MUHAMMAD ZAFAR YASIN, J.---Through this Intra-Court Appeal under section 3 of the Law Reforms Ordinance, 1972, Abdul Haq and two others seek to assail the order passed by the learned Single Judge of this Court, dated 30-6-1998 dismissing the appellant's Constitution Petition No,2935 of 1998/BWP in limine.
2. The dispute, in the instant litigation, pertains to Shops Nos.5, 7 and 18 situated in the urban area of Muhammadi, Market, Municipal Committee, Ahmadpur East. These shops along with 21 other shops were built by Municipal Committee, Ahmedpur East in the year 1981. (This date has been taken on presumptive basis; that record, however, does not furnish any concrete information with regard construction of aforesaid Market). The aforesaid shops along with others were rented out to different tenants on monthly rent and rent deeds were executed. Rent Deed of appellant No,1, dated 4-5-1981 regarding Shop No,5 has been produced by Municipal Committee as Annexure 'X'. Since the appellants/other tenants were reluctant to increase the rent, the Municipal Committee decided to sell the shops by way of open auction. On 16-2-1992, vide Resolution No,9/158, the Municipal Committee passed necessary resolution. The auction was so held on 25-2-1992. Since the sale of the above market/shops had been made without seeking the prior approval/consent of the Provincial Government, subsequently a move was made to that effect. This move succeeded on 21- 4-1996 when sanction was given ex post facto. In the aforesaid auction, disputed shops i,e, Shops Nos.5, 7 and 18 had been purchased by Bashir Ahmad, Muhammad Arshad and Riaz Ahmad herein respondents Nos.5, 6 and 7 respectively. It is to be noted that Bashir Ahmed had deposited the entire price of Shop No,5 while Muhammad Arshad and Riaz Ahmad had committed that if the possession of respective shop was given to them, they will make the payment of entire balance sale price of the shops purchased by them.
3. Unfortunately, the tenants and the purchasers of said shops were locked into multiple litigation, which will be futile to be recapitulated. Suffice it to note that on 3-7-1996 Municipal Committee, Ahmedpur East issued notices to different tenants including appellants to deposit the arrears of rent, and surrender the possession of shops in their possession within seven days. However, the appellants/tenants did not comply with the aforesaid notices and continued agitating their grievances in different forums. The appellants along with other tenants filed a suit seeking declaration to the effect that Resolution No,9/158 passed by the Municipal Committee terminating their tenancy is void and ineffective qua their possession as tenants. The suit was registered as No,111 of 1996. Along with the suit,, the plaintiffs also filed application for temporary injunction. The trial Court confirmed temporary injunction on 28-7-1997. This order was challenged before District Judge, Bahawalpur by respondents Nos.5 to 7. The learned Additional District Judge, Bahwalpur, vide order, dated 19-5-1998 observed that since after the expiry of six months, the stay order under Rule 2 (2-B), of Order 39, C.P.C. Had lost its efficacy, therefore, the plaintiffs should again approach the trial Court for extension of the order. On 11-6-1998, Bashir Ahmad respondent No,5, Muhammad Arshad respondent No,6 and Riaz Ahmad respondent No,7 moved an application to the Administrator, Municipal Committee, Ahmedpur East and prayed for delivery of possession of the above-noted shops to them on the ground that stay has lapsed. On the same date, the Administrator sent the matter to the Chief Officer who made a report in their favour and sent the matter for opinion of the Legal Advisor. In consequence, the Legal Advisor too agreed with the opinion of Chief Officer. On the same date, the Chief Officer put the matter before the Administrator, Municipal Committee for seeking the help of the police as well as the Magistrate.
This report is dated 11-6-1998. Immediately, the Administrator, Municipal Committee, summoned the record and thereafter, requested the Resident Magistrate/Magistrate 1st Class to furnish police assistance. The Resident Magistrate accordingly passed the order and provided necessary police force to Municipal Committee. In this way, the Municipal Committee on 15-6-1998 dispossessed appellants from Shops No,5, 7 and 18 through the help of police force in the manner stated above.
4. Feeling dissatisfied with the above action/proceedings of their dispossession, the appellants filed Constitution petition which was dismissed on 30-6-1998 in limine by the learned Single Judge of this Court, hence, this Intra Court Appeal.
