This order will dispose of Writ Petitions Nos. 46/1977 and 225/1977 since most of the questions of fact and law are common.
2. The facts in Writ Petition Nos. 46/1977 are that the petitioner's Bungalow No. 147-B, Satellite Town.
Gujranwala was under the tenancy of Aligarh Association which established a Primary School for Boys and Girls in the name of Aligarh Primary Girls & Boys School. The management of this school was taken over by the Government under Martial Law Regulation No. 118 from the month of October, 1972. This established a relationship of landlord and tenant between the petitioner and the Government. The Government defaulter) in the payment of rent of the demised premises with the result that an application for its ejectment gas filed by the petitioner on the 12th of April, 1974. On 3- 6-1975 an order under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance was passed by the Rent Controller directing the Government to deposit arrears of rent from 1-10-1972 to 31-3-1975 amounting to Re. 12,000 before 4-6-1975 and to deposit future rent from the month of April before the 15th of each succeeding month. Respondent No. 1 deposited the arrears by the due date, but defaulted in the deposit of rent for the month of April, 1975. The rent for this month ought to have been deposited before the 15th of May 1975, but it was deposited on the 4th of June, 1975.
By the order dated 5th of June 1975, the learned Rent Controller struck off the defence of the said respondent and ordered him to be ejected from the premises in dispute. An appeal filed by respondent No. 1 against this order was dismissed in default on the 26th of September, 1975.
Respondent No. 1 filed a petition for restoration of the appeal, but that too was dismissed on 27-11- 1975. Thereafter a second appeal from Order No. 546/1975 was filed in the High Court which was dismissed on 7-5-1976. A Writ Petition No. 1393 of 1976 was filed by one Miss Samina Gulzar against the order of ejectment of an Educational Institution, but the same was dismissed on 7-12-1976. The petitioner's case is that this petition was filed with the collusion of the Education Department of the Government.
3. During the pendency of these proceedings, the Government issued D. O. No. S. O. (R & B)-2-1/75 dated 12-7-1975 directing its delegatee under the Requisitioning of Immovable Property Temporary Powers Act, 1956 to requisition the properties in possession of the Government for the purpose of running Educational Institutions since the owners for one reason or the other had been trying to got the building vacated. The delegatee in the case of the petitioner's premises was the Commissioner who was vested with these powers by a Notification issued on 16th of June, 1962. A notice dated 24- 6-11576 was served upon the petitioner to show cause against the requisition. This notice was issued to him after the dismissal of S. A. O. No. 546/1975. The respondent in his reply dated 5-7-1976 took exception to this requisition in view of the order of the Rent Controller which was maintained upto the High Court. He, on the other hand, moved the Rent Controller for execution of the order of ejectment, on which a warrant of ejectment was issued which was executed on the 3rd of January 1977 and possession of the premises was obtained by the petitioner. The goods lying in the school was given in the Superdari of Mahmood son of the petitioner. The warrant of possession is Annexure 'A' The report of the Bailiff about the execution is Annexure B/l. The list of movable articles belonging to respondent No. 1 recovered from the premises in dispute is Annexure B/2 while the Superdari Nama in Annexure B/3.
4. On the same date when the execution of the order of ejectment was completed, an order of requisition of the premises in dispute was passed by the Commissioner, Lahore Division. This order (Annexure 'D') reads as follows I I Khalid Javed, Commissioner, Lahore Division, Lahore in exercise of the powers vesting in me under subsection (1) of section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Power) Act, 1956, Act VII of 1956 read with the Home Department's Notification No. Judi: 16 (21)/60 dated the 16th June 1962, being satisfied that it is necessary and expedient to requisition the building described in the Schedule below, do hereby requisition the same, for the purpose it is being used at present.
(2) I also order the owner of the property requisitioned to negotiate, as soon as possible, with the District Education Officer. Gujranwala for fixing, by agreement, the amount of compensation payable to the said owner and failing agreement to move the District and Sessions Judge, Gujranwala, who has been appointed by me as Arbitrator for the purpose of section 6 of the above Act, to assess the compensation due, SCHEDULE S. No. Name of the property Description of the property Name of the owner 1.
