2002 PLP 40 (CLC)

A suit filed by respondent No.1 for dissolution of her marriage with the petitioner, inter alia, on the ground of Khula was decreed by a learned Judge, Family Court, Talagang on 29‑2‑2000 with a condition that she will pay a sum of Rs.30,000 and five Tolas gold ornaments to respondent No.1. Feeling aggrieved of the said condition respondent No.1 filed an appeal which was heard by learned respondent No.2 who allowed the same and removed the said condition from the decree of the learned Judge, Family Court. This was done vide judgment and decree dated 18‑4‑2000.

2. Learned counsel for the petitioner contends that it stood proved on record that at some point of time respondent No.1 had agreed to pay Rs.30,000 and five Tolas gold ornaments as a consideration for divorce and as such the learned Additional District Judge has acted without lawful authority while passing the impugned judgment removing the said condition imposed by the learned Judge, Family Court. Learned counsel for respondent No. 1, on the other hand, with reference to the judgment in the case of Noor Muhammad v. Judge, Family Court, Burewala, District Vehari and another PLD 1989 Lah.31 argues that even if it be assumed that the said fact stood proved, when it had been denied by respondent No.1 herself, in the absence of any demand made by respondent No.1 either in his pleadings or in evidence, the learned Family Court was not bound to order payment of the said amount and gold.

3. We have gone through the copies of the records appended with this writ petition. In the plaint the respondents specifically pleaded that there is no chance of parties living together as husband and wife within the limits of Allah. In his written statement although the petitioner alleged that respondent No.1 had left his house taking away ornaments linen and cash but he did not make a specific demand that some benefits were conferred by him upon the petitioner and that she should return the same as consideration for Khula. So far as evidence is concerned what to speak of leading any evidence the petitioner did not even enter the witness‑box to state that he had given some benefits and to demand the restoration of the same. In this view of the matter the law cited by the learned counsel for respondent No.1 is fully applicable to the facts of this case. I may state here that the Supreme Court of Pakistan has also take similar view in the case of Dilshad v. Mst. Musarat Nazir and another PLD 1991 SC

