1. ' MUHAMMAD AFZAL ZULLAH, J.-These two appeals through special leave of this Court are directed against judgments dated 19-2-1981 (in civil appeal No, 67/82) and 7-2-1982 (in Civil Appeal No, 84/82) whereby two separate Constitutional petitions, arising out of the orders of eviction passed against the two appellants therein by two different Additional Rent Controllers of Lahore Cantonment, under the Cantonment Rent Restriction Act, 1963, were dismissed.
2. ' The question of law requiring examination and noted in the leave granting order dated 19-4-19f'2 is as follows :- "That the notification appointing an Additional Executive Officer as an Additional Rent Controller under the Cantonment Rent Restriction Act, 1963, is in contravention of the provisions of section 6(2) of the said Act read with section 10 of the Cantonment Act, 1924, and, therefore, the order passed by the Additional Rent Controller was without lawful authority and the entire proceedings initiated before him and continued in appeal are nullity."
3. ' Learned counsel for the appellant when elaborating the a fire noted question submitted that section 10 of the Cantonment Act had envisaged the appointment of only one Executive Officer, therefore, even the possibility of there being an Additional Executive Officer is excluded. And the power of Rent Controller thus having been conferred on the so-called Additional Executive Officer by virtue of his office, which office did not exist in the eye of law, the said functionary could not legitimately exercise any power as Rent Controller.
4. ' Learned Deputy Attorney-General who appeared in pursuance of a notice issued earlier, argued that section 10 of the Cantonment Act does not prohibit the appointment of an Additional Executive Officer and according to him if there is no such prohibition it could not be argued that such a post could not be created. He sought support from other provisions of the Cantonment Act as also from the fact that the subject in question by virtue of fourth Schedule of the 1973 Constitution, falls within the executive authority of the federation. Hence the appointment of Additional Executive Officers was competently made. He also relied on section 19 of the General Clauses Act to contend that even if the Additional Executive Officer is treated as h deputy to the Executive Officer, the duties of the office having been specified, no difference would be made if a separate power for appointment of Additional Executive Officer cannot be spelled out from the Cantonment Act. In the alternative he contended that in any case as visualized by section 10 when read with the provisions of the General Clauses Act, whereunder plural can be read for singular, the law permits the appointment of more than one Executive Officers like E. O. No, I, E.
0. No, II, etc. For the same Cantonment. And the Additional Executive Officer in reality, is another Executive Officer. He also relied on Lt.-Col. Farzand All and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Lahore to contend that the appointment of the Additional Executive Officer under the Cantonment Act could not have been brought under challenge before the same officer acting in different capacity in a collateral proceedings, arising out of the application for eviction of a tenant.
5. ' Mr. Muhammad Nawaz Qasuri and Ch. Mushtaq Ahmad learned counsel for the respondents/landlords while adopting the argument of the learned' Deputy Attorney-General added (by Mr. Muhammad Nawaz Qasuri) that the phrase "a person" used in section 6 of the Cantonment Rent Restriction Act, 1963, is, as he put it, only for purpose of identification of the individual functionary and that if he is functioning as an Additional Executive Officer it would not be permissible for a party in the eviction proceedings t6 say that he is not "a person". The other arguments (by Ch. Mushtaq Ahmad) in this behalf was that prior to the appointment of the Additional Rent Controllers under section 6(2) of the Cantonment Rent Restriction Act, 1963, some individuals were known to be functioning as Additional Executive Officers and if they were also conferred the power of Rent Controller, they would all be covered by the definition of Controller in section 2 (d) of the Cantonment Rent Restriction Act, 1963. If, it was further argued, this definition fully covers the appointees in question there would be no need to examine the other questions raised in these matters.
6. The three most important and relevant provisions for purpose of determining the central issue are section 2(d) and section 6(2) of the Cantonmen A Rent Restriction. Act, 1963, and section 10 of the Cantonments Act, 1924. They are reproduced below "Section 2(d). -"Controller" means a Controller of Rents appointed by the Federal Government under subsection (1) of section 6 and includes an Additional Controller of Rents appointed under subsection (2) of that section ; ' Section 6(1) -
(2) The Federal Government may also, by notification in the official Gazette, appoint a person to be the Additional Controller of Rents for one or more cantonments.
