SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the tenants, who are the appellants, to examine whether the High Court, Peshawar, while dismissing the constitutional petition filed by the appellants, should not have inquired into greater depth the lawful authority of the orders impugned in the writ petition as required and indicated by this Court in the case of Akram and another v.
Member Board of Revenue and others (1984 SCM R 1000).
2. On the 26th November, 1979, the respondent A.I Rehman instituted a revenue suit for the recovery of Rs.2,400, the rent due; for the previous three years and for claiming the rent at the rate of Rs.2000 per Jareeb after expiry of the lease in 1976. Apart from the default alleged, it was contended that on the expiry of the lease period the tenants were liable to ejectment and further that the tenant Qadar Gul had sub-let the tenancy and he was liable to eviction on account thereof. If was also alleged that the tenant had damaged the property and it was required by the owner himself for his personal use and cultivation. The appellants contested the claim and the following 12 issues were framed on the pleadings of the parties:-
(1) Whether the plaintiff has got any cause of action? OPP
(2) Whether the suit is bad in its present form? OPD
(3) Whether the suit is res judicata? OPD
(4) Whether the suit land is less on the spot? OPD
(5) Whether the defendant has improved the suit land? If so, how much and its effect? OPD
(6) Whether the defendant has paid Rs.800 in advance to the plaintiff? OPD.
(7) Whether the defendant No.1 is defaulter and liable to be ejected from the suit land? OPP
(8) Whether the defendant No.1 has subletted some portion of the suit land to the defendant No.2?
OPP
(9) Whether defendant has cut down the trees from the suit land and has damaged the suit land?
OPP
(10) Whether the suit land is required for personal use by the plaintiff? OPP (1l) Whether the plaintiff is entitled for the enhanced rate? OPP
(12) Relief?
3. The Assistant Collector I-Grade decided the matter on 28-2-1982 holding that the plaintiff had a cause of action; that it was not bad in form; that it was not barred by res judicata; that the land was not less than what was alleged by the plaintiff. As regards the improvements, the Collector held that "though the defendant is not entitled to any cost of improvement but still I allow an amount of Rs.977 as assessed by the Commissioner. "
It was also held that Rs.800 were held in advance by the landlord which was available for adjustment towards rent due. The tenants were held not to be defaulters. No subletting was held established. The damage to the property also remained unproved. The ground of personal requirement was also negatived. As regards the controversial issue No.1l, the Assistant Collector held as follows: "As lease period has expired, therefore, enhancement of rent is justified keeping in view the increase in the value of agricultural commodities especially tomatoes for the production of which Jabban area has got singular importance. Thus enhanced lump sum annual rent of Rs.5,000 is allowed to the plaintiff. The rent is to be effective from 30-3-1978 onward for a period of four years and the rent for the intervening years from 30-3-1977 to 30-3-1978 is allowed on the old rate. Issue is decided accordingly.
As sequal to my above discussion the defendants are not defaulters as no new rent was agreed upon between the parties and the defendants have deposited the rent at the old rate well in time.
The defendants are also not liable to ejectment."
4. Both the parries appealed to the Collector, Malakand against the order of the Assistant Collector, Malakand just reproduced. The operative part of the order of the Collector, Malakand reads as hereunder:- "Both the appeals decided and order of the lower Court dated 28-2-1982 modified to this extent that the enhancement granted to the appellant /plaintiff is not based on solid grounds on the prevailing market rate and grant of four years extension to the tenant is also not based on legal grounds. Furthermore the tenant is entitled to compensation and this issue has also not been clarified in the order of the lower court, clarification of which is must. The point of ejectment of respondents/ defendants cannot be considered without settlement of improvement question."
Against this order, both the parties went in revision to Additional Commissioner, Malakand. The operative part of the order passed by the Additional Commissioner is as hereunder:- "The order passed by the learned Collector on 15-4-1982 is maintained with this much modification that the rent is fixed Rs.2,000 per annum per Jareeb for the total area of the land under the cultivation tenancy of Qadar Gul son of Saddar the actual lessee. The rent of Rs.2,000 per Jareeb per annum comes to the total of Rs.10,000 if the total land in tenancy with Qadar Gul is five Jareeb as previously admitted in the original first plaint instituted by the plaintiff in the Court of Assistant Collector 1st Grade Dargai against Qadar Gul. The fixing up of the enhanced rent is based on the report of Commissioner placed on the file wherein the productive value of the land in dispute is shown as Rs.5,000 to Rs.6,000 per Jareeb per annum because the land is tomatoes productive area. So on these basis keeping in view the share of the landlord and the tenant the enhanced rent of Rs.2000 per Jareeb per annum shall be liable to be paid by the tenant to the landlord for the current year beginning from Rabi 1982 and ends at Rabi 1983 while the old rate of lease shall be effective from 30-3-1978 to Rabi 1982. As far the question of ejectment on the ground of subletting the land to other person is concerned, it is not proved on record because it is clear from the perusal of the file that the actual lessee was Saddar, the father of the 2nd respondent Qadar Gul who having residing in one joint family, being father and of old age, has naturally entrusted the land to his son Qadar Gul which is done in this case cannot be defined as subletting. Hence the ejectment shall not be justified."