5. The learned counsel for the appellants relied upon Muhammad Aslam v. Station House Officer and others (1993 M LD 152) and Karam Dad and another v. Azad Government of the State of Jammu and Kashmir and others (1980 CLC 1119) to contend that the appellants were tenants of the shops noted above, that neither the Administrator, Municipal Committee nor Resident Magistrate could dispossess them by the use of force without getting an eviction order from the Rent Controller. The learned counsel further submitted that the relationship between the appellants and Municipal Committee was that of landlord and tenant and was governed by the provisions of Punjab Urban Rent Restriction Ordinance, 1959. This being the position, according to the learned counsel, the Municipal Committee could not dispossess the appellants except by the order of the Rent Controller. On the strength of the above, it was urged that the proceedings on 15-6-1998 from the beginning to finish were totally void ab initio and have no lawful consequences.
6. Mr. Muhammad Jaffar Hashmi, Advocate/learned counsel for the respondents 2 to 4 supported the impugned action/proceedings. He contended that writ of mandamus, in the context factually conflicting claims of parties, was not competent. According to him, the correct remedy available to the appellants was to move under section 9 of the Specific Relief Act. On the aforesaid line of arguments, it was suggested that the instant Intra-Court Appeal was not competent. Secondly, it was urged that the order passed by the Assistant Commissioner/Administrator, Municipal Committee, dated 15-6-1998 is subject to incident of appeal under section 166 of the aforesaid Ordinance and so Intra Court Appeal was not competent under section 3 of the Law Reforms Ordinance, 1972. Thirdly, it was stressed that the appellants have not come to the Court with clean hands; neither they paid the rent to the Municipal Committee nor they were paying it to the new purchasers and so they were not entitled to claim equitable relief under Article 199 of the Constitution. Reliance was placed on Muhammad Mansur Ali Sarkar v. Dr. Kudrat Ali (1968 SCM R 244), Muhammad Mansha v. Mst. Irshad and others (1994 M LD 136), District Evacuee Trust Committee, Hyderabad v. Lakhano and 2 others (PLD 1973 Note 19, p.30), Raja Fida ur Rehman and 4 others v. Capital Development Authority, Islamabad (1996 M LD 1573), Sailesh Kumar and another v.
Rama Devi (AIR 1952 Patna 339), Punjab State Club, Simla v. Municipal Committee, Simla (AIR 1959 Punjab 220), Sikandar and 2 others v. Muhammad Ayub and 5 others (PLD 1991 SC 1041) and Haji Muhammad Yousaf v. Commissioner, Faisalabad Division, Faisalabad and another (1997 M LD 2384).
7. The learned counsel for the Municipal Committee as well as the learned counsel for respondents Nos. 5, 6 and 7 submitted that the relationship between the Municipal Committee and appellants was not governed under the Urban Rent Restriction Ordinance but it was under the provisions of section 122 of the Local Government Ordinance; that the Committee had already issued notices on 3-7-1996, therefore, the appellants were simply trespassers. On the line of this approach, it was suggested that the Intra-Court Appeal is not competent. In reply, the learned counsel for the appellants urged that, although, the appellants had a remedy under section 9 of the Specific Relief Act, yet, it was neither convenient nor was efficacious in nature. On this line, it was represented that invocation of Constitutional jurisdiction was justified.
8. From, the foregoing pleas of the parties, three points emerge for decision. Firstly, whether on the facts of the case in hand, the remedy available to the appellants under section 9 of the Specific Relief Act, was/is alternative adequate remedy and so is a bar to invocation of writ jurisdiction of this Court? Secondly; whether the order passed by the Administrator, Municipal Committee, Ahmedpur East, dated 15-6-1998 was appealable under section 166 of the Punjab Local Government Ordinance, 1979 and so the I.-C.A. Filed over here is incompetent. Thirdly, whether this Court has no power to order restitution of possession of afore noted shops to appellants in exercise of Constitution jurisdiction.
9. As regards first point, it is settled that a tenant/lessee cannot be evicted from his tenement without due process of law. The earliest case, on this subject is Kunhi Komapen Kurupu v.
