NAWABZADA IHSANULLAH KHAN Versus COMMISSIONER, N.-W. F. P., PESHAWAR

1. GHULAM SAFDAR SHAH, C. J.- This petition under Article 199 of the Constitution is meant to call in question Notification No. 21797/A. P. dated 8-8-1973, by which the house of petitioner at Link Road. Abbottabad, was requisitioned by respondents for the residence of Senior Civil Judge, Abbottabad.

2. The two grounds on which the impugned notification has been assailed by petitioner are-

(1) that when it was requisitioned. the house was in his occupation, and

(2) that no prior notice was served on him within the meaning of 3rd proviso to section 3 of West Pakistan Requisition of Immovable Property (Temporary Powers) Act,' 1956 (hereinafter called the Act).

2. The case of petitioner, in so far as ground No. 1 is concerned, is that when the impugned notification was issued by respondents his household goods and furniture were lying in the house and a Chaukidar was there to look after his property. Respondent No. 1 has, in para. (iv) of his comments dated April 4, 1974, admitted this position in these words :-

3. "The possession of house was delivered to the officer concerned through A. C. Abbottabad, a copy of whole report is enclosed. The order of requisition was delivered to Shaikh Jamil Ahmad, Attorney of the owner, who after going through the same, refused to acknowledge in writing. Two rooms were found locked at the time of delivery of possession which are still seated. An inventory of the other articles has been prepared and these have been kept in another room which has also been sealed.

4. But even so has attempted to justify his order under section 3 of the Act, saying that since the house was unoccupied, it would be deemed to have been validly acquired as also that the giving of prior notice to petitioner under the 3rd proviso to that section would be unnecessary. Now in so far as the scope of section 3 is concerned, it does empower the provincial Government to requisition for the use of any of its officers or officer any building. But then in the exercise of this power, it has to be guided by the various provieos appearing under that section out of which fourth proviso and subsection (2) thereof would appear to be attracted to the facts of this case, which may be reproduced :--

5. Provided that no owner in occupation of a house shall be requited to vacate it.

(2) If the notice mentioned in the third proviso to subsection (1) cannot be served on the occupant personally, affixation of the notice on a conspicuous part of the building or service by means of a proclamation or by means of a notice in the official Gazette and local press shall be deemed to be sufficient service for the purpose of this section,"

3. It would thus be seen that in the case of an owner in occupation of his own house, the power of Provincial Government under section 3 of the Act would not be available. In the case of any other person in occupation of the building, however, the requisitioning authority would be obliged to give him a two weeks' prior notice to show cause against the proposed action and thereafter, in case his explanation is found unsatisfactory, a period of A one month to vacate the building. In the casein hand, however, since we are dealing with a case of which the petitioner is not only the owner, but claims to have been in occupation of it at the time when the impugned notification was issued by respondent No. 1, the fourth proviso would appear to be attracted and in order to see if petitioner would be able to take advantage of it, let us examine his case if he was really in occupation of big house at the relevant time.

6. The word "occupation" has not been defined in the Act. But for us the matter appears to be simple as this word has been authoritatively construed in a Full Bench Judgment of Karachi Bench of former West Pakistan High Court in the case of Mrs. Nemu v. West Pakistan (P L D 1969 Kar. 622). The facts in that case were that the Commissioner, Karachi Division, acquired for the residence of the Additional Advocate-General, Karachi, a house still under construction in Mohammadali Society Karachi The lady owner of the house, however, objected to this action and filed representation before Commissioner pointing out that the house in question was being constructed by her for her own residence, she having no other house of her own, that when it was acquired it was incomplete. But a lot of construction material was lying on the premises and a Chaukidar was there to look after the property. The learned Commissioner, however, rejected the representation of petitioner, and thereafter she fled a constitutional petition in High Court challenging the order of Commissioner by which her house had been acquired. A perusal of the Full Bench Judgment would show that initially the case was heard by a Division Bench. But in view of the difference of opinion between the learned Judges in regard to the connotation of word "occupation", appearing in section 3 of the Act, the case was referred to Qadeeruddin Ahmao, J. (as his Lordship then was) who however, agreed with the view taken by Noorul Aritin, J. that in view of the facts and circumstances of the case, the petitioner was in occupation of her house and the same could not be requisitioned by the Commissioner. In their respective judgments Qudeeruddin Ahmad and Noorul Arfin, JJ referred to a large number of English cases in which the word "occupation" had received profound consideration.

