HAQ BROTHERS Versus COMMANDER, KARACHI

MUKHTAR AHMED JUNEJO, J.‑‑ Under this Constitutional Petition M/s. Haq Brothers a firm has challenged a notice of ejectment dated 29‑8‑1989 issued by the respondent under Section 3 of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 read with amending Ordinance X of 1984 (hereinafter referred to as the Ordinance).

2. According to the petition, petitioners M/s. Haq Brothers are occupying since 1975. Shop No .4‑A and an open space attached to it situated at the Karsaz Commercial Complex, Shahrahe Faisal, Karachi, as tenants in occupation and use of the same. Earlier the petitioners had filed suit No .413 of 1988 against the respondent, which was disposed of on 28‑8‑1989 on the statement given by Counsel for the respondent that he would not enter the premises in litigation without giving an opportunity to the petitioners of being heard. Later on the petitioners were given by the Respondent a notice under section 3 of the %~finance requiring them to appear before the respondent and to explain as to they should not dispossessed from the shop and the open space in litigation, which was in their unauthorized possession. Said notice was challenged by the petitioners to be illegal and without lawful authority and of no legal effect on the grounds: (a) that .such notice can be issued only by the Federal Government and not by the Commander Karachi who was not Federal Government, (b) that the respondent had acted in excess and abuse of his powers in giving the notice, (c) that the respondent had acted arbitrarily and capriciously in issuing abruptly the notice which did not give reasonable time to the petitioners to make a representation, (d) that the respondent had acted maliciously and in bad faith in issuing the notice which was a cloak to conceal real intention of the respondent to dispossess the petitioners, (e) that the mode of service of the notice was illegal at it was served on petitioners' employees who were abducted, detained and tortured, and (f) that the petitioners .were being terrorized with show of force and with posting of armed guards around the premises in question,

3. Notice of this application was issued to the Deputy Attorney‑General who appeared on Court notice.

4. Mr. Syed Inayat Ali, learned counsel for the, petitioners raised the following points:‑‑

(i) That the Amending Ordinance No.X of 1984 had added a proviso below section 3 of the Ordinance indicating thereby that the Federal Government had retained the power of hearing the affected lessee or licensee before permitting the 'officer authorized in this behalf to enter upon the demised land or building and recover vacant possession of the same by evicting the lessee or licensee;

(ii) That the notification No. SRO 178 ‑(1)/78, dated 14‑2‑1978 delegating inter alia to the Commander Karachi the powers exerciseable by the Federal Government under sections 3, 4, 5, 6 and ‑7 of the Ordinance having been issued earlier than amendment of the Ordinance by the Amending Ordinance No.X of 1984, cannot have effect in respect of the newly added proviso to section 3 of the Ordinance.

(iii) That the powers of the Federal Government cannot be' exercised by the Commander Karachi in view of Article 90 of the Constitution of Pakistan.

5. Mr. S.A. Wadood, learned Deputy Attorney‑General controverted the contentions raised on behalf of the petitioners. He argued that delegation of powers under section ',9 of the Ordinance by the Federal Government to the respondent remained uneffectcd even after amendment of section 3 of the Ordinance and consequently it was the respondent who had to hear the petitioners before deciding to order his eviction. In this respect; learned Dy. A.‑G. relied on Article 241 of the Constitution of Islamic Republic of Pakistan and added that the period of initial lease had expired in 1968 and that the petitioners had no right to continue on with possession of the premises in dispute and they being trespassers were not entitled to an equitable relief of the nature, which can be granted under Article 199 of the. Constitution of Islamic Republic of Pakistan. He relied on the case of MA. Naser v. Chairman, Pakistan Eastern Railways (PLD 1965 SC 83).

