' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the order, dated 22-9-1998, whereby the petitioner's application seeking outright dismissal of ejectment application filed by respondent No,1, was dismissed.
2. The relevant facts are that respondent filed an ejectment application against the petitioner on the grounds of bona fide personal need and that the petitioner had defaulted in payment of rent on and from 31-3-1993 in accordance with the agreement entered into between the parties as also the prevalent law except that he was paid a total amount of Rs.4, 25,000 as security. It was added that the petitioner has acted in a manner derogatory to the terms of tenancy, thus, making himself liable to eviction.
3. The above said ejectment application was resisted by the petitioner who inter alia maintained that the respondent lacks locus standi and is estopped by his conduct to file the same. It was submitted that previously father of the respondent filed an ejectment application against the petitioner, which was dismissed, whereafter the respondent has filed the ejectment application while it is not disclosed on the record as to whether he is the attorney of his father. It was pertinently maintained that the site alongwith the petrol pump installed thereon was let out to the petitioner; which was in a very dilapidated condition and the petitioner had spent an amount of Rs.1,50,000 on the development thereof with the consent and approval of the respondent and that the different fixtures such as fans, tube lights, water pumps etc. Were installed at the premises by spending huge amount from his pocket, which has not so far been paid to him. The grounds of ejectment, as asserted, were denied and it was submitted that the ejectment application be dismissed.
' The petitioner having filed written statement with the assertion aforenoted, applied for the amendment thereof, which was allowed resultantly another preliminary objection was added in the written statement thereby asserting that since the petrol pump was installed on the land in dispute which was equipped with machinery, therefore, the property in dispute could not be termed as non-residential building or rented land, it was in fact a factory or industrial concern, hence the tenancy between the parties was not regulated by the provisions of Ordinance VI of 1959. Consequently it was prayed that the ejectment application under the Ordinance could not be maintained, therefore, the same be dismissed.
4. It is manifest from the record that the petitioner filed various miscellaneous applications thereby seeking amendment in the written statement; objecting to the numbering of paras of the petitioner and that the preliminary issues be framed in regard to the competence of the ejectment application itself. In short the proceedings of the Rent Controller were riddled with various miscellaneous applications, when the petitioner filed still another application in the nature of application under Order VII, Rule 11, C.P.C. Thereby praying that the application be dismissed on the two-fold grounds; that the petrol pump is neither residential nor nonresidential building nor a shop much less a rented land and as a matter of fact it is a factory, therefore, the premises in dispute does not fall within the ambit of Urban Rent Restriction Ordinance VI of 1959. The other ground being that respondent No,1 was neither owner of the petrol pump nor a license holder nor a guardian nor special or general attorney of his father, therefore, he has no locus standi to file the ejectment application. Simultaneously with the filing of the petition aforementioned, the petitioner withdrew his application for framing of preliminary issue.
5. The above said application was resisted by respondent No,1 mainly on the ground that the petrol pump is not a factory for no goods are manufactured at the premises in dispute and that only business of selling petrol is being carried out at the site, which is a non-residential building. It was also submitted that the petrol pump is a commercial Establishment; therefore, the same cannot be termed or treated as a factory.
6. The learned Rent Controller proceeded to determine the above said application and dismissed the same vide order, dated 22-9-1998, whereby an order under section 13(6) of the Urban Rent Restriction Ordinance, VI of 1959 was also passed and issues were framed in the case.
7. The above said order has been assailed in the present Constitutional petition mainly on the ground that the petrol pump falls within the definition of the factory, therefore, the ejectment application as filed by the respondent, could not be maintained tinder the Rent Restriction Ordinance VI of 1959.
8. Confronted at the very outset that interlocutory/fragmentary orders passed during the course of proceedings under the Urban Rent Restriction Ordinance VI of 1959, are not amenable to the Constitutional jurisdiction of this Court, learned counsel for the petitioner argued that since the impugned order is without jurisdiction and now that it is well-settled that an order without jurisdiction should not be allowed to remain in field and must always be struck down at the earliest, therefore, the Constitutional petition would be competent against such an order. Reliance was placed on Sh. Muhammad Siddique v. Khurram Gulrez and two others (1998 MLD 624) and Muhammad Saleem v. Altaf Hussain (1998 CLC 1883). There cannot be any cavil with the proposition that if an objection is taken to the very proceedings being taken by the Rent Controller, which was not only foundational but also jurisdictional, it should be decided by the Rent Controller in the first instance so as to assume jurisdiction in the matter and any order passed in that regard would also be amenable to the Constitutional jurisdiction of this Court. The proposition aforenoted is fortified by the rule laid down in the cases of Sh. Muhammad Siddique and Muhammad Saleem noted supra and learned counsel for the petitioner has very aptly relied on the same.
