P L D 1956 (W (PLP)

A. R. CHANGEZ, J.‑

This order will dispose of Writ Petitions Nos. 201 and 281 of 1956 as they arise out of the same facts and can be conveniently dealt with in one judgment. The first petition was filed by the petitioners, Sheikh Abdul Aziz and Muhammad Hussain, on the 17th of May 1956 under Article 170 of the Constitution for the issue of an appropriate writ or order to the respondents directing them to deliver possession of the bungalow in dispute to the petitioners. It was alleged by the petitioners that they had purchased a bungalow, situated on Church Road, Montgomery, in 1941, for their residence, but as soon as they had occupied it, the former Punjab Government had requisitioned it, and it had continually remained under requisition till the 17th of October 1954, when, by virtue of section 3 of the Punjab Requisition ing of Immovable Property (Temporary Powers) Repeal Act 1954, the house stood released from requisition and the Government became liable to deliver possession of the said house to the petitioners on that date. But in spite of the provisions of the said Act, the petitioners were not given possession of the house and were put off by the officials concerned on one pretest or the other. Having failed in their attempts to get possession of the house, the peti tioners moved this Court on the 17th of May 1956 for the issue of a writ and on the 18th of May 1956 a notice was issued to the respondents. In their Writ Petition No. 281 of 1956, which was filed on the 11th of June 1956, the petitioners have alleged that after the receipt of notice from this Court in Writ Petition No. 201 of 1956, the respondents in order to validate a patent illegality and to cover their high‑handedness have manoeuvered to get the house requisitioned again, vide order of the Commis sioner, Multan Division, dated the 30th of May 1956, which order has been passed mala fide. This order of requisition has been challenged, firstly on the ground that it does not show on the face of it, as required by law that the Commissioner had considered the petitioners' written objections to the show‑cause notice of requisition issued earlier by him, and secondly that the order in question is in contravention and excess of Article 11 of our Constitution and as such is ultra vires the Constitution. The petitioners have, therefore, prayed that a writ of certiorari or any other writ or order be issued quashing the order of requisition. In their written statements the respondents have conceded that although the bungalow stood released on the 15th of October 1954, yet the possession could not be delivered to the petitioners as the sitting tenants could not secure any alternative accommodation. It was also alleged that the action for the requisition of the house was initiated in the beginning of the year 1955 and a notice had been issued to the petitioners on the 5th of August 1955 to show cause why the house in question should not be requisitioned. The objections of the petitioners were duly considered and the requisition order was then passed on the 30th of May 1956 without any mala fides or ill‑will. Mr. Raza Kazim, the learned counsel for the petitioners, has urged that the respondents should be directed to deliver possession of the house to the petitioners on the basis of the first writ petition, as the possession of the respondents at that time was obviously illegal. The respondents, who are actually occupying the house in dispute, have controverted the stand taken up by the petitioners and have alleged that the petitioners had agreed to allow them to remain in occupation of this house on the usual rent and that they had been accepting rent from them. This may be true or false. In our opinion, it is unnecessary to determine this question, as at present the respondents are in occupation of the house under a requisition order passed by the Commissioner in accordance with law. If the authorities concerned were legally entitled to arm themselves with a legal sanction, and they have obtained such a sanction, then, it is immaterial if the possession before the order of requisition was illegal. If it was illegal, the petitioners have their remedy to sue the respondents concerned for damages etc. But if the possession of the respondents is now legal, then even if it be found that originally their possession was illegal, I would not regard it as a fit case for the exercise of our writ jurisdiction. It may not be desirable that after the issue of a notice by this Court, the respondents should have armed themselves with a legal sanction, for their possession, but their action is not illegal. Therefore, the sole question for determination is if, in view of the objections raised by the petitioners, the requisition order is illegal. This order was passed by the Com missioner under section 3 of the Punjab Requisitioning of Immovable Property (Temporary Powers) Ordinance III of 1955. The section empowers the Provincial Government to requisition any building by making an order in writing, if, in the opinion of the Provincial Government, it is necessary or expedient so to do. Section 10 of the Ordinance runs as follows :‑ "Delegation of functions.