1992 PLP 2146 (MLD)

This judgment will dispose of the present petition as well as Writ Petition No.678 of 1989 in which common questions of law and fact are involved. 2 The petitioner is the owner of House No.8, Street No.15, F‑7/2, Islamabad. The house was requisitioned by respondent No.l for his own residence vide order dated 9‑12‑1989, the legality whereof has been assailed in the present petition.

3. Briefly stated the other relevant facts arc that the house referred to above was earlier leased out by the petitioner to the U.S. Embassy at a monthly rent of Rs.16,

500. The house required extensive repairs and became unsuitable for habitation whereupon the Embassy vacated it in September, 1989. The petitioner got possession of the house and leased it out to Khan Agriserve (Pvt.) Limited (petitioner in the connected writ petition) at a monthly rent of Rs.20,000 from October, 1989. The repair work in the house was started by Khan Agriserve (Pvt.) Limited as per the terms of the lease agreement. The work was in progress when on 7‑12‑1989 the Contractor and his workers were stopped by some officials from the office of the Deputy Commissioner, Islamabad from carrying out further repairs. On query, it was led that the house was being requisitioned by the Deputy Commissioner for his own residence. Mr. Aleem Ahmad Khan a real brother of the petitioner and Managing Director of Khan Agriserve (Pvt.) Limited contacted the Deputy Commissioner on 12‑12‑1989 who informed him that he had requisitioned the house for himself.

4. The Deputy Commissioner, Islamabad, respondent No.l had sought permission from the Administrator, Islamabad to requisition a house for himself vide the letter dated 14‑11‑1989. The permission was granted by the Administrator vide his order dated 30‑11‑1989. Thereafter on 30‑11‑1989 he issued a notice to the petitioner at his Lahore address for appearance before him on 9‑12‑1989. The notice was not served on the petitioner. In fact, at the relevant time, the petitioner was posted in P.I.A. Office at Rome. On 9‑12‑1989, the Deputy Commissioner proceeded ex‑parte against the petitioner and requisitioned the house. The possession was said to have been taken by respondent No.l on 11‑12‑1989 but Khan Agriserve (Pvt.) Limited, the petitioner in the connected petition, claims that possession was actually obtained from him on 22‑12‑1989. Prior to that, Writ Petition No.678 of 1989 had been tiled on 19‑12‑1989 and status quo was ordered by this Court on 20‑12‑1989. The order was conveyed to the Deputy Commissioner on the same day but despite that, possession of the house was taken on 22‑12‑1989. In this connection a petition for action for contempt of Court (Crl.Org. 3‑W/1990) is pending.

5. The petitioner's learned counsel strenuously urged that the Deputy Commissioner had no jurisdiction to requisition the house for himself and that the action taken by him was mala fide and illegal. He points out that in his letter dated 14‑11‑1989 (Exh. R.1 in Writ Petition No.678/89) the Deputy Commissioner had sought permission to requisition "a house" and not the petitioner's house. Had the area and size of the house been mentioned, probably permission to requisition the house would not have been granted by the Administrator because the Deputy Commissioner was not entitled to a house exceeding the rental value of Rs.4,000, 5,000 per month. He further submits that the principle that nobody can be a judge in his own cause has been violated. According to the learned counsel only the Administrator, Islamabad could have requisitioned the house. He further submits that no notice was served either on the petitioner or the occupant i.e. Khan Agriserve (Pvt.) Limited, the occupant to whom the property had been leased out in October, 1989. Hence, ex parte proceedings taken by the Deputy Commissioner were totally without lawful authority and of no legal effect. The learned counsel adds that the property is a huge one and was leased out to U.S Embassy at the monthly rent of Rs.16,500 in the year 1987 but with mala fide intentions the house has been got underassessed through the Pak P.W.D at monthly rent of Rs.5,

345. He submits that the compensation was not assessed in accordance with the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956.