Aligarh Eng. Girls High Scoool, Gujranwala.
B-XXVIII-27-A. S: 1- (147-A)
Muhammad Tufail, 6-Guru Nanak Para House No. 593, Gujranwala Given under my hand the seal of my offce this 3rd day of January, Nineteen hundred and seventy seven (3-1-1977).
(Sd.)
1-1-1977Commissioner, 3-1-1977Lahore Division, Lahore.
5. This order was communicated as is apparent from Annexure 'C' by the Assistant to Commissioner on telephone to the Deputy Commissioner, Gujranwala, who communicated it by a letter Annexure C' to the District Education Officer, Gujranwala asking him to inform the petitioner to ensure that the possession of the property remains with the Education Department. The order of requisition was, however, served by the District Education Officer on the petitioner on 7th of January 1977 when he was already in occupation of the property.
6. It may be stated that the case of the Government is that an official of the Educational Department presented the requisitioning order at the time of execution of the order of the Rent Controller, but the respondent refused to accept it. There appears, however, to be no warrant for this assertion in view of Anneaure 'C' which mentions a telephonic message and not receipt of the requisitioning order itself. The case of the petitioner on the other hand is that two hours after the possession of the building had been taken, respondents Nos. 5 and 6 came to the spot with the local police and other persons and forced an entry into the building, broke open the locks and reoccupied it on the pretext of a letter Annexure 'C' which itself was unsigned at that time. This assertion is supported by an affidavit. Moreover the documents of execution of warrant Annexures B/1, B/2 and B/3 also prove that the possession of the property had been taken before service or the order of requisition. There is no affidavit in support of the assertion that this order was communicated to the petitioner at the time of execution. It is not, however, the case of the respondents that this order was brought to the notice of the Bailiff who had gone to execute the warrant and who was the proper person and to whom it should have been communicated.
7. At the time of arguments the learned counsel for the respondents urged that an objection about the legality of the execution has been filed before the Executing Court and since that objection petition raised a disputed question of fact, the same could not be decided by this Court. The learned counsel was directed to show the copy of the objection petition to me. On the nest date of hearing, however. It appeared that no such objection petition hag been filed. On the other hand two applications, one dated 31-z-1977 and the other dated 21-5-1977 have been filed but they are only for return of the goods taken in Superdari by Annexure B/3. There is no objection at all to the execution. This also is proof of the fact that the order was not communicated at the time of execution of the warrant of ejectment.
8. The facts In the other case are rather simple. Bungalow No. 456-0 situated in Satellite Town.
Gujranwala. Which is owned by the petitioner Soot Taj Muhammad Khan was let out by him to Khawaja Ghnlam Ahmad fn the year 1966 at a rent of Rs. 250 per month. Khawaja Ghulam Ahmad started Khawaja Modern High School in these premises. This private school was also taken over by the Government under Martial Law Regulation No. 118. According to the facts given to me by the learned counsel for the parties, after the relationship of landlord and tenant was created. Between the petitioner and the Government, re- assessm ent of rent was made by some Government Official and thereafter the Government offered rent to the petitioner at a unilaterally reduced rate of Re. 60 per month, which was not acceptable to him. Thereafter a sum of Rs. 1,000 was paid. The Government contended that this should be treated as rent for 8 months at the rate of Rs. 125 per month while the petitioner who was within his rights to do so, remained adamant that it was only 4 months rent. The proceedings of ejectment were started in the year 1975 on grounds of default in the payment of rent from 1972 onwards. The Government representative admitted during the hearing of the application for ejectment that the rate was Rs. 250 per month. The application was allowed on the 27th of March, 1976. The appeal filed against it was dismissed on 2-11-1976. A Writ Petition No. 2810/1976 was filed by one Muhammad Salman on the 20th of November 1976 to challenge the ejectment from the Educational institution, but the same was dismissed in March, 1977. According to the petitioner this writ petition was initiated and pled at the instance and with the collusion of the Education Department. Any way a requisition order apparently under the same direction of the Government which was given by 1). O. No. S. O. (P & B)-2-1-75 dated 12-7-1975 was passed on the 10th of January 1977 after service of a notice dated 22-6-1976 upon the petitioner. This requisitioning order is on the same form which has been reproduced above in connection with the other Writ Petition No. 46/1977.