‑The Provincial Government may by order, notified in the Official Gazette, direct that any power conferred or any duty imposed on it by this Ordinance shall in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged by such officer as may be so specified." It appears that under this section the Provincial Govern ment vide Punjab Government Notification No. 6707‑PIG‑55/ 24388, dated the 19th of April 1955 delegated its powers conferred by this Ordinance, to the Commissioner, Multan Division. On the 5th of August 1955, the Commissioner, in exercise of the powers under section 3 of the Ordinance, issued a notice to the petitioners to show cause why the bungalow in dispute should not be requisitioned under the provisions of the Ordinance, to which the petitioners submitted their objections on the 14th of August 1955. The relevant file of the Commissioner's office which was produced before us, shows that these objections were duly considered by the Commissioner who finally passed the order of requisition on the 30th of ~May 1956. Here it may be pointed out that the Ordinance in question has now been repealed by the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act VII of 1956, which came into force on the 30th of June 1956. Subsection (2) of section 14 of this Act, however, provides that notwithstanding the repeal, everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceeding commenced, officer appointed or person authorised, jurisdiction or powers conferred, rule made and order issued under any of the provisions of the repealed Acts and Ordinances shall if not inconsistent with the provisions of this Act, be continued and, so far as may be, be deemed to have been respectively done, taken, incurred, commenced, appointed, authorised, conferred, made or issued under this Act. The learned counsel for the petitioners could not point out any provision of the Ordinance incon sistent with the provisions of this Act. Hence the requisition order passed under the Ordinance remains intact and operative under the provisions of this Act. The first contention raised by Mr. Raza Kazim is that the requisition order is not in accordance with the rules made under section 13 of the Ordinance. These rules were made by the Governor on the 4th of January 1956 and were published in the West Pakistan Gazette on the 16th of January 1956. Rule 6 provides that the requisition order shall be made in the form shown in Annexure 'B'. Para. 2 of this form runs as follows :‑ "And whereas the occupant has submitted his objections against the requisitioning of the said property, which objections have been duly considered with all relevant circumstances and no adequate reason has been adduced to my satisfaction why the aforesaid building should not be requisitioned in the public interest." The learned counsel argued that para. 2 of the form has not been incorporated in the requisition order, and the order does not show on the face of it, that the objections raised by the petitioners were considered by the Commissioner. It was, therefore, contended that the order was illegal inasmuch as the rule has not been strictly complied with. We, however, see no force in this contention, as, in our opinion, the provision contained in rule 6 is directory rather than mandatory, and non‑conformity with it does not invalidate the order if in fact such order proceeds from the appropriate authority after a consideration of the relevant facts. It was held by my Lord the Chief Justice in Khalid Waheed and another v. The Crown (P L D 1956 La h. 541) that although subsection (P L D 1956 La h. 541) of section 17, Government of India Act, 1935, requires that all executive action of the Federal Government shall be expressed to be taken in the name of the Governor‑General, yet if the order is not in strict conformity with this provision, the order is not invalidated, for this provision is directory rather than mandatory and that the directory character of the provision relates to the form which an order should take when being published and not to the method of making the order which is a process to be distinguished from the expressional pattern of the order in writing. In that case the order sanctioning the prosecution had been passed in the name of the Central Government and the contention was that the order was not a valid order inasmuch as it was not expressed to be issued in the name of the Governor‑General as was required by subsection (P L D 1956 La h. 541) of section 17 of the Government of India Act, 1935. In the present case it is clear from the relevant file of the Commissioner, and the affidavits filed on behalf of the respondents that the objections raised by the petitioners were duly considered by the Commissioner and, therefore, the mere fact that this is not incorporated in the requisition order is not enough to invalidate the order. An omission of this nature is not fatal so long as the facts are established to the satisfaction of the Court in some other way. Mr. Raza Kazim then argued that section 10 of the Ordinance is ultra vices the Constitution as being in contra vention and excess of Article 11 of our Constitution. Section 10 of the Ordinance empowers the Provincial Govern ment to delegate its powers under the Ordinance to any specified officer. It was contended that this section gives unrestricted power to the Provincial Government to delegate its powers to any officer, high or low, irrespective of the fact whether such an officer is fit to make such an order or not. The Provincial Government could delegate the power to the Commissioner, but there is no limitation placed on