' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against order dated 7-10-1978 passed by the Rent Controller, Faisalabad and judgment dated 23-12-1980 delivered by the Additional District Judge, Faisalabad.
2. The facts necessary for the purpose of this petition, briefly stated, are that the petitioner and respondents Nos. 4 to 7 obtained on lease land measuring 6 Kanals and 8 Marlas (34' x 209') comprising Killa No, 16/1/1, Square No, 4/67, situate in Chak No, 224, Abadi Haji Mehr Hakam Din, Faisalabad from Nazir Ahmad, the predecessor-in-interest of respondents Nos. 1 to 3. The lease was for a period of 15 years commencing 1-5-1955 and ending 30-4-1970. The rent fixed was Rs, 1,500 per annum.
' According to the averments in the lease deed the land described above was obtained by the petitioner for establishing a Calendering and Finishing Mills. It is the admitted position that the building on the plot in dispute was constructed by the lessees and the machinery was also installed therein by them.
' After the demise of Nazir Ahmad afore-mentioned the lessees started making payment of the rent/lease money to the successors-in-interest. Namely respondents Nos. 1 to 3.
' The said respondents, however, on 6-6-1975 filed an ejectment petition before the Rent Controller, Faisalabad against the petitioner and respondents Nos. 4 to 7 seeking their eviction on a number of grounds.
' The ejectment petition was resisted by the petitioner and on the divergent pleadings of the parties 10 issues, including that of relief, were framed by the Rent Controller.
' The learned Rent Controller, by his order dated 7-10-1978, accepted the ejectment petition of respondents Nos. 1 to 3 and ordered eviction of the petitioner etc. From the land in dispute. He, however, gave them three months time for removal of Malba and machinery.
' Feeling dissatisfied the petitioner preferred an appeal to the learned Additional District Judge, Faisalabad against the order of the learned Rent Controller. The learned Additional District Judge, Faisalabad, by his judgment dated 23-12-1980 dismissed the appeal of the petitioner. Hence the present ..2onstitutional petition.
3. The learned counsel for the petitioner only contended that the land in dispute having been admittedly leased to the petitioner for the purpose of establishing a factory would not fall within the purview of section 2(f) of the W. P. Urban Rent Restriction Ordinance (VI of 1959), that the learned Rent Controller had no jurisdiction to entertain the ejectment petition and therefore his order as also judgment of the learned Additional District Judge, Faisalabad are without lawful authority. He referred to the varisous clauses of the lease-deed to show that the land had in fact been let out for setting up a factory. In support of his contention that such a parcel of land would not fall within the purview of section 2(f) ibid the learned counsel relied on Messrs Rehman Cotton Factory v. Messrs Nichimen Co. Ltd. Karachi (1), which decision was upheld by the Supreme Court of Pakistan vide Messrs Rehman Coton Factory v. Messrs Nichimen Co. Ltd. (formerly Messrs Japan Cotton and General Trading Co. Ltd.), Karachi (2).
4. On the contrary the learned counsel for the contesting respondents raised the following contentions:-
(i) That the plea now being raised before this Court that the property in dispute did not fall within the purview of section 2(f) of the W. P. Urban Rent Restriction Ordinance was never raised before any of the Courts below and, therefore, cannot be allowed to be taken for the first time in the constitutional jurisdiction of this Court;
(ii) that the petitioner having submitted to the jurisdiction of the Rent Controller and having not raised any objection thereto before him or for that matter in appeal before the learned Additional District Judge cannot be allowed to object to the jurisdiction when the decision has been given against him;
(iii) that decisions of the Courts below on issues involved have been given on due appreciation of the material before them and, therefore, the same are not open to question in the constitutional jurisdiction.
' The learned counsel in the same context also contended that even if decisions of the Courts below on the disputed questions of fact had been erroneous those would not be liable ' to be questioned in the jurisdiction of this Court under Article 199 of the Constitution; and
(iv) that the lease in question is admittedly of a plot of land and was not for an industrial unit. It was urged that in order to take a property out of the purview of the W. P. Urban Rent Restriction Ordinance it has to be shown that the property in question was an industrial unit at the time of lease and has been leased out as such. He submitted that the lease being of a plot of land on which the construction of a factory and installation of machinery has been admittedly made by the petitioner himself the property remained within the ambit of the W. P. Urban Rent Restriction Ordinance and thus the jurisdiction of the Rent Controller pertaining thereto could not be ousted.
