' ABDUL SHAKURUL SALAM, J.-- This judgment will dispose of I-C.A. No.75 of 1977, I-C.A. No.76 of 1977, I-C.A. No.133 of 1977, I-C.A.No.266 of 1982, I-C.A. No.264 of 1983, I-C.A. No.265 of 1983, 1-C.A. No. 268 of 1984, I-C.A. No. 269 of 1984, W.P.No. 7226 of 1980, W.P. 8207 of 1980, W.P. N. 4806 of 1981, W.P. No. 1419 of 1982, W.P. No.2097 of 1982, W.P.No. 2773 of 1983 and W.P.No. 2315 of 1984, as these have been ordered to be heard together.
2. Relevant facts for the disposal of these cases are that private educational institutions were being run on the privately owned premises. The institutions were taken over by the Government. Private owners obtained or sought order of ejectment against the Government under the West Pakistan Urban Rent Restriction Ordinance, 1959. The Government in exercise of its powers under the West Pakistan Requisition ing of Immovable Property (Temporary Powers) Act, 1956 passed orders of requisition of the premises to avoid eviction. This action was successfully challenged by the private owners or is being questioned.
3. The leading judgment on the subject has since been reported as Muhammad Tufail v. Province of Punjab and 5 others PLD 1978 Lah. 87, in which orders of requisition were declared to be without lawful authority inter ails on the two relevant grounds for the purposes of these cases i.e. mala fide exercise of power of requisition to avoid orders of ejectment or threatened ejectment and secondly that a property already in possession cannot be requisitioned.
4. Learned counsel for the Government Mr. M.M. Saeed Beg, led elaborate and lengthy arguments that motive for exercise of power is not decisive if there is power and has been exercised and secondly that the Government has the power to requisition a property even if it had already been in possession thereof. He read from treatise on Administrative Law and referred for the latter proposition to two cases reported as Sh. Abdul Aziz and another v. Home Secretary, West Pakistan Government and others PLD 1956 (W.P.) Lah. 1073 and M. Anwar v. The Government of West Pakistan and another PLD 1958 (W.P.) Lah.
578.
5. Learned counsel for the private respondents in support of the judgment referred to Province of Punjab v. Azmatullah 1980 SCMR 932 wherein the judgment was relied upon by the learned Additional District Judge and the Government's Second Appeal dismissed by the High Court and the matter was not challenged any further. It means that the Government accepted the validity of the judgment. When the final order of ejectment was challenged in the learned Supreme Court, the judgment was, again, not questioned by the Government. It was taken note of with approval by the learned Supreme Court. They, then referred to Province of Punjab through Secretary to the Government of the Punjab Education Department etc. v. Civil Judge with powers of Rent Controller, Lahore and others 1982 SCMR 692 wherein the learned Supreme Court explicitly observed:- "We are of the view that the learned Courts below were perfectly justified in ordering the eviction of the petitioner. As a matter of fact, we agree with the stricture passed on petitioner No.1 by the Rent Controller and the appellate Court to the effect that petitioner No.1 had acted mala fide in getting the building requisitioned to avoid the consequences of its own negligence, which is supported by the view expressed by Mr. Justice Aftab Hussain, while setting aside the order of requisition."
' They also referred to a learned Division Bench judgment from Karachi High Court reported as Mst.
Minhaj-un-Nisa v. D.C. and 2 others 1983 CLC 2228 wherein the judgment was referred to with approval and it was held that where requisition order was passed to avoid eviction, the order was illegal. Then, to another judgment of the same learned Judge on similar lines which was upheld by a learned Division Bench of this Court in I.-C.A. No. 95 of 1979 decided on 30-3-1980. When consequential order was challenged in the Supreme Court in Province of Punjab v. Civil Judge 1982 SCMR 692 the judgment of the learned Single Judge On the point was not even questioned. Of course, the learned Single Judges whose judgments have been appealed against by the Government have come to the same conclusion and followed the leading judgment of the learned Single Judge.
6. In view of the principles of consistency of judicial decisions and uniform application of law and the further fact that an Omnibus order to requisition private properties without reference to individual cases to avoid eviction, it seems unnecessary to dilate and discuss the bare propositions of law convassed by the learned counsel for the Government. He may be right and these may be determined when an occasion arises in appropriate cases. Principles of law divorced from the context can be discussed in an academic atmosphere only. When these come to be applied to concrete cases in Court, these have to be looked into and interpreted in a manner that a just decision is arrived at between the parties. Somebody's right cannot be denied because another, wit powerful can exercise power to keep the other out of his proprietary right. Judicial orders passed and maintained up to the High Court without being questioned any further cannot be set at naught by executive fiat by invocation of statutory power. If it were permissible, judicial decisions will be subverted by the losing party throwing 'equality before law' principle to winds and that too by Government functionaries whose duty it is to carry out judicial orders. Learned Supreme Court of Pakistan in Province of Punjab v. Civil Judge 1982 SCMR 692 has expressly upheld the finding of the learned Single Judge in the leading judgment that requisition to avoid eviction is a mala fide act.
Explicitly the orders of requisition were to avoid eviction under the relevant law.
7. In view of what has been stated above, the leading judgment of the learned Single Judge calls for no interference and appeals against that i.e. I.-C.A. No. 75 of 1977, I.-C.A. No. 76 of 1977, are dismissed with costs. So also the judgments of the other three learned Single Judges in which the former judgment is followed are upheld and appeals against their judgments i.e. I.-C.A. No. 266 of 1982, I.-C.A. No. 264 of 1983 and I.-C.A. No. 265 of 1983, too are dismissed with costs. Contrary judgments by two other learned Judges in I.-C.A. No. 133 of 1977, I.-C.A. No. 268 of 1984 and I.-C.A.
