P L D 1954 Sind 226 (PLP)

"For the purposes of this section so much of any residen tial premises as is, in the opinion of the Controller, occupied in excess of the reasonable needs of the Tenant shall be deemed to be vacant." A mere reading of the section would show that Rent Controller gets jurisdiction to allot a premises or issue directions in respect of premises only when the premises are vacant or about to become vacant. In case of a premises which is duly allotted and is not going to be vacated by the allottee on any eventuality other than specified in section 75, the Rent Controller has no jurisdiction over any residential premises. The power of revision is given by section 20 of the Act which runs as follows :‑ "The Provincial Government may, on an application to be made within seven days of any order made by the Controller under this Act, call for the relevant record for the purpose of satisfying itself as to the legality or propriety of the order and as to the regularity of the proceedings if any, in which the order was made, and may pass such order thereon as it deems fit and may stay the order of eviction under section 15 of the Act pending the hearing and disposal of the matter. Section 20 (5) :‑ "The Provincial Government may, by general or special order, direct that the powers conferred on it by subsection (1) shall, subject to such conditions as may be specified in the order, be exercisible by a person not below the rank of a judge, Small Causes Court." Under this section the Provincial Government or the authority to whom the powers of the Provincial Government are delegated has got the same power as are conferred on the Rent Controller under section 15 of the Act and consequently the revising authority can have jurisdiction to pass an order under section 15 of the Act only when the conditions precedent mentioned in the section are existent viz., when residential premises are vacant or about to be vacant. In the absence of any vacancy neither the Rent Controller nor the Chief Judge, Small Causes Court can have any jurisdiction to allot any premises or issue any directions in respect thereof. Reference may be made to a case of the Allahabad High Court, Lachhman Das v. Rent Control and Eviction Officer, Bareilly and another (A I R 1953 All. 458). This was a case under U. P. Temporary Control of Rent and Eviction Act (III of 1947) section 7 of the Act requires a landlord to give intimation when any accommodation belonging to him falls vacant. Considering the effect of this section their Lordships observed :‑ "It is only when an accommodation falls vacant (and now after the amendment of section 7 by Act 24 of ‑1952, or is about to fall vacant) that the District Magistrate acquires the jurisdiction to make an order of allotment. When an owner of property; being‑in possession of it and actually occupying it, transfers the ownership and the possession thereof to, a transferee, the ownership and possession vest in the transferee from the moment of transfer and the transferee steps into the shoes of the owner. In such a case, in our opinion, the accommodation, cannot be said to have fallen vacant. In the circumstances the Rent Control and Eviction Officer, in our opinion had no jurisdiction to make the allotment." The basis of the decision is what I have mentioned above viz., that Rent Controller gets jurisdiction to allot a house or issue directions in respect thereof only when it is vacant or is about to fall vacant and no other case. It is clear from the order of Rent Controller dated 26th June 1949, Exh.6/8 that the rooms in question were allotted by the Rent Controller to the plaintiff. The plaintiff continued to be in possession and had no intention whatsoever of vacating the premises. In such circumstances the Rent Controller was perfectly correct when he observed in his order dated 15th June 1951 Exh. 6/10 that application did not lie and I cannot but hold that the order of the Chief Judge, Small Causes Court dated 13th March 1952 was without jurisdiction and as such a nullity. The contention of the learned counsel for the defendant that the order of allotment dated 27th June 7 949 was conditional is not sustainable at all. The relevant portion runs thus :‑ "I, therefore, have no alternative but to ask the parties to maintain the status quo. Two rooms in possession of Mrs. Minwalla will be allotted to her, the room in possession of Mr. Ibadat Yar Khan and the front room will be allotted to him. Mrs. Minwalla and her daughters and guests will have a right of way through this room being as before. Parties have been directed to be on the look out to point out some alternative proposals to suit their respective conveniences and the case can be reopened. I have further impressed on them that they should live as good neighbours as long as no other solution is possible." The order of allotment was absolute but in view of inconvenience that the nature of the premises caused to both the parties the Rent Controller pointed out that if parties could devise some alternative proposals to suit their respective conveniences the case could be reopened. Obviously when parties to a transaction or to a suit agree to an alternative arrangement that can always be given effect to but the order nowhere directly or indirectly hinted that the order of allotment was an interim arrangement till the finding of an alternative accommodation by one party or the other. In this case no doubt, the defendant has suggested an alternative accommodation but it is not acceptable to the other party. The other party is the best judge to say whether the alternative accommodation that is being offered to him is a proper accommodation or not and the Court is not in a position to thrust an arrangement not acceptable to both the parties. In any event order as to allotment could be made or directions issued only when there was a vacancy or likelihood of vacancy and in the absence of either of the two conditions, Rent Controller or the revising authority has no jurisdiction to pass the order which the Chief Judge, Small Causes Court did in the present case. My attention was also drawn to a case of Madras High Court, in Matalpudi Janardana Rao v. Yanduri Venkata Subba Rao and another (Cr. L J 1953 p. 16). The question there was whether fair rent having been fixed once by the Rent Controller, was it open to the tenant to file another application for the