1. ' SAJIAD ALI SHAH, J.-Petitioner has called in-question impugned order dated 19-12-1978 of the Deputy Commissioner and District Magistrate (South), Karachi, whereby review petition filed against the order of requisitioning of the bungalow in question of the petitioner, has been rejected.
2. ' Shortly stated the relevant facts are that the petitioner is the owner of Bungalow No, 153/B Sindhi Muslim Housing Society, Karachi which was requisitioned on 2-12-1978 under section 3(1) of West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 by respondent No, 2.
3. According to the petitioner the said house could not be requisitioned for the reason that it was in her occupation at the time when it was sealed. It is submitted by the petitioner that on the day when the house in question was sealed she had gone out for medical check up and on her return was informed by her chowkidar that some persons had come and sealed the house and left a copy of the order which was given to her by the chowkidar. She also found her personal effects lying scattered in the compound and the house was sealed from outside. She filed review application which was dismissed as stated above. The case of the petitioner is that the house in question was on rent with Pakistan Edible Oil Corporation and was vacated in the end of October, 1978 after which she occupied it and also at the same time was having repairs carried out, hence not only her personal effects were there in the house but there were also tins of paint, which were thrown out at the time of sealing. It is also submitted that before the impugned order on review application was passed by respondent No, 2, the petitioner requested him in writing on 13th December, 1978 for personal inspection of the house, which was done by respondent No, 2 and he saw the evidence supporting her claim that the house was in occupation at the time of sealing but no such mashirnama was prepared. The petitioner has also filed photostat copy of an application addressed to respondent No, 2 in which it is stated that the house was inspected by him and he found house effects such as beddings, carpets, clothes, chairs and tins of paint and articles in the kitchen but no mashirnama was prepared and the house was again sealed by the representative of the Estate Officer after inspection.
4. ' On the other hand perusal of impugned order dated 19-12-1978 passed by respondent No, 2 shows that proper hearing was given to the petitioner as well as representative of the Estate Office and advocate of the petitioner was heard. It is mentioned in the impugned order that respondent No, 2 had inspected the house in question but could not find sufficient evidence to convince that the house was in occupation at the time of sealing. He saw some furniture on the lawn of the house, which according to the respondent No, 2 was brought in there on the lawn as an after-thought after the house was sealed. It is stated in the impugned order that in the living room there was a carpet which was spread and one rolled bedding was lying in one corner. There were also some empty tins of paint which were stacked in one corner. In the kitchen there was one burner and few empty cans. One window grill of the room was loose and was held in position by 2/3 nails which could be easily removed. Respondent No, 2 came to the conclusion that this evidence was not sufficient to indicate that the house in question was in occupation at the time when it was requisitioned and sealed. It is also stated in the impugned order that advocate of the petitioner had admitted that petitioner has four sons who have their independent accommodations at different places with whom the petitioner used to reside from time to time. It is observed in the impugned order that the petitioner was an old lady could not live all alone in such a big bungalow.
5. Additionally respondents have filed three counter-affidavits in support of opposition that the house in question was not in occupation of the petitioner and was available on rent. Pervez son of Haji Bashir, who is proprietor of Aneel Estate Agency has stated in his counter-affidavit that he found the house in question to be vacant and on inquiry chowkidar of the house informed him that it was available on rent and gave two telephone numbers i,e, 234201 and 418234 to contact Haji Shakoor, son of petitioner. He contacted Haji Shakoor who informed him that house was available on rent hence he advertised about the availability of the same house in daily "DAWN" published on 28-11- 1978. Subsequently Lt.-Col. Usman Ali approached him for hiring the said house and he took him to the said house which was lying vacant and was shown by chowkidar of that house. Thereafter, talks were initiated with Haji Shakoor who demanded Rs, 2,000 per month as rent and advance of two years whereas Lt.-Col. Usman Ali was prepared to pay Rs, 1,500 per month without any advance. Later on Haji Shakoor was prepared to accept the rent at Rs, 1,800 per month with an advance of one year. Since the parties did not agree, he gave telephone numbers of Haji Shakoor to Lt.-Col. Usman Ali for carrying on the talks further. Lt.-Col. Usman Ali has stated in his counter- affidavit that he was posted at Headquarters of M. L. A. Zone 'C' on 18th November, 1978 and was on the look out for the residential accommodation. He saw advertisement in daily "DAWN," photostat copy of which he has produced and contacted Aneel Estate Agency. He was shown the house in question by Mr. Pervez and had talks with Haji Haroon and Haji Shakoor, sons of petitioner. He has fully supported the story given by Pervez in his counter-affidavit. It is further stated by Lt.-Col. Usman Ali that after sons of petitioner were not prepared to rent out the said house at Rs, 1,500 per month, he approached Estate Office through his department with a request for requisitioning the house in question for him. There is also counter-affidavit of Farid Ahmed, who is Office Superintendent of the Estate Office. He has stated that house in question was vacant and available on rent at the time when it was sealed. Possession was handed over to Lt.-Col Usman Ali and a copy of statement of handing over and taking over, prepared by representative of the Provincial Building Division No, 2 has been produced by him and also the copy of allotment order issued in favour of M. L. A. Headquarters Zone C has been produced.
