P L D 1962 (W (PLP)

QADEERUDDIN AHMED, J‑‑This is a reference by our learned brother Constantine, J., which has teen made because he did not agree with the ` interpretation ' of a sentence which occurs in a Division Bench Judgment of this Court, reported as Vali Muhammad v. Controller (P L D 1957 Kar. 400). The point of reference has not been set out in the form of a question, but it is clear from the operative part of the order of reference. The relevant portion is as follows:‑ "Lastly it is stated as ground that since the Rent Controller had not made an order of alternate accommodation, therefore, ` the order (for requisition) was bad. It is true that in Vali Muhammad v. Controller under the Sind Requisition of Land Act, 1947, it was stated in wide language `In our opinion, if the requisition order is allowed to stand, then it will materially interfere with the ordinary avocation of life and enjoyment of property and, therefore, the requisition order is illegal.' But I think this sentence must be read with the rest of the case. (Brief facts of the case are set out). It, therefore, appears that the sentence must be read in connection with the particular facts of the case; in other words, the principle is not that an order is bad if it materially affects avocation or enjoyment, but only if it `unduly' affects them; otherwise it would be impossible to requisition a flat, however urgent was the public purpose, without providing alternate accommodation, even where, as the Appellate Authority pointed out, the person would In all probability be able himself to find alternative accommodation." After making the above order, Constantine, J. rejecting the application of the appellant for stay, stated as follows: "Since, however, the question arises regarding the Interpretation of the judgment of this Court, I think the matter should be referred to a Bench of three Judges."

2. It follows from the above that the question referred to us is: Whether an order requisitioning a property is always bad because it " materially " affects the ordinary avocations of life and enjoyment of property, or is not so unless there is " undue" interference with the ordinary avocations of life and enjoyment of such property ? The observations, reproduced above in the order of reference, of a Division Bench of this Court were made while applying section 11 of the Sind Requisition of Land Act, 1947, to the facts of that case. The section is as follows :‑ "

11. Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and enjoyment of property as little as may be consonant with the purposes of this Act." This provision has been the subject of discussion in many judicial and quasi‑judicial pronouncements. It appears from the views expressed by requisitioning authorities and their appellate Tribunals and the stands taken by those whose property has been requisi tioned that they have experienced difficulties in giving effect to it as well as in taking advantage of 9t. The reason is that it contains directions which make the fulfilment of all the purposes of the Act, for which scores of requisitioning orders are made, a relevant consideration for deciding as to how much interference with the ordinary avocations of life and enjoyment of property can be legal in a given case. As little of such interference is permitted under it as may be consonant with the purposes of the statute. This extends the inquiry beyond the avocation of life of that particular party whose occupation of a property is dis turbed by an order of requisition and beyond the enjoyment of a requisitioned property, and embrances the larger question of the consonance of interference with the purposes, or the over‑all object of the law. This aspect of the inquiry for which material is often not on the record of a given case has frequently led to an argument that the provision is a mere eye‑wash, because for practical purposes it amounts to the expression of a general policy of the law and does not provide real redress.

3. A similar provision was embodied In section 15 of the Defence of India Act, 1939, as follows:‑ " Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of British India." This provision was the subject of discussion and adjudication in Tan Bug Taim v. Collector of Bombay (A I R 1946 Bom. 216). In that case, the Advocate‑General argued that the provisions of the section "were directory or recommendatory and should not be read as mandatory, that they merely laid down recommendations or instructions as regards the mode in which the powers vested in the Government were to be exercised, and any breach of the provisions, provided it did not amount to the exercise of the powers vested in the Government for collateral purposes or mala fide, could not be the subject‑matter of adjudication by the Court . . . . . .". The learned Single Judge held that the provisions of the section were mandatory. He observed: "I cannot accept for a moment the suggestion that section 15, Defence of India Act, was enacted merely as a sop to the public who were naturally clamouring against the drastic powers which were being vested in the executive under the terms of the Act. That suggestion if accepted would attribute to the Legislature motives which would be far from honest and straightforward."

