' MUHAMMAD SAIR ALI, J.---Through this civil appeal by leave the appellant tenants have challenged Lahore High Court's judgment dated 4-7-2003 accepting Writ Petition No,5959 of 1992 filed by the respondents.
2. To seek eviction of the appellant tenants from Shop No,116, Block No,1, Rail Bazar, Sargodha (hereinafter refereed to as the shop) the respondents filed an ejectment petition on the ground of personal need and reconstruction of the tenanted shop. The petition was allowed by the learned Rent Controller vide order dated 15-3-1983 on the ground of reconstruction. The tenant's appeal there-against was dismissed on 25-7-1983 by the learned District Judge who directed the tenant appellants to vacate the shop and ordered the respondents to grant new tenancy of the reconstructed shop to the petitioners and that otherwise the petitioners would have the right to seek restoration of the possession of the shop. The possession of the shop was obtained in the execution proceedings by the respondent landlords on 25-1-1984.
3. Alleging non-demolition and non-construction of the shop by the respondents, the appellant tenants filed a composite application before the learned Rent Controller under section 13(5) of the Punjab Urban Rent Restriction Ordinance, 1959 to seek their conviction/punishment and restoration of possession of the shop. The petition was contested by the respondent. The new tenants of the landlords on impleadment as the respondent also filed contesting replies. Issues were framed by the learned Rent Controller and evidence was recorded.
4. The learned Rent Controller accepted the aforesaid application through order dated 12-5-1992.
The respondents landlords were convicted and sentenced to pay fine of Rs,5,000 and were directed along with the new tenant, to hand over vacant possession of the shop to the petitioners against the previous rent. Appeals there-against filed by the respondents (landlords and the new tenants) were dismissed by the learned Additional District Judge through a consolidated judgment dated 18-6-1992. To challenge the same, writ petitions were filed by the respondents. A learned Judge in chamber of the Lahore High Court accepted the writ petitions through the impugned judgment dated 4-2-2003. The orders of the learned Rent Controller and the Appellate Authority were declared to be without jurisdiction and were set-aside on the ground that the conviction and punishment under section 13(5) ibid could only be imposed by a 'Court' and not by the 'Rent Controller' who under law was not competent to entertain and try the complaint.
5. Against the High Court's judgment, leave was granted on 12-12-2005 by this Court to consider.
5. The Provisions of section 13 of the Ordinance VI of 1959 envisage eviction of tenants on various grounds but the eviction ordered under clause (iv) of the subsection (2) or under subparagraphs
(i) and (ii) of paragraph (a) of subsection (3) of the said section was reversible if the condition which had led to the said eviction, were not satisfied within the prescribed time.
6. If the tenant is dispossessed on the ground that the landlord or his children required the rented premises for his or their occupation and he or they did not occupy the said premises or having occupied the same re-let it within two months of taking over of the possession thereof, then the Rent Controller, on being approached, could straight away direct that the evicted tenant be put back into possession of the property in question. This is so envisaged by subsection (4) of the said section 13.
7. But if a Rent Controller is like-wise cheated by the landlord and secures eviction of the tenant on the ground of reconstruction of the premises, then would it be just and proper and could this be the intention of law that such a deceitfully evicted tenant should first go to a criminal Court; seek conviction of the landlord under section 13(5) of the Ordinance; then pursue the conviction of the landlord in the appellate and revisional Courts possibly up to this Court to ensure that the conviction was maintained which exercise could take months and even years and then go back to the Rent Controller asking for a direction to be put back into possession of the premises from which premises he had been cheated out.
8. This question which appears to be of first impression and other, requires consideration.
9. This petition is, therefore, allowed and leave granted for the purpose.
10. Since the petitioner has been out of possession for more than twenty years, the matter deserves expeditious disposal and it is ordered accordingly".
