P L D 1956 Sind 25 (PLP)

It will again .be noticed here that rooms Nos. 1 and 2 and the store room and the servant's room were not mentioned in this notice which was issued by the S. I. P., in accordance with the orders, of the Estate Officer who was also the Additional Rent Controller. This order of the Estate Officer is (Exh. 11) in the case and was also issued on the same day viz., 20th January 1951. In this order (Exh. 11) only rooms Nos. 3 to 7 were mentioned. The plaintiff went in appeal against this requisition order and the Administrator of Karachi, summarily dismissed his appeal on 25th January 1951, (vide Exh. 12). On 26th January 1951, the Rent Controller sent his own notice again to the plaintiff to vacate the premises (vide Exh. 13). The plaintiff was given seven days' time to vacate. According to this notice, therefore, the plaintiff had to vacate on or before 3rd February 1951. The Rent Controller also wrote to the Inspector of Police, Raja Mansion Police Station, accordingly (vide Exh. 14). All this action was taken by the Rent Controller in pursuance of the Requisition order issued by him on 14th November 1950. It should again be noted here that rooms Nos. 1 and 2 as also the store‑room and servant's room‑were not mentioned in Exhs. 13 and 14." Before the arrival of 3rd February 1951, however, the plaintiff was ejected by force on 27th January 1951. Iqbal Ahmed, Requisitioning Inspector, Estate Office and Zahidali, Overseer. P. W. D., went over there, took possession and passed on the receipt (Exh. 25) to the plaintiff's brother. It should be noted here that possession was taken by these people not only of rooms Nos. 3 to 7, but also of rooms Nos. 1 and 2 and the servants' room and the store‑room. The plaintiff remonstrated much, but nobody listened to him. He and his family consisting of twelve or thirteen members were thus thrown out and they passed the night on the foot‑path. In spite of all this happening on 27th January 1951, the S.I. P., Rambagh Police Station, Karachi, gave a notice (Exh. 16) to the plaintiff on 13th February 1951, to vacate rooms Nos. 3'to 7 within seven days. I am mentioning this fact only to indicate the efficiency in these Offices. At this stage a most important fact must be remembered. After the possession of the entire first floor was secured in this manner, the premises were locked and sealed and nobody occupied them. They remained vacant right upto 7th May 1951, when the defendant No. 2 came to occupy it presumably under the orders of the Estate Office. Defendant No. 2 is at present in possession of the whole first floor. The Estate Office paid up the rent to the landlord for the entire period that the premises remained vacant. The payment was made in August 1952. On 9th July 1951, the plaintiff filed the present suit, challenging the requisition order of the Rent Controller as not only ultra vires, illegal and void but also malicious on the grounds set forth in para. 8 of the plaint. . He also pleaded that the Sind (Requisition of Land) Act 1947 was itself ultra vires of the Constitution Act as it conflicted with section

299. In consequence he challenges the authority of the Estate Officer or the Rent Controller to take possession of the premises by force. The plaintiff accordingly prays for a declaration that the requisition of the premises in suit and consequent dispossession of the plaintiff is illegal and ultra vires. He prays that the possession of the entire first floor be restored to him by ejecting defendant No. 2 or anyone else who may be found in possession thereof. In any case, be asks for possession of rooms No. 1 and 2 and the store‑room and the servants' room with W. C. He also claims Rs. 2,000 as damages resulting from wrongful and malicious eviction. The defendant No. 1 has filed a written statement challenging the stand taken by the plaintiff on all the points. After stating the various facts which I have already shown above this defendant says that when the Inspector of the Estate Office went to the premises on 27th January 1951, with the Police Squad, he found the entire premises vacant. Rooms Nos. 1 and 2 were not requisitioned because Shakirali was living there. They were, however, requisitioned on 14th February 1951. The defendant says that every action taken by the authorities was legal and ‑proper and the plaintiff was not ejected by force. He prays for the dismissal of the suit with costs. Defendant No. 2 remained ex‑parte. The following issues were raised in the case :‑ (1) Was the requisition of rooms Nos. 3, 4, 5, 6 and 7 of the premises in suit illegal, ultra vires, invalid and malicious ? (2) Was the plaintiff's ejectment from rooms No. 3, 4, 5, 6 and 7 illegal, ultra vires and malicious ? (3) Was the plaintiff ejected from rooms Nos. 1 and 2, store‑room and servants room ? If so, was this ejectment illegal, ultra vires and malicious ? (4) Were the rooms Nos. 1 and 2, store‑room and servants room validly requisitioned on 14th February 1951. If so, what is its effect ? (5) Were the two orders of requisition and the ejectment order passed and executed without following the judicial procedure and in contravention of the provisions of the Sind Land Requisition Act and the established practice ? (6) Was the requisition in question for a public purpose as defined under the Sind Land Requisition Act ? (7) Is the Sind Requisition of ‑Land Act rendered void for reasons stated in para 7 of the plaint or for any other reason ? (8) Is the possession of the defendant No. 2 illegal ? (9) Is the plaintiff entitled to the damages claimed by him or for any other sum ? (10) Has the plaintiff any cause of action and is the suit maintainable ? (11) To what relief, if any, is the plaintiff entitled. My findings are :‑ Issues 1, 2 and 3.‑

