P L D 1966 (W (PLP)

In support of her claim that she is the owner of the bungalow in question and that she had been in its occupation on and before the date of the impugned order for several months, the petitioner has filed along with her petition the statement of electricity bills from November 1964 to November 1965 and statement of telephone bills from March 1955 to October 1965, in respect of the bungalow in dispute, besides an affidavit of hers to the effect that she had been in occupation of the premises. The petitioner also made an application for suspension of the operation of the impugned order, and it came up before us on the 21st of December 1965, on which date we admitted the writ petition to regular hearing and ordered that status quo should be maintained meanwhile.

3. The respondent, through Mr. S. M. Bashir, Assistant Advocate‑General, applied for the vacation of the stay order issued by us on the 21st of December 1965. In this application, the respondent denied that the bungalow had been in the personal occupation of the petitioner at the time the order of its requisitioning was made and contended that it was lying vacant except that a few articles of furniture were lying there and that the bungalow had been ordered to be requisitioned for the residence of Mr. Mahmood A. Haroon, Minister for Co operation, Labour and Welfare, Government of West Pakistan. The respondent's application for vacation of the stay order was accompanied by affidavits of Mr. Niaz Ahmad, Home Secretary, Mr. G. M. D. Ghauri, Estate Officer, and Mr. J. V. Isaac, a property dealer of Lahore, stating the circumstances under which the bungalow had been requisitioned by the Government. The application was put up before us on the 19th of January 1966, but instead of deciding this application we directed the respondent to file his written statement and the main case was ordered to be placed before us for hearing on the 27th of January 1965. Accordingly, the respondent filed his written statement, which was accompanied by a report of the Estate Officer dated the 1st of December 1965, and affidavit of a tracer of the Estate Office and two telegrams sent by the husband of the petitioner to Mr. Mahmood A. Haroon at Karachi and Lahore. In his written statement, the respondent admitted that the bungalow in question was owned by the petitioner but denied that it was built for her personal use or that she had been in its occupation for the last several months. He maintained that the bungalow in dispute was lying vacant at the time the requisition order was made by the respondent and the petitioner was residing with her husband at Lyallpur, as was apparent from the text of the two telegrams sent to Mr. Mahmood A. Haroon at Karachi and Lahore. It has been averred by the respondent that in August 1965, Mr. J. V. Isaac, a property dealer, approached the Minister through the Secretary, Provincial Muslim League Assembly, that House No. 121/E.I, Gulberg, Lahore, was available on rent. The house was inspected by the Minister who directed the Estate Officer to contact the owner, who was residing at Lyallpur. Negotiation proceeded and the Estate Officer was informed by 'he property dealer that Fazal Ahmad, husband of the petitioner, was prepared to lease out the property provided that the rent was paid by the Minister "himself" at the rate of Rs. 4,000 per mensem and that in the lease deed the amount of the rent should be shown as Rs.1000 only according to the entries in the Excise and Taxation register. Since the rent demanded was exorbitant and other conditions were also not acceptable, the Minister did not agree. On account of the Indo‑Pakistan recent war, the rent of houses in Gulberg considerably went low and Mr. Isaac again, on the advice of Fazal Ahmad, contacted the Minister and told him that Fazal Ahmad was prepared to reduce the rent to a reason able extent and wanted to know whether the Minister was still interested in the house, The new terms offered by Fazal Ahmad being reasonable, the Minister agreed and asked the Estate Officer to take possession of the bungalow and get its interior finished. For this purpose, the husband of the petitioner sent one of his overseers from Lyallpur. Later on, however, Mr. Isaac informed the Estate Officer on telephone that Fazal Ahmad had changed his mind to lease out the bungalow and that he had sent telegrams to the Minister at Lahore and Karachi in this behalf.