6. Section 3 of the Ordinance before amendment was as below:‑

"Eviction of outgoing lessees or licensees from land or building. If, on the expiry, whether before or after the commencement of this Ordinance, of the period of any lease or licence in respect of any land or building of which the Central Government is the lessor or licensor or on the determination of such lease or licence on the ground of breach of any covenant imposing an obligation on the lessee or licensee to give up possession of the demised land or building required for any public purpose, the lessee or licensee refused or failed, or refuses or fails to vacate that land or building and put the Central Government into possession of the same, any officer authorized by the Central Government in this behalf may, notwithstanding anything contained in any other law for the time being in force or in any contract, at any time, enter upon the demised land or building and recover, vacant possession of that land or building by evicting the lessee or licensee and may also demolish and remove the structures, if any, erected or built thereon by the lessee or licensee:

Provided that such officer shall, before demolishing and removing any structures under this section, issue a notice to the lessee or licensee calling upon him to remove such structures within the period specified in the notice."

Section 9 of the Ordinance empowered the Central Government to direct by way of a notification that any power exercisable by it under the Ordinance may be exercised also by an officer subordinate to it. In exercise of such powers the Federal Government issued a notification No. S R O 178 (1)/78 dated 14‑2‑1978 directing that the powers exercisable by the Federal Government under‑ sections 3, 4, 5, 6 and 7 of the Ordinance may be exercised by the officers including the Commander Karachi. This notification was issued despite Article 90 of the Constitution of Pakistan which says that the executive authority of the Federation shall vest in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. It was on 27‑3‑1984 that the Federal Government Lands and Buildings (Recovery of Possession) (Amendment) Ordinance (hereinbefore and hereinafter referred to as the Amending Ordinance X of 1984), was promulgated. It added below Section 3 of the Ordinance a new proviso which reads as under:‑‑

"Provided that such officer shall not enter upon the demised land or building unless the Federal Government has given an opportunity of being heard to the lessee or licensee."

7. Although the notification about delegation of powers was earlier than the

Amending Ordinance, but the amendment does not appear to nullify the effect of the notification, otherwise there would have been amendment of section 9 of the Ordinance restricting power of the Federal Government to delegate powers to its subordinate officers under the newly‑added proviso to section 3 of the Ordinance. The Amending Ordinance while conceding opportunity of being heard to the lessee or the licensee, does not appear in any way to reduce scope of section 9 of the Ordinance. There is no scope for the view that effect of the notification issued under section 9 of the Ordinance was in any way reduced by addition of the proviso below Section 3 of the Ordinance. The newly‑added proviso cannot be read in isolation of the notification dated 14‑2‑1978 issued under section 9 of the Ordinance, authorizing inter alia the Commander Karachi to exercise powers of the Federal Government under sections 3, 4, 5, 6 and 7 of the Ordinance. It would be preposterous to think that the Commander Karachi can exercise powers of the Federal Government in respect of section 3 but not in respect of the first Proviso to Section 3 of the Ordinance. Even if there is need of a fresh notification under section 9 of the Ordinance after amendment of section 3 of the Ordinance, it cannot be said that the old notification dated 14‑2‑1978 has lost its effect. In this view of the matter, we hold that the Commander Karachi can exercise the powers of the Federal Government for the purpose of the first proviso below section 3 of the Ordinance notwithstanding the provisions contained by Article 90 of the Constitution of Pakistan. This answers all the contentions raised by Mr. S. Inayat Ali.

8. The agreement that was executed in respect of the premises in dispute, between the petitioners and the respondent on 4‑1‑1986 came to an end on 31‑12‑1986, as admittedly it was not renewed. One of the terms and conditions of said agreement was that in case it was not renewed upto 31‑12‑1986, the licensee would pay all dues, vacate the premises and remove at his cost all the material lying there within a month of the termination failing which the same will be forfeited., Since the premises in question are owned by the Federal Government they are subject to the Ordinance which was promulgated to provide for the speedy recovery of possession of Central Government lands and buildings from outgoing lessees and licensees and unauthorized occupants. The provisions of the g Ordinance are to prevail notwithstanding any provision to the contrary in any other law, by virtue of the provisions contained in section 3 of the Ordinance. In this situation no exception can be taken to issuance of the impugned notice which is intra vires of the Ordinance. However, the respondent is required to give fresh opportunity of hearing to the petitioners and then pass order according to law.

9. The petitioners have no case for exercise of constitutional jurisdiction by this Court. Consequently we dismiss this petition with no order as to costs.

H.B.T./H‑187/K Petition dismissed.