P L D 1969 Karachi 3 (PLP)

QADEEAUDDIN AHMED, J.‑This petition made under Article 98 of the Constitution was placed before me under an order of the previous Senior Judge, because the Division Bench which heard ft was divided in opinion and had referred the case to the Senior Judge‑ "for entrusting it to another learned Judge for decision." The learned Judges, who made the reference, have written separate judgments, but the Bench has not stated the point on which they have differed. Counsel for the parties have taken the stand that the difference of opinion took place upon the following points only: Whether the bungalow in dispute, which at the time of its requisition was under completion, can, for purposes of sub section (1) of section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 be said to have been occupied by its owner or not? If the answer to the above question be, in the negative, then the next question for decision will be: Whether the bungalow could be requisitioned?

2. Counsel for the parties have agreed that this petition must be accepted if the finding is that the owner could be and was in occupation of the bungalow, otherwise it will be neces sary to decide further whether it could be at all requisitioned or not.

3. Briefly, the facts are that the Commissioner of Karachi ordered the requisition of a bungalow which stands on a plot of land bearing Survey No. 17/B situated in the area of the Muhammad Ali, Memorial Co‑operative Housing Society Ltd. off Drigh Road, Karachi. On the 14th of December 1965, the Additional Advocate‑General, West Pakistan, Karachi, after his appointment as such, represented to the Commissioner of Karachi that a suitable premises be requisitioned for his residence to enable him to discharge his official duties. Before this appointment, he practised law at Hyderabad. Action was taken on that letter, and the Executive Engineer, 'Karachi Build ings Division, acting on the directions of the Commissioner, broke open the above‑mentioned bungalow on the 11th of January 1966, at about 5 p.m. and after putting on his own locks, sealed it. A police constable was posted to prevent every body from having access to it. The petitioner made enquiries about the reason of her dispossession and came to know that the Commissioner had requisitioned it under the West Pakistan Requisitioning of Immovable Property (Tem porary Powers) Act, 1956. On the 15th of January 1966 she made a representation to the Commissioner stating that the bungalow was still under construction and was being built at considerable expenditure for her personal residence. She pointed out that the order of requisition was made without prior notice to her, and complained that her goods and belongings had been removed from the bungalow and placed on the road. The Commissioner wrote on it as follows: "Both applicant and her husband who appeared before me this morning state that the house requisitioned is their only house and that they have assured me that they are living in a rented flat and they have no other house in Karachi. In the circumstances I should like to have the comments of Qazi, the person for whom the house has been requisitioned, urgently." On the 16th of January 1966, the Additional Advocate‑General, West Pakistan commenced occupation of the bungalow by sending his furniture into it and completely occupied it on the submitted her petition to this Court under Constitution.

4. The above facts are not in dispute, counsel for the petitioner has informed me that the order by which the bungalow was requisitioned was criticised before the Division Bench on the following grounds:‑ Firstly, in terms of the third proviso to subsection (1) of section 3 of the West Pakistan Requisitioning of immovable Property (Temporary Powers) Act, 1956, the bungalow was in occupation of the petitioner; therefore, she was legally entitled to a prior notice under the third proviso to the subsection ; Secondly, in terms of the fourth proviso to the said sub section, the petitioner being in occupation of her own bungalow could not be ordered to vacate it ; Thirdly, the bungalow was incomplete and legally incapable of being occupied, because no permission for occupying it had been granted in terms of clause (3) of Article 68 of the Karachi Development Authority Order, 1953. One of the learned Judges who constituted the Bench, has held that the circumstances of this case did not disclose that the ingredients which constitute `occupation' of a building were existing and the other learned Judge has held that they did exist. On the answer to the question whether she was in occupation of the bungalow or not, depends the answer to the querry whether prior notice to her was necessary or not.