Yes. Issue 4.

‑No. Issue 5.‑

Yes. Issue 6.‑

No. Issue 7.‑

No. Issue 8.‑

Yes. Issue 9.‑

No. Issue 10.‑--Yes. Issue 11.‑

As below. Reasons Issue 7.‑I will first of all deal with this issue. In para. 7 of the plaint it is alleged that the Sind (Requisition of Land) Act 1947 is void as it conflicts with section 299 of the Government of India Act, 1935, as adapted, inasmuch as the Sind Act does not provide for payment of compensation to a tenant in occupation of the property which is subject of requisition. In my opinion this view is not correct. Section 299 deals with compulsory acquisition of land, and subsections (1) and (2) read as follows :‑ " (1) No person shall be deprived of his property save by authority of law. (2) Neither the Federal nor a Provincial Lagislature shall have power to make any law authorizing the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, unless the law provides for giving the com pensation for the property acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, it is to be determined and given." There is a difference between " Acquisition " and " Requisition ". The acquisition of land as contemplated by section 299 is more or less permanent in character while " Requisition " takes place only temporarily and for a short time. Even then, during the short period, the owner of the requisitioned property is paid the rent for the use and enjoy ment of his property. Apart from this the Sind (Requisition of land) Act 1947 does make provision for compensation in case an immovable property is requisitioned or acquired. Section 4 of the Act does make a provision for that. There fore, the Act is not void on this ground. In this case, although the first floor remained vacant for full three months and ten days, the Estate Office duly paid the rent to the landlord. This objection, therefore, cannot prevail. The other point urged in this connection is that the Act is ultra vices of the powers of the Sind Legislature. Item No. 9 in the Provincial Legislative list in the 7th Schedule of the Government of India Act relates to " compulsory acquisition of land". There is no provision in the' whole list regarding requisitioning of property and, therefore, the requisitioning is outside the scope of the Provincial Legislative field. It is not mentioned in any other list as well, whether Federal or concurrent, and therefore we will have to fall back on section 104 of the Government of India Act which relates to the residual powers of legislation. Section 104 reads as follows :‑ "The Governor‑General may by public notification empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists in the seventh Schedule to this Act, including a law imposing a tax not mentioned in any such list, and the executive authority of the Federation or of the Province, as the case may be, shall extend to the administration of any law so mace, unless the Governor General otherwise directs." Since it is an admitted position that the Governor‑General has not issued any public notification empowering the Sind Legislature to enact a law providing for the requisitioning of property, the Sind (Requisition of Land) Act is altogether void. This view also is not correct. At one time it had been held that a notification in this behalf was necessary, where after the Government of India issued the notification and thereafter the Bombay Province passed the legislation. This ruling was, however, set aside subsequently by the Supreme Court of India. The correct view in my opinion is that since major always includes minor and since a Provincial Legislature B is authorised to enact a law relating to acquisition of property, it follows automatically that it can legislate on requisition as well. I, therefore, hold on this issue in the negative. Issues 1 and 6.‑--I will deal witk these issues together as they are inter‑connected. Before an order for requisitioning property under the Sind (Requisition of Land) Act is issued under section 3, it is necessary that the property in question must be required for a " public purpose " as defined by the Act itself. Now " public purpose" has been defined by the Act to mean any purpose connected with the securing of accommodation for the Constituent Assembly and the Central Government of Pakistan or the Provincial Government. According to me the expression " Government servant " is tot equivalent to " Central Government" or " Provincial Govern ment". For the purpose of securing accommodation for the Government servant there is a separate Act altogether which is called the Sind Crown Servants (House Accommodation) Act, 1947. This Act, received the assent of the Governor‑General on 23th March 1947, whereas the Sind (Requisition of Land) Act, 1947 received the assent of the Governor during the same year on 2nd August 1947. A very clear provision for securing house accommodation for the servants has been made in the Crown