9. Coming to the merits it is an admitted position of fact on the record that the site alongwith petrol pump installed thereon was rented out to the petitioner, hence the objection that the premises in dispute is neither a nonresidential building nor falls within the definition of rented land and in fact a factory or an industrial concern, therefore, the Rent Controller had no jurisdiction to regulate the tenancy existing between the parties in regard to the said premises. In short the question involved in this case is as to whether the site alongwith petrol pump installed thereon is a 'factory' or 'industrial concern' as understood in common parlance or in the legal parlance or technical meaning of the word. 'Factory' as defined in Concise Oxford Dictionary means "a building or buildings containing plant or equipment where manufacturing process are carried out. The word 'industry' is also defined in the said dictionary to mean 'a branch of trade of manufacture' and secondly as "trade and manufacture" collectively. Apart from the above said dictionary meanings of the word 'factory' and 'industry', the 'factory' has also been defined in the Factories Act, 1934 as follows:-- "factory" means any premiss, including the precincts thereof, whereon (ten) or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on (or is ordinarily carried on with or without the aid of power), but does not include a mine, subject to the operation of the Mines Act, 1923 (IV of 1923)."
' It would be noted from the meaning of the words 'factory' and 'industry', be it in the common parlance or in the legal parlance or the technical sense, that manufacturing process is considered to be essential before a premises, building or buildings equipped with the machinery be treated as 'factory'. The meaning of the word 'industry' as contained in the Oxford Dictionary adds the word 'trade' conjunctively with the word 'manufacturing' meaning thereby that the two processes should be carried out at the premises to make it an industrial concern. It is common knowledge that no manufacturing process is carried out at the premises equipped with the petrol pump. It is no doubt correct that the petrol is pumped out of the reservoir by a mechanical process and is sold at the premises the mechanical process being used at the premises or the fact that the premises are equipped with the machinery, would not make it a factory' or an 'industrial concern' for no manufacturing process is carried out at the site of the petrol pump. Learned counsel for the petitioner relied on definition of machine and machinery as contained in Stroud's Judicial Dictionary, wherein the words 'machine' and 'machinery' have been interpreted in the light of different sections of Factory and Workshop Act, 1901, Factories Act, 1937 and Workmen's Compensation Act, 1897. He has also relied on the case of Corporation of Calcutta v. Chairman of the Conspire and Chitpore Municipality (AIR 1922 Privy Council 27), wherein it is ruled thus: "generally, the word "machinery" when used in ordinary language, prima facie, means some mechanical contrivances, which by themselves or in combination with one or more other mechanical contrivances, by the combined movements and inter-dependent operation of their respective parts generate power or evoke, modify, apply or direct natural force with the object in each case of effecting a definite and specific result". The above said judgment of the Privy Council has been followed by the Supreme Court of India in the case reported as Commissioner of Income Tax, Madras v. Mir Muhammad Ali, Aruna Mills Ltd. Ahmedabad (AIR 1964 SC 1693), wherein the words 'machinery' and 'installed' fell for interpretation when it was held that "replacement of petrol engines by new diesel engines in motor business by assessee owner and transport operator amounted to installation of new machinery". It would, thus, be appreciated that the case noted above as also the definition of the 'machine' and 'machinery' as given in Stroud's Judicial Dictionary does not help the petitioner in arguing a case of the petrol pump for it is an admitted position of fact that the petrol pump is equipped with the machinery, which is driven by electricity, but the question is as to whether the petrol pump is a 'factory' or 'industrial concern'? Learned counsel for the petitioner vociferously contended that tenancy in regard to factory or in industrial concern is excluded from the ambit of Urban Rent Restriction Ordinance VI of 1959 for it is ordained to be not regulated by the said Ordinance. Reliance was placed