P L D 1957 (W (PLP)

WAHIDUDDIN, J.

The matter is one of the many Writ Petitions which relate to the requisition of property in Karachi, the Federal Capital of Pakistan. The Sind Requisition of Land Act as amended by the order of the Governor-General I of 1956, dated the 21st March 1956, has been assailed on a number of grounds which we have treated as general objections, and will be dealt with by a separate order. Apart from the general objections, the requisition orders have also been challenged on the ground that the principles of natural justice were not observed, that premises were not requisitioned for any public purpose, that the occupants have been penalised because, according to the requisitioning authorities, they have come in occupation of the various tenements in a clandestine manner, and that the provisions of section 11 of the Sind Requisition of Land Act have not been observed. This petition is also to be considered in the light of some of the objections stated above. The facts leading to this Writ Petition, briefly stated, are that the petitioner is occupying premises bearing No. 5 on the ground floor of Sakina Bai Manzil, Ghulam Hussain Qasim Street, Kharadhar, Karachi. He is a refugee from Kathiawar and his family consists of five members. The land in dispute was let out to him in 1955 by the landlord on a monthly rent of Rs.

40. The petitioner has supported his contention by producing the rent receipts and the ration card issued by the Civil Supply Department of Karachi. The premises in dispute were requisitioned on 18th July 1956, and the petitioner has challenged this requisition order, amongst others, on the ground that the order of the respondent is against the objects and violates the provisions of the Sind Requisition of Land Act 1947 as it seeks to disturb the ordinary avocation of the petitioner by dispossessing him from his residence. The said order is not made for the public purpose contemplated by the Act and is, therefore, illegal and that the said order is repugnant to the principles of natural justice and bad in law. A Division Bench of this Court admitted this petition on 27th September 1956 and issued notice to the respondent and also an ad interim order restraining the respondents from disturbing the possession of the petitioner. On behalf of the respondent, Mr. Raymond, the learned Public Prosecutor, has raised a preliminary objection to the effect that this Court has no jurisdiction to issue a writ of certiorari as the order in question is an administrative order based on subjective considerations. He urged that this Court, therefore, is not entitled to consider it in an objective way. The learned Public Prosecutor has relied on the authority Province of Bombay v. Khushaldas (A I R 1959 S C 222). This case also relates to a requisition matter and has at great length considered the question whether the requisition order issued under the Bombay Land Requisition Act 1948, was an administrative order or a quasi-judicial or a judicial order. According to the majority view of the Supreme Court of India, the order in question was of an administrative nature based on subjective considerations and, therefore, it was held that the High Court under Article 226 of the Indian Constitution could not issue a writ of certiorari against the said order. Much water has flown since the decision of this case, and with utmost respect we are not inclined to follow the view taken by the majority of the judges in this case. It may be pointed out that the provisions of the Bombay Land Requisition Act of 1948 are entirely different from the pro visions of the Sind Requisition of Land Act 1947; for instance, no right of appeal is given to the aggrieved person against the order of requisition and the provisions of section 11 are also not found in the Bombay enactment. In fact, the Chief Justice of the Supreme Court has distinguished the case of King v. Post-master General ((1928) 1 K B 291), on the ground that in the Workmen's Compensation Act, a right of appeal was given against the Surgeon's decision, and as the right of appeal was not given under the Bombay Land Requisition Act, the requisition order passed there under was considered to be of an adminis trative nature passed on subjective consideration. This however, is not the case in the Sind Requisition of Land Act. A right of appeal has been given to the aggrieved party against the order of requisition, and the requisitioning authority has not only to form an opinion whether the premises are required for any public purpose, but while taking that decision under section 11 of the Sind Requisition of Land Act, he has also to see that the ordinary avocation of life and enjoyment of property of the person to be affected by the requisition order, is interfered as little as may be consonant with the purpose of this Act. Certainly in arriving at such a decision or in observing these provisions of law, the consideration cannot be said to be exclusively of a subjective nature. In our opinion the authority acting under the Sind Requisition of Land Act, when deciding to requisition any premises for any public purpose will be considering the matter from objective considerations. We may further observe that the