P L D 1957 (W (PLP)

WAHIDUDDIN, J.

This writ petition is directed against the order of the Rent Controller, Karachi dated 21st March 1955, requisitioning a flat under section 3 (1) of the Sind (Requisition of Land) Act XLVI of 1947. Briefly stated, the facts leading to the present petition, are that the petitioner is the owner of flat No. 1 situated in Halima Court No. 7, Clifton Road, Karachi. This property was requisitioned by S. Ashhad Ali, Controller, Karachi on 21st March 1955, under section 3 (1) of the Sind (Requisition of Land) Act for the accommodation of the Central Govern ment with immediate effect. An appeal was filed against this order and the same was dismissed on 29/30th March 1955 by the Chief Commissioner, Karachi, without hearing the parties. Thereupon the petitioner filed a suit on the Original Side of this Court known as Suit No. 1239 of 7955, claiming that requisition order was illegal, void and inoperative as the same was without jurisdiction, and also for the ejectment of the respondent from the property in dispute, The fact of the filing of the suit was not mentioned in the writ petition ; it was discovered from the counter affidavit filed on behalf of the respondents. This suit was, however, transferred to the District Courts and is now pending before Mr. Moazzam All, First Class Sub-Judge, Karachi and is known as Suit No. 1957 of 1956. The petitioner has again challenged the said requisition order in this writ petition inter alia on the ground that having regard to the assurances and undertakings given on behalf of the Government, respondents, 1 and 2 were estopped and barred in law from requisitioning the property in dispute ; that by the said orders the petitioner qua other persons, who own and hold newly-constructed premises was discriminated against contrary to the fundamental and other rights guaranteed to him under the Constitution ; the requisitioning of the premises for the residence of Government servants was not and did constitute a public purpose within the mean ing of the Sind (Requisition of Land) Act, 1947 ; that the order of the Governor-General No. 1 of 1956, purporting to amend the Sind (Requisition of Land) Act, 1947, purporting to include in the definition of public purpose, the requirements of residential accommodation for Government servants, is beyond the competence and or authority of the Governor- General under section 290-A of the Government of India Act, 1935, or under the Constitution ; that even assuming without conceding that requisitioning of premises for housing or residence of Government servants is a public purpose within the meaning of the Sind (Requisition of Land) Act, 1947, having regard to the position in law and of the existence of special legislation covering the subject namely Sind Crown Servants (House Accommodation) Act, 1947 requisitioning for residence of Government servants could not be made under the provisions of the Sind (Requisition of Land) Act, 1947 ; and that the order was made without prior notice to and confirmed without affording an opportunity to the petitioner to be heard against or in respect of the action taken or pro posed to be taken. The requisition order was also attached on the ground that there was no specific public purpose at the time the premises were requisitioned, namely that the premises were never used for the accommodation of the Central Government, that the premises in question were not occupied and or brought into use until about 4th June 1955, that is to say for a period of about 2jt months after the making of the order of requisition by respondent No. 1 and then too it was allotted not by the Central Government but by the Karachi Administration to Mr. Masood Mahmood an Assistant Inspector-General of Police, and that after the transfer of the said Masood Mahmood from Karachi, it was lying vacant and unoccupied since about 31st July 1956. The respondent has denied the allegations made in the petition and took a preliminary objection that as the peti tioner has already availed of an alternative and efficacious remedy by way of suit, this Court should decline to exercise the discretion vested in it. Mr. Raymond, the learned Public Prosecutor, bas vehe mently urged that although as a rule the writ jurisdiction is not barred merely because a suit can also be filed in respect of the dispute between the parties yet, as the petitioner had filed a suit being suit No. 1239 of 1955. in the High Court of West Pakistan, Karachi Bench, for a declaration that the order of requisition dated 21st March 1955, in respect of flat No. 1 was illegal, void and inoperative and for ejectment of the respondent from the aforesaid flat, he should not be allowed to get any redress by having recourse to the high prerogative writ. In support of this contention reliance is placed on Ajit Kumar Chakravaty v Sm. Sarba Mangala Devi and another (A I R 1954 Pat. 476) ; Dineshcharan Muzumdar v The State of Madhya Bharat and antoher (A I R 1953 M B 165) ; hishwamitra Karyalaya Press v. Authority appointed under Payment of Wages Act, 1936 for Kanpur and others (A I R 1955 All. 702). The cases in Banwarilal Mour v. State of Assam and others (A I R 195.5 Assam 195) ; Ramdayal Chunilal Yadava v. Lt. Governor, Himachal Pradesh and another (A I R 1954 Himachal Pradesh 87) arid Abanindra Kumar Maity v. A. K. Biswas (A I R 1954 Cal. 355) are also referred. With the exception of the case reported in A I R (1954) Pat. 476, all the other authorities relied upon by the learned counsel for the respondents are distinguishable. In A I R (1953) Madhya Bharat 165, the petitioner sought a writ in the nature of a writ of mandamus