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Regular First Appeal No. 152 of 1960, decided on 4th December 1961.
‑Compensation awarded under provisions of Act‑Appeal against order of arbitrator can be heard by High Court Judge sitting singly inspire of the fact that value of appeal is more than Rs. 5,000‑High Court Rules and Orders (Lahore) Vol. V, Ch. 3‑B, r. 1 (IV).
Rule 1(IV) of Chapter 3‑B, Vol. V of the Lahore High Court Rules and Orders is to the effect that a first appeal against an order passed in proceedings which are not taken under the Civil Procedure Code, 1908, shall ordinarily be heard by a Judge of the High Court sitting singly. Where an award is given by the arbitrator under the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, it is a case governed by this rule and, therefore, an appeal against the award of the arbitrator can be heard by a Judge of the High Court sitting singly in spite of the fact that the amount involved in the appeal is more than Rs. 5,000.
‑Award of arbitrator in proceedings under S. 5 (3) and one under S. 6 Difference‑Arbitrator appointed under S. 6 (I) (b) can give finding only with regard to compensation payable to house owner for use and occupation of house‑No jurisdiction to deal with any other dispute existing between owner of house and Government.
An arbitrator appointed under the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, awarded to the owner of the house requisitioned under the Act, Rs. 5,584‑9 out of which Rs. 5,431‑2 were awarded for damage to the house belonging to the owner. In appeal against the order of the arbitrator it was contended by the Government that an arbitrator appointed under the provisions of clause (b) of subsection (1) of section 6 of the Act could give finding only with regard to compensation payable to the house‑owner under section 6 of the Act and could not concern himself with any other dispute between the owner of the house and the Provincial Government. In reply it was contended that if money on the repairs of the house is spent by the Government under the provisions of subsection (3) of section 5 of the Act the arbitra tor can give an award with regard to the amount due to the Provincial Government for effecting repairs, then there was no difference in principle between the grant of money in favour of the landlord for damages to the house and repayment by the landlord money spent by the Provincial Government on repairs of the house. The arbitrator, therefore, it was argued, had jurisdiction to give an award In favour of the landlord for damages to the
Held that the arbitrator had no jurisdiction to deal with the question whether any damage had been caused to the property after it had been requisitioned by the Government. Subsection (3) of section 5 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956 concerns itself with the determination of the amount which should be repaid to the Provincial Government for effecting repairs to the house that had been requisitioned. There is a great difference between the award by the arbitrator in proceedings under subsection (3) of section 5 and one under section 6 of the Act. Section 6 of the Act by its subsection (3) makes the order of the arbitrator regard ing the payment of compensation appealable to the High Court, while subsection (3) of section 5 says that the order of the arbitrator shall be final and conclusive between the parties and shall not be open to appeal subject to the condition that if any proceedings are pending in the High Court with regard to the grant of compensation under section 6 of the Act, the owner of the house or the Provincial Government may present an application before the High Court for determination of the dispute. The compensation to which section 6 of the Act has application is, according to subsection (1) of section 6 of the Act, the amount due for use and occupation of the house only and proceedings under the provisions of the Act, therefore, cannot be allowed to be taken for recovery of damages caused to the house requisitioned.
‑Law cannot be applied to matters not strictly covered by it.
Zahir Abbas for Appellant.
S. M. Zafar for Respondent.
Dates of hearing : 1st June and 24th November 1961.
This appeal by Province of West Pakistan is directed against an order passed by Mr. Riaz A. Kureishy a retired District Judge, acting as an arbitrator under the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956, whereby Muhammad Afzal Khan, the sole respondent in the appeal, was awarded a sum of Rs. 5,584‑9, out of which Rs. 5,431‑2 were awarded for damage to the house belonging to the respondent and Rs. 153‑7 as interest on the rent of the house not paid in time to the respondent.
2. Some of the material facts are these. In exercise of the powers vested in it by the West Pakistan Requisitioning of Immov able Property (Temporary Powers) Act, 1956, (to be hereinafter referred to as the Act), the Provincial Government of West Pakistan, requisitioned a house belonging to the respondent. The house was requisitioned on the 21st of November 1955, and released on the 16th of October 1956, the order of requisition having been passed under the Punjab Requisitioning of Immovable Property (Temporary Powers) Ordinance, 1955, which was replaced by the Act. The owner of the house, namely, the respondent was of the view that the property had undergone a good deal of deterioration and he claimed damages for the same. It was also alleged by the owner of the house that some rent was due and he claimed Interest on the amounts not paid as rent to time. The claim of the owner of the house was not accepted by the Provincial Government whereupon the arbitrator was appointed and he framed the following issues: ‑
(1) Has any damage been caused to the house of the applicant after it was requisitioned by the respondent, and if so, whether it was on account of the negligence on the part of the respondent
(2) If issue No. 1 is proved, is the petitioner then entitled to claim damages to the extent of Rs. 5,234‑2 7
(3) Is the petitioner entitled to any rent for the period from 21‑11‑55 to 20‑2‑57, and if so, how much 7
(4) Is the petitioner entitled to interest on Rs. 2,658 already received by him and on Rs. 735 as claimed by him on account of compensation for three months, i.e., from 21‑I1‑55 to 20‑2‑57
The gist of the decision of the arbitrator has already been given and it is this decision that the appellant seeks the reversal of.