4. Section 11 of the Sind Requisition of Land Act, 1917, has also been repeatedly held to contain mandatory provisions. The difficulties which its application to the given facts of a case has confronted the authorities as well as parties can be explained after referring to the relevant provisions of the Act. The pur poses of the Act, according to its preamble are: "to make provision for the requisition and acquisition of property, movable and immovable for certain public purposes, and with respect to certain matters connected therewith." The " public purpose " is defined by section 2 (f) of the Act as follows: "(f) `public purpose ' means any purpose connected with the securing of accommodation for the Constituent Assembly of Pakistan and the Central Government or a Provincial Government or the residence of servants of the Central or a Provincial Government or the Members of the Constituent Assembly of Pakistan." The duty of making the decision whether a property should be requisitioned or not is to be made by the Controller, who is appointed under section 2 (d) of the Act. This duty has been entrusted to him by subsection (1) of section 3 of the Act, as follows:‑ "If in the opinion of the Controller it is necessary to requisition any property, movable or immovable, for any public purpose, he may make an order in writing to that effect Provided that no property used for the purpose of religious worship or for accommodating an educational institution or a dispensary or hospital shall be requisitioned under this section." The orders of the Controller are further controlled by the provi sions of section 11 of the Act. The effect of the two provisions taken together is that the Controller has‑ (a) to decide whether it is necessary to requisition a property for any public purpose which falls within the definition given in the Act ; (b) to exclude any property used for religious worship or for accommodating an educational institution or a dispensary or hospital ; and (c) to see that his order interferes with the ordinary avocations of life and enjoyment of property as little as may be conso nant with the purposes of the Act. If the Controller is of the opinion that it is necessary to requisi tion a property for a public purpose, and comes to the con clusion that the property is not used for religious worship, nor for accommodating an educational institution nor a dispensary nor hospital, his order to requisition it will yet be bad if it does not cause as little interference with the ordinary avocations of life and enjoyment of property as is consonant with the purposes of the Act. Every order of requisition is bound to entail some of such interference. The law presumes it and expressly permits it by laying down in section 11 that any person" acting in pursuance of this Act shall interfere with the ordinary avocations of life and enjoyment of property . . . . ", but controls it quantitatively. The question which arises is what is that inter ference which is more than is permitted by the Act?

5. The test provided by section 11 is that the interference should not be at all more than is " consonant with the purposes " of the Act. " Consonant " means harmonious. It has a wider connotation than the word " consistent " or " accordant " because an act may not be inconsistent or discordant with a situation ; yet it may not be in harmony with it. The following passage from Crabbas English Synonyms is illustrative of the differences in the sense of the three words: "There is dissonance in the accounts given by the Four Evangelists of Our Saviour, which serves to prove absence of all collusion and imposture, since there is neither discordance nor inconsistency in what they have related or omitted." What the law requires is not only consistency and accordance but harmony with the purposes of the Act. The purposes of the Act are to be kept in mind and requisition orders are to be made in consonance with them. The purposes are to requisition and acquire property for securing accommodation for the uses stated in the Act. If more property is requisitioned than is needed for securing such accommodation, the interference caused by it is worse than disharmonious. It is not in accordance with the purposes. If property is requisitioned wastefully, then the requisition is disharmonious with the purposes of the Act and causes more interference than is permitted by the law.

6. The measure being the need for accommodation, criticism is to be mainly of the need but that is bound to involve an analysis of the need that is declared, and necessarily influenced by the nature of the declared need. The criticism will be general if the need is general and of a particularised nature if it is secondary. The need may be felt by Government either by a consideration of the total accommodation that is needed for the purposes of the Act or by the need of accommodation for a particular office or Government servant. If total accommoda tion that is needed is the justification, then a criticism of the scheme or general plan only will be relevant under true law because wastage of accommodation within the scheme will amount to its defective internal working which will not cause more interference with the ordinary avocations of life of anybody or his enjoyment of property than that justified by the scheme. But if, on the con trary the justification of an order of requisition is not the total need but securing accommodation for a particular office or Government servant, then a comparison of the amount of interference with the ordinary avocations of life and enjoyment of property of those who lose accommodation with the need of the office or servant for whom the property is requisitioned will be logically necessary.

7. As a rule requisitions are made in Karachi without any reference to the over‑all need of accommodation or a scheme, with the result that requisition orders are criticised as distressful to individuals involving narration of facts depicting poverty and hardship to large families, vague references to the transfer of a section of the population of Government servants from Karachi, alleged meagre requirements of the office or Government servant for whom the property is requisitioned, and demands are made for alternative accommodation for those who are to be deprived of accommodation in consequence of the orders. The puzzled replies are that providing alternative accommodation is not a condition precedent under the law therefore should not be read in it and that the necessity to requisition property arises from scarcity of available accommodation which inherently makes provi sions of alternative accommodation impracticable. These replies are correct but do not meet the objection which is essentially to the degree of interference as compared with particular objects of requisition.

8. The comparison may lead to the conclusion, on a given set of facts that acquiring a small part only of the property which is requisitioned is justified, and not more. In other words "material" interference with the avocations of life of those who are sought to be evicted and enjoyment of the property is not, in the circumstances, in consonance with the purposes of the Act. This may be the outcome of a peculiar situation, but the principle is not whether interference is material or immaterial. In some J cases, no interference whatsoever may be legitimate, and in some no amount of consequential distress may be legally objectionable.

9. In the sentence taken from a Division Bench judgment of this Court and reproduced in the order of reference, substitu tion of the word "unduly" for the word " materially " will almost perfectly express the sense, in the context, that the interference that was caused by the order of requisition, which was held to be illegal, was not of that proportion which could be allowed to follow as a result of the application of the law to the facts of that case. " Unduly " is a good word to refer to the resulting effect that cannot be correctly looked for, and the word " materi ally " cannot be taken to have been used in the judgment to generally express the effect of the law.

10. We do not attempt, In answer to the question referred to us, to choose one word that may be the most appropriate to express compliance with the provision that every "interference" in "the ordinary avocations of life and enjoyment of property " is bad if it is not " as little as may be consonant with the purposes " of the Act. We have tried to explain the implications of this provision and trust that the explanations will serve the purpose. K. B. A. Reference answered.