Punjab Rented Premises Act (VII of 2009)---
----S.5---Constitution of Pakistan (1973), Arts 4, 10-A & 199---Constitutional petition---Right of fair trial---Registration of tenancy agreement---Absence of tenant---Effect---Grievance of tenant was that proposed tenancy agreement was registered in his absence by Rent Registrar and terms mentioned in tenancy agreement were not those which were settled between the parties---Validity---Application under S.S of Punjab Rented Premises Act, 2009, could only be initiated if there was an executed tenancy agreement---Such aspect of the matter was over-looked by Rent Registrar while registering agreement in question---Section 5(2) of Punjab Rented Premises Act, 2009 provided that landlord would present the tenancy agreement before Rent Registrar but it did not mean that entire process of registration of tenancy agreement was to be completed at the back of tenant through an ex parte proceedings---Registration of tenancy agreement was to create obligation on tenant and, therefore, tenant should have been put on notice and heard before any such registration could have taken place---Provision of Art. 10-A of the Constitution had equipped the tenant with a right to fair trial and due process---Civil rights and obligations could not be determined without fair trial and due process---Failure to issue notice to tenant and to proceed for registration of rent deed in absence of tenant was violative of Arts. 4 and 10-A of the Constitution---Fundamental right of fair trial and due process was to be read into every statute---Order passed by Rent Registrar for registration of tenancy agreement was without lawful authority and the same was set aside---Petition was allowed accordingly.
Azmatullah Choudhry for Petitioner.
Ch. Muhammad Iqbal for Respondents.
Date of hearing: 14th June, 2010.
WAJID ALI VS RENT REGISTRAR/SPECIAL JUDGE RENT, LAHOREP L D 2010 Lahore 463Before Syed Mansoor Ali Shah, JWAJID ALI---PetitionerVersusRENT REGISTRAR/SPECIAL JUDGE RENT, LAHORE and another---RespondentsWrit Petition No.8993 of 2010, decided on 14/06/2010.
JUDGMENT
SYED MANSOOR ALI SHAH, J.---Brief facts of the case are that respondent No.2 (landlord) moved an application under section 5 of the Rented Premises Act, 2009 (Act) praying for registration of a proposed rent agreement between the said respondent and the petitioner. Along with said application, respondent No. 2 attached the proposed written tenancy agreement. Learned Special Judge Rent, Lahore without issuing notice to the petitioner registered the said proposed rent agreement. The petitioner has, impugned the same on the ground that he has been tenant of respondent No.2 on the basis of oral tenancy and the terms written in the proposed tenancy agreement are not the same as agreed in the oral tenancy.
2. Learned counsel for the petitioner submits that the learned Special Judge Rent, Lahore has no jurisdiction under the law to register an agreement, which has not been executed by the petitioner.
3. Learned counsel for the respondents submits that under the Punjab Rented Premises Act, 2009, the existing tenancy has to be brought into conformity with the law and the same has to be recorded in writing and duly registered and therefore, the impugned order is in compliance of section 5 of the said Act.
4. Arguments heard, record perused.
5. Section 5 of the Rented Premises Act, 2009 simply states that:-
Agreement between landlord and tenant.--(1) A landlord shall not let out a premises to a tenant except by a tenancy agreement.
(2) A landlord shall present the tenancy agreement before the Rent Registrar.
(3) The Rent Registrar shall enter the particulars of the tenancy in a register, affix his official seal on the tenancy agreement, retain a copy thereof and return the original tenancy agreement to the landlord.
(4) The entry of particulars of the tenancy shall not absolve the landlord or the tenant of their liability to register the tenancy agreement under the law relating to registration of documents.
(5) A tenancy agreement entered in the office of a Rent Registrar or a certified copy thereof shall be a proof of the relationship of landlord and tenant.
(6) Any agreement which may be executed between the landlord and the tenant in respect of the premises shall be presented before the Rent Registrar in the same manner as provided in subsection (2). (Emphasis supplied)
6. Tenancy Agreement is defined in section 2(m) of the Act to mean an agreement in writing by which a landlord lets out premises to a tenant. Needless to say that a tenancy agreement is an executed contract which means that it has been duly executed between the parties (i.e., landlord and tenant).
