' Mu KH&JDA BAKEISH MARRI, C. J.-This Constitutilnal Petition under Article 199 of the Constitution, seeks to challenge Notification No, 7263/ G-13/1926, dated 28th December, 1976, issued by the Commissioner, Quetta Division by which the house of the petitioner called 'Al.Fmran'situatel at Al- Gilani Road, Quetta was requisitioned by the respondents for residence of Minister of Education, Health and Social Welfare Department, Government of Baluchistan.
2. The main grounds on which the impugned Notification has been challenged by the pr titioner are (1)That when it was requisitioned the house was in her occupation.
(2)That no prior notice was served on her within the meaning of 3rd Proviso of section 3 of West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956.
3. So far as ground No, 1 is concerned, the case of the petitioner is that when the impugned Notification was issued by the respondent, not only her household goods and furniture were lying in the house but her nephew Mr. Muhammad Akram, her Chowkidar and Gardner were also living in the house, as that she had to leave for Karachi for a short visit on 22nd December, 1,976 to join her husband Major Muhammad Afaal who was under medical treatment, and that all of a sudden on 29th December, 1976, the petitioner's husband was informed on telephone from Quetta that the Estate Officer accompanied by a Magistrate and large number of personnel's forcibly entered the said house by breaking open the door of the main bungalow and removed all household effects such as, clothes, furniture, beds, utensils and carpets, etc. To the attached annexe of the said house, and that during this operation they did not even allow the servants of the petitioner nor her nephew to be present so as to see that at least proper inventory is made and safely deposited.
Thereafter the articles were sealed and police guard was posted at the house.
4. Petitioner's husband although lying ill rushed to Quetta on 30th December, 1976 by air and was informed by her employees the drastic action taken by the authorities. He approached Commissioner, Quetta Division same day and explained the position and requested him to vacate his order but nothing was done.
5. He also made a representation, Annex. 'H', to the Chief Secretary, Government of Baluchistan on the same day, i,e, 30th December, 1976 and also a representation, Annex. 'I', to the Chief Minister, Government of Baluchistan for withdrawal of the alleged requisitioning order. The contention of the petitioner through her husband and attorney that he was in possession of the house and the circumstances in which the house was taken over by the authority as mentioned may be reproduced suppAted by an affidavit in his own words (Annex. I)
"That my family remained in the said Bun low till 22-12-1976 and they left for lcarachi on 22nd December, 1976, temporarily to join me where I was going for Medical treatment leaving the entire household effects intact in the said premises. Our domestic servants including Chowkidar with his family were left behind to look after the bungalow during this temporary stay of ours at is arachnid.
They are still living in the same premises. That all of a sudden on 29-12-1976, the petitioner was informed on teleport e by his servants that the Estate Officer accompanied by a Magistrate and a large Armed Police Force entered the said premises who broke open the main building of the bungalow, shirred all our household effects, including our clothes, furniture, beds. Utensils, carpets, etc. Etc. To the attached annexed in the same premises and had been sealed by them. It is still not known to us as yet whether all our belongings were intact. Our servants were not permitted to be present at the time of removing the entire above-mentioned articles. Besides they have posted armed Police guard comprising of one A. S. I., a Havaldar and six constables in the premises with the instruction not to permit any one of us to enter the premises."
Learned Advocate-General had to concede that no mandatory prior notice as required by section 3, 3rd Proviso to subsection (1), West Pakistan Requisitioning Immovable Property (Temporary Powers) Act, 1956 was issued. When questioned as to why this statutory provision was not complied with, learned Advocate-General took shelter behind an undated certificate, Annex. `A`, issued by one S. R. Poonegar, Chairman, House Allotment Committee, Government of Baluchistan, who incidentally, we are informed happened to be Finance Secretary of the Government. The contents of the said certificate are as under :- "CERTIFICATE This is to certify that the following houses are vacant and that I have personally inspected them.
(Sd.)
S. R. Poonegar, Chairman, House Allotment Committee, Government of Baluchistan.
(1) Bungalow situated on Al-Gilani Belonging to Major (Rtd.) Road, Quetta Muhammad Afzal.
(2) Bungalow situated on Sariab Belonging to K. D. Baluch. Road, Quetta Opposite to Zehri House."
