P L D 2011 Lahore 258 (PLP)

SYED MANSOOR ALI SHAH, J.

Brief facts of the case are that the respondent-society was granted lease of 9864 Sq.ft. situated at Karachi Mohallah, Sadar Bazar, Lahore Cantt. for the purpose of construction of a "Mosque" and "Maktab" by the President of Pakistan under the Cantonment Act, 1924 on 31-5-1965. The lease was for a consideration of a premium of Re. 1 only, to be paid by the Lessee to the Lessor. The said Maktab was later on named as Tariq High School.

2. The school was being run by the respondent-society when in the year, 1972 the management of the said school was taken over by the Provincial Government (appellant No.1) under the Privately Managed Schools and Colleges (Taking-Over) Regulation, 1972 (MLR 118). Since then the management of the school has remained with the Provincial Government. It is admitted that the said school was not retransferred to the respondent-society under the amendment brought about in MLR 18 in the shape of section 12A in the year 1983. Therefore, the management and administration of the school is admittedly with the Provincial Government (appellant No.1) even today.

3. On 6-6-2006 respondent-society filed an application for ejectment of appellant No.1 under section 17 of the Cantonments Rent Restriction Act, 1963. The said ejectment application was allowed on 5-11-2008 on the ground that the respondent was the "owner" of the property while appellant No.1 were its tenant and that the appellant No. 1 had defaulted on the tenancy agreement between the parties. The said order has been assailed before this Court in the instant appeal.

4. Learned counsel for the appellants submitted that after nationalization of the school under MLR 118 the management and operation of the school was handed over to appellant No.1. He submitted that taking-over of the management of the school does not make the appellant No.1 "tenant" of the respondent-Society or make the respondent society the "landlord" in order to maintain an ejectment petition under section 17 of the Cantonments Rent Restriction Act, 1963.

5. Learned counsel for the respondent contended that appellant No.1 has only taken-over the management and operation of the school and not the lease hold rights of the respondent-Society and are, therefore, liable to pay rent to the respondent. He placed reliance on Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary Education, Civil Secretariat, Lahore and another '0987 SCMR 1197), The Christian Educational Endowment Trust, Lahore v. The Deputy Commissioner, Lahore and others (1987 SCMR 1189), Zakaria Shahid and others v. Abdul Aziz Qureshi and another (1991 SCMR 145), Province of Punjab through Collector, Faisalabad and 2 others v. Ali Akbar Khan and others, (2005 YLR 2733), Province of Punjab and others v. Fazal Ahmad and others, (2001 CLC 1185), Society of the Capuchin Fathers v. Government of Punjab and another (1996 MLD 1612) and Aided Schools Management Association v. The Government of Sindh and another (1989 MLD 3020). He further contended that the Rent Controller cannot go into the question of title in the instant proceedings and relied on Ahmad Ali alias Al' Ahmed v. Nsar-ud-Din and another (PLD 2009 SC 453).

6. Arguments heard. Record perused.

7. The legal questions that emerge in this case are:-(i) Whether respondent-Society ,is' a "landlord" and can, therefore, (i) maintain an ejectment petition under section 17 of the Cantonments Rent Restriction Act, 1963 against appellant No.1? (ii) Whether relationship of landlord and tenant exists between appellant No.1 and the respondent-Society?

8. Admittedly, respondent is a lessee of the Federal Government as per Indenture dated 31-5-1965 whereby the President of Pakistan (lessor) has demised on the lessee (respondent-Society) plot of land measuring 9864 sq.ft. at Karachi Mohallah Saddar Bazar, Lahore Cantonment for the construction of Mosque and Maktab. The said Indenture is under Rule 31 of the Cantonment Land Administration Rules, 1937 and is a lease in perpetuity on favourable terms for a public purpose where no rent but a premium of Re. 1 is charged. Therefore, the title of the land in question vests in the Federal Government (lessor) and the respondent society is only a lessee of the Federal Government.