it so as to prevent delegation of such power to a foot constable or a peon, who in the eye of law, are as much officers as the highest officers of the State. It was, therefore, vehemently argued that this unrestricted power of delegation places an unreasonable restriction on the citizens of the State to hold their property and as such it contravenes Article 11 of the Constitution which is as follows: "Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right (a) to move freely throughout Pakistan and to reside and settle in any part thereof ; (b) to acquire, hold and dispose of property". In support of this contention reliance was placed on Khagendra Nath De v. District Magistrate West Dinajpur (A I R 1951 Cal. 3) where the order of externment made by the District Magistrate under section 21 of the West Bengal Security Act (XIX of 1950) was challenged, inter alia, on the ground that section 38 of the Act which empowered the Government to delegate its powers to any officer subordinate to it was ultra vires as being beyond the powers given to the State by Article 19 of the Indian Constitution. It was held that section 38 of the Act was ultra vices as it entitled the Government to delegate its powers to any officer subordinate to it irrespective of whether that officer is fit to make such order, which was wholly unreasonable and that being so, it went beyond the powers given to the State under Article 19 of the Indian Constitution. The learned counsel for the petitioners also cited Brajnandan Sharma v. The State of Bihar (A I R 1950 Pat. 322) and cleshinebhai Ishwarlal v. Emperor (A I R 1950 Bom. 363). In the first case an order of externment passed by the Government under the Bihar Maintenance of Public Order (Act III of 1950) was challenged on the ground that after the Indian Constitution came into force the order became void, being in contravention of Article 13 (1) read with Articles 19 (1) (d) and 19 (5) of the Constitution. Article 13 (1) of the Indian Constitution says :‑ "All laws in force in the territory of India immediately before the commencement of this constitution in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void". Article 19 (1) provides :‑ "All citizens shall have the right‑ (d) to move freely throughout the territory of India". Article 19 (5) is in these terms :‑ "Nothing in sub‑clauses (d), (e) and (f) of the said clause shall affect the operations of any existing law in so far as it imposes, or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub‑clauses either in the interests of the general public or for the protection of the interests of any scheduled tribe". Having regard to the facts of the case and the nature of the order, it was held that the externment order amounted to an unreasonable restriction and was, therefore, in con travention of Article 19 of the Constitution. Much to the same effect is the ruling Jeshingbhai Ishwarlal v. Emperor, which also dealt with an externment order. The rulings referred to above deal with the right of a citizen to move freely throughout the territory of India as provided by Article 19 (1) (d) of the Indian Constitution. The question of reasonable restrictions imposed by the Security Acts of the various Provinces has also been discussed in these rulings with a view to find out if such restrictions were saved by Article 19 (5) of the Indian Constitution quoted above. In my opinion, these rulings have no direct bearing on the points involved in the instant case, which appears to be exclusively governed by Article 15 of our Constitution which runs as follows :‑ "(1) No person shall be deprived of his property save in accordance with law. (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on which and the manner in which compen sation is to be determined and given. (3) Nothing in this Article shall affect the validity of‑ (a) any existing law . . . . . ." Article 11 of our Constitution provides that every citizen shall have the right to acquire, hold and dispose of property subject to any reasonable restrictions imposed by law in the public interest. Obviously this right is not absolute, but is subject to reasonable restrictions imposed by the laws of the land. For example, the State has the right to tax property for raising the revenues of the State. It has a right to confiscate the property of a citizen in the case of serious offences committed against the State. It can restrict the user of property to secure that it does not become a nuisance to another person or public at large. It can regulate or prohibit the sale of certain kinds of property in the interest of public health. Similarly there are other laws which impose restrictions on the acquisition, holding and disposal of the property. Under the Municipal Act various restric tions are imposed in respect of the holding of property. The law of pre‑emption also places certain restrictions on the acquisition and holding of property. In my opinion, Article 11 of our constitution has got no application when the question of deprivation of property, by acquisition or requisition by the State under a legislative enactment arises. For supporting this view, I would refer to Chiranjit Lal v. Union of India (A I R 1951 S C 41) wherein it was held by the Supreme Court of India that "to hold" means "to possess the property and to enjoy the benefits which are ordinarily attached to its ownership", that when, the property