9. The learned counsel for the petitioners argued that in both these cases the requisitioning order was passed to flout and make inexecutable the orders of ejectment passed by the learned Rent Controller under the provisions of the West Pakistan Urban Rent Restriction Ordinance and were, therefore, clearly mala fide. They also argued that the order had been passed by the Commissioner under orders of the Government and not in exercise of his own jurisdiction, which could be exercised after his personal satisfaction that it was necessary and expedient to requisition the petitioners' buildings. The order was, therefore, beyond the scope of the Acquisition of Immovable Property (Temporary Powers) Act 1956. Attack was also launched on the legality of the notice served in June 1976 upon the t 7; o petitioners on the ground that by that time, the Commissioner had no powers of requisitioning the petitioners' property under the Act. It was, further argued that in any case an order of requisition without service of a notice on the occupant (the Education Department in these cases) was invalid in view of the mandatory provisions about the service of such notice in section 3 of the Act. In Writ Petition No. 46/1977 it was further urged that since in view of the execution of the warrant of ejectment, the petitioner had occupied the property for his own use, the property involved in that petition could not be requisitioned under the Act. In this connection it was argued that the petitioner had sought eviction of the Government not only on ground of default. But also on ground of personal requirement of the promises for the petitioner's use. In Writ Petition No. 225/1977 it was further urged that the mala fide of the Government is clear from the fact that although the school is located in Property Nos. 456-C and 457-C, but only the former premises have been requisitioned and not the latter.
10. Mr. Altaf Muhammad Khan, learned counsel for the respondents disputed the factum of delivery of possession to the petitioner in Writ Petition No. 46/1977. I have already dealt with this question at length and found this allegation to be incorrect. He challenged the locus stand of the petitioners since according to him only the occupant of the premises could challenge the requisition order. In regards to the attack on the notice served on the petitioner in June 1976, he argued that the basis of the attack was the assumption that the Commissioner was delegated with the powers under the Act of 1956 after this notice, but this was incorrect since such powers had been delegated as far back as in 1962. Alternatively he argued that the Act did not contemplate any notice to the owners of the property and as such the notices of June 1976 may be considered to be mere surplusage. On the point of mala fide he argued that two Writ Petitions Bearing No. 1393/1976 and No. 2810/1976 were filed by the students of the respective institutions, but there was no collusion between them and the Education Department or the Government. He also argued that the exercise of discretion under the Act of 1956 even if it may result in the orders of the Rent Controller becoming inexecutable, cannot be considered to be mala fide. He further argued that the Government could issue a direction to its delegatee to make a requisition since the original power of requisition vests in the Government and the Commissioner acts as a delegatee only. Lastly he argued that the Educational policy of the Government will suffer a serious set back if the discretion is exercised against the Government.
11.The West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 in its section 3 provides that if in the opinion of the Provincial Government it is necessary or expedient to requisition any building for the use of any Officers or offices, the Provincial Government may be 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 Requisition Act. Provisos 1, 2 and 4 barred the requisition of certain properties or their requisition except under certain conditions. The first proviso provided that no building used for the purpose of religious worship or imparting education or situated in cantonment shall be requisitioned under the Act. The second proviso provided that evacuee building shall not be requisitioned except with the prior approval of the Central Government. The fourth proviso laid an embargo on requisitioning a house in the occupation of an owner.
12. These provisions have undergone some changes now by Act XVIII of 1957. It vas provided that the embargo against the requisition of a house in occupation of an owner will be confined only to a residential house. Since the policy of the Government as is envisaged in D. O. No. S. O. (R & BI-2-1/75 is to requisition property for the use of an Educational Institution, an amendment became necessary in the Act of 1956 to lift the embargo on the requisitioning of properties for use of Educational institution and to confer powers on the Government to requisition such properties. This object was achieved after almo3t a year of tie issuance of letter of 1975 by amendment of the Act of 1956 by Act XII of 1976. The Government was given the power by this Act to requisition immovable properties for -the purpose of Educational Institutions also. The words in the first proviso "or imparting education" were deleted so as to remove the bar against the requisitioning of properties used for that purpose.