Servants Act. The long title of the Act reads as follows :‑ " An Act to make provision for the securing of house accommodation for person's serving in connection with the affairs of the Province of Sind and persons holding certain offices." The preamble of this Act reads as follows :‑ " Whereas it is expedient to make provision for the securing of house accommodation for persons serving in connection with the affairs of the Province of Sind and persons holding certain offices. It is hereby enacted as follows: I have observed that the Estate Officer or the Rent Controller never take any notice of the Crown Servants (House Accommodation) Act, and they go on requisitioning the premises of people indiscriminately by using their large powers under the Sind (Requisition of Land) Act. On the separation of Karachi from the Province of Sind under the Federal Capital Order all laws that were applicable to the Province of Sind were made applicable to Karachi, the Federal Capital, and therefore, the Crown Servants (House Accommodation) Act was fully applicable to Karachi as well. Section 11 of the Requisition of Land Act says that any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and enjoyment of property as little as may be consonant with the purpose of this Act. This section 11 was apparently based on section 15 of the Defence of India Act, 1939 which is also in the same terms. The authorities concerned never take any notice of this salutary provision of law and they go on acting most arbitrarily in the discharge of their duties. I have got another suit pending before me (Suit No. 816 of 1953) it which a Central Government servant in actual and physical occupation of premises was asked to vacate the same for the purpose of accommodating a Provincial Government servant. I have also dealt with a number of cases in which one Central Government servant is thrown out and another put in that very house. This, according to me, is a clear fraud on the statute. In the case that I am dealing with at the present moment we find the action of the Estate Office absolutely high‑handed and malicious. The plaintiff with a large family was thrown out on the footpath and the house remained vacant for a long period of over three months without any rhyme or reason. Even then the person put in that house viz., defendant No. 2 is not a Government servant at all. Section 2 of the Crown Servants Accommodation Act defines a Crown Servant as meaning a person serving in connection with the affairs of the Province of Sind and shall be deemed to include a Minister of the Crown, the Speaker of the Sind Legislative Assembly, a Parliamentary Secretary and a member of the Sind Legislative Assembly. Looking to this definition of a Crown servant it is impossible to construe "Public purpose " in this case as a purpose connected with the securing of accommodation for the Central Government or the Provincial Government. Apparently "Public purpose means, for instance, setting up a school, a hospital, a maternity home or the like. It can never, mean the securing of accommodation for a Government servant who clearly comes in the definition of Crown servant in the Crown Servants (House Accommodation) Act. I have therefore absolutely no doubt that the purpose for which the premises in suit were requisitioned by the Estate Office was not a " public purpose" within the meaning of the Requisition of Land Act but it was an individual purpose which would be covered by the Crown Servants (House Accommodation) Act. There is also another reason why these authorities do not wish to ‑act under the Crown Servants Act. The provisions of that Act make it difficult for them to act as quickly and as arbitrarily as they can do under the Requisition of Land Act. For instance section 12 of the Crown Servants Accommodation Act provides that if the house is occupied, a notice issued under section 5 shall not require its vacation in less than thirty days of the service of the notice. Under the Requisi tion of Land Act they can give notice of a week and get forcible possession of the premises. The high‑handedness betrayed by the authorities in this cast is clear from several facts. A family man was thrown out from the residential premises and the house was allowed to remain vacant for more than three months. Even though the house was vacant the Estate Office had to pay up the rent to the landlord. This was clearly a burden on the public exchequer for which the Estate Officer must be held to be personally responsible. Then we find that although rooms Nos. 3 to 7 were requisi tioned, still rooms Nos. l: and 2, the store‑room and the servant's room were also taken possession of. The Estate Office had absolutely no authority and jurisdiction to take'! possession of these rooms in the manner they have done. They now plead that this action of the Police was regularized E by the subsequent requisition of