1986 PLP 182 (CLC)

MAMOON KAZI, J.‑‑ The petitioner has challenged the order of the Deputy Commissioner and District Magistrate, East Karachi, respondent No. 1, dated 15th July, 1985, passed under section 3 of the Sind Requisitioning of Immovable Property (Temporary Powers) Act, 1956 whereby the provisional order, dated 2nd July. 1985, earlier passed by the said respondent, requisitioning the ground floor of House No. 31‑D, K.D.A. Scheme No. 1, Karachi was confirmed.

2. The facts of the case, giving rise to this petition are, that the petitioner is the owner of a double‑storeyed residential house measuring 600 square yards situated in K.D.A. Scheme No. 1, Karachi. The house comprises of three bed‑rooms a drawing‑cum dinning room, two bathrooms and a kitchen on each of its floors. The ground floor and the first floor are connected through two staircases, one inside the house and the second passing through the kitchens on the ground as well as the first floor of the house. It has been averred by the petitioner that the petitioner has been serving in Saudi Arabia for the last 9 or 10 years. The petitioner has a large family consisting of his wife, two grown up bachelor sons and three daughters two of whom are unmarried. It is further averred that the service contract of the petitioner in Saudi Arabia will be expiring in December, 1965, whereafter the petitioner intends to return to Pakistan and settle in his house alongwith his children. The petitioner's eldest daughter is married to an Indian National, presently in service in Saudi Arabia who also intends to settle in Pakistan and live in the same house with the petitioner The house in question was rented out to Consulate‑General of Korea for two years which was to expire in February, 1986. However, after few months of letting out of the said house the petitioner required the same for his personal use as he intended to. marry some of his children. Therefore, he requested the Consulate‑General of Korea to vacate the house and the latter thus vacated the house in question in December, 1984. Thereafter the petitioner through his attorney, Meer Abdul Aziz started renovation of the house to make it suitable for occupation of his family. Because of the repair work, the furniture and the other household articles were kept in two rooms on the first floor of the house. Thereafter on 2nd July, 1985 when the 'petitioner was still in Saudi Arabia, the respondent No. 1 passed two orders, separately requisitioning the ground and the first floor of the house in question and directing the petitioner to deliver possession thereof to the Executive Engineer P.R.L. Division

2. Karachi According to the said order, the petitioner was given fourteen days' time to file review against the said order. The attorney of the petitioner then informed the petitioner of such orders at Jeddah and thereafter the petitioner sent telex for the respondent No. 1 informing him that the petitioner would be returning shortly to Pakistan and requiring the house in question for his own occupation and that of his family as he had no other accommodation of his own in Pakistan Copy of such telex has been filed alongwith the petition as Annexure 'G'. However, on 18th July, 1985 the petitioner challenged both the requisitioning orders through his attorney by filing review application before the respondent. No. 1 who vide order, dated 15‑7‑1985 confirmed the requisitioning order in respect of the ground floor of the house but de‑requisitioned the first floor of the house. Thereafter the house in question was allotted to Mr. Shafqat, S.D.M. Central by the respondent No. 2 and the house is still being occupied by him.

3. The first contention of Mr Shamasuddin Jatoi the learned counsel for the petitioner was that no notice as required by subsection (1) of section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 (hereinafter referred to as "the Act") was given to the petitioner by the respondent No. 1 before requisitioning the premises in question. However, the learned Additional Advocate General who appeared on behalf of the respondent drew our attention to an amendment made in section 3 of the Act by the West Pakistan Requisitioning of Immovable Property (Temporary Powers) (Sind Amendment) Ordinance, 1970 whereby the requirement of such notice to the owner of a house has been dispensed with. The relevant part of section 3, subsection (1) of the Act before such amendment read as under: "

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 or offices the Provincial Government may after giving the owner thereof an opportunity of being, heard and showing cause against the proposed action 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 . " After the amendment not only the requirement of notice to the owner of a building was dispensed with, but two new subsections were added to section 3, namely, (2a) and (2b), giving right of review to an aggrieved persons. The relevant provisions of section 3 of the Act after the said amendments now reads as under:‑ "

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 or offices, 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...................................................... Provided . Provided.................................................... . Provided that no owner in occupation of a residential house shall be required to vacate it. (2) . (2‑a). Any person aggrieved by an order made under subsection (1) requisitioning any building may make an‑application to the authority making the order, and on such application being made, such authority, after giving the applicant .an opportunity of being heard and adducing the evidence in support of his application may confirm, modify or rescind the order."