3. Learned counsel for the respondent raised a preliminary objection to the hearing of the appeal by me sitting singly as a Judge of this Court. He contended that the amount awarded being more than Rs. 5,000, the appeal could be heard by a Bench of two Judges, and in this connection relied on the Rules of this Court pertaining to the hearing of appeals in this Court. I am clear in my mind that this preliminary objection has no force. It is true that if the amount had been decreed in a suit, the appeal could not have been heard by a Judge sitting alone, but as mention ed already the amount was not decreed in a suit but was awarded under the provisions of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956. Cases of this kind are governed by the rules which are contained in, Volume V of Rules and Orders of High Court. Rule 1 (IV) of Chapter 3‑B of the Rules and Orders is clearly to the effect that a first appeal against an order passed in proceedings which were not taken under the Code of Civil Procedure, shall ordinarily be heard by a Judge sitting singly. In the presence of this rule it is not open to question that the appeal can be heard by a Judge of this Court sitting singly in spite of the fact that the amount involved in the appeal is more than Rs. 5,000. The preliminary objection raised by learned counsel for the respondent is therefore, repelled as untenable.
4. With regard to the appeal, Mr. Zaheer Abbas, Advocate, who appeared for the appellant, contended that the arbitrator bad no jurisdiction to award the sum of Rs. 5,431‑2 on the ground that the tenant of the house had caused damage to it. In this connection he drew my attention to sections 5 and 6 of the Act and as it will facilitate the proper understanding of the questions that arise to have the sections before one, I reproduce those sections here. They read as follows: ‑
"5. (1) The ordinary repairs to the building shall be carried out by and at the expense of the Provincial Government and the owner shall not be required to contribute towards the cost of such repairs nor shall the cost thereof be deducted out of the compensation awarded.
(2) The special repairs shall be carried out by the owner. If he neglects to do so, the Provincial Government shall be competent to direct by an order that the necessary repairs may be carried out by the said Government's own officers and that the cost thereof may be deducted from the compensation payable under section 6
Provided that no such direction shall be given except after such notice to the owner as the Provincial Government con siders reasonable;
Provided further that if the need for effecting repairs is so urgent that In the opinion of the Provincial Government, for reasons to be recorded, a notice to the owner will result in further deterioration of the condition of the building, the direction for carrying out the necessary repairs may be given without such notice.
(3) If the owner is dissatisfied by an order passed under subsection (2) or disputes the amount claimed to have been spent on such repairs, he may, by an application, refer the matter to the arbitrator appointed under section 6 and the latter shall, after holding such enquiry as may be deemed necessary, pass such orders as the circumstances of the case require. The order passed by an arbitrator shall be final and conclusive between the parties and no separate appeal shall lie against it, but it shall be liable to be challenged by means of an application given by the owner or the Provincial Government to the High Court, if any proceedings with regard to the building are pending in that Court under section 6.
(4) The Provincial Government may, if it considers necessary or expedient, make additions or structural alterations or im provements to the building at its own cost, with previous approval of the owner obtained in writing. The owner shall not be liable to contribute towards the cost of such additions or structural alterations or improvements nor shall the amount so spent be deducted out of the compensation awarded. The owner shall not be allowed any increase in compensation on account of such additions or structural alterations or improvements,"
6. (1) Where any building is requisitioned there shall be paid to the owner compensation for its use and occupation, and the amount thereof shall be determined in the manner and in accordance with the principles hereinafter set out: ‑
(a) Where the amount of compensation can be fixed by agree ment it shall be paid in accordance with such agreement.
(b) Where no such agreement can be reached the Provincial Government shall by a general or special order, for any case or class of cases, appoint as arbitrator a person qualified under Article 167 of the Constitution for appointment as a Judge of a High Court.
(c) The Provincial Government may, in any particular case, nominate a person having expert knowledge as to the nature of the building requisitioned to assist the arbitrator and where such nomination is made, the owner may also nominate an assessor for the said purpose.
(d) At the commencement of the proceedings before the arbitrator the Provincial Government and the owner shall state what, in their respective opinions, is a fair amount of com pensation.
(e) The arbitrator in making his award shall take into consideration the following factors‑
(i) In the case of a building which was in existence before the 1st January 1939, the rent of the same or of similar accom modation in similar circumstances prevailing in the locality during 12 months prior to the 1st January 1939 ;
(ii) in the case of a building which was constructed after the 1st January 1939, the rent at which such building was let out for the first time after its construction or the rent of similar accommodation in similar circumstances prevailing in the locality during 12 months prior to the construction of that building ;
(iii) If the building was constructed after the 14th August 1947, the initial cost of construction of that building.
