MASTER KHUSHRO AMIR KHAN NIAZI Versus PROVINCE OF PUNJAB

The facts which form the background are that the petitioner, who is a minor, is the owner of bungalow No. 110‑H/G‑VI/III, Islamabad. The said premises was on lease with the British Council. By a letter dated 24th April 1974 to the mother of the petitioner, the British Council asked her to visit their office on 29th April 1974, to take possession of the bungalow as it has decided to vacate the premises. The mother of the petitioner accordingly visited Islamabad on 29th April 1974 and got vacant possession of the bungalow. Cash payment was received for replacement of certain installa tions of the bungalow which had been damaged during the occupancy of the previous tenant. (Details of these are given in the document Annex "E" to the writ petition). The case of the petitioner is that as the premises were handed over in a damaged condition the petitioner's mother wanted to carry out "extensive and suitable repairs." Accordingly, after handing over the keys of the bungalow to the Chaukidar, employed by the petitioner, she returned to Lahore to make necessary arrangements for carrying out the repairs. According to the petitioner the intention was that after carrying out the repairs the promises were to be occupied for the use of the members of the family.

2. This, however, was not to be. The Commissioner, Rawalpindi Division, by an order dated 2nd May 1974, passed under subsection (1) of section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 read with the West Pakistan Government Notification No. Judl. 1.16(21)/60, dated 18th June 1962, requisitioned the property in favour of the Government of Pakistan, Works and Rehabilitation Division, Islamabad, with effect from 1‑5‑1974. A copy of this order was forwarded for information and necessary action to all concerned vide endorse ment No. 4099/AL dated 6th May 1974 and on 7th May 1974, a contingent of police visited the premises, got the keys from the chowkidar, on the strength of the order of requisition dated 2nd May 1974, referred to above, and the premises were occupied by the Government of Pakistan for housing the office of the Federal Service Tribunal.

3. Two points have been argued before me in support of this petition:

(a) The West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 (hereinafter called the Requisitioning Act) was not operative in the Islamabad Capital Territory, therefore, neither the Provincial Government nor its delegate (the Commissioner) had any authority to make the impugned order; and

(b) the actual possession of the bungalow having been restored by the British Council to the mother of the petitioner and she having actually occupied it, the same pain immune froth the operation of the Requisitioning Act.

4. To appreciate the first contention some reference to the pertinent provisions of the law is necessary. The first provision relevant for our present purpose is section 1(2) of the Requisitioning Act, which provided as follows:

"It shall extend to the whole of West Pakistan except the Federal Capital and the Special Areas."

However, the above provision was amended by the West Pakistan Requisitioning of Immovable Property (Temporary Powers) (Amendment) Ordinance, 1962 and the words "the Federal Capital" were omitted therefrom. The result was that the scope of application of the Requisitioning Act was extended to the whole of West Pakistan, except the Special Areas.

5. On the dissolution of the Province of West Pakistan with effect from 1st July 1970 the Islamabad Capital Territory was excluded from the ambit of the Punjab Province, vide section 4 of the President's Order No. 1 of 1970‑ Province of West Pakistan (Dissolution) Order, 1970. It will be useful to reproduce the provisions of sections 4 and 5 and the relevant part of the Schedule at this stage:

"Section 4. Constitution of new Provinces, etc. (1) As from the appoint ed day, the Province of West Pakistan, as it existed immediately before that day, shall cease to exist and there shall be constituted in its place four Provinces to be known respectively as (a) Baluchistan, (b) the North‑West Frontier Province, (c) the Punjab and (d) Sind, and the following Centrally Administered Areas, namely:‑

(a) the Islamabad Capital Territory; and

(b) the Centrally Administered Tribal Areas.

(2) The territories of the new Provinces and the Centrally Administered Areas shall be as set out in the Schedule.

THE SCHEDULE

[Article 4(2)]

The Province of the Punjab

Territories of‑

(a) Rawalpindi Division excluding Islamabad Capital Territory."

