I. MAHMUD, J.--This constitution petition is directed against the order dated 31-10-1977 passed by the Additional Commissioner, Karachi. Respondent No. 1 confirming the provisional requisition order passed by him for requi--sitioning the house of the petitioners under section 3 (1) of The West Pakistan Requisitioning of Immovable Property (Temporary Powers Act, 1956.
2. The petitioner's case is that they arc co-owners of a House No. 6, Federal 'B' Area Karachi, in which they have teen residing along with their family tend relations. That sometime before the house was requisitioned, the family members had gone to Punjab and the petitioners continued to occupy the said house. On 18-10-1977, an order of provisional requisition of the house was passed by the respondent No. 1, the Additional Commis--sioner, Karachi, under section 3 (1) of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 (hereinafter referred to "as the Act). The house was sealed and copy of the order was given to the Chowkidar after a mairshnama was prepared by toe Sub-Engineer of the Estate office. The masihirnama stated that the house was found locked at the time of sealing, but on peeping through the window, some household articles could be seen lying in one of the rooms. Being aggrieved, the petitioners sled a review petition before the Commissioner, Karachi. The respondent No. 1, recorded the evidence of the two petitioners and also that of Abdul Waheed, the Sub Engineer of the Estate Office, who had prepared the mashirnama and sealed the house. The respondent No. 1 inspected the house in order to verify whether the petitioners w: re actually living in the premises or riot. He found articles lying in one of the bad rooms, an attached room, dressing room and a bath room of which he made an inventory. The remaining part of the hous, viz, drawing dining rooms, kitchen, one bed room were lying vacant. The articles mentioned in the inventory comprised one T. V. Washing machine. Sots set, dewan, bed, charpai, dining table, chairs, huqqa. Two suit-cases of clothes and other house-hold articles. In the bath room he found one towel, Iota, water bucket, one 'Capri' door, shaving machine, brush etc. He noticed on his under that most of the household article were old and that there was heavy dust on them and also on the ground and ever spider's nests on the doors and on the articles. He, therefore, Game to the conclusion that the petitioners, although in possession of the house as owners, were not residing in the house since many months and therefore came to the conclusion that the house was lying vacant and available for rent.
Accordingly, he affirmed the provisional requisition order and rejected the review application by the impugned order dated 31-10-1977.
3. Section 3 (1) of the Act confers power on the Provincial Government to requisition any building if in its opinion it is necessary or expedient to do so for the use of, inter alia, the Provincial Government and to make further orders as appears to it to be necessary or expedient in connection with the requisitioning. But the fourth proviso to that sub--section places a restriction on the power of requisitioning a residential house in the occupation of the owner. The said proviso reads as follows :- "Provided that no owner in occupation of a residential house shall be required to vacate at."
4. The contention of Mr. G. M. Qureshi, learned counsel for the petitioners, is that the petitioners, as owners of the house, were in occupation and, therefore, the Additional Commissioner, Karachi, the respondent No. 1, had no jurisdiction to requisition it and direct the petitioners to vacate the said house On the other hand, the contention of Mr. Usman Ghani Rashid, learned Additional Advocate- General on behalf of the Official respondents, is that on the facts found by the Requisitioning Authority, the petitioners were not actually or physically residing in the house at the time i1 was requisitioned and, therefore, they were not in 'occupation' of it and the restriction imposed by the fourth proviso was not attracted.
5. The case of the petitioners, who are brothers inter se, is that they were residing in the house with their respective families. But, that at the time of seating of the house, their wives and children had gone to Punjab and the house was being looked after by Chowkidars. However, household articles required for personal use were still lying in some rooms. The version of the petitioners that they were residing in the house at the time of sealing, was disbelieved by the Additional Commissioner who had personally visited the house in order to verify that fact. He found that household articles were lying scattered in some of the rooms with dust on them and on trio floor and there were even spider nests on the doors. These circumstances, according to him, indicated that the petitioners had not been residing in the house since many months. In these circumstances. The inference drawn by the Additional Commissioner appears to be Justified and no exception can in my opinion he taken to it. The petitioners neither produced any evidence to corroborate their bare assertion that they were actually residing in the house, nor had they examined any neighbour in this regard.
6. But the main question still is whether, assuming that the petitioners were rot residing in the house at the date of requisition, they were in 'occupation' of the house. The contention of the learned Additional Advocate-General is that considering the scheme of the Act, as a whole, the word "occupation' in relation to owner-occupied houses. Should be given a restricted meaning of actual and continuous self use or residence of the owner. It this contention is accepted, it would mean that an owner, who, after residing in the house, locks it and goes away temporarily, copied to be in occupation of the house. This contention cannot be accepted. The word 'occupation' has not be; n defined in the Act stair does the Act specify the nature or manner of occupation. In Words & Phrases Legally Defined Vol. IV. 1969 Edition, the word "occupation (of property) has teen explained to mean ; "An occupier is one who actually exercises the rights of au owner in possession. The primary clement of occupation as possession but it includes something more, for mere legal possession cannot constitute an occupation. The owner of a vacant house is in possession, though not in occupation; but if he furnishes the house and keeps it ready for habitation, he is an occupier, though he may not have resided in it for a considerable time . . . . So a trade occupies premises by merely keeping his stock, tools, vehicles or other goods upon those premises. A merchant or business man occupies an office or counting house by using it during ordinary business hours by himself or his clerks for the purpose of his business (14 Halabury's Laws (3rd Edn ) 15)."
If the house is furnished or ready for habitation, containing furniture, beds, household and personal articles ready for use by the owner at any time he chooses, it cannot be denied that the house is in his 'occupation" even though he may not be residing in it for some time. In Nema v. West Pakistan and another PLD 1969 Kar. 3 it was held that a house under construction, which was not ready for residence of the owner, was nevertheless held to be in his occupation.
7. We have, therefore, reached the conclusion that considering the facts and circumstances of the case, the house containing the household and personal articles mentioned in the respondents' inventory was in the occupa--petition of the owner despite the temporary personal non-residence of the owners.
8. It was next urged by the Additional Advocate-General that the household articles were kept there by the owners as a subterfuge in order to show occupation. However, this case was not suggested to the petitioners in their cross-examination, nor was any other evidence led by the respondents to support it. We must, therefore, give the benefit of doubt to the petitioners-owners, considering that the Act is a predatory piece of legislation which interferes with rights of private owners and therefore must be construed strictly.
9. In the result, we would allow the petition and direct the respondent No. 1 to remove the seal of the house and hand over possession to the petitioners. In the circumstances of the case, we would make no order as to costs..