Find a Lawyer

Writ Petition No. 639 of 1980, decided on 22nd March, 1581.

-- S. 2(a)-Vacant site-Jurisdiction-Property in question consisting of godown and garages-Held, cannot be described as vacant site so .as to oust jurisdiction of Rent Controller-Property in question being one property, its non-residential parts can as well be part of whole property - Even otherwise sanctioned plan produced by respondents showing their intention to raise further structures upon property, property no longer to remain a vacant site-Vacant site if shown to have immediate chances and prospects of developing into building, Court to be slow in holding site to remain vacant site.-[Jurisdiction].

Saifur Rehman Kayani and Sh. Wazir Muhammad for Petitioners.

N. M. Khan for Respondent No. 1.

Date of hearing: 22nd March, 1981.

--The dispute between the parties in this petition relates to a Plot No. 16, situate in Dabgari Gardens, Peshawar Cantt. It is the property of Peshawar Cantonment and was leased out to late Haji Chinar Gul in 1960. Late Chinar Gul in his lifetime inducted the petitioners and respondents 4 to 7 as tenants of the property in question. After the death of Chinar Gul, the sons of Chinar Gul, i. e. respondents 1 to 3 acquired fresh lease from Cantonment in 1978 and the petitioners and respondents 4 to 7 as their tenants. In the eveci,4 that happened, respondent. I to 4 brought an application in the Court of Rent Controller for the eviction of the petitioners and respondents 4 to 7. The petitioners challenged the eviction proceedings against them mainly on the ground that as the plot in question is a vacant site, the Rent Controller has no jurisdiction in the matter under section 2(a) of the Cantonments Rent Restriction Act, 1963. The learned Controller framed the following issue :-

"Whether this Court has no jurisdiction for the trial of the present eviction petition."

In order to verify the assertion of the petitioner that the plot in question is a vacant site, he visited the spot and found that there were godowns and garages existing in the plot. He, therefore, repelled the claim of the petitioners that the plot in question is a vacant site and held that the Rent Controller has the jurisdiction in the matter, vide his order dated 10-11-1980 impugned in the present petition under Article 199 of the Consti tution.

The learned counsel for the petitioner has agitated the same question before us which had been agitated before the learned Controller. We do not see any substance in this petition which merits dismissal outright. It is not disputed that there are godowns and garages in the property in question and this being so, the property cannot be described a vacant site, because building has been defined in section 2(a) of the Act to mean any building or part of a building, whether residential or not. In view of this provision, as the property in question is one property, its non-residential t part can as well be the part of the whole property. Even otherwise, the property in question will no longer remain a vacant site. A reference to the impugned order of the learned Rent Controller will show that before him the respondents have produced a sanctioned plan to show that the have intended to raise further structures upon the property. Now the property is surrounded by buildings in a busy and attractive area as Dabgari Gardens, Peshawar Cantt. Therefore, the whole property in which there already exist godowns and garages is to be constructed. In this state of factual position, we are not prepared to believe that the property is or will remain a vacant site and thus the petitioners cannot be allowed to press into service the provision of section 2(a) of the Cantonment Rent Restriction Act, 1963 in a case of this nature. It may be observed that if upon the facts placed on the record, it is clear to the Court that in a locality where a vacant site has the immediate chances and prospects of developing into buildings, the Court should be slow in holding that the site should remain al vacant site in view of the provision of section 2(a), ibid, because if the site is allowed to remain a vacant site, it will militate against the progressive trends in the society. Even on this view of the matter which can very much be attracted to the present case, we hold that the property in question can no longer be termed a vacant site, so as to extend to it the application of sec tion 2(a) of the Act.

This writ petition is, therefore, dismissed with no order as to costs.

S. A. H. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.