Reliance in support of this contention was placed on Syed Amjad Ali Shah v. Lqbal Ahmad Farooqi reported as PLD 1983 Lab.
674.
5. Having given consideration to the controversy involved I am of the view that the contention raised on behalf of the petitioner has
(1) PLD 1970 Lab. 455 (2) PLD 1976 SC 781. no force. Section 2(f) of the W. P. Urban Rent Restriction Ordinance, 1959, reads as under:- " 'rented land' means any land let separately for the purpose of being used principally for business or trade."
The phrase "business" is not uncommon in the legal parlance Hills (Patents) v. University College Hospital Board of Governors (1), it was! Held that. "business includes the activity of running a hospital."
' Again, in Senairan Doongar-Mall v. The Commissioner of Income-tax Assam (2), at page 1581 of the report, Hidayatullah, J. Observed as under:- "(7) From the admitted facts which have been summarised above, it is clear that the business of the appellants as tea-growers and tea-manufacturers had come to a stop. The word 'business' is not defined exhaustively in the Income-tax Act, but it has been held both by this Court and the Judicial Committee to denote an activity with the object of earning profit. To say that a business is being carried on, means no more than that profit is to be earned by a process of production. The business of a tea-grower and manufacturer is not merely to grow tea plants but to collect tea leaves and render them fit for sale. During the years in question, the appellants were tending their tea garden to preserve the plants, but this activity cannot be described as a continuation of the business, which had come to an end for the time being. It would have hardly made any difference to the carrying on of business, if instead of the factories and buildings, the tea garden was requisitioned and occupied, because in that event also, the business would have come to a standstill."
(Underlining above is mine)
The word "business" to me appears to be of much wider scope and all encompassing and comprehensive enough to include professions or vocations or business activities, be those of trade or of industry, This word as used in section 2(f) of the W. P. Urban Rent Restriction Ordinance (VI of 1959) along with the word "trade" appears to have been used to mean something more than trade.
"Business" involves three elements viz.
(i) occupation of time, attention and labour;
(ii) incurring of liabilities to other persons ; and
(iii) the purpose of a livelihood or profit. From the above it of necessity follows that the phrase "business" would inter alia include the setting up of a factory/industrial unit on any plot of land taken on rent with the purpose of earning profit which would mean that a business is being carried on to earn profit by a process of production.
6. The lease-deed which has been placed on the record of the Court below as Exh. P. 1 clearly shows that the parcel of land in dispute had been obtained by the petitioner and others from the predecessor-in-interest of the contesting respondents as a plot of land and that subsequently the petitioner raised construction on the said plot and also installed some
(1) (1956) 1 Q B 90 (2) AIR 1961 SC 1579 *Mere in Italics] machinery therein for conducting the business of calendaring and finishing etc. Obviously for the purpose of- earning profit. This is also stipulated in the afore-mentioned lease-deed that in case of termination of the lease the petitioner shall remove his machinery and structure and deliver possession thereof as a plot. That being so, it cannot be said that the petitioner had obtained the lease of a factory, and thus there was no jurisdiction vested in the Rent Controller to entertain the ejectment petition for eviction of the petitioner from the premises in dispute. Applying the three criteria detailed in para. 5 above to the facts of the case in hand that the plot of land was obtained by the petitioner for setting up a factory for the purpose of earning profit therefrom the plot would squarely fall within the ambit of rented land as envisaged by section 2(f ) of the W. P. Urban Rent Restriction Ordinance (VI of 1959).
7. The judgments cited by the learned counsel for the petitioner PLD 1970 Lah. 455 and PLD 1976 SC 781 in no manner help the petitioner and are distinguishable on facts of the present case. In the said judgments it was held that the W. P. Urban Rent Restriction Ordinance (VI of 1959) did not apply generally to all sorts of properties and excluded from its operation factories equipped with machinery requisite for manufacturing process. It was also found in the said judgments that the factory was also not shown to be situate within the territorial limit of any local authority. In the case in hand it is not disputed that the property in dispute is situate within the municipal limits. It is also not disputed that the machinery etc. Was installed by the petitioner himself and the lease only pertained to a parcel of land.
