1983 PLP 2228 (CLC)

"(i) to declare the impugned order as mala fide, illegal, inoperative, without lawful authority ultra vires, void ab initio and not binding on the petitioner ; of (ii) to set aside the same and/or quash she. same ; (iii) legal action be taken against respondents in the above matter, for mala fide interference in administration of justice ; (iv) any other appropriate writ or order that this Honourable Court may be pleased to deem just and proper be passed in the circum stances of the case ; and (v) costs of the petition may be awarded to the petitioner."

7. In their written statement filed by the respondents it has not been specifically denied that prior notice under section 3 of the Act of 1956 was not issued to the petitioner. They have further taken some pleas which are contrary to their earlier stand before the Rent Controller, by even denying that the petitioner was the owner of the premises.

8. This petition was still pending when the Provincial Government issued a notification con 29th July. 1980 purporting to be under section 3 (2) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance of 1979). By this notification inter alia premises of colleges and schools taken over under M. L. R. I 18 of 1972 were exemp ted from the operation of the Ordinance of 1979. This notification runs as under :‑ "No. VIII (3) SOJ/75.‑1n exercise of the powers conferred by sub section (2) of section 3 of the Sind Rented Premises Ordinance 1979, the Government of Sind, are pleased to exempt the premises belonging to the councils constituted under the Sind Local Govern ment Ordinance, 1976 and the premises of the colleges and schools, taken over under Martial Law Regulation 118 of 1972." After this notification the tenants, i.e. Education Department filed an application in Execution No. 4/1979 praying that as the disputed premises in which Zahoor Secondary Girls School is being run, has been taken over by the Government .under M. L. R. 118 of 1972, hence the ejectment order passed by the Rent Controller on 28th October, 1977 has become ineffective and un-executable. The Rent Controller accepted this plea and dismissed the execution application No. 4/1979 vide his order dated 27th November, 1980. The petitioner was, therefore, constrained to file an other petition namely, Constitutional Petition No. D‑961/81 in which the said order of the Rent Controller has been challenged. In this petition the Education Department and Manzoor Ahmed Khan are the respon dents. The main ground on which this petition is based is that the noti fication dated 29th July, 1980, quoted above cannot be given retrospective effect so as to render ineffective the ejectment order passed by the competent Court on 28th August, 1977. According to the petitioner the notification shall apply prospectively and shall not affect operation of the ejectment orders passed before the date of the notification, by the compe tent Courts.

9. So far as the first petition namely, Constitutional Petition No. D‑260/80 is concerned, the only point involved is whether a property which is already in possession of the Government can be requisitioned under the Act of 1956. The submission of learned counsel for petitioner, is that the term "requisition" implies that the property. which is sought to be ,q requisitioned, is not in possession of the person/authority. for whose benefit it is being requisitioned. In support of submission the learned counsel has relied on the case of Muhammad Tufail v. Province of Punjab (P L D 1978 Lab. 87). This case also related to a building of educational institution which was already in possession of the Government. The institution was taken over by the Government under M. L. R. 118, while the building in which the institution was being run belonged to Muhammad Tufail who wanted possession of the building. The Provincial Government issued a notifica tion under section 3 of Act of 1956 purporting to requisition the premises of the institution. Muhammad Tufail, therefore, filed a writ petition challenging the order of requisition. The learned fudge decided that the property which was already in possession of the Government could‑not be requisitioned in terms of section 3 of the Act of 1956. The relevant observations made by the learned Judge in the above case may be quoted here with advantage. The same are as under :‑‑ S. 3‑Section 3 contemplates property to be one as is not already occupied by Provincial Government or its officers, offices or its educational. institutions‑requisition pre‑supposes taking over of a building in possession of persons other than those for whose use it is required to be requisitioned ‑8i:ildings already in use of Govern ment officers or offices or educational institutions, held, cannot be requisitioned for same use. Section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 will mean that the Provincial Govern ment is authorised to require from and make a demand upon owner/ occupant of the immovable property to hand over its possession of it for use of its officers or offices or of educational institutions provi ded. the Government thinks it expedient or necessary to make such an order. This section contemplates that the property should not be one which is already occupied by the Government or its officers or offices or its educational institutions. The requisition must involve the taking of possession of the property. Requisition, there fore, pre‑supposes taking over of a building which is in possession of persons other than those for whose use it is requisitioned. A building already in use of the Government officers or offices or educational institutions, cannot, therefore, be requisitioned for the same use. This interpretation is further borne out by the provisions about notice to the occupant in subsection (3) of section 3 of the Act. This provision can be invoked only when a person other than the Government or its employees ‑or offices or educational institutions occupy the property. The property already in posses sion of the Government for the use of educational institutions can not be requisitioned." We are in respectful agreement with the view taken by the learned Single Judge in the above case. This ground alone is sufficient to allow the first petition, 1. e. Constitutional Petition No. D‑268/1980 filed by the petitioner. However, from the document produced by the petitioner which are undisputed, it is also established that the requisition order was mala fide inasmuch as it was intended to avoid the execution of a lawful order passed by the Rent Controller. It is already on record that huge amount of arrears of rent are due against the tenants. An amount of Rs. 47,000 was due upto 20th August, 1976. This amount has not so far been deposited by the tenants, i. e. the Education Department in the Court of Rent Controller, nor the same has been paid to the petitioner, who is admittedly the landlord. Even after August, 1976 nothing has been paid by the Department to the petitioner on account of rent. Under these circumstances the order of requisition was nothing but a device to avoid the legal consequences of the default in payment of rent and of the ejectment order. In the case of Muhammad Tufail v. Province of Punjab similar situation arose in respect of which following observation was made by the learned Single Judge :‑ Another aspect of the mala .fides is that a defaulter has become successful by resort to another law which was not enacted with this object in avoiding the consequences of the default and in further victimising the persons who were already victimised."