13. Another relevant provision in the Act of 1956 is its section 10 which authorizes the Provincial Government to direct by the order notified in the official Gazette : ---That any power conferred or any duty imposed on it by this Act, shall in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged by such officer as may be so specified."
14. An important question which crops up in these cases is whether the Act of 1956 contemplates requisition of premises which are in occupation of persons other than those for whom they are required to be requisitioned or it allows the requisition o1 the property which is already in use for the very purpose for which requisition order is passed. The preamble of the Act shows that this law has been enforced in order to make provisions for temporary requisitioning of immovable property. As has been seen section 3 which authorities the requisitioning of such property provides that the requisitioning order can be made subject to the following conditions:
(1) In the opinion of the Provincial Government it should be necessary os expedient to requisition any property.
(2) The requisition must be either for the use of any of its officers or offices or for the use of educational institutions.
Subsection (3) of section 3 provides that "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".
15. The term "requisition" is not defined in the Act. Its dictionary meaning is "the action of requisitioning ; a demand made by a person". The word "require" means "to ask for (some thing or person) authoritatively or imperatively, or as a right ; to demand, claim, insist on having. Section 3 will, therefore, mean that the Provincial Government is authorized to require from and make a demand upon owner/occupant of the .Immovable property to band over its possession of it for use of its officers offices or of educational institution provided the Government thinks it p expedient or necessary to make such an order. This section contemplates that the property should not be one which is already occupied by the Government or its officers or offices or its educational institution.
The requisition must Involve the taking o1 possession of the property.
16. The word "requisition" has been defined in the Defence of Pakistani Rules, 19 7 1, as meaning "in relation to any property to take possession of the property or to require the property to be placed at the disposal of the requisitioning authority". This definition is in accord with the dictionary D meaning of requisition which has been noticed above. The word 'requisition" has been interpreted is Stroud's Judicial Dictionary (Third Edition). Paragraphs Nos.4 and 6 at pages 2565 and 2566 are reproduced hereunder t "(4) Power to take possession of land was conferred by Regulation 51 o! The Defence (General)
Regulations, 1939. This was in effect a power to requisition premises (although the word 'requisition' is not used in the regulation) and is so treated in e.g. Circular No. 23/52, 'Requisitioned Premises Now in Use for Housing' of the Ministry of Housing and Local Government. P3wer to requisition property other than land was conferred by Regulation 53 in terms. By Regulation 100 (1), 'requisition' means, in relation to any property, 'take possession of the property or require the property to be placed at the disposal of the requisitioning authority.
Compensation for taking possession of land or requisitioning other property was authorised by the Compensation (Defence) Act, 1939 (2 dt 3 Goo. 6, c. 75), section 17 of which defines the word 'requisition' in the same terms as Regulation 100 (1) above.
(6)Requisitioning' is not a term of art and has different meanings. Its usual meaning is nothing more than hiring without taking the property out of the owner although the owner has no alternative whether he will accept the proposition of hiring or not. It may, however, involve the taking over of the actual domination of a chattel (The Steaua Romans, (1944) P. 43). "
'In Mangllal garwa. v. The State of Madhya Pardesh and others (AIR 1955 Nag. 153) the term requisition' was explained as under: "The term 'requisition' is used in the sense of taking possession of property for the purpose of the State or for such purposes as may be specified in the statute authorising a public servant to take possession of private property for a specified purpose for a limited period in contradistinction to acquisition of property by which title to the property gets transferred from the individual to the State or to a public body for whose benefit the property is acquired by the State but is taken out of the control of the owner for the time being for certain specified purposes. Even for this limited purpose, however, the owner becomes entitled to compensation, because 'requisition' of the property amounts at least to a temporary deprivation of the property."
