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Petitioner: DAWOOD AND 3 OTHERss VS Respondent: JAMILUR REHAMAN
Court Name: Balochistan High Court Judge(s): Zakaullah Lodi, Muhammad Jaffar Naim Title: DAWOOD AND 3 OTHERss vs JAMILUR REHAMAN Case No.: Constitutional Petition No, 207 of 1981 Date of Judgment:1984-09-15 Reported As: PLD 1985 Quetta 29 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' ZAKAULLAH LODI, ACTG. C. J.-This Constitutional Petition assails the Order, dated 14th October, 1981 passed by a learned Single Judge of this Court whereby he dismissed the appeal filed under section 15 of the Urban Rent Restriction Ordinance, 1959 (hereinafter called the 'Ordinance') by the mother and other brothers and sisters (hereinafter referred to as the `tenants') of the petitioners against the decision of the Rent Controller, Quetta dated 31st August, 1980 directing the 'tenants' to vacate House No, 4-15/22, Janaiat Rai Road, Quetta. 2. Briefly narrated the facts of the case are that the above-mentioned house was permanently transferred in the year, 1960 to Jamil-ur-Rehman, the respondent in this petition. It was then in occupation of Qazi Noorul-Haq, the predecessor-in-interest of the 'tenants' and the petitioners. Qazi Noor-ul-Haq expired in the year, 1977 leaving behind a widow and seven children, who continued to occupy the said house. 3. The respondent filed an eviction application only against the widow and some of the sons and daughters of late Qazi Noor-ul-Haq i. e. The `tenants', thus leaving out the present petitioners, of whom Nos. 1 to 3 are 'his minor sons while the fourth is his minor daughter. The eviction application was moved on the ground of non-payment of rent and bona fide personal use of the premises by the respondent. ' In the rejoinder filed by the 'tenants', it was specifically contended that the application was defective due to omission to join the present petitioners as party to the case. This objection was upheld and the respondent was required to file amended application joining the petitioners herein as party to the case describing their mother (one of the tenants) as their natural guardian. However, the Rent Controller issued summons to these minors in their own names and in
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consequence of .Non-service of summons, proceeded against them ex parte, to which effect an order was made on 4th June, 1979. Finally, as said above, an order of eviction was passed against the 'tenants' as well as the present petitioners in the above-noted terms. 4. The order of the Rent Controller was challenged by the tenants as well as the present petitioners before this Court. The appeal was heard by a learned Single Judge of this Court. (This Court is now the only appellate Court under the `Ordinance' as amended). An application was also filed alongwith the appeal by the widow of the deceased (one of the 'tenants') seeking her appointment as guardian of the minors, namely the present petitioners. The main contention in the appeal was that the petitioners herein were not a party to the eviction application before the Rent Controller, therefore, from the very inception the application was not maintainable and that subsequently, when they were impleaded as party, no steps were taken for the appointment of a guardian and also that proper service having not been effected upon them, the ex parte order and all subsequent proceedings leading upto the order of eviction against them were illegal and untenable in law. These objections were considered by the learned Single Judge who was of the view that the irregularities, if any, committed by the Rent Controller were condoneable as the interest of the minors was constantly watched by their motaer, who was a party to the case from the beginning and, hence, no prejudice was caused to the present petitioners. Detailed discussion of the impugned order is not necessary as we propose to dispose of the petition on the preliminary issue of the maintainability of the constitution petition against the order of a Single Judge of this Court. 5. Initially we were reluctant to admit the case due to the bar of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter called the 'Constitution') read with Article 9(9) of the Provisional Constitution Order, 1981 (hereinafter called the 'P. C. O.') which enjoins that no writs shall be issued against the Judges of the Supreme Court and the High Court ; but Mr. Basharatullah, learned counsel for the petitioners convassed that the Single Judge of this Court whose judgment had been assailed in this writ petition did not act as such, but he heard the appeal in the capacity of appellate authority under the `Ordinance' namely that he acted as persona designata, as such, the constitutional bar referred to above did not operate against him. He also referred to Muhammad Shd if v. Muhammad Afzal Sohail (1); a case in which a constitution petition against the order of the appellate authority under the 'Ordinance' (as applicable to Punjab) was held competent. As the question whether the 'appellate authority' under the 'Ordinance' acted as persona designata or as a Judge of the High Court, was of importance, we admitted the petition and simultaneously requested learned Advocate-General and Mr. Aslam Chishti, Advocate to assist us. Mr. Chishti appeared as amicus curiae. 6. For the reasons of the doubts lurking in our minds from the beginning as to the maintainability of the petition owing to the constitutional bar, we formulated the following two points for consideration :-- ' Whether the Single Judge of this Court while hearing appeals against the orders of the Rent Controller under the 'Ordinance acted as persona designata or as Judge of the High Court ; and ' If he acted as Judge of the High Court, what was the effect of the bar of Article 199(5) of the 'Constitution' read with Article 9(9) of the 'P. C. 0.' on the competency of this petition. . 7. The competency of this petition has been further challenged by Haji Sarfaraz Khan, learned counsel for the respondent on an additional ground that the petitioners had not impleaded the learned, Single Judge and the Rent Controller whose orders they seek to.Assail, Eis respondents ; rather by an application they have sought permission to allow them to press the petition only against the private respondent and drop these authorities. As such, it was contended that even if the issuance of the writ was considered valid, it could not be issued in such circumstances. We