6. Raja Abdul Rehman, learned Advocate Supreme Court for the appellant referred to Mst. IChadija Bibi v. Abdul Waheed (1980 CLC 2145) to contend that a learned Division Bench of High Court of Balochistan had held the Rent Controller to be a Court where for the impugned judgment of the Lahore High Court deserved to be set-aside. Contrarily Sh. Naveed Shahyar, learned Advocate Supreme Court for the respondents relied upon the precedents hereinafter discussed, by contending that Law was well settled that the Rent Controller not being a Court, had no jurisdiction to try a complaint under section 13(5) of the Punjab Rent Restriction Ordinance, 1959.
' Further contended that in place of the old shop, six shops had been made out of which respondents were ready to handover one shop to the appellants. The appellants did not accept the offer as above made by claiming that the learned Rent Controller and the first Appellate Authority had concurrently held that the respondent landlords had failed to demolish and reconstruct the shop and had only modified the old shop.
7. The question for determination by this Court is as to whether the Rent Controller was a "Court" entitled to exercise jurisdiction under section 13(5) of the Ordinance to convict a defaulting landlord and thus order restoration of possession to the evicted tenants.
8. Under clause (vi) of subsection (2) of section 13 of Punjab Rent Restriction Ordinance, 1959, on showing that the building or rented land is reasonably and in good faith required by the landlord for reconstruction or erection of a building, he can obtain an order from the Rent Controller directing the tenant to put him in possession of such building or site provided that the landlord has obtained necessary sanction for such construction.
On obtaining such an order and consequent possession, if the landlord fails to demolish/construct the building, provisions of subsections (5) and (5-A) of section 13 of the Ordinance become applicable. These provisions read as under:-- "(5) Where a landlord has obtained possession of a building in pursuance of an order under clause
(vi) of subsection (2) of this section and does not have the building demolished within a period of four months from the date of taking possession of the same he shall unless he satisfies the Court that he was unable to construct the building within the prescribed time for reasons beyond his control, be punished with imprisonment for a term which may extend to six months or with fine or with both.
(5-A) Where a landlord has been convicted under the provisions of subsection (5), the tenant, who has been evicted from the building or rented land in respect of which the landlord is convicted, may apply to the controller for an order directing that he shall be restored to possession of such building or rented land, and except in the case of building which has been demolished, the Controller shall make an order accordingly."
9. On the landlord's failure demolish the tenanted building within four months from taking possession of the same and to construct the new building within further two years, under subsection (5) of section 13 ibid the landlord becomes liable to be convicted and punished unless he satisfies "the Court" of his inability to do so for reason beyond his control.
10. The provisions of subsection (5-A) ibid are sequential as well as consequential to the proceedings under subsection (5). On conviction of the landlord under said subsection (5), a right accrues to the tenant to apply to the 'controller' for an order for his restoration to possession of the non-demolished/non-constructed building or rented land except in cases where the building has already been demolished. On such application the controller is to make an order accordingly. As such the right to seek restoration of possession arises to the evicted tenant and a duty is cast upon the Controller to pass an order "accordingly", when;
(i) landlord has been convicted under the provisions of subsection (5);
(ii) the tenant applies under subsection (5-A) to the 'controller' for an order of restoration of his possession and
(iii) the building sought to be restored has not been demolished.
11. The proceedings under the two subsections (5) & (5-A) are though linked and inter dependent yet are detached and independent. The nature , the procedure, the sphere and the effect of the two proceedings are distinct. The fora thereof are also different. Proceedings under subsection (5) are penal and criminal in nature. The trial thereto is to be held on complaint of the evicted tenant under the ordinary procedure prescribed in the Criminal Procedure Code, 1898. In absence of definition of the 'Court' in the Rent Restriction Ordinance, such trial will obviously be in the ordinary Court of criminal jurisdiction. Consequent upon the trial and conviction of the landlord therein by the Court, the Rent Controller upon application of the tenant will assume jurisdiction under section 13(5-A) of Rent Restriction Ordinance. The scope of inquiry before Rent Controller is rather limited.
The Rent Controller is only to inquire as to whether the landlord has been convicted by the Court and in the case of building, the same has been demolished or not. Such inquiry cannot partake of a trial. Rent Controllers' jurisdiction is restricted to determining the above two facts. If he finds that the landlord has been convicted by the Court under section 13(5) and the building has not been demolished he shall accordingly pass an order of restoration of the evicted tenant.
