JUSTICE MUHAMMAD TAQI USMANI (MEMBER): -=These two appeals under Article 203-F(1) of the Constitution of Islamic Republic of Pakistan, 1973 are directed against the judgment of the Federal Shariat Court, dated 12-8-1991, whereby certain provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 (hereinafter referred to in this judgment as the "Act 1956") have been declared as repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.).
2. The main purpose of the Act 1956 is to invest the Provincial Government with a power to requisition a building for the use of an officer or officers or for an educational institution of the Federal or Provincial Government on compensation paid to the owner on monthly basis till the building is released from requisition. The details of such requisition are Kid d in the Act 1956.
Respondent No.1 had challenged the vires of this Act ore the Federal Shariat Court on the ground that it violates the sanctity of the private ownership which is fully recognized, honoured and protected by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Accepting the contentions of the respondent to a considerable extent, the Federal Shariat Court, its impugned judgment has declared some provisions of sections 3, 7, 11 and 12 of the Act 1956 as repugnant to the Injunctions of Islam. Dissatisfied with this judgment the Federation of Pakistan has filed Shariat Appeal No. 23 of 1991 and the province of Punjab has filed Shariat Appeal No.17 of 1991.. Both have prayed to set aside the impugned judgment.
3. The Federal Shariat Court in its detailed judgment has referred to a number of the verses of the Holy Qur'an and the traditions of the Holy Prophet (p.b.u.h.) and the substance of its findings on the relevant issues, as appears from its discussion and reasoning can be summarized in the following points:--- (i)The Government cannot take over the lawful property of any citizen, neither permanently nor temporarily without his consent, except in a case of extreme necessity or of a genuine urgent need of the society.
(ii)Where a property is taken on the basis of necessity or a genuine collective need of the society, the owner must be given a compensation on the basis of the prevalent market rate which should be paid to the owner without undue delay.
(iii)Requisitioning of a building for the use of an officer of the Government is neither a necessity nor a genuine collective need of the society which may warrant the compulsory requisition of a building. Therefore, no requisition is allowed for that purpose.
(iv)If a building is in possession of a lessee who has taken it on lease for a specific period, the building cannot be requisitioned by the Government before the expiry of the period of lease.
(v)If the compensation is not paid to the owner within 'a reasonable time, the officer responsible for the default should be penalized, but no interest can be added to the principal amount of compensation.
(vi)The owner cannot be debarred from approaching a Court of law against an action taken by the Government under the law of requisition, nor can an ouster be imposed upon the judiciary against entertaining such complaints.
4. It will be pertinent for proper disposal of these appeals to settle these issues with reference to the relevant provisions of the Act 1956.
5. The question of the interference of the State in the private property has been thoroughly examined by this Court in the case of Qazilbash Waqaf v. The Land Commissioner, Punjab PLD 1990 SC 99 where the points (i) and (ii) have been discussed at length in the light of the Holy Qur'an and Sunnah, with the following observations: These principles relate to the "compulsory sale" or to the permanent acquisition of a property. In the case of the requisition contemplated in Act 1956, the property is taken temporarily and not permanently. It is therefore, a "compulsory lease" rather than a "compulsory sale". But the Injunctions of the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.) from which the abovementioned principles are inferred are equally applicable to the lease also. As these injunctions have been mentioned in the judgment of Qazalbash Waqf and are also reproduced in the impugned judgment of the Federal Shariat Court, we need not repeat them there. The logical inference from these-injunctions, with reference to the requisition under Act 1956, is that no private property can be compulsorily taken on lease, except in extreme necessity or in a genuine collective need of the society.
6. On the basis of this principle, the learned Federal Shariat Court has that a building cannot be requisitioned for the use of an officer as contemplated in section 3 of the Act 1956.