Changarachan Kandil Chembata Ambu (2 MHCR 313). In this case it was held:-- "In cases under that section a lessor, who had dispossessed otherwise than by due course of law a lessee whose terms had expired, would be compelled to restore possession to the lessee. The plain object is to discourage proceedings calculated to lead to serious breaches of the peace, and to provide against the person who has taken the law into his own hands deriving any benefit from the process. It was intended to obviate the effect of the possible application of English law to such cases. That law, as laid down in Harvey v. Brdiges is that the freeholder, if entitled to eject the person in possession, may commit an indictable offence in doing so, and yet gain all the advantages of a legal possession and be perfectly secure against the action of the party assaulted."
' Similar views were expressed in Full Bench case Wali Ahmed Khan and others v. Ajudhia Kandu (ILR
(13) All. 537), Sofaeli Khan and another v. Woopean Khan and another (9 WR 123) and Rudrappa Bin Snakppa v. Narsingrao Ramchandra Kablikar and another (ILR 1905 Born. 213).
10. Same question came before the Division Bench of Erstwhile High Court of West Pakistan in Azim Khan v. State of Pakistan and another (PLD 1957 (W.P.) Karachi 892). In this case, Azim Khan petitioner was a building contractor who was invited from Dehli, on the eve of partition, to execute certain emergent works for Government of Pakistan and was permitted to use a plot for the purposes of building and a go down to store construction material and accommodate his staff. He completed the construction and Department asked him to vacate the plot. On 12-12-1950, petitioner, prayed that plot be allotted to him on the payment of rent. This move was acceded to.
Subsequently, the Government needed the plot and so cancelled allotment and called upon the petitioner to vacate the premises. As the petitioner declined to do so, he was threatened with forcible eviction without employing process of law. Feeling aggrieved the petitioner filed Writ Petition No,198 of 1956 which was allowed.
' The Division Bench held that petitioner was entitled to remain in possession till ejected in due course of law. Resultantly writ was issued. The aforesaid rule was reiterated by the Apex Court in M.
Ghani v. M.A. Mullick & Brothers and 3 others (1973 SCM R 90) and Syed Mehdi Hasnain v.
Muhammad Ayub and another (1970 SCM R 434).
11. The same point cropped up in Karam Dad and another v. Azad Government of the State of Jammu and Kashmir and others (1980 CLC 1119). In this case, the land measuring 14 Kanals, falling in the area of Village Tangal, Tehsil Nakyal, District Kotli, was in possession of the petitioner.
Respondent had filed a suit for possession of the land in dispute against petitioner in a Court of Sub-Judge, Kotli wherefrom it was withdrawn with a view to make a move for partition of land jointly owned by the parties. Accordingly, an application for partition was filed by Said Muhammad Khan respondent before the Assistant Collector 1st Grade. During the pendency of the said application, Said Muhammad Khan moved an application to Revenue Minister/alleging that demarcation had been made, that petitioner was not going to vacate the land in dispute. On this application, the said Minister asked Sub-Divisional Magistrate, Nakyal to hand over their possession of the land in dispute to applicant and submit a report to him. In compliance with that order, the Sub-Divisional Magistrate ordered Naib-Tehsildar to take the possession from the petitioner and hand it over to Said Muhammad Khan respondent. The Naib-Tehsildar accordingly complied with the aforesaid order and dispossessed the petitioner. Feeling dissatisfied petitioner filed Writ Petition No,37 of 1975 which was allowed by the Division Bench, Azad Jammu and Kashmir High Court and possession of aforesaid land was restituted to petitioner. It will be pertinent to quote relevant passage from the said precedent:-- "The respondents were unable to show under which provisions of law the impugned orders were made by them. However, a preliminary point has been raised by the learned counsel for respondent No,4 that the High Court is not competent to take up the matter in dispute as other remedy is available to the petitioner. No doubt, the petitioners could go to a Civil Court for the recovery of the possession of the land in dispute under section 9 of the Specific Relief Act but the circumstances of the case are such that resort to a Civil Court for the restoration of possession is not a speedy and efficacious remedy available to them. As a matter of fact, the circumstances are such that the High Court in exercise of its writ jurisdiction must come to the help of the aggrieved persons who fell a victim to the highhandedness of the Officers of the Government who have acted illegally beyond their powers and as such the petitioners were deprived of their lawful possession through unlawful means adopted by Mr. Ghulam Abbas Nagina and other with the help of the police. There is no law of the land by which a Minister of the Government could make an order for ejectment of a person from the land possessed by him as one of the joint owners. We may go to the minimum extent to say that such an order is not less than that of "Sikha Shahi" ((r, L Las ) one; which cannot be allowed to have its effects in favour of a party who was unduly supported by the officers of the Government in presence of rule of law under which for settlement of disputes between different members of the public, Courts are established by law to deal with such-like cases."
