' In brief the facts of this case are stated below:- ' The property bearing No. V-19-K.76 commonly known as WEST END BUILDING, 63-The Mall, Lahore was owned by Mrs. Santosh Lata Kapur. A portion of this property was leased to Government of West Pakistan to establish a Sales and Display Depot for locally manufactured handicrafts and other commodities, at a monthly rent of Rs.286. The respondent defaulted in payment of rent from July, 1960 to February, 1961 as a result of which Mrs. Santosh Late Kapur petitioner filed an ejectment application against respondent in February, 1961 before learned Rent Controller, Lahore. The Court issued notice for 6-5-1961 to Government of the West Pakistan for filing of the written statement.
Before the said date the Home Secretary to Government of West Pakistan in exercise of the powers conferred on under section 3(I) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act 1956 gave notice to Mrs. Santosh Lata Kapur to show cause within a period of 14 days as to why order should not be passed requisitioning the portion of property bearing No.63, The Mall, Lahore occupied by Sales and Display Depot West Pakistan Small Industries.: A reply to this show-cause notice was submitted on 22-3-1961 whereafter the portion of the property in question was ordered to be requisitioned by the Home Secretary to Government of West Pakistan, Lahore vide the impugned order dated 12-4- 961.
2. This petition was placed before a Division ,Bench who was pleased to call for report from the Home Secretary. In the report dated 14-7-1961 it was stated by the Home Secretary that "The portion of building No.63-The Mall, Lahore, occupied by the Sales & Display Depot of West Pakistan Small Industries Corporation has been requisitioned for their use as the owner was contemplating to eject them and there was no other alternate accommodation available for the purpose. The West Pakistan Small Industries Corporation being a corpora te body established by t he authority of the Government, the requisitioning of the building for institutions managed by them is within the legal authority of the Provincial Government under Section 3(1) of West Pakistan Act VII of 1959." This petition was placed before me under special orders of the Hon'ble Chief Justice today.
3. I have heard the learned counsel for petitioner at length. I kept waiting for learned counsel for the respondent till 1.00 P.M. But no one appeared to contest the petition.
4. It appears that the facts are not disputed by the parties. It is admitted that the property in question is owned by the petitioner; that it was on lease with the respondent; that ejectment proceedings were initiated by the petitioner and as admitted in the comments, the requisition was necessary because the owner was contemplating ejectment from this property. It was contended on behalf of the petitioner firstly that the property was already in possession of respondent and as such its requisition was without jurisdiction. Secondly, that the requisition of the property was ordered with mala fides. Thirdly, that the respondent was lessee of this property which could, therefore, not have been requisitioned for the same purpose and finally that the requisition under West Pakistan Act VII of 1956 could have been ordered if the property was to be used for office and not for commercial purpose. In support of his contention the learned counsel placed reliance on Muhammad Tufail v. Province of Punjab (PLD 1978 Lah. 87), Province of Punjab v. Muhammad Tufail (1985 CLC 1775), Province of Punjab v. Muhammad Tufail (PLD 1985 SC 360), Province of Punjab v.
Azmat Ullah (1980 SCMR 932), and Province of Punjab v. Civil Judge, Lahore (1982 SCMR 692).
Reference was also made to Syed Saif-ur-Rehman v. The Province of Sind (1986 CLC 377), Muhammad Sharif Gil v. Government of Punjab (1986 CLC 1279), Maqsooda Begum v. Province of the Punjab (1985 CLC 2574), Muhammad Hafeez v. Government of the Punjab (1984 CLC 3479), Sakhawat Ali Siddiqui v. Province of Punjab (1983 CLC 1972), Mst. Manhaj-un-Nisa v. Deputy Commissioner (1983 CLC 2228) and Muhammad Amin v. Provincial Government of Sind (PLD 1983 Kar. 179).
5. I have carefully gone through the cited judgments. The basic relevant judgment was delivered by Aftab Hussain, J. In Muhammad Tufail v. Province of the Punjab. The facts of the said case were that Bungalow No.147-B, Satellite Town, Gujranwala was under the tenancy of Ali-Garh Association which established a Primary School in the name of the Aligarh Primary Girls and Boys School. The management of the School was taken over by the Government under Martial Law Regulation 118 in October 1972. This established a relationship of landlord and tenant between the petitioner and Government. The Government defaulted in payment of rent on account of which an application for ejectment was filed by the petitioner. The Government was directed to deposit arrears of Rent under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance. This order was complied with by the due date but the default occurred in the deposit of the rent for the month of April, 1975.
The Rent Controller struck of the defence. This order was challenged in appeal which also was dismissed. 'During pendency of the proceedings before the Rent Controller the Government directed its delegatee under the Requisitioning of Immovable Property (Temporary Powers) Act 1956 to requisition the property in possession of the Government for the purposes of running educational institution since the owners for one reason or the other had been trying to get the building vacated. A notice was served on the owners to show cause against the requisition.
' The owners submitted reply to the show-cause notice and also applied to the Rent Controller for execution of the ejectment order. A warrant of ejectment was issued which was executed on 3-1- 1977 and possession of the premises was obtained by the owners. On the same day the Commissioner Lahore Division ordered requisitioning of the property which order was challenged through a constitutional petition in this Court. It was held by the learned Judge in Muhammad Tufail's case that "requisition, therefore, prespouses 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 be requisitioned for the same use; that the order of requisition in the facts and circumstances of that case was male fide; that the petitioner had to resort to the Rent Restriction Ordinance on account of primarily and admittedly the persistent default of the rent by Government in the payment of rent", and that "defaulter with mala fides became successful by resort to another law which was not enacted with this object in avoiding the consequences of the default and in further victimising and harassing the persons who were already victimised". This judgment was challenged in appeal through an Intra Court Appeal before a Division Bench of this Court. The said appeal was dismissed vide the judgment reported as Province of Punjab v. Muhammad Tufail (1985 CLC 1775). The matter was taken to Supreme Court as well by the Province of Punjab but without any success. The .Judgment of Supreme Court upholding the two abovementioned judgments was reported as Province of the Punjab v. Muhammad Tufail (PLD 1985 Supreme Court 360).
' A perusal of the facts of this case would show that the premises in question were on lease with Government of West Pakistan which had established Sales and Display Depot of handicrafts. There was default in payment of rent to the owner from July 1960 to February 1961. An application for ejectment was filed by the owner in the Court of Rent Controller, Lahore. Government of West Pakistan, the lessee, was directed to appear in Court on 6-5-1961. However, before putting in appearance before the Rent Controller, Government of West Pakistan sent notice to the owner under section 3 (I) of Act . No.7 of 1956 to show cause as to why the leased property be not requisitioned. The property was requisitioned vide the impugned order dated 12-4-1961 when the petition for ejectment was pending in the Court of Rent Controller. It was admitted by the respondent in its report dated 14-7-1961 that as the owner was contemplating to eject them and there was no other alternative accommodation available for the purpose, the property had to be requisitioned. It is, therefore, proved firstly that the premises, requisitioned vide the impugned order, were for Sales and Display Depot which was already housed in this property. Secondly, that the requisition was ordered with male fides to avoid ejectment by the Rent Controller. I, therefore, relying on the above noted three judgments hold that the impugned requisition order dated 12-4- 1961 was illegal, void, mala fide and of no legal effect, and the same is quashed.
' In view of the above findings, it seems unnecessary to advert to other contentions on behalf of the petitioner. This petition is accepted with costs.