This petition under Article 199 of the Constitution of Islamic Republic of Pakistan seeks a declaration that orders dated 7-5-1975 and 12-1-1980 respectively passed by the learned Rent Controller, Rawalpindi and the learned Additional District Judge, Rawalpindi, were passed without jurisdiction, without lawful authority and are of no legal effect.
2. Briefly stated the facts of the case are that respondent No. 1 instituted an application on 19-5- 1977 before the Rent Controller, Rawalpindi, under section 13 of West Pakistan Urban Rent Restriction Ordinance VI of 1959 for ejectment of one Muhammad Aqeel Siddiqi from a covered passage detailed in the said petition and situated in and under House No. B-285, Nia Mohalla, Trunk Bazar, Rawalpindi. This application was resisted by the said Muhammad Aqeel Siddiqi, whereupon, the learned Rent Controller on the divergent pleadings of the parties framed 4 issues. These 4 issues were decided by the learned Rent Controller by his order dated 19-11-1968. Against this order of the Rent Controller appeal was filed which was dismissed.
3. Under the said order one Muhammad Khalil was, however, impleaded as a party on whose death his legal representatives were brought on record.
4. Again 4 preliminary issues as mentioned below were framed by the learned Rent Controller when he took up the case after the aforesaid disposal of appeal against his earlier order dated 19-11-1968 Issues
(i) Whether the relationship of landlord and tenant exists between the parties? O. P. P.
(ii) Whether Mohammad Khalil, Mohammad Murtaza and Mohammad Shafi are necessary party to the present petition; if so, to what effect? O. P. R.
(iii) Whether the legal notice under section 30, Act XXVIII of 1958, has been served upon the respondent? O. P. P.
(iv) Whether the Rent Controller lacks jurisdiction to try the present suit? O. P. P.
5. By his order dated 7-5-1975 the learned Rent Controller found the above issues in favour of respondent No. 1 and allowing the application of the respondent directed Muhammad Aqeel, the predecessor-in-interest of the petitioner to vacate the disputed passage within three months from the date of the order.
6. Feeling dissatisfied the said Muhammad Aqeel preferred an appeal in which the petitioner made an application for being substituted in place of Muhammad Aqeel aforementioned as he had stepped into the shoes of the latter. This prayer was allowed and the petitioner was substituted in place of Muhammad Aqeel the appellant before the appellate authority.
The learned Additional District Judge by his order dated 12-1-1980 dismissed the appeal with costs.
Hence the present writ petition.
7. Learned counsel for the petitioner raised the following contentions only.
(i) That the passage in dispute did not constitute a house within the meaning of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958;
(ii) that the covered passage is not a "building" within the meaning of the word as contained in section 2(a) of Ordinance VI of 1959 and as such the Rent Controller had no jurisdiction to entertain the application for ejectment filed by the respondent No. 1 and out of which the present writ petition has arisen; ,
(iii) that despite request for further inquiry as contemplated by section 15(3) of West Pakistan Urban Rent Restriction Ordinance VI of 1959, the lower Court did not hold the inquiry which amounts to refusal to exercise jurisdiction; and
(iv) that the request for appointment of local Commissioner made before the learned Additional District Judge was not considered though spot inspection was eminently called for.
8. On the other hand learned counsel for the contesting respondent submitted; Firstly, that the petitioner having not raised the pleas as regards the covered passage being not a house and as to the jurisdiction of the Rent Controller to entertain an application for ejectment under Ordinance VI of 1959 regarding the covered passage in dispute before the forums below shall be precluded from now raising the same in constitutional jurisdiction of this Court for the first time as both these points primarily relate to questions of fact; Secondly, that there being concurrent findings of the two forums below as to the nature of covered passage which has been held to be a portion of the house transferred to the contesting respondent's predecessor, the said findings is not open to question in the jurisdiction of this Court under Article 199. Reference was made in this regard to Sultan v. Dost Muhammad and another PLD 1973 Lah. 318; Thirdly, that it is well settled that even an erroneous decision on questions of fact given by tribunals of exclusive jurisdiction is not challengeable in a writ petition. Reliance ~ was placed on Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Fourthly, that the petitioner is only trying to perpetuate his illegal occupation of the premises in dispute without paying even a single penny as rent for the last about 14 years and as such has come to the Court with unclean hands and equity demands that jurisdiction under Article 199 of the Constitution should not be exercised to perpetuate injustice and abuse of process; and Firstly, that orders of the Settlement hierarchy wherein the predecessor in-interest of the petitioner was also a party have conclusively held the passage in dispute to be a part of the house transferred to the predecessor-in-interest of the contesting respondent and the said controversy having been finally resolved by tribunals of exclusive jurisdiction cannot be reagitated through collateral proceedings as it has attained finality. Reference was made in this regard to orders of the Additional Settlement Commissioner dated 20-12-1960, site plan authenticated under the said order, order of the Deputy Settlement Commissioner dated 18-9-1969, order of the Additional Settlement and Rehabilitation Commissioner, Rawalpindi dated 4-7-1970, order of the Settlement & Rehabilitation Commissioner, Rawalpindi Division, dated 22-3-1971 and a letter from the Settlement and Rehabilitation Commissioner to the petitiorer's predecessor-in-interest with a copy to the predecessor-in-interest of the contesting respondent (Annexures R-0, R-5, R-6, R-7, R-8 and R-9 respectively).
