This Writ Petition calls in question the validity of an order dated 27-8-1980, passed by the Commissioner. Rawalpindi Division, Rawalpindi (respondent No. 1 herein) whereby the petitioner's House No. 245. F-6/2, Margala Road, Islamabad was requisitioned under the provisions of section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act (VII of 1956).
2. It is submitted on behalf of the petitioner that the construction of the house in dispute has not yet been 'completed ; that some material for construction is locked in some rooms of the house ; and that the elec--tricity and gas connections have yet to be obtained. It is contended that under the circumstances, respondent No. 1 could not exercise his powers of requisitioning under section 3 of the Act.
3. It is further submitted that respondent No. 1 had issued a show-- cause notice to the petitioner telegraphically for his appearance before him on 27-8-1980 and the petitioner's brother-in-law, namely Khalid Jalil under his petitioner's instructions appeared before respondent No. 1 and urged that the house was not I yet complete and that it was also needed by the petitioner for his personal occupation. The said Khalid Jalil also filed an affidavit in which the above facts were asserted, but respondent No. 1 went ahead and passed impugned order.
4. The learned Addl. Advocate-General, Punjab has filed the comments made by respondent No. 1 to the writ petition. He has also filed a summary prepared by respondent No. 1, of the facts and circumstances of this case. The learned Deputy Attorney-General, who argued the case on behalf of the respondents, submitted that only a few minor items in the house remain to be completed and that as such there could be no warrant for the view that the house in dispute is incomplete. It is also submitted that the said minor items, which require completion, can be done up after the house is occupied by the Officer of the Government for whom it has been requisitioned. Assurance is also given that the respondents will not stop the petitioner; from entering the house and having the finishing operations completed.
5. The question on which the decision of this petition turns, is whether the petitioner could be said to be in occupation of the house in dispute of which he is the owner, because section 3 of the aforesaid Act, which empowers the requisitioning of a house, also lays down in the fourth proviso to subsection (1) that ; "no owner in occupation of a residential house shall be 'required to vacate it."
The reason why the parties have laid so much emphasis on the question of completion of the house is that the word "occupation as used in the proviso is interpreted in terms of its completion in the Full Bench Judgment of Karachi Bench of former West Pakistan High Court in the case of Mrs. Nema v. West Pakistan through Chief Secretary to the Government of West Pakistan and another (P L D1969 Kar. 622). The view expressed by Qadeeruddin Ahmad, J. Is as follows :- "If we apply the above principles to the facts of the case which is now under consideration. We find that the petitioner was in full possession and control of the bungalow through her servants or agents. It was structurally capable of being occupied as a dwelling house but was not furnished and kept ready for residence because its completion, to the owner's satisfaction, was awaited. I can, therefore, hold that it was not occupied as a dwelling house, but I should further say that, nor was it yet ready for residence according to the notions of the owner who was completing it by giving to it the last touches. No exception can be taken to this attitude of the owner because there was no reason for her to make hurry in occupying it, and there was no reason for able ness on her part in completing the bungalow to her satisfaction before occupying it. Some building material and a Chowkidar were at the site when its possession was taken by respon--dent No. 2. Since the bungalow was considered to be still not ready for occupation as a residence, it was being used by the owner for the purpose which was the most suitable under the circum--stances, namely, its completion- for residence. It was, therefore, not occupied as a dwelling house, but was occupied as a house under construction. The law does not specify the purpose or manner of occupation.
Section 3 of the Requisitioning of Immovable Property (Temporary Powers) Act, 1956 applies to all cases in which "a building is in occupation of any person" irrespective of the purpose and manner of occupation. The nature of occupation as explained above, cannot be independent of the nature and condition of the tenement that is occupied, nor can it be independent of the purpose for which the tenement may be reasonably used. A house under completion can therefore, be expected to be occupied as such and not, ordinarily, as a dwelling house."
6. In the comments submitted by respondent No. 1, it is admitted in paragraph 2 that "5a little work of final touches is left which the attorney of the owner promised to complete within a week or two".
It is also admitted in paragraph 8 of the comments that the house "is complete except for some minor work". However, what is asserted on behalf of the respondents is that the petitioner was residing at Karachi where he carries on his business, and where he has a residence, and that he could not be said to be residing at Islamabad. It is also stated in paragraph 4 of the comments that the attorney of the petitioner had agreed to the requisitioning of the property for a period of four months, and had promised to get "the remaining minor works completed within one or two weeks from 27-8-1980". It is not denied in the comments that the electricity and gas connections have not yet been installed in the house. Even if the list of items allegedly requiring completion, which the petitioner has submitted on a separate sheet, is ignored, there can be no doubt that for some items at least the house remains incomplete. Respectfully following the view expressed in the Full Bench judgment in the case of Mst. Nema, I hold that the petitioner is in constructive occupation of the house in dispute, and he will remain in such constructive occupation till it is complete in all respects. In this x-view of the matter, the fourth proviso to subsection (1) of section 3 of the Act, prevent respondent No. 1 from requiring the petitioner to vacate the house. The writ petition is, therefore, accepted and the order passed by the Commissioner dated 27-8-1980 is declared to be without lawful authority. However, this order will not prevent the respondent from requisitioning the house after its competition, if such requisitioning will be warranted by the circumstances existing at that time.
8. There shall be no order as to costs.