17. Requisition, therefore, pre=supposes taking over of a building which is in possession of persons other than those for who3e use It is required to be requisitioned. A building already in use of the Government Officers, or offices or educational institutions, cannot, therefore, be requisitioned for the same use. This interpretation is further borne out by the provisions about notice to the occupant in subsection (3) of section 3 of the Act. This] D provision can be invoked only when a person other than the Government or its employees or offices or educational institutions occupy the property. I, therefore, am of the view that the property already in possession of the Government for the use of educational institutions cannot be requisitioned. The order of requisition is, therefore, absolutely without jurisdiction.
18. The other question is whether the two orders of requisition emanated from the Commissioner on his satisfaction about the expediency and necessity of the requisition or whether the Commissioner's orders, if passed under direction of his delegator, are valid in law. In order to answer these queries it is necessary to review some case-law and interpret section 3 of the Act read with its section 10.
19. As stated above, the powers under section 3 for the requisition of Inter alia the property in dispute have been delegated to the Commissioner of the Division. This delegation order confers powers under section 3 upon Inter alia the Commissioner.
20. A requisition order under- section 3 can be passed only if in the opinion of the requisitioning authority it is necessary or expedient to requisition any building. The effect of delegation of power under section 10 $ of the Act would be that such an opinion can be formed only by the delegate where the order of requisition is passed by him. In case of exercise of power by a delegstee of the Provincial Government, the word "Provincial Government" must be substituted by the particular delegatee the Commissioner in the present case. The Government can form an opinion or act upon its own satisfaction about the expedienoy or necessity of requisitioning a property only if the order of requisition i3 passed by it. In case such an action is taken by the delegates, the satisfaction of such necessity or expediency should be that of the delegates and not that of the Provincial Government.
21. This question was considered by a Full Bench of the High Court of West Pakistan in Nadim Fatima v. Government of West Pakistan (PLD 1967 Lah. 103). It was held that 'satisfaction' being a condition precedent to the making of an order under rule 32 (1) (8) of the Defence of Pakistan Rules, ii' the power of detention under the above rule is conferred on the Provincial Government or another officer, then it must carry with it the power to be satisfied. The same view was taken by the Supreme Court in Ghulam Allanl v. Government of West Pakistan (PLD 1967 SC 373). A contrary view was taken by a Division Bench of the High Court of Sind & Baluchistan in Maquat A.I v.
Government of Sind (PLD 1973 Kar. 78) where it was held that notwithstanding delegation the satisfaction. Must be that of the delegator. This case was dissented from in view of the Supreme Court's view and the Full Bench view in Noor Muhammad v. District Magistrate (PLD 1976 Lah. 233). I am respectfully in agreement with the Lahore view. It follows from the principle laid down in the Lahore authority that the delegatee must act on his own satisfaction and not the satisfaction of the delegator. In the instant case the Government issued a peremptory direction to all its delegates to requisition premises in possession of the educational institutions run by it which are subject to proceedings of ejectment incompetent Courts. This directive left no choice to the Commissioners in the matter of requisition. The Commissioner being an authority subordinate, to the Government cannot take the risk of disobeying these directions. In. These circumstances I agree with the argument of the learned counsel for the petitioners that the impugned orders of requisition cannot be said to have been passed on the opinion formed by the Commissioner about the' F, expediency or necessity. While passing these orders the Commissioner has only obeyed the command of authority superior to him. This is not therefore a real exercise of his discretion. Rather it amounts to abdication by him of his own authority to the Government. The orders of the Commissioner are liable to be set aside for this reason alone.
22. The argument of the learned counsel for the petitioner about the power of the Commissioner to issue notice of requisition in June 1976 is not based upon the order of delegation, but upon their being no law in the. Field in June 1976 allowing requisition of buildings used for the purposes of imparting education. As stated above there was on that date a bar provided against requisitioning of such properties. This bar was removed for the first time on the 8th of July, 1976. The argument that the show cause notices were served upon the petitioners on the dates when the Government had no power to requisition the property and as such those notices were illegal, has considerable force.
23. The next question is whether in the circumstances of this case such a show-cause notice was required. In order to justify the argument that it was not so required, Mr. Altaf Muhammad Khan relied upon Proviso (3) to section 3 which provides 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."