5. Both the parties then approached the Board of Revenue and the operative part of the order of the Member Board of Revenue is as hereunder:- "Parties with their counsel present. Arguments heard. Counsel for the petitioners advanced no cogent reason to interfere with concurrent findings of the Courts below. He failed to make out any case of illegality or material irregularity calling for interference of the concurrent findings of the Courts below. Both the Revision Petitions of the petitioners fail and dismissed with no order as to costs."
6. This order of the Member Board of Revenue was challenged by the tenants by a constitutional petition and the very first ground taken in the constitutional petition was that: "the orders and judgment of respondents Nos. 2, 4, 5 to the extent that they have enhanced rent of the lease land by manifold are without lawful authority and therefore of no legal effect."
The learned Judge in the High Court disposed of the constitutional petition in limine holding as follows:- "We have heard the learned counsel and considered his arguments. The grounds taken by the learned counsel against the enhancement of rent of the suit land are not sound because the prevailing market rates of rent of culturable land are skyhigh and if the petitioner is not agreed to pay the rent at the rate of Rs.10,000 per annum for the leased-disputed land, he may leave the land to its owner respondent No.1 and this Court under its extraordinary writ jurisdiction would not interfere in such like matters."
7. Mr. Zahoor Qureshi, Advocate, the learned counsel for the appellants contended that unlike the Punjab Tenancy Act, there was no power possessed by the revenue Courts to enhance the rent in a case of a contractual tenancy for a fixed period and further in any case the enhancement could not be ordered without taking care of the amount adjudged due to the tenant as cost of improvement. For this reliance has been placed on sections 40 and 42 of N.-W.F.P.Tenancy Act, 1950, which prohibit enhancement of rent as well as ejectment till he has received compensation for improvement.
Hafiz S.A. Rehman, Advocate, the learned counsel for the respondents/ landlords, on the other hand, contended on the strength of section 42 of the N.-W.F.P. Tenancy Act, which speaks of a claim by the landlord to enhancement of the rent and the power of the Court to decree the ejectment or the enhancement of his rent, that such a power was possessed and that it was exercised.
8. It is significant that none of the authorities or Courts have, at any stage, referred to any law for adjudging the relief claimed or for passing the orders which have been passed in the case. For example, section 23 of the N.-W.F.P. Tenancy Act provides for grounds for ejectment of tenant for a fixed term. On the expiration of the term of contractual tenancy, the tenant is liable to eviction and during the course of such a tenancy if he commits the specified acts enumerated in that section.
All the authorities have upheld that the appellants as tenants are not liable to eviction. By reference to what law and for what reasons is not clear. If it is to treat them as tenants under the Martial Law Regulations, which afford protection generally to the tenants, then reference should have been made and the status of a lessee as that of a tenant under the Martial Law Regulations should have first been established.
9. As regards the enhancement of rent, there is a provision in section 13 when additional area is given or is obtained by the tenant; enhancement can take place by intervention of the revenue Court. Section 19 also provides for a situation where the revenue Court can fix the rent which may be fair and equitable, but that relates to a specific situation not arising in this case.
10. If the revenue Courts wanted to derive an authority for refixing of the lease money, the appropriate provision on which reliance was placed for the purpose should have been referred to.
Even if the negative words used in the Statute were to be the foundation for granting the relief or for the exercise of a power not explicitly conferred, these provisions should have been examined. For example, in sub-section (2) of section 24, it is provided: "No landlord in the case of a tenant, who does not hold for a fixed term under a contract or a decree or order of competent authority, shall enhance the rent during the period that he is not entitled to eject the tenant under the last preceding subsection. "
The prohibition contained in section 40 is that a tenant, who has made an improvement of his tenancy in accordance with this Act, shall not be ejected and the rent payable by him shall not be enhanced until he has received compensation for improvement.
11. The deficiency as pointed out in the orders of the authorities and the Courts, prompts us to declare their orders as without lawful authority and of no legal effect. The constitutional petition is allowed. The proceedings shall be sent back to the Member Board of Revenue and the revision petitions before him shall be deemed pending requiring decision by reference to the law applicable to the reliefs claimed and granted particularly:
(i) refusal to eject a tenant for a fixed period after expiry of the stipulated period (section 23),
(ii) denial of compensation for improvements adjudged due to the tenant while enhancing the rent (section 40) and
(iii) the source of power of enhancement of rent appropriated and exercise by the revenue Courts in the case.
There shall be no order as to costs.