Find a Lawyer

Writ Petitions Nos. 191 and 193 to 199 of 1955 decided on 6th March 1956.

, S. 223‑A‑Writ of Prohibi tion‑Lies where lack of jurisdiction assumed by tribunal is patent‑Land Acquisition Act (1 of 1894), S. 17 (I)‑Notifica tion for acquisition of site of shops‑Without jurisdiction.

Petitioners were in possession of evacuee shops as tenants of the Custodian of Evacuee Property. The Chief Commis sioner of Karachi, notified for acquisition of site of the shops under section 17 (1), Land Acquisition Act, 1894.

Held, that the ejectment proceedings of the Petitioners from the land and shops in their possession were without jurisdiction because section 17 (1) Land Acquisition Act applied only to waste or arable land.

Further, that writ of prohibition ought to issue where a Tribunal assumes jurisdiction and want of jurisdiction is patent on the face of it.

Sadiq for Petitioners.

Valiani for Respondents

---‑These eight petitions are for issue of a writ in the nature of mandamus and/or prohibition and/or any other appropriate writ, order or direction ordering the ‑ respondents not to enforce the Chief Commissioner, Karachi's notification dated 14th July 1955, under sections 4 and 6 of the Land Acquisition Act,‑ 1894 (hereinafter referred to as the Act), notifying the acquisition of the plot for the purpose of expansion of the Central Telephone Exchange, Karachi, and directing respondent No. 1 to take possession of the land in occupation of the petitioners under section 17 (1) of the Act treating the said land as waste or arable land though the Custodian,. Evacuee Property recognised them as tenants of the shops under section 18 of the Administration of Evacuee Property Ordinance XV of 1949.

For the sake of convenience they have been heard together because they involve identical question for deter mination.

Section 17 (1) of the Act provides‑---

"In cases of urgency, whenever the Local Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, subsection (1), take possession of any waste or arable land needed for public purposes or for a company. Such land shall thereupon vest absolutely in the Government, free from all encumbrances."

Thus one of the conditions which must be fulfilled in cases in which possession is taken under section 17 (1) is that the land must be "waste or arable". If this and the other conditions noted in the section are complied with the taking of possession may wait at least 15 days from the date of the publication of notification under section 9 (1) of the Act. Under clause (2) of the section immediate possession of the land can be taken in case of unforeseen emergency.

The learned Advocate for the respondents concedes that this case does not fall under section 17 (2) and that the order for taking possession of the shops under section 17 (1) of the Act which applies only to waste or arable land was without jurisdiction. He has argued that the applications are not maintainable as the applicants are entitled to compensation only from the Custodian. But the orders regarding ejectment of the applicants from the shops affect the rights of the applicants and they cannot be disturbed in their possession as lawful tenants without recourse to law. A writ will bet issued where a Tribunal assumes jurisdiction and the want of jurisdiction is patent on the face of it. We are of the opinion that in this case proceedings under section 17 (1) of the Act were without jurisdiction having regard to the fact that the acquisition related to the shops in possession of the petitioners as tenants and not to waste or arable land.

We, therefore, hold that this is a fit case in which a writ of prohibition m4y be issued against the respondents as prayed in paragraph 18 of the petitions. The respondents will bear the costs of the petitioners. This judgment governs the above mentioned 8 cases.

K. B. A. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.