FAKHRUDDIN G. EBRAHIM, J.-The requisition of the bungalow an apron is challenged by the petitioner/tenant on, the ground that no prior notice of the proper action was given to him as required by the third proviso to section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) .Act, 1956, which reads as follows :- Sec. 3 Requisitioning of property.- (1) If in the opinion of the Provincial Government it is necessary or expedient to requisition any building for the use of any of its officers or offices, the Provincial Government may by order in writing requisition any building and may matte such further orders as appear to it to be necessary or expedient in connection with the requisitioning : Provided also that if a building is n 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 shell be allowed a period of one month, at least, to vacate the building and the occupant shall there upon comply with that order.
(2) If the, notice mentioned is the third proviso to subsection (t) cannot be Served on the occupant personally, affixation of the notice on a conspicuous pare of the building of service by means of a proclamation or by mesas o' a notice in the official Gazette and local arms shall be deemed to be sufficient service for the purpose of the section---.
2. The case of the Government is, firstly that this proviso stood amend--ed by nation 2 of Ordinance It of 1980 and there was, therefore, no necessity for any prior notice and in the alternative the argument was that the petitioner was not In occupation of the bungalow so as to entitle him to prior notice. Section 2 of Ordinance II of 1970. Reads as follows t- Section 2. Amendment of section 3 of West Pakistan Act VII of 1956-.--In the Wag Pakistan Requisitioning of Immovable Property (temporary powers) Act, 1956, in its application to the Province of Sind, in section 3-
(1) in subsection (1), the wordy "after giving the owner thereof an opportunity of being heard and showing cause against the proposed action--- shall be omitted and shall be doomed to have been so omitted with effect from to July 19701 and (ii) after subsection (2), the following subsection shall be inserted :- "(2-a) Any person aggrieved by an order made under subsection (1) requisitioning any building may mate an application to the authority mating the order, to review the order. And on such -- ion being made, such authority, after giving the applicant as opportunity of being heard and adducing evidence in support of the application, may tens, modify or rescind the order."
It may at once be noted that the words in the aforesaid amendment (underlined by me) do not appear in the original section 3. Therefore" the previous proviso in so far as it required that the occupant will be given two weeks' notice to show cause against the proposed requisitioning remain intact and muse be given effect to. Cur attention was not Invited to arty other amendment of the At Faced with this situation Mr. Usman Ghani the learned Assistant Advocate-General invited our attention to subsection (2-a) of the Amending Ordinance and brought to infer therefrom the absence of an obligation to give notice to an occupant. We are unable to read in the aforesaid subsection (2-a) to above. Any deletion of the retained third provisio, referred to above in the presence of which the meaning to be given to subsection (2-a) to my mind is that if an order of requisitioning is made either before or after a show-cause notice (the law does not contemplate prior notice if the promises ass unoccupied), the person aggrieved will have a right of review. Mr. Usman Ghani also invited our attention to a decision of this Court reported in PLD 1971 Kar. 363.
Observations on which the learned counsel relied are as follows :- "The provision with regard to opportunity of hearing to show cause against the proposed action was made in the Act, so that there is no offence to the well established principle of audi alteram partem, that is, "no man shall be condemned unheard". The Courts of law having recognised this principle to be fundamental that am in absence it is to be read in every statute that provides for the making of an order affecting a right in property or status or a penal consequence against any person. In the question whether this right has to be granted to or construed in favour of an aggrieved person, before or at the action is taken, the answer most necessarily depend upon what do Legislature wishes to achieve In a given situation and circum--stances. It 1s well established that it is even open to a competent Legislature to specifically take away such rights by making the intention dear in this regard.'"
It will be noticed that in this case the Court was concerned with a petition by an owner a distinguished from a tenant in occupation and the Court had no occasion to consider the fact that the amending Ordinance did .Not delete the proviso relating to a prior show-cause Mice to an occupant. This decision is therefore, of no help to the respondent.
3. Coming to tire other c intention of the warned Assistant Advocate General that the promises were in fact not in occupation of the tenant, it will suffice to rotor to tie official inspection report of the premises, which our mind clearly shows that the bungalow was in occupation. It was reasonably furnished, it contained clothing of the occupant and the kitchen was duly equipped.
This report read in conjunction with the petitioner---s case that he had taken this premises on rent under a tenancy agreement in writing dated 23.4-1976, and that be had paid rent up to November 197 !7 coupled with the fact, not denied in the impugned older, that the occupant had left for Islamabad on 7-11-1976, on his return on 12-11-1976 found the bungalow sealed, supports the petitioner---s claim that he was in oocupation of the bungalow.
4. The result, therefore, is that this petition is allowed in terms prayed for and two weeks time is granted to the respondents to vacate the premises.
S. A. U. Petition atop,