1992 PLP 115 (MLD)

Through this Constitutional petition the petitioner has assailed the requisition order, dated 7‑3‑1991, passed by the Deputy Commissioner, Islamabad, respondent No.1 in respect of house No.39‑B, Street No.25, F‑8/2, Islamabad.

2. The house in question belonged to the real brother of the petitioner. The owner had gone to U.K. where his children were studying and had left the house with the petitioner (as claimed by him). The petitioner who was earlier residing at Gujrat shifted his family and the household to the disputed house which was at the final stages of renovation. On 21‑2‑1991, respondent No.1 issued a notice to the owner to show cause as to why the house be not requisitioned. The notice was received by Amir Shehzad son of the owner who appears to have delivered it to the petitioner. Accordingly the petitioner appeared before respondent No.1 on 7‑3‑1991 and informed him that he was in occupation of the house and was having it white‑washed. According to the petitioner, respondent No.1 assured him that he would look into the matter and pass a suitable order later. On 9‑3‑1991, a police party suddenly came and forcibly evicted the petitioner. The police prepared an inventory in respect of the goods lying in the house. Another inventory was got prepared through a bailiff of this Court. The petitioner claims that the action taken by respondent No.1 was entirely mala fide and illegal.

3. The learned counsel for the petitioner urged that the house being in occupation of the petitioner was not available to be requisitioned under the law. Moreover, notices contemplated under section 3, provisos 3 and 4 of the Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1956 were not issued to the petitioner and the house was got forcibly vacated. This action was wholly mala fide. He further submitted that by virtue of Article 2 of P.O. 18 of 1991 the executive authority in respect of the capital territory vested in the President and that the Administrator Islamabad was a delegatee of the President. He himself could have exercised the power but the same could not be further delegated to the Deputy Commissioner, Islamabad. Hence the requisitioning order passed by the Deputy Commissioner was a nullity in the eye of law. In this connection he placed reliance on the case of Zaibtun Textile Mills Ltd., Karachi and others v. Central Board of Revenue and others (PLD 1971 Kar. 333) and Muhammad Azim Malik v. A.C. and SDM Preedy (South), Karachi and others (PLD 1989 SC 266). He pointed out that the petitioner appeared before the Deputy Commissioner and informed him that his brother had gone abroad and that he was in possession of the house and that his household goods were lying in it. He added that the inventory Annexure RS prepared by the police was incorrect and otherwise mala fide. The air conditioner and refrigerator were shown to be in rotten condition although the said articles were in good condition. The subsequent inventory got prepared through the bailiff of this Court proved that the air‑conditioner and the refrigerator etc. were in good working condition. Lastly he submitted that the occupant need not be an owner himself. Even a Chowkidar or any other person may be in possession of the house on behalf of the owner. In this connection he placed reliance on the cases of Mrs. Nema v. West Pakistan and another (PLD 1969 Kar. 3 and 622); Ihsanullah Khan v. N.W.F.P. Government etc. (PLD 1975 Pesh. 182) and Begum Saeeda Afzal v. The Government of Balochistan through the Chief Secretary, Government of Balochistan, Quetta and another (PLD 1977 Quetta 1).

4. On the other hand the learned Standing Counsel who appeared for the respondents urged that by virtue of the provisions of President's Order No.18 of 1980, the Administrative himself was the Provincial Government and not the mere delegatee, hence he could competently delegate powers to the Deputy Commissioner, Islamabad by virtue of the provisions of section 10 of Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1956. The Administrator had issued the notification dated 1‑1‑1981 authorising the Deputy Commissioner, Islamabad Capital Territory to exercise powers of the Provincial Government under sections 3, 4, 5, 6, 7, 8 and 9 of the Act, hence the D.C. was competent under the law to initiate the proceedings to requisition the house and pass the impugned order. In this connection he placed reliance on the case of Master Khusrow Amir Khan Niazi v. Province of Punjab and 2 others (PLD 1975 Lah. 819) and an unreported judgment of this Court passed in Writ Petition Nos. 468 and 482 of 1982. He urged that the house was not in possession of the owner named Ihsan‑ul‑Haq and that he had not come forward to object to the requisition. He submitted that "possession" was a disputed question of fact which could not be gone into by this Court. He added that prima facie the reports made by the Tehsildar etc. showed that the house was vacant. As regards mala fides he submitted that the mala fides had to be specifically pleaded and proved. According to him in the present case the action taken by the authorities was in proper exercise of the powers vested in them. Mr. Muhammad Nawaz Abbasi, learned A.A.-G. adopted the arguments raised by the learned Standing Counsel. Mr. Munir Elahi Qureshi, Advocate, learned counsel for respondent No.2 broadly adopted the arguments raised by the learned counsel for respondent No.1 and emphasized that the house being vacant no notice under section 3 was required to be issued.

