' This is a petition under Article 199 of the Constitution by Caltex (Pakistan) Limited, seeking to have it declared that the order of the learned Rent Controller, dated 28-10-1986, and the order of the learned Additional District Judge, Bahawalpur, as appellate Authority, under the Punjab Urban Rent Restriction Ordinance, 1959, confirming the Rent Controller's order dated 28-10-1986, were without lawful authority and of no legal effect.
2. The facts, upon which the orders of the learned Rent Controller and the learned appellate Authority had proceeded, arc not in dispute: By means of a registered deed of lease dated 2-8- 1971, the petitioner obtained the lease of land bearing Khasra Nos. 9-Alf, 9-Bai, 9-Jim, 12-Alf and 12- Jim of rectangle No, 128/7 for a period of 20 years at the rate of Rs, 450 per mensem. From the petitioner the respondent, Mian Ashiq Muhammad Fair (hereinafter to be referred to as the landlord), received a sum of Rs, 10,800 by way of advance.
3. On 17-9-1981, the landlord made an application under section 4 of the Punjab Urban Rent Restriction Ordinance, 1959 (to he called the Ordinance), praying for the fixation of fair rent of the leased property. It was prayed that the fair rent of the land be fixed at Rs, 1,000 per mensem. The petitioner opposed the application by filing a written statement, among others, on two preliminary objections; (i) that "the suit land is situated in Mauza (Sheikh Roshan) which is rural area and thus it is not an urban immovable property so this Court has no jurisdiction to hear this case as the W.P.U.R.R. Ordinance, 1979 is not applicable in the present case to the suit land, and (ii) that "the petitioner is legally estopped by his act and conduct (under the written agreement of lease) from filing the present petition."
4. Five issues reflecting the parties' pleadings were formulated and tried; three of them which are relevant to the controversy herein raised are issues No, 2, 3 and 4; they are:-- ' Issue No, 2: ' Whether the premises in question does not attract the mischief of W.P.U.R.R. Ordinance? OPR.
' Issue No, 3: ' Whether the Court has no territorial jurisdiction to entertain the petition in view of objection No, 3 of written reply? OPR.
' Issue No, 4: ' Whether the petitioner is estopped on account of his conduct to bring instant petition? OPR.
5. The learned Rent Controller, by his judgment dated 28-10-1986, held on issue No, 2, that the petitioner had agreed by the deed of lease "to observe and perform all municipal rules and regulations pertaining to the suit property. In case, the suit property was not situated within the limits of municipal committee Ahmad Fur East, what was the reasoning to insert such a provision in Exh. P-1". On issue No, 3, there was no evidence. As to issue No, 4, the learned Rent Controller was content to observe that the landlord had "a legal right to claim enhanced rent once in three years at the rate of 25% and there is no estoppel against law".
6. The admitted position is that at the date of the institution of the application under section 4 of the Ordinance, viz. 17-9-1981, the leased premises, subject-matter of the application, was situated outside the municipal limits of Ahmad Pur East and that 14 was by a Notification issued by the Commissioner, Bahawalpur Division (to be referred to as the Notification) that "in exercise of the powers conferred by section 6(5) of the Punjab Local Government Ordinance, 1979, delegated to him vide Government of the Punjab, Local Government and Rural Development Department Notification No, S.I11/6-46-81, dated 24th August, 1981" that the limits of the municipal committee Ahmadpur East were w.e.f, 1st July, 1982 extended to the area specified in the schedule appended thereto. The area so extended included Khasra No, "128/7, partly". It will be fair to the learned Rent Controller to state that though he did not mention the Notification in his discussion under the relevant issue, namely, issue No, 2, yet he mentioned that Notification in his discussion under issues Nos. 5 and 6, issue No,5 being whether the landlord "is entitled to get rent at enhanced rate, if so, then what is the fair rent and from which date the petitioner is entitled to get it". In' he view of the learned Rent Controller, "it is apparent that the alleged patrol pump has been included in'urban property since 1-7-1982, so the petitioner can obtain excessive rent from 1-7-1982 not from the date of rent deed, according to which the rate of rent was fixed at Rs, 450 per month". He, therefore, proceeded to allow "excessive rent at the rate of 25% from 1-7-1982 to 30-6-1985 which comes out Rs, 562.50 and from 1-7-1985 to onward at the rate of Rs, 703.12 which will remain in force upto 1-7- 1988 and then with similar enhancement". The petitioner was directed "to pay the difference of rent of the said period".
