PLJ 2006 Lahore 442 (DB)
[Rawalpindi Bench Rawalpindi
[
Present: Muhammad Akhtar Shabbir and Abdul Shakoor Paracha, JJ.
S.M. ISMAIL--Appellant
versus
CAPITAL DEVELOPMENT AUTHORITY ISLAMABAD
I.C.A. No. 161 of 2004, heard on 28.6.2005.
(i) Constitution of Pakistan
----Art. 199--Maintainability of--Respondent proceeded against appellant and dispossessed him from the site in dispute in violation of mandatory provisions of requiring prior notice--Held: Writ petition before High Court is competent. [P. 449] E
(ii) Constitution of Pakistan
----Art. 199--Jurisdiction--Public functionaries deriving authority from or under law, are obliged to act justly, fairly, equitably, reasonably, without any element of discrimination and squarely within parameters of law, as applicable in a given situation--Held : Deviations, if of substance, can be corrected through appropriate orders under Art. 199 of Constitution. [P. 451] H
(iii) Constitution of Pakistan
----Art. 199--Islamabad Rent Restriction Ordinance, (IV of 2001), Ss. 2(J)(i) & 17--Intra Court appeal--Capital Development Authority leased out plots to C.D.A. Staff Welfare Organization for setting Petrol Pump for thirty years in first instance and renewable for two subsequent terms of thirty years each--Staff Welfare Organization leased one plot to appellant for thirty years on 11.10.1973--Installation of petrol pump and C.N.G. Station by appellant--Application for renewal by applicant--Extention of lease for five years subject to payment of Rs. one lac per month--Appellant did not decline offer and requested extension for 30 years--Dispossession of appellant and sealing of premises--Constitutional petition of appellant disposed of--Validity--Action of dispossession of appellant by Staff Welfare Committee was without any lawful authority--Appellant has been dispossessed illegally, therefore, he is entitled for restoration of the possession--Rule of equity, good conscious and fairplay necessitates that period of lease of appellant be extended for further thirty years as same benefit has been availed by respondent for itself but they are relevant to extend such concession to appellant--Rejection of offer of appellant for extension of lease for 30 years is not only malicious act but this also shows the arrogant attitude of respondents--Intra Court appeal accepted, impugned order set aside and respondents directed to extent lease for thirty years. [Pp. 448, 451, 452 & 453] C, I, J & K
(iv) Islamabad
----Ss. 2 (j)(i) & 17--Dispossessed after expiry of lease period--Relationship of land lord and tenant between the parties and Rent Controller at Islamabad has jurisdiction--Contention of--It was a lease agreement originally executed between the parties and relationship between them is a lessor and lesse--Held: Contention is misconceived and cannot be accepted--Since it was a tenancy and did not cover under Islamabad Rent Restriction Ordinance, 2001. [P. 449] D
(v) Jurisdiction--
----Exercise of--Routine contractual disputes between private and public functionaries are not open to scrutiny under Constitutional jurisdiction--Breaches of such contracts which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by Government, semi-Government or local Authorities or alike controversies if involving derelictions of obligation, flowing from a statute, rules or instructions can adequately be addressed to for relief under Constitutional jurisdiction. [P. 450] F
(vi) Obiter dicta--
----Contract carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of malafidies, and such aspects remaining open for judicial review. [Pp. 450 & 451] G
(vii) Possession--
----Status of--After expiration of the term fixed, lessee continuing in possession, will in absence of assent by the lessor or his representative in interest, only be a tenant by sufference--He can be sued in ejectment any time without any previous notice or demand of possession. [P. 448] B
AIR 1919 Oudh 124; AIR 1929 Pat. 494; AIR 1919 Patna Bombay
(viii) Transfer of Property Act, 1882 (IV of 1882)--
----Ss. 106 & 116--Expiry of lease period of appellant--Continuing his possession over the site in dispute--Status of holding over possession falls within ambit of Section 116--Held: Provisions of Transfer of Property Act are not applicable to Islamabad Capital Territory, principle of Ss. 106 & 116 can be invoked as these provisions are not to be regarded being opposed by principle of equity and good conscious. [P. 448] A
1988 SCMR 2268.
Mr. Mujeeb-ur-Rehman Kiani, Advocate for Appellant.
Malik Muhammad Nawaz & Mrs. Misbah Sharif, Advocates for Respondents.
Date of hearing : 28.6.2005.
Judgment
Muhammad Akhtar Shabbir, J.--This Intra Court Appeal arises out of the judgment dated 30.6.2004 passed by learned Single Judge of this Court in Chamber in a Writ Petition No. 346/2004 vide which, the learned Judge referred the case of the appellant to the Staff Welfare Committee of the C.D.A. to decide the fate of the lease of the appellant afresh.
