1998 PLP 1097 (CLC)

Abdul Shakoor Paracha for Petitioners. Maulvi Anwar‑ul‑Haq for Respondents

2. This Constitutional petition is instituted to challenge the order, dated 31‑3‑1997 passed by the learned Rent Controller in an ejectment petition pending between the parties, whereby, he consigned the file to be kept as dormant till the parties got the matter resolved by referring their dispute to the respectable shopkeepers of the area in view of contents of the agreements Exh.A‑1 and Exh.A‑2 respectively between the parties entered into on 15‑5‑1986 and 19‑5‑1986. 2‑A. The order of the learned Controller is assailed on the ground that the learned Controller adopted illegal procedure to determine the controversial issues between the parties. In this regard, it was alleged that the learned Controller should have settled the issues and decided the ejectment petition in accordance with the provisions contained in Punjab Urban Rent Restriction Ordinance, 1959. In this respect, a reference was made to section 13 of the ordinance aforesaid, whereby, it is enjoined that the Controller may make an order directing the tenant to put the landlord in possession of the building of rented land and if the Controller is not satisfied with the pleadings brought before him, he shall make an order rejecting the application. Hence, it was argued that the learned Controller had to decide the controversy between the parties in accordance with law and the evidence brought on record and that he could not delegate his authority to decide to a third person as has been done in the present case by, referring, the dispute to the respectable shopkeepers in accordance with the alleged agreements. Lastly, it was contended that the Controller had earlier framed five issues including Issue No.4‑A which touched the maintainability of the ejectment petition without satisfying the condition precedent contained in the agreements mentioned above. As 'such, there was allegedly no need either to make a reference as has been done in the impugned order or to suspend the proceedings till the matter was decided under the aforesaid reference. Since the Controller had allegedly had not passed any final order and had kept the file pending by suspending the proceedings before him, therefore, the petitioner had allegedly no other effective and efficacious legal remedy except to invoke the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It was accordingly prayed that the impugned order being illegal and without jurisdiction to be set aside.

4. Learned counsel for the respondents, however, opposed the writ petition on the ground that since the order in question was of final nature, therefore, the petitioner could invoke the provisions of section 15 of the Rent Restriction Ordinance to prefer an appeal before the appellate authority i.e., District Judge, and if remained unsuccessful could come in second appeal before the High Court as the property in question was admittedly of commercial nature. Since the aforesaid remedy was not exhausted, therefore, the writ petition was allegedly incompetent and ought to be dismissed on that very ground. Secondly, it was alleged that even on merits, the impugned order passed by the learned Controller was good in the eyes of law because there was an agreement between the parties for settlement of the dispute by referring the matter of the respectable shopkeepers in respect of the dispute vis‑a‑vis compensation regarding the good will (Pagri) and the improvements allegedly made in the property in question. It was, therefore, contended that the order in question was firmly made even on its merits.

5. I have considered the foregoing submissions and find that the entire controversy raised in the pleadings has been depicted in the issues framed by the learned Controller on 1‑12‑1996 with the addition of another issue i.e.; Issue No.4‑A on 6‑2‑1997. These issues cover all the points such as good‑will (Pagri), expenses in respect of the improvements in the disputed premises and the effect of the alleged condition precedent contained in agreements, dated 15‑5‑1986 and 19‑5‑1986. This controversy under the Rent Restriction Ordinance is to be decided by the Rent Controller in accordance with law without delegating his authority to any other agency such as respectable shopkeepers, etc. It is established principle of law that an authority vested with the power to decide a matter before it may decide the same personally under the law and that the power to decide cannot be delegated to any third person. Any such delegation, if made will be totally illegal and patently without jurisdiction. In the instant case, the learned Controller instead of deciding the controversy himself wrongly and illegally referred the matter to decide the controversial issues to an agency which has no concern or authority under the Rent Restriction Ordinance. As such, the impugned order suffers from inherent illegality and being without jurisdiction cannot be allowed to stand.

6. The writ petition is accordingly accepted. The impugned order, dated 31‑3‑1997 passed by the learned Rent Controller is set aside and the case is sent back to the Controller for proceedings with the ejectment petition from the stage at which the impugned order was passed and to decide the same strictly in accordance with law.

7. The parties are directed to appear before the learned Rent Controller on 24‑2‑1998. The parties are, however, left to bear their own costs. A.A./S‑184/L Case remanded.