10. The above observations are attracted with full force to the case of petitioner before us, who has not received any rent for the premises for the last 10 years and is being deprived of the fruits of a lawful ejectment order passed as long back as in October, 1977.

11. The next ground on which the order of requisition must be struck down is that no prior notice under section 3 of the Act of 19‑56 was issued to the landlord. However, in the case of Muhammad Tufail v. Province of Punjab it has been held that persons who are affected by the order of requisition are entitled to notice and that the landlord, although not in physical possession of the requisitioned property, is still entitled to notice under section 3. 1n support of this view the learned Judge has relied on the cases of Fareed Sons Ltd. v. Government of Pakistan (P L D 1961 S C 537), Commissioner of Income Tax, East Pakistan v. Fazalur Rehman (P L D 1964 S C 410), Sheikh Abdul Rehman v. Collector (P L D 1964 S C 461), University of Dacca v. Fakir Ahmad (P L D 1965 S C 90), and Abdur Sabur Khan v. Karachi University (P L D 1966 S C.536). On the principle as laid down in these cases, the learned Single Judge in the case of Muhammad Tufail v. Province of Punjab held that the landlord whose property is requisitioned is entitled to notice under section 3 of the Act of 1956 even if he/she is not in possession of the property but is affected by the requisi tion. It was, therefore, held that the principles of audi alteram partem shall be applicable in such case and the order of requisition shall be liable to be struck down for want of notice.

12. For the above reasons we are satisfied that the order of the Deputy Commissioner (West) Karachi dated 17th July, 1979 under section 3 of the Act of 1956 is null and void and ineffective and does not affect the execution proceedings pending before the learned Rent Controller.

13. As for the notification dated 29th July, 1980 under section 3 (2) of the Ordinance of 1979 on the basis of which‑ the learned Rent Controller had dismissed application of the petitioner, it has been argued that the notification cannot be given retrospective effect as to take away the vested right of the petitioner which was conferred upon her by way of decree of a competent Court before the date of the notification. In support of this view learned counsel for the petitioner has placed reliance on the case of Works Co‑operative Housing Society v. K. D. A. (P L D 1969 S C 430). It has been held by the Supreme Court in the above case :‑ "It is now well‑settled that a notification cannot be made to operate retroactively and there can be no manner of doubt that a judgment of a Court declaring a right cannot be nullified by executive action." Another case cited in support of the above view is that of Rafiuddin v. Chief Settlement Commissioner (P L D 1971 S C 252). It has been held in the above case that existing substantive rights cannot be destroyed or impaired by a new law unless that law by an express provision or by necessary intendment is retrospective in operation. The relevant observations of the Supreme Court to the above case are as under :‑‑‑ "The right conferred by a statute which is awaiting adjudication, as in the present case, is as much a substantive or vested right as title to property or office. The right of action or the cause of action arising out of a contract or under a statute is the vested right of action of the person to whom it accrues, and these, as regards effect of new law on them, stand on the same footing as other substantive rights or title to property or office. Like the existing substantive rights including benefits or advantages that have accrued under statutes and title to property or office, the right of action or the cause of action which has already accrued cannot be destroyed or impaired by a new law unless that law, by its express provision or by necessary intendment, is retros pective in operation."

14. Section 3 (2) of the Ordinance of 1979 under which the notifica tion dated 29th July, 1980 was issued does not empower the Govern ment to give retrospective effect to any notification issued under this sec tion. In view of the law laid down by the Supreme Court in the above case, the notification on the basis of which the learned Rent Controller dismissed the ejectment application had, therefore, no retrospective effect and shall not be deemed to have rendered ineffective the ejectment order which was passed three years earlier to the said notification. In view of this legal position the order of the learned Rent Controller dismissing the execution application cannot be maintained. The order of the learned Rent Controller is, therefore, set aside with the observation that the ejectment order dated 28th October, 1977 remains unaffected by the notification dated 29th July, 1980 under section 3 (2) of the Ordinance of 1979 and consequently the execution proceedings could not have been dismissed by giving retrospective effect to the said) notification. In the result both the petitions are allowed with costs. S. Q. Petitions accepted.