6. On the other hand, Maulvi Anwar‑ul‑Haq, learned counsel for respondent No.l and Mr. Mansoor Ahmad, learned Standing Counsel for respondents Nos.2 and 3 urged that the Deputy Commissioner enjoyed the powers of the Provincial Government: by virtue of Notification No.4‑4‑1991 A.F.T, dated 1‑1‑1981 for requisitioning a house for himself. Placing reliance on the judgment in the case of Federation of Pakistan v. Muhammad Akram Sheikh (PLD 1989 SC 689) the learned counsel submitted that the general principle that nobody can be a judge in his own cause must yield to the dictates of necessity. According to them, there being no other person to exercise the powers of the Provincial Government, the Deputy Commissioner as a delegatee was competent to exercise the same. They further urged that the property was lying vacant and that Khan Agriserve (Pvt.) Limited was never in occupation of the house. They submitted that the so‑called tenancy agreement in favour of Khan Agriserve (Pvt.) Limited is fictitious and otherwise not legal. It was signed by Mr. Aleem Ahmad Khan as Attorney of his brother Tanvir Ahmad Khan petitioner. Thus, he executed the agreement in his own favour i.e. Khan Agriserve (Pvt.) Limited, of which he was the Managing Director. At the relevant time he did not have a power of attorney from his brother. They pointed out that Tanvir Ahmad Khan, petitioner remained posted at Rome from 6‑8‑1987 till 9‑12‑1989 and had never granted power of attorney to Mr. Aleem Ahmad Khan. They further urged that under section 3 of the Act, the Government is the sole judge in respect of the requirement of the house and that the purpose of requisition need not be stated. In reply the learned counsel for the petitioner submitted that from 20th October, 1989 to 25th October, 1989 the petitioner remained in Pakistan and gave a Special Power of Attorney to his brother Aleem Ahmad Khan on 22‑10‑1989 permitting him to enter into tenancy agreement with anybody regarding the disputed house. The lease agreement was made between Aga Humayun, Secretary of the Firm and Aleem Ahmad Khan an attorney of the petitioner. The relevant entries made in the petitioner's Passport were shown to the learned counsel for the respondents who did not dispute the correctness of the same. He further urged that the judgment in the case of Federation of Pakistan v. Muhammad Akram Sheikh (PLD 1989 SC 689) was inapplicable because another legal functionary i.e. the Administrator was there to requisition the house. Hence, the principle of necessity was also not attracted. The learned counsel further pointed out that the mala fides of the Deputy Commissioner was evident from the fact that after the so‑called requisition of the house ordered on 9‑12‑1989 the case was sent to the Executive Engineer Pak P.W.D. for the assessment of the rent on 4‑2‑1990. The assessment was made after more than a year on 3‑4‑1991 and the house was deliberately under‑assessed at monthly rent of Rs. 5,

345. He points out that the action taken in, this behalf was entirely mala fide and against the provisions of the Act. .

7. The facts brought on the record show that at the relevant time (from 30‑11‑1989 to 9‑12‑1989) the petitioner was posted in the P.I.A. Office at Rome. The proceedings for requisitioning the house were taken in his absence. The notice dated 30‑11‑1989 (Ex.R.3) was sent to the petitioner at his Lahore address and for obvious reasons was not received by him. In his absence, his real brother Bashir Ahmad Khan was looking after the property. The house was leased out to U.S. Embassy in the year 1987 at a monthly rent of Rs.16,