9. Under Paragraph No.5 of the Privately Managed Schools and Colleges (Taking Over) Regulation, 1972 (MLR 118), the school managed and administered by the respondent-Society namely Tariq High School Lahore Cantt. was nationalized vide notification dated 30-9-1972, as a result, appellant No.1 took over the management and administration of the said school from the respondent-Society. There is no cavil with the preposition that under MLR 118 only the management and administration of the school vests in appellant No.1 and the rights of the respondent society as a lessee of the Federal Government stay undisturbed. This is a settled matter, reliance is placed on Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Council v. The Government of the Punjab through Secretary Education, Civil Secretariat, Lahore and another, (1987 SCMR 1197), The Christian Educational Endowment Trust, Lahore v. The Deputy Commissioner, Lahore and others, (1987 SCMR 1189), and Province of Punjab through Collector Sialkot and others v. Ch. Khan Muhammad and 7 others, (1989 SCMR 558).

10. The taking over of the management and administration of the school by appellant No.1 from respondent-Society means that only the control of maintenance and administration of the school has been taken over from the hands of the respondent-Society. It by no stretch of imagination makes appellant No.1 a tenant of the respondent-Society or the respondent-Society landlord of appellant No.1. The situation post nationalization/taking over is that Federal Government remains the owner of the demised premises, respondent-Society continues to be the tenant on the demised premises while appellant No.1 under MLR 118 is the new management of the school. No other legal relationship emerges between the parties, post nationalization in this case because the school was managed by the lessee (respondent-Society) and not by a tenant of respondent-Society. The powers of management and administration have shifted to appellant No. I under the law and no more. As the A management of the school and the lessee were the same, no relationship of tenant and landlord arise after nationalization.

11. Section 2(g) of the Act defines "landlord" to be a person entitled to receive rent. Respondent has failed to show the said entitlement under the law. Under clause (5) of the Indenture respondent-Society could have sublet the property but the same had to notify to the Cantonment Board. It is not the case of the respondent-Society that they had sublet the school in question either before or after the promulgation of MLR

118. Therefore, respondent-Society is not entitled to receive any rent from appellant No.1 under the law and, therefore, is not a landlord of the demised premises. 12. "Tenant" under section 2(j) of the Act means a person who is bound to pay rent. Appellant No.1 has no such liability under the law. There is nothing on record to establish that appellant No.1 and the respondent have a tenancy agreement between themselves. Appellant's taking-over the management of the school under MLR 118 does not automatically make them sub-tenants of the respondent-Society unless and until the school was being managed by a sub-lessee of the respondent-Society which is not the case. The rent paid by appellant No.1 in the absence of any landlord or subletting by the lessee prior to MLR 118 does not give rise to any tenancy between the parties.

13. The answers to the above questions are that the respondent-Society is not a landlord and there is no relationship of landlord and tenant subsisting between appellant No.1 and the respondent. The ejectment petition is, therefore, not maintainable.

14. There is another important aspect of the matter. Under section 3 of the Act, ejectment petition under section 17 of the Cantonments Rent Restriction Act, 1963 is not maintainable against the properties that belong to the Federal Government or to the Cantonment Board. Therefore, for this reason alone the ejectment petition is misconceived and is not maintainable.

15. I cannot resist from pointing out that Indenture of lease is specifically for a public purpose and, therefore, consideration charged was a one time premium of Re. 1 only. The Indenture does not permit the respondent lessee to run the school on a commercial basis or charge rent even if it is sublet to a third party. The rent received from appellant No.1 so far is, therefore, in violation of the Indenture dated 31-5-1965.

16. For the above reasons ejectment petition by the respondent-Society under section 17 of the Cantonments Rent Restriction Act, 1963 is not maintainable. This appeal is allowed and impugned order dated 5-11-2008 passed by the learned Additional Rent Controller Lahore Cantt., Lahore is set aside. M.H./G-16/L Appeal allowed.