12. The nature of the powers of Rent Controller and his status under the Ordinance was conclusively settled by this Court in the case of `Khadim Mohy-ud-Din and Mrs. S. Mahmud v. Ch. Rehmat Ali Nagra and Mst. Aziz Begum' (PLD 1965 SC 459). Examining Controller's jurisdiction the power and the procedure of inquiry by him, it was held that:-- "From the provision of the Ordinance it appears that though under section 16 the 'Controller' has been given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence" he is not bound in every case to follow the procedures laid down in the Code of Civil Procedure. He has been given powers under sections 4, 10(3) and 12 to make orders after holding such enquiry as he thinks fit. In such cases the question of nature of enquiry is left to him. That means that in such enquiries the parties have no right to insist on production of such evidence, which they desire to adduce in support of their case. Therefore, no machinery is prescribed for summoning witnesses or compelling production of documents in such enquires. In short these enquiries may be such as are conducted by an Executive Officer. Furthermore, the Controller has been given power to regulate the use by landlord of his own property, inasmuch as within the Urban Area the landlord may not convert, a residential building into a nonresidential building. The power thus conferred on the Controller would appear to be purely executive. Then subsection (3) of Section 13 says that before putting the landlord in possession of the tenanted premises the Controller should be satisfied that the claim of the landlord is bona fide". But there is no express mention of any enquiry by the Controller. If the word 'satisfied' imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry, he will be bound by any particular procedure.
' We, therefore, conclude from the foregoing examination of the relevant provisions of the Ordinance that though some of the functions of the Controller are judicial in character, but yet he is not required to act judicially in discharging many of his functions. In these circumstances it will be difficult to hold that the Controller while performing this functions under this Ordinance acts as a Court. At the most it may be said that he acts in a quasi-judicial capacity."
13. The High Court of Sindh in a case similar to one in hand, under sections 13(5) & (5-A) of the Ordinance relying upon the above judgment, in Ilaji Jamil Ahmed v. Muhammad Ibrahim' (1984 CLC 2804) held that:-- "It is evident that the Hon'ble Supreme Court held that the Rent Controller while acting under the Ordinance does not act as a Court but at the most he acts in quasi-judicial capacity. In this view of the matter the application filed by the respondent before the Rent Controller under subsection (5) of section 13 of the Ordinance was without jurisdiction. The effect of section 19 seems to be that a complaint under section 13(5) of the Ordiance can be lodged by a tenant without obtaining the sanction of the Rent Controller referred to section 19.
"I am not inclined to agree with the contention of Mr. Syed Inayat Ali that a Rent Controller can entertain an application under section 13 (5-A) of the Ordinance independent of the conviction referred to in the above subsection."
It was further observed that:- "5. I am inclined to hold that the use of the word "Court" in sub-section (5) of section 13 does not mean the Court of Rent Controller. A perusal of the various provisions of the Ordinance makes it abundantly clear that whenever the Legislature intended to empower the Rent Controller to pass certain order or to take particular action the words "Rent Controller" have been used.
' The use of different word in subsection (5) of section 13 cannot be without any purpose. In my view the word "Court" employed in subsection (5) of section 13 means the ordinary criminal court of competent jurisdiction. It may be pointed out that the Legislature has not empowered the Rent Controller even to try the offences for violating sections 11, 12(1) and 18 though the above offences entail maximum punishment of Rs,1,000 fine whereas the contravention of subsection (5) of section 13 of the Ordinance entails the sentence of six months or with fine or with both. It will stand to no logic or reason to hold that though the Rent Controller has not been empowered to try offences involving lesser punishment, he is competent to try an offence under sub-section (5) of section 13 which entails higher punishment as observed hereinabove on the basis of the use of the word Court.
' I may also mention that it is a well-settled principle of law that if in the same enactment two different words are used, they will carry different meaning."