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propose to deal with this object ion as well. In order to appreciate the above, we shall begin with the exa mination of section 15 of the 'Ordinance' (1) P L I) 1981 SC 246 (which deals with the appeals) as it stood at the inception of the 'Ordinance' and then after the amendments of 1978 and 1980 ; (incorporated in Baluchistan) so as to appreciate its exact scope and true import:- Section 15 of Ordinance of 1959 (1) Any party aggrieved by an - order made by the Controller under section 4, section 10, section 12, or section 13, may, within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land, in relation to which the order is passed, is situated. (I-A) On such appeal being preferred, the District Judge may himself hear it or refer it for disposal to an Additional District Judge, having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated. (I-B) The District Judge may recall an appeal made over by him to an Additional District Judge and either hear it himself or refer it for disposal to another Additional District Judge having jurisdiction as provided in subsection (I-A) ; provided that the District Judge shall not so recall or make over an appeal which is partiteard. (2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision of the appeal. (3) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller. (4) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (I), and if an appellate authority has not been appointed in respect of any area or class of cases, any party aggrieved by an order of the Controller may within 30 days from the date of the order of appellate authority or, as the case may be, of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final. Explanation.-An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of Controller and -as an appeal from the appellate order under section 103 of the Code if it is from an order of the appellate authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modifications as the context may require, to such proceedings. (5) No order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance ; ' Provided that no stay order shall be made in respect of the payment or deposit of rent determined by the Controller : ' provided further that the appellate Court may direct that instead of the rent being deposited or paid in cash, security to its satisfaction of the amount of the rent shall be furnished by the tenant. Section 15 as Amended by Ordinance XXI of 1978 (Baluchistan Urban Rent Restriction (Amendment) Ordinance, 1978) Appeal (1)-Any party aggrieved by an order of the Controller under section 4, section 10, section 12, or section 13, may, within thirty days of the date of such order, prefer an appeal in writing to the High Court.
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(2) On such appeal being preferred, the High Court may order stay o further proceedings in the matter pending decision of the appeal : Provided that no stay order shall be made in respect of the payment or deposit of rent determined by the Controller: Provided further that the High Court may direct that, instead of the rent being deposited or paid in cash, security to its satisfaction of the amount of the arrears of the rent shall be furnished by the tenant. (3) The High Court shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making, either itself or through the Controller, such further inquiry as it thinks fit. (4) All appeals from the order of Rent Controller pending before the District Judges, shall, on coming into force of this Ordinance, stand transferred to the High Court and be decided under this section. (5) No order passed by the Controller or the High Court under the provisions of this Ordinance shall be called in question in any Court by suit or otherwise, except as provided in this Ordinance." Section 1.5 as amended by Ordinance III of 1980 (Baluchistan Urban Rent Restriction (Amendment) Ordinance, 1980 Appeal.-(1) Any party aggrieved by an order of the Controller finally disposing of an application made under section 4, section 10, section 12, section, 13, of this Ordinance may, within thirty days of the date of such order prefer any appeal in writing to the High Court: ' Provided that no appeal shall lie against an order made by a Controller under subsection (6) of section 13 determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due: ' Provided further that no appeal shall lie from an interlocutory order passed by the Controller. (2) On such appeal being preferred, the appellate authority may stay the operation of the order appealed against (3) The appellate authority admitting an appeal for hearing shall have the same powers to direct the tenant to deposit the rent as are vested in the Controller under this Ordinance and if the tenant makes default in compliance with such an order, then if he is the appellant, his appeal shall be dismissed summarily and, if he is the respondent, his defence shall be struck off, (4) The appellate authority shall decide the appeal after sending for the record of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit, either personally or through the Controller. (5) The order of the Controller, subject to the result of appeal, if any, shall be final and shall not be called in question in any Court of law." 8. The main point for consideration in the case, as said above, is as to whether a Judge of a High Court while bearing appeals under section 15 of the 'Ordinance' against the orders