5. In order to give answers to the questions which have been reproduced above, I should firstly refer to the relevant legal provisions. One of them is subsection (1) of section 3 of the West Pakistan Requisitioning of Immovable Property (Tempo rary Powers) Act, 1956. It is as follows :‑ "3.‑(1) If in the opinion of the Provincial Government it is necessary or expedient to requisition any building for the use of any of the office or offices of the Central Govern ment, the Provincial Government or any corporate body estab lished by or under the authority of the Central Government or the Provincial Government, the Provincial Government may by order in writing requisition any building and may make such further orders as appear to it to be necessary or expedient in connection with the requisitioning: Provided that no building used for the purpose of religious worship or imparting education and no building situated in a cantonment within the meaning of the Cantonments Act, 1924, shall be requisitioned under this Act: Provided further that no building which is an evacuee property shall be requisitioned except with the prior approval of the Central Government: Provided also that if a building is in occupation of any person, no order for its requisitioning shall be passed unless a Notice of, at least, two weeks is given to the occupant to show cause against the action proposed to be taken and if and when an order of requisitioning is passed, the occupant shall be allowed a period of one month, at least, to vacate the building and such occupant shall thereupon comply with that order: Provided that no owner in occupation of a residential house shall be required to vacate it." There is not definition of the word "occupation" in the above mentioned Act, nor is that word defined in the Karachi Develop ment Authority Order, 1957; (hereinafter referred as K. D. A. Order) but in Article 68 of the K. D. A. Order there is a provision that a building cannot be legally occupied before its erection or re‑erection is approved and permission for its occupa tion is granted by the Authority. The relevant provision is as follows: "

68. Completion Certificate and permission to occupy or use building.‑‑(1) Every person who‑ (i) makes or extends any excavation in a controlled area; (ii) erects or re‑erects any building; or (iii) makes any material external alteration in or addition to any existing building; or (iv) constructs or re‑constructs any projecting portion of a building in respect of which the Authority is empowered under Article 8S to enforce an alteration or demolition or is empowered to give permission to construct or re construct it; shall within one month of the completion of the work deliver to the Authority notice in writing of such completion and shall give to the Authority all necessary facilities for the inspection of such work. (2) After the receipt of the said notice the Authority shall promptly depute an officer to inspect such work and after such inspection, either approve or disapprove the building for occupancy or make such further order as it may decide. (3) No person shall occupy or permit to be occupied any such land, building or use or permit to be used any part affected by the re‑erection, of such building until the per. mission referred to in clause (2) has been granted in the prescribed manner." In this case, it is admitted that no such permission was granted and an attempt was made by counsel for the petitioner to use its absence in support of his contention that the premises in dispute could not be requisitioned because, he argued, it was neither a building nor a part of a building but an incomplete unit.

6. Article 68 of the K. D. A. Order does not appear to be decisive one way or the other, because anybody who occupies a building before its completion or before the approval or ns erection or re‑erection or without the requisite permission to occupy it, may expose himself to the legal consequences of a wrongful act, but it does not follow from it that his possession and use cannot be treated as occupation at all. Clause (3) of Article 68 of the K. D. A. Order itself contemplates possibility of illegal occupation.

7. The contention that the bungalow in dispute was not a building and could not be treated as part of a building because nothing which does not exist can have parts to it, is not very difficult to meet, because in this argument it is presumed that a part of a building can exist only if the building of which it is a part, is complete. But this is not logically correct, because an incomplete building can also have parts to it. A building is defined in section 2 (1) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 as under:‑ "'Building' means any building or part of a building and includes any land, godown or outhouses attached to it." The above language does not make it necessary that before there is part of a building, these must be a complete building, The reason is that an incomplete building is also a building although on a classification of buildings into complete and incomplete, it will fall under the latter category. The bungalow could, there fore, be requisitioned.

8. It was admitted in this case that the bungalow needed some work to be done on it, and that the owner was waiting for that work to be done before moving into it. There was a Chowkidar of the owner who kept a watch on the bungalow and building material belonging to the owner was also on the site. The deficiencies that were existing in the bungalow are described in paragraph 5 of the petition as follows: "(a) Sewerage connection between the septic tank and the main had not been obtained from the Society. (b) Polishing of tiles had not been undertaken. (c) Final paint coating in the interior had not been done. (d) Gas connection had not been obtained. (e) Lawn was not ready." The stand of the respondents, in paragraph 6 of the counter affidavit of the Overseer of P. W. D., is that‑ "para. No. 5 of the petition as stated is not correct. The bungalow was structurally complete and it was fit for occupation. The alleged deficiencies in the amenities were no bar to requisi tioning the property." The above stand of the respondents must when read with para graph 5 of the petition, be held to be correct. This is an additional reason for coming to the conclusion that the bungalow could be requisitioned.