6. Learned Advocate-General when questioned as to under what authority the Chairman, House Allotment Committee, Government of Baluchistan can go around the town and visit peoples' houses behind their back and issue "Certificate of vacancy" unsupported by affidavit and in this case even undated and what is the legal value, if any, of such certificate on which he failed to mention the date when a particular premises alleged to be vacant and that is the main question in these proceedings ? Learned Advocate-General however, did concede that this officer has no authority to issue certificate or visit the houses of private citizens and this job or such a job should have been assigned to Estate Officer employed by Government for the purpose. He, however, agreed that this certificate has no meaning and worth either on fact or law and cannot be relied upon.
7. At this stage learned counsel for the petitioner Mr. Hassan Inamullah submitted that the very absence of the date in the so-caged certificate by the Finance Secretary-cum-Chairman, House Allotment Committee, Government of Baluchistan raises great doubt to its veracity and it is clear afterthought to make a case for requisition of the petitioner's house. He, therefore, would like to examine him and the other officers to substantiate the facts with regard to vacancy of the house at the particular time and date. He submitted he has sufficient evidence of petitioner's nephew, gardner and Chowkidar and other persons to rebut what the other may have to say. We were inclined to accede to the request and examine the persons concerned but the learned Advocate- General submitted that one of the witnesses Mr. S. R. Poonegar is in fact out of country at the moment to undergo some training and that be is not in a position to support the certificate or the orders made. That being the position we refrainee from calling these officers for examination.
7. It may be noted that although the Government has power under section 8 of the Act to obtain information while carrying out the purposes of sections 4 and 6, by order require any person to furnish to such authority as may be specified in the order such information in his possession relatin to any building as may be so specified, but subsection (2), of the same section provides, if any person furnishes any information which is false and which he either knows or has reasonable cause to believe to be false or does not believe to be true he shall be punished with imprisonment which may extend to one year or with fine, or with both." We do state, the way requisition proceeding were taken in this case and the certificate was issued unsupported by affidavit and undated by a responsible officer of the Government, cannot be appreciated. We, therefore, hope that in future the provision of subsection (2), will also be kept in view by requisitioning authority and the law is followed strictly to avoid inconvenience and unnecessary hardships to citizens as happened in this case.
8. We are further strengthened in our view that the officer concerned in over enthusiasm, acted in this particular case with unholy haste by the fact that on 30th December, 1976, a so-called top secret letter, Annex. 'A', issued by Assistant Commissioner addressed to Deputy Commissioner, Quetta, wherein he states that he has taken possession of the bungalow according to his order on 29th December, 1976 and the same was handed over to Civil Estate Officer and the Inventory of the articles were prepared and copy of which was enclosed. It may be noted that at that stage there is no mention of the so-called certificate issued by Mr. S. R. Poongegar. In other words, it may safely be assumed that the petitioner was in possession and occupation of the house and the entire proceedings were taken without regard to the provision of the law and in violation of intention of the Legislature.
9. Not only this, the situation is further aggravated by following letter, Annex. A-2, Top Secret/Most Immediate, from Deputy Commissioner, Quetta to Assistant Commissioner, Quetta, dated 29th December, 1976 :- "TOP SECRET/MOST IMMEDIATE The Deputy Commissioner, Quetta.
' The Assistant Commissioner, Quetta, Sadder Sub-Division, Quetta. Memorandum No, 786 ' Dated Quetta, the 29th December, 1976.
' Subject t Requisite of Buildings/House.
A copy of Memorandum No, 7264/63/1976 dated the 28th December, 1976, from the Commissioner, Quetta Division, Quetta alongwith its enclosure is sent herewith for immediate necessary action and implementation of the enclosed orders positively today repeat today. The possession of the Buildings/Houses may please be taken in presence of two reliable witnesses and inventory of articles lying in the building, if any, may be prepared and got signed by two reliable witnesses of the area.
(2) You are further requested to please post two levy men on each building after taking vacant possession, and ensure that no one enters the buildings. This may please be treated as most immediate and compliance reported today repeat today.
(Sd.)
Muhammad Akram Khan, Deputy Commissioner, Quetta."
