1998CLC618 (PLP)

Date of hearing: 28th October, 1997. The Rent Controller, Lahore, vide his order, dated 14‑12‑1993, accepted the ejectment petition filed by respondent No.3, Syed Zahoor Ahmed, and the petitioners were ordered to vacate the premises in dispute and hand over the possession of the same to the respondent within ninety (90) days. The learned Additional District Judge, Lahore, vide his judgment, dated 4‑11‑1996, dismissed the petitioners' appeal. Hence, this Constitutional petition.

2. The facts, in brief, are that respondent No.3 ejectment petitioner, Syed Zahoor Ahmed and his brother Syed Sultan Ahmed were transferred the property in dispute, which is a house, by the Additional Settlement Commissioner, vide order, dated 1‑2‑1960. The P.T.O. was issued on 4‑2‑1961 and the PTD No.4879 (Exh.A‑1) was issued on 20‑5‑1971. The petitioners were in possession of the house in question prior to the transfer of the same in the name of respondent No.3 and his brother. The respondent No.3 instituted the ejectment petition against the present petitioners on 7‑9‑1992, alleging that after the transfer of the house, the petitioners have become tenants by operation of law, had demanded the rent at the rate of Rs.650 per month from them and sought the ejectment on the ground that the petitioners failed to pay the rent and also claimed his bona fide need on the basis of personal requirement. The petitioners, in their reply, dated 18‑10‑1992, contested the ejectment petition and raised the objection that no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was served upon them and as they were in occupation of the property in dispute before its allotment to the ejectment petitioner, they were not tenants under him. It was also alleged that they had raised construction over the property in question at their own expenses.

3. The Rent Controller framed the following issues:‑‑‑ (1) Whether the relationship of landlord and tenant exists between the parties? OPA. (2) Relief.

4. The respondent No.3 in support of his ejectment petition appeared as A.W.1, tendered in evidence copy of PTD (Exh.A‑1), copy of P.T.O. (Exh.A‑2), receipts of deposit of instalments prior to issuance of PTD (Exh.A‑3 to Exh.A‑6), copy of judgment and decree of Civil Judge, Lahore (Exh.A‑7), dated 28‑4‑1992 in the suit for permanent injunction instituted by the present writ petitioners, receipts of Property Tax (Exh. A‑8 to Exh.A‑9) and site plan (Exh.A‑10). The writ petitioners produced R.W.1, Rashid Ahmed, a resident of locality, and petitioners 1 and 2 appeared as R.W. 2 and R.W. 3, respectively, and tendered in evidence electricity bills (Exh. R‑1 and Exh.R‑2), copies of judgment and decree (Exh. R‑3 and Exh.R‑4).

5. It is contended by the learned counsel for the petitioners that admittedly the petitioners are in possession of the property in dispute before its allotment to the respondent No.3 and his brother and no rent was ever paid by them to the respondent and, therefore, they have never been the tenants under the respondent No.3 and thus, the relationship of landlord and tenant does not exist because the status of the petitioners is that of occupants and not of tenants. It has also been submitted that statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was not served upon the petitioners and, therefore, the ejectment petition was not maintainable. Reliance in this regard is placed on Gangoomal v. Jamiatmal (1983 CLC 955). On the other hand, learned counsel for the respondent No.3 has submitted that after the issuance of P.T.O., the petitioners became tenants under the respondent No.3 by operation of law. Reliance in this regard is placed on subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It is further contended that in terms of the abovesaid provision of law the petitioners are deemed to be the tenants under the respondent No.3 from 4‑2‑1961, when the P.T.O. was issued and finally from 20‑5‑1971, when the PTD was issued. Learned counsel has also placed his reliance on Rahim Bakhsh v. Ch. Ahmad Bakhsh and others (PLD 1964 SC 189), E.A. Evens v. Muhammad Ashraf (PLD 1964 SC 536) and Mehdi Hassan v. Ghulam Muhammad etc. (PLD 1964 W.P.) Lahore 648). Learned counsel for respondent No.3 also submitted that the Displaced Persons (Compensation and Rehabilitation) Act, 1958, including section 30 of the said Act, was repealed w.e.f. 1‑7‑1974 through The Evacuee Property and Displaced Persons Laws (Repeal), Act, 1975 (Act XIV of 1975) and as the present ejectment petition was instituted much after the repeal of the abovementioned Act, notice under section 30 of the abovesaid repealed Act was not required and the petitioners cannot claim the protection given to the statutory tenants under section 30 of the abovementioned Act. Learned counsel for the respondent has further submitted that the petitioners had sufficient notice of the transfer of the house in favour of respondent No.3 and his brother which is also apparent from the fact that they filed a suit for permanent injunction against the present petitioners and the same was decided on 28‑4‑1992, with the observation that respondent can seek a legal remedy and thereafter, the respondent N o.3 instituted the present ejectment petition. In the last, it is submitted that the institution of the ejectment petition itself is sufficient notice to tenants and in the present case the petitioners did not pay the rent even after the institution of the ejectment petition, therefore, they are liable to be evicted from the suit property. Reliance has also been placed on Muhammad Rafiq v. Mrs. Abdul Karim and 2 others (PLD 1983 Lah. 96) and Muhammad Hussain and others v. Muhammad Shafi (1992 CLC 303).

