P L D 1969 Karachi 622 (PLP)

(a) West Pakistan Requisition of Immovable Property (Temporary Powers) Act (VII of 1956), S. s (1), provisos 3 & 4

Word "occupation" occurring in provisos‑Not used in artistic sense or as technical term but, in simple, dictionary sense of `to hold possession of', `to reside in', `to dwell', `to stay'. Shorter Oxford English Dictionary, 1964 Edition ref. "Possession"‑Connotation‑Kinds. Possession can be physical or actual as well as interpretative, because it can be visible as well as invisible. It is invisible when the possessor stands far away from the object which he possesses but is able to prevent encroachment on it, if and when they are made, it is similarly invisible when the possessor reserves an object for a particular use and allows it to remain unutilised till the purpose of the reservation. (c) West Pakistan Requisition of Immovable Property (Tem porary Powers) Act (VII of 1956), S. 3(1), provisos 3 & 4

Section 3 does not specify purpose or manner of occupation‑Appli cable to all cases of building in occupation‑Purpose and manner of occupation immaterial ‑Building under construction, neither furnished, nor ready for residence but containing building material and watched by owner's servants or agent‑Neither ready for occupa tion nor occupied as residence but used by owner for purpose most suitable under circumstances, viz. completion for residence‑Building, as such, held, occupied by owner for purposes of S. 3 (1). The petitioner was in full possession and control of the bungalow through her servants or agents. It was structurally capable of being occupied as a dwelling house but was not furnished and kept ready for residence because its completion, to the owner's satisfaction, was awaited. It can, therefore, be held that it was not occupied as a dwelling house, nor was it yet ready for residence according to the notions of the owner who was complet ing it by giving to it the last touches. No exception can be taken ‑to this attitude of the owner because there was no reason for her to make hurry in occupying it, and there was no unreason ableness on her part in completing the bungalow to her satisfaction before occupying it. Some building material and a Chowkidar were at the site when its possession was taken by respondent. Since the bungalow was considered to be still not ready for occupation as a residence, it was being used by the owner for the purpose which was the most suitable under the circum stances, namely, its completion for residence. It was, therefore, not occupied as a dwelling house, but was occupied as a house under construction. The law does not specify the purpose or manner of occupation. Section 3 of the Requisitioning of Immovable Property (Temporary Powers) Act, 1956 applies to all cases in which "a building is in occupation of any person" irrespective of the purpose and manner of occupation. The nature of occupation, as explained above, cannot be independent of the nature and condition of the tenement that is occupied, nor can it be independent of the purpose for which the tenement may be reasonably used. A house under completion can, therefore, be expected to be occupied as such and not, ordinarily, as a dwelling house. Mayor & c of Southend‑on‑Sea v. White 83 L T 408; Gage v. Wren 87 L T 271; The grog v. Melladew (1907) I K B 192; Beetham and another v. Trinidad Cement Ltd. (1960) I All E R 568; R. v. St. Pancras Assessment Committee (1877) 2 Q B D 581; Associated Cinema Properties Ltd. v. The Mayor Aldermen & Councillors of the Metropolitan Borough of Hampstead (1943) 2 All E R 696 and Mayor Aldermen & Councillors of the Metropoli tan Borough of Hampstead v. Associated Cinema Properties Ltd. 1944 All E R 436 rel. (d) West Pakistan Requisition of Immovable Property (Temporary Powers) Act (VII of 1956), S. 3 (I), provisos 3 & 4 "

Occupation"‑--Dwelling alone would not constitute "occupation"-- Test Beneficial use of premises‑Whether parson claiming occupa tion has such use of premises as its nature would admit‑House under construction‑Under beneficial use of owner‑Owner cons tructing premises for personal residence but not taking up residence due to non‑completion‑Cannot be evicted under S. 3 but is entitled to protection under proviso

4. Assent cannot be given to the view that "dwelling" alone would constitute "occupation" of a premises. This test of occupation would not work in the case of commercial buildings. It may be noted that under the third proviso to section 3 of the Act, notice of requisition has to be given to occupant of the building proposed to be requisitioned, and this building may be either residential or commercial. But if dwelling is accepted as constituting occupation, then no notice of requisition would even be necessary in case of commercial buildings for, generally, such buildings are not used as dwelling places. Nor will it be neces sary to allow a person using such building for his business, the period of one month to vacate the building, which is the require ment of the proviso. The correct test to determine occupation is not dwelling in, but beneficial use of, the premises. What is to be ascertained, is, whether the person claiming occupation of any premises has such use of the premises as its nature would admit. The only use an incomplete house can be put to is completion of its construction. This is the only use which the nature of such a house would admit. In so far as the owner of such a house is completing its construction, he has the beneficial use of the said house. The powers of requisition under the Act are not intended to be used for evicting an owner from his residential house. The fourth proviso to section 3 clearly stipulates that no owner in occupation of a residential house shall be required to vacate it. In the face of this clear provision, the proposition that an owner who constructs premises for his personal residence, but has not yet taken up dwelling therein due to the construction being incom plete, is not entitled to the protection under the fourth proviso is not acceptable. Wolfe v. Clerk of Surrey County Council (1905) 1 K B 439; Mayor of Southend‑on‑Sea v. White 83 L T 408; Gage v. Wren (1.902) 87 L T 271: and Rex v. Melladew (1907) 1 K B. 192 ref. (e) West Pakistan Requisition of Immovable Property (Tem porary Powers) Act (VII of 1956), S. 3(1), provisos 3 & 4‑--Word "occupation" in S. 3‑--More restricted in meaning than "possession"

