Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Writ Petition Case No. 321 of 1957, decided on 23rd April 1958 under Article 170 of the Constitution of the Islamic Republic of Pakistan.
(a) Punjab Requisition of Immovable Property (Temporary Powers)'Ordinance (111 of 1955), S. 3‑Government can requisition property already in its possession as a tenant or otherwise.
Held, that Government can requisition property even though it may already be in its possession, whether as a tenant or otherwise.
Sh. Abdul Aziz and another v. Home Secretary to West Pakistan Government P L D 1956 Lah. 1073 ref.
(b) West Pakistan Requisition of Immovable Property (Tempo rary Powers) Act (VII of 1956), S. 6 (I) (a)‑Agreement means agreement entered into after requisition.
Section 6 (I) (a), West Pakistan Requisition of Immovable Property (Temporary: Powers) Act (VII of 1956) covers only the agreements entered into after the building has been requisitioned and not those which were in existence before the requisition.
Where Government was paying rent for premises by private agreement at Rs. 400 per month, but subsequently Government requisitioned the premises and fixed the monthly rent after notice to owner at Rs. 241, held that section 6 (1) (a) was inapplicable to such a case.
(c) Rules‑Requisition of property‑Rules not framed when property requisitioned‑Rules subsequently famed‑Effect on requisition.
In a case of requisition of premises under S. 3 ' of the Punjab Requisition of Immovable Property (Temporary Powers) Ordinance (II1 of 1955), at a date when Rules under the Ordinance had not yet been framed, the High Court, considering the question of observance of the Rules which were subsequently framed, remarked that what was prescribed in the relevant Rules could not obviously have been observed in regard to the requisition in question as that stage had passed before the Rules came into force.
M. Anwar in Person Rep. by Manioor Qadir, with
Muhammad Ismail Bhatti, M. A. Rahman and Ijaz Ali for Petitioner.
M. B. Zaman for A. G. for Respondent.
Dates of hearing : 27th and 28th February 1958.
.‑The petitioner, Mr. Muhammad Anwar, Barrister‑at‑Law, Lahore, owns Bungalow No. 46, Empress Road, Lahore, which is a double storied building. From 1st April 1955, its lower portion was taken by Mr. M. A. K. Tareen, Superintending Engineer, 1st Rehabilitation Circle, Lahore, on a monthly rent of Rs. 400 for the use of his depart ment. On the 9th September following, the department shifted to another building and on the next day the Government of West Pakistan, to accommodate the Election Department, requisitioned the lower portion, under section 3 of the Punjab Requisitioning of Immovable Property (Temporary Powers) Ordinance, 1955. In December of that year, the Home Secretary of the Government wrote to the petitioner that the latter had not contacted the Estate Officer about the fixation of rent and he should intimate the rent acceptable to him with the documentary proof in support of his claim within 10 days, failing which the rent would be fixed by the Government under section 7 of the Ordinance. It appears that the petitioner took no action in the matter and the rent of the requisitioned portion was assessed by the Government at Rs. 241 per mensem. The petitioner's brother, Mr. Safdar, who was in correspondence with the Government in the absence of the petitioner to England, was, on 24th July 1956, duly informed of the rent assessed and asked to intimate his acceptance within thirty days.
The petitioner, when he returned from England, wrote to the Home Secretary on 4th January 1957, that the Estate Officer of West Pakistan Administration Council had taken possession of the requisitioned portion on the 9th September 1955, (a day before it was requisitioned) and that the Provincial Government being already in occupation, it could not have requisitioned, that portion. On 14th January 1957, however, a crossed cheque bearing the date 10th January 1957, was sent to the District Judge, Lahore "on account of rent from 9th September 1955, to 31st December 1956, at the rate of Rs. 241 a month" and on 11th March 1957, the Home Secretary also informed the petitioner that there was no bar against the Provincial Government requisitioning a building which may already be in its possession and that the rent of the building requisitioned would have to be fixed in accordance with section 6 of the West Pakistan Requisition of Immovable Property (Temporary Powers) Act, 1956 (which Act by then had replaced the Ordinance), and that any agreement previously made between the Government and the owner would become ineffective.
2. The petitioner then, on 25th March 1957, filed his present writ petition impugning the order of requisition, and. the only points taken up before us were‑
(a) That the property in question was already in occupation of the Government and therefore could not have been requisi tioned ;
(b) That in case the order of requisition be held to be legal, there being already an agreement between the parties before the requisition, sub‑clause (1) (a) of section 6 of the Act would govern the case and the amount of compensation paid in accordance with the agreement, i.e., Rs. 400 a month ;
(c) That the fixation of rent was illegal and void as no prior notice of the intention to fix the rent was given.