5. No doubt, a disputed question of fact requiring some evidence for its decision cannot ordinarily be determined in the exercise of Constitutional jurisdiction. However, the Court can certainly draw its own inferences from the admitted facts and the material placed on the record even in relation to a question of fact. The question as to whether an inference flows or follows from certain facts is a question of law and open to judicial review as held in the case of N.M. Khan and another v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and another (1970 SCMR 158). This Court is not bound by the bare assertion of the Tehsildar Islamabad incorporated in his report, dated 6-3-1991 Annexure R.3 to the effect that the house was lying vacant. In the same report he has referred to the information conveyed by the son of the owner that the house had already been rented out. This information by itself was sufficient to put the authorities on their guard for further probe into the matter to ascertain as to whether the house was rented out and in occupation of any person. However, no effort appears to have been made to ascertain the said fact. Instead, the requisition order was passed in hot-haste on 7-3-1991, although, on that date the petitioner had appeared before the Deputy Commissioner and informed him that he was in possession of the house. The claim of the respondents that after taking over the possession of the house by respondent No.2 on 9-3-1991, the petitioner and his family members forcibly entered the house appears to be totally false. According to the report of the Tehsildar Islamabad dated 9-3-1991 he got keys of the house at 12-30 p.m. from Amir Shehzad son of the owner and deputed A.S.I. Muhammad Younas and three constables namely, Muhammad Safdar, Habib Ullah and Riasat Ali to guard the house at 1-15 p.m. It is not believable that in the presence of the police guard the petitioner could have dared or managed to enter the house as mentioned in the report of the Tehsildar, Islamabad dated 10-3-1991 (Annexure R.5). Moreover, the inventory of the goods prepared by Tehsildar (correctness of which is disputed by the petitioner) at the time of obtaining possession of the house by itself demonstrates that the house was not vacant. The inventory shows that the fans were fitted in all the bed-rooms and the household articles like carpets, deck, iron stand, three air-conditioners (shown as unserviceable) and a fridge (shown in rotten condition) were already lying in the house. The said household articles admittedly belong to the petitioner. The subsequent inventory got prepared through the bailiff of this Court (which was also signed by respondent No.2) showed that the air-conditioners and the Refrigerator were in working condition. This inventory contained almost the whole variety of necessary household articles including a large number of articles not mentioned in the inventory prepared by the Tehsildar, Islamabad. The presence of all these household articles fully establishes that the petitioner was in physical possession of the house when it was requisitioned by respondent No.1. The petitioner and his family members were either forcibly evicted through police (as claimed by the petitioner in para. 8 of the petition) or made to leave the house through intervention of the City Magistrate deputed by respondent No.1 (as stated in para. 8 of the written statement filed by respondents Nos.1 and 2). However, the fact remains that the petitioner was already in physical possession of the disputed premises and was entitled to notice as required under the 4th proviso to subsection (1) of section 3 of the Punjab Requisitioning of Immovable Property (Temporary Powers) Act of 1956. The said notice is mandatory under the law. The requisitioning authority not only failed to issue the mandatory show-cause notice but also failed to allow a period of one month to the occupant to vacate the house. Respondent No.1 appears to have acted in hot-haste in treating the house to be vacant, passing the impugned order in violation of the statutory provision and evicting the petitioner and his family members forcibly. In the circumstances the orders passed and action taken by him smack of mala fides.

6. Adverting to the judgments relied upon by the petitioner's learned counsel the first notable case is that of Mrs. Nema, in which it was held that occupation of premises may be physical as well as interpretative because it could be visible as well as invisible. It is invisible when the possessor stands far away from the object which he possesses but able to prevent encroachment on it if and when it is made. The said case pertained to a building underconstruction which was neither furnished nor ready for residence but contained building material and watched by owner's servants or agent. It was held to be in occupation of the owner for purposes of section 3(1) of the Act. In the present case all the necessary household articles belonging to the petitioner were lying in the house, who on coming to know about the intention of respondent No.1 to requisition the house, at once appeared before him and objected to the requisition. However, he was made to vacate the premises through police force or pressure of the executive authorities. In the case of Ihsanullah Khan, the house was furnished, household goods were kept in some of the rooms and a Chowkidar was said to be present, it was held that the house would be deemed to be in possession of the owner although he did not actually reside therein. In the case of Begum Saeeda Afzal also a Chowkidar and a gardener were left by the owner to look after the house which was requisitioned on the assumption that the house was not in occupation of the owner. The order was declared to be illegal and without lawful authority. The case of Master Khusro Amir Khan Niazi, referred to by the learned counsel for the respondents is distinguishable on facts. In the said case it was found as a fact that neither the petitioner nor his mother was in occupation of the house on the day when the requisition order was passed. The petitioner's mother was actually residing at Lahore. Hence it was held that she could not be deemed to be in occupation and for that reason was not entitled to the issuance of any notice before passing of the requisition order.

7. As regards competence of the Deputy Commissioner, Islamabad, to exercise powers of the Provincial Government under the Punjab Requisitioning of Immovable Property (Temporary Powers) Act, 1956, the arguments raised by the learned counsel for the respondents in this behalf are not devoid of force. However, for the present I am leaving this question open which may be decided in some appropriate case as the impugend order deserves to be struck down on the other grounds, discussed above.

8. For the foregoing discussion, the petition is allowed with costs, the impugned requisitioning order, dated 7‑3‑1991, passed by respondent No.l and the subsequent acts/actions taken for obtaining the possession of the disputed i house are declared to be without lawful authority and of no legal effect. Respondent No.2 is further directed to vacate the house and deliver its possession to the petitioner within a fortnight. A.A./M‑22/L Petition accepted