directing the State of Madhya Bharat to pass a pension payment order in his favour. The learned judges came to the conclusion that as the petitioner did not allege that an early payment of the pension due to him was so vital to him that without it he could not live and maintain his family, the remedy by way of a suit was convenient, benificial and effectual and one by which justice could be satisfactorily obtained. They further observed "The question whether an alternative specific remedy is or is not equally convenient, beneficial and effective has to be considered oil the facts and circumstances of each case.,'. In A I R (1954) Himachal Pradesh 87, it was held " high prerogative writs are ordinarily not issued, where an alterna tive remedy equally efficient and adequate exists, unless there is any exceptional reason for ousting the jurisdiction of the ordinary Courts of the land and to deal with the matter under the writ jurisdiction." In that case the contention was that the petitioner was a permanent member of the Bilaspur Civil Service and on the merger of the Bilaspur State with the Indian Dominion, he was entitled to continue in service under the same terms as before merger. It was prayed that a writ be issued to the respondent declaring that his dismissal was illegal and the respondent be directed to retain the petitioner in service on the same terms as formerly. The learned Judicial Commissioner was unable to find any excep tional reason for ousting the jurisdiction of the ordinary courts of the land and the writ was refused. In A I R (1955) All. 702, it was found that there was a right of appeal available under the Payment of Wages Act, and as the petitioner had failed to avail of this remedy, he could not come to the Court and say that his grievance should be redressed under the writ jurisdiction as his appeal would then be time barred. The learned judge, however, did not dismiss the petition on the preliminary objection but also decided the petition on merits. In A I R (1955) Assam 195, the learned judges observed that as the assessee has not sought or exhausted remedies provided under the Sales Tax Act, he cannot ask for remedies under Article 226 of the Constitution of India. They also came to the conclusion that the Superintendent of Taxes exercised his powers as provided under section 17(4) of the Act and were satisfied that there was no failure of the principle of natural justice iii the matter of proceeding to assess the petitioner. It will thus be seen that in none of these cases the juris diction of the authorities concerned to deal with the matter was challenged and therefore, as will be presently shown, these authorities are not applicable to the facts of the present cases. In A I R (1954) Pat. 476, however, it was held, "The petitioner had availed himself of the alternative remedy by way of a suit. The question at issue in the civil suit was essentially the question of jurisdiction of the House Controller and of tire Commissioner in appeal. The question raised in this application involved precisely the same matter as to the jurisdiction of the House Controller to order eviction of the petitioner under the provisions of section 11 of the Bihar Act (III of 1947). In these circumstances it is obvious that this application cannot be entertained and the petitioner must prosecute his remedy in the Court of the Munsif of Giridih where he was already instituted a suit for precisely the same relief." This authority directly supports the contention raised on behalf of the respondent but on a consideration of other authorities, cannot be applied to the facts of this case. It will be important to note in this Matter that after the counter affidavit was filed by the respondent this Court called upon the petitioner either to proceed with the suit or with the petition. The matter was adjourned from time to time for the withdrawal of the suit and the petitioner eventually was allowed to withdraw reliefs 1 and 2 of the plaint by an order of Mr. S. Moazzam Ali, First Class Sub-Judge, Karachi dated 20th April 1957. The relevant order is reproduced below :- Order on application under Order XXIII, rule 1, Civil P. C. The plaintiff' has withdrawn relief Nos. 1 and 2 of the plaint. Let the plaint be amended accordingly, (Sd.) S. MOAZZAM ALI, Karachi, 20-4-1957. First Class Sub-Judge. Thus the questions in disputes are no longer a subject matter of the suit. There is abundant authority for the proposition that there is no absolute bar to the Court exercising jurisdic tion under Article 170 of the Constitution merely because there are other remedies available to the party con cerned. In our opinion writs of mandamus. certiorari, and for the matter of that, all high prerogative writs are ordinarily A not issued where there exits an alternative remedy, equally efficacious, and adequate. But this is not an inflexible rule and where Courts think it just and convenient they are entitled to issue such writs. The fact that ordinarily the Court does not issue such writs in such circumstances is not due to their want of jurisdiction but for reasons of expediency. We have examined this question at length and it appear to us that ordinarily the High Court will be reluctant to interfere by way of High prerogative writs if the petitioner has actually taken recourse to the remedy either in the Statute or by way of a suit. But where an inferior tribunal assumes jurisdiction and the want of jurisdiction is patent on the fall of it ; where the proceedings complained, of are against the principles of natural justice and where the alternative remedy is too costly or ineffective or entails such delay that the applicant would be irreparably prejudiced or the remedy might prove valueless, this ordinary rule will not be an obstacle in issuing an appropriate writ. This view is supported by the statement of law made in Halsbury's Laws of England, Volume IX page

