1. MOHAMMAD ALI SAYEED, J.-The appellant is the landlord of a building known as Halima Court bearing Survey No. 26, Old Survey No. 7, Sheet Frere Town 3, situated, behind Giari Police Station Karachi. By an order dated 26th of September 1959 residential flat No. 4 in the said building was requisitioned by the Karachi Administration for the residence of a Central Government Servant.
2. Thereafter the question arose as to the determination of the compensation payable by the Government for the occupation of the requisitioned fiat. By an order dated 4th of January 1960 the learned Rent Controller directed the parties to have the compensation determined by recourse to arbitration in terms of section 4 of the Sind Requisition of Land Act since no agreement could be reached on the subject. Under the aforesaid provision the power to appoint an arbitrator vested in the Government but no steps having been taken by the Government in the appointment of the arbitrator or in the determination of the compensation the appellant issued a notice to the Government under section 80 of the Civil Procedure Code demanding payment of a sum of Rs.
3. 17,100, as compensation for the period 8-11-1959 to 6-11-1962 at Rs. 475 per month. Thereafter on the 6th of November, 1962 the appellant filed a suit in the Court of the then Sub-Judge, lat Class, Karachi for recovery of Rs. 17,100 with interest at 6 Y0 per annum from the date of suit till payment.
4. The suit was filed against the Republic of Pakistan through the Secretary, Ministry of Rehabilitation & Works and against the Secretary, Ministry of Interior, Government of Pakistan. On the 14th of May, 1964 the Government filed their written statement in the suit. It was urged that the suit as framed was not maintainable, that the Court had no jurisdiction to entertain the suit, that the suit was contrary to the provisions of sections 79-80 of the C. P. C., that the suit was barred by limitation, that it was bad for non-joinder of the necessary parties and multi. Fariousness. Amongst other things it was also urged that the defendants in the suit were not the Provincial Government in Karachi at the material time nor were they the Provincial Government within the meaning of the Sind Requisition of Land Act, 1947 at the time of the filing of the suit and no cause had thus accrued to the appellants against the defendants. It was also contended that the plaintiffs could claim compensation only in the manner prescribed by the Sind Requisition of Land Act and not by institution of the suit. Further, the claim of the plaintiff for compensation at the rate of Rs. 475 per month was questioned. On the 5th of December 1964 consent issues filed by the parties were adopted by the Court.
2. In support of the claim the appellant examined his general attorney while no evidence was led on behalf of the respondents/defendants. The learned Civil Judge, 1st Class, Karachi who beard the suit decreed the appellant's claim by his judgment dated 27-1-1966 for Rs. 16,150 with proportionate costs and Interest at 6 Y. Per annum from the date of suit till realisation of the decretal amount. It would appear that the learned Civil Judge while decreeing the suit in the above amount calculated the compensation at the rate of Rs. 475 per month and deducted therefrom 2 months rent. Amounting to Rs. 950. The present respondents carried an appeal against the said judgment and decree to the learned District Judge, Karachi. This appeal was heard by the learned Additional District Judge, Karachi. The learned Additional District Judge by his judgment dated 17- 5-1966 modified the decree passed by the learned Civil Judge, in that the claim for compensation was calculated at Rs. 225 per month, plus Ili% taxes thereon. Neither the judgment of the learned Additional District Judge nor the decree prepared on the basis thereof gives the total figure which became payable to the decree holder thereunder. . We would like to pause here and depreciate the frequent tendency we have found in the subordinate Courts to merely lay down the principle for calculating the decretal amount without setting out the actual amount for which the suit is decreed. It is a duty of A the Court to state precisely the terms of its decree, even if this result necessitates considerable effort tions. and intricate calcula--3. Reverting now to the judgment of the learned Addi., tional District Judge it may be mentioned that the basis as disclosed month ger by was him that for the Rent Controller awarding compensation at the rate of Rs. 225 had offered to the appellant Rs. 225 p.m. Plus usual taxes but that the landlord had refused to accept it. The learned Additional District Judge further observed that the offer of rent by the learned Rent Controller at Rs. 225 per month plus taxes had not been denied by the landlord. The landlord. It was argued, had not filed an appeal against the above fixation before the District Judge as permitted by the statute.