3. In the written statement filed on behalf of the Govern ment it was denied that the Government was in possession before the property in question was requisitioned. It was stated that the Superintending Engineer Rehabilitation was not competent in law to enter into the agreement on behalf of the Provincial Govern ment nor he was authorised to fix the rent without the approval of the Finance Department. It was also stated that the right of the Government to requisition property even though it be already in its possession could not be questioned.
4. The first question that calls for determination is, whether the Government was already in possession of the lower portion when it was requisitioned. It is not denied that the Rehabilitation Department vacated it on the 9th of September when it shifted to another building. The letter dated 27th October 1955, written by Mr. Muhammad Ashraf, Executive Engineer III Rehabilitation Division, Lahore to the Estate Officer, West Pakistan, Adminis tration Council, Lahore, a copy of which was forwarded to the petitioner, would show that the lower portion in question was handed over to the overseer working under the Estate Officer, on 9th September 1955, and that the payment of rent from that date was to be the liability of the Estate Officer. There is then the letter dated 14th January 1957, which is from the Estate Officer himself, addressed to the District Judge, Lahore, sending a crossed cheque on account of rent for the period from 9th September 1955, to 31st December 1956. Thus there can be no doubt that the Government was in occupation of the premises on 9th September 1955. Not only that, even in the letter dated 11th March 1957, from the Home Secretary to the petitioner it was not disputed that tile Government was in possession on the 9th September and as a matter of fact the position taken up on behalf of the Government in that letter was that there was "no bar against the Provincial Government requisitioning the building already in its possession". We, therefore, hold that the Govern ment was already in possession of the lower portion when the same was requisitioned.
5. It has now to be considered whether the Government can requisition a building of which it is already in possession. In the Act itself we do not see any bar to this and the argument on behalf of the petitioner has merely been that there is no point in requisitioning a building which is already with the Government, as the Government remains as much a tenant in one case as in the other. If, however, one looks to some of the provisions of the Act, it will be found that the position of the Government after a building has been requisitioned is not that of a private tenant. Under section 3 (3) of the Act the Govern ment, when it has requisitioned a building, can use it or deal with it in such manner as may appear to it to be expedient, which is not the case with a private tenant who has to abide by the terms of his lease whatever those terms are. Then, under section 5 (2) of the Act the Government can ask the owner to carry out special repairs, and if he neglects to do so the Government can direct its own officers to do the needful and the costs deducted from the compensation payable under section 6 of the Act. The Govern ment could even, under section 8 of the Act, for the purpose of assessing the compensation, when a building has been requisitioned, require any person to furnish any information in his possession relating to that building and on his failure to furnish the required information, or if the information furnished be false, he could be punished with imprisonment which may extend to one year or with fine or with both. In our opinion, therefore, the Government, can requisition property even though it may already be in its possession, whether as a tenant or otherwise. In a recent Division Bench case, Sh. Abdul Aziz and another v. Home Secretary to West Pakistan Government, (P L D 1956 Lah. 1073) it was held that even if the possession of the Government be illegal at the time the property is requisitioned, it is of no material significance. The facts of that case were that the Government requisitioned a bungalow which remained .under requisition till by virtue of section 3 of the Punjab Requisitioning of Immovable Property (Temporary Powers) Repeal Act, 1954, it stood released from requisition and the Government became liable to deliver its possession to the owners on that date. But in spite of the provisions of the said Act, the owners were not given possession of the house and were put off by the officials concerned on one pretext or the other. Having failed in their attempts to get possession, the owners filed a writ petition, whereafter the Government again requisitioned the bungalow on the Punjab Requisitioning of Immovable Property (Temporary Powers) Ordinance, 1955, coming into force. It will appear that the owners in that case were on much stronger ground as the possession of the Government was illegal and the owners were deliberately not being given the possession. The learned Judges were even compelled to say in the judgment that the owners had been hard hit by the requisition. orders and it was almost 15 years that they had been deprived of their bungalow.
