1. ' SHAHID ANWAR BAJWA, J.--- By this order I intend to decide of Constitutional Petitions Nos.422, 423, 424 and 425 of 2009. Facts have been Stated in the order dated 21-5-2009 passed by this Court. It is quoted below:--- "Learned counsel for the appellants contends that the appellant was inducted as tenant in the premises by the respondent at the monthly rent of Rs.2,000, which was being paid regularly by the appellant. It is further contended that subsequently enhancement of the rent was demanded by the respondent from Rs.2,000 to Rs.4,000 and since the enhanced amount was not paid, the appellant was threatened to be evicted from the premises. As such the appellant filed a Civil Suit for appropriate relief in which the application under Order VII, rule 11, C.P.C. Filed by the respondent was dismissed. The respondent filed appeal which was allowed and the plaint was rejected. It is further stated by the learned counsel for the appellant that before the Civil Forum the respondent took a. Plea that the remedy before the Civil Court is not available to the appellant and instead the Cantonments Rent Restriction Act, 1963 would apply. The appellant thereafter filed proceedings before the Additional Controller of Rent Karachi Cantonment, which were dismissed on 18-2-2009, on the ground that since the appellant is tenant in the property which comes under the provisions of section 3 of the Cantonments Rent Restriction Act, 1963, therefore, the said forum has no jurisdiction in the matter. The appellant has impugned the said order in this First Rent Appeal in support of his contention, he has relied upon the case reported in PLD 1987 SC 107, in which it has been held that a party cannot at the same time blow hot and cold. Where a party persuaded a Tribunal to adopt a particular course for determining the issue in question and accepted benefit of such arrangement, he cannot be allowed to repudiate when it comes to liability and obligation therein.
2. ' On the other hand, the learned counsel- for respondent has relied upon the case reported in PLD 1966 SC 1, 1987 CLC 591 and 2002 YLR 1268. He contended that no remedy was available to the appellant and the Act is not applicable in respect of the properties owned by the Central Government and admittedly the property in question is owned by the respondent, who is a Federal functionary.
3. ' The first case referred to by the learned counsel for the respondent pertains to the controversy of different ownership of land and building. The second case Is in respect of KPT property and the third case is in respect of lessee of Cantonment Board.
4. ' It is an admitted position that the property in question was handed over to the Appellant on tenancy basis by the respondent but an attempt is being made to evict him from the property without due process of law and the respondent took a plea before the Civil Court that Civil Court does not have jurisdiction in the matter and when the matter is agitated before the Rent Controller a plea was taken that such legislation was also not available to them for any relief in view of the bar contained in section 3 of the Cantonments Rent Restriction Act, 1963. No party can be left without any remedy and any person letting property cannot be evicted therefrom without due process of law as the Constitution of Islamic Republic of Pakistan guarantees not only rights of people in respect of properties but also for their livelihood and the facts and circumstances of this case are such which warrant interference of this Court, particularly in view of principles laid down in Waris Meah's case, reported as PLD 1957 SC (Pak) 157.
5. ' It is also to be noted that section 17 of Cantonments Rent Restriction Act, 1963 provides procedure of ejectment through the process of law, whereas section 3 gives an amenity to the Federal Government from the same law, which apparently is discriminatory. When a property was given to the tenant, in such a manner the respondent assumed the role of landlord in the matter and cannot be allowed to take undue advantage only because such functionary is a Federal Government functionary.
6. ' In view of the above circumstances, I convert this First Rent Appeal into Constitutional Petition and direct the appellant to implead the Ministry of Defence as a party in the matter and file amended title.".
7. ' Learned counsel for the petitioners submitted that petitioners are tenants in four separate shops in question for more than ten years and they were paying rent at the rate of Rs.2,000 per month.
8. Without any justification, without any due process and without any rhyme or reason, in 2005 rent was increased by respondent No.1 from Rs.2,000 per month to Rs.4,000 per month. Against such increase when the tenant filed civil suit, application under Order VII, rule 11, C.P.C. Was filed. Although the trial Court dismissed the applications, the Appellate Court rejected the plaint holding that dispute pertains to rent matter and therefore jurisdiction is with the Rent Controller under the Cantonments Rent Restriction Act, 1963. When the petitioners approached the Rent Controller, relying upon section 3 of the Cantonments Rent Restriction Act, 1963, their applications were dismissed. He submitted that the respondents had been blowing hot and cold in the same breath: before the Civil Court, it had been stated that Rent Controller had the jurisdiction and before Rent Controller it was pleaded that he did not have jurisdiction. Learned counsel referred to section 17(11) of the Cantonments Rent Restriction Act, 1963, to contend that even if the Cantonments Rent Restriction Act, 1963 is not applicable by virtue of section 3 thereof, the provisions of section 17(11) have the overriding effect over the provisions of section 3, and it was available to the respondents to seek eviction of the tenant in the event of non-payment of rent within the period prescribed or for infringement of any of the term of possession or occupation. Learned counsel submitted that no such procedure was adopted.
9. ' Learned counsel for respondent No.1 admitted that shops were given on rent about ten years ago.
10. He also admitted that' rent was increased from Rs.2,000 per month to Rs.4,000 and notice in this regard was given on 7-11-2005. Learned counsel relied upon Messrs East-West Insurance Company Ltd., through Chairman and others v. Messrs Muhammad Shafi & Company through Managing Partner and 2 others, 2009 CLD 960, to say that where the Tribunal or Court does not have jurisdiction under law same cannot be conferred on Court or Tribunal by consent or even by Court and Courts are bound to decide lis before them in accordance with law. Learned counsel for respondent No.2 adopted arguments of learned counsel for respondent No. 1 .