' We find no reason to differ with the aforesaid view and are inclined to follow it. Applying these rules to the facts and circumstances of the case in hand, it is thus clear without any dispute that appellants Nos.1, 2 and 3 were tenants of Municipal Committee, Ahmedpur East in Shops Nos.5, 7 and 18; that the aforesaid shops were sold to Bashir Ahmed and Muhammad Arshad and Riaz Ahmad on 25-2-1992; that the Government of Punjab granted the sanction to aforesaid alienation on 25-6-1996; that Bahsir Ahmed had made the payment of price, while respondents 6 and 7, purchasers had made payment of price partially and were prepared to pay the remaining price, if possession was given to them. On the aforesaid facts there is, thus, no dispute that relationship of landlord and tenant existed between appellants and Municipal Committee, Ahmedpur East in the first place and then between purchasers and appellants.
12. In so far, section 122 of the Punjab Local Government Ordinance, 1979, its bare reading will show that it deals with grants of licences and lease in respect of any land, open space, building or a property/vesting in, managed, maintained or controlled by the Local Council on such terms and conditions as may be provided in bye-laws. Vide Resolution No,9/58, dated 16-2-1992 the Municipal Committee decided to sell the shops in dispute; and it did sell the shops vide open auction on 25- 2-1992 and the respondents No,1 to 7 had purchased the aforesaid shops. On these facts and the circumstances of the case in hand there is clearly no warrant for application of section 122 of the Punjab Local Government Ordinance, 1979. On aforesaid conclusions, it becomes clear to us that relationship between appellants and respondents was that of a landlord and tenants and was governed by the provisions of Punjab Urban Rent Restriction Ordinance, 1959; that the appellants were evicted from their tenement without any order from forum of competent jurisdiction. On the aforesaid analysis, we are clearly of the view that the provisions of section 9 of the Specific Relief Act was/is not impediment in way of exercise of writ jurisdiction; that impugned actions/proceedings were not appealable under any provisions of Punjab Local Government Ordinance. Resultantly the actions of functionaries of the State are without lawful authority and redress the grievances of the appellants in exercise of extraordinary Constitutional jurisdiction is within the parameter of law.
13. Now we take up the second and third points. With regard to second point, it is sufficient to say that the assailed actions/proceedings of the officer of the Municipal Committee including its Administrator and action of the Resident Magistrate, dated 15-6-1998 were totally without jurisdiction and without any lawful authority. The learned counsel for the contesting respondents as well as learned counsel for the Municipal Committee had not shown us any provisions of law under which these actions were covered. Naturally these actions were not taken under the provisions of Punjab Local Government Ordinance at all. This being the position these actions were neither appealable under section 166 of Punjab Local Government Ordinance, 1979 nor there was any other remedy available under the law against these actions except under section 9 of Specific Relief Act.
However, the remedy under section 9 of Specific Relief Act, under the circumstances of the case is not adequate. The contention raised by the learned counsel for the contesting respondents as well as Municipal Committee are found to be of no consequence and hereby repelled.
14. As a result of the aforesaid conclusions we hereby allow this Intra Court Appeal, set aside the order of the learned Single Judge of this Court, dated 30-6-1998 and allow Writ Petition No,2935 of 1998/BWP with grant of requested relief. The Assistant Commissioner/Administrator/Chairman, Municipal Committee shall to put back the appellants in possession of their respective tenement within one month of the receipt of this order of this Court. There shall be no order as to costs.
15. While parting with this order, we would like to observe that the purchasers/respondents 5 to 7 and Municipal Committee, will be within their right to seek the eviction of the appellants from their tenement from the Court/Forum of competent jurisdiction and the respondents, if initiate such action, the forum of competent jurisdiction will determine the controversy between the parties within the parameter of law and without any influence by any observation of this Court.