7. Under section 5(2) of the Act, a Rent Registrar is to simply register a Tenancy Agreement. Therefore, registration pre-supposes that there exists a duly executed Tenancy Agreement between the parties, Similarly under section 5(3) the Rent Registrar is to affix his seal on the Tenancy Agreement. Section 5(4) states that the Tenancy Agreement can also be registered under the law relating to registration of documents. Even under the Registration Act, 1908, an agreement has to be executed by the parties before it is registered.
8. Section 5(6) of the Act provides for a situation where a Tenancy Agreement can be executed subsequent to the enforcement of the Act and then presented to the Rent Registrar. This also makes it clear that an executed Tenancy Agreement can be placed for registration before the Rent Registrar. In the present case the application submitted by respondent No.2 under section 5 of the Act clearly states that there is a "proposed tenancy agreement" between the parties. Application under section 5 can only be initiated if there is an executed Tenancy Agreement. This aspect of the matter was totally overlooked by the learned Rent Registrar in the impugned order.
9. The next question is whether a Tenancy Agreement can be registered without notice to the tenant. Section 5(2) provides that the landlord shall present the Tenancy Agreement before the Rent Registrar. This does not mean that the entire process of registration of the Tenancy Agreement has to be completed at the back of the tenant through an ex parte proceedings. The registration of the Tenancy Agreement creates obligation on the tenant and therefore the tenant must be put on notice and heard before any such registration takes place. Article 10-A of the Constitution is a new fundamental right that equips the petitioner with a right to fair trial and due process. Civil rights and obligations cannot be determined without fair trial and due process. Failure to issue notice to a tenant and to proceed for registration of the rent deed in the absence of the tenant is violative of Articles 4 and 10-A of the Constitution. Fundamental right of fair trial and due process has to be read into every statute. Therefore, impugned order dated 6-4-2010 is without lawful authority.
10. For the above reasons, this petition is allowed, and impugned order dated 6-4-2010 passed by Special Judge Rent, Lahore is set aside.
M.H./W-23/LPetition allowed.
Punjab Rented Premises Act (VII of 2009)---
----S.5---Constitution of Pakistan (1973), Arts 4, 10-A & 199---Constitutional petition---Right of fair trial---Registration of tenancy agreement---Absence of tenant---Effect---Grievance of tenant was that proposed tenancy agreement was registered in his absence by Rent Registrar and terms mentioned in tenancy agreement were not those which were settled between the parties---Validity---Application under S.S of Punjab Rented Premises Act, 2009, could only be initiated if there was an executed tenancy agreement---Such aspect of the matter was over-looked by Rent Registrar while registering agreement in question---Section 5(2) of Punjab Rented Premises Act, 2009 provided that landlord would present the tenancy agreement before Rent Registrar but it did not mean that entire process of registration of tenancy agreement was to be completed at the back of tenant through an ex parte proceedings---Registration of tenancy agreement was to create obligation on tenant and, therefore, tenant should have been put on notice and heard before any such registration could have taken place---Provision of Art. 10-A of the Constitution had equipped the tenant with a right to fair trial and due process---Civil rights and obligations could not be determined without fair trial and due process---Failure to issue notice to tenant and to proceed for registration of rent deed in absence of tenant was violative of Arts. 4 and 10-A of the Constitution---Fundamental right of fair trial and due process was to be read into every statute---Order passed by Rent Registrar for registration of tenancy agreement was without lawful authority and the same was set aside---Petition was allowed accordingly.
Azmatullah Choudhry for Petitioner.
Ch. Muhammad Iqbal for Respondents.
Date of hearing: 14th June, 2010.