4. Begum Tahira Fazal Ahmad petitioner also filed a replication and along with it, submitted a statement of return of rent for the year 1965‑66 and an affidavit of her husband, Fazal Ahmad. In this replication, besides reiterating the contentions that she had made in her writ petition, the petitioner has urged: (i) That the impugned order of the respondent is not warranted in law, inasmuch as the Minister is not a Provincial Government Officer within the meaning of section 3 of the Act. (ii) That the absence of the recital of purpose for which the bungalow had been requisitioned in the impugned order is "fatal" as the condition precedent to the order of requisition ing is that the requisitioning authority must satisfy himself as to the purpose for which a property is to be requisitioned, and that mere mention of such purpose in the record of the Estate Office of the Provincial Government, even if it exists, does not fulfill the requirements of law. (iii) That the impugned order is illegal for want of a previous notice having been served on the petitioner. According to proviso 3 to section 3 of the Act, if a building is in occupation of any person, no order for its requisitioning shall be passed unless a notice of, at least, two weeks is given to the occupant to show cause against the action proposed to be taken, and if and when an order of requisitioning is passed, the occupant shall be allowed a period of one month, at least, to vacate the building and such occupant shall thereupon comply with that order. (iv) That, as is apparent from the written statement of the respondent, it was the Minister who had decided to requisition the house and instructed the Estate Officer to take the possession of the bungalow. This means that the Home Secretary was bound by the choice of the Minister and in this way he abdicated his authority in favour of the Minister, which is not permissible in law. (v) That the impugned order of the respondent is mechanical as he has not applied his own mind to the facts of the case.

5. Learned counsel for the petitioner also argued at the Bar that Government and its officer are two separate entities as used in section 3 of the Act and that a Minister, who was a part of the Government as in the instant case, did not answer the description of a "Government Officer" as used in section 3 of the Act. He urged that the bungalow could not be requisitioned by the respondent for a member of the Governor's Council of Ministers who are them selves Government and not Government officers in view of the provisions of Article 82 of the Constitution.

6. We first take up the contention of the learned counsel for the petitioner that a member of the Governor's Council of Ministers not being covered by the expression "officer" used in section 3 of the Act, the bungalow in question could not have been requisitioned by the respondent. In this connection, Mr M. S. Baqir, one of the two counsels for the petitioner, tried to reinforce his aforesaid contention, by reference to the pro visions of Article 82 of the Constitution, which lays down that in order to be a member of the Governor's Council of Ministers, a person must be qualified to be elected as a Member of the Assembly of the Province and he, in any case, could not be a Government servant in view of the disqualification contained in clause 2 (a) of Article 103 of the Constitution. The learned counsel, therefore, concluded that a Minister could not be a Government Officer. We may mention that Mr. Ghias Muhammad, who also appeared for the petitioner, did not press this argument with any seriousness. We have given our anxious consideration to this aspect of the case, and we do not find any substance in the argu ment of Mr. M. S. Baqir. It will be relevant to refer to various Articles of the Constitution to appreciate the argument of the learned counsel. Article 80 deals with the executive authority of the Province vesting in the Governor and provides that the Governor shall exercise his powers either directly or through "officers subordinate to him" in accordance with the Constitution, the law and the directions of the President. The next Article, i.e., Article 81, relates to the allocation and transaction of the business of the Government of the Province and establishment of departments of that Government. Article 82 lays down that the members of the Governor's Council of Ministers shall assist the Governor in the performance of his functions, and lastly Article 18(5) says that the terms and conditions of the office of the Minister shall be determined by the President. The provisions of Articles 80 and 82 of our Constitution are almost identical to those of sections 49 and 50 of the Government of India Act, 1935, the provisions of which sections have been subjected to judicial analysis by the superior Courts. The position of a Minister has been considered by their Lordships of the Privy Council in Emperor v. Sibnath Banerjee and others (A I R 1945 P C 156), wherein at page 163 it was observed as under: "So far as it is relevant [in the present case, their Lordships are unable to accept that the Home Minister is not an officer subordinate to the Governor within the meaning of section 49 (1) and so far as the decision in Emperor v. Hemendra Prosad Ghoshe I L R (1939) 2 Cal. 411, decides that a minister is not such an officer their Lordships are unable to agree with it. While a minister may have duties to the Legislature, the provisions of section 51 as to the appointment, payment and dismissal of ministers, and section 59 (3) and (4) of the Act of 1935, and the business rules made by virtue of section 59, place beyond doubt that the Home Minister is an officer subordinate to the Governor. Their Lordships are therefore in agreement with the learned Chief Justice of the Federal Court that such matters as those which fell to be dealt with by the Governor under R. 26 could be dealt with by him in the normal manner in which the executive business of the Provincial Government was carried on under the provisions of Chap. 2 of Part 3 of the Act of 1935, and, in particular, under the provisions of section 49 and the rules of business made under section 59." A similar view was taken in Crown v. Muhammad Afzal Bangash (P L D 1956 F C 1) by the Federal Court of Pakistan, wherein Mr. Justice A. .R. Cornelius (now Chief Justice of Pakistan), following the dictum of the Privy Council in the aforesaid authority, held that the Chief Minister being an officer subordinate to the Governor could exercise his powers on behalf of the Governor. A similar view was tab en in Tara Singh v. Director, Consolidation of Holdings, Jullundur and others (A I R 1958 Pb. 302) with reference to Articles 154 (1) and 166 (3) of the Indian Constitution, wherein it was observed as under: "Under Article 154 (1) of the Constitution the Governor may act directly or through his subordinate officers. In the present case he has acted through the Development Minister. The question arises whether he could so act. Obviously the executive authority carries on the business of the Government and part of this business is the power given to the State Government under section 42 of the Consolidation Act, under Article 166 (3) of the Constitution the Governor can allocate this business to any Minister he likes." To the same effect is Shambhu Nath Ghosh and others v. Bejoy Lakshmi Cotton Mills Ltd. and others (A I R 1959 Cal. 552). A combined reading of Articles 80, 81, 82 and 118 (5) of the Constitution and the view taken in the aforesaid judgments will indicate that. a Minister A assists the Governor in the performance of his executive functions and is, therefore, an officer subordinate to the latter.

