1. ' MEHTA KAILASH NATH KOHLI, J.--- Facts of the case, in brief, are that petitioners are tenants in the shops belonging to Cantonment Board Zhob. It was stated that total number of shops are sixty- seven hence; the present petition has been filed through union of the shopkeepers. It was further stated that the shops in question were rented out to petitioners and other tenants through auction dated 18th July, 1985 in pursuance of auction notice dated 12th June, 1985 and rent of each shop was fixed at the rate of Rs,350 per month. It was also stated that some of the tenants have deposited premium of their shops, record of which is available with respondent. It was case of the petitioners that the petitioners started their business in the respective shops and were paying rent of the shops regularly to respondent till July, 1996 as per agreement, terms whereof expired in 1991.
2. It was further case of the petitioners that on expiry of tenancy, the respondent with his free-will and consent continued to receive the rent of respective shops from every tenant/petitioner, vide notice dated 28th July, 1996, whereby; he accepted all the petitioners as his tenants subject to increase of 20% in monthly rent and thereafter the petitioners were depositing the monthly rent at the rate of Rs,420. It has been stated that on several occasions, respondent verbally demanded for increase in the rent, to which the petitioners replied that since no maintenance of the shops has been done by the Cantonment Board, therefore, the respondent is not entitled to demand increase in the rate of rent. It has been further stated that the respondent without adopting the legal procedure of Rent Restriction Ordinance has forcibly sealed the shops of petitioners Nos.1 to 11, who are occupants of shops mentioned in para.7 of the petition, while; remaining petitioners were threatened that in case the rent is not enhanced, their shops will also be sealed, moreover; petitioners were threatened that their goods are lying in the shops in question will be thrown out. It was alleged that respondent in access of his jurisdiction had taken away all the goods valuing more than two lac rupees from the shop of petitioner No,9 and had also broken the furniture and fixtures of the shop and thus, heavy loss has been caused to him. Following prayer has been sought in the petition:--- "It is, therefore, respectfully prayed that keeping in view above facts and circumstances, following writ may very kindly be issued in favour of petitioners as against the respondent: --
(i) Declare that the act of respondent by putting seal on the shops of petitioners Nos.l to 11 is illegal, unlawful and without jurisdiction.
(ii) Declare that the demand of increase in the rate of rent by respondent without adopting proper course of law, is also illegal and unlawful and without jurisdiction.
(iii) Direct the respondent to de-seal the shops of petitioners Nos.1 to 11, detail in numbers whereof has already been mentioned in para. No,6, of the petition and the petitioners be allowed to continue their business.
(iv) Direct the respondent to return back all the goods to the occupant of Shop No,48/11, which has taken away and in case the goods have been destroyed or damaged, the petitioner be compensated accordingly.
(v) Restrain the respondent from advancing threats, using force and demanding increase in the rent through illegal means.
(vi) Any other relief, which may deem, fit and proper in the circumstances of the case may also be awarded in favour of petitioners.
(vii) Cost of the petition may also be awarded."
3. ' Notice of this petition was given to the respondent, putsuant to which, parawise comments were filed by the respondent-C.E.O., Zhob, wherein; legal objections were raised that; (a) the petition under reply is not maintainable under the extraordinary constitutional jurisdiction, despite the fact that remedy under the special law is available to the petitioners; (b) as per assertions made in the petition, the matter pertains to Cantonment Laws, hence; this Court cannot take a judicial review in this behalf; (c) the petition is hit by laches and the petitioners have no locus standi to file the instant petition, hence; the same is liable to be rejected. On merits also, claim of the petitioners has been contested and denied by stating that Cantonment Board owns sixty-seven shops in Bazaar area No,1 Zhob, which were rented out during various periods to various tenants. It was further stated that rent of the shops was revised vide Cantonment Board, Zhob Resolution No,1 dated 7th October, 2007. Details of arrears of rent against the petitioners-tenants as on 1st July, 2006 were given in para. No,4 of the counter-affidavit. It has been stated that petitioner No,1 Abdul Jabbar has sublet the Shops Nos.6/17 and 7/17 on monthly rent of Rs,2,300 and Rs,2,000 respectively to other persons but is not paying monthly rent of Rs,1,000 of each shop to Cantonment Board, Zhob, hence; the said action of petitioner No,1 of sub-letting the shops is illegal and unlawful. It has been further stated that on 1st July, 2006 the total amount of arrears against the sixty-seven shops was staggering Rs,17,58,647 and thus; demand notices under section 91 of the Cantonments Act, 1924 were served time and again.