879. A Full Bench of this Court in Muhammad Hussain Khan v. Federation of Pakistan and another (P L D 1956 Kar. 538) also expressed the same view. Kaikaus, J., who wrote the leading judgment in the case, while considering this question, observed: "An objection has been taken that Amir All out of the petitioners has a right of appeal against the order of his dismissal and an appeal by him is in fact pending and, therefore, he is not entitled to move for a writ of certiorari. If the proceedings by which his dismissal was ordered be illegal or in excess of jurisdiction, I do not, see how the competency or pendency of an appeal can bar-an application for certiorari. No authority has been cited in support of the contention and there is good authority against it, vide The King v. North ((1927) 1 K B 491 (506))". These principles were also enunciated by Sinha, J. in Rakhaldas Mukherjee v. S. P. Ghose (A I R 1952 Cal. 171). A similar view was expressed in a decision reported in S. C. Prashar and another v. Vasantsen Dwarkadas and others (A I R 1956 Bom. 530). In that case a petition was filed challenging a notice issued by the Income-tax Officer under section 34, Income-tax Act and the Court was asked on writ jurisdiction to restrain the Income-tax Officer from proceeding further pursuant to that notice. It was urged that the Income-tax Act sets up its own machinery for the purpose of deciding questions that arise under that Act, and if an assessee is dissatisfied with any action taken by the Income tax Officer, then he must get his grievance redressed by resorting to the machinery under the Act and not by coming to the High Court for a prerogative writ under Article 226 of the Indian Constitution. Chagla, C. J. while considering this question, observed :- "A patent want of jurisdiction entitles the petitioner to obtain immediate relief from the High Court, even though he could raise the plea of want of jurisdiction in a higher tribunal and even though he may have acquiesced in the want of jurisdiction. But the want of jurisdiction must be a patent one. Where even on a cursory perusal of section 34 and its provisos it is clear that the Income-tax Officer has exceeded his competence and authority, the want of jurisdiction is undoubtedly a patent one". In the case reported as R. v. Comptroller-General of Patents (All Eng. R 1953, Vol. I, p. 863) Lord Goddard, C. J. observed :- "It does not follow that, because there is a right of appeal from a tribunal before which an objection to jurisdiction is taken, the power of the Divisional Court to issue an order of prohibition is taken away. There is no technical obstacle to the co-existence of a right of appeal and right to an order of prohibition". Considering the matter in the light of these principles, the preliminary objection carries no weight. This Court in a recent decision took the view that the Rent Controller in the year 1955, had no jurisdiction to requisition the property for the accommodation of Government servants. In this matter also the order relates to 1955 and is in excess of jurisdiction it would be sheer waste of time and money ii the petitioner is asked to get this very question decided by the subordinately Civil Courts at Karachi. It cannot also be ignored that the Subordinate Courts at Karachi have huge arrears of civil work for disposal and it will take another year for a case, filed in 1955 to reach the stage of hearing. We therefore) find no merit in the preliminary objection and overrule it. During the course of the arguments it was brought to our notice that the petitioner's counsel did not disclose in the petition that there was another suit pending in respect of the same dispute between the parties in the Subordinate Courts at Karachi. This amounted to suppression of material facts and should disentitle the petitioner to claim the discretionary relief. This allegation, if found correct, would have made material difference in the approach of this matter. We would have also not hesitated to take suitable action against the Advocate concerned, but fortunately Mr. Rahimtoola was not the counsel in suit No. 1239 of 1955 and was not aware that in respect of the same matter a suit was also pending. This fact has not been denied by the other side and the counsel for the petitioner cannot be accused of suppressing a material fact. We have, however, warned the counsel for the petitioner that in future he should be more careful and before filing a writ petition it is the duty of the counsel for the petitioner to find out that no other proceedings are pending in respect of the same matter. The litigant public is also warned that this Court will take serious view if wrong instructions are given on such question and this ground alone may persuade the Court in declining to exercise their writ jurisdiction. Coming to the merits of the case, the contention raised by the petitioner that the Rent Controller had no jurisdiction to requisition the property in dispute for residence of a Government servant under the Sind (Requisition of Land) Act, 1947 on 21st March 1955 is supported by a decision of a Division Bench of this Court in Mrs. Dina Sohrab Katrak v. Mr. S. Ashhad Ali and Chief Commissioner, Karachi (P L D 1956 Kar. 331 at 337). The learned Judges in that case held :- "That 'public purpose' as defined in section 2 (f), Sind (Requisition of Land) Act, 1947, does