1978 PLP 237 (SCMR)

Date of hearing: 14th March 1978. GHULAM SAFDAR SHAH, J.‑This petition for leave to appeal, against the judgment of Peshawar High Court, dated 10-10‑1977, arises in the following circumstances :‑ On September 7, 1977, the Station Commander, Peshawar Cantonment, served on the petitioner the following notice :‑-- "Whereas it has been established beyond reasonable doubt through police investigation and other sources that you are using your house as a brothel and that you are acting as a supplier of prostitutes. I, Colonel Syed Mohammad Hatim Zaidi, the Station Commander of Peshawar City hereby order your expulsion from the limits of Peshawar Cantonment under Cantonment Act No. 237 of 1924 within a period of fifteen days from the date of receipt of this order. I further direct that yon will not re‑enter the limits of Peshawar Cantonment till such time a written permission for doing so is given to you." Being aggrieved of this order, the petitioner filed in the High Court a Constitution Petition contending therein that the impugned order was bad for want of jurisdiction. However, the learned Judges of the Division Bench did not agree with this contention and consequently dismissed the petition. On 31‑1‑1978, when this petition came up for hearing Court directed that notice be issued to respondents for 14‑2‑1978. On this date, however, the case could not proceed as respondents had telegraphically asked for a short adjournment which was granted. Today Mr. Abdul Marian Qureshi, the learned counsel for Station Commander, Peshawar Cantonment and Mr. Muhammad Ajmal for Advocate‑General, N; W. F. P. are present and so is Mr. Masood Kausar, the learned counsel for petitioner. After hearing the learned counsel for parties, we are satisfied that the petitioner bas succeed ed to make out a case for the grant of leave, against the impugned judgment. Leave is accordingly granted to her, as prayed. The learned counsel for the parties, however, jointy requested that in view of the fact that only a short question of law is involved in this case, the petition may be converted into appeal and tie same accordingly disposed of. We agree with this submission. And consequently would proceed to dispose of thin case as an appeal. Now a loot at the impugned order of the Station Commander. Peshawar Cantonment) would reveal that it was passed by him under section 237 of the Cantonments Act, 1924 (hereinafter called the Act) which reads as under :‑ "

237. If the Officer Commanding the station is, after such inquiry as he thinks necessary, satisfied that any person residing in or frequently sting the cantonment is a prostitute or has been convicted of an offence a under section 236, or of the abetment of such an offence, he may cause to be served on ouch person an order in writing requiring such person to remove from the cantonment within such time as may be specified in the order, and prohibiting such person from re‑entering it without the permission in writing of the Officer Commanding the station." The learned counsel for petitioner argued that in view of the admitted facts of this case this section would have no application. There seems to be force in this contention. The requirement of this section is that before action could be competently taken under it, a person must be shown to a pro stitute or else that she had been convicted of an offence under section 236 or was guilty of the abetment of any such offence. In the impugned order, however, the petitioner herein is said to have been using her house as a brothel as also that she was acting as a supplier of prostitutes. In other words she was neither accused to be a prostitute nor indeed was it alleged against her that had been convicted of an offence under section 236A of the Act or else was guilty of an abetment of any such offence. In these circumstances, therefore, the impugned action taken against her under section 237 would be not only without jurisdiction but her offence if any would fall under section : 235 of the Act which runs as tinder :‑

235. The Officer Commanding the station may on receiving informa tion that any building in the cantonment Is used as a brothel or for purposes of prostitution, by order in writing setting forth the substance of the Information received, summon the owner, lessee, tenant or occupier of the banding to appear before hire bar in person or by an authorised agent, and, of the officer Commanding the station is then satisfied as to the truth of the information, he may, by order in writing, direct the owner, lessee, tenant or occupier, as the case may be, to discontinue such use of the building within such period as may be specified in the order." Now the unambiguous language of this section would‑show that before any action could be taken against the petitioner, she should have been summoned by the Station Commander by an order in writing, setting forth therein the substance of the information received by him that she was using her Louse as a brothel or for the purposes of prostitution, to appear before him in person or through an authorised agent and thereafter; is case he was satisfied, about the information laid before him, pass an order in writing directing her to discontinue the said objectionable use of her house within a specified period. Apart from the fact that the impugned action in this case was taken against the petitioner under section 237 of the Act, which clearly had no application, the petitioner admittedly was neither summoned by the Station Commander nor was she afforded any opportunity to be heard in person or through an authorited agent. It is a well‑settled principle of law that a statutory functionary, in order to be able to claim validity for his order, must Chow that he had acted within the four corners of the statute, by which he is invested with necessary jurisdiction. Upon the facts of this case to which section 235 of the Act was applicable the impugned order cannot be sustained as it was passed by the Station Commander. Peshawar Cantonment, under section 237 of the Act which was wholly Irrelevant. This appeal is, therefore, allowed, consequently it is held that the impugned order is without jurisdiction and of no legal effect. But under the circum. stances the parties would bear their own coats. Appeal allowed