7. Hafiz S.A. Rahman, the learned counsel for the Federation of ;tan, argued before us that the officers of the Government cannot perform duties with peace of mind unless they are provided with proper residence according to their status, and the accommodation being unreasonably expansive in the normal market, the Government has no option but to requisition a building for their use on a reasonable compensation to be paid to owner. Such requisition, according to the learned counsel, is based on a wider public interest and is necessary for the smooth work of the Government functionaries.
8. We do not agree with this submission of the learned counsel. If the Government wishes to provide residence to an officer, the same should be acquired on the basis of a contract of lease with the free will of the owner, as e other person would have acquired it for his own benefit. There is no reason y a Government official should enjoy an arbitrary position to compel the private owners to surrender their buildings for his personal use. It is evident 3t the Government does not requisition the houses for all its officers. Them are officers for whom the houses are hired on the market rate.
There are hers to whom a house rent allowance is paid. There are still others who are not provided with residence at all. All these options being open to the Government with regard to the different categories of its officials, there is nothing to necessitate the requisition for some of its officials as distinguished nom the others.
9. The learned counsel then referred to a tradition of the Holy Prophet (p.b.u.h.) relied upon in the case of Qazilbash Waqf PLD 1990 SC 99 on page 9 on the authority of Jami' Tirmidhi. The Holy Companion ---Uqbah b Amir says:
10. The .Substance of this tradition, as explained in the judgment of Qazilbash Waqf on the basis of different authorities, is that when the companions of the Holy Prophet (p.b.u.h.) on their way to Jihad, camped near a town, the non-Muslim inhabitants of the town used to close their shops and stop selling food. The Companion asked the Holy Prophet (p.b.u.h.) about this situation. The Holy Prophet (p.b.u.h.) permitted them to compel the shopkeepers to sell the necessary food to the Muslims. On the basis of this tradition the learned counsel argued that the requisition of houses for the use of the officers may be allowed on the same analogy.
11. This contention of the learned counsel has no force. The contents of the tradition are distinguishable on a number of grounds. Firstly, the Companion were in an urgent need of food.
They did not require a special type of food "according to the status" of a particular officer. They just wanted a simple food which might fulfil their minimum human requirement which they were being denied. Secondly, they were prepared to offer the fair market price of the food. Still, the shopkeepers were not agreeable to sell any food to them. Thirdly; the behaviour of the non-Muslim inhabitants of the town was clearly mischievous, and they wanted nothing but to create hurdles in the way of Mujahideen. None of these three situations 'is available in the case of requisition of a house for the benefit of an officer which does not fulfil the necessary conditions prescribed in Shariah for the compulsory take over of a private property as discussed earlier.
12. It is, therefore, held that the power of the Provincial Government to requisition a building for the use of an officer, as contemplated in section 3 of B the Act 1956 is repugnant to the Injunctions of Islam.
13. Before proceeding further, it will be necessary to reproduce section 3 of the Act 1956. It reads as follows: "3. (1) If in the opinion of the Provincial Government it is necessary or expedient to requisition any building for the use of any of the officers or offices or educational institutions of the Federal Government, the Provincial Government or any corporate body established by or under the authority of the Federal Government or the Provincial Government, the Provincial Government may after giving the owner thereof an opportunity of being heard and showing cause against the proposed action, by order in writing requisition any building and may make such further orders as appears to it to be necessary or expedient in connection with the requisitioning: Provided that no building used for the purpose of .Religious worship and no building situated in a .
Cantonment within the meaning of the Cantonments Act, 1924, shall be requisitioned under this Act: Provided further that no building which is used for imparting Education through the private educational institutions shall be requisitioned: Provided further that no building which is an evacuee property shall be requisitioned except with the prior approval of the Federal Government: Provided also that if a -building is in occupation of any person, no order for its requisitioning shall be passed unless a notice of, at least, two weeks is given to the occupant to show cause against the action proposed to be taken and if and when an order of requisitioning is passed, the occupant shall be allowed a period of one month, at least, to vacate the building and such occupant shall thereupon comply with that order: Provided that no owner in occupation of a residential house shall be required to vacate it.