not include providing residential accommodation for Government servants. The expression 'accommodation for the Central or Provincial Government' is not intended to refer to residence of Government employees for which proper provision has been separately made by Sind Crown Servants (House Accom modation) Act (V of 1947) passed earlier". The learned judges further held :- "That the requisition of premises by Controller under section 3 (1) of Sind (Requisition of Land) Act, 1947, for providing residential accommodation for Government servants was illegal and ultra vires, calling for issue of writ under section 223-A, Government of India Act, 1935". The `learned Public Prosecutor has, however, urged that the definition of "public purpose" was amended by Governor-General's Order 1 of 1956 and now includes the require ments of residential accommodation for Government servants with retrospective effect. This Court in Writ Petition No. 2 of 1956 decided on 7th January 1957 considered these questions and held (i) that the Governor-General was entitled to amend the provisions of the Sind (Requisition of Land) Act, 1947, by the Governor-General's Order I of 1956 ; (h) that the power conferred on the Governor-General by sec tion 290-A (2) (c), Government of India Act, 1935 was only with regard to prospective legislation ; (iii) that the amend ment made by the Governor-General by virtue of section 290-A (2) (c), Government of India Act, 1935 in the Sind (Requisition of Land) Act 1947 by section 1 (2) of the Sind Requisitio1i of Land (Amendment) Order (I of 1956) to the extent of retrospecting of provisions enjoined by the latter order, was ultra vires ; in other respects the amendment was valid and operative. Muhammad Ali & Sons v. Chief Commissioner of Karachi (P L D 1957 Kar. 320). The learned counsel for the respondents has not been able to persuade us to take a different view than the one taken in the aforesaid decision, and we adhere to the view taken therein on the question. In view of this it is un necessary to discuss these questions again in this matter. For the reasons given in the said judgment we hold that the impugned requisition order is without jurisdiction, illegal and not operative in law. There is also much force in the arguments of the learned counsel for the petitioner that the learned Chief Commissioner, in dismissing the appeal without giving an opportunity of hearing to the petitioner, violated the principles of natutal justice. This contention was also considered and decided by this Court in Writ Petition No. 378 of 1956. In that case a Division Bench of this Court held that the right given under the Sind (Requisition of Land) Act was not an imaginary right, it was a substantial right and according to the principles of natural justice recognised in common law, D it was necessary that the parties must be heard before the matter is decided. Parties and counsel not being heard, the decision was a nullity in law". The learned counsel for the respondents has not been able to distinguish this authority and following this authority we order that the order of the Chief Commissioner, dated 29th/30th March 1955 is a nullity. The learned counsel for the petitioner has also urged that there was no specific purpose at the time the premises were requisitioned. He has drawn our attention to the fact that the premises in question remained vacant for more than two months after the requisition order and that although they were requisitioned for the accommodation of the Central Government, but were never allotted or used for that purpose. There is much force in this argument also. A perusal of the record clearly establishes that the property in dispute was never used for the accommodation of the Central Government and not even for the residence of the servants of the Central Government. It was allotted at one time to Mr. Masood Mahmood, A. L G. P. of Karachi Administration arid was allotted on 6th September 1956 to Mr. Choudhry his successor. He also vacated the same as it was not suitable for his purpose. The respondent has failed to produce any order re quisitioning the property for the servants of the Karachi Administration. We are also not satisfied how and under what law the premises in dispute were transferred to the Estate Office of the Karachi Administration. In these cir cumstances there is no other conclusion but that the premises in dispute at no time were required for the accommodation of the Central Government, and for this reason also the impugned order is ultra vices and illegal. There is no force in the argument of the learned counsel for the petitioner that the respondent was not entitled to requisition the premises in view of the Press Note issued by them. This Press Note had no legal sanctity and is not binding at all on the respondent for taking action under section 3 (1) of the Sind (Requisition of Land) Act. The contention that the respondent has also infringed the pro visions of section 11 of the Sind (Requisition of Land) Act is also devoid of all force. The premises in dispute at the time of requisition were vacant and therefore the principles on which the provisions of section 11 of the Sind (Requisition of Land) Act are invoked cannot be applied to the facts of the present case. In the circumstances of the case, we quash the order of requisition dated 21st March 1955 and also the order of the Chief Commissioner dated 29th/30th March 1955. The res pondents are also ordered to restore the possession of the property in dispute to the petitioner. We further order that in the circumstances of the case the parties will bear their own costs. A. H. Petition accepted.