1989 PLP 1892 (SCMR)

2. The petitioner was admittedly the tenant of a Plot of land in the Cantonment area over which a Petrol Pump had been constructed and was running. The last renewal of the Lease for a period of eleven years had been taken place on 20th day of January, 1980. The lease commenced from 1‑1‑1980. It was in continuation of a Lease Deed executed on 1‑1‑1970 for ten years. The respondents‑landlords moved the Controller under section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as the Act) praying for the eviction of the petitioner from Plot No.3 Survey No.337/3 Adamjee Road, Rawalpindi Cantt., on the ground that the rent for the months of January, February and March, 1988 had not been paid. The matter was contested by the petitioner and a preliminary issue with regard to the jurisdiction of Rent Controller was framed in the following words:‑ "Whether the Cantonments Rent Restriction Act, 1963, governs this matter?" The specific objection of the petitioner was that the vacant plot let out by the respondents did not fall within the definition of a clause (aa) of section 2 of the Act which defines "Building". The Controller by an order dated 7‑2‑1989 decided it against the Petitioner by observing as follows:‑ "The applicant has contended that since suit premises is an open piece of land it was therefore not covered in the definition of building as defined in section 2(aa) of Cantonments Rent Restriction Act, 1963. The term building has been defined in section 2(aa) as under:‑ "building means any building or part of a building, whether residential or not, together with all fittings and fixtures therein, if any, and includes any gardens, grounds garages and out houses attached or appurtenant to such building or part, and vacant land include but does not any place of religious worship. It is clear from the above definition that the definition of building not only includes structure including fittings, fixtures, garages, gardens grounds and out houses but also vacant piece of land. Therefore, the tenancy even of an open place of land comes within the ambit of the above section‑ and is governed by the Rent Restriction Act, 1963. The jurisdiction of Rent Controller is therefore not barred under the law. It may also be pertinent to note that after the open piece of land was leased out to the tenant the demised premises was transformed and did not retain its original character and status as an open piece of land. The applicant `firm' itself constructed a filling/service station and this fact is reinforced by deed of sub‑lease executed between the parties on 30‑1‑1980. Based on the evidence adduced by the parties feel no hesitation in saying that the jurisdiction of Rent Controller is neither excluded nor barred to adjudicate this ejectment petition."

3. A Constitutional Petition was thereupon filed urging the same ground with regard to the jurisdiction of the Controller and the applicability of the Act to the relationship between the parties. The High Court disposed of this controversy by holding as hereunder:‑ "I think it shall not be just and appropriate to take up the question of jurisdiction at the intermediate stage of rent proceedings Decision on merits of the controversy has yet to come. Section 24 of the Rent Act, 1963 provides that an appeal against an interim/interlocutory order shall not lie, but it gave a right of appeal only against the final order which lay direct to the High Court. Clear object underlying the above section of law is that rent cases, unlike the civil suits, may be decided quickly and expeditiously. In this view, when the controversy on merits is still to be adjudicated upon by the Rent Controller and decision either accepting or rejecting the ejectment case is yet to be made, it shall not be fair to cause interference When the question of jurisdiction of the Rent Controller Cantonment is examined in the light of case law relied upon/referred to, it does not appear to be a fit case for issue of either a writ or certiorari or prohibition. Petitioner is not Without a remedy and that remedy is, that m case, decision in the ejectment case finally goes against petitioner, it can be brought under challenge in first appeal before this Court. Piecemeal trial of the cases and decisions in installments besides causing delays, involve the parties in unnecessary expenses of litigation. It was in this view only that do not think it proper to examine the question of jurisdiction of the Rent Controller at the intermediate stage of proceedings:'

4. Mr. Ali Ahmad Fazeel, Senior Advocate, the learned counsel for the petitioner contended that a question touching the jurisdiction could be appropriately raised by a Constitutional Petition notwithstanding the remedy of appeal etc. available to a party, if the initial jurisdiction to take cognizance of the matter was entirely absent or lacking. In this context, the learned counsel has relied on the cases of Lt.‑Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and another PLD 1961 SC 119 at page 128 and Messrs Colony Textile Mills Ltd., Lahore v. The Income‑tax Appellate Tribunal (Pakis tan) and another PLD 1971 Lah.

861. Further, it is contended that the question of fact involved in the case stands answered by two decisions given in Nur Shah v Azmat Illahi and others PLD 1966 (W.P.) Pesh. 159 and Naeem Shah and 14 others v. Zarin Gul and 7 others PLD 1981 Pesh.

141. He has also relied on the two cases from the Indian jurisdiction, T.K.Sivarajan v. Official Receiver Quilon District Court and another (AIR 1953 Travancore‑Cochin 205 and Dr. Sudhir Kumar Mukherjee and others v. Nirsi Dhobin and others AIR 1961 Patna 321 to contend that ordinarily 'building' excludes the vacant plot in Rent Control Laws. S. Subsection (1) of section 24 of the Act, while providing for `appeals' makes provisions as hereunder:‑‑ "Any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to' the High Court." Subsection (4) of the same section provides that "No order of the Controller except by an appeal under this section and no order of the Appellate Court made under this Act shall be called in question in any Court by any suit, appeal or other legal proceedings". Appeal lays to the High Court.

6. The proposition of law canvassed by the learned counsel for the Petitioner is correct that a question of jurisdiction can be appropriately raised by, means of a Constitutional Petition notwithstanding the availability of an appeal and the alternate remedy. In rent control matters, however, we find that not only a Special Law has been enacted and Tribunal set up for that purpose, the law itself envisages such interlocutor), or jurisdictional determinations and appropriate provision and the stage has been prescribed for challenging them. The objections may be of the absence of relationship of landlord and tenant, the property being not one governed by the statute etc. The nature of the jurisdictional objection and its place in rent control proceedings was dealt with by a Full Bench decision given in the cafe of Akhtar Ali Parvez v. Altafur Rehman PLD 1963 Lah. 390 in the following words:‑ "It seems to me that a distinction exists between an issues as to the very existence of the authority to adjudicate, and those other issues which arise as between the parties and which are to be determined by the authority that has the power to resolve them. An issue concerning the very existence of the power to decide, is not an issue between the parties, though the existence of that power may be asserted by one party and denied by the other. It is, in reality, an issue between the Court itself and the party over whom the Court is asked to exercise power. The issues as to the rights or liabilities of toe parties, on the other hand, affect only the parties and arise only as between them. They leave the Court unaffected. This point may be put in another way. Objections raised 'to' the proceedings must be distinguished from objections raised `in` the proceedings."

7. Where the law takes notice of a particular situation and makes a: provision of it then the legislative intent must be given effect to and respected. The, interim orders which decide questions which do not conclude the proceedings or have the finality cannot under the Scheme of the Act be appealed against. If all these questions touching jurisdiction are allowed to be raised by Constitution Petitions, then the same authority which has jurisdiction in appeal would be deciding those questions in Constitution Petitions when it has been precluded from questioning them in appeal. This will amount to defeating the manifest intention of the law as such. In the case of Mumtaz Hussain alias Bhutta v Chief Administrator of Auqaf, Punjab, Lahore and another 1976 S C M R 450 such a recourse was not approved because it was held that it would defeat the express provisions of the statutory law.

8. As the High Court has not dealt with the factual and legal questions relating to jurisdiction we refrain from doing so or discussing it. This can be more appropriately done when the matter is brought up before the High Court, if at all, in appeal. For that reason the various cases cited by the learned counsel for the Petitioner on the subject arc not examined in their full detail and effect. Leave to appeal is refused. A.A./P‑105/S Leave refused,