‑Word used in sense of physical possession and control‑Principle of beneficial occupation‑Cannot be utilised to determine question of occupation of incomplete dwelling house. In the context in which the word "occupation" has been used, it is more restricted in meaning than possession, used in the wider sense, and has the sense of physical possession and control, as its primary element though actual presence on the premises may not be its necessary feature. Jowitt's Dictionary of English Law, Vol. 11, 1959 Edn. New English Dictionary; Mayor of Southend‑on‑Sea v. White 83 L T 408; Rex v. Melladew (1907) 1 K B 192; Gage v. Wren (1902) 87 L T 271; Wofe v. Clerk of the County Council of Surrey (1905) 1 K B 439; Rex v. Pancras (1877) 2 Q B D 58k and Crowther Smith v. New Forest Union (1886) 90 R R A 311 ref. Begum Tahira Fazal Ahmad v. Home Secretary, Government of West Pakistan P L D 1966 Lah. 466 distinguished. (f) West Pakistan Requisition of Immovable Property (Tem porary Powers) Act (VII of 1956), S. 3 (1), provisos 3 & 4‑--House under construction

‑Under possession of owner but not in his occupation‑Question of occupation normally arises when house ready to be moved into--‑Intention to occupy ‑ Material factor. A person may start building a house for his own residence, but though he may initially intend to reside therein, he may change his mind when the house is ready for occupation. While the house is being built, he is in its possession, but not in its occupation. It is when the house is ready for him to move into it that the question of its occupation would normally arise. It is at that time that his intention to occupy it is a material factor. His furnishing it or keeping it ready for his own habitation or occupation and refusing to let it out is evidence of his intention to reside therein himself and excludes the possibility of its being furnished for being let out. In the absence of actual occupation, it is the shifting of his belongings to the house, the furnishing of the house or keeping it ready for habitation or occupation through servants or keeping it locked with the intention of occupying it himself which is determining factor for deciding the question of its occupation. Attaullah Sajjad, Additional Advocate‑General, Muhammad Halim, Assistant Advocate‑General and Usman Ghani for Respon dent No.

2. JUDGMENT NOORUL ARFIN, J.‑--This petition under Article 98 of the Constitution seeks to challenge the order dated 11th January 1966, by which the Commissioner of Karachi requisitioned bungalow No. 17/B, Muhammad Ali Housing Society, Karachi under section 3(1) of the West Pakistan Requisition of Immovable Property (Temporary Powers) Act, 1956 (VII of 1956) (herein after referred to as the Act). The impugned order was made on the letter dated 14‑12‑65 written to the Commissioner by the Additional Advocate‑General of West Pakistan, Karachi, requesting that suitable premises be requisitioned for him at Karachi to which place he had to shift from Hyderabad to take up the duties of his office, and pointing out that in the absence of such accommodation, it was not possible, for him to pay "undivided attention" to his "arduous duties".

2. The petitioner made a representation in writing to the Commissioner on 15th January 1966, stating that the bungalow was still under construction and was being built for the petitioner's personal residence at considerable investment. It was pointed out that the order of requisition had been made without prior notice to the petitioner. The petitioner also complained that the bungalow after her goods and belonging having been removed therefrom and put on the road, had been sealed on 11‑1‑1966 and a Police constable was posted at its gate to prevent her from having access to her own property, even though the order of requisition had not been served on her. It was stated at the Bar by the learned Additional Advocate‑General that the Commissioner's Order on this representation was "seen file".

3. The petitioner then moved this Court on 29th January 1966, under Article 98 of the Constitution. The above allegations were repeated in the petition and it was further alleged that forcible possession of the bungalow had been taken under the requisition order by breaking open the locks of the bungalow. The petitioner maintained that the bungalow could not be requi sitioned as it was still under construction and the petitioner was in occupation thereof.

4. By order dated 2‑2‑1966, this Court called for a report from the respondents. The report was submitted under the signature of Mr. M. M. A. Qureshi Assistant to the Commissioner of Karachi. The respondents defended the order of requisition by stating that the bungalow was vacant and was being shown to people, including the Additional Advo cate‑General, for the purpose of being let out on rent. It was admitted that neither any prior notice, nor the order of requisi tion, was served on the petitioner. The allegation regarding the sealing of the bungalow was accepted as correct. There was only a lame denial of the breaking‑open of the lock, in which connection it was stated that the lock "could be in damaged condition prior to the occupation of the house".

5. The petitioner in her affidavit‑in‑rejoinder denied that she intended to let out the house on rent and repudiated the allegation that the house had been shown for this purpose to the Additional Advocate‑General. It is to be noted that the Additional Advocate‑General himself has not filed any affidavit or statement in the present proceedings in support of the respon dents' allegations.

6. The petitioner's learned counsel, Mr. Fakhruddin, dwelt at length on the facts narrated above to suggest that the procedure adopted in requisitioning the bungalow was so arbitrary, wanton and high‑handed as to render the order of requisition invalid. But I do not think it is necessary to examine this contention, or the further point made by the learned counsel, that the requisition has become invalid as no steps have so far been taken by the respondents to obtain determination of the amount of compensation payable to the petitioner and, contrary to the requirement of section 7 of the Act, no amount has uptil now been deposited in the Court. I am of the view that the questions which require determination are whether the bungalow in question could be made the subject of requisition under the Act, and whether the conditions prescribed by the Act for requisi tion have been complied with.

7. The material provision of~ Act is section 3, which reads as follows:‑ "

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, 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 a cantonment within the meaning of the Cantonments Act, 1924, shall be requisitioned under this Act. Provided further that no building which is an evacuee pro perty 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 requisitioning 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 a residential house shall 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, affixa tion 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 suffi cient 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."

8. It will be seen that under the fourth proviso, a residential house in occupation of its owner cannot be requisitioned, and, under the third proviso, two weeks' notice is required to be given to an occupant before making the order of requisition and, thereafter, the occupant is entitled to a period of one month to vacate the premises. The present enquiry, therefore, resolves itself into ascertaining whether the bungalow in question was in the owner's occupation.