of a Rent Controller acted as persona designata; namely as an appellate authority created by and functioning under the 'Ordinance' or as a Judge of the High Court. Mr. Basharatullah, learned counsel for the petitioners vehemently contended. That the Single Judge of the High Court acted as persona designata while hearing such appeals and not otherwise, as such, his orders were amenable to examination in writ jurisdiction. To substantiate this plea, he relied mainly upon the language of the 'Ordinance' as a whole and, in particular, the wordings of section 15 cited supra. He pointed out, and very rightly that since 1959 (when the 'Ordinance' was promulgated), it had undergone frequent amendments and some of the amendments radically altered it so as to make it totally different from its earlier methodology and scheme. In Baluchistan, it was amended twice; first amendment came in the year, 1978 by means of Baluchistan Ordinance XXI of 1978 (hereinafter
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called the 'Baluchistan Ordinance of 1978') in order to curtail the right of appeal from two to one and that too to the High Court. It hardly needs recapitulation that originally two appeals were provided; the first to the District Judge and the second to the High Court. The second amendment was introduced in the year, 1980 through Baluchistan Urban Rent Restriction (Amendment) Ordinance, 1980 (hereinafter called the 'Baluchistan Ordinance of 1980') when section 15 was remodelled; slightly trimming the scope of authority and reshaping the span of jurisdiction of the appellate Court. These frequent changes did give rise to inconsistent and at times, rather incompatible language. Taking advantage of different phraseologies used ac these two occasions and placing reliance mainly upon this lack of harmony in the language used in the abovesaid two amendments; and in particular, with regard to the reference to the High Court, Mr. Basharatullah stressed that since in section 15 as amended by the 'Ordinances of 1978' and 1980, the word `High Court' is used only in the first paragraph (in both the amendments) while the subsequent paragraphs referred the High Court as 'appellate authority' which was of significance He further submitted that not only the word 'appellate authority' had been used in both the amending Ordinances, but a separate procedure to deal with the appeals had also been laid down which further confirmed the position that the High Court was not meant by law to act as such while hearing appeals but only as an `appellate authority' under the 'Ordinance', otherwise neither of the two i,e, the repeated use of the term 'appellate authority' and separate procedure would have been necessary; for the High Court had already section 96 of the Code of Civil Procedure at its disposal to follow; and assuming that for some reason, extra caution was considered necessary, in that event a reference to section 96 of the Code, would have been enough. According to him the addition of paras. 2 to 5 in each of the two amendments laying down the procedure for the disposal of appeals should not be considered a redundant or unnecessary act. He further emphasised that by laying down through proviso 2 of subsection (1) of section 15 that 'no appeal lay against the Controller's order under subsection (6) of section 13 (by which he determines rent etc. And by providing further that `no appeal shall also lie from an interlocutory order passed by the Controller'; the Legislature only meant to explain that the High Court was to function as 'appellate authority' under the 'Ordinance' and work within the ambit of the procedure herein laid down rather than adverting to the procedure of the Code of Civil Procedure which it would have otherwise followed. In nutshell, his case is that conferment of particular procedural exclusiveness within the framework of section 15, coupled with the repeated use of the term `appellate authority' made the Legislature's intent clear that the particular Judge of the High Court who heard appeal against the orders of the Rent Controller acted as persona designata. Of course, this contention was supported by emphasis on the glaring principle of the interpretation of statutes that no word used by the legislators was empty or meaningless; and to this aspect we revert soon. He also invited our attention to the construction- of section 15 as a whole and not disjunctively viz. By pick and choose of one or the other amendment and its separate interpretation. In short, we can say what he means is that these amendments have, in fact, substituted the District Judge as he was at the inception of the Ordinance for all purposes, i,e, a persona designata; though, as we shall see later that this position was also reversed and District Judge heard first appeals not as persona designata, but as District Judge. However, the crux of the aforementioned amendment seems to us to be that firstly, the number Of appeals from the Rent Controller's orders was restricted to one and thus in Baluchistan, this one (or only) appeal lay to the High Court while in Punjab it lay before the District Judge. In the province of Sind, the position is different, and we are afraid its discussion would not be of much help to resolve the controversy here at hand, as altogether different Statute has been introduced there in 1979, 9. Before proceeding further, we may add that the 'Ordinance' and its various amendments do not only use the term 'appellate authority' and `High Court' for the appellate forum, but a third term