7. Section 10, The Cantonment Act, 1924.
8. Cantonment Board and Executive Officer.-For every cantonment there shall be a Cantonment Board and an Executive Officer."
9. ' It will be appropriate further to reproduce the notification whereunder Additional Rent Controllers for Lahore were appointed. It reads :-1 "In exercise of the powers conferred by subsection (2) of section 6 of the Cantonment Rent Restriction Act, 1963 (XI of 1963), the Federal Government is pleased to appoint the Additional Executive Officers of Lahore, Multan and Karachi Cantonments, to be the Additional Controllers of Rent for their respective Cantonments."
10. ' (Rawalpindi, issued by Ministry of Defence on 25-8-1976,. No, 25/15/G/ AD(C)/76/3431/D-12/M L & C/76).
11. ' A copy of Office Memorandum, No, 101/53/G/D-5 (B)/65/5304, dated 11-7-1967, issued by the Ministry of Defence, Government of Pakistan, shows that the President had sanctioned the creation of a post of Additional Executive Officer, for Rawalpindi. Cantonment, in Class I (senior scale) in the cadre of Pakistan Military Lands and Cantonments Service for a period of one year in the first instance. It has been explained that although the document regarding creation of similar posts for Lahore was not readily available, the position in that behalf is not in any way different.
12. ' Although it would not be necessary to examine in detail all the submissions made from both the sides as the short question involved in this matter can be resolved on the interpretation of section 2(d) and section 6 (21 of the Cantonment Rent Restriction Act, 1963, it would be fair to the learned counsel to note, at this stage, the case law cited at the bar.
13. ' In Hafeez-ur-Rehman v. The Additional Rent Controller, Lahore Cana% and others , it was held that by virtue of section 15 of the General Clauses Act, the appointment of an Additional Controller of Rents could be made of "a person" by name as also by virtue of the office of such person. It was also held that the appointment of an Additional Executive Officer under the Cantonment Act, 1924, cannot be brought under challenge in a proceeding under the Cantonment Rent. Restriction Act, 1963. Reliance was placed in this behalf on Farzand All v. Province of West Pakistan. Although some observations were made in this case with regard to the nature of the office held by an Additional Executive Officer, it appears, that on account of the implied bar to the challenge in collateral proceeding assumed and noted above, no final determination was reached on this issue. The case, Abdus Salam Khan v. Salim Uddin Ahmad Siddiqi and others , dealt with the appointment of an Executive Officer as a Controller of Rent under subsection (1) of section 6 and it was held that such an officer was competent to function as ex officio 'Controller'. The question of appointment of an Additional Controller did not arise in this case. Farzand Ali v. Province of West Pakistan and Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner u.Id others contain elaborate discussion on the question of challenge to a functionary in collateral proceedings. In the former case when dealing with the constitutionality of laws passed by legislature and the Court's power in that behalf, a question had arisen whether in that context the authority of certain members of the legislature to sit and participate in the proceedings thereof could be gone into and it was held that members concerned could not be unseated until they were held to be disqualified. And if they were not mere intruders, then until they were held disqualified by the competent Court they could not be prevented from participating in the process of the law making. Reliance in this behalf was also placed on the principle that in collateral proceedings the acts of de facto functionaries could not be invalidated, but must be treated as being equivalent to or as good as the acts of de jure members. In the second case of RaunA Ali, the same principle was highlighted but in a different context. The Court had refused to accept as law, the proposition that in spite of the fact that the law gave exclusive jurisdiction to one set of officers or authorities to decide a question finally, yet the finality attached by law to such a decision could be taken away by another officer or authority of a subordinate or even of equal status, indirectly in the guise of implementing the orders which had already received finality. A case from a foreign jurisdiction The Queen v. The Commissioners for Special Purposes of the Income-tax was noted and its ratio was determined and adopted that "where finality is given to the decision of a certain body which has also the jurisdiction to decide finally facts upon which its own jurisdiction is founded, that decision cannot be called in question in2 3 4 5 any other collateral proceeding by another tribunal or body of limited jurisdiction." But none of these rulings would be directly relevant for the present discussion because it was not in collateral proceedings that the authority of the Additional Controller of Rent was challenged to function as such controller. The more relevant ruling in this behalf is that in the case of Barkat All and others v.