5. Since the landlord had failed to resort to the above procedure he was not, according to the learned Additional District Judge, entitled to claim rent at Rs. 475 p. m. Reliance was placed by him on the case of Pakistan v. Mohammad Ali (1) in which their Lordships of the Supreme Court had held that. The compensation for any immovable property requisitioned under the Sind (Requisition of Land) Act should consist of a fair rent of the property determined by the Controller in accordance with the provisions of the Sind Rent Restriction Act, 1952. Had the learned Additional District Judge taken pains to familiarise himself with the amendments made in the law, he should perhaps have known that section 3-A of the Sind (Requisition of Land) Act which laid down the machinery for determination of compensation by reference to the provisions of the Sind Rent Restriction Act of 1952 had been repealed by the Governo B General's Order No. 1 of 1956 and all cases of compensation thereafter had to be determined by reference to arbitration in accordance with the provisions of section 4 of the Sind (Requisi-- tion of Land) Act, 1947. Moreover there was not even a shadow of evidence before the learned Additional District Judge to suggest that the Rent Controller had fixed the fair rent of the disputed premises at Rs. 225 per month. This fixation of fair rent was fn fact in relation to a different tenement in the same
(1) PLD 1960 SC 60 building. Even this fixation had been struck down by the High Court in Writ Petition No. 632/62 as not being legal. Although it is not necessary, we may further point out that the Governor General's Order No. 1 of 1956 which repealed section 3-A of the Sind (Requisition of Land) Act came into force on the 21st of March, 1956 and was deemed to have taken effect on and from the 21st of June 1947.
6. It would thus appear that the entire basis of the judgment given by the learned Additional District Judge was not only misconceived in law but founded on erroneous assumptions. The appellants had established in the Court of first instance that the disputed premises had commanded a rent of Rs. 475 per month and that one of the officers, Dr. M. Ibrahim, who continued its occupation after the fiat had been de-requisitioned, agreed to pay rant at Rs. 475 per month being the same rent as was commanded by another flat in, the occupation of Mr. I. G. D'Silva in the same building In any case the government led no evidence to rebut the evidence adduced by the landlord and we see no good reason to determine--the compensation at a figure other than that on which the fiat was being let out. The landlord had produced a bunch of counterfoils of rent receipts issued to other tenants which all indicated that the fiat - had commanded a rent at Rs. 475 per month.
4. Mr. A. A. Zari the learned counsel for the respondents--contended that the suit against the Central Government was not maintainable since in relation to Karachi the Central Govern--ment exercised dual functions, in the relevant period. In respect of matters affecting the administration of Karachi the functions, exercised by the Central Government were in its capacity as the Provincial Government for Karachi and that in all such matters it was the Provincial Government which was to be sued and nott. The Central Government. It was further argued that the suit in question was filed on the 6th of November 1962, that is, after Karachi was merged into the Province of West Pakistan by the West Pakistan Administration (Merger of the Federal Territory of Karachi) Order (President's Order No. 9 of 1961), gazetted on the 26th of June 1961. The contention of the learned counsel more precisely was that under the aforesaid order the liabilities which related _to its functions as the.
7. Prcvincial Government for Karachi were passed on to the Government of West Pakistan. Hence according to the learned counsel the suit was properly to be filed against the Government of West Pakistan. We have examined this contention carefully and we do not find it possible to agree with the learned counsel for the respondents. A reference to the requisition order dated 26th of September, 19=9, which is indeed the basis of the present suit, recites that the accommodation is required for the residence of a Central Government Servant. Thus the distinction which the learned counsel attempted to draw between the dual responsibilites of Central Government in relation to Karachi looses its significance. The disputed premises ex facie had been requisitioned for the residence of a Central Government Servant and it is this order which gave rise to the claim for compensation. We would imagine that the landlord !s least concerned to sea, how and by whom the premises were actually used and it was impossible for him to keep track of the changing officers unless the landlord was informed of a change for the purpose of the requisition. It is no body's case that the landlord was so informed.
5. Apart from the above position, Mr. Zari's contention that the liabilities the Cer:tral Government had assumed in relation to a provincial subject were transferred by the Central Government to the Provincial Government, has also no basis. We do not find any provision in the President's Order No. 9 of 1961 which spells out the suggested arrangement. On the other hand subsection 3 of section 6 of the President's Order No. 9 1961 made the following provisions : "All rights, liabilities and obligations of the Central Govern--ment relating to properties and assets or to contracts, debts or payment or receipt of money, accrued or incurred immediately before the appointed day, shall continue to be the rights, liabilities and obligations of the Central Government."
8. It follows from the foregoing provisions that the liability to pay compensation for the requisition of a premises for the residence of a Central Government Servant was the liability incurred by the Central Government and continued to be so. If indeed the disputed premises had : subsequently been made over by the Central Government to the Provincial Government for the accommodation of the latter's offcers we would conceive that the liability of the Central Government vis-a-vis the landlord continued to remain intact and it was wholly a matter between the Central Government and the Provincial Government inter se to adjust the same. In this connection it will be useful to reproduce herein section 7 of the President's Order No. 9 of 1961.
9. "(1) As soon as may be after the appointed day, the President shall appoint a Committee of such members as he thinks fit to make recommendations as to.