6. Coming to the second point raised, it may be stated that according to sub‑clause 1 (a) of section 6 of the Act, the amount of compensation, if fixed by agreement, must be paid in accordance with such agreement. The learned counsel for the petitioner argued that as in the present case there was already an agreement between the Government and the petitioner, according to which the latter was to be paid Rs. 400 p.m. as rent, the Government was bound by the agreement. This interpretation put on sub clause 1 (a) by the learned counsel is, however, unacceptable. The sub‑clause, in our opinion, covers only the agreements entered into after the building has been requisitioned and not those which were in existence before the requisition. The clause that follows, i.e., sub‑clause (b), makes the matter further clear. It says that where no agreement can be reached the Provincial Government shall by a general or special order appoint an arbitrator. This could only be after the building, has been requisitioned. No question of any reference to the arbitrator can arise before the requisition. The intention of the Legislature is also clear when we read rule 8 of the Punjab Requisitioning of Immovable Property (Temporary Powers) Rules, 1955, framed under the Ordinance of 1955. Under this rule the owner has to negotiate with the Government for fixing by agreement the amount of compensation, and this the rule says is to be after the requisition of the building. In our view, therefore, sub‑' clause 1 (a) of section 6 of the Act has no application in such cases as the present. The amount of compensation; in case of non‑agreement, has to be fixed by the arbitrator, who would, no doubt, take into consideration any agreement already existing between the Government and the owner. In the present case, we may state, we are unable to hold that there was no such agreement. Mr. Tareen, Superintending Engineer, may not strictly be regarded to be within his powers to enter into an agreement on behalf of the Government with the petitioner, as under rule 20.8 of the Punjab Financial Rules Volume I, St:. No. 8, lie was only authorised to sanction payment of rent upto Rs. 100 a month, but the action of this highly responsible officer was never before at any stage questioned by the Government. As a matter of fact the petitioner was regularly receiving Rs..400 per month as rent from the Government, though actually it was being paid by the Rehabilitation Department.'
7. Taking up the third point, one has first to look .to section 3 of the Act and then to the rules made by the Governor of West Pakistan in exercise of his powers conferred by section 12 of the Punjab Requisitioning of Immovable Property (Temporary Powers) Ordinance, 1955.
8. In section 3 it is provided that if a building which is to be requisitioned is in occupation of any person, no order of its requisition shall be passed unless a notice of two weeks is given to the occupants 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. In the present case it is true that no notice of two weeks was given, but it may be stated that the building in question was not in the occupation of any person except the Government itself and therefore the section has no application.
9. As to the rules, it may at first be stated that they were not even in existence at the time the building in the present case was requisitioned. The rules came into force only on the 16th January 1956, by a Gazette Notification, whereas the building, it will be remembered, had been requisitioned on the 10th September 1955. However, we 'may examine the relevant rules to see if any of these could have been observed after they had come into force.
10. Under rule 4, the Provincial Government, when any build ing is sought to be requisioned, has to give the person in occupation of. the building a notice of seven days within which he is to show cause why his building should not be requisitioned. Under rule 5, the owner or occupier can file objections and then under rule 6 the Government, if satisfied that it is necessary or expedient to requisition the building, makes the order of requisitioning and under rule 7 requires the owner or occupier to deliver the posses sion within fourteen days or such extended period as may be allowed. Under rule 8, the owner is then required to negotiate with the Provincial Government or their representative for fixing by agreement the amount of compensation payable to him for the use and occupation of his property. If the owner does not move within a fortnight the Government is to proceed to determine under section 7 (of the Act) the amount of compensation payable to him. If the offer of compensation assessed is refused, then, under rule 9, the Government, within seven days, has to deliver to the person interested in the property a duly authenti cated statement in writing setting forth the particulars of the property requisitioned, the amount of compensation and the ground on which the amount was fixed. Under rule 10, the party contesting the assessment can, within thirty days of the receipt of the statement, make an application to the arbitrator for ascertaining the proper compensation due to him. The remaining rules prescribe the procedure before the arbitrator.
11. It is obvious that what is prescribed in rule 4 to 6 could not have been observed as that stage had passed before the rules came into force. Under rule 7 no question of the delivery of possession within fourteen days could arise as the possession was already with the Government.
12. Coming to rule 8, it will be observed that a duty 'is cast on the owner to negotiate with the Provincial Government on the question of compensation within a fortnight. This, in the present case, was not done, and the Government, therefore, rightly proceeded to determine the amount of compensation; and then on the 24th July 1956, after assessment, made the offer of compensation assessed, asking the petitioner at the same time to intimate his acceptance within thirty days. This the petitioner did not do, and, therefore, the offer deemed to have been refused Thus rule 8, as far as the Government is concerned, was fully complied with.
13. Rule 9, however, would not seem to have been observed by the Government, as within seven days of the refusal the Government had to deliver to the petitioner a duly authenticated statement in writing. setting forth the various particulars as mentioned in the rule. This was not done, but on the day of arguments before us such a statement was delivered to the petitioner. It is, therefore, unnecessary for us to issue a direction to the Government requiring compliance with rule 9. The question whether Rs. 400 should be allowed as rent in view of the Government's non‑compliance with rule 9 and thus delaying adjudication by the arbitrator should now be left to the decision of the arbitrator, who will no doubt bear in mind the argument by which the amount of rent was fixed at Rs. 400.
14. The petition is, therefore dismissed, but since the petitioner was entitled to some direction in his favour if the statement under rule 9 had not been delivered to him at the date of the hearing, we allow him costs of the petition.
A. H. Petition dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer