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Constitution of Pakistan (1973)

--Art. 199 read with West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act (VII of 1956), S. 3 --Requisitioning of premises-Premises in occupation of Mukhtlarkar - Deputy Comissioner by letter informing landlord that Mukhtiarkar has been advised to settle rent and to pay dues in arrears and current rent-Landlord advised to approach Rent Controller for fixation of suitable rent-Mukhtiarkar not paying rent in spite of letters from Deputy Commissioner-Landlord approaching Rent Controller for ejectment who allowed ejectment-Landlord filing execution application after which requisition order for premises including 5 shops passed-By a subsequent order shops deleted by an amending order-Landlord aggrieved of impugned order moved High Court under constitutional. jurisdiction--Held, order of requisition not bona fide and defeats order of Rent Controller Petition allowed and order of requisition declared as without lawful authority.

Zaheeruddin for Petitioners.

Muhammad Ibrahim Memon, A. A.-G. for Respondents.

Date of hearing : 18th October, 1982.

AJMAL MIAN, J.-The petitioner has impugned through this petition order dated 24-3-1973, whereby respondent No. 2 in exercise of powers delegated to him by the Provincial Government of Sind under Notification No. XIII (76) Hd-Judl/72 under section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 requisitioned the tenement mentioned in the petition. The brief facts leading to the filing of the above petition are, that the tenement in suit was in occupation of the Mukhtiarkar. The Deputy Commissioner through letter dated 12th September, 1961 informed the petitioner No. 1 that the Muhhtiarkar occupying the tenement was directed by him to settle the rent for the building in his occupation and to pay up the dues in arrears as well as the current rent without further delay. The petitioner was also advised to approach the Rent Controller for fixing suitable rent according to law. It further seem that in spite of this letter and other letters, the Mukhtiarkar concerned did not pay the rent. The petitioners thereafter approached the Rent Controller for ejectment and filed Rent Application No. 14/68, which was allowed by an order dated 30-9-1971 by the Civil Judge and Rent Controller, Tando Allahyar. After that the petitioner filed an Execution Application. Upon the filing of the Execution Application the impugned order was passed requisitioning the tenement in question including shops which were subsequently deleted by an amending order dated. 5th November, 1974. The petitioners being aggrieved by the above order have filed the present petition.

2. Mr. Zaheeruddin has urged that the exercise of power by respondent No. 2 was mala fide inasmuch as the respondent No. 2 himself had advised the petitioner to approach the Rent Controller and thereafter he purported to pass the impugned order in order to defeat the order passed by the Rent Controller. Mr. M. I. Memon, the learned Additional AdvocateGeneral was unable to meet the above argument. However, he contends that since the petitioner has filed a review petition that should have been prosecuted which was not done. On the other hand Mr. Zaheeruddin contends that in spite of the fact that he had filed a review petition, no action was taken by respondent No. 1. Be that as it may, since a period of 8 years had already expired since the, filing of the above petition, it will not be just and proper to non-suit the petitioner on the ground that a review petition was filed. It will suffice to observe that respondents have not produced any order passed on the above review petition.

3. We are inclined to hold that the exercise of power by respondent No. 2 was not bona fide and it was prompted to defeat the aforesaid order of the Rent Controller dated 30-9-1971. In this view of the matter we allow the petition and declare that the impugned order is without lawful authority. The petitioner shall be at liberty to file Execution Application in respect of the ejectment order dated 30-9-1971.

M. Y. M. Petition allowed.

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