No. 269 of 1984 are set aside, requisition orders declared to be without lawful authority and of no legal effect. However, the parties are left to bear their own costs.
8. Writ Petitions Nos. 7226 of 1980 and 8207 of 1980 are inter-related.
Petitioner in the first petition filed an ejectment petition on 3-5-1977. Respondent-Government passed an order of requisition on 19-12-1977. The Rent Controller directed the respondent on 4-1- 1978 to deposit the arrears of rent. It was not done. Defence was struck off and the respondent was directed to be ejected vide order, dated 6-3-1979. Respondent's appeal was dismissed upholding the finding of default and reliance on requisition was found untenable in view of the leading judgment PLD 1978 Lah.
87. This is vide order of the Additional District Judge, dated 5-1-1980. Respondent filed S.A.O. No. 148 of 1980 and relying on requisition order obtained an order of status quo. The petitioner challenged the requisition order through the first petition. S.A.O. of the respondent has meanwhile abated. The respondent then filed second petition to avoid eviction in view of the requisition order.
9. In view of the decision in the leading judgment PLD 1978 Lah.
87 having been upheld as above, the respondent's petition (W.P. No.8207/80) fails and that of the petitioner (W.P. No. 7226/80) succeeds. In the circumstances, the parties are left to bear their own costs.
W.P.No.4806/81
10. The petitioner filed an ejectment application on the ground of personal use on 2-10-1977.
Respondent resisted the ejectment relying on the requisition order, dated 29-4-1978 and put in an application for the dismissal of the ejectment petition. The respondent's application was dismissed by the learned Rent Controller relying on the leading judgment, PLD 1978 Lah. 87, vide order, dated 6-6-1979. This was not challenged any further. The learned Rent Controller ordered ejectment of the respondent vide order, dated 31-7-1979. This was challenged by the respondent in appeal. The learned Additional District Judge referred to two decisions and accepted the appeal holding that "the learned Rent Controller ceased to have jurisdiction after the order of requisition." This is vide order, dated 8-7-1981. The petitioner has filed the present Constitutional Petition challenging the last mentioned order.
11. In view of the leading judgment, PLD 1978 Lah. 87, having been upheld as above, an order of requisition in the circumstances is not of Himalayan heights thwarting attempt at scaling with the help of law. The reliance of the learned Additional District Judge on two decisions is no more well- founded in view of the latest position of law above-mentioned. Consequently the appeal of the respondent allowed on the above legal ground was not well-based. Hence, his order, dated 8-7- 1981 is declared to be without lawful authority and of no legal effect. The order of the learned Rent Controller will have its way and hold the field. The petition is thus allowed with costs.
12. Writ Petition Nos. 1419 of 1982 and 2097 of 1982 are related matters. Facts are that Muhammad Rafiq petitioner in the second petition filed an ejectment application against the petitioner in the first petition, Province of Punjab, on 14-3-1979. The latter filed an application for dismissal of the petition on the ground that the premises have been requisitioned by it on 11-7-1977. The learned Rent Controller rejected the application relying on the leading judgment PLD 1978 Lah. 87, vide order, dated 28-4-1981. This is challenged by the Province of the Punjab through the first petition, (W.P. 1419/82). As an abundant caution perhaps the landlord has filed the second petition (W.P.
2097/82) challenging the requisition.
13. In view of the above that the leading judgment PLD 1978 Lah. 87, has been upheld and holds the field, the order of the learned Rent Controller as based thereon calls for no interference. Therefore, the first petition (W.P. 1419/82) is dismissed. The second petition (W.P. 2097/82) succeeds. But in the circumstances the parties shall bear their own costs.
W.P.No.2773/83.
14. Respondent No.1 Mst. Surraya Akhtar filed an application for ejectment against the petitioner, the Province of the Punjab, on the ground of default in payment of rent, damage to the property and for personal use, on 3-1-1977. It was resisted by the petitioner relying on its requisition order, dated 26-4-1977. The learned Rent Controller dismissed the ejectment petition on the ground that he had no jurisdiction in view of the requisition order. The respondent filed an appeal. The learned Additional District Judge relying on a decision of the learned Supreme Court, dated 12-2-1980 and the leading judgment PLD 1978 Lah. 87, accepted the appeal and remanded the case to the learned Rent Controller for decision in the light of the issues framed. This is vide order, dated 21-3- 1983. This is challenged by the petitioner through the present Constitutional petition.
The order of the learned Additional District Judge being well-based calls for no interference.
Therefore, the petition is dismissed with costs.
W.P.No.2315/84.
15. Mst. Nazir Begum filed an ejectment application against the respondent on the grounds of default in payment of water tax and for personal use, on 12-11-1979. it was resisted by the respondents on the ground that the premises have been requisitioned, through a written statement filed on 28-2-1980. Relying on the requisition order, dated 6-3-1978, the learned Rent Controller held that he had no jurisdiction to hear the petition. This is vide order, dated 17-3-1980.
The landlady has challenged the order through this Constitutional petition. The learned Rent Controller was not right at all to hold that in view of the requisition order, he had no jurisdiction to proceed with the petition. He had to determine the controversy brought before him, including the efficacy, validity and applicability of the requisition order in the circumstances of the case and in the light of the cases decided on the point-. Therefore, his order of refusal to exercise statutory jurisdiction conferred on him cannot be sustained and is consequently declared to be without lawful autbbrity and of no legal effect. He is directed to proceed with the case on merits. The petition is thus allowed but in the circumstances the parties are left to bear their own costs.