9. The expression "occupation" has not been defined in the Act. According to Jowitt (The Dictionary of English Law Vol. 2, 1959 Edition) the word means "possession" or the act of taking possession and is the same thing as actual possession. It is further stated that in its "usual sense, occupation is where a person exercises physical control over land." The learned Additional Advocate‑General, Mr. Attaullah Sajjad, referred to Wolfe v. Clerk of Surrey County Council ((1905) 1 K B 439) wherein Lush J.'s following observations in Reg. v. St. Pancras (2 Q B D 581) have been cited with approval "Occupation includes possession as its primary element; but it also includes something more. Legal possession does not of itself constitute occupation." It was accordingly urged that actual dwelling in the disputed bungalow could alone constitute occupation, and as it was the petitioner's own case that the bungalow was still under construc tion, and no certificate had been obtained under Article 68 of the Karachi Development Authority Order, 1957 permitting the occupation of the bungalow, it could not be said that the petitioner was dwelling therein or was in occupation thereof. But I cannot assent to the view that "dwelling" alone would constitute "occupation" of a premises. This test of occupation would not work in the case of commercial buildings. It may be noted that under the third proviso to section 3 of the Act, notice of requisition has to be given to occupant of the building proposed to be requisitioned, and this building may be either residential or commercial. But if dwelling is accepted as con stituting occupation, then no notice of requisition would even be necessary in case of commercial buildings for, generally, such buildings are not used as dwelling places. Nor will it be necessary to allow a person using such buildings for his business the period of one month to vacate the building, which is the requirement of the proviso. The test proposed by the learned Additional Advocate‑General would also fail in the case of residential premises, such as a cottage at Hwakes Bay, Karachi, which is left furnished and ready for the owner's occupation whenever he pleases to go to it. It was of such a case that Lush J. observed, in the case cited above, that the owner is occupier of the house, though he may not reside in it one day in a year. Reference may be made to Mayor of Southend‑on‑Sea v. White (83 L T 408). The respondent in this case used to remove his business stocks from the premises in question at the end of every summer. The premises remained closed until the beginning of the next summer. The Queen's Bench Division held that the respondent was in occupation of the premises during the interval the same remained closed.

10. For the resolution of the problem before us, some guidance may be had from two English decisions Gage v. Wren ((1902) 87 L T 271) and Rex v. Melladew ((1907) 1 K B 192), The following observation. of Darling, J. in Gage v. Wren may be noted:‑ "It seems to me that if we want to find out whether the respondent was in beneficial occupation or not, we are entitled to consider what is the natural use of this house in the hands of the respondent." The second case, Rex v. Melladew, is a decision of the Court of Appeal, Collins M. R. held in this case that occupation would necessarily vary with the nature of the subject‑matter and that acts necessary to establish occupancy of a dwelling house may be very different from those which night be required to establish occupation of a non‑habitable hereditament. Farewell, L. J. made the following observation in the same case:‑ "Whether premises are or are not occupied is in many cases a mixed question of fact and law; there may be visible physical occupation by the person rated or his servant, or his goods and chattels, and such occupation may be of part of an undivided tenement; . . . . the nature of the property and its mode of use must be considered in each case. The test, in the case like the present, of business premises, appears to me to be. Has the person to be rated such use of the tenement as the nature of the tenement and of the business connected with it renders it reasonable to infer was fairly within his contemplation in taking or retaining it."

11. I think that the correct test to determine occupation is not dwelling in, but beneficial use of, the premises. What is to be ascertained, is, whether the person claiming occupation H of any premises has such use of the premises as its nature would admit. The admitted position in the present case is, that the disputed bungalow was still under construction when it was requisitioned on 11th January 1966. The petitioner has stated in paragraph 5 of her petition that the following works still remained to be completed:‑ (a) Sewerage connection between the septic tank and the main; (b) Polishing of tiles; (c) Final paint coating in the interior; (d) Gas connection; and (e) preparation of lawn. The report submitted by the respondents to this Court admits in paragraph 5 that the bungalow was incomplete in respect of these works. The Karachi Development Authority had not yet given completion certificate permitting the petitioner to take up residence in the bungalow. Therefore, on the date of the requisition, the bungalow could not be actually used as a dwelling house. But then can it be said that the bungalow was unoccupied or completely vacant. The only use an incomplete house can be put to is completion of its construction. This is the only, use which the nature of such a house would admit. In so far as the owner of such a house is completing its construction, he has the beneficial use of the said house.

12. Accordingly, I have to come to the conclusion that the petitioner was in occupation of the disputed bungalow on 11th January 1966, when it was requisitioned by the impugned order. I am strengthened in this conclusion by the fact that the peti tioner's goods and belongings were lying in the bungalow and her Chowkidar was residing there. In these circumstances, the house could not be requisitioned, nor could the petitioner be required to vacate it. The seizure and sealing of the house is in contravention of the fourth proviso to section 3 of the Act. So far as no notice of the proposed requisition was given to the petitioner and she was not given any time to vacate the bungalow, there has also been contravention of the requirements of the third proviso to this section.

13. I may here state that the powers of requisition under the Act are not intended to be used for evicting an owner from his residential house. The fourth proviso to section 3 clearly stipulates that no owner in occupation of a residential house shall be required to vacate it. In the face of this clear provision, I cannot accept tile proposition that an owner who constructs premises for his personal residence, but has not yet taken up B dwelling therein due to the construction being incomplete, is not entitled to the protection under the fourth proviso. The respon dents have not succeeded in showing that the house in question was intended to be let out on rent by the petitioner, and in the absence of evidence to this effect, the petitioner's affirmation that she was building the house for her own residence has to be! accepted.

14. For the above reasons, I accept this petition and set aside the order of requisition dated 11th January 1966, as being without lawful authority and direct that vacant possession of bungalow No. 17/B, Mohammad Ali Housing Society, Karachi be forthwith delivered by the respondents to the petitioner. The petitioner will have costs of these proceedings. A. MAHMOOD, J.‑--I regret that I am unable to agree with the order proposed to be delivered by my learned brother Noorul Arfin, J. in this case.

