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Petition for Special Leave to Appeal No. 439‑K of 1985, decided on 22nd December, 1985.
West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act (VI of 1956)‑‑
‑‑‑S. 3‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑‑Requisition‑‑Property in dispute in occupation of Government School‑‑Landlord succeeding in getting ejectment order against Government (tenant)‑‑Appeal of tenant (Government) fading before High Court and its Petition for Leave to Appeal dismissed by Supreme Court‑ Landlord seeking execution of ejectment order passed by Rent Controller against a writ of execution when Deputy Commissioner. issued orders requisitioning disputed property (which was already in possession of Government)‑‑Orders of requisition, held, were illegal and not passed bona fide as effect of same was to avoid ejectment which had been finally confirmed by Supreme Court‑‑That being colourful action of Deputy Commissioner and not in accordance with purposes of Requisi tioning Act was, therefore, an action without lawful authority.
P L D 1978 Lah. 87 and 1983 C L C 228 ref.
Abdul Sattar Shaikh, Addl. A.‑G. Sind with S.M. Abbas, Advocate‑on‑Record for Petitioners.
Mohsin Ali Tayab, Advocate Supreme Court, Agha Ali Khan, Advocate Supreme Court and A.A. Dastgir, Advocate‑on‑Record for Respondents.
Date of hearing: 22nd December, 1985.
.‑‑This case has come up before this Court in second series of litigation between the parties. Facts briefly stated are that in 1964, predecessors of the respondents filed an application before the Rent Controller for ejectment of petitioners 3 to 5 herein from the demised premises on the ground, inter alia, of default in payment of rent. The Rent Controller on 8‑5‑1972 passed a tentative rent order directing the aforesaid petitioner to deposit the arrears of rent from June, 1971 to April, 1972 at Rs.586.19 per month before 15‑6‑1982 and also to deposit future rent in Court regularly. The said petitioners failed to deposit rent in Court, and the Rent Controller, therefore, by the order, dated 19‑7‑1975, struck off their defence and directed them to hand over vacant possession of the demised premises to the respondents. The said petitioners filed an appeal against the order of the Rent Controller which was allowed by the Additional District Judge, Karachi but Sind High Court on a second appeal at respondent's instance set aside the judgment of the Additional District Judge, and restored the order of the Rent Controller by the judgment, dated 15‑3‑1983. Since no one had appeared on behalf of the aforesaid petitioners, who were respondents before the High Court, on the date of hearing, namely, 15‑3‑1983, the High Court heard and decided the second appeal on merits of the case after hearing the learned counsel for the appellants before them. On 29‑3‑1983, petitioners/ respondents however moved an application before the High Court "for recalling" the judgment, dated 15‑3‑1983, but the application was dismissed by the order, dated 25‑9‑1983.
2. The aforesaid judgment, dated 15‑3‑1983 and the order, dated 28‑9‑1983 led to two petitions for special leave to appeal before this Court, one being Civil Petition for Special Leave to Appeal No. 32‑K of 1984, and the other being Civil Petition for Special Leave to Appeal No. 61‑K of 1984, the former for leave to appeal from the order, dated 25‑9‑1983 and the latter from the judgment, dated 15‑3‑1983.
3. Civil Petition for Special Leave to Appeal No. 61‑K of 1984 was obviously time‑barred by 217 days. This Court, therefore, by the common judgment, dated 3‑12‑1984 dismissed the above petition as barred by time in these words:‑
"Since petitioner chose not to approach this Court within the period of limitation for leave to appeal from the judgment, dated 15‑3‑1983 and preferred to seek relief from the High Court by applying for recall of that judgment, it hardly lies in the mouth of the petitioner to seek relief from this Court later against that judgment, after the refusal of the relief in the remedy sought by it. This petition is, therefore, dismissed as barred by time."