8. It, therefore, emerges from the above discussion that in order to oust the jurisdiction of the Rent Controller and to take a property out of the purview of the W. P. Urban Rent Restriction Ordinance on the basis of the property being a factory it has to be established that at the time of lease it was an industrial unit/factory which was being leased out as such or that the same was out of the limits of an urban area. If the D property leased/rented as taken at the time of lease/renting out was one which fell within the definition of various properties mentioned in the W. P. Urban Rent Restriction Ordinance, 1959, the subsequent utilisation thereof for some other purpose would not operate so as to take the property out of the purview of the said Ordinance and for that matter create ouster of jurisdiction of the Rent Controller.
9. Another aspect of the matter is that it is the admitted position that the plea of ouster of jurisdiction was not taken before the learned Rent Controller in the written statement of the petitioner and also not raised before the learned Additional District Judge in appeal. The learned counsel for the petitioner has filed today the grounds of appeal before the Additional District Judge, Faisalabad and has very candidly stated that excepting para. 7 of the grounds of appeal there is no other ground which could be said to be the one taken for claiming ouster of jurisdiction.
Now para. 7 of the grounds of appeal in no manner can be construed to have raised the plea of ouster of jurisdiction of the Rent Controller or for that matter the property being not amenable to or within the purview of the Rent Restriction Ordinance. The said ground in fact is relatable to Issues Nos. 6-A and 6-B which cover a different controversy.
10. It is a well-established rule based on judicial precedent that 1E party must take the objection to jurisdiction before the forum whose order is being challenged and it would be disentitled from objecting to the jurisdiction of a Tribunal/Court in constitutional proceedings by its failure to object to such usurpation of jurisdiction or to raise the objection at the earliest opportunity before it.
Reference if any needed in this regard may usefully be made to Majid Ali Naqvi v. Additional District Judge and Ex-Officio Settlement and Rehabilitation Commissioner, Tharparker and another (1)
Sardar Muhammad Ayub v. Pakistan Secretary, Ministry of Resettlement and Rehabilitation, Rawalpindi and others (2) and Ghulam Mohi-ul-Din v. Chief Settlement Commissioner, Lahore and others (3).
11. It may, however, be pertinently observed that the above is not an absolute rule and there are some well-known exceprions to it also, for example where the defect of jurisdiction is apparent on the face of the record or was not known to the petitioner or where the failure to raise F. Such an objection is not so material or where the Court whose jurisdiction is being objected to was not properly constituted or the view of the Tribunal on such an objection was well-known having been expressed in a large number of cases so that even if this objection had been raised before it the Tribunal would not have given effect to the same.
The objection to the jurisdiction of the Rent Controller now raised by the petitioner not only does not fall within any exception but also fully attracts the application of the rule mentioned above. I have, therefore, no hesitation in holding that the petitioner having not raised the plea of ouster of jurisdiction of the Rent Controller before the two forums G below viz. The Rent Controller and the Additional District Judge, and having submitted to their jurisdiction and participated in the proceedings before them without any objection cannot now he followed to turn around and object to it before this Court in its constitutional jurisdiction when the decisions of the Courts below have gone against him.
12. In view of the foregoing discussion I find no merit in this petition which is accordingly dismissed with costs.
13. The learned counsel for the petitioner has, at this stage, made a request that the machinery of the petitioner has to be removed therefore he be given time for handing over the possession.
14. This request appears to be genuine and accordingly I allow one month's time to the petitioner to remove the machinery etc. And hand over the vacant possession of the plot to the respondents in accordance with the terms of the lease-deed.
' In case of failure of the petitioner to deliver the possession within the above-mentioned period of one month the contesting respondents may obtain possession through the process of law.
(1) 1970 SCMR 375 (2) 1969 SCMR 96
(3) PLD 1964 SC 829