' Brief Facts out of which present writ petition arises are that the petitioner is lessee of Bungalow in question by virtue of lease deed, dated 6-11-1984 executed between the petitioner and the Government of Pakistan. The petitioner had rented out the building in question to Messrs BASF, a German company vide lease, dated 20-10-1987. The said Company had opened its office in the building in-question. The petitioner had rented out the building in question to cabinet different Governments of Pakistan for a period of about 3 years prior to the execution of the rent deed between the petitioner and aforesaid Messrs BASF Company. The building was assessed by the respondents on considering the same as commercial. The payment of commercial taxes had been paid to the respondents as is evident from Annexures "C" and "D" and also assessment notice, dated 29-2-1988 and 15-1-1991 attached with the writ petition respectively. Respondent No,1 sent notices and the petitioner received summons through his tenant from respondent No,1 under sections 14/28 of the Cantonment Rent Restriction Act, 1963 directing the petitioner to appear before him on 3-1-1993. The petitioner entered appearance before respondent No,1 alongwith his counsel who directed the petitioner to appear before him on 24-2-1993. The petitioner also received notice under sections 224/25 of the Cantonment Act, 1924 with the direction that water supply of the building in question could be disconnected on 2-2-1993 as allegedly water connection was sanctioned for domestic use when the same was being used for commercial use.
2. Learned counsel of the petitioner submits that the petitioner is lessee of building in question since 1984 under Military Estate Officer, Lahore Cantt. The property in question is presently on lease with Messrs. BASF.(a commercial Organization). The Military Executive Officer of the Cantonment Board, Lahore Cantt, has issued notice to the tenants of the petitioner to show cause why water supply of the said premises not be disconnected for misusing the water supply for commercial purpose. A case has also been filed against it in the Court of Cantonment, Magistrate Lahore under sections 14/28 of the Cantonment Rent Restriction Act, 1963. He further submits that the afore-said actions are violation of law inasmuch as no criminal proceeding can be initiated for the alleged violation of the provision of Cantonment Rent Restriction Act. He further submits that as regards disconnection of water supply, it is stated that the property in question is being assessed on commercial rate for the last 7 years, as such, the same could not be disconnected. He further submits that the building in question is owned by the Central Government, therefore, the respondents have no authority to take action against the petitioner or tenant in view of section 3 of the Cantonment Rent Restriction Act, 1963 as the building in question falls within the category of exemption as prescribed in section 3 of the said Act. He further submits that section 14 is not attracted in case of the building of the petitioner.
3. Learned counsel of the respondents submits that action of the respondent is in accordance with law. The land is owned by the Central Government which was taken by the petitioner on lease. The building was constructed by the petitioner, therefore, the petitioner is not entitled for its exemption under section 3 of the Cantonment Rent Restriction Act, 1963. He further submits that the respondents are within their lawful authority to take action against the petitioner under the provision of Cantonment Rent Restriction Act, 1963 and under the provision of Cantonment Act, 1924. He further submits that writ petition is not maintainable against show-cause notice or summons issued by the respondents.
4. Learned counsel of the petitioner in rebuttal submits that since the action of the respondent is patently illegal,' therefore, writ petition is maintainable.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. It is better and proper to reproduce section 3(b) of the Cantonment Rent Restriction Act, 1963 to resolve the controversy between the parties. Section 3 of said Act not' to apply to certain building.
(a) Nothing contains in this act shall apply. (b) Any property owned by the Central Government and Provincial Government, Railway, Port, Trust, Cantonthent Board and property owned, managed or controlled by any local authority under the administrative control of Central Government or any Provincial Government. Mere reading of aforesaid section 3(b) clearly reveals that legislature had specifically mentioned the term property which shows it is easy to see that things which are intended to be included in the term property as used in this exemption clause are buildings and not land. The heading of the section also reveals the same meaning namely Act not to 'exempt ,certain buildings which leaves no doubt that law-maker intended to exempt buildings owned by the Central Government, Provincial Government, etc. Further, this intention also becomes clear from Preamble to the Act which reveals the object which this Act is intending to achieve. In case the preamble of the Act and heading of section are put in juxtaposition then it is crystal clear that Legislature is all along intending to deal with only buildings and not with the land on which they had been constructed. The term "property" as used in the aforesaid section has to be given a restricted meaning so as to confine it to buildings owned by the Central Government and the authorities mentioned in the said section itself. It is settled principle of law that exemption clause is not to be extended so as to include within its purview buildings constructed on the Government Land simply for the reason that Government had right of property in the sites on which these buildings are existed. In this view of the matter, the respondents had lawful authority to take action against the petitioner under the provision of Cantonments of Rent Restriction Act, 1963. The mere fact that the buildings are constructed on the land owned by the Central Government, would not make them the property of that Government. The buildings would still remain the property of the private parties, who had constructed them with their own expenses, although the land belongs to the Central Government yet the buildings have been constructed over the land by the private parties concerned and have not been handed over to the authority mentioned in section 3 of the Act. In this view of the matter, the building of the petitioner cannot be treated or deemed to be property of the Central Government which merely remains owner of the land under them. In arriving to this conclusion, I am fortified by PLD 1966 Peshawar 159 (Noor Shah v. Azmat Elahi). It is pertinent to mention here that the petitioner failed to bring on record any document to show that the building in question is still owned by the Government and similarly, the respondents failed to bring on record any document to show that the building does not belong to the Government. This fact brings the case in the area of the disputed questions of fact and this Court has no jurisdiction to resolve the disputed questions Of facts in Constitutional Jurisdiction as per principle laid down by the Honourable Supreme Court in Muhammad Younas's case 1993 SCM R 618. It is also settled principle of law that writ petition is not maintainable against the show-cause notice or summons issued by the Special Magistrate as per principle laid down in 2000 CLC . 220, (Messrs Pak Arab Fertilizer Ltd. v. Deputy Commissioner of Income-tax and others), 2000 SCM R 1017 in Nadar Khoso's case and PLD 1989 SC 360 Mst. Shagufta Begum's case.
' The petitioner has alternative remedy under the provision of Cantonment Rent Restriction Act, 1924 and Act, 1963 and under the provision of Criminal Procedure Code. In this view of the matter, the writ petition is not maintainable as per principle laid down by the Honourable Supreme Court in case Muhammad Ismail v. Fazalzada and others PLD 1996 SC 246.
7. In view of what has been discussed above, the writ petition is not maintainable. However, in the interest of justice and fair play, the respondents are restrained to take any action against the petitioner for one month from today till 8-9-2001 to enable him to avail proper remedy under the law.
8. With the aforesaid observations, the writ petition is disposed of.