IRSHAD HASAN KHAN, J- This petition under Article 9 of the Provisionary Constitution Order,1981, calls in question Notification dated 19.1.1982 issued by the Secretary to the Government of the Punjab, Home Department in the purported exercise of his powers vesting in him under section 3 of the West Pakistan Requisitioning of Immoveable Property (Temporary Powers) Act (No.VII of 1956) read with West Pakistan Notification No. Jul. 1-12(10)/61 dated 15.6.1962, whereby; property No.SE-VI-29- S/9/B, Govt. Abu UI Khair Girls Middle School Garhi Shahu Lahore, was requisitioned for an educational institution.
2. The background of this case is that Mian Muhammad Aslam petitioner landlord had let out premises in dispute to Abu UI Khair Primary School. It was however, nationalised in 1972 and the Province of the Punjab through the Secretary; Education became the tenant by operation of law.
The Education Department allegedly paid the rent to the petitioner landlord for some the and thereafter made I default in the payment of rent due from February 1978 to January, 1979. The petitioner landlord thereupon was constrained to file an application under section 12, (6) of the Punjab Urban Rent Restriction Ordinance, 1959, on 7.2.1979 on the ground of default. The Punjab Government resisted the application and inter alia took a preliminary objection to the effect that the disputed premises were owned by one Muhammad Sadiq, who gifted the same to Anjuman Islah-e-Muashrah, a welfare association and possession was also handed over to them.
3. During pendency of the ejectment proceedings and to defeat the same, the Punjab Government requisitioned the property in dispute. The learned Rent Controller, however, passed order of ejectment against the Punjab Government on 12.1.1987. Appeal filed by the Government was also dismissed on 3.4.1989. Thereafter, the Punjab Government filed writ petition (No.3995 of 1989), which is pending before this court.
4. Learned counsel for the petitioner argued that the impugned requisitioning order was passed mala fide to frustrate the ejectment proceedings filed by the petitioner against the respondents. It was further argued that the building in question could not be requisitioned under the second proviso to section 3 of the West Pakistan Requisitioning of Immoveable Property (Temporary Powers) Act, 1956 (hereinafter called the Act). Mr. Maqbool Elahi Malik learned Advocate-General challenged the locus standi of the petitioner to file the writ petition, inasmuch as, according to him the petitioner was not the owner of the disputed premises. The learned Advocate-General relying on M .Anwar v. The Government of West Pakistan (PLD 1958 (WP) Lahore 578), contended that the Government can requisition property even though it may already be in its possession whether as a tenant or otherwise.
5. I have heard the submissions made by learned counsel for the parties and perused the material available on record. The writ petition is maintainable, in that, the impugned Notification was issued in the name of the petitioner. He being an aggrieved person within the meaning of Article 199 of the Constitution was competent to challenge the same.
6. Section 3 of the Act provides that if in the opinion of the Provincial Government, it is necessary or expedient to requisition any building for the use of any officer or office, the Provincial Government may by order in writing requisition any building or make such further order as appears to it to be necessary or expedient in connection with the Requisitioning Act. The second proviso to section 3 ibid, as amended by the Punjab Act No.XII of 1976, provides that no building which is used for imparting education through the private educational institutions shall be requisitioned. Here the educational institution was nationalised by virtue of MLR No.118. The premises in dispute were admittedly not being used for imparting education through a private educational institution at the relevant time. I, therefore, find no force in the submission of Mr. Muhammad Zaman Qureshi that the building in dispute was not liable to be requisitioned under the second proviso to section 3 of the Act.
7. Be that as it may, the impugned requisitioning order was passed to avoid eviction for extraneous consideration. Such an order is not sustainable. This view finds support from a decision of the Division Bench of Sind High Court in the case of Mstt. Minhaj-un-Nisa v. D.C. (NLR 1983 Civil 70), which was followed by the Division Bench of this court in Province of Punjab v. Muhammad Tufail (PLJ 1985 Lahore 204). The same view was taken in Muhammad Tufail v. Province of Punjab PLD 1976 Lahore 87). Also refer Province of Punjab v. Civil Judge (1982 SCM R 692), wherein the rule laid down in an unreported judgment delivered in writ petition slo.2872 of 1978 decided on 19.2.1979, was approved to the effect that where the object of requisition was to defeat the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, and the rights of the landlord to get the relief against the default from that authority, the requisition being for extraneous consideration is mala fide. Respectfully following the ratio laid down in the precedent cases, I hold that the impugned requisition order was passed merely for depriving the petitioner from pursuing ejectment proceedings initiated against the Punjab Government. Clearly, the provisions of the Act were used for a purpose not contemplated therein. The impugned order was passed in colourable exercise of powers and for collateral purpose not authorised by the Act and is, therefore, liable to be struck down. The case of M. Anwar (supra) is distinguishable and circumscribed by its own facts. It is not necessary to examine in this case whether the Government, under section 3 of the Act, can requisition a building of which it is already in possession, in that, the impugned order is found to have been passed not in good faith and on that ground alone it is being set aside.
In view of the above, the impugned notification dated 19.1.1982 is hereby declared as without lawful authority and of no legal effect. The writ petition is accepted with costs, which is fixed at Rs.3000/-.