7. But the real question is whether or not a Minister is an Officer within the meaning of section 3 of the Act. The terms "officer", "Government" and "Minister" have not been defined in the Act. We have, therefore, to take its ordinary meaning. "Minister" as defined in Black's Law Dictionary, Third Edition, means: "One of the highest functionaries in the organization of civil government, standing next to the sovereign or executive head, acting as his immediate auxiliary, and being generally charged with the administration of one of the great bureaus or depart ments of the executive branch of government. Otherwise called a "cabinet minister, "secretary of state," or "secretary of a department." That word " officer " has been defined in Black's Law Dictionary as: "An officer is one who is invested with some portion of the functions of the Government to be exercised for the public benefit. In a popular sense, an officer is one holding a position of trust and authority in any kind of an organization‑civil, military, political, ecclesiastical, or social." West, J., has defined the word "officer" in the following words: "An officer is one to whom is delegated, by the supreme authority, some portion of its regulating and corrective powers, or who is appointed to represent the State in its relations to individual subjects." The word " government ", according to the Black's Law Dictionary, Third Edition, among other things, means; "The whole class or body of office‑holders or functionaries considered in the aggregate, upon whom devolves the executive, judicial, legislative and administrative business of the State." The above definitions of the terms "Minister", "government" and "officer" clearly indicate that a minister is an office‑holder of a functionary to whom is delegated, or who is invested with some portion of tile functions of the government and holds a political e position of trust and authority, which is of great importance and dignity. The disqualification contained in Article 103 of the Constitution for the government servants from becoming Members of the Assemblies is not in point. In view of the above it is clear that though a person to become a Minister must not be a government servant, but when once he is appointed a Minister; he becomes an officer and is, therefore, covered by the expression used in section 3 of the Act. We are, therefore, of opinion that the bungalow in question could have been requisitioned by the respondent for the residence of Mr. Mahmood A. Haroon, Minister of Co‑operation, Labour and Welfare. This incidentally disposes of the contention of Mr. Ghias Muhammad , learned counsel for the petitioner, that the Government and its officer are two separate entities and a Minister does not answer description of a "government officer" used in section 3 of the Act, as of no substance.

