1994 PLP 1025 (CLC)

I have heard M/s. I.H. Zaidi and Shahanshah Hussain, Advocate, on behalf of the plaintiff and Mr. Mushtaq Memon, Advocate, on behalf of the defendants. The learned counsel for the plaintiff attacked the action of. the defendants and the aforesaid two notices dated 18‑4‑1985 and 21‑5‑1985 on several grounds. The submissions of the learned counsel for the plaintiff in reply to the protection sought by the defendants under section 10 of the 1965 Ordinance wore mainly twofold; firstly, that the defendant No.2 had no authority to issue these notices and, secondly, that no personal hearing was given to the plaintiff. It was submitted that the defendants failed to produce any document showing that the defendant No.2 had been authorised to issue, such notices or to show that opportunity of personal hearing was given to the plaintiff and in these circumstances, proceedings taken against the plaintiff cannot be considered to be under the Ordinance of 1965 and, therefore, the provisions of section 10 of that Ordinance placing restriction on the powers of the Civil Court to grant injunction would not be attracted. The learned counsel for the defendants challenging the contentions of the learned counsel for the plaintiff produced a copy of a notification dated 26‑6‑1984 issued by the Ministry of Defence (Aviation Division) whereby the Federal Government empowered the Airport Managers to exercise powers under sections 3, 4, 5 and 6 and subsection (2) of section 7 of the Ordinance of 1965 in relation to lands and buildings vesting in the Civil Aviation Authority. It was argued by the learned counsel that by Ordinance XXII of 1984, the Pakistan Civil Aviation Authority Ordinance, 1982 was amended and a new subsection (5) was added to section il thereof to the following effect:‑ "Subsection (5).‑‑The Federal Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 (LIV of 1965) shall apply to lands and buildings vesting in the Authority and for the purpose of such application shall have effect as if reference therein to the Federal Government included a reference to the Authority." It was stated that by virtue of this amendment, the provisions of the 1965 Ordinance became applicable in respect of lands and buildings vesting in the Civil Aviation Authority and as such no fault can be found in the issuance of the aforesaid notices. It was submitted that under section 9 read with section 3 of the Ordinance of 1965 the Federal Government was competent to authorise any officer to exercise the powers exercisable by it under that Ordinance and in pursuance of the said provisions it authorised the Airport Managers by the said notification to exercise powers under sections 3 and

9. It will be beneficial to reproduce here the said sections 3 and 9 of the 1965 Ordinance:‑‑ "

3. If, on the expiry, whether before or after the commencement of this Ordinance of the period of any lease or licence in respect of any land or building of which the Federal Government is the lessor or licensor or on the determination of such lease or licence on the ground of breach of any covenant imposing an obligation on the lessee or licensee to give up possession of the demised land or building required for any public purpose, the lessee or licensee refused or failed, or refuses or fails, to vacate that land or building and put the Federal Government into possession of the same, any officer authorised by the Federal Government in this behalf may, notwithstanding anything contained in any other law ,for the time being in force or in any contract, at any time, enter upon the demised land or building and recover, vacant possession of that land or building by evicting the lessee or licensee and may also demolish and remove the structure, if any, erected or built thereon by the lessee or licensee: Provided that such officer shall not enter upon the demised land or building unless the Federal Government has given an opportunity of being heard to the lessee or licensee. Provided further that such officer shall before demolishing and removing any structure under this section, issue 'a notice to the lessee or licensee calling upon him to remove such structures within the period specified in the notice".

