2006 PLP 1438 (YLR)

NASIM SIKANDAR, J.

In this constitutional petition following prayer has been made:-- "Under the circumstances, it is most respectfully prayed that the impugned order of ejectment dated 22-6-2005 copy of which has not been supplied to the petitioner company, the notice of ejectment dated 25-6-2005 along with reasons mentioned therein coupled with the act of sealing of the premises and taking over the possession by the respondents may kindly be declared as illegal, arbitrary and without lawful authority and the respondents may kindly be directed to de-seal the premises of the petitioner company and possession of the petitioner company be restored to the petitioner."

2. Learned counsel for therespondents on instructions states that the pending representation of the petitioner against the impugned eviction order will be treated as an appeal under the Evacuee Trust Properties (Management and Disposal) Act, 1975 and disposed of accordingly. However, insists that the possession of the demised premises which has already been taken over by the department may not be disturbed in the meanwhile.

3. Learned counsel for the petitioner on the other hand submits that the petitioner having approached this Court before the taking over of the possession of the property will be seriously prejudiced as its business will come to a halt if the possession of the demised premises is not restored to it.

4. The petitioner in this case claims to have purchased more than 94% shares of the Pak Arab Fertilizer Limited for a sum of Rs.17 billion which was owned and managed by Messrs National Fertilizer Corporation. At the time of privatization the company was admittedly in occupation of the demised premises. There is no allegation of default against the petitioner company. However, there appears to be a dispute as to who had made a request for relinquishment of the tenancy rights. The respondent department claims that it was both previous as well the new management which had voluntarily relinquished these rights while according to the learned counsel for the petitioner it is only the old management which in a clandestine manner issued certain letters to the respondent department with regard to the tenancy rights. After service of eviction notice these rights were advertised to be auctioned on 13-8-2005.

5. Learned counsel for the petitioner in support of his submissions has relied upon the ratio settled in re: Dr. Mrs. Nasim Qureshi v. Deputy Administrator, Evacuee Trust Property Karachi and another 1987 CLC 213, as well as re: Collector of Customs, Customs House, Lahore and 3 others v. Messrs S.M. Ahmad and Company (Pvt.) Limited Islamabad 1999 SCMR

138. On the other hand learned counsel for the respondent objects to the maintainability of the petition by making a reference to the judgment of the Honourable Supreme Court of Pakistan in re: Hafiz Brothers (Pvt.) Limited and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1.

6. As observed above, it is to disputed that the petitioners have purchased 94% shares of the said company which was in possession of the demised premises as a tenant. There is no allegation of default or violation of other tenancy rights against the petitioner company. The department having agreed to treat a pending representation of the petitioner company as an appeal under section 16 of he said Act the matter still remains wide open. Therefore, the request of the petitioner for restoration appears justified inasmuch as being head of the office of the company its business will come to a stand still. On the other hand the department will not sustain any serious loss till the matter pending in appeal is decided by it.

7. According in the light of the statement made by the learned counsel for the respondents it is directed that the department will consider and decide the pending representation as an appeal under the said provisions after considering the defence put up by the petitioner against the eviction order. In the meanwhile thepossession of the demised property shall belB restored to the petitioner.

8. Petition allowed to the extent and in the manner stated above. S.A.K./P-85/L Petition accepted.