2. Facts leading to the filing of the present I.C.A. are to the effect that the appellant entered into a lease agreement in respect of a plot measuring 90 x 150 feet, Embassy Road Islamabad
3. The appellant feeling aggrieved of this letter had instituted a civil suit for perpetual injunction seeking protection of his possession on the site in the Court of Civil Judge, Islamabad
4. The appellant had also filed an application under Section 29(c) read with other provisions of Islamabad Rent Restriction Ordinance, 2001 for the determination of fair rent of the site in question before the learned Rent Controller, Islamabad
5. That vide letter dated 10.4.2003 issued by the respondents, the appellant had been intimated that a meeting was scheduled to be held on 12.4.2003 to discuss the matter of renewal of leases of the Petrol-pumps including the Petrol-pump of the appellant. In response thereto, the appellant gave consent to attend the meeting. On 7.2.2004, a notice was again issued by the Respondent No. 2 requiring the appellant to vacate the premises within 24 hours otherwise dispossession of the appellant from the site in question was threatened forcefully. The appellant sent reply to the said notice but through an illegal and arbitrary process on 8.2.2004, the respondents forcefully dispossessed the appellant from the site in question and sealed the premises including assets valuing of Rs. 30 million. Feeling aggrieved, the appellant instituted Writ Petition No. 346 of 2004 in the Lahore High Court, Rawalpindi Bench, Rawalpindi and the Hon'ble Judge in Chamber vide order/observation dated 30.6.2004 disposed of the writ petition with the direction contained in Para Nos. 42 to 44 of the judgment.
6. The learned counsel for the appellant contended that the appellant was initially granted lease of the plot by the respondent for the terms of 30 years w.e.f. 1.1.1973. The said plot was leased out to the appellant for installation of petrol-pump. The appellant installed Petrol-pumps well as the C.N.G. Filling Station at his own expenses and remained in possession till the time, but he has been forcefully dispossessed by the respondents. Further contended that the appellant in view of provisions of Section 2 (J)(i) of the Islamabad Rent Restriction Ordinance was still a tenant and was not liable to be evicted from the site premises in his possession except in due process of law which has been prescribed in Section 17(1) of the said Ordinance and that the legal status of the appellant was that of a tenant with regard to site in dispute. Further contended the appellant had been dispossessed in violation of existing law. Further contended that despite the statement made by the counsel for the respondent before the Civil Judge, the appellant was forcefully dispossessed from the site in dispute and the statement given by the learned counsel for the C.D.A was binding upon it. The act of respondents dispossessing the appellant was illegal and without lawful authority. Further contended that the controversy for determination of the rent of the disputed site was subjudice before the Rent Controller Islamabad, who has directed the appellant to deposit the tentative rent of Rs. 20,000/- per month. Further contended that the Transfer of Property Act is not applicable to the Islamabad Territory Bahawalpur (P.L.D. 2000 Lahore
7. On the other hand, learned counsel for respondents Malik Muhammad Nawaz & Mrs. Misbah Gulnar Sharif, Advocates vehemently opposed the arguments of the learned counsel for the petitioner contending that after the expiry of period of 30 years of lease of the appellant, an offer was made to him by respondents for extension of further time for five years for demanding Rs. 1,00,000/- as lease money per month. The said offer had not been accepted by the appellant, who has claimed the extension of lease for 30 years on the basis of Rs. 1,000/-, the original consideration of lease. Further contended that the matter was put up before the C.D.A. authorities and the offer made by the appellant was declined by the Authorities. Further contended that the appellant neither deposited the rent nor any further agreement of lease has been executed, therefore, after expiry of lease period, he was liable to be ejected forthwith. Further contended that required notice was issued to the appellant either to accept the offer of the respondent or vacate the premises. Further contended that the appellant is a lessee under the lessor/respondent and not a tenant and no relationship of landlord and tenant exist between the parties. Further contended that the case of the appellant is not covered within the provisions of Section 2(J)(i) of the Islamabad Rent Restriction Ordinance. Further contended that the notification was required to be issued in accordance with law declaring the area to be covered by the Islamabad Rent Restriction Ordinance, which had not been issued at the time of institution of the rent petition of the appellant. Further contended that lease period could be extended with the mutual consent of the parties. Further contended that under the direction of this Court, the Staff Welfare Committee considered the case of the appellant and declined to accept his offer for extension of his lease at the rate of Rs. 1,000/- per month for further 30 years. Learned counsel further contended that the provision of Section 106 of T.P. Act can be followed as principles of justice, equity and good conscience. Under this provision notice was issued to the appellant and compliance of law has been made. In this context, he has placed reliance to the case of Barkat Ullah Khan vs. Abdul Hamid (1981 S.C.M.R. 1200).