(2)If the notice mentioned in the third proviso to subsection (1) cannot be served on the occupant personally, affixation of the notice on a conspicuous part of the building or service by means of a proclamation or by means of a notice in the official Gazette and local press shall be deemed to be sufficient service for the purpose of this section.
(3)Where the Provincial Government has requisitioned any building under subsection (1) it may use or deal with it in such manner as may appear to it to be expedient."
In the light of what has been discussed in the preceding paragraphs, it is held that words "for the use of any of the officers" occurring in section 3 ~` reproduced above is repugnant to the Injunctions of Islam.
15. As already mentioned in para. 5 of this judgment on the basis of the findings of the case of Qazilbash Waqf, the requisition can only be allowed in a case of extreme necessity or a genuine collective need which cannot be fulfilled by resorting to other available resources. The impugned judgment of the Federal Shariat Court also following the above dictum has observed as under: "(b)(Compulsory) requisition of property is only permissible at the time of extreme necessity and urgent requirement. As explained above it also includes the condition where without effecting the same the people will be confronted to severe hardship.
(c)Before taking action as mentioned above at (b) it is to be confirmed that there is no other way out except resorting to the same measure. Such decision is to be taken after thorough consideration of all possible solutions. It means that a mere vague pretext of "public interest" is not sufficient to resort to use force unless the necessity or general requirement is clearly ascertained.
As far as possible the requirement is to be objectively analysed and assessed so that no undue torture is caused to the citizens of the State."
16. In the light of this principle, the words "or expedient" appearing after the word "necessary" in section 3, are repugnant to the Injunctions of Islam, because the requisition cannot be allowed on the basis of expedience alone, unless its becomes necessary for a genuine collective need.
17. The last proviso of section 3 of the Act 1956 reads as follows "Provided that no owner in occupation of a residential house shall be required to vacate it:"
The term "owner" has been defined in section 2(iii) in the following words: " `Owner' includes the successor-in-interest of an owner, a mortgagee in possession and a lessee for a fixed period who has paid rent for the . Whole of that period in advance:'
18. Keeping this definition of "owner" in view the result of the last proviso of section 3 is that the law of requisition will not apply to a building occupied by a lessee for a fixed period who has paid rent for the whole of that period in advance, but if he has not paid the rent of the whole period in advance he will t not be immune from the requisition envisaged in section 3. This provision has also been struck down by the Federal Shariat Court, being repugnant to the Injunctions of Islam.
19. The learned counsel for the Federation objected to this fording of the Federal Shariat Court on the ground that the law of requisition is based on the concept of public interest. Although the relevant provision is harmful to the lessee, yet his individual interest may be sacrificed for the public interest.
20. We are unable to endorse the view expressed by the learned counsel. Islam has emphatically enjoined upon its followers to abide by their contracts F and covenants. The Holy Qur'an say: O those who believe, fulfil the contracts (5:1)
And fulfil the covenant (342:17)
21. When a lessee has acquired a building on a valid lease for a certain) period, he is entitled to its usufruct up to the end of that period, no matter whether he has paid the rent in advance or not.
Even the owner cannot compel him to vacate the building during the lease period. If the Government is allowed to eject such a lessee and to sit in his place, it will amount to the) breach of contract. An Islamic Government is supposed to preserve and enforce the valid contracts, not to force the people to breach them. In a well --known hadith, the Holy Prophet (p.b.u.h.) has said: "None of you is allowed to contract a sale over the sale" (Sahih-al--Bukhari, Buyoo, Ch.58, Hadith 2139).
It means that if a valid contract of sale has concluded between two persons, no.1 other person is allowed to claim its cancellation in his own favour. The same principle is applicable in the case of lease also.
22. It is, therefore, held that the words "who has paid rent for the whole of that period in advance" appearing in subsection (iii) of section 2 of the Act 1956 are repugnant to the Injunctions of Islam.