9. The Federal Government may, by notification in the official Gazette, direct that any power exercisable by it under this Ordinance may be exercised also by any officer subordinate to it." It was contended that the defendant No.l having required the plaintiff to vacate the premises in question by letter dated 3‑1‑1984 the occupation of the property in question by the plaintiff thereafter became unauthorised and, therefore, in view of the Federal Government's said authorisation the defendant No.2 competently proceeded to take action under section 3 of the 1965 Ordinance resulting in the issuance of the aforesaid two notices. These contentions have been strongly disputed by the plaintiffs advocates. For the present, however, I do not intend to go deep into the question and record my finding on the effect of the aforesaid amendments. Leaving that to be decided at an appropriate stage, I would, for purposes of this application merely examine if the two notices dated 18‑4‑1985 and 21‑5‑1985 are prima facie not in accordance with the 1965 Ordinance. With reference to the notification dated 26‑6‑1984 whereby the Airport Managers have been authorised by the Federal Government to exercise powers under the Ordinance it was submitted by the learned counsel for the plaintiff that such authorisation, if at all could be made in this case, should have been by the defendant No.l Authority and not by the Federal Government for it related to the lands/buildings belonging to the Authority. It may be mentioned that the Ordinance of 1965, as originally enacted, was in respect of the lands/buildings vesting in. or in possession or under the management and control of the Federal Government alone but, as stated earlier, it was extended to the lands and buildings of the Authority by addition of subsection (5) to section 11 of the Pakistan Civil Aviation Authority Ordinance, 1982. It is obvious from a bare reading of the said subsection (5) that for purposes of the lands and buildings of the Authority the reference to the Federal Government in the 1965 Ordinance wherever made would include reference to the Authority and consequently in section 9 thereof too the reference to the Federal Government would include reference to the Authority. This being so a plausible. interpretation could be that the Authority would exercise the same powers in respect of lands and buildings belonging to it as would be exercised by the Federal Government in relation to the lands and buildings belonging to the Government, with the result, that, while in respect of the lands and buildings belonging to the Federal Government that Government would be competent to authorise an officer to exercise its powers under the Ordinance, for lands/buildings belonging to the Authority, the Authority would make similar authorisation. The contention of the learned counsel for the defendant, that, in respect of lands/buildings belonging to the Authority also the power to authorise an officer vests in the Federal Government is likely to lead to an anomalous situation where in a case the Authority may not be willing to take action under section 3 of the 1965 Ordinance, and yet the officer authorised by the Government may do so unilaterally. Had that been the intention of the law maker it could have more appropriately been achieved by simply adding the words "or Civil Aviation Authority" after the words "Federal Government" in clauses (a) and (b) of section 2 of the 1965 Ordinance. It was pointed out that by virtue of section 11 of the Pakistan Civil Aviation Ordinance, 1982 the Federal Government divested itself of the various assets including lands and buildings as mentioned therein ‑and vested these in the Authority reserving for itself only a limited power under subsection (4) of that section whereby the authority has to obtain prior approval for disposal of immovable property. In view of the provisions of section 11 it is all the more difficult to see how the Federal Government would be entitled to exercise powers in respect of the Authority s lands/buildings. Therefore, the effect of the amendment appears to be that for purposes of section 3 of the 1965 Ordinance the power to authorise an officer to take action against a lessee in respect of lands/buildings belonging to the Authority would vest in the Authority and not in the Federal Government and consequently, prima facie the two notices issued by the defendant No.2 were without authority. In so far as the second contention with regard to the opportunity of personal hearing is concerned, it may be pointed out that by Ordinance X of 1984, the Federal Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 was amended and, inter alia, a new proviso in section 3 was inserted to the following effect:‑‑ "Provided that such officer shall not enter upon the demised premises, or building unless the Federal Government has given an opportunity of being heard to the lessee or licensee." By this express provision it became incumbent upon the Federal Government in respect of lands belonging to it and on the Authority in respect of the lands belonging to the Authority to provide to the lessee/licensee opportunity, of being heard. It was submitted by the learned counsel for the plaintiff that opportunity of personal hearing was allowed to the plaintiff. The defendants' counsel had denied this and made a reference to the notice dated 21‑5‑1985 wherein in para 3 it was stated that, "‑‑and you were also given an opportunity C of hearing on 12‑5‑1985". Admittedly, however, no written communication was sent to the plaintiff about the personal hearing. The learned counsel for the defendants stated that the plaintiff was called for personal hearing orally. It is really difficult to approve of this procedure. It was urged and not without force, that as the law expressly provides for giving of opportunity of personal hearing it was obligatory on the defendant No.l to give such opportunity by a proper communication in writing. But even if it is issued that oral communication was sufficient compliance of the provisions, this will have to be established by evidence before it can be accepted. The upshot of the above discussion is that prima facie the notices dated 18‑4‑1985 and 21‑5‑1985 do not appear to be in accordance‑with the provisions of the 1965 Ordinance and, consequently tentatively the restriction placed under section 10 of that Ordinance would not be attracted. In view of the conclusion on the aforesaid two points I need .not go into the other contentions raised by the plaintiff. The result is that the plaintiff has been successful in making out a case for the grant of injunction and accordingly the plaintiffs' application is allowed and till further orders the defendants are restrained from dispossessing the plaintiffs from the suit premises and from taking any adverse action as prayed therein. H.B.T./S‑1040/K Application allowed.