1983 PLP 2633 (CLC)

3. In support of the above petition Mr. Khalid Latif learned counsel for the petitioners has urged that the mandatory provision of proviso of section 3 (1) of the Act has not been complied with inasmuch as a notice of at least 2 weeks was not given to petitioner No. 2, the occupant of the apartment. Reliance has been placed on the case of Shamshad Ali Qureshi v. Additional Commissioner, Karachi and another (P.L D 1978 Kar, 429). On the other hand it has been contended by Mr. Muhammad Ibrahim Memon, learned Addi tional Advocate‑General that in view of the amendment brought about by Ordinance II of 1970 in subsection (1) of section 3 of the Act, the requirement of prior two weeks, notice was dispensed with and, therefore, the order of requisitioning the apartment was legal.

4. It maybe advantageous to quote here in below original section 3 of the Act and the amendment sought to be made by Ordinance‑II of 1970, which read as follows :‑ Section 3 of the Act "

3. Requisitioning of property.‑(1) If in the opinion of the Provincial Government it is necessary or expedient to requisition any building for the use of any of its officers or offices, the Provincial Government may by order in writing requisition any building and may make such further orders as appear to it to be necessary or expedient in connection with the requisitioning: Provided that no building used for the purpose of religious worship or imparting education and no building situated in Cantonment with in the meaning of the Cantonments Act, 1924, shall be requisitioned under this Act Provided further that no building which is an evacuee property shall be requisitioned except with the prior approval of the Central Government. Provided also that 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 requi sitioning 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. Provided that no owner in occupation of souse steall be required to vacate it. (2) If the notice mentioned in the third proviso to sub section (1) cannot be served on the occupant personally, affixation of the notice on a conspicuous part of the building or service by means of a proclamation or by means of a notice in the official Gazette and local press shall be deemed to be sufficient service for the purpose of this section. (3) Where the Provincial Government has requisitioned any building under subsection (1), it may use or deal with it in such manner as may appear to it to be expedient." Section 2 of Ordinance 11 of 1970. (2) Amendment of section 3 of West Pakistan Act VII of 1956. In the West Pakistan Requisitioning of Immovable Property (Tempo rary Powers) Act, 1956, in its application to the Province of Sind, in section 3. (i) in subsection (1), the words "after giving the owner thereof an opportunity of being heard and showing cause against the proposed action" shall be omitted and shall be deemed to have been so omitted with effect from 1st July, 1970 ; and (ii) After subsection (2), the following subsections shall be inserted :‑ "(2‑a) Any person aggrieved by an order made under subsection (1) requisitioning any building may make an application to the authority making the order, to review the order, and on such application being made, such authority, after giving the applicant an opportunity of being heard and adducing evidence in support of his application, may confirm, modify or rescind the order. (2.b) An application for review under section (2‑a) shall be made‑ (i) In the case of an order made on or after 1st July, 1970, but prior to 6th August, 1970, not later than 23rd August, 1970 ; and (ii) In the case of an order made on or after 6th August. 1970, within fourteen days of the making of the order."

5. It may be noticed that proviso 3 to subsection (1) of section 3 of the Act clearly provides that no order for requisitioning shall be passed unless a prior notice of at least two weeks is given to the occupant to show cause against the action proposed to be taken. It may further be noticed that through the amending Ordinance the words which were sought to be deleted from subsection (1) of section 3 were; "after giving the owner thereof an opportunity of being heard and showing cause against the proposed action." It was further contemplated by enacting section (2‑a) to provide a right of review to an aggrieved party within two weeks in respect of an order passed on or after 6th August, 1970. It may be observed that the words which were sought to be deleted from subsection (1) of section 3 of the Act by Ordinance‑11 of 1970 were in fact not in the original subsection (1) of section 3 of the Act and, therefore, the proviso 3 to subsection (1) of section 3 of the Act in its original form remained intact notwithstanding the above amendment. It seems that the intention of the Legislature was to dispense with the requirement of prior hearing of the owner of a building, which includes a lessee for a definite period. But this object could not have been achieved without properly amending proviso 3 to subsection (1) of section 3 of the Act. This point has been considered by a D. B. of this Court in the above‑cited case of Karachi reported in P L D 1978 Kar. 429, in which it was held that notwithstanding the above amendment brought about by Ordinance‑I1 of 1970, the manda tory requirement contained in proviso 3 to subsection (1) remained intact. The above case is applicable to the instant case on all fours Mr. Muhammad Ibrahim Memon, learned A. A.‑G. was unable to cite any case in which a contrary view might have been taken. Since the above judgment by a D. B. is binding on us and as we see no reason to take a different view, the impugned order cannot be sustained on the ground of want of prior notice of two weeks under proviso 3 to subsection (1) of section 3 of the Act.

6. It was next contended by Mr. M. Ibrahim Memon, learned A. A.‑G. that the apartment was not in fact in occupation of petitioner No.

2. In our view, the above contention is devoid of any force. It is an admitted position that at the time of passing of the impugned requisi tioning order, the electricity in the apartment was not installed and, there fore, the same was in the process of finishing work. Furthermore, the annexures filed by the respondents alongwith their counter‑affidavit indicate that some household articles were found lying in the apartment, which according to petitioner No. 2 belong to him. 1n this regard, it may be pertinent to refer to the case of Mrs. Nema v. West Pakistan through Chief Secretary to the Government of Pakistan and another (P L D 1969 liar. 622), and the case of Muhammad Siddique and another v. Additional Commissioner, Karachi and 2 others (P L D 1978 Kar. 384). In the above Karachi case of 1969, the majority view was with a building under construction which was neither finished nor ready for residence but contained building materials, and watched by the owner's servant or agent was deemed to be in occupation of the owner of the build ing. Whereas in the aforesaid case of Karachi, a D. B. of this Court held that a house finished or ready for habitation containing furniture, beds, household and personal articles ready for use by an owner at any time, he chooses, be deemed to be in his occupation, though he may not be actually residing therein. Since the apartment in question was not read for habitation and as certain household articles were found lying in the apartment, it is deemed to be in occupation of the person entitled t occupy it i.e. petitioner No.

2. As admittedly no prior 2 weeks' notice was given before the passing of the impugned order, the same cannot sustained.

7. For the aforesaid reasons, we allow the petition as prayed for. However, we grant one month time to the respondents to arrange for handing over the possession of the Apartment to petitioner No.

2. There will be no order as to costs. K. M. A. Petition allowed.