P L D 1959 (W (PLP)

B.Z. KAIKAUS, J.‑This appeal arises out of a suit filed by the respondent for a declaration that an order passed by the Controller under the Sind (Requisition of Land) Act requisitioning rooms 3 to 7 in what is known as Ruplal Chankardas Building, Campbell Road, was void, illegal, ultra vires and malicious and for possession of the premises and damages. The suit has been decreed except with respect to the relief for damages. The decision of the learned Single Judge declaring the order to be ultra vires was based on the three following grounds :‑‑ (1) That the order was not made for public purpose as defined in the Sind (Requisition of Land) Act. (2) That no notice was served on the owner of the premises as required by section 3 of the Act, and (3) That the order was malicious and gross abuse of the powers of the Rent Controller. It is not necessary to go in this appeal into any question except the fact of absence of notice on the owner because the order was clearly void on the ground of want of notice. Section 3 of the Sind (Requisition of Land) Act requires a notice to be delivered to the owner and at the same time provides that if the owner is not traceable and the notice cannot be personally served on him within a reasonable time it may be served by publication in the Gazette. In the present case the owner of the premises had gone into the witness‑box and stated that no notice had been served on him. There is no rebuttal of this statement and in fact it is not contended before us that any notice was personally served. Learned counsel for the appellant simply relies upon the fact that there was a notice published in the Gazette copy of which, in accordance with the directions given in the notification, was to be sent to the owner also. But no argument can be based on the fact that a copy of notice was to be sent to the owner because there is no allegation in the written statement that a copy was in fact sent nor was it suggested to the owner when he appeared in the witness‑box that he had received a copy. The mere fact that there was a publication in the Gazette does not validate the order, because it is only when the owner is not traceable and cannot be personally served within a B reasonable time that publication in the Gazette is to be regarded as sufficient service. In reply to the allegations in the plaint that the owner had not been served it was not alleged in the written statement that he was not traceable and could not be served personally. In fact the requisitioning Inspector when examined as a witness said "I think the landlord lives in the second floor of the building", and this according to the respondent is the true state of affairs. The requisition related to the first floor of the building only and the landlord is living on the second floor. Under the circumstances there was no notice in accordance with law and it has not been argued before us by learned counsel for the appellant that even if there was no notice at all the order of requisition could be valid. The order of requisition affect valuable property rights and cannot be passed without notice to the person affected. We have omitted to decide the two other points firstly because on the question of notice there is little to be said in favour of the appellant and also because out of these two points one i.e., the existence of public purpose, involves a determination of the authority of the Governor‑General to enact laws with retrospective effect for the Federal Capital, a matter which is pending for consideration before their Lordships of the Supreme Court, and the other question i.e., the one relating to mala fides is one on which we would not give a finding unless it became necessary. This appeal is dismissed with costs. K. S. A. Appeal dismissed.