6-A. The learned Additional District Judge referred to the Notification and observed that rectangle No, 128/7 partly "was included in the limits of Municipal Committee, Ahmadpur East'; that according to the record of rights for the year 1980-81, the landlord was the owner of the leased property and held that the petitioner had not led evidence to show that" the part of rectangle No, 128/7 shown to have been included in the limits of Municipal Committee did not include the property on which the petrol pump in question was installed, despite the fact that onus of issue was on him". Dealing with the contention that the petitioner "was disentitled to enhancement in the rent in view of the stipulations contained in Exh. P-1" the learned Additional District Judge held, relying upon section 5 of the Ordinance, that "where the rent of any building has been determined by an agreement between the landlord and tenant, no increase in the fair rent shall be permissible within a period of three years from the date of the agreement. In other words, in the present case, the increase in the rent was not permissible only within a period of three years from the date of the agreement i.e, 2- 8-1971". As the present application had been instituted on 26-7-1981 "long after the expiry of the aforesaid 3 years stipulated period", the landlord was, so held the learned Additional District Judge, "not precluded from claiming the enhancement in the rent".
7. The object of enacting the Ordinance, as stated in the preamble, was "to restrict the increase of rent of certain premises within the limits of urban areas and the eviction of tenants therefrom in the Province of Punjab". Section 1 of the Ordinance says and says expressly that "it extends to all the urban areas in the Punjab except the Tribal areas". The expression "urban area is defined in section 2, clause (j) to mean "any area administered by a municipal corporation, a municipality, a municipal committee, a town committee or a notified area committee".
8. Section 4 of the Ordinance empowers the Rent Controller, on an application by the tenant or landlord of a building or rented land, to "fix fair rent for such building or rented land after holding such enquiry as the Controller thinks fit". It enumerates by its subsection (2), the factors which the Rent Controller has to take into consideration in fixing the fair rent. Subsection (3) of that section provides that "the fair rent fixed under this section shall be payable by the tenant from a date to he fixed by the Controller not earlier than the date of filing he application" and by its subsection (4), it enacts that "if the fair rent fixed under subsection (2) exceeds the rent being paid by the tenant on the date of the filing of the application under this section, the maximum increase of rent payable by the rent shall not be more than 25% of the rent already paid by him."
9. Section 5, subsection (1) of the Ordinance reads: "When the fair rent of a building or rented land has been fixed under section 4, or where the rent of any building or rented land has been determined by an agreement between the landlord and the tenant, no further increase in such fair rent shall, during the continuance of tenancy be permissible within a period of three years from the date fixed by the Controller under subsection (3) of section 4, or from the date of the agreement, as the case may he, except in cases where some addition, improvement or alteration has been carried out at the landlord's expense, and at the request of the tenant."
10. Learned counsel for the petitioner argued that as at the date of the institution of the application under section 4, the leased property was not within the municipal limits and hence not an urban area, the learned Rent Controller had no jurisdiction to entertain the application or to hold any inquiry; according to him, therefore, the judgments of the learned Rent Controller and the learned Additional District Judge were without jurisdiction. He further argued that even if the Notification had the effect of giving jurisdiction to the Rent Controller, it had to be shown clearly that the leased property had been included within the municipal limits by the Notification and as this was not done, the learned Rent Controller was wrong in proceeding on the basis that the leased property was within the municipal limits. He also contended that the learned Rent Controller was wrong in law in allowing 25% of the agreed rent of Rs, 450 without first determining the fair rent and in any case, he had no jurisdiction to fix one rate of rent for the first three years and different rates of rent for the subsequent years.