10. Mere reading of this letter and the certificate referred above go to show that the respondents had made up their mind to take possession of the house in clear violation of the law which they are expected to uphold as responsible Government servants. Two inventories were prepared, one in English and the other in Urdu, dated 28-12-1976, attested by Assistant Commissioner giving full details of various items in the house which include even such things of daily use such as beds, carpets, tables, chairs, curtains, electric lamps, sofas and various other stores, detail of which is given in Annex. `K', re 47, of the file wherein each and every thing clearly shows the house to be fully furnished. That being the position it cannot be said by the Advocate-General that the house was not in occupation of the petitioner. Learned counsel for the petitioner relied on a Division Bench decision of High Court of Peshawar, reported in Nawabzada llisanullah Khan v. Commissioner, N. W.
F. P., Peshawar and another (1) wherein it was held that "Provincial Government's power under sections 3 and 4 to requisition immovable property, not available in case of owner of building being in occupation, requisitioning authority obliged to give notice to show cause in case of person other than owner and to give him one month's time to vacate if sufficient cause not shown, person affected not only owner of building but also in occupation excluded by fourth provision to section 3 and his property not amenable to requisition." As to word 'occupation' as used in section 3, it was held by their Lordships of the Peshawar High Court relying on PLD 1969 Kar. 622 and some English judgments, as under :- "Since the above considerations do not exclude invisible occupation I can with advantage refer to those English judgments in which this aspect has been held that a seaside shop Moyer & C. Of Southend-on-Sea v. White (38 L T 408) a summer villa Gage v. Wren 87 L T 271, a warehouse. The King v. Melladew (1907) 1 K B 192, Beatham and another v. Trinidad Cerrent Ltd. (1960) 1 All E R 568 a lodging house, The Aid v Melladew f uit trees Noyer & C. Of Southend-on-Sea v. White and a vacant house R. v. St. Pancras Assessm ent Committee (1877) 2 Q B D 588 at page 591, remain occupied, although temporarily not in use, provided the disuse is for the time in which the occupier is waiting for a suitable opportunity to arise for using the premises. The question whether he was in reality waiting for such an opportunity in a given case, depends on whether the nature of the premises was suitable for this attitude or not and whether he genuinely intended to exploit the opportunity or not, Farewell, L. J., has said in King v. Melladew that - "W hether premises are or are not unoccupied is in many cases a mixed question of feet and law, there may be visible physical occupation by the person rated, or his servant, or his goods and chattels, and such occupation may be of part of an undivided tenement ; and if, in such a case occupation is found as a fact by the justice, no appeal will lie. But these do not exhaust all the cases of occupation. Rateable property has many varieties ; of some the use is by personal occupation, e.g. a dwelling house, of others by occupation by live or dead stock e.g. a Linhay used as a shelter for cattle, or a barn ; and the nature of the property and its mode of use must be considered in ".1) PLD 1975 Wash. 182 ' each case. The test, in a case like the present of business premises appears to me to be, has the person to be rated such use of the tenement as the nature of the tenement and of the business connected with it renders it reasonable to infer was fairly within his contemplation in taking or retaining it. In many trades, and certainly in a warehouse-man's, the trader must necessarily contemplate the occupation for considerable periods of parts of his premises as spare room.
' The intention to exploit the opportunity is important and may be disclosed by the occupant by keeping the premises in readiness to use it as soon as the opportunity arises. Farewell L. J. Has observed in the above-mentioned judgment at page 204 that : 'The question must be whether they (warehouses) are kept in such a state so as to be capable at any time of being used in a continuing business.'
' Similarly Lush, J. Has observed in R. v. St. Pancras Assessment Committee that the owner of a vacant house is in the occupation of it, if he furnishes it and keeps it ready for habitation whenever he pleases to go to it though he may not reside in it one day in a year.
' The ratio of various English judgments to which reference has been made in that para. Would appear to be that a person would be in occupation of a house/building if he furnishes it and keeps it ready for habitation whenever he pleases to go to it, though he may not reside in it even a day in a year."
11. In the present case we are satisfied that the petitioner was in occupation of the house, Chowkidar and gardner were there and the house was fully furnished and she was out of Quetta for a short period to attend her ailing husband. The ratio, therefore, of the above judgment fully applies to the present situation. When confronted with the above judgment and facts before us learned Advocate-General conceded that he is not in a position to cite any judgment to the contrary. That being the position, for the reasons given above, we accept the petition with costs and hold that the impugned order is illegal and without lawful authority which is hereby set aside.
12. We have passed a short order on the date of hearing and here are the reasons for the same.
13. A copy of this judgment may be forwarded to the Chief Secretary, Government of Baluchistan.