(a) which of the taxes, revenues and other moneys referred to fn Article 6 should continue to be payable to the Federal Consolidated Fund or the Public Account of the Federation and which of such taxes revenues and other moneys should be payable to the Provincial Consolidated Fund or the Public Account of the Province of West Pakistan ; and
(b) the apportionment and adjustment of properties, assets, rights, liabilities and obligations referred to in Article 6 between the Central Government and the Government of West Pakistan.
(2) The President shall pass such orders relating to the matters referred to in clause (1) as he thinks fit taking into consideration the recommendations of the Committee."
10. Our attention has not been drawn to any decision of the Committee or of the President referred to in the foregoing provisions about the principle of apportionment touching the present claim. Nor has any decision been produced in evidence. Even so it seems to us that the apportionment and adjustment visualised in section 7 of the President's Order No. 9 of 1961 is purely a matter of inter-governmental arrangement and no decision reached under the said provision could affect the rights of the third parties to enforce their claim on the basis it originally accrued.
6. Mr. A. A. Zari, the learned counsel for the respondents then contended that section 4 of the Sind (Requisition of Land) Act, 1947 prescribed a specific statutory procedure for determina--tion and recovery of compensation. This provision, according to him, excludes by implication, the procedure of having the compensation determined by reference to the civil Court. Before dealing with this contention it would be worthwhile to observe that the respondents did not file any appeal against the decree of the learned District Judge whereby the appellant's claim for compensation was decreed at Rs. 225 per month. On being questioned by us Mr. Zari stated that the respondents had no objection to the payment of compensation at the rate allowed by the learned Additional District Judge. But if the appellants were to press their claim for the higher rent, Mr. Zari stated that he would have no option but to question the jurisdiction of the civil Court to decree the suit. He justified his right to take this objection by reference to rule 33 of Order 41, C. P. C. No doubt the terms of Order XLI, rule 33, C. P. C. Are, as held by the Supreme Court in S. M. Yousuf v. Mahdmmad Mehdi Pooya (1) of the widest amplitude to enable the appellate Court to pass decrees according to the justice of the case. We have, therefore, heard Mr. Zari on this contention as well. In order to appreciate the contention of the learned counsel it will be necessary to reproduce here the provisions of section 4 of the Sind (Requisi--tion Land) Act, 1947. This section is in the following terms "4. (1) Where any immovable property is acquired under the provisions of this act, there shall be paid compensation, the amount of which shall be determined in the manner and in accordance with the principles hereinafter set out, that is to say
(a) where the amount of compensation can be fixed by agreement, it shall be paid in accordance with such agreement ;
(b) where no such agreement can be reached, the Provincial Government shall appoint as arbitrator a person qualified under subsection (3) of section 220 of the Government of India Act, 1935, for appointment as a Judge of a High Court ;
(c) the Provincial Government may, fn any particular case, nominate a person having expert knowledge as to the nature of the property acquired, to assist the arbitrator, and where such nomination is made, the person to be compensated may also nominate an assessor for the said purposes ;
(d) at the commencement of the proceedings before the arbitrator, the Provincial Government and the person to be (1)PLD1965SC15 compensated shall stage what in their respective opinions is a fair amount of compensation
(e) the arbitrator in making his award shall have regard to-
(1) the provisions of subsection (1) of section 23 of the Land Acquisition Act, 1894, so far as the same can be made applicable ; and
(Ii) whether the acquisition is of a permanent or temporary character ; Provided that where any property requisitioned under this Act is subsequently acquired under section 3, the arbitrator in any proceedings in connection with such acquisition shall, for the purposes of the provisions of the said section 23, take into consideration the market value of the property at the date of its requisition at aforesaid and not at the date of its subsequent acquisition ;
(f) an appeal shall lie to the Chief Court against an award of an arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Provincial Government ;
(g) save as provided in this section and in any rules made thereunder, nothing in any law for the time being in force shall apply to arbitrators under this section.
