2003 PLP 1148 (MLD)

9. A perusal of the material available on record shows that initially the disputed house was allotted by Rehabilitation Authority on rent to Fazal Muhammad on 22-3-1952 vide allotment order Annex-B, on the following specific conditions:-- (i) The assessed monthly rent will be paid regularly after it falls due failing which the allottee will be liable to be ejected, and (vi) the allotment will be valid for a period of three years.

10. It is-evident that after the said period of three years the tenancy continued without there being any formal extension. Admittedly no PTD was issued in respect of the said property either in favour of the predecessors-in-interest of the petitioner nor in favour of the petitioners. It is also not denied that in the Revenue Record the said property is stated as property of "Mandir" (place of worship of Hindus).

11. Receipts of payment of rent Annexures-D/1 to D/14, produced by the petitioners show that rent of the said house was paid by Fazal Muhammad to the Deputy Rehabilitation Commissioner since February, 1952 to 1958 and according to receipt Annex-Z/3 produced by, the respondents, rent of the said house was paid by said Fazal Muhammad to Evacuee Trust Property Board from 1-7-1969 to 30-6-1970. Receipts produced by respondents Annexures--O, P, Q, V, W, X, Y, Z, Z/1, Z/2 and Z/4 reveal that, thereafter, till 9-10-1984 Abdul Hameed son of said Fazal Muhammad had been paying rent of the disputed house to the respondents. Exh.Z/7, is a copy of Evacuee Trust Property Board's Master File, it shows that the said department had taken over management and control of Evacuee Trust Properties including the disputed house on 1-4-1960. Thereafter, not only Fazal Muhammad but subsequently his son Abdul Hameed had been paying rent to the said Board through respondent No. 2, vide receipts stated hereinabefore.

12. Annexures-A, C, F and J (produced by respondents) are notices issued by Evacuee Trust Property Board to the predecessors-in-interest of the petitioners from time to time for increase of rent of the disputed house and Annexures-B, G and M (produced by respondents) are various applications submitted by Nbdu1 Hameed (predecessor-in-interest of the petitioners) requesting for reduction of rent of the said house. Annexure-I (produced by the respondents) is an order of respondent No.2, whereby on the application of said Abdul Hameed, rent of that house was reduced Annexure-E (produced by respondents) is an application moved by Abdul Hameed to respondent No.2, for seeking permission to repair the disputed house which was accepted by respondent No.2, vide order Annexs.D and H (produced by the respondents). Annexure-K (produced by the - respondents) is an application by Ghulam Jillani son of Abdul Hameed (predecessor-in -interest of the petitioners) submitted to the Ombudsman requesting for the granting of proprietary rights in the said house stating that it was owned and managed by the Evacuee Trust Property Board. Annexure-T (produced by respondents) is letter from Personal Staff Officer of Chief Minister, Punjab to the Chairman, Evacuee Trust Property Board, Lahore requesting for considering the request of the successors-in- interest of Abdul Hameed for transfer of proprietary rights in the disputed house to them.

13. All the aforesaid annexures produced by the petitioners as well as by the respondents, clearly indicate that the predecessors-in-interest of the petitioners had not only acknowledged that Evacuee Trust Property Board was owner of the disputed house but also that they were in possession thereof as its tenants and the said property was under the management and control of the respondents.

14. It is, therefore, too late in the day for the petitioners to say that the disputed house is not Evacuee Trust Property and the respondents have no right to claim its rent from them,.

15. Case of Abdul Khaliq v. Kishan Chand and others (PLD 1964 SC 74) is not applicable to the facts of this case. The said authority explains the meaning and interpretation of the word "treated", used in section 3 of the Act XII of 1957 with respect to the nature of property as evacuee or non-evacuee with reference to a specific date viz. 1st January, 1957.

16. According to section 3, of the said Act, property not treated as evacuee, immediately before 1st January, 1957 could not be treated as such on or after the said date except any property in respect of which action was commenced or proceedings were pending before the said date or any property occupied, supervised or managed by a person whose authority or right to do so after 20-2-1947 had not been accepted or approved by the Custodian.

17. Crucial date viz. 1st January, 1957 occurring in section 3 of Act XII of 1957 is neither relevant nor applicable for determining the nature of the property as evacuee or evacuee trust property on the basis as to how such property was treated earlier.

18. Moreover, it is held in the said authority that the word "treated" occurring in section 3, means that such treating must be made by the competent authority i.e., it must relate to a declaration by the Custodian about the nature of the property or its user, for the purpose of the Act, by him or by the Rehabilitation Authorities so as to indicate a consciousness of the actual or the assumed nature of the property.

19. In the present case there was no such declaration about the nature of the disputed property either by the Custodian or by the Rehabilitation Authority that it was an evacuee property and not Evacuee Trust Property. Mere act of the Rehabilitation Authority of renting out the said property and receiving rent in routine could not be deemed as treating that property as evacuee and not Evacuee Trust Property, according to the meaning and interpretation of the word "treated" as explained in the authority relied upon by the learned counsel for the petitioners.

20. According to record it is admittedly an evacuee trust property but as the Evacuee Trust Property Board was not in existence in 1952, the same was rented out by the Rehabilitation Authority to the predecessors-in-interest of the petitioners. Since coming into existence, in the year 1960, the Evacuee Trust Property Board is controlling and managing the Evacuee Trust Properties including the disputed house.

21. In view of the facts and circumstances stated above, it was well within the jurisdiction of the respondents to obtain rent from the tenants of the Evacuee Trust Properties including the disputed property hence their demand for rent which is nothing else but a bill for the payment of rent which has been alleged as notice by the petitioners, was valid and legal and the respondents had the jurisdiction to issue the said bill for payment of arrears of rent.

22. The authority referred by the petitioners' counsel viz. Chahat v. Border Allotment Committee (1987 CLC 2378 Lahore), is distinguishable and does not apply to the facts and circumstances of this case. In the said reported case an order of allotment made in favour of appellant of the said case was confirmed by the respondent of that case in exercise of powers under Martial Law Regulation No.9, orders passed during Martial Law before commencement of 1962 were final and immune from examination by any Court or Authority; it was held in a previous writ petition that orders of allotment in favour of appellant had attained finality and respondent was held to be in possession of no power to review those orders; despite that respondent-Committee had issued a notice to the appellant for appearing before it to connection with scrutiny of his allotment. In the said circumstances it was held that where proceedings were initiated without jurisdiction, by issuance of notice though no final order was passed, aggrieved party could maintain Constitutional petition challenging issuance of notice as being without jurisdiction.

23. Needless to repeat that the above authority is not at all applicable in the present case inasmuch as in this case disputed property is owned, managed and controlled by the respondents; petitioners are their tenants who are rent defaulters and to whom simply a bill for payment of the outstanding rent was issued.

24. The petitioners did not approach this Court with clean hands and it appears that they had filed this writ petition to enjoy the property for a maximum period without payment of any rent as since 24-9-1999 they have not paid a single penny by way of rent on the basis of a status quo order issued in this writ petition.

25. For the reasons stated above, the writ petition is devoid of any merit; it is accordingly dismissed with costs. M.B.A./M-1808/L Petition dismissed.