view taken by the Supreme Court of India has not found favour with the Lahore Bench of this Court and in this judgment of the Division Bench, view taken by Mahajan J. has met with approval. In a recent decision repurted as M. Abdul Majid v. West Pakistan Province (P L D 1956 Lah. 615), Abdul Aziz Khan and Muhammad Yaqub Ali, JJ. have "reviewed the entire case law while con sidering an order issued by the Provincial Government under section 14 (e) of the Punjab Municipal Act. This order was held to be of a quasi-judicial character and was set aside. The learned judges after surveying all the authorities noted in the said judgment, have enunciated the following principle for guidance in issuing a writ of certiorari: (1) A writ will not lie to remove a ministerial or administrative act provided always that it has been made in good faith, Enactments which confer powers are so construed as to meet all attempts to abuse them, either by exercising them in cases not intended by statute, or by refusing to exercise them when the occasion for their exercise has arisen. Though the act done was ostensibly in execution of the statutory power and within its letter, it would nevertheless be held not to come within the power if done otherwise than honestly and in the spirit of the enactment. Where, as in a multitude of Acts, something is left to be done according to the discretion of authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of statute, otherwise the act done would not fall within the statute. 'According to his discretion' means, it has been said, according to the rules of reason and justice, not private opinion ; according to law and not humour ; it is to be, not arbitrary vague and fanciful, but legal and regular ; to be exercised, not capriciously but on judicial grounds and for substantial reasons. And it must be exercised within the limits to which an honest man competent to the discharge of his office ought to confine himself, that is, within the limit and for objectives intended by Legislature. (Maxwell on Interpretation of Statutes, Ninth Edition, pages 129-130). (2) A writ of certiorari will lie to remove a judicial or quasi-judicial act if in making an order or arriving at a decision the principles of natural justice or other well recognised principles governing judicial functions are disregarded. In determining whether an act is purely administrative or judicial the proper test is whether the relevant provisions of law authorise the authority concerned to form a subjective opinion as to the existence of certain facts and conditions as pre-requisite to the making of an order or that the existence of those conditions and facts is a pre-requisite to the making of an order by the authority concerned. In the former case, the act will be adminis trative or ministerial and in the latter case, judicial or quasi-judicial. (3) In giving judicial powers to affect prejudicially the rights of person or property, a statute is understood as silenly implying, when it does not expressly provide, the condition or qualification that the power is to be exercised in accordance with the fundamental rules of judicial procedure, such, for instance, as that which requires that, before its exercise the person sought to be prejudicially affected shall have an opportunity of defending himself. (Maxwell on Interpretation of Statutes, Ninth Edition, page 368). (4) In the exercise of the jurisdiction conferred on it under section 170 of the Constitution, this Court does not act as a Court of Appeal against findings of fact or law arrived at by a competent authority for if a competent authority acts within the limits of its jurisdiction, it can decide right as well as wrong. (5) The jurisdiction of this Court under Article 170 of the Constitution is not confined to the issue of writs enumerated therein. It has much wider powers to issue 'directions' and 'orders' in appropriate cases to any authority, person or Government if the ends of justice so required. We are in respectful agreement with the observations made by the learned Judges in the above mentioned case, and have also considered the present case on the principles laid down therein. As pointed out by Mahajan, J. in A I R (1950) S C at p, 222 " . . . . . . . the question whether an act is a judicial or a quasi-judicial one or a purely executive act depends on the terms of the particular rule, the nature, scope and effect of the particular power in exercise of which the act may be done. In the actual application of the abstract propositions to the circumstances of different cases the exercise of jurisdiction to issue a writ of certiorari varies according to the foot of the Chancellor." And in the language of Kayani, J. in Diwan Ziaul Hag and others v. The Government of West Pakistan (P L D 1956 (W. P.) Lah. 358) "It varies with the foot of the High Court which grows in length with the growing conferment of quasi-judicial functions to administrative bodies." In the present case, the requisitioning authority was bound to consider the following questions of fact, whether the property is required for a public purpose, whether the property in question is used for the purpose of religious worship or for accommodating an educational