P L D 1958 (W (PLP)

WAHIDUDDIN, J.

‑ The petitioner Muhammad Khan has challenged the validity of the order of the Collector of Karachi dated the 17th of February 1955 whereby he was declared as an unauthorised occupant of Quarter No. 903, Pir Ilahi Bux Colony under the Land Control (Capital of the Federation) Act No. XI of 1952 and the order of Mr. N. M. Khan, Chief Commissioner, Karachi, dated the 4th of October 1957, whereby his appeal was dismissed and the order of the Collector was upheld. The petitioner alleged that he was allotted two plots of land No. 882‑A and No. 903 in the Pir Illahi Bux Colony by an allotment order dated the 12th of June 1949. The allotment order is stated to be on the file of respondent No. 1, the Chief Commissioner of Karachi. He constructed quarters on the above‑mentioned plots of land at a cost of about Rs. 11,

000. Quarter No. 903 was subsequently allotted by respondent o. 2, the Secretary of the superseded Managing Committee of the Pir 11ahi Bux Co‑operative Housing Society, Karachi on 28th of November 1953 to respondent No.

3. On the 27th of August 1954 the Collector of Karachi, at the request of respondent No. 2, issued a notice to the petitioner calling upon him to show cause why he should not be declared as an unauthorised occupant under the Land Control Act No. XI of 1952. On the 17th of February 1955 the Collector of Karachi declared him as an unauthorised occupant and called upon him to vacate the premises known as Quarter No. 903 within fifteen days of the receipt of the notice. The petitioner filed an appeal to the Chief Commissioner. This appeal was dismissed on the 15th of September 1955. Another appeal was preferred and Mr. A. T. Naqvi, the then Chief Commissioner, by order dated the 23rd of April 1956, accepted the appeal and set aside the order of the Collector. The matter was again re‑opened by Mr. N. M. Khan the Chief Commissioner of Karachi, who set aside the order of his learned predecessor and restored the order of the Collector in respect of the plot in dispute. The petitioner has challenged the order of the Collector and the Commissioner on a number of grounds, the most important amongst them being that the Collector had no jurisdiction to declare the petitioner as an unauthorised occupant within the meaning of the Land Control Act of 1952 and that Mr. N. M. Khan the Chief Commissioner of Karachi had no jurisdiction to re‑open the case decided by his predecessor and had no business to re‑hear the appeal and decide it against the petitioner. We have heard the learned counsel f6r the parties and in our opinion it is not necessary to touch the second contention raised by the petitioner about the illegality of the order of the Chief Commissioner on the ground that it had already been decided by Mr. A. T. Naqvi, his predecessor. This matter can be decided on the sole question whether the Collector had jurisdiction to declare the petitioner as an unauthorised occupant under the provisions of the Land Control Act of 1952. This Act, as will appear from the provisions was not legislated with retrospective effect. According to the definitions, there is no indication as to the manner in which a person is declared as unauthorised occupant of a building. There is, however, the definition of "unauthorised building". It reads as under :‑ "Unauthorised building means a building declared by the Authorised Officer or the Administrator to be unauthorised." The only other provisions which can be said to be applicable to the facts of the present case are sections 7 and 11 of the said enactment. Section 7 reads as under :‑ "Power of removal of unauthorised building.‑The Authorised Officer may, by a notice served in the prescribed manner, direct the owner of an unauthorised building erected prior to the date of coming into force of this Act to remove the same within the period mentioned in the notice or within such further period as may be granted by the Authorised Officer." It is obvious that the Collector did not pass the order against the petitioner under this provision of the said enactment. Section I1 reads as under :‑ "Eviction of persons in unauthorised wrongful occupation or possession.‑(1) The Authorised Officer may, by a notice served in the prescribed manner, direct any person unautho risedly occupying or wrongfully in possession of, any land or building in the controlled area to vacate such land or building within the period mentioned therein or within such further period as may be granted by the Authorised Officer. (2) If the person does not, in pursuance of a notice issued under subsection (1), vacate the land or building within the aforesaid period, he shall, notwithstanding any provision to the contrary in any law for the time being in force, be liable to be summarily evicted therefrom by the Authorised Officer, and the Authorised Officer may, in effecting such eviction, use such force as he deems necessary." According to this section the Authorised Offtcer may by notice served in the prescribed manner, direct any person unauthorisedly occupying or wrongfully in possession of any land or building in the controlled area to vacate such land or building within the period mentioned therein or within such further period granted by the said officer. Section 11, 'however, does not apply to persons who are in unauthorised occupation or in wrongful occupation of the building prior to the date of enforcement of the said enactment. A comparison of the phraseology of sections 7 and 11 of the Land Control Act of 1952 will show that section 7 is applicable to cases prior to the enforcement of the enactment while section 11 is not applicable to unautho rised or wrongful occupants of land and building prior to the date of the enforcement of the said Act. Admittedly, in the present case, Quarter No. 903 was constructed in the year 19491 and since then the petitioner was in occupation of the property in dispute. Therefore no action could be taken against him on the ground that he was an unauthorised or wrongful occupant. He must have come in wrongful or unauthorised possession of the property in dispute after the coming into force of the said enactment. Simply because the society allotted the plot on 24‑11‑1952 to respondent No. 3, could not bring this case within the four corners of the said section and such cases should have been taken to the ordinary civil Courts for decision. In our opinion, the learned Collector had no jurisdiction to entertain this matter and to declare the petitioner as an unauthorised occupant under section 11 of the Land Control Act. This matter was recently considered by another Division Bench of this Court of which one of us Bachal, J. was a party. They have also considered the provisions of section 11 of the Land Control Act and have observed as under :‑ "It was then argued that Sec. l I of the Act, upon which our learned brother relied, also was retrospective. Section 11 (1) reads : (already quoted above). Section 5, clause 3, of the General Clauses Act, 1897 provides as under "Unless the contrary is expressed a Central Act or regulation shall be construed as coming into operation immediately on the expiration of the date preceding its commencement." if the section had been retrospective, there would have been the same provision as in section 7 of the Act. The con struction relied upon by the learned Advocate does not arise either expressly or by necessary or distinct implication in these cases." We are in complete agreement with observation made in that case and hold that the order of the Collector dated the 17th of February 1955 and the final order of the Chief Commis sioner dated the 4th of October 1957 are illegal and without jurisdiction and direct that the petitioner will not be evicted from the premises in dispute on the basis on the said orders. The res pondents will bear the costs of this petition. A. H. Petition accepted.