9. The above discussion is however, no answer to the question whether the owner was in occupation of the bungalow or not. This question cannot be answered without determining the meaning of the word `occupation', which occurs in the 3rd and 4th provisos to subsection (1) of section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956. It is a simple word and has not been used in an artistic sense or as a technical term, but an analysis of its essential and associated meaning shows that it can project complex ideas which may assume vastly different forms when seen from different angles. Sometimes they appear to represent entirely different objects but this is the result of our common habit of using words without thinking of their full connotation. I am not referring to the problems of Semantics, which is a branch of learning that deals with the evolution and function of language, but with the assessment of relative validity of several meanings of words for understanding the intention of the Legislature. The Shorter Oxford English Dictionary, in two volumes, reprinted in 1964, gives eight meanings of the word "occupation" running from possession of a territory by conquest to co‑habitation, but the following meaning is relevant for our purposes: "To hold possession of, . . . to reside in, tenant, . . . to dwell to stay." Possession can be physical or actual as well as interpretative, because it can be visible as well as invisible. It is invisible when the possessor stands far away from the object which he possesses but is able to prevent encroachment on it, if and when they are made, it is similarly invisible when the possessor reserves an object for a particular use and allows it to remain unutilised till the purpose of the reservation and subjoins.

10. As mentioned above the word `occupation' has not been statutorily defined, but its meanings have been analysed by the English Courts for deciding whether a given hereditament is rateable or not. The judgments given under the rating law should be used with care because under it rates are levied in respect of beneficial occupation only. Moreover, the purpose of that law is to procure funds for paying the poor rate which "is not made day by day, or week, by week but months in advance," therefore, "it would be absurd to hold that a person, who comes into a parish with the intention to remain there a few days or a week only, incurs a liability to maintain the poor for the next six months. From this point of view, possession of a heredita ment should be permanent and not a mere transient holding. Messrs Bean and Lockwood, the authors of Rating Valuation Practice, say at pages 21‑22 that‑ "an itinerant showman who erects a temporary structure for his performances, may be in exclusive actual possession, and may, with strict grammatical propriety, be said to occupy the ground on which his structure is placed, but it is clear that he is not such an occupier as the statute intends." The rating law does not take into account constructive possession because under it the tenant is liable to pay the rate rather than the owner. In this sense occupation includes possession as its primary element, but "legal possession does not of itself constitute an occupation." Actual possession of a corporeal hereditament, as distinguished from legal possession is necessary but invisible possession is recognised. According to the above authors, the English Court of Appeal has held that there are four necessary ingredients in rateable occupation "(1) actual occupation; (2) exclusive occupation for the particular purposes of the occupier; (3) the occupation must be of some benefit to the occupier; (4) the occupation must not be too transient."

11. Since the above considerations do not exclude invisible occupation I can with advantage refer to those English judgments in which this aspect has been examined. There are a number of them. It has been held that a seaside shop Mayor &c. of Southend‑on‑Sea v. White (38 L T 408), a summer villa cage v. Wren (87LT271), a warehouse The King v. Melladew (1907 1 K B 192 at pp. 201‑204), Beetharn and another v. Trinidad Cement Ltd. (1960 1 All E R 568), a lodging house, The King v. Melladew fruit trees Mayer &c. of Southend‑on‑Sea v. White, and a vacant house R. v. St. Pancras Assessment Com mittee ((1877) 2 Q B D 581 at 588), remain occupied, although temporarily not in use, provided the disuse is for the time in which the occupier is waiting for a suitable opportunity to arise for using the premises. The question whether he was in reality waiting for such an opportunity in a given case, depends on whether the nature of tile premises was suitable for this attitude or not and whether he genuinely intended to exploit the opportunity of not. Farewell, L. J., has said in King v. Melladew, that: "Whether premises are or are not unoccupied is in many cases a mixed question of fact and of law j there may be visible physical occupation by the person rated, or his servant, or his goods and chattells, and such occupation may be of part of an undivided tenement; and if, in such a case occupation is found as a fact by the justices, no appeal will lie. But these do not exhaust all the cases of occupation. Rateable property has many varieties; of some tire normal use is by personal occupation, e.g., a dwelling house, of others by occupation by live or dead stock, e.g. a Linhay used as a shelter for cattle, or a barn; and the nature of the property and its mode of use must be considered in each case. The test, in a case like the present of business premises appears to me to be, has the person to be rated such use of the tenement as the nature of the tenement and of the business connected with it renders it reasonable to infer was fairly within his contemplation in taking or retaining it? In many trades, and certainly in a warehouse‑man's, the trader must necessarily contemplate the occupation for considerable periods of parts of his premises as spare room." The intention to exploit the opportunity is important and may be disclosed by the occupant by keeping the premises in readiness to use it as soon as the opportunity arises. Farewell L. J. has observed in the above‑mentioned judgment at page 204 that: "The question must be whether they (warehouses) are kept in such a state as to be capable at any time of being used in a continuing business." Similarly Lush, J. has observed in R. v. St. Pancras Assessment Committee, that the owner of a vacant house is in the occupa tion of it, if- "he furnishes it and keeps it ready for habitation whenever be pleases to go to it . . . though he may not reside in it one day in a year."