same relief and the learned judge came to the conclusion that where once a fair rent of a building has been fixed it is not open to a tenant to make a fresh application unless it fell within the provisions of any particular provision viz., diminution or decrease in the accommodation or amenities. The case is not quite germane to the point at issue but it does throw some light on the assertion that once an allotment having been made, it cannot be subject matter of a fresh allotment unless conditions mentioned in section 15 recur. It was contended at the Bar that the suit was barred because of the provisions of section 22 of the Act. Section 22 of the Act runs thus :‑ "Subject to the provisions of subsection (2) of section 20 an order made by the Provincial Government under subsec tion (1) or subsection (2) of that section, and, subject to the same subsections of that section, an order of the Controller shall be final and shall not be called in question in any Court." The plain meaning of the section is that if an order is passed in accordance with the provisions of the Act it shall be final and shall not be called in question in any Court, but here we have to deal with an order passed without jurisdiction. The learned Counsel for the defendant placed no authority before me in support of his contention except a full bench decision Raj Kumar Mahton v. Ram Khelawan Singh. (I L R Pat. Vo. I, 1952, p. 90). The decision has got no application whatsoever. It says :‑ "Where jurisdiction is conferred to determine a particular question, and the Court having jurisdiction determines it, the decision, whether right or wrong is binding on the parties until it is set aside by some process known to the law, in that suit." It is not disputed that if any act is within jurisdiction it cannot be questioned in any extraneous suit. . But here an order is without jurisdiction and the question arises whether such an order is final because of the provisions of section 22 of the Act. On the other hand the plaintiff referred to me case Emperor v. Sibnath Banerji and others (AIR1945 PC 159) and Muhammad Din and others v. Imam Din and another (AIR 1948 PC 33.) These are Privy Council decisions and clearly laid down that where an act is without jurisdiction it can be subject matter of a suit in a Civil Court. Reference may also be made to a case Rahmatullah v. Maqbool Alam (P L D 1949 Sind 22.). This is a decision by my brother Vellani, J. and the very section 22 was the subject matter of interpretation. His Lordships held: "Section 22 assumes that there has been a valid order of allotment which has been considered in revision under section 22 of the Act. Further that an order ab initio invalid which has not been held invalid in revision does not become a valid order. Where there is no order in conformity with the provisions of subsection (4) of section 15 of the said Rent Restriction Act (X of 1947) there is no valid order in existence at all and the bar of section 22 does not come in." This case entirely meets the contention of the learned counsel for the defendant. I was aware of the decision of the bench of this Court, in Miscellaneous Appeal No. 53 of 1953 The Returning Officer K M. C. v. Hafiz Muhammad Habibullah and another decided on 7th September, 1953. I pointedly asked the learned Counsel for the defendant whether he wanted to rely on that decision. The learned counsel for the defendant pleaded ignorance of the judgment. I have, however, myself gone through the judgment in question and I am of opinion that that case is not applicable to the facts of the present case. Their Lordships in that case had dealt with the effect of section 18 of the Karachi Municipal Act, which runs as follows :‑ "No suit, application or appeal shall lie to any Court in respect of any matters relating to or arising from representation and election unless such suit, application or appeal is expressly authorised by this Act." Their Lordships held that the words "any matters relating to or arising from" were wide enough to cover ultra vires acts. In view of the decision of the Privy Council noted above the effect of that decision must be held limited to cases where the wording of the section is Wide enough to include the ultra vires acts. But section 22 of the Act with which we have to deal in this case creates a bar in respect of the order passed under the provision of the Act and consequently the words are not wide enough to include an order which is held to be without jurisdiction. I may note that Hon'ble Mr. Justice Vellani who decided the case reported in P L D 1949 Sind at p. 22 was a party to this Bench decision and this case was not overruled. To my mind that decision does not apply to this case and it must be held that section 22 of the Act is no bar in respect of order without jurisdiction. It was contended before me that I would reject this suit on equitable considerations. The defendant was an old lady and living along with daughter in the rooms adjacent to the rooms occupied by the plaintiff. There was a common passage and there was a common lavatory and bathrooms and such a position should not be tolerated. In the first place while considering the question of jurisdiction I cannot be actuated by equitable considerations as an order without jurisdiction is a nullity and has got no force in law. Secondly in the City of Karachi where people are living under conditions which civilized society would not tolerate even for beasts, there is no scope for nice considerations of convenience and decency. The learned Chief Judge, Small Causes Court observes in his order dated 13th March 1952 that he had in the course of his duties come across instances wherein one single room not nearly 10 x 12 feet, two families each of 15 and 12 members were living divided by blankets thrown over or dividing rope in the middle of the room where such condi tions as described above exist the circumstances in which the parties are living would be considered much more favourable and decent. And lastly if the alternative accommodation is adequate for a person who is a practising Advocate, it would be deemed sufficient for a lady of the status of the defendant. In view of the above, the suit is decreed as prayed with costs. I may note that the parties have adduced oral evidence but they have no bearing on the issue before me and consequen tly I have not dealt with it. A. H. Suit decreed.