institution or dispensary or an hotel, and to what extent the requisitioning of the property shall interfere with the ordinary avocation of life and enjoyment of property as may be consonant with the purpose of the Sind Requisition of Land Act. As, has been pointed out in a number of authorities, these questions are mixed questions of law and fact. In order to determine these questions, the authority concerned is not the absolute judge, and it cannot say, 'I desire it, therefore, I order it". The premises can only be requisitioned if the authority concerned after applying its mind and making the necessary inquiry, comes to the conclusion that it is necessary to requisition any property for any public purpose defined in the Act. The existence of these facts and conditions is a pre-requisite to the making of an order by the authority concerned. These considerations under no circumstances can be considered to be subjective considerations. The decision of these questions in point of fact, will be based on objection considerations, and the order of the requisitioning authority should be such as may be speakable so that the Appellate Authority may he in a position to know whether the order in question is in accordance with the provisions of the Act. In the present case, the appellate authority called upon the petitioner to produce evidence to establish that he was not occupying any other premises before coming into possession of the premises in dispute. In our opinion, the order of the Requisitioning Authority and of the Appellate Authority in these circumstances is not of an administrative nature but of a quasi-judicial nature. We therefore find no force in the contention raised by the learned Public Prosecutor and hold that this Court has got ample authority to issue a writ of certiorari if the requisition order is found to be in contravention of the provisions of the Act or against the rules and principles of natural justice. Coming to the facts of the present case, it is sufficiently established on the record that the petitioner was residing in the property in dispute as a tenant from October 1955. The ration card produced before us has also established that the petitioner and his family were drawing sugar and coal quota from the rationing authorities from the 22nd of October 1955. The order of the Appellate Authority that the petitioner has failed to establish that he was residing in these premises in October 1955 is based on no material and is clearly an error of law apparent on the face of the record. The learned Appellate Authority in fact went to the extent of saying that opportunity was given to the petitioner to prove that he was not residing in any other premises at Karachi before occupying these premises. The case of the petitioner is that before coming to Karachi he was residing in the interior of Sind, and in support of this contention he produced certain certificates of responsible authorities of the city from where he has come to Karachi. The learned Appellate Authority, however, did not consider at all these certificates and simply observed that the, petitioner has failed to prove this fact. As a matter of fact, the Appellate Authority was wrong in asking the petitioner to establish that he was not residing in any other place before occupying the premises in dispute, because after all if a person comes to Karachi and is in search of accommodation he must be staying somewhere in Karachi, may be in a hotel or with some of his relatives. What is to be seen in such circumstances is that the petitioner before he occupies the premises in dispute was not iii occupation of any other suitable accommodation. The Appellate Authority should have considered whether the requisition order is in contravention of the mandatory direction in section 11 'of the Sind Requisition of Land Act. He has failed to apply his mind so far as this provision of law is concerned. The learned Public Prosecutor has, however, vehemently argued that section 11 of Sind Requisition of Land Act is only a direction and is not a mandatory provision of law. He has urged that failure to follow this direction will not make the order of requisition illegal and void. Section 11 of Sind Requisition of Land Act has a historical background. An identical provision of law was also in section 15, Defence of India Act. It reads as follows :- "Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of British India". Section 11 of Sind Requisition of Land Act is as follows: "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 purposes of this Act." In a requisition matter in Tan Bug Tain and others v. Collector of Bombay (A I R 1946 Bom. 216), Bhagwati, J. considered the scope of section 15 of the Defence of India Act. The learned judge at page 252 observed as follows :- "I am not prepared to hold that the provisions of section 15 Defence of India Act, are not mandatory but are merely directory or recommendatory. The language of section 15, Defence of India Act, is very clear on the point. It provides that the authority or person acting in pursuance of the Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purposes therein mentioned. Though the question whether the interference with the ordinary avocations of