6. I have heard the learned counsel for the parties and have also seen the record.

7. The argument of the learned counsel for the petitioners that since they are in occupation of the property in dispute prior to its transfer to respondent No.3 and his brother, they are not tenants under respondent No.3, has no force because under subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, all such occupants became statutory tenants of the transferee at the time of the issuance of Transfer Order. In Rahim Bakhsh v. Ch. Ahmad Bakhsh (supra) the Hon'ble Supreme Court held that such occupier became a tenant of transferee by virtue of section 30 of the abovesaid Act. It was also held that P.T.O. holder eras also competent to seek ejectment of occupier from the house in terms of section 13 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959. Similarly in E.A. Evens v. Muhammad Ashraf (supra) the Hon'ble Supreme Court held that section 30(1). of Displaced Persons (Compensation and Rehabilitation) Act, 1958, creates a statutory tenancy. It is, thus, held that the petitioners became the respondent No.3's tenants on 4‑2‑1961, when the P.T.O., was issued, by operation of law, which was in existence at that time and was repealed much later. Similarly in Mehdi Hassan v. Ghulam Muhammad etc. (supra) the learned Single Judge of this Court held that statutory relationship of landlord and tenant comes into being between the transferee and occupant on the issuance of P.T.O. and the transferee is not required to lead any other evidence to establish such relationship. The argument of the learned counsel for the petitioners that no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was served upon the petitioners and, therefore, the ejectment petition was not maintainable, has also no force because when the ejectment petition .was instituted, the abovesaid Act was no more in the field. In Muhammad Rafiq v. Mrs. Abdul Karim and 2 others (supra), it was held that no notice under section 30 was required to be served to tenants in case the ejectment application was filed after the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In Muhammad Hussain and others v. Muhammad Shaft (1992 CLC 303) while considering the effect of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975), learned Single Judge of this Court held that after the repeal of Settlement Laws in 1975, no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was necessary before filing of the ejectment petition. The learned Judge has also held that the ejectment petition itself could be construed to be a notice to tenants. The authority cited by the learned counsel for the petitioners entitled Gangoomal v. Jamiatmal (supra) also does not help the petitioners as the same is not applicable to the facts of this case because the relevant period in this judgment is that of prior to the repeal of Settlement Laws and in the said case the ejectment petition was instituted before the repeal of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and therefore, non‑service of notice under section 30 of the said Act was fatal to application of ejectment on the ground of default.

8. The abovementioned shows that the petitioners have failed to make out any case for interference by this Court in the exercise of its Constitutional jurisdiction as the orders passed by the Forums below do not suffer from any jurisdictional defect. The equity is also against the petitioners who have admittedly not paid any rent to the landlord since the time the P.T.O. was issued in favour of respondent No.3 and his brother in 1961. Resultantly, the writ l petition is dismissed and the ejectment order passed by the Rent Controller against the petitioners is maintained. The petitioners are directed to hand over the vacant possession of the house in dispute to respondent No.3 within two months from today. A.A./M‑510/L Petition dismissed