room Nos. 1 and 2, the store‑room and the servants' room. There is no question of regularising an illegal act. The taking over possession of these rooms was absolutely illegal and, therefore, it, cannot be regularised subsequently in any manner. The act of regularising this illegal act was itself dishonest on the very face of it. Iqbal Ahmed the Requisitioning Inspector of the Estate Office has stated that rooms Nos. 1 and 2 were not mentioned in the requisition order but because they were vacant he asked Zahidali the Overseer of the P. W. D. to take over possession of the same also. He further says that they went there between 12 and 1 during the day and found all the rooms vacant on the first floor. Zahidali the overseer also supports him. These two people have clearly perjured themselves because they forget that they gave the receipt for possession to Mr. A. R. Hussain the brother of the plaintiff at the tune they took over possession. This receipt is (Exh. 25) in the case and reads as fellows:‑ " Taken over vacant possession from Mr. A. R. Hussain of Rooms in. Roop Lal Shankar Lal Building." If all these rooms were lying vacant there was no reason for Mr. A. R. Hussain the brother of the plaintiff to be present there. I fully rely on the word of the plaintiff that his family was living in these premises and they were mercilessly thrown out on the footpath. The requisition of these rooms, there fore, is clearly not only illegal but malicious. I accordingly hold on issue No. 1 in the affirmative and issue No. 6 in the negative. Issue No. 2 It follows from the findings above that the ejectment of the plaintiff from rooms Nos. 3 to 7 was illegal and malicious. Finding accordingly. Issue No. 3.‑I have already held above that there was no requisition order against rooms Nos. l and 2, the store‑room and the servants' room which were in the possession of the plaintiff. I have also held that the premises were not vacant as stated by the Requisition Inspector and the Overseer of the P. W. D. Finding, therefore, on this issue must also be given in the affirmative. Issue No. 4.‑In view of my findings on issues Nos 1 and 6, I must hold on this issue in the negative. Possession of these rooms was taken over on 27th January 1951 without any requisitioning order Standing against them. The regularization of the position by requisitioning the premises subsequently on 14th February 1951, was not only invalid but also dishonest. Finding accordingly in the negative. Issue. No. 5.‑Section 3 of the Requisition of Land Act deals with this question, Sub-section (2) of this section says that the requisitioning order shall be served oil the owner of the property, and where the order relates to immovable property in occupation of a tenant also on such tenant, by delivering or tendering to such owner or tenant a copy of the order, but where the owner or tenant is not readily traceable or cannot be served without undue delay, or where the ownership is in dispute, the order shall be served by publishing it in the official Gazette, and, if practicable, by affixing a copy thereof to any conspicuous part of the property to which it relates. It is clearly admitted in this case that the owner of the property namely Muhammad son of Usman, who has been examined in this case, was not served with any notice at all. Even the tenant was not served in the manner provided by subsection (2) of section 3, only a copy of the order was pasted on the premises. This was not a sufficient compliance with the provisions of law. The learned advocate for the defendant has argued that the publication in the Official Gazette was a sufficient service. I do not at all agree with this view. The publication comes in only after the owner or the tenant cannot be traced. Here they were readily available and it was the duty of the authorities to serve the landlord and the tenant in tit: proper manner in order to enable them to approach the authorities and make their representation. The two orders of requisition and ejectment, therefore, were altogether illegal as the procedure provided by law was deliberately be passed. Finding accordingly in the affirmative. Issue No. 8.‑In view of my findings above, it is clear that the possession of defendant No. 2 becomes illegal. He had no authority to be there. Finding accordingly. Issue No. 9.‑No damages can be allowed against the Federation of Pakistan in view of the Privy Council ruling in the case of

1. M. Lall (1). Issue No. 10.‑The plaintiff has clearly a cause of action and the suit is perfectly maintainable. Issue No. 11.‑--In the result I decree the plaintiff's suit for a declaration as prayed for and for possession of the whole of the first floor of the building in suit by the ejectment of defendant No. 2 or anybody else who may be found in the premises. I further direct the defendants to bear the costs of the plaintiff. A. H. Suit decreed.