2. In the instant case, Mrs. Nema petitioner, by this petition under Article 98 of the Constitution of Islamic Republic of Pakistan challenges the order of the Commissioner dated the 11th of January 1966, requisitioning her newly‑constructed bungalow No. 17‑B. Muhammad Ali Housing Society, Karachi, under section 3 (1) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 (VII of 1956), (hereinafter referred to as the Act), for the residence of the Additional Advocate‑General, West Pakistan, Karachi, on his application of the 14th of December 1965.

3. On the making of the order of requisition the bungalow was sealed on the 11th of January 1966, and a police constable posted to guard it. The petitioner made a representation to the Commissioner on the 15th of January 1966, stating that as the bungalow was still under construction and was being built for the petitioner's personal residence, it should not, have been requisi tioned. It was also objected that the order of requisition was made without prior notice to the petitioner. She also complained that some of her belongings had been put on the road. On inquiry, her learned counsel stated in Court that the belongings mentioned in the representation were building material and paint etc. Her representation is said to have been filed. The building has since been occupied by the Additional Advocate‑General.

4. The petitioner's contention that the house was meant for her own residence was denied on behalf of the respondents and it was averred that it was being shown to various people including the Additional Advocate‑General for purposes of being let out on rent, but an affidavit from the Additional Advocate‑General in support of the averment was not filed in Court. It was admitted that no prior notice was given to the petitioner, that the order of requisition was not served on her, and that the bungalow was sealed.

5. Mr. Fakhar‑ud‑Din, learned counsel for the petitioner, contends that the house could not be requisitioned firstly for the reason that it was an incomplete house and a certificate under Article 68 of the Karachi Development Authority Order, 1957, had not been obtained, permitting the occupation of the bungalow, secondly, that it was meant for her own residence, thirdly, because she must be deemed to be occupying it, and fourthly, because a notice of requisitioning was not served on her.

6. The material provision of the Act is section 3, which provides as follows: "

3. Requisitioning of property.‑(1) If in the opinion of the Provincial Government it is necessary or expedient to requisi tion any building for the use of any of its officers, 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 requisition: Provided that no building used for the purpose of religious worship or imparting education and no building situated in a cantonment within 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 requisitioning 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 a residential house shall 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 mans 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." This section provides that if a building is in occupation of a person no order of its requisition shall be made unless a notice of at least two weeks is given to the occupant to show cause against the requisitioning and secondly that no owner in occupation of a residential house shall be required to vacate it. The question, which, therefore, falls for determination is whether the building was in occupation of any person, so that a notice was necessary, and secondly whether it was in occupation of the owner, who could not be required to vacate it.

7. The word "occupation" has not been defined in the Act. According to my learned brother in Jowitt's Dictionary of English Law, Volume II (1959 Edition), the word means "possession" or "the act of taking possession and is the same thing as actual possession. According to New English Dictionary, it means "actual holding of possession, specially of a place or of land". In the context in which the word "occupation" has been used, it is more restricted in meaning than possession, used in the wider sense, and has the sense of physical possession and control, as its primary element though actual presence on the premises may nor be its necessary feature.

8. The learned counsel for the petitioner relied on Mayor of Southend‑on‑Sea v. White (83 L T 408) for contending that the landlord was in occupation. This was a case in which premises had been taken on lease by the respondent for fourteen years at an annual rent, and he had a right to carry on his business there. The shop used to be closed during winter months. When the summer ended, the goods were removed from the shop, but certain things were left behind, and all that was necessary to carry on the business, with the exception of the stock itself, was kept on the premises, and by the terms of the agreement, the respondent was bound to keep the place in good repair and hand it over in good repair. It was held in these circumstances that the respondent was in occupation even during winter.

9. In Rex v. Melladew ((1907) 1 K B 192) a warehouse belonging to a ware houseman was used by him for the purpose of being let as a whole, or in separate floors or rooms, for the storage of goods, or of receiving goods for storage at a rent per ton or per package per week. The warehouse having been rated to certain rates made for a city, the warehouseman during the currency of these rates, gave notice to the rating Authority that he had gone out of occupation of the warehouse. At that time there were no goods in the warehouse, and it was closed; and the warehouseman had given notice to a company, which supplied water for the purposes of the hydraulic lift on the premises, to cut off the water supply, which they did, and had removed the weights, scales and trucks, used for weighing and trucking goods on the premises, to an adjoining warehouse, which belonged to him. The water supply could, however, at any moment be restored on notice to the company, and the weights, scales and trucks brought back, whenever required; and the warehouseman was still prepared to receive applications for the hire of storage room in the warehouse, and ready and willing to reopen and receive goods into it, provided that enough goods were offered to fill half of the whole capacity of the warehouse that being the smallest quantity for which he thought it worth‑while commercially to open the warehouse; and a bill was posted on the premises stating that they were to let. It was held that "there was no cessation of occupation of the warehouse by the warehouseman, and he, therefore, was liable for payment of the rates in respect of the period during which the above state of things continued".

10. In Gage v. Wren ((1902) 87 L T 271) the respondent took a lease of a house and furnished it for the purpose of receiving boarders. She did not reside in the house, and in December 1900, she removed from the house all her furniture and effects except certain fixtures, fittings, and things, which she had hired from the previous tenant. She intended to return to the house in the following summer, and in May, she returned and re‑furnished the house, but with the exception of the fittings and things left therein, the house was empty from December 1900 to May 1901. The respondent claimed exemption from a general district rate for the period of the vacancy on the ground that during that period the house was unoccupied within the meaning of section 211, subsection (2) of the Public Health Act, 1875. It was held that the proper inference of law was that the respondent had the beneficial occupation of the house during the whole of the period, and was not, there fore entitled to the exemption, but was liable to the rate for the whole period. The reason according to Lord Alverstone C. J. was that she intended to and might have come back to the house and she made no attempt whatever to dispose of it, nor was there any evidence at all that she meant to go out of the beneficial occupation of the house during the year. According to Lord Darling, J. the manner of occupation and of carrying on the business, which was contemplated by the respondent, was that the business would best and most profitably be carried on if she were there during the busy summer season, and if she went away and shut the house up during the unprofitable period, and thereby diminished the expenses in every way during the rest of the time, there was a bene ficial occupation of the house all the time, since she was the tenant with an intention to use the house in the profitable season, and to reduce the expenses in this way during the unprofitable season. "The vicar has, no doubt, the legal possession of the freehold. He has even against the churchwardens, the right to the keys of the church: Ritchings v. Cordingly 1868 L R 3 A & E