(2) If the building was constructed after the 14th August 1945, the compensation awarded shall in no case, after deducting the taxes and insurance premium for insurance against fire and earthquake, be less than five per centum or exceed in amount six per centum per annum of the initial cost of the construction of that building.
(3) An appeal shall lie to the High Court against an award of an arbitrator.
(4) Save as provided in this section and in any rules made under this Act nothing in any law for the time being in force shall apply to the arbitration under this section.
(5) An award given by the arbitrator subject to the result of the appeal, if any, shall be conclusive and final between the parties and shall not be called into question by means of a suit or otherwise except as provided by this Act.
(6) The award may, on an application being filed in the Court, be executed as if it were a decree of a Civil Court."
5. Mr. Zaheer Abbas contended that an arbitrator appointed by the Provincial Government under the provisions of clause (b) of subsection (1) of section 6 of the Act could give a finding only with regard to compensation payable to the house‑owner under section 6 of the Act and could not concern himself with any other dispute that may exist between the owner of the house and the Provincial Government. To this contention of Mr. Zaheer Abbas, Mr. S. M. War, Advocate, who represented the respon dent, replied that the amount of compensation payable could be properly arrived at only after determination of all points of difference between the parties, and as the question whether or not the owner of the house was entitled to any amount for damages caused to the house was intimately connected with compensation payable to the owner, the arbitrator could give an award about compensation due for damages to the property. He elaborated this contention of his by saying that if money on the repairs of the house had been spent by the Provincial Government under the provisions of subsection (3) of section 5, the arbitrator could have given an award with regard to the amount due to the Provincial Government for effecting repairs and as according to him there was no difference in principle between the grant of money in favour of the landlord for damages to the house and repayment by the landlord of money spent by the Provincial Government on repairs of the house, the arbitrator had jurisdic tion to give an award in favour of the landlord for damages to the property.
6. The language in which subsection (3) of section 5 of the Act is couched makes it clear that the contention of Mr. Zafar cannot be accepted. It will be noticed that subsection (3) of section 5 of the Act concerns itself with the determination of the amount which should be repaid to the Provincial Government for effecting repairs to the house that had been requisitioned. It is a fundamental principle of the interpretation of statues that a law cannot be applied to matters not strictly covered by it. There is a great difference between the award by the arbitrator in pro ceedings under subsection (3) of section 5 and one under section 6 of the Act. Section 6 of the Act by its third subsection makes the order of the arbitrator regarding the payment of compensation appealable to the High Court, while subsection (3) of section 5 says that the order of the arbitrator shall be final and conclusive between the parties and shall not be open to appeal subject to the condition that if any proceedings are pending in the High Court with regard to the grant of compensation under section 6 of the Act, the owner of the house or the Provincial Government may present an application before the High Court for determination of the dispute.
7. Mr. Zafar raised another contention with regard to the arbitrator having been competent to award Rs. 5,431‑2 for damages to the property. He contended that the arbitrator was competent to determine the compensation due to the owner of the house and as money payable for damages to the property could not be said not to be compensation, the arbitrator had jurisdiction with regard to it. If the word "compensation" had stood by itself, the contention of Mr. S. M. Zafar, learned counsel for the respondent, would have had considerable force, but it will be noticed that the compensation to which section 6 of the Act has application is, according to subsection (1) of section 6, the amount due for use and occupation of the house. I am not denying the right of an owner to claim payment of money for damages caused to his property by a tenant but proceedings under the provisions of the Act can be allowed to be taken for recovery of such damages by recourse to the provisions of the Act only if it is established that the Act has application to the payment of such damages. It is true that the house‑owner can bring a suit for recovery of damages to his property caused by the person who had occupied it, but that does not mean that he can have recourse to the Act for the determination and payment of those damages. In this connection an important consideration arises. If the public servant who had occupied the house requisitioned by the Government under the Act had caused damage to it, he would in the absence of any law which makes Government liable, be personally liable for such damage and unless he be a party to the proceedings taken under section 6 of the Act, which as would appear from clause (d) of subsection (1) of section 6, he cannot be, the award of damages by the arbitrator would offend against all principles of Justice because a decision with regard to a point which would concern a person would have had to be given without giving that person an opportunity to show cause against such decision. Again, cases can arise that the damage which the property had suffered during its occupation by a person was due to a wrongful act of a person other than the one in occupation in which case it can hardly be disputed that the claim for damages would have no connection at all with its use as a tenant.
8. In view of what I have said above, I have arrived at the conclusion that the arbitrator had no jurisdiction to deal with the question whether any damage had been caused to the property by the public servant who occupied it after it had been requisition ed by the Provincial Government and could not, therefore, award Rs. 5,431‑2 as damages to the respondent. Consequently I accept the appeal in so far as it relates to this amount of Rs. 5,431‑2. As regards the amount awarded to the respondent as interest on account of rent not paid in time, I see no ground either to hold that interest was not payable or that the amount awarded is too high and consequently, uphold the order regarding it. As it appears that the question of the lack of jurisdiction of the arbitrator to award money for damage caused to the property was not raised before him, I would leave the parties to bear their own costs throughout.
K.B.A.
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