14. Bashir Ahmad and others . Here the authority of Member, Board of Revenue was challenged in the same proceeding in which he had exercised the authority. No such bar as that relatable to collateral proceedings was deemed as available against the party challenging the said authority. '
15. However, as would be presently noted these questions do not directly arise in this case.
16. ' The next set of cases include and arise from ruling of this Court in Khadim Mohy-ud-Din and another v. Ch. Rehmat Ali Nagra and another . Amongst other questions, a controversy had arisen whether under the unamended section 15 of West Pakistan Urban Rent Restriction Ordinance, 1959, the District Judge when appointed as appellate authority functioned as a persona designata. It was held that phrase "to appoint such District Judges as it thinks fit" empowered the, Provincial Government to appoint any District Judge, it deemed fit to be the appellate authority. If, however, the legislature really wanted that. The District Judges should hear the appeal as the Presiding Officer of the principal Court in the District, it could have easily said so. The fact that the Provincial Government is given power to select for this purpose "such District Judges as it thinks fit" indicates that the intention was not to confer appellate power on him as the Presiding Officer of the principal Court in a District." The law was subsequently amended so as to confer power on the District Judges as such. That is why as held by a Division Bench in Abdul Haq v. Saif-ur-Rehman and others , a District Judge exercising appellate power under section 15(1) after its amendment, acts in his ordinary judicial capacity as Presiding Officer of principal Court in District and not as a "persona designata". To similar effect is Abdul Aziz v. Syed Arif Ali and others .
17. ' The rule laid down in case of Khadim Mohy-ud-Din can be of some assistance in this case. The phrase, relevant and interpreted therein, namely such District Judges as it thinks fit" can be compared with the expression "appoint a Person to be the Additional Controller of Rents" used in section 6(2) of the Cantonment Rent Restriction Act, 1963. To draw the analogy, such an appointment if made of a functionary who is already acting as an Additional Executive Officer, would not be relatable to his competence and or authority as an Additional Executive Officer but (as a mere persona designata) for the purpose to pick out, a person who is to function as an Additional Controller of Rent. Viewed in this light the two relevant provisions, namely, sections 2(d) and 6(2) of the Cantonment Rent Restriction Act, would produce the result that any person could he appointed and designated by the Federal Government as an Additional Controller of Rent. They appointed, through a properly issued notification, a person not by his name but by his designation as such Additional Controller of Rent. In this exercise the qualification, authority or competence of such person as Additional Executive Officer under the Cantonment Act was not a relevant element, under the Cantonment Rent Restriction Act, so as to be gone into. Once the act of appointment by designation was complete, the person concerned would be clothed with full power and authority of a "controller" as defined in section 2(d); because whosoever thus stood appointed would be a controller under the relevant sub-clause (d) of section 2, unless of course there is anything repugnant in the subject or context. Nothing in that behalf was presented at the bar nor has it been discoverad otherwise. We, therefore, hold that notwithstanding any defect in the appointment or qualification of the concerned Additional Executive Officers, they having been validly designated as Additional Controllers of Rent and could-exercise the power and jurisdiction accordingly under the.
18. Cantonment Rent Restriction Act, 1963. {{FOOTNOTE}} ' Thus there being no force in the contention raised by the learned counsel for the appellants, these appeals are liable to be dismissed. He, however tried to argue one of the appeals, namely, C. A.
19. 84/82 on merits. Learned counsel for the respondents therein pointed out that at the time of grant6 7 8 9 of leave to appeal, it was made absolutely clear that leave was granted on the afore-considered question-regarding appointment of Additional Controller of Rent, and that is why the word only was used in the leave granting order, in that case. Learned counsel for the appellants without refuting this assertion submitted that on the analogy of those cases where leave was specifically refused on a certain point and thereafter when hearing the appeal the same point was considered, here also, he may be permitted to raise the point C excluded at the time leave was granted. We do not consider this as an exceptional case so as to hear the learned counsel on a point with regard to which leave was refused. No other point has been urged. These appeals fail and are accordingly dismissed. There shall be, however, no order as to costs. PLD 1970 SC 98 1981 CLC 185 PLD 1979 Lah. 85 PLD 1973 SC 236 L R (1888) 21 Q B D 313 PLD 1980 SC 189 PLD 1965 SC 459 PLD 1968 Lab. 478 PLD 1978 Lah. 441