He argued that notice was necessary only to the occupant of the building and not to the owner.
24. It is correct that the Act does not provide for such a notice. But the reason is not far to seek. The Act saved property in occupation of the owner from requisition. It allowed requisition of only those properties which were in occupation of others who were likely to be disturbed by the order of requisition. It was fin these circumstances that notice to oc3upant was provided for. The scope of embargo on requisition of property in occupation however was narrowed down by an amending law in 1957 to residential properties. But this amendment does not leave the owner without a right of notice in regard to properties other than residential promises in his occupation. The requisition of other properties in occupation of the owner would attract the provision of proviso 3 about notice, and the owner would be entitled to such notice in his capacity of occupant if not in his capacity as owner.
25. But the specific provision about notice does not make the principle of audi alteram partem inapplicable in all cases. This principle extends to all proceedings affecting person or property of a party and orders effecting such rights cannot be passed without affording opportunity of hearing to that party unless there are express provisions to the contrary. Faridsons Ltd v. Government of Pakistan (PLD1961SC537), Commissioner of Income-tax, Bast Pakistan v. Fazlur Rahman (PLD1964SC410), Sh. Abdul Rehman v. Collector (PLD1964SC461), University of Dacca v. Zakir 4hmad (PLD1965SC90) and Abdus Saboor Khan v. Karachi University (PLD 1966SC536).
26. This principle is clearly applicable to the case of the petitioners who had acquired a right to the possession and occupation of their properties by execution of the order of the Rent Controller as envisaged by section 17 of the West Pakistan Urban Rent Restriction Ordinance. A show-cause notice was, therefore, necessary after the enforcement of Act XII of 1976, by which the power to requisition the properties in dispute was for the first time conferred. A notice served upon the petitioners at a time when the requisitioning of such properties was barred, cannot be deemed to be legal or a compliance with the principle of natural justice. These notices were no more than nullities in the eye of law.
27. I am satisfied that the order of requisitioning was served upon the petitioner in Writ Petition No. 46/1976 after the execution of the order of the Rent Controller and notwithstanding this execution he was forcibly dispossessed of the premises the same day. But I do not agree with the argument advanced on behalf of Muhammad Tufail, petitioner, that a notice upon him was necessary under proviso (3) to section 3. It is true that the third proviso makes a notice necessary on an occupant. If Muhammad Tufail is proved to have obtained possession of the premises before the order of requisition was passed and signed by the Commissioner, the applicability of the third proviso and the necessity of a notice upon him cannot be denied. But in the present case it is not clear whether the order of requisition was passed prior to the execution of the order of ejectment or after. There is no foundation, therefore, for the argument based on proviso (3). However, I agree with the argument of the learned counsel that once he had occupied the property for the purpose of his residence, h could not be ejected there from before the expiry of the period of one month. Proviso (3) makes it incumbent upon the Requisitioning Authority to allow a period of one month at least to vacate the building. The dispossession of the petitioner before that period would therefore be without lawful authority.
28. Argument based upon the 4th proviso also has considerable weight. That proviso provides "that no owner in occupation of a residential house shall be required to vacate it."
The learned counsel for the respondents argued that this proviso will apply only to a residential building and not to the present building which was being used for imparting education. This argument is without force sin after the execution of the order of the Rent Controller the property ha ceased to be a property for imparting education. It is not denied that the application for ejectment was filed, inter alia for the purpose of personal residence. The occupation of the owner in this house should be considers to be with that end in view. That Muhammad Tufail did not have time to bring the household goods in this property, would not make any different in view of his intention to occupy the house for residence. Moreover it is not denied that the houses in Satellite Town have been constructed for the purpose of residence and fall within the category of residential houses.
The objection of Muhammad Tufail therefore prevails.
29. I may now take up the question of melafide exercise of authority. It is an established proposition that a mala fide act is a nullity and is not an act within the Statute under which it is passed. In Zafarul Ahsan v. Republic of Pakistan (PLD 1960 SC 113), it was held that "Where the proceedings are taken males fide and the statute is used merely as a cloak to cover an act which in fact is not taken, though it purports to have been taken, under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute."