9. In reply to the contentions of the learned counsel for the petitioner it was urged. By the learned counsel for the contesting respondent that definition of the house as contained in the Displaced Persons (Compensation and Rehabilitation) Act, amply includes all amenities, accesses, passage etc., as of necessity and in any case the same can in no manner be read so as to exclude therefrom the passage leading to a house. It was further submitted by him that definition of "building" as contained in section 2(a) of Ordinance VI of 1959 includes a part of the building and passage cannot be but part of a building. In the context of the above arguments it was contended that the Rent Controller had all the jurisdiction to entertain and decide the ejectment application filed by the respondent.
10. As regards contentions raised on behalf of the petitioner that further inquiry was not held by the appellate Court and Local Commissioner was not appointed as requested for, the learned counsel for the contesting respondent submitted that the first request was wholly uncalled for as the very permission allowed to the petitioner for substituting Muhammad Aqeel Siddiqi was on the basis of an undertaking given by the petitioner that no opportunity for additional evidence etc., shall be sought for by him. As to the request for appointment of Local Commissioner it was submitted that the application had been duly disposed of with the observation by the learned Additional District Judge that if there be any need for the inspection the same shall be done after hearing the arguments. While deciding the appeal, learned Additional District Judge did not deem it necessary to have an inspection and as such the application stood disposed of.
11. Having given consideration to the controversy involved, I am of the view that the only two questions which require determination are;
(i) Whether a covered passage is included in the definition of "house" Os contained in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act of 1958?
(ii) Whether the covered passage would fall within the definition of "building" as contained in section 2(a) of West Pakistan Urban Rent Restriction Ordinance VI of 1959, so as to amenable for the purposes of ejectment to the jurisdiction of Rent Controller.
As regard the first of the above-mentioned formulations, I find that the contentions raised on behalf of the contesting respondent have force. Section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act of 1958 reads as under; " `House' means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and outhouses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or outhouse is in the possessionof a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises of an industrial concern, or a building or premises declared under paragraph 15 of the First Schedule to be a big mansion or hotel Provided that-where a building not so declared consists of more than one residential premises, and such premises are in the possession of several persons, the premises in the possession of any one of such persons shall be deemed to be a house."
12. A plain reading of the definition of "house" as reproduced above' shows that it has to lie interpreted in the widest possible amplitude. It has` been defined as an evacuee residential premises which of necessity would include the accesses and passage and amenities leading to or appurtenant to a` residential tenement. The specific additions in the definition reading as; "together with the gardens, grounds, garages and outhouses, if any, attached to or appurtenant to such permises" appear to have been added as a matter of abundant precaution so that the reridential premises is not taken as devoid of the specifically mentioned items. It would, thus essentially imply that the "house" as envisaged by the Displaced Persons (Compensation and Rehabilitation) Act of II58 would be inclusive of the passages, lanes, drains etc. The answer to the first question, therefore, is that house would include the covered passage, if any, leading to an evacuee residential premises.
It would be moreso in the case in hand as this covered passage has been specifically transferred by the competent authority to the predecessor-in-interest of the contesting respondent alongwith the residential portion of property No. B-285 admittedly transferred to her as is apparent from the various orders, copies of which are annexed with the written statement as Annexures R. 5 to R. 9.
13. It may also be observed that the question as to whether the cover _ passage forms part of the house or not having been conclusively decided by tribunals of exclusive jurisdiction and the same having attained finality could not be reagitated afresh in collateral proceedings before forums who have no jurisdiction to go behind the orders of Settlement hierarchy.
14. Adverting now to the second question as formulated above suffice it to say that the definition of "building" as given in section 2(a) of West Pakistan Urban Rent Restriction Ordinance VI of 1959 being inclusive o a part of the building and it having been held that covered passage in dispute was part of the building transferred to the predecessor-in-interest of the contesting respondent, the forums below whose orders have been challenged in this writ petition had all the jurisdiction to deal with the ejectment petition filed for eviction of the predecessor-in-interest of petitioner from the part o the building, viz., the covered passage in dispute.
15. The contentions raised on behalf of the petitioner as enumerated at Nos. I and 2 above, therefore, fail.
16. Apart altogether from the above position it may be pertinent) observed here that otherwise also jurisdiction of this Court under Article 1 of the Constitution could not be invoked by the petitioner for resolution o the controversy involved as it essentially. Pertains to disputed questions of , fact which even if assumed to have been, wrongly decided cannot challenged in the constitutional jurisdiction of - this Court as has been he consistently by the superior Courts of this Country. Reference, if any needed may - be made to Muhammad Hussain Munir v. Sikandar ands others PLD 1974 SC 139.
17. I do not intend to dilate on the other preliminary objections raised on behalf of the contesting respondent as the matter can be effectively decided even without dealing with them. I would, however, observe that those also have force.
18. Before parting I consider it appropriate to deal with the contentions raised on behalf of the petitioner about the learned Additional District Judge not holding further inquiry and not allowing request of the petitioner for local inspection. These two matters being relatable to exercise of discretion conferred on the learned Additional District Judge by the Statute under which he was hearing the appeal can obviously be not made a ground of attack as to the validity of his orders in a constitutional petition. Additionally it may be observed that -on factual plane as well these objections have no merit inasmuch as qua the first one the petitioner himself had abandoned his right to invoke the same by getting himself substituted in place of the original appellant Muhammad Aqeel on the specific undertaking that he would not ask for additional evidence etc., and as regards the second, the Additional District Judge had adverted to the matter and having not felt the necessity of spot inspection at the time of - the disposal of the appeal did not allow the request.