JUDGMENT
SYED MANSOOR ALI SHAH, J.---Brief facts of the case are that respondent No.2 (landlord) moved an application under section 5 of the Rented Premises Act, 2009 (Act) praying for registration of a proposed rent agreement between the said respondent and the petitioner. Along with said application, respondent No. 2 attached the proposed written tenancy agreement. Learned Special Judge Rent, Lahore without issuing notice to the petitioner registered the said proposed rent agreement. The petitioner has, impugned the same on the ground that he has been tenant of respondent No.2 on the basis of oral tenancy and the terms written in the proposed tenancy agreement are not the same as agreed in the oral tenancy.
2. Learned counsel for the petitioner submits that the learned Special Judge Rent, Lahore has no jurisdiction under the law to register an agreement, which has not been executed by the petitioner.
3. Learned counsel for the respondents submits that under the Punjab Rented Premises Act, 2009, the existing tenancy has to be brought into conformity with the law and the same has to be recorded in writing and duly registered and therefore, the impugned order is in compliance of section 5 of the said Act.
4. Arguments heard, record perused.
5. Section 5 of the Rented Premises Act, 2009 simply states that:-
Agreement between landlord and tenant.--(1) A landlord shall not let out a premises to a tenant except by a tenancy agreement.
(2) A landlord shall present the tenancy agreement before the Rent Registrar.
(3) The Rent Registrar shall enter the particulars of the tenancy in a register, affix his official seal on the tenancy agreement, retain a copy thereof and return the original tenancy agreement to the landlord.
(4) The entry of particulars of the tenancy shall not absolve the landlord or the tenant of their liability to register the tenancy agreement under the law relating to registration of documents.
(5) A tenancy agreement entered in the office of a Rent Registrar or a certified copy thereof shall be a proof of the relationship of landlord and tenant.
(6) Any agreement which may be executed between the landlord and the tenant in respect of the premises shall be presented before the Rent Registrar in the same manner as provided in subsection (2). (Emphasis supplied)
6. Tenancy Agreement is defined in section 2(m) of the Act to mean an agreement in writing by which a landlord lets out premises to a tenant. Needless to say that a tenancy agreement is an executed contract which means that it has been duly executed between the parties (i.e., landlord and tenant).
7. Under section 5(2) of the Act, a Rent Registrar is to simply register a Tenancy Agreement. Therefore, registration pre-supposes that there exists a duly executed Tenancy Agreement between the parties, Similarly under section 5(3) the Rent Registrar is to affix his seal on the Tenancy Agreement. Section 5(4) states that the Tenancy Agreement can also be registered under the law relating to registration of documents. Even under the Registration Act, 1908, an agreement has to be executed by the parties before it is registered.
8. Section 5(6) of the Act provides for a situation where a Tenancy Agreement can be executed subsequent to the enforcement of the Act and then presented to the Rent Registrar. This also makes it clear that an executed Tenancy Agreement can be placed for registration before the Rent Registrar. In the present case the application submitted by respondent No.2 under section 5 of the Act clearly states that there is a "proposed tenancy agreement" between the parties. Application under section 5 can only be initiated if there is an executed Tenancy Agreement. This aspect of the matter was totally overlooked by the learned Rent Registrar in the impugned order.
9. The next question is whether a Tenancy Agreement can be registered without notice to the tenant. Section 5(2) provides that the landlord shall present the Tenancy Agreement before the Rent Registrar. This does not mean that the entire process of registration of the Tenancy Agreement has to be completed at the back of the tenant through an ex parte proceedings. The registration of the Tenancy Agreement creates obligation on the tenant and therefore the tenant must be put on notice and heard before any such registration takes place. Article 10-A of the Constitution is a new fundamental right that equips the petitioner with a right to fair trial and due process. Civil rights and obligations cannot be determined without fair trial and due process. Failure to issue notice to a tenant and to proceed for registration of the rent deed in the absence of the tenant is violative of Articles 4 and 10-A of the Constitution. Fundamental right of fair trial and due process has to be read into every statute. Therefore, impugned order dated 6-4-2010 is without lawful authority.
10. For the above reasons, this petition is allowed, and impugned order dated 6-4-2010 passed by Special Judge Rent, Lahore is set aside.
M.H./W-23/LPetition allowed.
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