1988 PLP 1917 (CLC)

Requisitioning of property was declared to have not effected without any lawful authority and of no legal effect in Constitutional jurisdiction of High Court. Ch. Inayat Ullah for Petitioners. S.M. Zubair, Addl. A.‑G. for Respondent. Date of hearing: 27th March, 1988. This order shall dispose of Writ Petitions Nos. 648/86 and 5326/87, as common questions of law and facts, are involved therein. It shall, however, remain on the file of W.P.No.648/86.

2. The facts are that the petitioners are owners of the property No. NE‑1‑R‑107 and 109, G.T. Road, Lahore, in a part whereof an Educational Institution by the name of Government Kaleem Junior Model School, 45‑G.T. Road, Lahore, is located. The School was originally established by a private party and the property in question hired by them. However, on the nationalisation of the privately managed educational institutions under the provisions of M.L.R. 118, this institution was also taken over by the Government with effect from 1‑9‑1972 and since then the demised property is in their possession. By virtue of notification dated 11‑7‑1977 (Annexure 'C') issued under section 3 (1) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, the demised property was requisitioned for the purposes of the educational institution housed therein. '

3. In June, 1984, the petitioners brought an‑ ejectment petition (Annexure 'A') against the respondent‑Government for their eviction, on the ground of default and that the demised property was required by them in good faith for personal use. The respondent resisted the ejectment petition and raised the plea that the property having been already requisitioned, the ejectment petition was incompetent. According to the petitioners' learned counsel the factum of requisition, for the first time, came to their notice, when the written statement was filed by the Government.

4. The ejectment case, is, still sub judice before the Rent Controller and the petitioners have filed Writ Petition No.648/86 challenging the validity of the Notification, on the ground that the property already in possession of the Government could not be requisitioned. It has also been contended that before issuance of the notification the petitioners were not served with any notice.

5. During the pendency of the Writ Petition No. 648/86, the petitioners filed the other writ petition on the sole plea that the respondent is in possession of the property since the year 1972. The Act empowers the Government to requisition buildings temporarily for the use of its officers, offices and other corporate Bodies; but the demised building is under requisition for the last more .than 10 years, and therefore, further continuation of requisitioning‑order, resulting in prolonged deprivation of the petitioners of the user of their property, is wholly illegal and against the spirit of the Act.

6. In support of his submission, that the requisitioning order cannot be passed in respect of a property already in possession of the Government the learned counsel relies on Muhammad Tufail v. The Province of Punjab and others P L D 1978 Lah. 87, Mst. Minhaj un‑Nisa v. Deputy Commissioner/ District Magistrate, Karachi and another 1983 C L C 2228, Province of Sind and others v. Syed Saif‑ur‑Rahman and others 1986 S C M R 1332. These precedents fully support the proposition that where a Government authority is A any in possession of a building at the time of the requisition, _bi a property cannot be requisitioned under section 3 of the Act.

7. On behalf of the respondent‑Government no precedent contrary those relied upon by the petitioners has been placed before the bench. It is however, argued that the requisition has been made for public purpose and educational institution is being run in the pert and the rent regularly paid to the petitioners. The sub is, that protection of the possession of the educational institutional available to Government under the impugned Notification, not be interfered with, in exercise of writ jurisdiction, in the interest. In the present of the law laid down in Muhammad Tufail case which has been upheld by the Supreme Court in the Province of sind v. Syed Saif‑ur‑Rahman, ibid, there should be no doubt that the requisitioning of the building which was already in possession Government was without lawful authority. Under Article 24 of Constitution no one can be deprived of his property, and its! "9"I"slon taken over by the Government save by the authority of law. In view of the Supreme Court's decision, the Requisitioning of Immovable Property (Temporary Powers) Act, 1956 does not permit the Government to take over a property already in its possession. The impugned Notification thus, does not have the backing of any law and is in conflict with the Fundamental Rights guaranteed under Article 24 of the Constitution. There is thus no valid basis to deny relief to the petitioners and exercise discretion against them merely because the user of property as a School is in the public interest. As the petitioners succeed on the ground aforesaid, there is no need to burden this order with the adjudication of other points, urged by them.

9. This writ petition is, therefore, accepted; the notification under challenge declared to have been made and issued without any lawful authority and of no legal effect. The parties are, however, left to, bear their own costs. A.A./A‑327/L Petition accepted.