So far as the administration of the new Provinces is concerned, provisions therefor, were made in section 5, which laid down:

"Section 5. Administration of new Provinces, etc.‑(1) Subject to the provisions of this Order, the new Provinces shall be administered as if each one of them were a Province existing immediately before the appointed day.

(2) The Centrally Administered Areas shall be administered by the President acting. to such extent as he thinks fit, through such officers as he may appoint; and the President may, in that behalf, give such directions as he deems fit."

Two further provisions of this Order are also relevant, namely section 19(1) and section 20(1)(b) for our present purpose which may, there fore, be reproduced hereunder:‑

"Section 19. Constitution of adaptation of existing law.‑(1) Except as expressly provided by or under this Order all existing laws shall con tinue in force, so for as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature or other competent authority.

Section 20. Power to make other provisions.‑(1) The President may, by order, make such provisions as may appear to him to be necessary or expedient for‑

(b) the Government and administration of the Islamabad Capital Territory, . . . . ."

In exercise of, inter alia, the above power the President promulgated the Islamabad Capital Territory (Administration) Order, 1971‑President's Order 12 of 1971 which came into force on 1st July 1970, empowering the Government of the Punjab to exercise powers in relation to the Islamabad Capital Territory. Section 2(1) of this Order is relevant and reads as follows:

"2. Government of the Punjab to exercise powers, etc., in relation to Islamabad Capital Territory.‑(1) Until other provision is made in this behalf, the Government of the Punjab shall, on behalf of the President, exercise and perform in relation to the Islamabad Capital Territory the same powers and functions as were exerciseable in relation to that territory by the Government of West Pakistan immediately before the first day of July 1970."

6. The consideration of all the above mentioned provisions yields the result that the Islamabad Capital Territory became a separate entity. This was to be administered by the President acting, to such extent as he thought fit, through such officers as he may appoint and through such directives as he deemed fit to issue and that all this was to be done by issuance of orders for the purpose of securing the government and administration of the Islamabad Capital Territory. It was in this connection that the President issued an Order (President's Order 12 of 1971), referred to above. This order makes it clear that the Government of the Punjab was to act on behalf of the President and exercise and perform in relation to the Islamabad Capital Territory the same powers and functions as were exerciseable in relation to that territory by the Government of West Pakistan immediately before the first day of July 1970. This Order, as already noted, came into force with effect from the 1st day of July, 1970. Consequently, in so far as the Government of West Pakistan was competent to act under the Requisitioning Act of 1956, for the whole of West Pakistan including the Islamabad Capital Territory (except the Special Areas) before the 1st day of July, 1970; the Punjab Government became competent to act under the Requisitioning Act in relation to the Islamabad Capital Territory in the same manner as it used to do when it was a part of the Province before 1‑7‑70. Furthermore, as the Commissioner, Rawalpindi Division, has by virtue of the Notification No. Judl.1.16(21)/60 dated 18th June 1962 all the powers which the Provincial Government had before 1st July 1970, the Commissioner was competent to perform and exercise the powers of the President in relation to the Islamabad Capital Territory as were performed by the Government of West Pakistan immediately before the 1st day of July, 1970.

7. It may also be observed in this connection that under clause (b) of subsection (1) of section 20 of the President's Order No. 1 of 1970 the President can by order make suitable provisions for "the government and administration of the Islamabad Capital Territory." The President's Order 12 of 1971 has, inter alia, been made in pursuance of the provisions of clause (b) of subsection (1) of section 20 of President's Order 1 of 1970,

The term "Government" used in the above mentioned provisions includes the exercise of legislative functions. This becomes all the more clear because the term "Government" has been employed in addition to and apart from the term "administration", in the above provision. As explained by the Supreme Court in Iftikharuddin v. Muhammad Sarfraz P L D 1961 S C 585, the word "Government" includes in its ordinary connotation, legislative, judicial and executive t functions, and the ordinary connotation should be adopted in the absence of any indication to the contrary. There is nothing in the President's Order 1 of 1970 which indicates any contrary intention. In so far as the power of governance includes the power to exercise legislative functions, the result of the promulgation of the President's Order 1 of 1971 is that the Requisitioning Act of 1956 must be deemed to be operative in the Islamabad Capital Territory, to enable action to be taken thereunder, even after the 1st day of July, 1970.