4. ' Record shows that respondent filed an application along with list of major defaulters under section 259 of the Act, 1924 before Judicial Magistrate, Zhob for recovery of the rent of shops in question, but no progress was made. It was stated that a meeting of the union of Zhob Adda shopkeepers (not the union referred to by the petitioners) and Station Headquarters was held in Station Headquarters, Zhob, and; the President and General Secretary of the shopkeepers union pledged that all the dues would be cleared by 20th June, 2007, and accordingly; all the shopkeepers/defaulters were informed that the last date for deposit of all rent arrears was 20th June, 2007, but; no significant progress was made in the recovery of current demand and arrears, hence; keeping in view the dismal situation of recovery and behaviour of the defaulter-tenants, the Station Commander, Zhob/President Cantonment Board, Zhob, directed the Station Headquarter, Zhob to take over the possession of Cantt. Board, Zhob shops and initiate the recovery proceedings through Station Headquarters, thus; on 21st June, 2007, after lapse of deadline, the matter of recovery was taken over by Station Headquarters, Zhob from Cantonment Board, Zhob through agreement for the recovery of rent and arrears. It has been categorically stated that the action of sealing the shops in question was taken with the approval of higher authorities.
5. ' Mr. Jamal Khan Mandokhail, Advocate appeared on behalf of petitioners, while Chaudhry Mumtaz Yousaf, learned Standing Counsel appeared on behalf of respondent.
6. 'Learned counsel for the petitioners has contended that the petitioners are not being dealt with in accordance with law and there properties have been sealed without any justifiable reason. He has not been able to show from the contents of the petition, as to why shops were sealed. In the rejoinder to the petition, it was contended that the meeting was held and the petitioners had failed to make payment of the amount, which went upto the tune of seventeen/eighteen lacs rupees, and thus; the property was sealed.
7. ' Learned Standing Counsel has contended that in view of section 259 of the Cantonments Act, 1924, a Magistrate has the authority to recover the same by distress of the tenants, and thus; the action was justified on the part of respondent. It was further contended that the remedy by way of suit is available under the Cantonments Act, 1924, for which special procedure has been laid down and the proceedings cannot be set at rest in constitutional jurisdiction.
8. 'We have considered the arguments advanced by learned counsel for the parties and perused the record. On perusal of record, it transpires E that rent was enhanced and subsequently settlement was made that the payment will be made up till target date i,e, 20th June, 2007, but the petitioner had failed to make payment of the amount, resultantly, coercive action was taken, whereby; shops were sealed. The petitioners in their petition never mentioned that there was liability on the part of petitioners to make payment of the rent amount and had approached this. Court with unclean hands, even; no rejoinder to the parawise comments has been filed dispelling the contentions raised by the respondent-Department, whereby; it was stated that a sum of Rs,17,58,647 or more than that is due. Section 259 of the Cantonments Act, 1924 authorizes the Board to recover the amount, which is reproduced hereinbelow:--- "259 Method of recovery.--- (1) Notwithstanding anything elsewhere contained in this Act, arrears of any tax and any other money recoverable by a Board under this Act may be recovered together with the cost of recovery either by suit or, on application to a Magistrate having jurisdiction in the cantonment or in any place where the person from whom such tax or money is recoverable may for the time being be residing, by the distress and sale of any movable property of standing timber, growing crops or grass belonging to, such person which is within the limits of such Magistrate's jurisdiction, and shall, if payable by the owner of any property as such, be a charge on the property until paid: ' Provided that tools of artisans shall be exempted from such distress or sale.
(2) An application to a Magistrate under subsection (1) shall be in writing and shall be signed by the President or Vice-President of the Board or by the Executive Officer, but, shall not require to be personally presented."
9. ' Above provision of law clearly authorizes a Magistrate to recover the amount by distress, as well as, by sale of movable property of the tenants. The matter also involves factual controversy with regard to payment of amount to the Cantonment Board and fixation of the rent, which have been disputed. Thus, for the foregoing reasons, we see no merit in this petition, which is accordingly dismissed. However, the petitioners are at liberty to approach the competent Court of law for redressal of their grievance, in accordance with the provisions of.