They shall be deleted so that the definition of the word "owner" occurring in the last proviso to section 3 may include all the lessees for a fixed period, irrespective of whether or not they have paid the rent in advance.
23. Even in the cases, of necessity or genuine collective need, the requisition can be allowed on the basis of fair market rent. This principle has been laid down by this Court in a number of cases, including the case of Qazilbash Waqf. The same principle has been referred to, more than once, in the judgment of the Federal Shariat Court. But the procedure and criteria prescribed in the Act 1956 for the assessm ent of the compensation is not in line with this principle. Section 6 of the Act 1956 reads as follows:-- "6.Compensation to be assessed in accordance with certain, .Principles: ---Where any building is requisitioned there shall be paid to the owner compensation, for its use and occupation, and the amount thereof shall be determined in the manner and in accordance with the principles hereinafter set out:--- 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 by a general or special order, for any case or class of cases, appoint as arbitrator a person qualified under Article 167 of the Constitution for appointment as a Judge of a High Court.
(c)The Provincial Government may, in any particular case, nominate a person having expert knowledge as to the nature of the building requisitioned to assist the arbitrator and where such nomination is made, the owner may also nominate an assessor for the said purpose.
(d) At the commencement of the proceedings before the arbitrator the Provincial Government and the owner shall state what, in their respective opinions, is a fair amount of compensation.
(e)The arbitrator in making his award shall take into consideration the following factors:--- (i)in the case of a , building which was in existence before the 1st January, 1939, the rent of the same or of similar accommodation in similar circumstances prevailing in the locality during 12 months prior to the 1st January, 1939; (ii)in the case of a building which was constructed after the 1st January, 1939, the rent at which such building was let out for the first time after its construction or the rent of similar accommodation in similar circumstances prevailing in the locality during 12 months prior to the construction of that building; (iii)if the building was constructed at the 14th August, 1947, the initial cost of constitution of that building.
(2)If the building was constructed after the 14th August, 1947, the compensation awarded shall in no case, after deducting the taxes and insurance premium for insurance against fire and earthquake, be less than eight per centum or exceed in amount ten per centum of the initial ..Cost of the construction of that building.
(3)An appeal shall lie to the High Court against an award of an arbitrator.
(4)Save as provided in this section and in any rules under this Act nothing in any law for the time being in force shall apply to the arbitration under this section.
(5)An award given by the arbitrator, subject to the result of the appeal, if any, shall be conclusive and final between the parties and shall riot be called into question by means of a suit or otherwise except as provided by this Act.
The award may, on an application being filed in the Court, be executed as if it were a decree of a Civil Court.
24. The formula suggested in clause (e) of subsection (1) and in subsection (2) of this section for the assessm ent of a fair amount of compensation suffers from two infirmities. Firstly, the formula is not based on the current market rent, and secondly, it does not provide for a periodical K increase in the amount of rent or compensation as is provided in the laws of rent restriction. These provisions should, therefore, be declared as repugnant to the Injunctions of Islam on this score.
25. Hafiz SA. Rahman, the learned counsel for the Federation of Pakistan raised two objections in this respect. His first objection was that in some cases the market rent is found to be unreasonably high. The Provincial Government should, therefore, be empowered to fix a reasonable rent.
26. This argument of the learned counsel is not acceptable. The reasonability or otherwise of the rent cannot be settled arbitrarily. A "reasonable" rent fixed by one' of the two parties unilaterally maybe totally un-reasonable for the other party. A reasonable price or rent can be determined only by the interaction of the forces of demand and supply in a, open market.
27. The second objection of the learned counsel was that the Federal Shariat Court has not struck down section 6 of the Act 1956, and in the absence of an appeal from the respondent or from the public, this Court has no jurisdiction to declare its repugnance to the Islamic Injunctions.
