1984 PLP 967 (SCMR)

SHAFIUR RAHMAN, J. The petitioners who are tenants of the same land lord and are under orders of ejectment seek by two separate petitions leave to appeal against the judgment of Peshawar High Court, dated 15‑1‑1984 whereby a Constitutional petition filed by them challenging their ejectment was dismissed Haji Fazal Mahmood, the respondent, was admittedly the landlord of the petitioners. The petitioners were tenants of shops in Batkhela in Malakand Agency. The landlord after obtaining permission from the District Counsel for construction of the property filed ejectment applications against the peti tioners on numerous grounds including the default, personal need and recons truction of the property. His claim was contested by the petitioners and as many as 16 issues in one and 15 in the others were framed. However, the Rent Controller allowed the ejectment applications on the sole ground that the landlord wanted the property for reconstructing it. The landlord while giving the relief of the ejectment of the petitioners was also entrusted with the responsibility of providing them accommodation after the property had been reconstructed. The petitioners appealed against the decision of the Rent Con troller but failed before the learned District Judge. Finally, the petitioners filed separate Constitutional petitions and challenged the ejectment order. It appears that before the High Court two grounds in particular were impressed. The first was that Batkhela was not an urban area. The Rent Restriction Ordinance did not apply to it. The Rent Controller had no jurisdiction in the matter. His decision was void for that reason. The other ground taken up was that the tenancy was for a fixed period of 20 years starting from 1978 and that the petitioners could not be evicted from there unless that period expired. The applicability of the Rent Restriction Ordinance to Batkhela was held to have been decided by a Division Bench of the High Court in other Cons titutional petitions and on that account it was recorded by the High Court that‑ "The learned counsel for the petitioners therefore in view of the afore said judgment did not press these points at the bar." As regards the second objection, the learned Judge in the High Court held that the document relied upon by the petitioners did not have the effect of creating a lease for 20 years but contained only a stipulation that the rent shall not be increased for 20 years. On these findings the Constitutional petitions were dismissed. Mr. Abdul Samad Khan the learned counsel for the petitioners reiterated the same grounds before us. He admitted that first ground with regard to the jurisdiction of the Rent Controller, the applicability of the Rent Restriction Ordinance and Batkhela being not an urban area as such was not specifically taken up before the Rent Controller. On that short ground it being in the context a question of fact was not open to inquiry for the first time in constitutional jurisdiction jurisdiction. It appears from the judgment of the District Judge, however, that such an objection somewhat in a different form was raised during the hearing of the appeal. The District Judge held as follows :‑ "The areas within Batkhela have already been declared Urban areas for the purposes for Rent Restriction Ordinance and are out of the con trol of Union Council Batkhela for the purposes of the same Ordi nance." The learned counsel for the petitioners concedes that it is in his knowledge that Batkhela has been declared to be an urban area but he has not been able to lay his hands on the exact notification. It was also accord Being to him a question for examination whether such a declaration could serve the purpose of extending the Rent Restriction Ordinance to that area. When no assertion was made in the constitutional petition that no such declaration was made and the vises of the declaration made having not been challenged by disclosure of relevant facts this contention cannot be advanced a the late stage of the proceedings with a view to avoid the ejectment order competently passed. As regards the document which is sought to be used for claiming lease for a period of ZO years and protection on that account, we approve the view, taken by the High Court that such a document has not the effect of creating a tenancy for a fixed period of 20 years and any reference to that document for this purpose is beside the point. There is no merit in these petitions and leave to appeal is refused. M. Z. M. Petition dismissed.