on M/s Rehman Cotton Factory v. M/s Nichimen Company Ltd. Karachi (PLD 1976 SC 781), Ahmed Aziz Zia v. Muhammad Siddique and another (PLD 1982 Lahore 37), Bashir Ahmad v. Mst. Zubeda Khatoon (1983 CLC 390), M/s International Fisheries (Pakistan) Ltd. And 3 others v. M/s Standard Fisheries Corporation (1983 CLC 3294) and Koti Saroj Anamma and another v. Jonnalagada Malleswara Rao (AIR 1995 SC 1401). It would be seen that in all the cases noted above some kind of manufacturing process was being carried on at the site, therefore, they were held to be factories or industrial concern, resultantly it was held that the tenancy in regard thereto does not stand regulated by Ordinance VI of 1959. It was held in the case of M/s Rehman Cotton Factory v. M/s Nichimen Company Ltd. Karachi (PLD 1976 SC 781) that the Urban Rent Restriction Ordinance, 1984 excluded from its operation what were property known as a factory equipped with machinery requisite for a particular manufacturing process. In Ahmad Aziz Zia v. Muhammad Siddique and another (PLD 1982 Lahore 37) my learned brother Khalil-ur-Rehman, J. (as he then was) relied on an earlier judgment in the case of Ghulam Farid and another v. Mian Farooq Nazir and another (PLD 1979 Lahore 673) wherein it was observed:-- "from the authorities shown to me by the learned counsel for the petitioners as well as from one other case it is clear that before a factory is considered to be ousted from the ambit of the Ordinance of 1959, it must be let out as a factory,' meaning thereby that premises alongwith the manufacturing equipment has to be the subject-matter of a lease."
' It has already been held that no manufacturing process is carried out at the premises in dispute where petrol pump is installed. In the case of Bashir Ahmad v. Mst. Zubeda Khatoon (1983 CLC 390) the question of jurisdiction was entertained because no investigation of fact was involved therein.
The case was that of a Saw Mill, therefore, it was held that the provisions of Ordinance VI of 1959 were not applicable. The case of M/s International Fisheries (Pakistan) Ltd. And 3 others v. M/s Standard Fisheries Corporation (1983 CLC 3294) cannot be taken to be as binding precedent for it pertains to an application under Order XXXIX, Rules 1 and 2, C.P.C. It is well-settled that decision in such cases are neither conclusive nor considered to be such for they are rendered on prima facie appraisal of the material place before the Court. Needles to add that even in the penultimate para. Of the said judgment, it has been observed that the observation made in the said order, while disposing of interlocutory application are tentative in nature and shall not in any manner be construed as effecting the disposal of the suit on merits at the final hearing. In the case of Koti Saroj Anamma and another v. Jonnalagada Malleswara Rao (AIR 1995 SC 1401) the matter in issue was again that of a Saw Mills and the question whether any manufacturing process is carried out in the said Saw Mill appears to have not been considered at all.
10. It flows from the discussion noted above that only a building or buildings alongwith manufacturing equipment can be termed as factory or industrial concern and no other. As observed earlier, no manufacturing process is involved or being carried out at the site where a petrol pump is installed, therefore, it could not be successfully argued that the petrol pump is a factory. Learned counsel for the respondent has relied on the case of WAPDA v. Muhammad Azam Khan reported as (NLR 1992 Civil 246) for the rule that petrol pump is not a factory. It was a case of electric supply to a petrol pump, wherein the question was raised that the petrol pump, being a factory or industrial concern should be charged under the tariff meant for the same. It was held that "Petrol pump is not a factory, therefore, the supply of the electricity to the same cannot be treated as industrial supply within the meaning of the terms as defined in Tariff B-1. The petrol pump as such appears to be commercial establishment mentioned in Tariff A-2". The judgment aforenoted, though in different context, supports the view taken by me as manifestly it has been held therein that the petrol pump is at the most a commercial establishment, therefore, falls within the definition of nonresidential building or rented land, but definitely not a factory.
11. In the circumstances, the learned Rent Controller has not committed any error of law or his order suffers from any jurisdictional defect, therefore, this petition is dismissed with no orders as to costs.