113. But to create an occupation there must be an actual as well as a legal possession." In coming to the above conclusion, the learned Judge relied on the observations of Lush J. in Rex v. Pancras ((1877) 2 9 B D 581) " `Occupation' includes possession as its primary ele ment, but it also includes something more. Legal possession does not of itself constitute an occupation. The owner of a vacant house is in possession, and may maintain trespass against any one who invades it, but as long as be leaves it vacant, he is not rateable for it as an occupier. If, however, he furnishes it and keeps it ready for habitation whenever he pleases to go to it, he is an occupier, though he may not reside in it one day in a year." Lord Eshar M. It. in Crowther Smith v. New Forest Union ((1886) 90 R R A 311) held that "legal possession is not enough to make the appellant an occupier assessable to the poor rate".

12. The first two are cases of occupation of business premises, but in these cases there was actual occupation of business premises, and while in the first cited case it was inferred from leaving on the premises certain things necessary for the business that there was its continued occupation by the lessee even during winter, in the second case it was held that there was no cessation of occupation. The term "beneficial occupa tion" was used in Gage v. Wren which was also a case of a house taken on lease for receiving paying boarders, that is for purposes of business, and if in this context the term was used, as meaning the benefit, which the lessee intended to derive from the premises, even by keeping it vacant which indicated his occupation of the premises, the term can have no application to the case in hand, where the building has not yet been occupied, and where it has not been kept un occupied in order to derive any benefit therefrom. This term was used respecting a leased business premises and it appears to be inapplicable to the case of an incomplete dwelling house under construction for residence of the owner. It has been pointed out by Lord Collins M. R. in Rex v. Melladew that:‑ "It is important to remember in dealing with the ques tions of liability to pay rates, that occupation, which is the basis of liability, necessarily varies with the nature of rate able subject‑matter. The acts necessary to establish occu pancy of a dwelling house may be every different from those, which might be required to establish occupation of a non‑habitable hereditament." With respect, I am unable to agree with my learned brother that the principle of beneficial occupation can be utilised in this case to determine the question of occupation of the incomplete dwelling house in question, as Lord Farwell, J. also pointed out in the same case that rateable property has many varieties, and in the case of a dwelling house, the normal use was personal occupation, which made it rateable.

13. The principle derivable from the above cited cases is that ownership is distinct from occupation, and legal posses sion is not enough to make the owner an occupier. There is a distinction between an owner of a dwelling house, and its lessee. Lush J. held in Rex v. St. Pancras that legal possession did not itself constitute occupation, and the owner of a vacant house was merely in possession, but he was not liable to rates as long as he leaves it vacant, but this may be otherwise in the case of a lessee. The distinction is brought out by Lord Collins M. R. in Rex v. Melladew, when he states:‑ "I am aware that ownership is distinct from occupation and that an owner does not make himself rateable by trying to let a house which he has ceased to inhabit. But the principle involved in that proposition does not apply to the case of tenant of a vacant warehouse, who retains control over it for the purpose of letting storage room. In the case of the owner seeking to find a tenant in the case put, no assertion of occupation by him is involved."

14. As observed by Lord Farwell, J. in Rex v. Melladew the question whether the premises were or were not occupied is in many cases a mixed question of fact and law, there might be visible physical occupation by the person rated or his servant, or his goods and chattels, and such occupation might be of a part of an undivided tenement, but these do not exhaust all the cases of occupation. Lush, J. in Rex v. St. Pancras observed in respect of a vacant house that its owner was in possession, but possession did not itself consti tute occupation, and he was not rateable for it as an occupier, but if he furnished it and kept it ready for his habitation, whenever he pleased to go into it, he was an occupier, though he might not reside in it one day in a year. Therefore, in those cases, where the owner furnishes a house or keeps it ready for his habitation, whenever he likes to occupy it he would be in occupation. He keeps it for his habitation by having it cleaned up, by sending his servants to occupy the house, and by refusing to let it out on lease to persons desir ing to take it on rent.

15. A person may start building a house for his own' residence, but though he may initially intend to reside there in, he may change his mind when the house is ready for occupation. While the house is being built, he is in its possession, but not in its occupation. It is when the house is ready for him to move into it that the question of its occupation would normally arise. It is at that time that his intention to occupy it is a material factor. His furnishing it or keeping it ready for his own habitation or occupation and refusing to let it out is evidence of his intention to reside therein himself and excludes the possibility of its being furnished for being let out. In the absence of actual occu pation, it is the shifting of his belongings to the house, the furnishing of the house or keeping it ready for habitation or occupation through servants or keeping it locked with the intention of occupying it himself which is determining factor for deciding the question of its occupation. This is clearly borne out by the observation of Lord Collins M. R. in Rex v. Melladew that‑ "It is, I think clear from a comparison of many autho rities that the intention of the alleged occupier in respect to the hereditament is a governing factor in determining the question whether rateable occupancy has been established." In support of this conclusion Lord Collins A. R. cited Blackburn, J. in Allan v. Overseers of Liverpool (L R 9 Q B 1808 at p.192) that‑ "We must see what was the intention of the parties". In the case of an owner who has put up his house to let or has placed or left furniture in it, he cited Christian, J. who said:‑ "The presence of furniture has its chief bearing on the case with reference to the animus habitandi . . . . . If a man leaves furniture in a house, or sends furniture to a house, the presumption in favour of animus revertandi or habitandi."

