SAIFUR RAHMAN Versus PROVINCE OF SIND

1. MUHAMMAD ZAHOORUL HAQ, J. ‑‑This petition is directed against the order issued by Deputy Commissioner, South on 6‑5‑1985 requisitioning Plot Nos. SB‑4‑86/87/88/89/90/91 at Sommerset Street, Saddar, Karachi. The relevant facts are that respondents Nos 3, 4 and 5 are the tenants of the petitioners in respect of the same building where they had been running two schools. Rent of the building had not been paid and, therefore, ejectment case was filed by the petitioners in 1964 and an order for depositing of rent was passed by Rent Controller on 8‑5‑1972. The said order was not complied with and, therefore, the defence of the respondents Nos. 3, 4 and 5 was struck off. The respondents went in appeal which was allowed on 30th April, 1977. However, the second appeal filed by the petitioner was allowed by the High Court on 15‑3‑1983 and a review petition filed by the respondents was dismissed. The respondents went before the Supreme Court in two petitions for leave to appeal but both these petitions were dismissed by the Supreme Court by order, dated 3rd of December, 1984.

2. Thereafter, the petitioner sought execution of the ejectment order from the Rent Controller and a writ of possession was issued by Rent Controller on 6‑3‑1985. However, on the same date the property was requisitioned by the respondent No. 2 under section 3 of Sind Requisitioning of Immovable Property (Temporary Powers) Act, 1956. Petitioner's counsel has contended that the order in question is mala fide and is a fraud upon the statute inasmuch as the purpose of the requisitioning was nothing but to avoid the execution of the ejectment order which had been competently issued by the Civil Courts and final orders had been passed by the Supreme Court. Further, contention is that the Government Authorities being themselves in occupation of the building at the time of the requisitioning, requisition order could not be passed in respect of the said property. Reliance has been placed upon P L D 1978 Lah. 87 (96) where it was held that the property already in possession of the Government cannot be requisitioned. The said view is based upon the interpretation of the word requisitioning which means the requiring of possession from someone and to ask for as of right or to insist upon having. The last two meanings of the word 'require' are found in Law exion by Lyer (1940) on page 1115

3. The above view of the Lahore High Court was reaffirmed in 1983 C L C 2228 ((2231) Kar.) by a Bench of this Court.

4. It is, therefore, obvious that the order of requisitioning in respect of the disputed property in this petition having been passed at the time when the property was already in occupation of the Government Schools the requisitioning was illegal.

5. We are further of the view that the order of requisitioning was not bona fide as the effect of the same was nothing but to avoid the ejectment orders which had been finally confirmed by the Supreme Court. It was, therefore, a colourable action and was, therefore, not in accordance with the purposes of the requisitioning Act. It was, therefore, an action without lawful authority.

6. Mr. Abdul Sattar Shaikh, Additional Advocate‑General had submitted that the order had been passed by the Deputy Commissioner South under the orders of the Martial Law Authority. We do not find that submission substantiated from the order which has been issued by the Deputy Commissioner South as there is no reference to any Martial Law Authority The learned counsel, however, had with him a summary which had been prepared in this case. From that summary it is not clear as to what specific order the Martial Law Administrator or Governor has made in the case as there is no clear direction. In fact even the position is not clear as to whether the order is being made by the Martial Law Administrator or by the Governor in this case. Moreover, there are two alternate suggestions made in the summary and one is acquisition of the immovable property and the other is requisitioning of the same. But there is no clear indication as to which alternative is finally approved. We, therefore, presume that since the requisitioning of a property already in occupation of the Government Schools was illegal, in accordance with the prevailing view of the High Court, therefore the only other legal mode available to the Government in this case would be of the acquiring of the property under the Land Acquisition Act, 1894 which could have been a legal direction to the subordinate authorities in respect of this matter. We are quite sanguine that superior authorities had not directed a resort to an illegal action and, therefore, the respondents cannot take shelter behind the alleged order of the Governor or the Martial Law Administrator which has not made any clear direction to requisition the property. Moreover, the orders, if any, had been so far kept away from this Court and even today a copy of the same has not even been placed before us, nor supplied to the other side. The reason must be that the respondents are not sure of their position.

7. We are further of the view that if the order of requisition was" made by the respondent No. 2 under the directions of some superior` authority and not independently then again the order of requisition is in valid in law as the respondent No. 2 has not taken an independent action and has acted at the instance of someone else who had no` authority under law to issue such a direction in respect of requisition. ,

8. Mr. Abdul Sattar Shaikh, Additional Advocate‑General had also submitted that the order directing possession of the property to be handed over to the petitioners would cause inconvenience to about one thousand students who were studying in the schools. We are in sympathy with the students and we feel sorry that such inconvenience would be caused to the students in this case but the law has to take its own course and the respondents cannot take shelter behind inconvenience of students when they had failed to comply with the orders of the, Rent Controller in depositing the rent in time. The respondents are themselves to blame for creating such a situation and they failed to remedy the same in spite of orders of the superior Courts and now they have come out with an illegal order of requisition. We have no choice in the matter in view of observations made by the Supreme Court in P L D 1985 S C 360 where it was held that in an ejectment case where the rent has not been paid by the Government Agencies to the landlord and ejectment had been ordered on that basis, therefore, in these circumstances, the contention that inconvenience to the students would be caused was completely misconceived. We respectfully follow the same. We declare that the order of requisitioning, dated 6th March, 1985 impugned in this petition was made without lawful authority and is ineffective.

9. A . A . ????????????????????????????????????????????????????????????????????????? ??????????? Petition allowed.