"Malafides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurl the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also males fide.."
See also Abdul Rauf v. Abdul Hamid Khan (PLD 1965 SC 67). Personal grudge against the person in respect of whom action is taken, may also prove malafide
30. Applying these principles to the present cases. It will be seen that the provisions of West Pakistan Urban Rent Restriction Ordinance had to be resorted to by the petitioners on account of primarily and admittedly the presistent default of the Government in the payment of rent. This default was more than one and a half years duration in both these oases. In the case of Writ Petition No. 225/1977 the petitioner was victimised first try the assessment of the rent to a sum of Rs.
60 per month. At the time of payment of Rs. 1,000 the Government took up the untenable position the rent was Rs. 125 per month, although ultimately it was admitted before the Rent Controller that the Government was liable to pay Rs. 250 pet month. These are clearly cases in which the concession given to the tenants by the Urban Rent Restriction Ordinance in the form of safeguards against ejectment have been misused to the considerable detriment of the larldlords.. She petitioners have been victimised on account of the official red tapism. The Urban Rent Restriction Ordinance contemplates the ejectment of the tenant in case of such misuse of the concession granted to him. The petitioners were, therefore, entitled to eject the Government from the premise in dispute and to that effect orders have been passed in their favour which were executable as decrees of a Court. The move to requisition these properties bas been made merely for depriving the petitioners of the rights given to them by these executable orders and to render the orders of competent authorities as inexecutable. The provisions of the Act of 1956 are, therefore, being used for a purpose not contemplated by the Act. The action taken is in colourable exercise of the powers and is for collatoral purpose not authorised by the law.
31. Another aspect of the mala fide is that a defaulter has become successful by resort to another law which was not enacted with this object in avoiding the consequences of the default and in further victimising and harassing the persons who wave already victimised.
32. The default being a result of the official negligence and red tapism, the Government should have taken action against those officials who were responsible for non-payment or non-deposit of rent in time. Admittedly no such action has been taken. On the other hand only the victims of this negligence are being further victimised. Surely this is not the object of the Act of 1956 to go on oppressing one already oppressed and to spare the person responsible for the oppression.
33. Further I am of the view that though it may be within the power of the Legislature to take away by a specific legislation the effect of a decree or order of the competent Court but such a power cannot be exercised by the Executive Government. The Constitution of 1973 as well as the earlier Constitutions of Pakistan are and have been based upon the system where there is a trichotomy of sovereign powers. The National Assembly or the Provincial Legislature exercises legislative authority within the constitutional limits. The executive authority is exercisable in the Federation by the Prime ~4inister and his Ministers in the name of the President (Article 90 of the Constitution) and by the Provincial Government consisting of the Chief Minister and Provincial Ministers and acting through the Chief Minister in the name of the Governor. Judicial power vests in the Courts including the Supreme Court of Pakistan and the High Courts. Out of these three organs of the State the power to make laws is conferred upon the Legislature only and while exercising that power the Legislature can make laws specifically affecting decrees or orders already passed or eve making them unexecutable. The executive, however, has to function within the ambit and scope of the laws made by the Legislature the interpretation of which is within the jurisdiction of the judiciary. It has not been given an power to override the Courts to take away their jurisdiction or to take away the effect of any executable decree or order passed by them. The superiors judiciary on the other hand is conferred authority under Article 199 of the Constitution to override in the manner provided by that Article orders of Executive Authorities. The same power vests in the civil Courts (the Courts of general jurisdiction) unless their jurisdiction is specifically or impliedly barred by any Statute (See section 9, C. P. C.). But the executive has no been vested with any power of dominance over the judiciary, although it has to function within the confines of its own limits. In these circumstances Q any order passed by the executive to directly or indirectly interfere with the powers of the judiciary or decrees or orders passed by it cannot be sustained in law. Such actions or orders must be struck down as being wholly without jurisdiction.
33. I allow these petitions with costs and declare the orders of requisition dated 3-1-1977 in the case of Muhammad Tufall and order dated 10-1-1977 in the case of Soofi Taj Muhammad Khan as having been passed without lawful authority.