16. In the light of the above observations, must be decided the question of occupation of the house in dispute. The facts alleged are that the petitioner constructed the house intending to reside therein, but when it was requisitioned, it was not yet completed or ready for occupation, because sewerage and gas connections had not yet been obtained, polishing of the tiles had to be done, a final coat of paint had to be applied to the rooms, a lawn had to be laid, and above all the petitioner had not yet obtained a certificate from the Karachi Development Authority under Article 68(3) of the Karachi Development Authority Order, 1957, without which she could not occupy it. She had not actually occupied it so far, and she had its legal possession, but not occupa tion.

17. I am willing to accept that the petitioner intended to reside in the house, and it is not proved that she showed the house to prospective tenants for purposes of letting it out on rent, as an affidavit from the Additional Advocate General or other person to the effect that he was shown the house for being let out, has not been produced on the record. It is also established that the petitioner had a Chaukidar living on the premises, and that she had some building material lying in the house (as was claimed before us in Court), when it was requisitioned, but it is not a case in which she had sent her household effects furniture, belon gings, or her servants to the house as a step towards its occupation. The house was not yet completed or made ready for habitation, whenever the petitioner pleased to go into it. She had not even obtained the necessary permission from the Karachi Development Authority to be able to occupy it. There still remained certain vital steps to be taken which stood in the way of her occupying it. She had not ever occupied it personally and although she may have had the intention of residing in it hereself, she cannot be held to be occupying it for the purposes of section 3 of the Act. The order cannot, therefore, be held to be invalid on the ground that the owner is being required to vacate it or that no notice to the occupier was given, since there was no person occupying it.

18. I find no force in the contention that as the buil ding was not complete in all respects, it could not be requisi tioned, for the word "building" is defined in section 2 (1) of the Act, as "any building or part of a building", and I see no reason why an incomplete building could not be requisi tioned under the Act.

19. On behalf of the respondent reliance was placed on Begum Tahira Fazal Ahmad v. Home Secretary, Government of West Pakistan (P L D 1966 Lah. 446) but as in this case the owner was negotiating for its lease, he could not be said to occupy the house and the learned Judges were justified in holding, I say so with great respect, that the order of requisition was not bad, because a notice of requisition was not served on the occu pier, since it was unoccupied and that the owner could not be made to vacate it, since the owner was not occupying.

20. The Act is intended to afford protection against requisition of a residential house in the occupation of the owner. It cannot be requisitioned if he occupies it, but there is no such protection respecting a house, which has been rented out or is intended to be rented out and is not occupied by the owner. Unfortunately, the test of occupation laid down above, is likely to cause hardship to the owner, if a house, which he intends to reside in, is requisitioned before it is actually completed, and can be or is occupied by him, but if it is the correct test, it is for the Legislature to amend the law, or for the executive, and not the Court, on the representation by the owner, to remove the hardship. I am inclined to agree with the counsel for the petitioner that the order of requisitioning of the building causes an undue hardship to the petitioner, and that, in consequence, it is necessary for the competent Authority to consider the de requisitioning of this house and the requisitioning of another house for the residence of the Additional Advocate‑General, Karachi.

21. For the reasons stated above, though I would dis miss this petition, I would leave the parties to bear their own cost. QADEERUDDIN AHMED, J.‑‑This petition made under Article 98 of the Constitution was placed before me under an order of the previous Senior Judge, because the Division Bench which heard it was divided in opinion and had referred the case to the Senior Judge‑ "for entrusting it to another learned Judge for decision." The learned Judges, who made the reference, have written separate judgments, but the Bench has not stated the point on which they have differed. Counsel for the parties have taken the stand that the difference of opinion took place upon the following points only. Whether the bungalow in dispute, which at the time of its requisition was under completion, can, for purposes of sub section (1) of section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 be said to have been occupied by its owner or not? If the answer to the above question be in the negative, then the next question for decision will be Whether the bungalow could be requisitioned?

2. Counsel for the parties have agreed that this petition must be accepted if the finding is that the owner could be and was in occupation of the bungalow, otherwise it will be neces sary to decide further whether it could be at all requisitioned or not. "Both applicant and her husband who appeared before me this morning state that the house requisitioned is their only house and that they have assured me that they are living in a rented flat and they have no other house in Karachi. In the circumstances I should like to have the comments of Qazi, the person for whom the house has been requisitioned, urgently." On the 16th of January 1966, the Additional Advocate‑General, West Pakistan commenced occupation of the bungalow by sending his furniture into it and completely occupied it on the 18th of January 1966. On the 29th of January 1966, the petitioner submitted her petition to this Court under Article 98 of the Constitution.

4. The above facts are not in dispute, counsel for the petitioner has informed me that the order by which the bungalow was requisitioned was criticised before the Division Bench on the following grounds:‑ Firstly, in terms of the third proviso to subsection (1) of section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, the bungalow was in occupation of the petitioner; therefore, she was legally entitled to a prior notice under the third proviso to the subsection; Secondly, in terms of the fourth proviso to the said sub section, the petitioner being in occupation of her own bungalow could not be ordered to vacate it; Thirdly, the bungalow was incomplete and legally incapable of being occupied, because no permission for occupying it had been granted in terms of clause (3) of Article 68 of the Karachi Development Authority Order, 1957. One of the learned Judges who constituted the Bench, has held that the circumstances of this case did not disclose that the ingredients which constitute `occupation' of a building were existing and the other learned Judge has held that they did exist. On the answer to the question whether she was in occupation of the bungalow or not, depends the answer to the query whether prior notice to her was necessary or not.