8. We have heard the arguments of the learned counsel for the parties and perused the record.
9. It is an admitted position that in the year 1973, two plots measuring 90 x 150 fee (1500 sq. yards) located at Embassy Road, Sector
G-6/4, Islamabad, were allotted to the CDA Staff Welfare Organization vide letter dated 9.10.1973 for setting up Petrol-pump. The period of lease was thirty years in the first instance, which was renewable for two subsequent terms of thirty, years each on such terms and conditions as may be prescribed by the Authority. The annual ground rent was liable to be enhanced by 20% per month on expiry of first term of thirty years and then 40% for the next term. The Staff Welfare Organization further leased out one of the plots to the appellant for a period of thirty years at the rate of
Rs. 1,000/- as rent per month for fifteen years and after fifteen years increase in the rent would be subject to the ceiling of 20% per month. Consequently, a lease agreement dated 11.10.1973 was executed between the appellant and the Staff Welfare Committee.
G-6/4, Islamabad, were allotted to the CDA Staff Welfare Organization vide letter dated 9.10.1973 for setting up Petrol-pump. The period of lease was thirty years in the first instance, which was renewable for two subsequent terms of thirty, years each on such terms and conditions as may be prescribed by the Authority. The annual ground rent was liable to be enhanced by 20% per month on expiry of first term of thirty years and then 40% for the next term. The Staff Welfare Organization further leased out one of the plots to the appellant for a period of thirty years at the rate of
Rs. 1,000/- as rent per month for fifteen years and after fifteen years increase in the rent would be subject to the ceiling of 20% per month. Consequently, a lease agreement dated 11.10.1973 was executed between the appellant and the Staff Welfare Committee.
10. After obtaining the lease, the appellant installed a Petrol-pump at the site and continued payment of rent to the respondent Staff Welfare Committee as per terms and conditions of the agreement. Before the expiry of the lease period, the appellant applied to the respondent for renewal of rent agreement of the Petrol-pump and in response to the letter dated 18.5.2001, the respondent through letter dated 15.1.2002 informed the appellant for extension of lease period only for five years subject to payment of Rupees one lac per month as rent. The appellant had applied to the respondent before the expiry of the term of lease period i.e. 31.12.2002 meaning thereby that the appellant proposed to get extended further period of lease. The appellant did not decline the offer of the respondent Staff Welfare Committee and requested for extension of the period of lease for further thirty years. A meeting of the Staff Welfare Committee had been convened to discuss the matter regarding renewal of the rental agreement of the Petrol-pump site. In the meeting, it was decided that the negotiation with the lessees for new lease at the rate of Rs. 1,00,000/- per month may be carried out by the Chairman (SWC) and in the light of those negotiations Secretary (SWC) may bring a revised summary in the Board for consideration. In case no settlement is reached then the lease may be cancelled.
11. In the present case, now the question to be determined between the parties was the period of lease and the amount of rent/lease money per month. There was correspondence between the parties and no specific denial or refusal by the appellant is established on the record for extension of the lease period. After the expiry of the lease period, the appellant continuing his possession over the site in dispute and his status of holding over possession clearly falls within the ambit of Section 116 of the Transfer of Property Act. Though the provisions of Transfer of Property Act are not applicable to Islamabad Capital Territory, but the principle of Sections 106 and 116 can be invoked as the provisions of Section 106 are not to be regarded being opposed by the principle of equity and good conscious. This proposition was discussed by the Hon'ble Judges in the case Messrs Airport Support Services vs. The Airport Manager, Quaid-e-Azam International Airport , Karachi
12. The plot has been allotted on lease for about ninety years to the respondent/Staff Welfare Committee, which is an Organization of the employees of CDA, therefore, they being a private party could not proceed against the appellant except in due process of law. The Staff Welfare Committee has no authority or power and their action of dispossession of the appellant from the plot in dispute was without any lawful authority. After allotment of plot on the basis of lease agreement, the CDA Authorities, during the period of lease, have become functus officio and they have also no power to authority to act against the appellant without due process of law. Thus, the action of the respondents, either by the CDA or by the Staff Welfare Committee regarding dispossession of the appellant from the site in dispute was illegal, without lawful authority and based upon mala fide.