6. ' It will be pertinent to point out that no affidavit in rejoinder has been filed against the counter- affidavits mentioned above, which fact indicates that whatever has been stated in the counter- affidavits has not been challenged by the petitioner. This assertion that the house in question was advertised in the newspaper and sons of petitioner negotiated with Pervez of Aneel Estate Agency or Lt.-Col. Usman Ali is not denied specifically by the petitioner as nothing has been said to refute this allegation. Affidavits of sons of petitioner have not been filed in rebuttal. This shows that there is ample evidence on the record that the house in question was available on rent at the time when it was requisitioned. Mr. Nasim Farooqi in support of his contentions relied upon the decision in case of Mrs. Nenza v. West Pakistan through Chief Secretary. In this decision "occupation" has been defined showing kinds of possession which could be physical or actual as well as interpretive but this does not help the case of the petitioner because in the instant case not only there is not enough evidence to show the occupation of the petitioner but the house in question was available on rent for which there is sufficient evidence which is not challenged by the petitioner.
7. ' It was then contended by Mr. Nasim Farooqi advocate for the petitioner that no show-cause notice was given to the petitioner before the house was requisitioned and sealed. On the other hand Mr. Abdul Sattar Shaikh, Addl. A.-G. Appearing for respondents has contended that show- cause notice as contemplated under section 3 of the said Act is to be given in respect of building which is in occupation and in the instant case the building in question was not in occupation but was available on rent. He has pointed Out that petitioner has not filed any affidavit in rejoinder against counter-affidavits filed on behalf of the respondents which clearly show that the house was vacant and the sons of the petitioner had negotiated for renting it out to Lt.-Col. Usman Ali. It is further submitted by him that the house at the time of sealing had been vacated by various tenant and there is no sufficient evidence produced by the petitioner that it was in her occupation and she was living in there. So far the personal effects of the petitioner lying outside in the lawn are concerned, it is submitted that they were dumped there after the premises were sealed in order to show possession of the petitioner. In any case this evidence with regard to the possession looses significance when the respondents have produced evidence to show that there was advertisement in the newspaper and negotiations were also carried on by sons of the petitioner to rent out the house which proves that house was available on rent and was vacant at the relevant time. It is submitted by Mr. Abdul Sattar Shaikh that the petitioner has not examined nor produced affidavit of chowkidar to show that she was holding possession of the house through him. In any case it is submitted that the petitioner has herself admitted in the petition that notice was left with chowkidar, who handed her the same. Petitioner was heard and she filed objections and also review application. Advocate of the petitioner was heard by respondent No,
2. On the request of the petitioner the house in question was inspected by respondent No,
2. In such circumstances we are of the view that there is sufficient evidence to show that the house in question was vacant and available on rent at the time when it was requisitioned and sealed and there is no illegality committed in the procedure adopted by respondents to requisition this house.
8. ' During the pendency of this petition on 2-1-1979 application was filed with a prayer to attach and remove the properties of Lt.-Col. Usma n Ali found in the premises in question and to take action for contempt for the reason that order of status quo passed by this Court on 27-12-1978 had been violated. It appears from the record that the petitioner was admitted for regular hearing and status quo was granted vide order dated 27-12-1978. The Court directed the Nazir vide the same order to prepare inventory of the articles lying in the bungalow after issuing notice to the respondents.
9. Report of Nazir dated 1-1-1979 shows that while making inventory he found personal effects of Lt.- Col. Usman Ali lying inside the bungalow and two of his servants were present in the premises in question. Notice was issued to the Estate Officer to produce the relevant record to show as to when possession was handed over to Lt.-Col. Usman Ali whether before or after order of status quo was1 passed. The record produced by the Estate Office shows that possession was handed over on 19- 12-1978 when the petition was admitted and order of status quo was passed on 27-124978.
10. ' In the circumstances and for the facts and reasons mentioned above no interference is called for and petition is dismissed with no order as to costs. PLD 1969 Kar. 622