The petitioner is owner of House No. 52, Street No. 2, commonly known as Block No. 1, Plot No. 49 Karim Park, Katcha Ravi Road, Lahore. The upper portion of this house is in the personal occupation of the petitioner while the ground floor was rented from her in June, 1969 by one Nabi Bakhsh at a monthly rent of Rs.
173. The said Nabi Bakhsh started a Primary School in the premises with the name and style of "N.B.
Primary School".
2. By virtue of the operation of Martial Law Regulation No. 118, like other private educational institutions this school was also nationalized.
3. In February, 1978, the petitioner filed an application seeking ejectment of the respondents from the premises on the grounds of default in payment of rent, damage to the tenanted premises and bona fide personal need.
4. Written statement was filed by respondents Nos. 2 & 3 in May, 1978, wherein they raised an objection that since the premises have already been requisitioned vide Order No. S.O. (R & B). ADGI & S-P S. Girls dated 20-7-1977, pursuant to an order of even date passed by the Secretary to the Punjab Government, Home Department, therefore, the Rent Controller had no jurisdiction to pass on order of ejectment.
5. The learned Rent Controller, consequently, dismissed the ejectment petition.
6. The petitioner has now assailed the aforesaid order whereby the tenanted premises have been requisitioned under the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, through the present Constitutional Petition.
7. The validity of the impugned order of requisitioning has been chalinged on three grounds:
(i) that no notice was given to the petitioner before passing of the order of requisitioning the tenanted premises;
(ii) that the tenanted premises being already in possession of the respondents for running a primary school, the same could not be requisitioned for that purpose under the aforesaid Act of 1956; and
(iii) that the impugned order is mala fide as it intended to frustrate the proceedings initiated by the petitioner for ejectment of the respondents.
8. It has been urged on behalf of the respondents that, in the circumstances of the present case, the petitioner was not in occupation of the tenanted premises and that under the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, notice is required to be served only if a building sought to be requisitioned is in occupation of any person. It has further been urged that in the present case, the building was already in occupation of the Provincial Government as a primary school, therefore, no notice was required to be served on the petitioner or anybody else.
9. It is true that by virtue of Third Proviso to subsection (1) of section 3 (ibid), a notice of at least two weeks is required to be served if the building sought to be requisitioned is in occupation of any person. But, we cannot lose sight of the fact that the impugned order of requisitioning relating to the immovable property owned by the petitioner has directly affected her interest, therefore, service of notice on her before passing the impugned order was a requirement of natural justice.
No one can be condemned unheard. In the absence of any provision in the Act, requiring service of notice on the owner, such provision has to be read into the Act when there is no express provision to the contrary. In Muhammad Yusuf Khalid v. Secretary, Government of Punjab Home Department and 4 others 1982 CLC 1966, it was held that it was incumbent to serve the aggrieved party with a notice before requisitioning his property. In Nawabzada Ihsanullah Khan v. Commissioner N-.W.F.P., Peshawar and another PLD 1975 Pesh. 182, it was laid down 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 the owner of the building sought to be requisitioned, the requisitioning order was without jurisdiction. In Muhammad Tufail v. Province of Punjab and 5 others PLD 1978 Lah. 87, it was observed that the principle audi alteram partem extends to all proceedings affecting 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.
' In the light of the above discussion, it is concluded that the impugned order, in the present case, has been passed without affording opportunity of show cause to the petitioner. It is, therefore, not, legally, tenable.
10.. Admittedly, the tenanted premises were already in possession of the respondents as primary school before the impugned order of requisitioning these premises was passed. Section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, contemplates that order of requisitioning would be made if in the opinion of the Government it is necessary or expedient to requisition any building for the use of its officers or offices. When a property is already in the use of the Government as an educational institution, the question of requisitioning that building for the same purpose does not arise. In Muhammad Tufail's case, it is, observed that a Provincial Government is authorized to require from and demand upon owner/occupant of the immovable property to had over its possession for use of its officers or offices provided the Government thinks it expedient or necessary to make such an order. It was further observed that the section (section 3) contemplates that the property should not be one which is already occupied by the Government or its officers or offices of its educational institutions. The requisition must involve the taking over of possession of the property. It was thus held that requisitioning pre- supposes taking over of a building which is in possession of a person/persons other than those for whose use it is required to be requisitioned. A building already in use of the Government officers or offices cannot, therefore, be requisitioned for the same use. It is noteworthy that this judgment has been approved by the Supreme Court of Pakistan in Province of Punjab v. Azmatullah 1980 SCMR 932.
' In view of the above, it is concluded that since in the present case, the premises were already in possession of the respondents as Primary School, the same could not be requisitioned under the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956.
11. The plea of mala fide raised in this case on behalf of the petitioners has little substance because she filed ejectment application in February, 1978 while the impugned order of requisitioning the premises was made on 24-7-1977. It cannot, therefore, be said that the impugned order was passed to frustrate her ejectment application.
22. In the light of what has been said above, this Constitutional ' Petition is allowed and the impugned order is held to be without lawful authority and of no legal effect.
' No order is made as to costs.