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Miscellaneous Appeal No. 20 of 1955, decided on 6th June 1955.

Notice‑Service by publication in newspapers on group of 50 persons living in same locality‑Valid.

Not retrospective so far as eviction from land is concerned.

Retrospectivity‑Penal Statute not retrospective unless expressly or by necessary implication so provided.

"Property" Sduatter's right an exiguous item of "property".

Khalid Ishak for Appellants.

Fazlur Rehman for Respondents.

In our Judgment dated 6‑5‑55 we gave opportunity the respondents to apply for discharge of the tempo rary injunction if notice were issued by the Collector. Mr. Fazlur Rehman has filed an affidavit of an officer of the respondent's company to the effect that the Collector had issued notice in October 1954 directing the persons in unauthorised occupation to remove the constructions from the Landhi Industrial Area and also vacate the land. To this affidavit a certified copy of the notice has been attached. This notice was published in Dawn' and Anjam'. Section 2 (x) of the Land Control Act, 1952 provides :‑

"The expression to serve notice' shall be construed, where necessary, as including the serving of such a notice on a group of persons living in any locality by publishing it in local newspapers."

The plaintiffs, appellants are 50 in number and we consider that the service of notice in this fashion was justified by necessity. In addition the affidavit mentions that this notice was affixed at various places on the site. It appears to us that the express provi sion in section 2 (x) validates the service of notice in this fashion.

The appellants contended that they were licensees of the Joint Wager Board. The Joint Water Board has filed an affidavit deny ing this and we consider that there is no truth in the allegation of the appellants that they are licensees. They are mere squatters. It is not seriously denied that they have so squatted before the commencement of the Act.

The Land Control Act, as its preamble states, was passed for the prevention of the unauthorised occupation of lands in the Capital of the Federation and of unauthorised building on the same, and for eviction from such lands and buildings. Section 2 (vii) defines unauthorised building as a building declared by the Autho rised Officer or the Administrator to be unauthorised. The scheme of the Act is that the Central Government may declare an area to be a controlled area (that admittedly has been done in the present case, and the Landhi Industrial area is such an area). No such person is allowed to erect a building in the controlled area without obtaining permission from the Authorised Officer. We then get a group of sections 7 to 10. Section 7 enables the Authorised Officer to direct the owner of an unauthorised building erected prior to the date of coming into force of the Act to remove the same. Section 8 gives him similar powers in respect of buildings the construction date of is in progress on the date of the commencement of this Act Section 9 provides that if the owner of the building is not the occupier the Authorised Officer may direct the occupier to vacate building. Sections 9 (2) and 10 authorise the Officer to use force to evict the occupier and to remove the construction at the owner's expense. Then we come to section 11 (1) which reads as follows :‑

"The Authorised Officer may, by a notice served in the pres cribed manner, direct any person unauthorisedly occupying or wrongfully in possession of any land or building, in the controlled area to vacate such land or building within the period mentioned therein . . . . . ."

Section 13 provides that whoever fails to comply with a direction under section 7, 8 or subsection (1) of section 11, shall be punished with finetor in default simple imprisonment for 6 months. Sec tion 16 provides that every order of an Authorised Officer under sections 5, 6, 7, 8, 9 or 11 shall, subject to provision of section 18 (this appears to be a mistake for section 17) be final and shall not be called in question in any Civil Court.

The Act therefore deals with the removal of structures built wholly or partially before the commencement of the Act. It also in section 11 (1) authorises eviction from land and buildings and here no date has been mentioned. In the first place it is to be noticed that there is a difference between removal of a building and eviction therefrom and on the other hand eviction from land. In the second place particular dates have been given in sections 7 and 9 regarding building whereas in section 11 no such date is mentioned. Thirdly, as section 13 shows, the Act is not merely procedural but penal. The question before us is whether section 11 is retrospective. Does it cover cases where a person has occupied land unauthorisedly before the commencement of the Act Accord ing to the well settled rule of construction retrospective effect is not C to be given to penal statutes, unless the Act so provides expressly or by necessary implication. We therefore hold that in so far as the notice directs the eviction from the land of the defendants that it is bad. This objection, however, does not apply to the removal of structures.

The application for an interim injunction prays for an order restraining the defendants from removing the structures and from laying pipe‑lines. As regards the removal of structures the prayer cannot be granted.

Mr. Fazlur Rehman contended that the balance of convenience was against the issuing of an interim injunction respecting the land. It is true. that if the land were acquired by Government, so far as we can see, no compensation will be due to the applicants, but we consider there is an important principle of constitutional law to be maintained since section 299 of the Government of India Act provides that no person shall be deprived of his property save by the authority of law. It is true that the squatter's right is an exiguous item of property, but it is none the less property, and we consider that we should give effect to this provision of the D constitution.

Mr. Khalid desired us to give a certificate under section 20 5 of Government of India Act, but we consider that no substantial question as to the interpretation of the Government of India Act arises, for Mr. Fazlur Rehman conceded that our interpretation of aection 299 was correct.

A temporary injunction will therefore be issued that the respondents be restrained, pending the determination oft the suit, from interfering with the possession of the land of the appellants by way of laying pipes. In view of the circumstances there will be no order as to costs of this appeal.

A. H.

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