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'appellate Court' has also been used in some places, which means that implication of the terminology used to denote appellate forum was not very seriously, or to say so oppressively in the mind of the legislators as it is in the mind of the learned counsel for the petitioners. 10. Mr. Muhammad Aslam Chishti, appeared as amicus curiae. He repudiated the stand taken by Mr. Basharatullah. His submission was that the appeals were heard by the High Court not as persona designata but as High Court and that the word 'High Court' used in subsection (1) of section 15 denoted the institution to which the appeals lay and not a particular Judge of the institution specially appointed to act as `appellate authority' under the 'Ordinance' and that as the appeals preferred to the High Court (to which subsection (1) of section 15 of the `Ordinance' refers) could be heard by any of the several Judges of a High Court, therefore, the question of all of them hearing appeals as persona designata does not arise ; for such jurisdiction could be conferred only on one of the Judges especially designated and notified for this purpose. Similarly, the entire institution of the High Court could not be meant to act as persona designata. The term 'persona designata' signifies an individual, or a person and not an institution. To presume otherwise, he submitted, would be illogical, rather absurd on the face of it. He also submitted that each Judge of a High Court while hearing a case acted as High Court, or say, as the institution itself, in contradiction to his individual capacityand, therefore, it was an additional reason necessitating nomination of a particulur Judge had the intention been that the appeals be heard by a persona designata, and not only this, but the said subsection (1) of section t5 would have also manifested that the Judge of the High Court designated for the purpose by the Provincial Government, instead of using the general term of High Court, the way it stood in the original section 15(1) which specifically mentioned that the particular District Judge nominated by the Provincial Government for the purpose etc. Shall hear appeals against the Rent Controller's orders, and so, the position that emerged there was that only the District Judges designated and notified for the purpose by the Provincial Government could act as first Appellate Courts and not others. Thus his rejoinder to Mr. Basharatullah's contention was that after subsection 15(1), reference to the High Court not as High Court, but as 'appellate authority' could only be considered a reference to that particular Judge of the Court who heard a particular appeal. As such, he submitted that the use of these two different terminologies did not allow any scope to draw a conclusion that the appeals were heard by the High Court as persona designata, as the institution as a whole could not be termed as persona designata and this argument finds support from the fact that after the amendment no particular Judge of the High Court was ever nominated as 'appellate authority' by the Provincial Government, and thus the position is that any one of the several Judges can hear the appeal in question. 11. In order to fully appreciate the respective stands of the learned counsel on their point, it would be of help if we rush through, rather chequered history of the 'Ordinance' ; side by side examining the reasons necessitating these frequent amendments, also keeping in view as to which of the two contentions, if accepted, would serve better to get nearer and closer to purpose in view of the legislators. 12. The 'Ordinance' was promulgated on 23rd February, 1959. It provided two appeals against the orders of the Rent Controller, of which , the first appeal lay to the District Judge and the second to the High. Court. We have already seen that all the District Judges were not suppose to hear these appeals, therefore, only those District Judges were competent in this context upon whom the Provincial Governments had conferred necessary powers through a Notification. It will be further noted with significance that this provision (reproduced above) did not lay down any procedure of its own for decision of the appeals, rather by an explanation vide its subsection (1) it provided that an appeal against the order of Rent Controller shall be heard as an appeal from an original decree under section 96 of the Code of Civil Procedure and from the order of the appellate authority (i. e.
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From the other of the nominated District Judge passed in first appeal) second appeal lay to the High Court and that the order of such District Judge was to be treated as an order from an appellate order under section 100 of the said Code. This scheme was defective, inasmuch as that although the District Judge was required to act as an 'appellate authority' under the 'Ordinance' yet he had not been provided with any independent procedure to deal with the appeals, so he had to follow the Code of Civil Procedure obviously on the analogy that he was a civil Court and could make use of the Code of Civil Procedure. This position also required consideration that although the Rent Controller was a quasi-judicial authority, but his decisions were to be treated as decrees executable like all other decrees passed by regular civil Courts, as envisaged by the 'Ordinance'. But despite all this, the District Judge did not enjoy the position of a District Court, as under the Code, but he was only a persona designata. This and some other such contradictions -created ample confusion requiring rectification so as to ensure smooth running. 13. A controversy as to whether or not such appeals could he transferred by the District Judges to the Additional District Judges also arose. A Full Bench was constituted in Mst. Aziz Begum v. Noor Muhammad (1). It was held that the words "confer on such District Judges as it thinks fit" were very significant. The Government may or may not confer the powers of an 'appellate authority' on a District Judge as the 'appellate authority' does not hear appeals against orders of 'Controller' as District Judge but as persona designata. This view was upheld by the Supreme Court in Khadim Mohy-ud-Din v. Ch. Rehmat Ali Nagra (2) and it was further held that the Rent Controller acted in quasi-judicial capacity and not as a…
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