' A residential building bearing No, M-W (IX)-A (1-S) situate in Shad Bagh, Lahore, was rented from the petitioners by a private educational institution, namely, Mahfooz Girls Primary School, New Shad Bagh, Lahore.
2. After the nationalization of the educational institutions in the country, the said institution was also taken over by the Government of the Punjab and thus by operation of law, the Province of Punjab became the tenant under the petitioners in respect of the said building.
3. In 1977, the petitioners filed ejectment application against the Province of Punjab. On 9th December, 1979, the learned Rent Controller struck off the defence of the Province of Punjab and passed orders of ejectment in favour of the petitioners, under section 13 (6) of the Urban Rent Restriction Ordinance, 1959, as the Secretary to the Government of Punjab, Education Department, defaulted in payment of rent.
4. An appeal preferred by the Province of Punjab before the learned appellate authority was dismissed on 7th October, 1981.
5. Thereafter, the petitioners took out execution proceedings but in the meantime, the Secretary to the Government of Punjab, Home Department, passed orders on 18th November, 1981 for requisitioning the aforesaid building, in exercise of his powers under section 3 (1) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956. In the order of requisitioning, Muhammad Sharif son of Abdul Karim has been notified as the owner of the building.
6. The aforesaid order, dated 18th November, 1981 of Secretary to Government of the Punjab, Home Department, has been assailed by invoking the extraordinary jurisdiction of this Court.
7. The validity of the impugned order has been mainly challenged on the following grounds :- (1)That the building in question is already in possession of the Education Department and, therefore, it could not lawfully be requisitioned for the said department in the purported exercise of powers under the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956.
(2)That the impugned order is liable to be struck down on the ground of mala fide as it has been made with an intention to frustrate the order of ejectment passed in favour of the petitioners against the respondent.
(3)That before passing the impugned order, no notice or opportunity to show cause has been given to the petitioners and thus the principle of natural justice that no one should be condemned unheard has been violated.
8. As regards the first ground, the learned Advocate-General has placed reliance on an unreported judgment of this Court delivered in Writ Petition No, 4505 of 1978 on 12th February, 1984, wherein it has been held that Government can requisition the property already in its possession. In this judgment, reliance has been placed on an earlier Division Bench judgment of this Court in M. Anwar v. The Government of West Pakistan and another (1). In this latter precedent case also it was ruled that Government can requisition property even though it may already be in its possession, whether as a tenant or otherwise.
It is, however, noteworthy that in Muhammad Tufail v. Province of Punjab and 5 others (2), with reference to section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, it was observed that a Provincial Government is authorized to require from and make a demand upon owner/occupant of the immovable property to hand over its possession for use of its officers or offices or of educational institutions provided the Government thinks it expedient or necessary to make such an order. This section contemplates that the property should not be one which is already occupied by the Government or its officers or its educational institutions. The requisition must involve the taking of possession of the property. It was further held that requisition pre-suppose taking over of a building which is in possession of persons other than those for whose use it is required to be requisitioned. A building already in use of the Government officers or offices or educational institutions cannot, therefore, be requisitioned for the same use.
This interpretation is further borne out by the provision about notice to the occupant in subsection
(3) A of section 3 of the Act. This provision can be invoked only when a person other than the Government or its employees or offices or educational institutions occupies the property.
Muhammad Tufail's case has, of course, been decided by a learned Single Judge of this Court but we cannot lose sight of the fact that this judgment has been considered by the Supreme Court of Pakistan in Province of Punjab v. Azmatullah (3) and was approved. It is, therefore, to be given preference as against M. Anwar's case.
' In this view of the matter it is concluded that in the present case when the building in question is already in possession of an educational institution of the Government of the Punjab, it cannot be requisitioned under the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956.
9. It is a common ground between the parties that pursuant to an application for ejectment filed by the petitioners against the respondent, order of ejectment of the respondent already stands passed and has been affirmed by the learned appellate authority. During the pendency of the execution proceedings of the said order of ejectment, the impugned order of requisitioning has been passed by the Secretary to the Government of Punjab, Home Department. Thus, virtually the impugned order aims at setting at naught the effect of the orders passed by the learned Rent Controller and the learned appellate authority under the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. In Muhammad Tufail's case, this aspect of the matter was also considered and it was observed that Urban Rent Restriction Ordinance contemplates the
(1) PLD 1958 (W. P.) Lah. 578 (2) PLD 1978 Lab. 87
(3) 1980 SCM R 932 ' ejectment of the tenant inter alia on the ground of default in payment of rent and if the move to requisition has been made merely for depriving the owner of the right to seek ejectment of the tenant on the ground of default in payment of rent, it would amount to using the provisions of Act 1956 for a purpose not contemplated by the Act and such an action amounts to a colourable exercise of the powers for a collateral purpose not authorized by law. It was further observed that in this manner, the defaulter would become successful by resort to another law which was not enacted with this object and it would amount to instance of mala fide act.
10. In the impugned order, the ownership of the property is shown in the name of Muhammad Sharif son of Abdul Karim. This clearly means that before making the impugned order, notice, if any, would have been served on the said Muhammad Sharif and not the petitioners. Learned Advocate- General has argued that according to the record available with the Government, Muhammad Sharif is recorded as owner of the property in question and, therefore, before making the impugned order, Provincial Government was under no obligation to serve a notice on the petitioners. This argument has no substance because in regard to this very property, the Province of the Punjab filed appeal before the learned appellate authority against the petitioners and not Muhammad Sharif, while challenging the order of ejectment, dated 9th December, 1979 passed by the learned Rent Controller in favour of the petitioners. This appeal was filed on 20th February, 1980 and was decided on 7th October, 1981. Thus on 18th November, 1981, when the impugned order was made, according to respondent's own showing, the petitioners, and not Muhammad Sharif, were the owners of the building in question. Before passing an order of requisitioning, it is obligatory to afford an opportunity of show cause to the owner of a building sought to be requisitioned. In Muhammad Yusuf Khalid v. Secretary, Government of Punjab, Home Department and 4 others (1), it was held that it was incumbent on the Government to serve the aggrieved party with the notice before making order of requisitioning, under the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956. In Nawabzada Ihsanullah Khan v.
Commissioner, N.-W. F. P., Peshawar and another (2), it was ruled that requisitioning authority was under obligation to give notice of show cause to the owner of the building and where no prior notice was given to owner of the building sought to be requisitioned, the requisition order was, without jurisdiction. In Muhammad Tufail's case also it was observed that the principle of audi alter am partum extend to all proceedings affecting such person or property of a party and orders affecting such rights cannot be passed without affording opportunity of hearing to that party unless there are express provisions to the contrary.
11. In the light of the above discussion, it is concluded that the impugned order, dated 18th November, 1981 of requisitioning the property of the petitioners, passed by the Secretary to Government of the Punjab, Home Department, suffer from inherent defects and illegalities. This Constitutional Petition is, therefore, allowed and the impugned order is declared to be without lawful authority and of no legal effect.
12. The respondent shall pay the cost of this Constitutional Petition to the petitioners.
(1) 1982 CLC 1966 (2) PLD 1975 Pesh. 182 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.