11. ' I have considered the submissions of the learned counsel. When the matter was taken in civil suit before the Civil Court the following prayer was made:--- "(a). To declare that the notice dated 16-11-2005 issued from the office of the defendant in the name of the plaintiff is mala fide against the law and 100% enhancement in rent, by one stroke of pen is illegal.
12. (b). To grant injunction and restrain the defendant, his representative or representatives, employees, attorney(s), agent or agents, person or persons who acting on behalf of the defendant not to dispossess the plaintiff from his Shop No.13 illegally/forcibly without due process of law."
13. ' During pendency of the suit application under Order VII, rule 11, C.P.C. Was moved on behalf of the present respondent No.1 for rejection of the plaint on the ground that remedy allegedly claimed by the plaintiff is available under a special law on enhancement of rent of the suit property-and bar existed in the way of Civil Litigation under Central Government Land and Buildings (Recovery of Possession) Ordinance, 1965. Learned Appellate Court referred to section 10 of the Ordinance of 1965 and also to sections 3, 4 and 5 of that Ordinance and rejected this grounds under the provisions of Ordinance 1965. However, it accepted the ground under the provisions of Cantonments Rent Restriction Act, 1963 and observed that the tenants had alternate remedy under the Cantonments Rent Restriction Act, 1963 and therefore suit was held as barred under that law.
14. ' Learned Appellate Court did not take into consideration provisions of section 3 of Cantonments Rent Restriction Act, 1963. The said section 3 is in the following words:--- "S.
3. Act not to apply to certain buildings.--- Nothing contained in this Act shall apply to--
(a) any evacuee property as defined in the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957); and
(b) any property owned by the Central Government, any Provincial Government, Railways, Port Trust or Cantonment Board and property owned, managed or controlled by any other local authority under the administrative control of the Central Government or of any Provincial Government."
15. ' Therefore, since the property in question is owned by the Government of Pakistan and the Act of 1963 is not application. To the premises in question, the tenants could not avail any remedy under that Act. However, as far as the respondents are concerned, they could not have lost sight of subsection (11) of section 17, which is in the following words:--- "(11) Notwithstanding any thing contained in this Act or elsewhere, - the Central Government or the Provincial Government, Railway, a Port Trust, a Cantonment Board or any other local authority may also apply to the Controller to seek eviction of the tenant from its building whether owned, hired or requisitioned, in the event of non-payment of rent within the period hereinbefore prescribed or for infringement 'of any of the terms of possession or occupation."
16. ' A reading of the above two provision i.e. Section 3 and subsection (11) of section 17, clearly indicates the position in law to be that except to the extent of subsection (11) of section 17, the provisions of the Cantonments Rent Restriction Act, 1963 are not applicable to a building or premises owned by the Federal Government or other authorities named in section 3 of Act of 1963.
17. The tenant of such building could not have recourse to any proceeding under the Act of 1963.
18. However, that does not mean that the authority which owned has an unfettered licence. If it seeks eviction on ground of non-payment of rent of for infringement of any of the terms of possession or occupation, it has to move the concerned Rent Controller under subsection (11) of section 17.
19. Without resorting to such procedure eviction of tenant on ground of default would be without lawful authority and of no legal effect. Under Ordinance of 1965, section 10 bars jurisdiction of Civil Court from passing an order in any suit or proceeding granting temporary or interim injunction restraining Central Government or any officer authorized by it from taking possession of any land or building under that Ordinance. All that is barred under that Section is a Temporary Injunction or interim injunction. A perpetual injunction or declaration is certainly not barred. As I have quoted above, the suit filed by the present petitioner was for Declaration and thereafter injunction and both these were not barred. The observation of the Appellate Court below that he had remedy under the Rent Restriction Act, 1963 was therefore, misconceived. No such remedy is available to the tenant/petitioner.
20. ' Moment petitioner's application was dismissed by the Rent Controller on 18 November, 2009 the petitioners were forcibly evicted from their shops. This was done without following procedure prescribed under subsection (11) of section 17 of Cantonments Rent Restriction Act, 1963. Petitioner might have been, in our opinion, wrong in approaching the Rent Controller because Rent Controller did not have the jurisdiction and therefore, rightly dismissed the applications filed by the petitioners. However, dismissal of that application did not give licence to the respondent to dispossess petitioners and take over the premises. If the respondents feel that petitioners have committed default in payment of rent or has violated any other condition or occupation they were at liberty to move concerned Rent Controller and obtain an order of eviction. On the other hand if they needed the building for their own bona fide use they should have availed due process of law.
21. This was not done. Consequently these writ petitions are accepted. The respondents are directed to put the petitioners in occupation of their respective shops within 30 days of the date of this order. However, if respondents feel that petitioners have committed default in payment of rent or have violated or infringed any of the terms of possession or occupation the respondents are at liberty to move the concerned Rent Controller under subsection (11) of section 17 and if the respondents feel they did need premises for their bona fide purpose they may do so after following process in accordance with law. On the other hand if respondents feel that monthly rent needs to be enhanced, they may serve notice on the petitioner and thereafter pass a speaking order.