779. There is no force in this writ petition which is accordingly dismissed leaving the parties to bear their own costs. H.B.T./F‑59/L Petition dismissed. 2002 C L C 42 [Lahore] Before Ch. Ijaz Ahmad, J Mst. BILQUIS JAFFAR‑‑‑Petitioner versus ZULFIQAR AHMAD GHUMAN, CANTONMENT MAGISTRATE, OFFICE OF CANTONMENT BOARD, LAHORE and another‑‑‑Respondents Writ Petition No.2007 of 1993, heard on 7th August, 2001. (a) Cantonments Rent Restriction Act (XI of 1963)‑‑‑ ‑‑‑‑Ss. 3(b), 14 & 28‑‑‑Cantonments Act (II of 1924), Ss.224 & 225‑‑ Exemption from application of provisions of Cantonments Rent Restriction Act, 1963‑‑‑Notices issued to the lessee of building in question had been challenged on the ground that building being owned by the Central Government, the Authority was not empowered to take action against the lessee in view of S.3(b) of Cantonments Rent Restriction Act, 1963‑‑‑Land, on which the building was constructed though was owned by the Central Government, but building thereon was constructed by the lessee‑‑‑Term "property" as used in S.3(b) of Cantonments Rent Restriction Act, 1963 had to be given restricted meanings so as to confine it 'to buildings owned by the Central Government‑‑‑Legislature intended to deal with only building and not with the land on which same had been constructed‑‑‑Exemption clause was not to be extended so as to include within its purview buildings constructed on the Government land simply for the reason that Government had right of property in the sites on which those buildings existed‑‑‑Authorities had lawful right to take action against the lessee under provisions of Cantonments Rent Restriction Act, 1963. Noor Shah v. Azmat Elahi PLD 1966 Pesh. 159 ref. (b) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑High Court had no jurisdiction to resolve the disputed question of facts in exercise of its Constitutional jurisdiction. Muhammad Younas' case 1993 SCMR 618; Messrs Pak‑Arab Fertilizer Ltd. V. Deputy Commissioner of Income‑tax and others 2000 CLC 220; Nadar Khoso's case 2000 SCMR 1017; Mst. Shagufta Begum's case PLD 1989 SC 360 and Muhammad Ismail v. Fazalzada and others PLD 1996 SC 246 ref. (e) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 199‑‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Constitutional petition against show‑cause notice or summons‑‑‑Maintainability‑‑‑Constitutional petition would not be maintainable against the show‑cause notice or summons issued by Authority. Muhammad Younas' case 1993 SCMR 618; Messrs Pak‑Arab Fertilizer Ltd. v. Deputy Commissioner of Income‑tax and others 2000 CLC 220; Nadar Khoso's case 2000 SCMR 1017; Mst. Shagufta Begum's case PLD 1989 SC 360 and Muhammad Ismail v. Fazalzada ‑and others PLD 1996 SC 246 ref. Shawar Khilji for Petitioner. M. Rasheed Ahmad for Respondents. Date of hearing: 7th August, 2001. Brief Facts out of which present writ petition arises are that the petitioner is lessee of Bungalow in question by virtue of lease deed, dated 6‑11‑1984 executed between the petitioner and the Government of Pakistan. The petitioner had rented out the building in question to Messrs BASF, a German company vide lease, dated 20‑10‑1987. The said Company had opened its office in the building in‑question. The petitioner had rented out the building in question to cabinet different Governments of Pakistan for a period of about 3 years prior to the execution of the rent deed between the petitioner and aforesaid Messrs BASF Company. The building was assessed by the respondents on considering the same as commercial. The payment of commercial taxes had been paid to the respondents as is evident from Annexures "C" and "D" and also assessment notice, dated 29‑2‑1988 and 15‑1‑1991 attached with the writ petition respectively. Respondent No.1 sent notices and the petitioner received summons through his tenant from respondent No.1 under sections 14/28 of the Cantonment Rent Restriction Act, 1963 directing the petitioner to appear before him on 3‑1‑1993. The petitioner entered appearance before respondent No.1 alongwith his counsel who directed the petitioner to appear before him on 24‑2‑1993. The petitioner also received notice under sections 224/25 of the Cantonment Act, 1924 with the direction that water supply of the building in question could be disconnected on 2‑2‑1993 as allegedly water connection was sanctioned for domestic use when the same was being used for commercial use.

2. Learned counsel of the petitioner submits that the petitioner is lessee of building in question since 1984 under Military Estate Officer, Lahore Cantt. The property in question is presently on lease with Messrs. BASF (a commercial Organization). The Military Executive Officer of the Cantonment Board, Lahore Cantt, has issued notice to the tenants of the petitioner to show cause why water supply of the said premises not be disconnected for misusing the water supply for commercial purpose. A case has also been filed against it in the Court of Cantonment, Magistrate Lahore under sections 14/28 of the Cantonment Rent Restriction Act, 1963. He further submits that the afore‑said actions are violation of law inasmuch as no criminal proceeding can be initiated for the alleged violation of the provision of Cantonment Rent Restriction Act. He further submits that as regards disconnection of water supply, it is stated that the property in question is being assessed on commercial rate for the last 7 years, as such, the same could not be disconnected. He further submits A that the building in question is owned by the Central Government, therefore, the respondents have no authority to take action against the petitioner or tenant in view of section 3 of the Cantonment Rent Restriction Act, 1963 as the building in question falls within the category of exemption as prescribed in section 3 of the said Act. He further submits that section 14 is not attracted in case of the building of the petitioner.

3. Learned counsel of the respondents submits that action of the respondent is in accordance with law. The land is owned by the Central Government which was taken by the petitioner on lease. The building was constructed by the petitioner, therefore, the petitioner is not entitled for its exemption under section 3 of the Cantonment Rent Restriction Act, 1963. He further submits that the respondents are within their lawful authority to take action against the petitioner under the provision of Cantonment Rent Restriction Act, 1963 and under the provision of Cantonment Act, 1924. He further submits that writ petition is not maintainable against show‑cause notice or summons issued by the respondents.