11. Learned counsel for the landlord advanced the view that the leased property had been included in the municipal limits by the Notification and that had the effect of giving jurisdiction to the Rent Controller. He strongly relied upon Haji Ibrahim v. S. Rchmatullah 1985 SCM R 241 for his contention that the Rent Controller was competent to take into account the subsequent event of the Notification extending the municipal limits to the leased property and to do complete justice between the parties and to mould relief according to altered circumstances in the interest of justice. He was also of the view that it was within the powers of the learned Rent Controller to allow the increase in rent as he did.
12. Now jurisdiction, in its narrow and original sense, means that the Court or Tribunal is entitled to enter on the inquiry in question or to entertain a suit or other proceedings. The question of jurisdiction, when the expression is used in that sense, is determinable at the commencement, not at the conclusion, of the enquiry. Thus, an act is without jurisdiction when it is done by a person or authority not competent in law to enter upon the enquiry or to entertain the proceedings resulting in the act complained of. This is known as the absence or want of jurisdiction. There is then the extended sense of jurisdiction; a tribunal or authority may have the jurisdiction to enter upon an enquiry or to entertain a proceeding, yet, it may exceed its jurisdiction or go outside its jurisdiction during the course of the proceeding by doing something which it is not authorised by law to do or by making an order which it is not authorised by law to make. That is what is called excess of jurisdiction. It is well-settled by authority that absence or want of jurisdiction is determinable at the commencement, not at the conclusion, of the enquiry and excess of jurisdiction is determinable during the course of or at the end of the enquiry. (Sec Baldwin v. Patents Tribunal (1959) All ER 433 at 448 = (1959) AC 663; Settlement and Rehabilitation Commissioner Hyderabad Division, Karachi and another v. Mannu Khan and another 1973 SCMR 62.
13. The concept of jurisdiction, in its original and extended sense, has been well-recognized; it has been well-understood since that already classic case of Anisminic Ltd. v. Foreign Compensation Commissioner (1969) 2 AC (HC)
147. That case has evoked much debate and considerable criticism in England and other countries (See, for instance, the observations of Muhammad Haleem, C.J. In Fauji Foundation and another v. Shamim-ur-Rehman PLO 1983 SC 457 at 548, particularly for disregarding the declared intention of Parliament; yet, its authority so far as this concept of jurisdiction is concerned has not been shaken; it was re-affirmed in a recent case namely, McC v. Mullan [(1984) 3 All ER 908].
14. From the principle that jurisdiction is determinable at the commencement and not at the end of the enquiry emerges another principle, namely, that if a Court or Tribunal had no jurisdiction to enter upon the enquiry D or to entertain the proceedings, then the fact that it had jurisdiction when the impugned order was made would not make the order with jurisdiction. This can be illustrated by two cases of high and respectable authority. In Ledgard v. Bull (1887) 12 IA 134 (P.C.), a case decided by the Judicial Committee of the Privy Council, a suit for damages and injunction for infringement of a patent was filed in a sub-ordinate Court, which had no jurisdiction to entertain it.
Later, it was transferred to the District Court, which was competent to entertain such suits. But as the suit had initially been instituted in a Court, which had no jurisdiction to entertain it, it was held that the decision of the District Court was without jurisdiction. In Mannu Khan's case, an Additional Claims Commissioner, Mr. Ghulam Hyder Moghal, entertained proceedings in the exercise of revisional powers, which he did not possess, but during the pendency of those proceedings, he had been delegated those powers, so that by the time, he made the order, cancelling the allotment, he had those powers. It was held that "it is difficult to accept the proposition that all the proceedings taken by Mr. Moghal, although without jurisdiction, were sanctified because before he issued his final orders, he was vested with necessary powers". The order was declared to be without jurisdiction.