8. Much emphasis was laid by the learned counsel for the petitioner on the point that the bungalow in question being in the personal occupation of the petitioner, who, as already mentioned, is its owner, could not have been requisitioned by the respondent in view of the bar contained in the fourth proviso to subsection (I) of section 3 of the Act. It is true that the fourth proviso to subsection (1) section 3 prohibits the requisitioning of an immovable property which is in the occupation of its owner, but in the present case the occupation of the bungalow by the petitioner has been vehemently denied by the respondent. Although this Court ordinarily does not go into disputed questions of fact in exercise of its jurisdiction under Article 98 of the Constitution, yet we have on record two telegrams admittedly sent by the petitioner's husband from Lyallpur to Mr. Mahmood A. Haroon at Karachi and Lahore expressing regrets for the inconvenience caused to the Minister and his personal need to shift to the bungalow in question. The contents of the two telegrams are as follows:‑ "As myself shifting Lahore, unable to let house to you. Regret very much for inconvenience. But my shifting, though sudden, is absolutely necessary. Kindly excuse. Both the telegrams bear the postal seal of the 4th of December 1965, and the impugned order was passed by the respondent on the 5th of December 1965. It is, therefore, clear beyond any shadow of doubt that the bungalow in question was not in the occupation of the petitioner at the time the order of its re quisitioning was made by the respondent. The respondent has also placed on the record the report of the Estate Officer and affidavits of Mr. Niaz Ahmad (respondent), Mr. G. M. D. Ghauri, Estate Officer, Mr. J. V. Isaac, property dealer, and Zahoor-ud‑Din, tracer of the Estate Department, which show that the bungalow was lying vacant at the time of the impugned order. Besides, all official acts are presumed to have been done correctly and in good faith, and in the absence of anything satisfactory on the record suggesting the contrary we are not prepared to believe that the respondent is wrong in saying that the house was lying vacant at the time of the impugned order. In view of the desire of the petitioner's husband expressed in the two telegrams sent to the Minister and other material on the record produced by the respondent showing that the house was lying vacant at the time the order of its requisitioning was made, we are not impressed with the circumstantial evidence produced by the petitioner to prove her occupation of the bungalow in question in the shape of electricity and telephone bills. These bills do not conclusively, prove the petitioner's occupation of the bungalow. The bills as to the consumption of electricity are of very insignificant amount, and we are not inclined to believe that a family living in a spacious bungalow like the one in dispute would consume electricity for which the bill would not exceed Rs. 60 p. m., especially when we know from the material on the record that the petitioner's husband is an industrialist and is the proprietor of Premier Cloth Mills at Lyallpur. The three bills of electricity amounting to Rs. 94*96, Rs. 108'17 and Rs. 117'83 do not cover the consump tion charges of electricity per month only, but include the arrears, rental charges, etc., of previous months. The material on the record, in our opinion, abundantly proves that the bungalow in question was not in the personal occupation of the petitioner at the time the order of its requisitioning was made. She, therefore, cannot invoke the aid of proviso fourth to subsection (1) of section 3 of the Act and the impugned order dated the 6th of December 1965, cannot be challenged on that score.

9. As to the objection to the omission of the recital of the purpose of requisitioning the bungalow in question in the impugned order, a plain reading of section 3 of the Act shows that the requisitioning authority is not required to specify the purpose in the order while requisitioning any property. No is he required to assign any reason for it. The government the sole judge of the necessity and expediency of the matter of ' requisitioning a property. The approach of the Government or, for that matter, the Home Secretary is, therefore, subjective and not objective. This Court is, therefore, not competent to go into the question of the necessity and expediency of the action which is the subject‑matter of this petition unless the impugned order appears to be without lawful authority on the face of it.

10. Nor is there any force in the contention of the learned Ta counsel for the petitioner, that no previous notice as required by the Ah third proviso to subsection (1) of section 3 of the Act having been served on the petitioner, the bungalow in question could not have been requisitioned. This proviso applies only to the case of a property being in the occupation of a person other than the owner, and it is not the case of the petitioner that someone else was occupying the bungalow of the petitioner. Her case is that the bungalow was in her personal occupation. She, therefore, cannot take shelter behind the provision of the third proviso to section 3 of the Act.

11. The contention of the learned counsel for the petitioner that the Home Secretary abdicated his authority in favour of the Minister and did not apply his own mind to the necessity and expediency of the matter of requisitioning the bungalow in question, is also devoid of force. The Minister merely indicated his approval that the bungalow in question was fit to meet his requirements. This circumstance alone is not sufficient to infer that the Home Secretary abdicated his authority in favour of the Minister and did not apply his mind to the facts of the case.

12. For the foregoing reasons, we do not find any merit in this petition and dismiss it. In the circumstances of the case, we leave the parties to bear their own costs. K. B. A. Petition dismissed.