4. Learned counsel of the petitioner in rebuttal submits that since the action of the respondent is patently illegal, therefore, writ petition is maintainable.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

6. It is better and proper to reproduce section 3(b) of the Cantonment Rent Restriction Act, 1963 to resolve the controversy between the parties. Section 3 of said Act not to apply to certain building. (a) Nothing contains in this act shall apply. (b) Any property owned by the Central Government " and Provincial Government, Railway, Port, Trust, Cantonment Board and property owned, managed or controlled by any local authority under the administrative control of Central Government or any Provincial Government. Mere reading of aforesaid section 3(b), clearly reveals that legislature had specifically mentioned the term property which shows it is easy to see that things which are intended to be included in the terra property as used in this exemption clause are buildings and not land. The heading of the section also reveals the same meaning namely Act not to exempt certain buildings which leaves no doubt that law‑maker intended to exempt buildings owned by the Central Government, Provincial Government, etc. Further, this intention also becomes clear from Preamble to the Act which reveals the object which this Act is intending to achieve. In case the preamble of the Act and heading of section are put in juxtaposition then it is crystal clear that Legislature is all along intending to deal with only buildings and not with the land on which they had been constructed. The term "property" as B. used in the aforesaid section has to be given a restricted meaning so as to confine it to buildings owned by the Central Government and the authorities mentioned in the said section itself. It is settled principle of law that exemption clause is not to be extended so as to include within its purview buildings constructed on the Government Land simply for the reason that Government had right of property in the sites on which these buildings are existed. In this view of the matter, the respondents had lawful authority to take action against the petitioner under the provision of Cantonments of Rent Restriction Act, 1963. The mere fact that the buildings are constructed on the land owned by the Central Government, would not make them the property of that Government: The buildings would still remain the property of the private parties, who had constructed them with their own expenses, although the land belongs to the Central Government yet the buildings have been constructed over the land by the private parties concerned and have not been handed over to the authority mentioned in section 3T of the Act. In this view of the matter, the building of the petitioner cannot be treated or deemed to be property of the Central Government which merely remains owner of the land under them. In arriving to this conclusion, I am fortified by PLD 1966 Peshawar 159 (Noor Shah v. Azmat Elahi). It is pertinent to mention here that the petitioner failed to bring on record any document to show that the building in question is still owned by the. Government and similarly, the respondents failed to bring on record any document to show that the building does not belong to the Government. This fact brings the case in the area of the disputed questions of fact and this Court has no jurisdiction to resolve the disputed questions of facts in Constitutional Jurisdiction as per principle laid down by the Honourable Supreme Court in Muhammad Younas's case 1993 SCMR

618. It is also settled principle of law that writ petition is not maintainable against the show‑cause notice or summons issued by the Special Magistrate as per principle laid down in 2000 CLC 220, (Messrs Pak Arab Fertilizer Ltd. v. Deputy Commissioner of Income‑tax and others), 2000 SCMR 1017 in Nadar Khoso's case and PLD 1989 SC 360 Mst. Shagufta Begum's case. The petitioner has alternative remedy under the provision of Cantonment Rent Restriction Act, 1924 and Act, 1963 and under the provision of Criminal Procedure Code. In this view of the matter, the writ petition is not maintainable as per principle laid down by the Honourable Supreme Court in case Muhammad Ismail v. Fazalzada and others PLD 1996 SC 246.

7. In view of what has been discussed above, the writ petition is not maintainable. However, in the interest of justice and fair play, the respondents are restrained to take any action against the petitioner for one month from today till 8‑9‑2001 to enable him to avail proper remedy under the law.

8. With the aforesaid observations, the writ petition is disposed of. H.B.T./B‑53/L Petition dismissed.