Brief facts out of which present writ petition arises are that the petitioners secured shop/canteen in Sialkot Cantt. Under rent agreement about 20 years ago which was renewed after every three years in terms of the agreement. Last lease agreement was executed between the petitioners and respondents on 18-2-1999, which is also extendable/renewable after every 3 years. The lease was expired on 23-3-2001. The respondents received rent from the petitioners after a target date till 29- 6-2002. The respondents issued eviction notice, dated 29-6-2002 to the petitioners. The petitioners being aggrieved filed a representation before the Executive Officer of Cantonment Board, Sialkot, who did not decide the same. The petitioners being aggrieved filed Writ Petition No. 12678 of 2002 which was disposed of by this Court vide order, dated 16-7-2002. The Cantt. Executive Officer was directed to decide the representation of the petitioners within 20 days with reasons. Respondent No.2 decided the representation vide order, dated 10-7-2002. The petitioners being aggrieved field this writ petition.
2. The learned counsel of the petitioners submits that the petitioners secured the land in question from the respondents on lease and the lease agreement was also executed between the petitioners and the respondents. The petitioners constructed a shop over the plot in-question after completing all the formalities. The respondents received rent from the petitioners after expiry of lease, therefore, the respondents have no lawful authority to issue notice, dated 29-6-2002 in view of section 116 of Transfer of Property Act, 1882. He further submits that respondent No.2 decided the representation of the petitioners without applying independent mind and without reasons, therefore, the impugned order is not sustainable in the eyes of law. In support of his contention, he relied upon "A.D.B.P. v. Sh. Siraj-ud-Din and 2 others" 1993 M LD 2381 and "Messrs Hyesons Commercial and Industrial Corporation Ltd. v. The Trustees of Karachi Port Trust" 1987 CLC 591. He further submits that the respondents have no, lawful authority to eject the petitioners without invoking the provisions of. Rent Restriction Ordinance, from the shop in-question. He relied upon "Nur Shah v. Azmat Ilahi and others" PLD 1966 (W.P.) Pehawar 159.
3. The learned counsel of the respondents submits that the provisions of Rent Restriction Ordinance are not attracted in view of section 3(b) of Cantonments Rent Restriction Act, 1963 as the property in-- question is owned by the Cantonment Board, therefore, the writ petition is not maintainable.
He further submits that the respondents have lawful authority to take possession of the land in- question in view of Rule 9 of Pakistan Cantonments Property Rules, 1957. He further submits that section 111 of Property Act is attracted in the present case and section 116 of Transfer of Property Act is not attracted. He further submits that the petitioners have approached this Court with unclean hands as the petitioners have to hand over the possession of the property in question after expiry of lease period in terms of agreement executed between the parties. He further submits that Garrison Commander, Sialkot Cantt. Has decided to close all the shops, canteens and Khokhas situated on the road side and the same were found traffic hazards. Notices were issued to the petitioner to vacate the premises in question. The petitioners have already tiled a civil suit which is pending adjudication apart from this writ petition.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is settled principle of law that the writ petition is not maintainable in case a civil suit qua the same subject-matter is pending adjudication before the Civil Court, as per principle laid down by the Hon'ble Supreme Court in Ch. Tanbir Ahmad's case PLD 1968 SC 185. The land in question admittedly belongs to the respondents, therefore, the provisions of section 3(b) of Cantonments Board Act, 1963 is attracted which is reproduced hereunder for ready reference:-- "3. Act not to apply certain buildings. ---Nothing contained in this Act shall apply to--- (b)Any property owned by the Central Government, any Provincial Government, Railways, Port Trust or Cantonment Board and any property owned, managed or controlled by any other local authority under the administrative control of the Central Government or of Provincial Government. "
It is pertinent to mention here that the judgment relied by the learned counsel of the petitioners, Noor Shah above (PLD 1966 Peshawar 159) is distinguished on facts and law as the dispute was between two private persons qua the shop in question in the cited case, which was constructed over the land of the Central Government after executing the agreement and had rented out the shop to a private person; whereas in the present case, it is a dispute between the petitioner and the respondents, therefore, section 3(b) of Cantonment Board Act supra is fully attracted. The other judgments relied by the learned counsel of the petitioners Sh. Siraj Din (1993 M LD 2381) and Hyesons Commercial (1997 CLC 591) supra, are not applicable in the present case as the properties in dispute in the cited cases, do not fall in the cantonment area and the cases were decided in view of section 116 of Transfer of Property Act. It is settled principle of law that special law excludes the general law. In arriving to this conclusion, I am fortified by the law laid down by the Hon'ble Supreme Court in the following judgments:-- "M. Imam-ud-Din v. Mst. Surriya Khanum" PLD 1991 SC 317; "I.-G. Of Police, etc. v. Mushtaq Ahmad Warraich" PLD 1985 SC 159 and "PLD 1973 SC 49 "Zia-ur-Rehman's case."
The respondents have taken action in the public interest to remove the traffic hazards. It is settled principle of law that Constitutional jurisdiction is discretionary in a character in view of keeping the circumstances of the present case, therefore, I am not inclined to exercise my discretion in favour of the petitioners as per principle laid down by the Hon'ble Supreme Court in Syed Nawab Raunaq Ali's case PLD 1973 SC 236.