28. We have paid due attention to this objection of the learned counsel. But after a careful study of the judgment of the Federal Shariat Court, the objection appears to be too technical. The learned Federal Shariat Court has, in fact, stressed upon the concept of `fair market price' so repeatedly that it may be taken as the main thrust of its judgment. The following extract, for example, can be cited from para. 29 of the judgment: "(e)For acquisition of this nature, the rent of the same is to be justifiedly determined according to the current market value by keeping in view the locality rates in the adjacent areas, covered area, total area, and any other yardstick that is normally applied in such cases. The investments of the owner and his monthly instalments of loan of HBFC/Banks should also be taken into consideration for a just and fair assessm ent. The rent must not be arbitrarily fixed in any case. Depending on the nature of the requirement, the rent may be enhanced to provide further incentive to the unwilling owners. The Holy Qur'an says: "And give not short measure or weight." (11:84)
"And O my people give just measure weight, nor withhold from the people the things that are their due." (11:85)
"So establish weight with justice and fall not short in the balance."
(f)Besides fixation of the rent according to the market rate, payment of the same is to be done according to the prevalent custom of the locality i.e. Lumpsum payment of rent for a period of two years etc. In any other manner as the case may be.
(g)The rent is to be periodically indexed to keep it just and fair according to the nearby area."
29. It is thus evident that the Federal Shariat Court has declared the impugned law to be repugnant to the Injunctions of Islam for want of provision to ensure a just and fair compensation on the basis of current market rate. But this finding has not been recorded in its proper place. Instead of recording this finding with regard to section 6, the Federal Shariat Court has recorded it in relation to section 7 in the following words: "This section provides the payment of interest on the principal amount in case the amount of compensation is not deposited within a period of three months. Obviously this portion is not in accordance with the Injunctions of Islam. The compensation to be fixed must be appropriate and in accordance with the prevailing rates of rent of similar buildings in the adjacent locality as mentioned at para. 29 above and must be paid to the owner without fail so that besides fulfilling the condition of the agreement of UARA, no harm is caused to the owner:"
30. We have held in a number of cases that where a proper and just settlement of the issues involved in a law under challenge is not possible without striking another provision of the same law, the Court has the jurisdiction to hit that provision also. Reference may be made to the case of Qazilbash Waqf v. The Land Commissioner, Punjab (PLD 1990 SC 99) para.187, p.280 where section 60-A of the Punjab Tenancy Act, 1887 has been struck down without an appeal from the public.
31. In the instant case, the petitioner before the Federal Shariat Court had challenged the whole of the Act 1956 including section 6, as is evident from para. 23 of his petition. The Federal Shariat Court has declared that the provision of compensation based on any yardstick other than the market rate is repugnant to the Injunctions of Islam. But, unfortunately, the Court deemed it proper to insert the concept of market rate in section 7 instead of section 6, which was, in fact, the proper place for such declaration. In these circumstances we are satisfied that this Court has the jurisdiction to declare the repugnance of section 6.
32. It is, therefore, held that the whole of clause (e) of subsection (1) of section 6 and the whole of subsection (2) of section 6 is repugnant to the N Injunctions of Islam because-- (a)it does not provide the compensation based on the current market rate,
(b) it does not provide a periodical increase in the monthly rent or compensation.
33.Section 7 of the Act 1956 reads as follows.--- ------ 7.Payment of compensation: --As soon as possible after an order of requisition is passed, the Provincial Government shall determine the amount of compensation payable monthly to the owner for the use and occupation of the requisitioned building and deposit by the 5th of each succeeding month such compensation in the Court and if the amount of compensation assessed is enhanced by the arbitrator or by the High Court on appeal, the excess amount shall also be similarly deposited. In case the amount is not deposited within a period of three months from the date of requisitioning or the date of the order of the arbitrator or of the High Court, as the case may be, the Provincial Government shall be liable to pay interest on the principal amount at the rate, of six per centum per annum till the date of deposit or payment as the case may be:'
The . Federal Shariat Court has found two contravention of the Islamic Injunctions in this section.
