1984 PLP 925 (SCMR)

M.S.H. QURAISHI J.‑‑This appeal by leave of the Court is directed against the judgment of the High Court, dated 9‑3‑1983 dismissing, the appellant's writ petition against the order of his ejectment passed by the Additional District Judge, Rawalpindi in appeal in a rent matter.

2. The property from which the appellant's ejectment had been sought measuring 20 Kanals 1 Maria 158 sq. ft. and situate in Westridge, Rawalpindi, was an evacuee industrial concern known as National Sand Paper and Oil Mills and had been allotted on 23‑9‑1948 in favour of Haji Mohkam Din, predecessor‑in‑interest of the contesting respondents, his son Abdul Majid and two others. The allottees set up a tannery known as Rawalpindi Tannery and Oil Mills in the property but due to certain difficulties had to close the same. Haji Mohkam Din and Abdul Majid (the other two allottees having left the property) entered into a partnership agreement with Noman Jan and Captain Akbar on 1‑7‑1953 for establishing a cotton mill known as the Wattan Cotton Textile Mills. They purchased 100 Kanals of land adjacent to the disputed property, and installed the machinery thereon. On 3‑1‑1955, Haji Mohkam Din and Abdul Majid applied to the Industrial Rehabilitation Board for permission to use the property for the purpose of the said Textile Mills. The Board, however, issued a notice, on 23‑12‑1955, to the allottees calling upon them to show cause why the property had been sublet to the textile mill. In reply, Haji Mohkam Din and Abdul Majid denied having sublet the property to any concern and explained that they being partners of the textile mill at the back side of the property, were using it as a part of the textile Mill. They reiterated the same position in their subsequent applica tions, dated 25‑1‑1956 and 16‑12‑1956 and prayed that no action be taken against them. Their pleas were, however, rejected on 13‑5‑1960, whereupon they filed a review application on 28‑5‑1960 and ultimately succeeded in obtaining an order from the Settlement Commissioner on 16‑7‑1960 to the effect that they were entitled to the transfer of the property on payment of the prevailing market value. Finally, the property was transferred in their favour as an industrial concern under pare 15 of the Schedule to the Displaced Persons (Compensation. and Rehabilitation) Act, 1958, by P. T. D., dated 19‑2‑1968.

3. It so happened that on account of accumulation of heavy arrears of income‑tax due from the Wattan Cotton Textile Mills the Tax Recovery officer attached the Mills. The attachment was challenged by the contesting respondents by a suit for declaration and injunction in so far as the disputed property was concerned. On the basis of a statement made by Mr. M. A. one appearing for the defendant the Government of Pakistan, in the suit n 15‑3‑1972, that the ownership of the suit property was not being auctioned and that the auction‑purchaser shall step into the shoes of M/s. Wattan Cotton Textile Mills, an injunction was granted restraining the defendant government from auctioning the disputed property. However, under the authority of M. L. O. 256 promulgated on 26‑3‑1972 to specifically deal with the property of Wattan Cotton textile Mills, the Tax Recovery Officer entered to an agreement to sell the property to Abdus Sattar appellant on 19‑4‑1972.

4. In the meantime, an application for ejectment of the Textile Mills had been filed on 8‑10‑1971 by the contesting respondents alleging default in payment of rent form 1960. An ex parte order of ejectment was passed on 4‑3‑1972 but the order was set aside at the instance of the Tax Recovery officer on 19‑7‑1974. On 27‑7‑1976, the contesting respondents filed amended ejectment application impleading Abdus Sattar appellant also. In his written statement, the appellant denied the existence of relationship of landlord and tenant between the parties on the grounds that the property had never been rented out, that the applicants (contesting respondents) were not owners of the disputed property and that as they had surrendered the same favour of the Textile Mills it had been attached by the Income‑tax Department from whom the same had been purchased by the appellant. The Kent controller on the preliminary issues framed, found that the contesting respondents were transferees of the property, that there was no evidence to support at they had surrendered the property in favour of the Cotton Mills and that even if notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act had not been served, the same was of no legal effect. However, noticing that the dispute regarding title of the property was sub judice m civil Court, he dismissed the ejectment application as not being maintain able, vide order dated 5‑9‑1982. On appeal by the contesting respondents the Additional District Judge, Rawalpindi, without noticing that the property had been transferred as an industrial concern held that since the Mills had been in possession of the property it had become tenant automatically on the issuance of the P. T. D. and as no rent had been paid, he, by his order dated ‑2‑1983, directed the appellant s ejectment. The order was challenged by the appellant through a writ petition. The learned Judge of the High Court held at in view of the statement made by Mr. M. A. Lone to the effect that the disputed property was not being auctioned, the agreement to sell, to the extent agreed to transfer the disputed property to the appellant, was illegal, but since the sale‑deed had not yet been executed in favour of the appellant, it could not be said with certainty that the disputed site had been transferred to In. On the question of tenancy, it was held that assuming that no statutory tenancy stood created, the evidence did establish the existence of oral tenancy Dated in 1959. The learned Judge, therefore, declined to exercise discretion favour of the appellant and dismissed the writ petition in limine by the impugned order. 5.Leave to appeal was granted to examine : Whether the property in question was rented out to the concern known Wattan Cotton Textile Mills and or whether the petitioner not withstanding the documents of purchase relied upon by him is a tenant order Mohkam Din and Abdul Hameed ; if relationship of the landlord and tenant established whether it related to an industrial concern and if so whether the Rent Controller had no jurisdiction on such an industrial concern; whether section 30 of the Displaced Persons (Com pensation and Rehabilitation) Act, 1958 or any other provisions of Settlement laws would render the petitioner into a statutory tenant, in case, it is found that there was no tenancy otherwise, as held by the High Court, whether the High Court could have interfered with the decision of the Additional District Judge as Appellate Court, in its writ `jurisdiction, so as either to give relief to the petitioner who had filed the writ petition or to have modified the basis of the findings by the Appellate Court regarding relationship of the landlord and tenant, and in case the orders of ejectment of the petitioner are upheld by this Court what will be the effect thereof on the litigation regarding title pending before Civil Court."