is requisitioned, the owner is deprived of its possession and he thereafter does not hold the property although he is undoubtedly its owner and that after the property has been requisitioned, the question of holding it under certain restrictions does not arise. Sheikh Khurshid Ahmad, advocate, who appeared on behalf of the respondents, contended that the case in hand is governed by Article 15 of our Constitution and Article 11 has no application whatsoever. He further contended that sub‑clause (3) (a) of Article 15 keeps the Ordinance in question intact and, therefore, section 10 of the Ordinance cannot be challenged on the ground, that it is unreasonable and as is ultra vires the Constitution. In support of his contention he has cited a number of Indian authorities, but it will be sufficient to refer to the latest authority of the Supreme Court of India which has a direct bearing on the points involved in the case before us. That ruling is State of Bombay v. Bhanji Muji and another (A I R 1955 S C 41). In that case certain premises had been requisitioned by the Governor of Bombay under sections 5 and 6 of the Bombay Land Acquisition Act, 1948. The orders of requisition were challenged mainly on the ground that the sections under which the premises had been requisi tioned were ultra vires Articles 91 (1) (f) and 31 (A I R 1951 S C 41) and (A I R 1955 S C 41) of the Indian Constitution. These two Articles of the Indian Constitution are analogous to Articles 11 and 15 of our Constitution and are reproduced below :‑‑ Article 19 (1) (f). "All citizens shall have the right to acquire, hold and dispose of property". Article 31 (1). "No person shall be deprived of his property save by authority of law". Article 31 (2). "No property, movable or immovable, including any interest in, or in any company owning any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given". It was held by their Lordships that Article 19 (1) (f) has no application to such requisition orders and that Articles 19 (1) and (2) and 31 dealt with different subjects and covered different fields. At page 43 Bose, J. who delivered the judgment of the Court, consisting of five judges, observed as follows :‑‑ "That Article 19 (1) (f) read with clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by clause (5) could not be brought into play. If there is no property which can be acquired, held or disposed of, no restrictions can be placed on the exercise of the right to acquire, hold and dispose of it, and as clause (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the Article postulates the existence of property over which these rights can be exercised". It was further observed :‑ "These Articles deal with substantial and substantive rights and not with illusory phantoms of title. When every form of enjoyment which normally accompanies an interest in this kind of property is taken away leaving the mere husk of title, Article 19 (1) (f) is not attracted. "In our opinion, this was decided in principle in Gopalan v. State of Madras (A I R 1950 S C 27) where it was held that the freedoms relating to the person of a citizen guaranteed by Article 19 assume the existence of a free citizen and can no longer be enjoyed if a citizen is deprived of his liberty by the law of preventive or punitive detention. In the same way, when there is a substantially total depri vation of property which is already held and enjoyed, one must turn to Article 31 to see how far that is justified". I respectfully agree with these observations and hold that the requisition order is not controlled by Article 11 of our Constitution but is governed by Article

15. As section 10 of the Ordinance is kept intact by Article 15 of our Constitution, therefore, I do not propose to go into the question whether the power given to the Government to delegate its powers under the Ordinance to any of its officers is reasonable or not. I accordingly hold that section 10 of the Ordinance is not ultra vires the Constitution. Lastly, the learned counsel for the petitioners argued that the order of requisition was passed by the Commissioner mala fide. It is admitted by the petitioners that the Commissioner had issued a notice to the petitioners to show cause against the proposed requisition on the 5th of August 1955, about nine months before the order of requisition was passed. It appears that on account of acute shortage of houses, the authorities concerned genuinely wanted accommo dation for their public servants. There is nothing to indicate that the Commissioner in passing this order had the intention of letting down the petitioners or wanted to circumvent the process of law. I am, therefore, of the view that there is no substance in the allegation that the order of requisition was passed mala fide. For the aforesaid reasons I do not find any merit in these petitions and dismiss them. In the circumstances of the case, however, the parties will bear their own costs. In the end I cannot help remarking that the petitioners have been hard hit by these requisition orders. It is almost fifteen years now that they have been deprived of the bungalow and it may be that they genuinely want it for their own residence. Under the circumstances, I hope that the Provincial Government will now consider the desirability of releasing the bungalow for the benefit of the owners. S. A. RAHMAN, C. J.‑--I concur. A. H. Petition dismissed.