MUNIR A. SHEIKH, J.- In this Constitutional petition legality of order dated 29.4.1977 passed by the respondent for acquisition of property in dispute under Section 3(1) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, has been called in question.
2. In the property in dispute an Educational Institution was being run when in the year 1977 the Educational Institutions were nationalized under Martial Law Regulation 118 on the promulgation of which the management and control of such Institutions vested in the Government.
3. Since the premises had been rented out to a private person/body before the nationalization, therefore, after nationalization the Government stepped into the shoes of the said tenant and became the tenant of the petitioner and had continuously been running the Educational Institution therein uptill today.
4. Learned counsel for the petitioner argued that a property which had been in possession of the Government could not be requisitioned under the said Act,. He also argued that in any case under proviso to Section 3 of the Act, a property in which an Educational Institution was being run could not be requisitioned. He relied upon judgments reported as Province of Sind and others Vs. Syed Saifur Rahman and others (1986 SCMR page 1332) and Muhammad Tufail Vs. Province of Punjab and 5 others (PLD 1978 Lahore page 87) and also consolidated judgment dated 13.12.1986 delivered in CPSLA No. 570/85 Province of Punjab, through Secretary Education Department Lahore etc. Vs. Muhammad Tufail and 21 others and Mst. Shahnaz Begum and others Vs. Home Department and others (1991 CLC page 1188).
5. In 1991 CLC 1188 (supra) it was held that a property which prior to nationalization of school had been continuously in use as educational institution was not open to requisition. In the other reported cases it was held that a property which was already in possession of the Government could not be requisitioned under the said Act. In case SPSLA No. 570/85 an argument was raised before the Supreme Court that the decided cases in which the said rule was laid down were those, in which order for requisition of property was made after ejectment order had been passed against the Government which had attained finality after availing of remedies of appeal upto High Court and Supreme Court whereas in some of the cases the ejectment order had not been passed, therefore, requisition of property in such cases could be made. The argument was repelled and it was held that so far as the cases of requisition of property of nationalized school was concerned no such distinction can be made. The order of requisition of property dated 29.4.1977 impugned in the writ petition for the foregoing reasons is not sustainable.
6. The writ petition is accepted. Order dated 29.4.1977 passed by the respondent under Section 3(1) of the West Pakistan Requisitioning of Immovable Properly (Temporary Powers) Act, 1956, for requisition of the disputed property of the petitioner is hereby declared to have been passed and issued without lawful authority and of no legal effect and quashed. There will be-no order as to costs.