HAFEEZURREHMAN vs THE ADDITIONAL RENT CONTROLLER, LAHORE CANTT.

' This is the tenant's writ petition seeking to challenge the order of his ejectment passed on 3-4- 1979 by the Additional Rent Controller, Lahore Cantonment, and affirmed in appeal by the District Judge, Lahore, on 7-4-1980.

2. The petitioner had objected to the jurisdiction of the Additional Rent Controller on the ground that the Cantonment Act, 1924; did not empower the Federal Government to appoint any officer other than an Executive Officer in a Cantonment, that when the Federal Government cannot appoint any one as an Additional Executive Officer, no one can hold that office in the eye of law and consequently no one by virtue of holding such office, can be vested with powers under the Cantonment Rent Restriction Act, 1963, as Additional Rent Controller. The contention has been reiterated in paragraph 9(b) of the present writ petition and it has been urged that the Additional Rent Controller had no jurisdiction. For this reliance has been placed on section 10 and clause (xiii) of section 2 of the Cantonment Act. Section 10 reads : "For every cantonment there shall be a Cantonment Board and an Executive Officer."

' Under clause (xiii) of section 2, an "Executive Officer" is defined to mean "the person appointed under this Act to be the Executive Officer of a cantonment". Under section 6(2) of the Cantonments Rent Restriction Act, the Central Government is empowered. "to appoint a person to be the Additional Controller of rents . . ." When the law permits, the appointment of "a person" foo be the Additional Controller of rents, the Central Government can under section 15 of the General Clauses Act make such appointment also by virtue of the office of such person.

3. Elaborating, learned counsel for the petitioner submits that the law intends that the cantonment shall be in charge of only one office and that there is no except for appointment of any Additional Executive Officer. This has been opposed vehemently by learned counsel for the landlord as well as by Syed Iftikhar Ahmad, Deputy Attorney-General, who appeared' at the request of the Court.

4. The contention is not tenable because in the first instance it is nobody's case that there are more than one Executive Officer in the Lahore Cantonment. An Additional Executive Officer cannot be said to be an Executive Officer even though he may be discharging some of the functions of an Executive Officer. Secondly, the contention raises a point of quo warranto which cannot be decided without impleading the Federal Government. The contention base on an interpretation of the Cantonment Act is also a collateral question. The competency of the Federal Government to appoint an Additional Executive Officer cannot, therefore, be challenged under the Cantonments R nutrition Act. In Farzand Ali v. Province of West Pakistan (1), it has been explained that :- "An officer de facto is defined by Colley in his . Book on Constitutional Limitations, Vol. 2, page 1355, as 'one who by some colour of right 'is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact'. An intruder is defined in the same hook at p. 1357 as 'one who attempts to perform the duties of an office without authority of law and without the support of public acquiescence'.

' Upon these principles it has been strenuously argued by the learned Attorney-General that the Third, Fruit and the Sixth Constitutional Amendments are now unassailable, because, at any rate, the allegedly disqualified respondents had acted as de facto members, for, they had {{FOOT NOTE}}

(1) PLD 1970 SC 98 {{FOOT NOTE}} ' acted under the bona fide belief that they were entitled to so act and had at least a fair colour of title and they have also performed their duties with public acquiescence. They were not purely intruders. Therefore, their acts even apart from the provisions of sub-clause (d) of clause (1) of Article 110 were as good as those of de jure members of the National Assembly. I am of the opinion that there is a great deal of force in this contention and since this is not a direct attack upon their right to continue as members, I am also of the opinion that their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98(2)(b) to be disqualified from continuing as Members of the House. To do so collaterally in proceedings not taken to test the validity of their title directly would lead to serious inconvenience to the public and those individuals whose interests may have been affected by the Legislature measures enacted in the meantime. This de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of public business and promote security of private rights."

' The contention, therefore, fails.

5. The ejectment had been ordered by the Additional Controller in the result of his finding on the two merit issues, i,e, "(1) Whether the respondent is entitled to the protection as contemplated under section 22 of Cantonments Rent Restriction Act, 1963? 0. P. P.

(2) Whether the petitioner intends to demolish the building for construction of a new building on the same site and has already obtained necessary sanction from the Lahore Cantonment Board ?

0. P. P."

The findings which had gone against the petitioner have been upheld by the Appellate Court. The petitioner is a Government servant but the protection under section 22 from eviction is available to a Government servant "if eviction would be detrimental to the public interest". There is no legal definition of the term "detrimental to the public interests", at least none has been cited. The question whether the eviction would" be so detrimental is thus left to the assessment of the Courts.

In the matter in hand, the Courts below have concurrently held that the fact that the tenant was a teacher by profession was not sufficient to hold that his eviction would be detrimental to the public interest. It is nr)t proper for me in the present jurisdiction to substitute my own opinion for that of the Courts below. There is, therefore, no case for interference. The other issue relates to a question of fact.

6. Another point raised is that although the ejectment application had been made to the Rent Controller, it had been dealt with by the Additional Rent Controller for which he had no jurisdiction.

Admittedly, no such objection had been taken before the Controller or the appellate Court. That being so, it will not be possible in the present jurisdiction to enquire into the facts as to how the application came to be heard by the Additional Rent Controller.

7. No other question having been raised, the writ petition is dismissed. There shall be no order as to costs.