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Writ Petition No. 1.04 of 1956, decided on 24th, July, 1956.

S. 43‑ Order closing building for indefinite period‑Repugnant to provi sions of section‑Proceedings under Ss. 107, 145, Criminal P. C. already pending‑‑Action under S. 43 of Act uncalled for‑Writ of certiorari.

Held, that a Magistrate can only order, sealing or attach ment of a building for a temporary period which must be specified in the order itself. An order closing a building " till further orders " is repugnant to the provisions of section 43, Bombay District Police Act (IV of 1890).

Held, further, that it was inexpedient to take action under section 43 where an application under Section 145, Criminal P. C. had been made but was dismissed, and where proceed ings were already pending under section 107, Criminal P. C. An emergency order of the nature contemplated by section 43 was to be passed more properly by the Magistrate seized of these cases.

The order purporting to issue under section 43, Bombay District Police Act (IV of 1890) was set, aside by, issue of a writ of certiorari.

, 5. 43--- Conflicts with Article 11, Constitution of Pakistan.

S. Nasiruddin for Petitioner.

H. T. Raymond for Respondent No. 1.

Respondent No. 2 in person.

--‑This is d petition for issue of a writ of certiorari against Mr. Ali Jawad, City and Additional Magis trate quashing an order passed by him (respondent No. 1) under section 43 of the Bombay District Police Act, 1890.

It appears that an application under section 43, B. D. P. Act was made with the allegations that there was immediate apprehension of breach of peace in relation to the land in question. The learned Magistrate came to the conclusion that the breach was apprehended and ordered Rafiuddin, the applicant who was in possession of the land, to vacate it within a week, and further directed that the premises shall remain sealed or attached until further orders.

The main contention of the learned counsel for the petitioner is that the provision of section 43 of B. D. P. Act,' 1890 is in conflict with the provisions of section 11 of the Constitution Act and as such was void. There is some force in this contention but it is riot necessary to decide D this question as the petition has to be accepted on another ground.

Section 43 runs as follows :‑

In order to prevent an impending or apprehended not or grave disturbance of the peace the Magistrate of the district may temporarily close or take possession of any ' building of' place and may exclude all or any persons there from or may allow access thereto to such persons only and, on such terms as he shall deem expedient. All persons concerned shall be bound to conduct themselves in' accordance with such order as the Magistrate may make and notify in the exercise of the authority hereby vested in him "

It is clear that the section only contemplates temporary order. The order passed by the learned Magistrate is in the following words

The portion thus vacated will remain sealed or attached until further orders. It will not be used in any way by the applicant .

This order is in effect an order calculated to remain in operation for an indefinite period. The Magistrate could only order sealing or attachment for a temporary period which must in the nature of things be specified in the order itself. The powers given by this section are rather extraordinary in their nature and must be exercised very sparingly and for a very limited period. The learned Magistrate, though in the first portion remarked that the land in question be temporarily vacated by Rafiuddin, pro ceeded on to say that the order of sealing or attachment should remain in force until further orders. This order was passed on 29th March 1956 and now we are in July 1956. This order may remain in force for years. The order on the face of it is repugnant to the provisions of section 43 of B. D. P. Act.

It appears that a case under section 107/117 Criminal P. C. was already pending before another A. C. M. It was further stated at the Bar that an application under section 145, Criminal P. C. had been made and was dis missed. In the circumstances it was inexpedient for the City Additional District Magistrate, Karachi to entertain an application under section 43 of the Bombay District Police Act, 1890. Adequate remedies were available under sections 107 and 145, Criminal P. C. and the learned Magis trate who was seized of the disputes was the proper authority to pass an emergency order of the nature also contemplated by section 43 of B, D. P. Act, 1890.

We accept this petition arid direct that tile order of the Magistrate dated 29th March 1956 be set aside. The petitioner is to be restored to the same position in which he was at the time of the passing of the order which is being quashed. Necessary writ of certiorari may be issued.

A. H. Writ ordered.

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