14. The above cases were also followed in the case of 'Abdul Jabbar v. Shamim Akhtar and another'
(1995 MLD 1104) by the High Court of Baluchistan recording that:- "For failure to construct new building or restore possession, penal action is provided under section 13(5) of Balochistan Urban Rent Restriction Ordinance 1959 Aggrieved person should approach Criminal Court of competent jurisdiction for said purpose and Controller has no authority to draw proceedings under the settled law proceedings under section 13 (5) Balochistan Urban Rent Restriction Ordinance initiated by appellant before the Controller are without jurisdiction."
' Similarly in the case of "Farukh Nawaz. v. Faisal Ajmal and another (PLD 2003 Quetta 68), the same view was followed by High Court of Balochistan. It was held that:- "The word 'Court' used in section 13(5) and 'Rent Controller' mentioned in subsection (5-A) of section 13 of Ordinance clearly "manifests the intention of legislature that both the words are not synonymous to each other but have been used in different meanings. It is by now a settled principle of law that Rent Controller is a persona designata and not a Court. Therefore, before filing an application under section 13 (5-A) of the Urban Rent Restriction Ordinance 1959 for restoration of possession before Rent Controller, it is essential for the tenant to exhaust the remedy provided by section 13(5) because action under subsection (5-A), (supra) is subject to decision of Court made under subsection (5) that, too, if Court convicts the landlord under the said section ...... Controller has no jurisdiction to punish the landlord, while section 13(5-A) comes into play, as already observed, after a landlord is convicted as provided by section 5 of section 13 under the Ordinance. Joint application under both the sections before Rent Controller was not competent (1984 CLC 2804 referred)."
15. In the present case, the learned Rent Controller accepting a composite application under section 13(5) of the Ordinance, sentenced the respondent landlords to pay fine Rs,5,000 and to deliver vacant possession of the shop to the appellants (the evicted tenants). This order was passed in purported exercise of powers under section 13(5) of the Ordinance. As above discussed in the subsection (5) in contradistinction to the term "Controller", the term "Court" has been used by the legislature whereas in subsection (5-A) term Controller has been employed twice. The use of two different terms in the same enactment, cannot be interpreted to be meaningless. The two terms connote and imply different meanings. 'Controller' under section 2(b) of the Ordinance has been defined to mean a judicial officer appointed' to perform the functions of a Controller under Ordinance. The "Court" has not been defined in the Ordinance. Procedure for the trial of an offence punishable under section 13(5) of the Ordinance has also not been provided for in the Ordinance.
The cognizance of the offence under subsection (5) can therefore, only be taken by the ordinary Court of criminal jurisdiction.
16. The reliance by the learned counsel for the appellants on the case of "Mst. Khadija Bibi v. Abdul Waheed" (1980 CLC 2145) to argue that Rent Controller is a Court, is inapt. In this judgment a learned Division Bench of High Court of Balochistan affirmed that the `Controller' stricto senso was not a Court but for the purpose of Article 203 of the Constitution, Rent Controller was supposed to be a Court subordinate to the High Court for giving directions to/against the Rent Controller. In any case the law declared by this Court on the status of Rent Controller in the case of "Khadim Mohy- ud-Din and another" is final and binding. Any judgment or interference there against cannot be approved.
17. In view of what has been discussed above, we hold that the learned Rent Controller had no jurisdiction to entertain, try and adjudicate upon the composite application of the petitioners under subsections (5) and (5-A) of the section 13 of the Punjab Urban Rent Restriction Ordinance 1959. As such the proceedings before him were rightly held by the Lahore High Court in the impugned judgment to be coram non judice and judgments arising therefrom were validly declared to be void. This appeal is therefore, dismissed. As the appeal involved a pure question of law on the jurisdiction of the Rent Controller therefore there shall be no orders as to the cost.
18. This judgment shall not prejudice the rights of the appellants to file appropriate legal proceedings for the vindication of the wrong done to them by the respondents. The proceedings if filed by the appellants shall be expeditiously concluded as appellants have suffered incessantly since their eviction in January, 1984.