4. In view of the amendments to section 3 of the Act, the learned Additional Advocate‑General contended that previous notice to the owner of a house is not required any further after the said amendments. The learned Additional Advocate‑General also drew our attention to Mst. Hajra v. Additional Commissioner (Judicial), Karachi P L D 1971 Kar. 563 wherein a Division Bench of this Court held that: "The change brought about by the amending Ordinance in real effect is the shifting of the grant of opportunity of hearing from a prior stage to a later stage in the proceedings. This by no means can be said to be a denial or the deprivation of the right. No principle of rule‑making that has thereby been offended was pointed out. There is, therefore, no scope for an argument that the change involves deprivation of a vested right." In view of the aforesaid, Mr. Shamasuddin Jatoi did not press his argument further.

5. The next contention of Mr. Shamasuddin Jatoi however, was, that the premises in question were in occupation of the owner and as such the requisitioning order was illegal. Mr. Shamasuddin Jatoi in this respect drew support from the fourth Proviso to section 3(1) which provides in no less clear terms that "no owner in occupation of residential house shall be required to vacate it". Mr. Shamasuddin Jatoi further contended before us that the ground and the first floor of the house had always been used as a single unit rather than two residential units. His next argument was that after conceding that the first floor was in occupation of the family members of the petitioner, the respondent No. 1 had no justification to requisition the ground floor as occupation of the first floor amounted to occupation of the entire house. Lastly it was contended by the learned counsel that the impugned order was mala fide as the premises in question are now being occupied by the S.D.M. Central, Karachi who is a subordinate of the respondent No. 1 and a Grade‑17 Officer. The learned counsel further pointed out that the rental value of the premises is more than Rs.6,000 per month while the rental limit of Grade‑17 officers is hardly Rs.2,000 per month.

6. The learned Additional Advocate‑General on the other hand, has fully supported the findings arrived at by the respondent No. 1 which according to the learned Additional Advocate‑General are based on inspection of the house in question by the Additional Deputy Commissioner who was deputed by the respondent No. 1 for the purpose. It is pertinent to note here that the reasons which found favour with the respondent No. 1 to arrive at such findings are firstly, that the ground floor of the house was found completely vacant by the Additional Deputy Commissioner during his inspection, secondly, that the first floor and the ground floor were found by him to be two separate and independent units, thirdly that the first floor was sufficient to fulfil the requirements of two unmarried daughters of the petitioner and lastly, that the ground floor of the house was not. being used in any way by the family of the petitioner.

