1984 PLP 697 (MLD)

K.A. GHANI, J.-- Mr. Usman Ghani Rashid, Advocate states, "I am busy before another Bench and 1 will appear before this Court immediately after I finish that matter". We asked Mr. Usman Ghani Rashid how this petition is maintainable as in our view, an alternate remedy by way of filing of suit is available. He states that there is a case of Supreme Court reported in PLD 1967 and the name of the case is Ahmedia Anjuman. He has nothing further to add to that. He states that he has filed the petition to seek a direction against the defendants for performance of public duty.

2. We have gone through the contents of the petition and the documents filed alongwith it. The case of the petitioner as disclosed in the petition is that the is the transferee of premises bearing No.1-B-93, situated at Sinjhore vide P.T.D. No. 7715, dated 25th October, 1966. According to the petitioner he let out the said premises to the respondents and handed over its possession to the Government functionaries where a school wits established. The petitioner however has neither stated in the petition the date of delivery of possession of the premises to the respondents nor the terms and conditions on which the said premises was given to the Government. It would be relevant to reproduce here para. 5 of the petition which reads as follows:-- "

5. That the possession of the said property was taken by and on behalf of respondents in the year 19-- but till date no rent has been paid." (Note:--The petitioner has left the year when possession was allegedly given, blank which we have shown by underlining it.) It is also surprising to note that no plea has been taken in the petition that the parties at any time agreed upon the rate of rent to be paid. The only plea raised by the petitioner about rent in para 11 reads:-- "The petitioner claims rent at Rs.500 p.m. in respect of the said property." The petitioner pleaded that he does not wish to displace the school from its premises and, there ores not moved application for ejectment under the provisions of Sind Rent Premises Ordinance. After stating in para 13 that since payment of rent was disputed by and on behalf of the respondents only on the ground of alleged defective title of the petitioner which disputed question stands concluded by the order passed by the Chairman Evacuee Trust Property Board on 20th March, 1983, the petitioner contended that he is entitled to receive rent at the rate of Rs.500 per month which having not been paid in spite of repeated representations, this petition under Article 9 of the P. C.O. 1981 was filed claiming the following reliefs:-- "(a) to declare that the respondents are liable to pay rent to the petitioner in respect of the property mentioned above in which Government school is being run. (b) to direct that the respondents should pay rent and arrears thereof to the petitioner without any further loss of time. (c) Cost of the petition. (d) Any other just and proper order in the circumstances of the case."

3. Before proceeding further we would like to refer here to the order passed by the Chairman Trust Property Board wherein the statement of the petitioner to the following effect has been noted:-- "According to him (the petitioner) the rent of the property was not fixed but later on he sent a notice of rent amounting to Rs.500 per month to school authorities."

4. On the consideration of the averments made in the petition and after taking notice of the statement of the petitioner made before the Chairman Evacuee Trust Property Board we are of the opinion that this petition is not maintainable and that the extraordinary constitutional jurisdiction could not be invoked for claiming the reliefs reproduced above. Neither the date of delivery of possession of the premises to the respondents has been disclosed in the petition nor it is shown or even pleaded that any rate of rent was agreed to be paid by the respondents to the petitioner. In the circumstances neither any order or direction can be given to the respondents to pay rent or arrears of rent to the petitioner nor can we grant any declaration that the respondents are liable to pay rent to the petitioner in respect of the, premises in question. In our opinion to grant such a declaration by a' Court of law would be against the provisions of section 42, Specific Relief Act and rule laid down in the case of Malik and Haq v. Muhammad Shamsul Islam P L D 1961 S C

531. The issues and the questions involved in such a case obviously cannot be decided except by recording evidence. No performance of any public duty on the part of the respondents is involved in the case. The reference made by the learned counsel for the petitioner to the case of Anjuman-e-Ahmadiya is reported in P L D 1966 S C 639 and not in P L D 1967 S C as stated. After going through the facts of the said case we find that the said case is also of no help to the petitioner. In the said case the Anjuman was granted a piece of land, possession of which was delivered to it and it started construction of a mosque thereon after enclosing its boundary wall all round. The Municipality at first took objection to this but subsequently the matter was compounded on payment of necessary fees. Thereafter all of a sudden the President of the said Anjuman was served with a notice saying that the Government had decided to cancel the sale of the land to it and the Anjuman was called upon to vacate the said land. This order was challenged in the High Court by the said Anjuman by filing a Constitutional petition. The learned High Court of Lahore dismissed the, said petition in limine holding that the civil suit was an adequate alternate remedy to which the Anjuman should resort. Leave was granted in the case by the Honourable Supreme Court to consider whether the remedy by way of a suit was an adequate alternate remedy us the order complained of appeared to be 'one purporting to be made in exercise of public power and suitable prima facie for scrutiny under the prerogative jurisdiction". Dealing with the question of availability of alternate adequate remedy in, the circumstances of that case, the Supreme Court observed:-- "Thus, once it is established that the remedy sought is for the performance of some public duty then relief by way of an extraordinary remedy of this nature is not to be denied merely because some other remedy under the general law is available, unless such alternative remedy can be considered to be equally inexpensive, expeditious, beneficial and efficacious." The Honourable Supreme Court further held:

"The other adequate remedies provided by law would, in the ordinary circumstances, having reference to the remedies provided by the particular statute itself which has created the right or obligation and not a general remedy at law, as for example by a suit. On the other hand, if the remedy sought for is in substance a remedy which is available under the ordinary law then a suit and not the extraordinary remedy under Article 98 should be the appropriate remedy, or the remedy provided by this Article is not intended to be a substitute or the ordinal forms of legal action. But where this is not the case the remedy by way of a suit can hardly be considered to be an adequate alternative remedy. A suit is by no means as inexpensive or speedy or beneficial a remedy as the remedy provided by this Article. Even in the first case where full redress can be given by an order contemplated under sub-Article (2) of Article 98 if an alternative remedy by the law creating the right or obligation has been prescribed the Court has still to consider whether such a prescribed alternative remedy is equally, inexpensive, expeditious, efficacious and beneficial. Applying these tests to the present case we cannot help observing that what the appellant really wanted was the per formance of a public duty, namely, that the authorities seeking to cancel its grant should proceed in accordance with law, namely the provisions of the Colonization o Government Lands Act 1912, under which the grant was made. Considering the rule laid down as above by the honourable Supreme Court we are of the opinion that in this case the enforcement of an alleged right or obligation created could be adjudicated upon and enforced without much expense and inconvenience under the general remedy provided by the law by way of a suit. In reaching this conclusion we are also conscious of the fact that neither any agreement has been pleaded nor the date of commencement of the tenancy has been given in the petition. Even the rate of rent is not alleged to have been agreed upon between the parties. These questions including the questions of bar of limitation for recovery of alleged arrears would also have to be gone into by the relevant Court. These questions amongst others cannot be decided without recording evidence. For the above reasons and being of the further opinion that performance of any public duty is not involved, this petition invoking constitutional jurisdiction of this Court under Article 9 of Provisional Constitution Order of 1981 is not maintainable. The petition is accordingly dismissed in limine. M.I Petition dismissed.