12. An incomplete building and a non‑habitable premises may also be occupied, in a somewhat like manner, in special circumstances. For instance, an incomplete building may be taken on lease and kept ready for use as an alternative arrangement when a calamity, like destruction by enemy bombing, is appre hended. This was done by businessmen in England when destruction of their ordinary premises was constantly apprehended during the Second World War‑see (Associated Cinema Properties Ltd. v. The Mayor Alderman & Councillors of the Metropolitan Borough of Hampstead ((1943) 2 All E R 696). In Mayor Aldermen & Councillors of the Metropolitan Borough of Hamsptead v. Associated Cinema Properties Ltd. (1944 All E R 436), it was held that no steps were taken to adapt the leased incomplete houses for use as emergency offices by furnishing them and providing them with fixtures, although structurally the buildings were capable of being soused. The emergency did not arise and Du Parcq, L. J. held: "It is significant that no case could be cited in which occu pation had been held to be established without proof of some overt act amounting to evidence of user. In Mellade s case, the owner had advertised the premises as a warehouse. In most cases user has been proved by showing that the house has been furnished or equipped for some business purpose. There is certainly no authority binding on this Court for the proposition advanced by the appellant's counsel; and, in our judgment, a mere intention to occupy premises on the happening of a future uncertain event cannot, without more, be regarded as evidence of occupation."

13. If we apply the above principles to the facts of the which is now under consideration, we find that the petitioner was in full possession and control of the bungalow through her servants or agents. It was structurally capable of being occupied as a dwelling house but was not furnished and kept ready for residence because its completion, to the owner's satisfaction, was awaited. I can, therefore, hold that it was not occupied as a dwelling house, but I should further say that, nor was it yet ready for residence according to the notions of the owner who was com pleting it by giving to it the last touches. No exception can be taken to this attitude of the owner because there was no reason for her to make hurry in occupying it, and there was no unreason ableness on her part in completing the bungalow to her satisfaction before occupying it. Some building material and a chowkidar were at the site when its possession was taken by respondent No.

2. Since the bungalow was considered to be still not ready' for occupation as a residence, it was being used by the owner for the purpose which was the most suitable under the circum stances, namely, its completion for residence. It was, therefore, not occupied as a dwelling house, but was occupied as a house under construction. The law does not specify the purpose or manner of occupation. Section 3 of the Requisitioning of Immovable Property (Temporary Powers) Act, 1956 applies to all cases in which "a building is in occupation of any person" irrespective of the purpose and manner of occupation. The nature of occupation, as explained above, cannot be indepen dent of the nature and condition of the tenement that is occupied, nor can it be independent of the purpose for which the tenement may be reasonably used. A house under completion can, therefore, be expected to he occupied as such and not, ordi narily, as a dwelling house.

14. In conclusion, my answer to the first question is in the affirmative. The second question has been discussed but it does not arise.

15. The petition may now be placed before a Division Bench for further orders. A. E. Reference answered in the affirmative.