11. (2)
12. The argument employed was that the foregoing provision having devised and set out a specific machinery for the determina--tion of compensation, the jurisdiction of the civil Court to do so was, by necessary implication, excluded. Reference in this connection was made to section 9 of the Code of Civil Procedure which clearly visualised the jurisdiction of the civil Court being qmpliedly barred. The concept of implied bar came to be considered rather exhaustively by M. Munir; Acting C. J. As he then was of the Lahore High Court in the celebrated case of Sultanali Nanghiana v. Mian Nur Hussain (1). The precise rule enunciated on the weight of authority was "that where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that D Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive". In other words, in order to constitute implied ouster of an absolute nature the right or the liability, in relation to which the Statute prescribes a special machinery of adjudication, must also owe its own creation to that very Statute. And where this condition obtain the ouster is complete irrespective of the existence or functioning of or exercise of jurisdiction by the special machinery devised by the Statute. Where however the right or the liability, as the case may be, is not the product of the Statute which provides for its adjudication, the inference of ouster will not follow as a rule. In the former case the right is to be had within the framework of the particular
(1) PLD 1949 Lah. 301 Statute while in the latter the right exists outside it. Where the right or the liability exists outside the Statute the special procedure prescribed for its enforcement becomes exclusive only when such remedy is available and at hand. Where however the special remedy has become impossible of pursuit owing to the non-existence of the Tribunal to be constituted thereunder or its refusual to act or the remedy has otherwise become illusory or ineffective due to the failure of certain conditions which are a pre-requisite for setting its machinery into motion, it cannot be said that the civil Courts would be acting without jurisdiction in entertaining actions for the enforcement of the rights. In an earlier case of Sat Narlan Gurvala v. Hannaram Pershad (1) a Division Bench of the Lahore High Court had found it possible to apply the foregoing concept of conditional ouster even to those cases in which the Statute creating the right also prescribed a procedure for its enforcement. But in Sultanali Nanghiana's case the majority view of a full bench of the same Court was that the theory of conditional ouster would apply only to those cases in which the right exists independently of the Statute prescribing the procedure for its enforcement.
13. In the instant case, if we are to reach the conclusion that the right to receive compensation for the requisition premises exists independently of the Sind (Requisition of Land) Act of 1947, the rrsuit in view of the forgoing discussion, would seem to follow that the exclusiveness of the machinery provided by the said Act for determination of the compensation may be displaced by factors like unavailability of the special machinery or a clog in its functioning. We have noticed that the Rent Controller, In the case before us, instead of taking steps for the appointment of an arbitrator in terms of section 4 of the Act, offered to the owner a sum of Rs. 225 per month as compensation.
14. Even if the provisions of section 3-A of the Act had not, before the date of the said offer, been repleaded, the Rent Controller ought to have determined the fair rent of the premises in a formal way and in accordance with the provisions of the Sind Rent Restriction Act, 1952. His informal offer of Rs. 225.00 per month, which the learned Additional District Judge relied upon, was plainly without any legal sanction. The proper and legal cause to have been followed in the case was to refer the subject to an arbitrator in accordance with the provisions of section 4 of the Requisition Act. The step was not taken till more than three years after the order of requisition was made and possession taken over. The landlords' claim for compensation had started becoming time-barred month by month. The movement of the machinery for appointment of the arbitrator was not in his hands. He could not even invoke the provisions of section 8 of the Arbitration Act of 1940 and approach the Court for appointment of the Arbitrator as Clause (g) of sub--section (1) of section 4 of the Sind (Requisition of Land) Act, 1947, excluded the application of the provisions of Arbitration Act, 1940, to arbitrations under the Requisition Act. In these circumstances it would plainly appear that the machinery devised
(1) AIR 1946 Lab. 85 by section 4 of the Sind (Requisition of Land) Act, 1947 for determination of compensation payable to the appellant had become illusory and ineffective by the failure of Government to appoint an arbitrator.
15. This brings us to the question whether the right to receive compensation was purely a creature of the Sind (Requisition of Land) Act or did the right exist outside and independently of the said Statute? We would-answer this question by stating that the right of receive compensation for property that is sequestered or expropriated by the State is as old as the doctrine of 'eminent domain' itself and is a necessary incident of the power of =compulsory acquisition. It is constitutionally recognised in the 14th right of the 1962-Constitution and the very power to acquire E or to take possession of property is subject to the principle that compensation will be paid. The Sind (Requisition of Land) Act, 19.17 was not in any sense creating a new right when it provided for payment of compensation to the dispossessed owner. Provisions of section 4 of the said Act are to be understood as merely recognising the States obligation to pay compensation and as laNing down a procedure for its determination. Where therefore such procedure has been rendered nugatory by Govern--ment's own inaction the right of the citizen to invoke the jurisdiction of the civil Court for recovery of his rights which are available to him, both at common law as well as under the Constitution, cannot be questioned.
16. It may perhaps be argued (although this was not the contention of the respondents' learned counsel) that the proper course for the appellant was to compel the Government by .Appropriate proceedings to appoint an arbitrator and refer the subject to him. This argument, we would permit ourselves to say, would have gathered force if the ouster of the civil Court's jurisdiction was absolute. The provisions of section 4 of the Sind (Requisition of Land) Act, 1947 being purely procedural and the said procedure having stood frustrated by failure or refusal of Government to act, there was no bar to the landlord seeking his direct remedy in the civil Court.
17. For the reasons mentioned above we allow this appeal and setting aside the judgment and decree of the learned Additional District Judge, we hereby restore the decree of the learned Civil Judge, Karachi. In the result the appellants suit is decreed in the sum of Rs. 16,150 with proportionate costs throughout and interest at 6 YO per annum from date of suit till realisation. The decree shall be satisfied within three months of its signing.