7. The only question which arises for determination by us is, whether the house in question was in occupation of the petitioner at the time when it was requisitioned by the respondent No.l. Admittedly, the ground floor of the house was lying vacant when the Additional Deputy Commissioner visited it. However, some household articles and kitchen utensils were found lying on the first floor of the house by the Additional Deputy Commissioner from which the respondent No. 1 concluded that only the first floor was in occupation of the petitioner while the ground floor was not. However, according to the explanation offered by the petitioner the ground floor of the house was left vacant to facilitate repair work in the house which was, started by the petitioner after it had been vacated by the Korean Consulate. The mere fact, that the ground floor of the house was not found to be in physical occupation of the petitioner by the Additional Deputy Commissioner during his visit to the house cannot lead to an inference that it was not in the petitioner's occupation, merely for that reasons alone, particularly when the petitioner has sufficiently explained the reasons for his non -occupation of the ground floor. Another factor which seems to have influenced the decision of the respondent No. 1 was that the house was found to consist of two independent units. Although this fact is not admitted by the petitioner who has throughout maintained that the whole house consists of a single unit, but assuming that the position as stated by the respondent is correct still that would fail to provide justification for requisitioning the house. The house may consist of two or more separate units still the owner may occupy the whole of therefore, in our view, this is not a factor which may point towards non‑occupation of the house by the owner. The next reason stated by the respondent No. 1 in the impugned order is, that the first floor of the house was sufficient to meet the requirements of the family of the petitioner. We are afraid, the question as to occupation of a house by any person cannot be determined on the basis of its requirement by such person as the term "occupation" cannot by synonymous with requirement. In fact, in our opinion, that fact which cannot be lost sight of is, that the house in question was got vacated by the petitioner in December, 1984 only after about eight months when it had been rented out to the Consulate‑General of Korea for a period of two years in February, 1984. Although this has not been wholly admitted by the respondent No. 2 as one Mr. Farid Khan who filed counter‑affidavit on his behalf disputed the petitioner's claim that the Consulate General of Korea had left the house at the request of the petitioner as according to him the house was vacated by the Korean Consulate on their own as it was not found suitable for occupation owing to shortage of water and defective electric wiring. However, this version of the respondent No. 2 does not seems to be convincing as after the house was got vacated, the petitioner did not rent it out to any other person but it was lying vacant for more than six months i.e. till the date when it was requisitioned by the respondent No.

1. If the whole house, therefore, had not been in occupation of the petitioner, then it looks plausible that at least one of the two floors would have been rented out by the petitioner to some other persons. That, in our opinion, lends support to the petitioner's contention that the whole house was in occupation of the petitioner at the time of its requisitioning.

8. The learned Additional Advocate‑General has also drawn our attention to some cases on the point, the first being Khawaja Ghulam Sadique v. Najibullah Khan P L D 1977 Kar. 1073, in which Zaffar Hussain Mirzs, J (as he then was) held that an order of requisitioning passed under section 3 of the Act by the competent authority "raises presumption of regularity which leads to the inference that the respondent was not in occupation of the premises at the relevant time. In another case reported as Mst. Zakia Khatoon and another v Additional Commissioner Karachi and another P L D 1977 Kar. 6 when physical occupation of a house by its owner was not proved and an order of requisition was passed in presence of petitioner's representative and after hearing of objections filed on his behalf it was held that such an order was not in violation of the provisions of the Act. In Hajiani Zulekha Bai v. The Province of Sind and another 1983 C L C 365 where according to the facts 'of that case there was no evidence to show occupation of a house by its owner, but there was sufficient evidence on record to show that the house was vacant and available for rent, an order of requisitioning of such house was held to be legal and no illegality was found to have been committed by the requisitioning authority. Another case cited by learned Additional Advocate‑General was that of Messrs Forbes Forbes Campbell and Co. Ltd. v. Deputy Commissioner, South Karachi and another 1983 C L C 1063. In that case a flat belonging to the petitioners in the case was allotted to one of their employees who failed to take its possession and while the flat was lying vacant it was requisitioned by the Deputy Commissioner. The High Court came to a conclusion that occupation by the owner was not proved and dismissed the petition filed by him. The last case referred on the point by the learned Additional Advocate‑General was Azhar Ali Khan v. Government of Punjab 1983 C L C 2514. In that case a school building which had been nationalised by the Government was requisitioned by the Deputy Commissioner under section 3 of the Act. When such order was challenged before the Lahore High Court, it came to a conclusion that the Fourth Proviso to section 3(1) of the Act was not attracted; to the facts of that case as the owner of the house was not in possession of such building at the relevant time.

9. A perusal of the cases discussed above shows that none of the cases cited by the learned Additional Advocate‑General is stricto sensu attracted to the facts of the present case. In all such cases, occupation of requisitioned property by its owner was' questionable. Contrary to that, in the instant case, the circumstances point out otherwise. The cases referred to by the learned Additional Advocate‑General, therefore, are distinguishable.

10. As a result, we allow this petition and declare that the order, dated 15th July, 1985 passed by the respondent No. 1 and consequent action taken thereafter by the respondent No. 2 to allot the premises in question to S.D.M. Central Karachi are without lawful authority and of no legal effect. There will be no order as to costs. A . A Petition allowed.