7. But it would suffice for our purpose to reproduce para. 11 of the judgment of Qadeeruddin Ahmad, J. which is as follows:--

8. "Since the above considerations do not exclude invisible occupation I can with advantage refer to those English judgments in which this aspect has been held that a seaside shop Mayer & C. of Southend-on-Sea v. White (38 L T 408) a summer villa Gage v. Wren 87 L T 271, a ware-house. The King v. Melladew (1907) 1 K B 192, Beetham cued another v. Trinidad Cement Ltd. (1960) 1 All E R 568 a lodging house, The King v. Melladew fruit trees Mayer & C. of Southend-on-Sea v. White anti a vacant house R. v. St. Pancras Assessment Committee (1877) 2 Q B D 588 at page 591, remain occupied, although temporarily not in use, provided the disuse is for the time in which the occupier is waiting for a suitable opportunity to arise for using the premises the question whether he was in reality waiting for such an opportunity in a given case, depends on whether the nature of the premises was suitable for this attitude or not and whether he genuinely intended to exploit the opportunity or not, Farewell, L. J., has said in King v. Melladew that :-

9. 'Whether premises are or are not unoccupied is in many cases a mixed question of fact and law, there may be visible physical occupation by the person rated, or his servant, or his goods and chattels, and such occupation may be of part of an undivided tenement ; and if, in such a case occupation is found as a fact by the justices, no appeal will lie But these do not exhaust all the cases of occupation. Ratable property has many varieties ; of some the use is by personal occupation, e.g. a dwelling house, of others by occupation by live or dead stock a g. a Linhay used as a shelter for cattle, or a barn ; and the nature of the property and its mode of use must be considered in each case. The test, in a case like the present of business premises appears to me to be, has the person to be rated such use of the tenement as the nature of the tenement and of the business connected with it renders it reasonable to infer was fairly within his contemplation in taking or retaining it. In many trades, and certainly in a ware house-man's, the trader must necessarily contemplate the occupation for considerable periods of parts of his premises as spare room.

10. The intention to exploit the opportunity is important and may be disclosed by the occupant by keeping the promises to readiness to use it as soon as the opportunity arises. Farewell L. J. has observed in the above-mentioned judgment at page 204 that:

11. 'The question must be whether they (warehouses) are kept in such a state so as to be capable at any time of being used in a continuing business.'

12. Similarly Lush, J. has observed in R. v. St. Pancras Assessment Committee, that the owner of a vacant house is in the occupation of it, if- "he furnishes it and keeps it ready for habitation whenever he pleases to go to it .... though he may not reside in it one day in a year."

13. The ratio of various English judgments to which reference has bee made in that para. would appear to be that a person would be in occupation of a house/building if he furnishes it and keeps it ready for habitation whenever he pleases to go to it, though he may not reside in it even a day in a year. Now the admitted facts of case in hand are that petitioner belongs to village Toru of District Mardan, but in order to spend the summer spell at Abbottabad, which is a hill station, acquired the ownership of disputed house for his own occupation. It is common knowledge that well-to-do persons from many parts of Pakistan do own houses at various hill stations, to which however, they repair only in summer months. And no sooner the winter sets in, than they return to cities leaving the said houses unoccupied. In these, circumstances, the ratio of said Full Bench judgment of Karachi would appear to be attracted to all such houses provided it can be shown that they had been kept ready for occupation at any time by owners. It is not disputed in this case, that when the impugned order was passed by Commissioner, Peshawar Division, the house of petitioner was furnished and it had in some of the rooms other household goods. Obviously, therefore, his case would be fully covered by the ratio of Full Bench judgment and thus it must be held that he was in occupation of that house, to acquire which the Provincial Government would have no jurisdiction under section 3 of the Act.

14. The impugned order is also without jurisdiction inasmuch as no prior notice was given to petitioner within the meaning of 3rd proviso of section 3 of the Act. But this under the circumstances would appear to be of only academic interest. The fact that petitioner would be deemed to have been in occupation of the house when the impugned notification was issued by respondent, would bring his case within the protection of 4th proviso of section 3 of the Act and thus the house in question could not have been acquired by respondents.

15. This petition is, therefore allowed as prayed. But, under the circumstances, the parties would bear their own costs.

16. S. A. H. Petition allowed.