One is the failure of the section to provide for the compensation on current market. Rate. We have already held that the proper place of this declaration is section 6 and not section 7. The second objection of the Federal Shariat Court is about the provision of interest in case the Provincial Government fails to deposit the amount of compensation within three months. The Federal Shariat Court has held that the interest, being Riba and strictly prohibited by the Holy Quran and Sunnah, cannot be imposed on the Provincial Government. However, a penalty may be imposed on the officer responsible for such delay.
34. The fording of the Federal Shariat Court about the provision of interest is well-founded, and has not been challenged by the learned counsel for the Federation also. However, we hold that instead of penalizing any officer, a provision should be made in the law of requisition that if the amount of compensation is not paid within three months, the order of requisition shall 0 be deemed to have been revoked and the requisitioned building shall be deemed to have been released. This will be in accordance with the principle laid down in the case of Qazilbash Waqf in the following words: 35 Sections il and 12 provide a blanket protection to any action taken under the Act 1956 from any legal proceedings in a Court of law. The learned Federal Shariat Court has commented on these sections in the following words: "(1)Section 11 authorises exemption from legal processes whereby no injunction or an order for ejectment, delivery of possession or appointment of receiver in respect of any building which has been requisitioned under this Act shall be granted or made by any Court or by any other authority and no such order shall be called in question in any Court. Similarly section 12 also provides protection of action under this Act. Subsection (2) of this section further specifies that no suit or other legal proceedings shall he against the Government for any damage caused or likely to be caused by anything in good faith, done or intended to be done in pursuance of this Act or any order made thereunder.
(2)This section along with section 12 provides ouster of judiciary and exemption from legal processes and gives an unbridled authority to the Requisitioning Officers and is as such against the Injunctions of Islam as contained in Verse 59 of Al-Nisa: "O ye who befevel!
Obey God, and obey the Apostle And those charged With authority among you.
If ye differ in anything Among yourselves, refer it To God and His Apostle If ye do believe in God And the Last Day That is best, and most suitable For final determination." (4:59)
A golden principle as mentioned by the Holy Prophet (p.b.u.h.) is: "Damage and retaliation by damage is not allowed."
The Holy Qur'an says: "Deal not unjustly and ye shall not be dealt with unjustly." (2:279),
36. The learned counsel for the Federation could not point out to any infirmity in the above finding of the Federal Shariat Court. We, therefore, uphold this finding and declare these provisions repugnant to the Injunctions of Islam in so far as they debar an aggrieved person from seeking a remedy from I' a Court of law.
37. The learned counsel for the Province of Punjab had adopted the arguments of Mr. Hafiz SA.
Rahman which have been already dealt with in this judgment.
CONCLUSIONS
38. The upshot of the above discussion is that the following provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act of 1956 are held to be repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.):
(1) The words "who has paid rent for the whole of that period in advance' appearing in section 2(iii).
(2) The words "or expedient" in section 3(1)
(3) The words "the use of any of the officers" in section 3(1).
(4)The whole of clause (e) of subsection (1) of section 6 and the whole of subsection (2) of section 6, as they do not provide for the assessment of compensation on the basis of current market rent, and do not provide for a periodical increase in the rent or compensation in accordance with the current custom.
(5)Section 7 to the extent that it provides for interest in case the amount of compensation is not paid within three months, and does not provide that if the amount of compensation is not paid within three months the order of requisition shall be deemed to be terminated and the requisitioned building shall be deemed to have been released.
(6)Section 11 and section 12 in so far as they debar an aggrieved person from approaching the Court and prohibit the judiciary from giving a just remedy to an aggrieved person.
39. This judgment shall take effect on 30th of June, 1993 whereby the above provisions declared to be repugnant to the Injunctions of Islam shall cease to have effect to the extent of their repugnance.
40. With these observations these appeals. Are dismissed,