5. In order to give answers to the questions which have been reproduced above, I should firstly refer to the relevant legal provisions. One of them is subsection (1) of section 3 of the West Pakistan Requisition of Immovable Property (Tempo rary Powers) Act, 1956. It is as follows:‑ "3.‑(1) If in the opinion of the Provincial Government it is necessary or expedient to requisition any building for the use of any of the office or offices of the Central Govern ment, the Provincial Government or any corporate body estab lished by or under the authority of the Central Government or the Provincial Government, 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 a cantonment within 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 requisitioning 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 occupations of a residential house shall be required to vacate it." There is not definition of the word "occupation" in the above mentioned Act, nor is that word defined in the Karachi Develop ment Authority Order, 1957 (hereinafter referred as K. D. A. Order) but in Article 68 of the K. D. A. Order there is a provision that a building cannot be legally occupied before its erection or re‑erection is approved and permission for its occupa tion is granted by the Authority. The relevant provision is as follows: "

68. Completion Certificate and permission to occupy or use building.‑(1) Every person who‑ (i) makes or extends any excavation in a controlled area; (ii) erects or re‑erects any building ; or (iii) makes any material external alteration in or addition to any existing building; or (iv) constructs or re‑constructs any projecting portion of a building in respect of which the Authority is empowered under Article 88 to enforce an alteration or demolition or is empowered to give permission to construct or re construct it; shall within one month of the completion of the work deliver to the Authority notice in writing of such completion and shall give to the Authority all necessary facilities for the inspection of such work. (2) After the receipt of the said notice the Authority shall promptly depute an officer to inspect such work and after such inspection, either approve or disapprove the building for occupancy or take such further order as it may decide. (3) No person shall occupy or permit to be occupied any such land, building or use or permit to be used any part affected by the re‑erection, of such building until the per mission referred to in clause (2) has been granted in the prescribed manner." In this case, it is admitted that no such permission was granted and an attempt was made by counsel for the petitioner to use its absence in support of his contention that the premises in dispute could not be requisitioned because, he argued, it was neither a building nor a part of a building but au incomplete unit.

6. Article 68 of the K. D. A. Order does not appear to be decisive one way or the other, because anybody who occupies a building before its completion or before the approval of its erection or re‑erection or without the requisite permission to occupy it, may expose himself to the legal consequences of a wrongful act, but it does not follow from it that his possession and use cannot be treated as occupation at all. Clause (3) of Article 68 of the K. D. A. Order itself contemplates possibility of illegal occupation.

7. The contention that the bungalow in dispute was not a building and could not be treated as part of a building because nothing which does not exist can have parts to it, is not very difficult to meet, because in this argument it is presumed that a part of a building can exist only if the building of which it is a part, is complete. But this is not logically correct, because an incomplete building can also have parts to it. A building is defined in section 2 (1) of the West Pakistan Requisition of Immovable Property (Temporary Powers) Act, 1956 as under:‑ " `Building' means any building or part of a building and includes any land, godown or outhouses attached to it." The above language does not make it necessary that before there is part of a building, there must be a complete building. The reason is that an incomplete building is also a building although on a classification of buildings into complete and incomplete, it will fall under the latter category. The bungalow could, there fore, be requisitioned.

8. It was admitted in this case that the bungalow needed some work to be done on it, and that the owner was waiting for that work to be done before moving into it. There was a Chowkidar of the owner who kept a watch on the bungalow and building material belonging to the owner was also on the site. The deficiencies that were existing in the bungalow are described in paragraph 5 of the petition as follows: "(a) Sewerage connection between the septic tank and the main had not been obtained from the Society. (b) Polishing of tiles had not been undertaken. (c) Final paint coating in the interior had not been done. (d) Gas connection had not been obtained. (e) Lawn was not ready." The stand of the respondents, in paragraph 6 of the counter -affidavit of the Overseer of P. W. D., is that‑ "para. No. 5 of the petition as stated is not correct. The bungalow was structurally complete and it was fit for occupation. The alleged deficiencies in the amenities were no bar to requisi tioning the property." The above stand of the respondents must when read with para graph 5 of the petition, be held to be correct. This is an additional reason for coming to the conclusion that the bungalow could be requisitioned.

9. The above discussion is, however, no answer to the question whether the owner was in occupation of the bungalow or not. This question cannot be answered without determining the meaning of the word `occupation', which occurs in the 3rd and 4th provisos to subsection (1) of section 3 of the West Pakistan Requisition of Immovable Property (Temporary Powers) Act, 1956. It is a simple word and has not been used in an artistic sense or as a technical term, but an analysis of its essential and associated meaning shows that it can project complex ideas which may assume vastly different forms when seen from different angles. Sometimes they appear to represent entirely different objects but this is the result of our common habit of using words without thinking of their full connotation. I am not referring to the problems of Semantics, which is a branch of learning that deals with the evolution and function of language, but with the assessment of relative validity of several meanings of words for understanding the intention of the Legislature. The Shorter Oxford English Dictionary, in two volumes, reprinted in 1964, gives eight meanings of the word "occupation" running from possession of a territory by conquest to co‑habitation, but the following meaning is relevant for our' purposes "To hold possession of, . . , to reside in, tenant, . . . to dwell to stay." Possession can be physical or actual as well as interpretative, because it can be visible as well as invisible. It is invisible when the possessor stands far away from the object which he possesses but is able to prevent encroachment on it, if and when they are made, it is similarly invisible when the possessor reserves an object for a particular use and allows it to remain unutilised till the purpose of the reservation and subjoins.

10. As mentioned above the word `occupation' has not been statutorily defined, but its meanings have been analysed by the English Courts for deciding whether a given hereditament is rateable or not. The judgments given under the rating law should be used with care because under it rates are levied in respect of beneficial occupation only. Moreover, the purpose of that law is to procure funds for paying the poor rate which "is not made day by day, or week by week but months in advance," therefore, "it would be absurd to hold that a person, who comes into a parish with the intention to remain there a few days or a week only, incurs a liability to maintain the poor for the next six months. From this point of view, possession of a heredita ment should be permanent and not a mere transient holding. Messrs Bean and Lockwood, the authors of Rating Valuation Practice, say at pages 21‑22 that‑ "an itinerant showman who erects a temporary structure for his performances, may be in exclusive actual possession, and may, with strict grammatical propriety, be said to occupy the ground on which his structure is placed, but it is clear that he is not such an occupier as the statute intends." The rating law does not take into account constructive possession because under it the tenant is liable to pay the rate rather than the owner. In this sense occupation includes possession as its primary element, but‑ "legal possession does not of itself constitute an occupation." Actual possession of a corporeal hereditament, as distinguished from legal possession is necessary but invisible possession is recognised. According to the above authors, the English Court of Appeal has held that there are four necessary ingredients in rateable occupation "(1) actual occupation; (2) exclusive occupation for the particular purposes of the occupier; (3) the occupation must be of some benefit to the occupier; (4) the occupation must not be too transient."