500. This fact was specifically asserted in para 3 of the writ petition but not denied in the written statement riled by respondent No.1. Hence, it can be deemed to have been admitted. The house was vacated by the Embassy as it had become unfit for further tenancy due to extensive damage caused by the monsoon. Its possession was delivered to the petitioner's attorney. This can be gathered from the letter dated 26‑9‑1989 sent by the Embassy of United States of America to Mr. Bashir Ahmad Khan, Legal Attorney of the petitioner. It appears that after obtaining possession repair work was started and the house was leased out to Messrs Khan Agriserve (Pvt.) Limited. The petitioner's real brother Mr. Aleem Ahmad Khan was the Managing Director of the said Firm. The .lease agreement dated 15‑10‑1989 was signed on behalf of the Firm by its Secretary Agha Humayun Khan and on behalf of the petitioner by his brother Mr. Aleem Ahmad Khan. True, on 15‑10‑1989 Mr. Aleem Ahmad Khan did not have written power‑of‑attorney in his favour which was actually given to him on 22‑10‑1987 but it will make no difference because the petitioner being the owner has not challenged the legality of the lease agreement and has in fact owned it. By virtue of clause 1 of the agreement the house was to be got repaired by the new lessee who was allowed to adjust the cost upto Rs.45,

000. The said clause is reproduced below for ready reference:‑ "That the `premises' at present needs complete waterproofing of roof and repairing from inside. This work is estimated to be completed by 26th November, 1989. from which date rent shall be payable. In the meanwhile, the possession of the premises is being handed over to the tenant this day who will carry out the restoration/repair work mentioned above under its supervision. The cost of such repairs shall not be more than Rs.45,000 (Rupees forty‑five thousand only) which shall be adjusted against the rent for first three months. Thereafter, the tenant shall pay rent in advance for each month."

8. It appears that on the basis of the said clause embodied in the lease agreement the house was being repaired at the instance of the new lessee when respondent No.1 intervened and requisitioned it on the wrong assumption that it was not occupied by anybody. The legality or otherwise of the lease agreement apart, the fact remains that possession of the disputed property was with Messrs Khan Agriserve (Pvt.) Limited. As mentioned above, the petitioner has owned the lease agreement in favour of the Firm and never disputed its right to hold the property as a lessee under him. The fact that the house was being got repaired by the Firm gets support from the fact that on coming to know about the action taken by the Deputy Commissioner, it was Aleem Ahmad Khan, the Managing Director of the Firm who appeared before the Deputy Commissioner on 12‑12‑1989 and apprised him of the fact that the house was under repairs and in possession of the Firm. The stand taken by the Deputy Commissioner in his written statement that Mr.. Aleem Ahmad Khan met him on 12‑12‑1989 as a representative of the petitioner and stated that the house was got vacated for being let out to some suitable tenant on higher rent does not appear to be correct. Prior to that, the lease deed between the petitioner and Messrs Khan Agriserve (Pvt.) Limited had already been executed on 15‑10‑1989 and the premises were being repaired at the instance of the said Firm. The report dated 7‑12‑1989 (Ex.R.5) with Writ Petition No. 678/89) made by Tehsildar, Islamabad that the house was lying vacant and that there was no Chowkidar at the spot appears to be false. Nobody could possibly leave such valuable property having all the modern amenities and fittings including Fans and Blubs etc. (shown in the inventory Ex.R.7 with the written statement of respondent No.1 in Writ Petition No.678 of 1989 open and unattended. Thus, I am convinced that after having obtained possession of the house from the US Embassy, it was leased out to Messrs Khan Agriserve (Pvt.) Limited at a monthly rent of Rs.20,000 and that the Firm was in actual physical possession of the house and having it repaired. The fact that the repairs were not yet complete is amply evident by the fact that after obtaining possession of the house, respondent No.1 got it whitewashed and painted to make it habitable. Some other repairs (said to be minor ones) were also made in the house, details whereof have not been given by respondent No.1. Thus, it is established that respondent No.1 hastened to occupy the house when it was under repairs at the instance of the Firm. In this view of the matter when the house was in occupation of the Firm, no order for its requisition could be passed without giving show‑cause notice of two weeks to the occupant against the proposed action as required under the 3rd proviso to Section 3 of the Act. Admittedly, no such notice was ever issued to or served on the occupant. Hence, the requisition order passed in violation of the mandatory provisions of the Act is a nullity in the eye of law.