8. The result of this discussion is that there is no force in the first con tention raised on behalf of the petitioner.

9. This brings me to the other contention raised on behalf of the petitioner, namely that the premises were in occupation of the owner, con sequently no action could be taken under the Requisitioning Act against him. On this aspect of the matter reliance was placed on the following circumstances:

The petitioner's mother had taken possession of the house on 29th April 1974; a Chowkidar had been appointed to look after the house, which was locked pending the carrying out of extensive repairs needed to make the house suitable for occupation of the family members of the petitioner and that the possession of the house was taken by the authorities on 7th May 1974 forcibly, after getting the keys from the Chowkidar.

10. The relevant provision of law governing the matter is the 4th proviso to subsection (1) of section 3 of the Requisitioning Act, which lays down that:

"Provided that no owner in occupation of a house shall be required to vacate it."

11. In support of the contention that in the circumstances of the case the petitioner must be construed to be in occupation of the house, reliance was placed on Mrs. Nema v. West Pakistan through Chief Secretary P L D 1969 kar. 622 and Mst. Hajra v. Additional Commissioner P L D 1971 Kar, 563. In the first‑mentioned case the majority of the Full Bench held that where a building was under construction and had Dot yet either been furnished nor was fit for residence, but contained building material and was watched by the owner's servant or agent and consequently was neither ready for occupation nor occupied as residence, but was being used by the owner for the purpose most suitable under the cir cumstances, the building must be deemed to be occupied by the owner for the purpose of section 3(1) of the Requisitioning Act ; while the second case does not appear to be strictly relevant and need, therefore, not detain us.

12. The case of Mrs. Nema relied upon by the petitioner, however, is not applicable to the facts and circumstances of this case. In the present case the bungalow was completely built up by the beginning of 1970 and leased out to the British Council from 9th March 1970 and remained in their occupancy until 29th April 1974. On that date it was vacated and was not occupied by the owner, but locked up by his mother so that the damage done to the installation in the building, during its occupation by the British Council, may be repaired. The document Annexure "E" with the writ petition, wherein details of this are given shows that the damage was of a very minor character, such as the loss of an iron grating of a fire place, damage to some sanitary fittings, damage to two shade lights etc. It cannot therefore, be said that the house could not be occupied until this damage was, repaired. In these circumstances, the ratio of the judgment in Mrs. Nema's case is not applicable. In the facts and circumstances of this case the building must be considered to have been vacant when it was requisitioned, because it was neither in the occupation of the petitioner nor his mother on the said date. In fact the ratio of the judgment in the case of Tahira Fazal Ahmad v. Home Secretary P L D 1966 Lah.446 appears to be more apt in the circumstances of the case. In that case the owner was not himself in occupation of the bungalow though some articles of her furniture were lying therein and even a telephone was installed therein and some electricity was being consumed, but as the owner was found to be actually residing at Lyallpur the house was held to be vacant.

13. The conclusion is that the petitioner cannot be deemed to be in occupation of the house in dispute, hence the premises could lawfully be requisitioned. The meaning of the term "occupation" taken above also disposes of the incidental argument that if the petitioner was not himself deemed to be in occupation of the premises, his mother at least was entitled to notice under the third proviso to subsection (1) of section 3 of the Requisitioning Act as she was in its occupation. As the mother of the petitioner was not actually dwelling in the premises but residing at Lahore, she also could not be deemed to in occupation and was not entitled to the issuance of any notice before the order of requisition was passed.

14. The result is that this writ petition fails. It is hereby dismissed, leaving the parties to bear their own costs.

K. B. A. Petition dismissed.