6. Lengthy arguments were addressed before us as to the title of one or the other of the parties, to the property in dispute, anti as to the existence or otherwise of tie relationship of landlord and tenant between the parties. Mr. S. M. Zafar, learned counsel for the appellant, urged that the appellant had acquired the dispute property as part of the property of the Mills not by any act of the parties but' under the agreement to sell dated 19‑4‑1972 executed between him and the Tax Recovery Officer and protected by M. L. O. 256 and that his title so derived was "free from all encumbrances" by virtue of para. 4 of the said M. L. O. He refuted the assertion that there was any tenancy created between the contesting respondents and the Mills and in this connection referred to the pleadings of Haji Mohkam Din and Abdul Majid before the Board consistently denying having sublet the disputed property to the Mills. He contended that even if there were a tenancy existing between the contesting respondents and the Mills the same could not bind the appellant who did not derive his title from the Mills. Mr. Fakhar‑ud‑Din G. Ibrahim on the other hand, submitted that the respondents had acquired an undisputed title to the property under the P. T. D. issued in their favour on 19‑2‑1968, that they had thereafter never surrendered their title in favour of the Mills, that M. L. O. 256 coveted the property of the Mills only and in no way affected the disputed property which continued to remain in the ownership of the respondents and that this legal position was truly reflected in the concession made by Mr. M. A. Lone in the respondent's suit. He asserted that notwithstanding the denial by Haji Mohkam Din and Abdul Majid before the Settlement Authorities of having sublet the property to the Mills which was only in order to protect the property, the fact remained that a tenancy had been created orally by Haji Mohkarn Din in favour of the Wattan Cotton Textile Mills during his lifetime (he died in 1959). He further submitted that in any case, the Textile Mills having been in possession of the property had become a statutory tenant on the issuance of the P. T. D. in favour of the respondents and that the appellant having acquired the interests of the Mills had succeeded to the tenancy also. He, therefore, urged that the appellant having not tendered rent which was Rs. 5,000' per month, and even, other wise, having denied the respondents' title had rendered himself fully liable to ejectment.

7. Since the question of title to the property in dispute is already in issue between the parties in suits now pending between them, it would not be proper to examine that question in the present proceedings and as such we refrain from expressing any opinion in that regard. But even if we were to assume the respondents' ownership of the property by virtue of the P. T. D. held by them, there is still no proper material to support the existence of tenancy with the Wattan Textile Mills much less with the appellant who came into, possession of the property under M. L. O.

256. The property had been transferred under the P. T. D. as an industrial concern and in the absence of declaration given by the Custodian, as required under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, in regard to the existence of a tenancy right from a date prior to 14‑8‑1947, no statutory tenancy could be created merely by the issuance of the P. T. D. The view taken by the Additional District Judge as to the creation‑of a statutory tenant by the P. T. D. was, therefore, legally not tenable and had rightly been no accepted by the High Court. As regards tenancy other than statutory, it is to be noted that it is not the case of the respondents that such tenancy had come into being after the issue of the P. T. D. According to them, the property had been orally let out to the Mills by Haji Mohkam Din. It was urged on behalf of the appellant that the respondents as allottees of the property could not under the law let it out. It was further urged that the property having been transferred to the respondents as industrial concern, the provision of the Cantonment Rent Restriction Act was not applicable to such property. On the other hand, it was submitted that as a matter of fact there had been no factory installed in the disputed premises, that what had been let out was the office and godown buildings and that, therefore, the fact that it had been transferred as an industrial concern did not necessarily mean that it was in fact an industrial concern. It was further submitted that objection to the jurisdiction of the Rent Controller on the ground that premises was an industrial concern had not been raised before the Controller or the appellate authority, where the appellant's case had been based rely on the assertion of his own title to the property and denial of that of the respondents. The appellant's objection to the jurisdiction of the Rent controller based on the ground of the property being an industrial concern" had no doubt been taken for the first time in the writ petition but there is nod absolute rule that objection to jurisdiction of the Rent Controller if not take the fore him or the Appellate Court can in no case be taken in the writ jurisdic tion. In this connection reference can be made to the decisions of this Court in Chittaranjan Cotton Mills Ltd. v. Staff Union (P L D 1971 SC 197) and Rashid Ahmad v. State (P L D 1972 S C 271). Unfortunately the question of jurisdiction on the said ground has not been adverted to in the impugned order of the High Court. However even otherwise, in the absence of proper evidence in regard to the existence of oral tenancy and in the face of the pleadings of the respondents before the settlement authorities denying the existence of any tenancy and also without examining the legal capacity of the respondents to create such tenancy, the High Court had clearly fallen in error in holding, for the first time, that an oral tenancy did exist from 1959. No document has been produced from the wattan Textile Mills to show the existence of such tenancy or payment of the to the respondents in pursuance of the tenancy for any period during the g span from 1959 to 1972 when the Mills was attached. On the basis of material on record, the respondents cannot claim to have established the existence of relationship of landlord and tenant between them and the Mills, between them and the appellant.

8. We, therefore allow this appeal set aside the orders of the High court dated 9‑3‑1983 and of the Additional District. Judge dated‑ 5‑9‑1982 and store that of the Rent Controller dated 5‑9‑1982. There shall be no order to costs. M .Z. M Appeal allowed.