13. The appellant has though requested for extension of the lease period for further thirty years and also wanted that the rent may be fixed at the rate of Rs. 1,000/- per month for fifteen years and thereafter 20% increase for further fifteen years. But the request of the appellant for extension of lease period for thirty years at the rate of Rs. 1000/- per month was declined and vide notice dated 7.2.2004, the respondents issued a notice to the appellant to hand over the possession of the site within 24-hours.
In all the above said circumstances, the appellant was only liable to be dispossessed through a suit for possession and not illegally or forcibly, as has been done by the respondents in the case of the appellant.
14. The most important feature of the case is that the CDA had leased out two plots to CDA Staff Welfare Committee for establishing Petrol-pumps. The Organization instead of establishing the Petrol-pump itself has further leased out the said plots to another party including the present appellant. It is an admitted fact that the CDA has allotted the plots to the Staff Welfare Organization for a period of thirty years in the first instance, which was renewable for two subsequent terms of thirty years each with increase of 20% and 4-% increase after every fifteen years on such terms and conditions as has been prescribed by the Authority.
In the instant case, before expiry of contract of lease, the appellant has requested the Staff Welfare Committee to extend the lease period and this offer was accepted by the Staff Welfare Committee and offered the extension for a period of further five years at the rate of Rs. 1,00,000/- per month as rent but the appellant did not decline this offer. The appellant only requested for extension of lease for further thirty years at the same rate.
15. After obtaining the lease of the site in dispute, the appellant has installed a Petrol-pump and CNG Station from their own expenses and spent a colossal amount of rupees 3-4 Crors, as such the offer by the respondents regarding extension of lease only for five years was not based upon bona fide; rather it was with malicious intention. Since the appellant was under the impression that the Staff Welfare Committee/respondent is the lessee of the plots for ninety years, therefore, the respondent will also treat the appellant with the same terms and conditions and his lease would be extended for further thirty years.
16. Admitted, that it was a lease agreement originally executed between the parties and the relationship between them is a lessor and lessee. As to the argument of the learned counsel for the appellant that there was a relationship of landlord and tenant between the parties and the learned Rented Controller at Islamabad has the jurisdiction to determine the fair rent, as Rent Restriction Ordinance has been enforced in Islamabad Capital Territory being misconceived cannot be accepted. Since it was not a tenancy and did not cover under Islamabad Rent Restriction Ordinance, certainly it was a lease agreement and the argument of the learned counsel for the respondent that to constitute the agreement, necessary requirement would be unconditional and acceptance thereof by the competent person/authority. In the present case, the offer was not categorically refused or declined by the appellant, therefore, a right has accrued to the appellant to approach this Court for enforcement of legal right.
17. In the present case, the Staff Welfare Committee/respondent under the shed of the CDA has proceeded against the appellant and dispossessed him from the site in dispute and in such circumstances if in violation of the mandatory provisions of the requiring prior notice the appellant has been dispossessed, the writ petition before the High Court is competent, as laid down in the case, referred to above, wherein the rule is founded on the premises that the public functionaries, deriving authority from or under law, are obligated to act justly fairly, equitably, reasonably, without any element of discrimination and squarely within the parameters of law, and deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. In another case Suleiman Khan & Co. vs. Pakistan Railways through General Manager, Railways Headquarters & 2 others (2003 SCL 331) it has been observed that the fee of leased property was enhanced and the High Court set aside the order of the Authority and remanded the case for decision afresh in accordance with law.
18. The learned Single Judge of this Court while disposing of the Writ Petition No. 346 of 2004 filed by the appellant has observed that the question with respect to the renewal of lease has now independently be decided by the Staff Welfare Committee as the offer of the respondents with regard to the rate of rent of rupees one lac has been admitted by the appellant, therefore, their one condition has been accepted. The respondents have already offered the extension of lease for a period of five years, which is not declined by the appellant, but his request is for extension of lease period for thirty years, as he has spent a huge amount, therefore, keeping in view the expenses incurred by the appellant on the installation of Petrol-pump and CNG Station at the site in dispute, he is fully entitled for extension of further longer period of 30-years.
19. Learned counsel for the appellant has submitted that the appellant has accepted the lease when nobody was willing to install a Petrol-pump on the said place because at that time,Islamabad City
20. So far as the objection of the learned counsel for the respondents that the writ petition is not maintainable, suffice it to say that routine contractual disputes between the private parties and public functionaries are not open to scrutiny under the Constitutional jurisdiction, breaches of such contracts, which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by the Government, semi-Government or Local Authorities or alike controversies if involving derelictions of obligations, flowing from a statute, rules or instructions can adequately be addressed to for relief under the Constitutional jurisdiction. Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitably, deriving authority from or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution.
