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Writ Petition No. 197 of 1958, decided on 27th February, 1959,

,

S. 7 (3)‑Emphasis is not on delivery of possession but on fact that house will be handed back in state of reasonable repair.

writ of‑Not to issue to enforce right under contract.

Nasiruddin for Appellant.

H. T. Raymond for Respondents.

Date of hearing :19th February 1959.

.‑This petition is directed against the respondents for a writ of mandamus.

Bungalow No. 266 (266A and 266B), situated at Ingle Road, Karachi was taken on lease by respondent No. 1 from 1‑4‑1943 for a period of five years under the provisions of the Cantonment (House Accommodation) Act VI of 1923 from late Moses Joseph Henry Somake its previous owner. These premises are within the Karachi Cantonment Board area. The lease was renewed for a further period of five years ending on 31‑3‑1953. The petitioner on 20‑8‑1949 purchased these premises and called upon the respondent to vacate it as it was required for his personal needs. Respondent No. 2 on 14‑9‑1954 informed N. E. O., Karachi on the basis of a letter dated 16‑8‑1954 of the G. H. Q., Army that they have decided to "dehire" the bungalow in dispute, its vacant possession will be handed over to the petitioner on 16‑1‑1955 and asked him to make alternative arrangements for the occupant through N. H. Q. before this date. Copy of this letter was also forwarded for information to Major Shams Arif, Lt. Surgeon M. J. K. Suljuki, R. P. N., since retired, the occupant of the bungalow. '

It appears that the respondents did not vacate the bungalow. Several notices were given to them but respondent No. 3 on 19‑12‑1957 finally refused to vacate it as the housing problem had not yet eased and the bungalow was still required for the occupation of military officers. The petitioner has now come to this Court and prayed that a writ of mandamus be issued to the respondents for vacating the premises in dispute.

This petition must fail as the learned counsel for the petitioner has failed to show that there is a statutory duty upon the respondents to hand over possession of the bungalow to the petitioner. Mr. Nasiruddin, the learned counsel for the petitioner, has taken us through the various provisions of the Cantonment (House Accommodation) Act VI of 1923. These provisions provide that if a military officer, who is stationed or posted in a Cantonment area, is unable to secure suitable accommodation in that area and the officer commanding the station is satisfied that houses are not available on rent by private agreements to meet the requirements of military officers, he can require the owner of any house in that area to execute a lease of the house for a specified period which shall not be less than five years in favour of the Central Government. Under section 7 sub section (3) the following shall be deemed to be the conditions of every lease executed under subsection, (1), namely:

(a) that the house shall, on the expiration of the lease, be re‑delivered to the owner in a state of reasonable repair, and

(b) that the grounds and the garden, if any, appertaining to the house shall be maintained in the condition in which they are at the time at which the lease is executed.

The learned counsel on the basis of these terms argued that it is the duty of the respondents to hand over the possession of the house to the petitioner on the expiration of the lease in a state of reasonable repair. In our opinion this argument is fallacious. This subsection only says that every lease executed by the parties shall be deemed to include these terms, which in other words means that irrespective of the fact whether the parties agree or not they will be considered to be the terms of the lease of the house and the parties will be bound by them. Terms imposed in this way are also called terms of a statutory tenancy. A perusal of this subsection shows that its object is to see that the premises are re‑delivered by the Central Government in good condition. The emphasis is not on the delivery of possession but on the fact that the house will be handed back in a state of reasonable repair. Even if the contention of the learned counsel is accepted that it means that the Central Govern ment will deliver its possession on the expiry .of the lease, it cannot be considered to be a duty cast on the public servant. It is only a term like other terms of the lease and such terms cannot entitle the petitioner to obtain a writ of mandamus. There is little doubt that a right under a contract cannot be subject of a mandamus. In our opinion a writ cannot be granted to impose the terms of a statutory tenancy. The learned counsel has not been able to show that the facts of this case fall within any of the writs which this Court is empowered to issue under President's Order (Post Proclamation) No. 1 of 1958. The petitioner's remedy lies in the ordinary civil Courts.

Prima facie the respondents' case on merits is not strong. They must make up their minds. If they want to keep this property in dispute, it is desirable that instead of holding it as a tenant holding over they should take steps to regularise it. The premises in dispute can easily be requisitioned under one of the relevant enactments.

The petitioner has made an oral request to grant certificate to appeal to the Supreme Court. The leave is granted as the question raised before us involves question of the scope of writ of mandamus.

For these reasons, the petition is dismissed with no order as to costs.

K. B. A./A. H. Petition dismissed.

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