9. The impugned order is also liable to be struck down on the ground that the Deputy Commissioner acted as a judge in his own cause although, there was no compulsion of necessity involved in the matter for passing the order. There was another legal functionary i.e. the Administrator, Islamabad who enjoyed all the powers of the Provincial Government under the Act and could have passed the requisitioning order. By virtue of the provisions of section 2 of the Islamabad Capital Territory (Administration) Order, 1980, the Executive Authority of the Federation in respect of Islamabad Capital Territory was to be exercised by the President, either directly or through an Administrator, to be appointed by him. The President of Pakistan appointed an Administrator for the said Territory and issued Notification No.F‑17(2)/80 Pub, dated 31‑12‑1980 directing that the Administrator shall have all the powers and duties conferred or imposed on the Provincial Government under any law for the time being in force in the Islamabad Capital Territory. At one stage, the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 did not apply to the Islamabad Capital Territory but subsequently the Act was amended in 1962 and the provisions of the Act became applicable in the Federal Capital as well. The Administrator delegated his powers under sections 3 to 9 of the Act to the Deputy Commissioner, Islamabad through Notification No.4/491‑A.FT, dated 1‑1‑1981. Thus, the Deputy Commissioner became competent to requisition a property situated in the Islamabad Territory in accordance with the law. However, in the present case he had to requisition a house for his own self. He was not the sole legal Authority for the purpose of requisitioning the house. As mentioned above, the powers of the Provincial Government in this respect vested in the Administrator who had delegated the same to the Deputy Commissioner, Islamabad. After delegation, the delegator is not divested of his powers or authority under the law. Therefore, the Deputy Commissioner should not have become a judge in his own cause. The judgment in the case of Federation of Pakistan v. Mohammad Akram Sheikh (PLD 1989 SC 689) relied upon by the respondents' learned counsel is distinguishable because in that case the review petition had to be heard by the Full Court consisting of the same learned Judges of the Supreme Court who had originally passed the judgment. In the same judgment it has been observed that a Judge who would otherwise be disqualified may act in case of necessity where no other Judge has jurisdiction. However, in the present case the Deputy Commissioner was not the sole authority to exercise the powers under the Act. As mentioned above, the Administrator also enjoyed the powers under the Act for requisitioning a house. Hence, there was no legal necessity or obligation to infringe the salutary principle of law that no one should be a judge in his own cause. Instead of permitting the Deputy Commissioner to requisition a house for himself, the Administrator ought to have taken the necessary steps in the matter himself.

10. Even otherwise, the action taken by the Deputy Commissioner appears to be tainted with mala fides. He violated the provisions of section 3 of the Act inasmuch as no notice was issued to the occupant. In fact, he managed to obtain wrong report from the Tehsildar that the house was lying vacant. He hastened to requisition a huge house presumably beyond his entitlement, hurriedly occupied the house but did not take prompt steps in the like manner to determine the monthly rent/compensation of the house and arrange its payment to the petitioner. In the matter of assessment and payment of rent to the owner, he became oblivious of his delegated powers under section 7 of the Act. The house was got assessed at a monthly rent of Rs.5,345 through the Executive Engineer of the Pak P.W.D. It is preposterous to say that the rental value of the house was Rs.5,345 when it was leased out to the US Embassy on the monthly rent of Rs.16,500 in the year 1987 and to Messrs Khan Agriserve (Pvt.) Limited at the monthly rent of Rs.20,000 in the year 1989. The house was obviously under‑assessed by the Executive Engineer presumably to oblige respondent No.1.

11. For the foregoing discussion, I accept this petition, declare the impugned order dated 9‑12‑1989 passed by the Deputy Commissioner, Islamabad respondent No.1 and the subsequent act of taking possession of the house to be arbitrary, mala fide in .law, without lawful authority and of no legal E effect. He is further directed to vacate the disputed house and hand over its possession to Khan Agriserve (Pvt.) Limited within a fortnight. The parties are left to bear their own costs. A.A./T‑83/L. Petition accepted.