21. the appellant has been dispossessed by the C.D.A. authority which is a statutory body and the dispossession has been made by them without performing requirement of law and it has been held in the case Messrs Airport Support Services Vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) that the question before the High Court in Constitutional petition under Article 199 of the Constitution was not one of enforcement of contractual obligations but of violation of mandatory provisions of the requiring prior notice as envisaged in Section 3, Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, writ petition was maintainable.
22. In another case, M/s. Wak Orient Power & Light Limited Gulberg-III Lahore vs. Govt. of Pakistan, Ministry of water and Power through its Secretary Islamabad & 2 others (PLJ 1998 Lahore 665 (FB) it has been observed by the Full Bench of the High Court that trend of authorities has now changed and remedy of writ is permitted to be resorted to in cases involving contract between private person and state/statutory functionary as it is considered to be more efficacious and speedy remedy as compared to civil suit or arbitration proceedings. The lessees/tenants have enforceable rights against their landlords/lessors to protect their tenancy rights through Courts and it is settled proposition that if a person is dispossessed forcibly, he has a legal right for restoration of his possession on the basis of the protective legislation vis-a-vis by filing a suit for possession under Section 9 of the Specific Relief Act. This argument is strengthened by the dictum laid down in Sikandar and 2 others vs. Muhammad Ayub and 5 others (PLD 1991 Supreme Court 1041) and Muhammad Aslam vs. Station House Officer and others (1993 MLD 152) wherein the writ petitioner had challenged the action of the police functionaries whose duty is to protect the citizens against all kinds of excesses from any corner, but instead of performing their duty strictly within the four corners of law, the guardians of law themselves sided with the law-breakers and acting in a most indecent haste had deprived the petitioner of his possession of the Petrol-pump in spite of existence of status quo order issued by the Civil Court. The police functionaries were overzealous in completing the illegal mission. The whole action of police functionaries in depriving the petitioner of his possession of filling station was consequently declared as illegal having got no sanction of law and the petitioner was directed to be put back in possession forthwith by the High Court in exercise of its Constitutional jurisdiction. The same is the case of the present petitioner, who has been dispossessed illegally and forcibly by the CDA Staff Welfare Association without due process of law, therefore, the appellant is entitled for restoration of the possession.
23. So far as the consideration/price of the lease per month at the rate of Rs. 1,00,000/- is concerned, learned counsel for the appellant has made a statement that the appellant has authorized him to accept the offer of the respondents in respect of the lease at the rate Rs. 1,00,000/- per month, meaning thereby that the condition imposed by the respondents offering the appellant to accept the extension of lease for further period at the rate of rupees one lac having been accepted.
24. Now the question remains in respect of the period of lease. Admittedly, the respondents have themselves offered the extension for a period of five years and the appellant wanted extension in period for thirty years. The appellant has spent colossal amount at the site in dispute for installation of Petrol-pump and the CNG Station and if the lease period is not extended, the appellant's family would be financially ruined and doomed. In such circumstances, we are of the view that the rule of equity, good conscious and fair play necessitate that the period of lease of the appellant be extended for further thirty years as the same benefit has been availed by the respondent/Staff Welfare Committee for itself but they are reluctant to extend this concession to the appellant. The Staff Welfare Organization having it upper hand as lessor should consider the difficulties and hardship of the other party/appellant.
25. the offer letter issued by the Staff Welfare Organization for extension of the lease of the appellant for further five years has not been declined by him rather a request was made for extension of lease for a longer period. The offer for extension of lease period is impliedly accepted by the appellant and his learned counsel while entering appearance in our Chamber has made a statement whereby he accepted the payment of lease consideration of Rs. 1,00,000/- (Rupees one lac) per month. It means that the appellant is ready and willing to fulfill his obligation but so far as the decision of the Staff Welfare Committee rejecting the offer of the appellant for extension of lease for further period of thirty years is concerned, it is not only their malicious act but this also shows the arrogant attitude of the respondents. When the leased plot has been allotted by the C.D.A. to the Staff Welfare Committee for ninety years by two subsequent terms of thirty years each why the respondent/CDA (SWA) is not giving the same benefit to the appellant who has also accepted its demand regarding the rate of rent of Rs. 1,00,000/- per month.
26. In view of the above discussion and keeping in view the principle of equity, good conscious as well as fairness and also in order to save the appellant's family from financial ruinous, we are constrained to accept this Intra Court Appeal and the impugned order passed by the learned Single Judge in Chamber is set aside and the respondents are directed to extend the lease in favour of the appellant for further period of thirty years in two consecutive terms of fifteen years each at the rate of rupees on lac per month with increase of 20% rent after fifteen years. There is no order as to costs.
(M.A.R.) Appeal accepted.
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