no legal effect.

2. The brief facts of the case are that the petitioner claims that she is the co‑owner of Property No.SE‑XVII‑11‑S‑7, situated at Gunj Mughalpura, Lahore. In this property a Government M.B. Islamia Girls Middle School, is being run at present. Firstly, it was a private school and the Government took over the school under M.L.R. No.118, since October, 1972. Hence, this school is being controlled by the Provincial Government. The Government was paying the rent of the premises being used for the building of the petitioner. According to the petitioner on 6‑3‑1978 the respondent issued an order of Requisitioning of the Building belonging to the petitioner under section 3(1) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, intimating to the petitioner that the building has been requisitioned by the Government, directing the petitioner to deliver the possession of the property in question to the DEO(W), Lahore within, three days. This order was challenged by the mother of the present petitioner before the Rent Controller and on 13‑9‑1979 according to the petitioner the decision was made in favour of the mother of the present petitioner. The Government challenged this decision in Writ Petition No.7488 of 1979 and on 11‑2‑1984 this Court declared the order of the Rent Controller as illegal and was set aside. However, it was mentioned in the order that the petitioner can seek remedy and challenge the impugned order, hence this petition has been filed.

3. Learned counsel for the petitioner contends that the property could not be requisitioned as proviso (1) to section 3(1) restrains the respondent from requisitioning such a property. The order is liable to be struck down on this ground alone. It is further contended that the petitioner has a legal right to retain the property, hence, it cannot be taken away without any lawful exclusive manner.

4. Learned A.A.‑G. appearing‑on behalf of the respondent has opposed this writ petition on the ground that the writ petition has been filed after 9 years and no ground has been given for such a delay in filing of the writ petition. Hence the matter cannot be re‑opened. 5.? I have heard the learned counsel for the petitioner, learned A.A.‑G. and also perused the documents attached with this petition. As far as the question of laches is concerned, the petitioner's mother had challenged the impugned order before the Rent Controller where the ejectment petition was already pending. The Rent Controller vide order dated 13‑9‑1979 had declared the Requisitioning Order as illegal and unlawful, but as the order was passed by the Rent Controller who was not authorized to declare the same as illegal, this order was set aside by this Court by making an order that impugned order can be challenged before the proper forum. I have noticed that there is no dispute that Property No.SE‑XVII‑11‑S‑7, situated at Gunj Mughalpura, Lahore was take? over by the management of school under M.L.R. 118 in the year 1972. Learned counsel for the petitioner claims that no notice was issued before the passing of the order aw_' the impugned order is mala fide. Admittedly there was already dispute pending before the Rent Controller and possession was already with the respondent who was running school there. The property could not be requisitioned through impugned Notification as it has already been held in PLD 1978 Lahore 87 in which the writ petition on the similar questions had been accepted. The impugned Notification has been issued under section 3(1) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act. 1956 which contemplates that the Provincial Government is authorized to require from and make a demand upon owner/occupant of the immovable property to hand over its possession for its officers or offices or for educational institutions provided that the Government thinks it expedient or necessary to make such order. This provision envisages that such property cannot be taken which had already been occupied by the Government for its officers/officials or its educational institutions. In the case in hand the disputed property has been taken over by the Government and it has already been in the possession of the Government, hence order passed for requisition of the property of the petitioner which was already in the possession of Government and was being used for educational purposes is illegal and impugned Notification has been issued for the property which could not be requisitioned for the same purposes. The non‑issuance of notices to the petitioner before the requisition is valid ground as well for acceptance of this writ petition. As far as laches is concerned the writ petitioner's mother had immediately challenged the requisitioning order in the proceedings pending before the Rem Controller after issuance of Notification and it was declared illegal but due to the writ petition filed by the Government of Punjab the matter kept pending for so many years which writ petition was accepted, thus it cannot be said that the petitioner was not pursuing her case. Thus, filing of writ petition following the decision of the High Court after about 9 years will not be sufficient to deprive the petitioner from her legal right over the disputed property. I am fortified by the judgment of Division Bench passed in I.C.A. No.574 of 1991 titled as Home Department v. Fazal Elahi Farooqi, in which the property was be‑%g used for educational purposes and order of requisitioning of the same was passed and the writ petition was accepted by setting aside of order of requisitioning. The appeal filed by the Government of the Punjab was dismissed as property had already been used by the Government for educational purposes. If the notification has been issued, which is illegal and unlawful and is liable to be set aside that cannot be kept intact merely on the ground of technicalities. It has been held by this Court that the limitation cannot extinguish the accrued rights. Reliance is placed on PLD 1973 Lahore 207 that the limitation will not extinguish or create rights. Accrued rights cannot be taken away. The objection regarding the laches is overruled and the writ petition is accepted by setting aside the order of requisitiong dated 6‑3‑1978 of Property No. SE‑XVII‑11‑S‑7, situated at Gunj Mughalpura, Lahore. H.B.T./S‑288/L??????????????????????????????????????????????????????????????????????????????????? Petition accepted.