15. This was, therefore, a case, in which admittedly at the date of the application under section 4 of the Ordinance, the leased property was not an urban area and in which the Rent Controller had no jurisdiction to entertain the application and to enter upon the enquiry under section 4 of the Ordinance. He had no jurisdiction to entertain the application and to enter upon an enquiry both because he had no jurisdiction over the subject-matter and because he lacked territorial jurisdiction. He lacked jurisdiction over the subject-matter, for the leased property was not an urban property and he lacked territorial jurisdiction because it was beyond his territorial limits as Rent Controller. In Riazul Hassan v. Hidayat Ullah PLD 1975 Lah. S41 also a case under section 4 of the Ordinance, the property in dispute was situated within the municipal limits when the application under section 4 was made. During the pendency of the application, however, a Notification declaring that the property is rural area was made. It was held that "the doctrine that the state of things exisiting at the time of the institution of the suit is sufficient to determine the jurisdiction has no application where the question is one of jurisdiction over the subject-matter. Such jurisdiction must exist throughout the proceedings". To cases of want or lack of jurisdiction, as this case was, the principle enunciated in Haji Ibrahim's case does not, in my opinion, apply. That principle is that "every Court has an inherent power to adopt methods with a view to avoid multiplicity of proceedings to shorten litigation, to do complete justice between parties and mould relief according to altered circumstances in larger interest of justice and cases of compulsive effect of a change in law affecting either jurisdiction of Court or relief to be granted to parties". This principle, if I may venture to say, proceeds on the basis that the Court in whom such inherent power is recognized to vest, has had jurisdiction of the subject-matter thoughout the proceedings.
16. That the date of the filing of the application had a material bearing upon the question of jurisdiction is highlighted by section 4 itself; by providing in subsection (3) that "the fair rent fixed under this section shall be payable by the tenant from a date to be fixed by the Controller not earlier than the date of filing the application" and by providing in subsection (4) that "if the fair rent fixed under subsection (2) exceeds the rent being paid by the tenant on the date of the filing of the application under this section, the maximum increase of rent payable by the tenant shall not be more than 25% of the rent already being paid by him".
17. It has been seen above that the authority vesting in the Rent Controller under section 4 of the Ordinance to allow an increase of 25% of the rent being already paid by the tenant was subject to the necessary condition that the fair rent fixed under subsection (2) "exceeds the rent being paid by the tenant on the date of the filing of the application under this section". Here, the learned Rent Controller did not fix the fair rent under subsection (3) of section 4 and there was, therefore, no finding that the fair rent exceeded the rent being paid by the tenant. As the Rent Controller was competent to allow an increase of 25% of the rent already being paid by the tenant only if the fair rent come to under subsection (2) of section 4 exceeded the rent being already paid by him and no fair rent was fixed, the order must he held to be without jurisdiction and hence without lawful authority and of no legal effect, for by allowing the increase of 25% of the rent, the learned Rent Controller failed to deal with question remitted to him and refused to take into account something which he was required to take into account.
18. Again in fixing different fair rent for different periods, the learned Courts below acted contrary to the plain language of sections 4 and 5 and hence exceeded the authority confided to them.
Section 4 empowers them to fa fair rent, and once fair rent has been fixed, then section 5 prohibits any further increase in such fair rent within a period of three years except "in cases where some addition, improvement or alteration has been carried out at the landlord's expense, and at the request of the tenant".
19. For these reasons, the judgments of the learned Rent Controller and the learned Additional District Judge must be held to he without jurisdiction. In this view of the matter, it is not necessary to decide the question whether the leased property had, by the Notification, been inclused within the municipal limits, and whether the landlord was not entitled to apply under section 4 because it was a lease for a fixed period and the parties had, by their agreement, determined the amount of rent.
20. In the result, the petition is accepted and the judgments of the learned Rent Controller and the learned Additional District Judge are declared to be without lawful authority and of no legal effect.
The parties are, however, left to bear their own costs.