life and the enjoyment of property is in a particular case as little as may be consonant with the purposes therein mentioned may have to be determined by the authority or person who is passing the order in the exercise of the powers vested in him under the Defence of India Act and the Defence of India Rules framed there under, the provisions of section 15, Defence of India Act are none the less mandatory. They have got to be complied with. I cannot accept the argument which was advanced by the Advocate General that section 15, Defence of India Act, merely contained recommendations or instructions for the guidance of the authority or the person acting in pursuance of the Act and that any breach or the provisions therein contained, however flagrant the same might be, would not go to the root of the order but would have to be dealt with only by the attention of the Government being drawn to such breach by the subject suffering the hardship by reason of the issue of such an order. If that was the intention of the Legislature, I can only say that it has been very badly expressed. I cannot for a moment accept the suggestion that this provision was enacted in section 15, Defence of India Act, for no other purpose than laying down such recommendations or instructions which might or might not be followed by the authority or the person concerned and the non-observance of which would involve no other consequences than some petition or supplication to the Government in the matter. I also cannot accept for a moment the suggestion that section 15 Defence of India Act, was enacted merely as a sop to the public who were naturally clamouring against the drastic powers which were being vested in the executive under the terms of the Act. That suggestion if accepted would attribute to the Legislature motives which would be far from honest and straightforward. I am not prepared to hold that such were the motives which actuated the Legis lature when enacting this provision contained in section 15, Defence of India Act. I am prepared to take the provisions of section 15 Defence of India Act, at their face value, as meaning that it is the bounden duty of any authority or person acting in pursuance of the Act to interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purposes therein mentioned and that the provisions in that behalf enacted in the section are mandatory." Our attention was drawn to the debates of the Sind Legislature when this enactment was under consideration and at that time the Minister concerned gave an undertaking that only those buildings will be requisitioned without which the object of the Act could not be fulfilled. This however cannot be of any assistance in interpreting the provision of section 11 of Sind Requisition of Land Act. The provision of section 11 by itself is not a mere eyewash. It is not a rope of sand but a mandatory direction for the guidance of the Requisition ing Authority. We are clearly of the opinion that disregard of the section will make the order of requisition illegal and) void. The learned Public Prosecutor admitted at the Bar that most of tenements in Karachi exchange hands on payment of huge amounts and it was only in those cases where it was established that pugree was paid that the flats are requisitioning. There is no law prevalent in Karachi which, by private means, prohibits the letting out of premises Under section 9 of Rent Restriction Act, the payment of "mathai" or "pugree" is prohibited There is no other penalty except' that the tenant is entitled to recover back such amount by F way of regular suit or by deduction of any rent payable to the landlord. The learned Public Prosecutor has not been able to point out to any provision in the Sind Requisition of Land Act whereby the landlord or the tenant can be penalised for' payment of pugree by way of requisition of property. In our opinion if the provision of Sind Requisition of Land Act is invoked for this purpose, then such action of the requisitioning authority will be unwarranted and- not permissible in law. In such circumstances the order of the Requisitioning Authority will be mala fide and void. The petitioner is a poor refugee ; The Policy of Govern ment is to rehabilitate the refugees rather than up-root them. It has not been pointed out to us that the petitioner has got any other alternative accommodation where he can go, or the Government is prepared to provide him alternate accom modation for his residence. We repeatedly asked the learned Public Prosecutor' whether Government is prepared to provide him other accommodation or whether the petitioner has got any other place to go in. No satisfactory reply was given to these queries. In our opinion, if the requisition order is allowed to stand then it will materially interfere c with the ordinary avocation of life and enjoyment of property and, therefore, the requisition order is illegal. We are also of the opinion that the petitioner has only been victimised because it was suspected that the flat was secured by him on payment of pigree. The requisition order in these circum stances is mala fide and void. For the reasons given above, we allow the Writ Petition and order the respondent to pay the costs. A. H. Petition allowed.