11. Since the above considerations do not exclude invisible occupation I can with advantage, refer to those English judgments in which this aspect has been examined. There are a number of them. It has been held that a seaside shop Mayor &c. of Southend‑on‑Sea v. White (3 8 L T 408), a summer villa Gage v. Wren (87 L T 271), a warehouse, The King v. Melladew ((1907) 1 K B 192 at pp. 201‑204), Beetham and another v. Trinidad Cement Ltd. ((1960) 1 All E R 568), a lodging house, The King v. Melladew fruit trees Mayer &c. of Southend‑on‑Sea v. White, and a vacant house R. v. St. Pancras Assessment Com mittee ((1877) 2 Q B D 591 at p. 588), remain occupied, although temporarily not in use, provided the disuse is for the time in which the occupier is waiting for a suitable opportunity to arise for using the premises. The question whether he was in reality waiting for such an opportunity in a given case, depends on whether the nature of the premises was suitable for this attitude or not and whether he genuinely intended to exploit the opportunity or not, Farewell, L. J., has said in King v. Melladew that:‑ "Whether premises are or are not unoccupied is in many cases a mixed question of fact and of law, there may be visible physical occupation by the person rated, or his servant, or his goods and chattels, and such occupation may be of part of an undivided tenement; and if, in such a case occupation is found as a fact by the justices, no appeal will lie. But these do not exhaust all the cases of occupation. Rateable property has many varieties of some the normal use is by personal occupation, e.g., a dwelling house, of others by occupation by live or dead stock, e.g. a linhay used as a shelter for cattle, or a barn; and the nature of the property and its mode of use must be considered in each case. The test, in a case like the present of business premises appears to me to be, has the person to be rated such use of the tenement as the nature of the tenement and of the business connected with it renders it reasonable to infer was fairly within his contemplation in taking or retaining it? In many trades, and certainly in a warehouse‑man's, the trader must necessarily contemplate the occupation for considerable periods of parts of his premises as spare room." The intention to exploit the opportunity is important and may be disclosed by the occupant by keeping the premises in readiness to use it as soon as the opportunity arises. Farewell L. J. has observed in the above‑mentioned judgment at page 204 that: "The question must be whether they (warehouses) are kept in such a state as to be capable at any time of being used in a continuing business." Similarly Lush, J. has observed in R. v. St. Pancras Assessment Committee, that the owner of a vacant house is in the occupa tion of it, if‑ "he furnishes it and keeps it ready for habitation whenever he pleases to go to it . . . . though he may not reside it in one day in a year."

12. An incomplete building and a non‑habitable premises may also be occupied, in a somewhat like manner, in special circumstances. For instance, an incomplete building may be L taken on lease and kept ready for use as an alternative arrangement when a calamity, like destruction by enemy bombing, is appre hended. This was done by businessmen in England when destruction of their ordinary premises was constantly apprehended during the Second World War‑see (Associated Cinema Properties Ltd. v. The Mayor Alderman & Councillors of the Metropolitan Borough of Hampstead ((1943) 2 All E R 696). In Mayor Aldermen & Councillors of the Metropolitan Borough of Hamsptead v. Associated Cinema Properties Ltd. (1944 All E R 436), it was held that no steps were taken to adapt the leased incomplete house for use as emergency offices by furnishing them and providing them with fixtures, although structurally the buildings were capable of being so used. The emergency did not arise and Du Parcq, L. J. held "It is significant that no case could be cited in which occupation had been held to be established without proof of some overt act amounting to evidence of user. In Melladew's case, the owner had advertised the premises as a warehouse. In most cases user has been proved by showing that the house has been furnished or equipped for some business purpose. There is certainly no authority binding on this Court for the proposition advanced by the appellant's counsel; and, in our judgment, a mere intention to occupy premises on the happening of a future uncertain event cannot, without more, be regarded as evidence of occupation."

13. If we apply the above principles to the facts of the case which is now under consideration, we find that the petitioner was in full possession and control of the bungalow through her servants or agents. It was structurally capable of being occupied as a dwelling house but was not furnished and kept ready for residence because its completion, to the owner's satisfaction, was awaited. I can, therefore, hold that it was not occupied as a dwelling house, but I should further say that, nor was it yet ready for residence according to the notions of the owner who was com pleting it by giving to it the last touches. No exception can be taken to this attitude of the owner because there was no reason for her to make hurry in occupying it, and there was no unreason ableness on her part in completing the bungalow to her satisfac tion before occupying it. Some building material and a Chowkidar were at the site when its possession was taken by respondent n No.

2. Since the bungalow was considered to be still not ready for occupation as a residence, it was being used by the owner for the purpose which was the most suitable under the circum stances, namely, its completion for residence. It was, therefore, not occupied as a dwelling house, but was occupied as a house under construction. The law does not specify the purpose o manner of occupation. Section 3 of the Requisitioning of Immovable Property (Temporary Powers) Act, 1956 applies to all cases in which "a building is in occupation of any person" irrespective of the purpose and manner of occupation. The nature of occupation, as explained above, cannot be indepen dent of the nature and condition of the tenement that is occupied, nor can it be independent of the purpose for which the tenement may be reasonably used. A house under completion can therefore, be expected to be occupied as such and not, ordi narily, as a dwelling house.

14. In conclusion, my answer to first question is in the affirmative. The second question has been discussed but it does not arise.

15. The petition may now be placed before a Division Bench for further orders. S. A. H. Reference answered in the affirmative.