The second petition was also dismissed for the following reasons:‑
"Civil Petition for Special Leave to Appeal No. K‑30 of 1984 is devoid of force altogether for the High Court has correctly held that the learned counsel for the petitioners was fully aware of the date of hearing fixed on 15‑3‑1983 but he chose not to appear in the case and although he was present in Court yet for some unknown reasons left the Court without looking after the case". There thus being no merit in this petition, it is dismissed."
After the dismissal of the aforesaid petitions by this Court, respondents sought execution of the ejectment order passed by the Rent Controller and writ for possession was issued in their favour by the Rent Controller on 6‑3‑1985. However, on the same day, the Deputy Commissioner (South) Karachi requisitioned the demised property under section 3 of the Sind Requisitioning of Immovable Property (Temporary Powers) Act, 1956.
4. Respondents then challenged this order in a Constitutional Petition in Sind High Court on several grounds, inter alia, that the impugned action was mala fide, and a fraud upon the statute insomuch as the purpose of the requisitioning was nothing but to avoid the execution of the ejectment order which had been competently passed by the Civil Court and finally confirmed by this Court.
5. Learned Judges of the Division Bench of the High Court, who heard the case, after considering various contentions raised by the parties, declared that the impugned order was without lawful authority for the reasons which may be reproduced as follows:‑
"Further contention is that the Government Authorities being themselves in occupation of the building at the time of the requisitioning, requisition order could not be passed in respect of the said property. Reliance has been placed upon P L D 1978 Lah. 87 (96) where it was held that the property already in possession of the Government cannot be requisitioned. The said view is based upon the interpretation of the word 'requisitioning' which means the requiring of possession from someone and to ask for as of right or to insist upon having, the last two meanings of the word 'require' are found in Law Lexicon by Iyer (1940) on page 1115.
The above view of the Lahore High Court was reaffirmed in 1983 C L C 228 by a Bench of this Court.
14 It is, therefore, obvious that the order of requisitioning in respect of the disputed property in this petition having been passed at the time when the property was already in occupation of the Government Schools the requisitioning was illegal.
We are further of the view that the order of requisitioning was not bona fide as the effect of the same was nothing but to avoid the ejectment orders which had been finally confirmed by the Supreme Court. It was, therefore, a colourable action and was, therefore, not in accordance with the purposes of the requisitioning Act. It was, therefore, an action without lawful authority.
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We are further of the view that if the order of requisition was made by the respondent No. 2 under the directions of some superior authority and not independently then again the order of requisition is invalid in law as the respondent No. 2 has not taken an independent action and has acted at the instance of someone else who had no authority under law to issue such a direction in respect of requisition.
6. It was submitted on behalf of the petitioners before the High Court that the order directing possession of the property to be handed over to the respondent would cause inconvenience to about 1,000 students who are studying in the schools. In this behalf learned Judge' of the High Court observed as under:‑
"We are in sympathy with the students and we feel sorry that such inconvenience would be caused to the students in this case but the law has to take its own course and the respondents cannot take shelter behind inconvenience of students when they had failed to comply with the orders of the Rent Controller in depositing the rent in time. The respondents are themselves to blame for creating such a situation and they failed to remedy the same in spite of orders of the superior Courts and now they have come out with an illegal order of requisition. We have no choice in the matter in view of observations made by the Supreme Court in P L D 1985 S C 360 where it was held that in an ejectment case where the rent has not been paid by the Government Agencies to the landlord and ejectment had been ordered on that basis, therefore, in these circumstances, the contention that inconvenience to the students would be caused was completely misconceived. We respectfully follow the same. We declare that the order of requisitioning, dated 6th March, 1985 impugned in this petition was made without lawful authority and is ineffective."
7. Mr. Abdul Sattar Shaikh, learned Additional Advocate‑General barely repeated submissions that were made by him before the High Court. Since all these have been rejected for very cogent and proper reasons, and on the basis of the decision of this Court in the aforesaid reported case, there is hardly any merit in this petition. It is, therefore, dismissed.
M . Y . H . Petition dismissed.
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