2015 Y L R 2106
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
QUETTA METROPOLITAN CORPORATION through Administrator, Quetta and 2
others ---Petitioners
versus
ABDUL WASAY and others ---Respondents
Civil Revisions Nos. 41 and 42 of 2012, decided on 27th May, 2015.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 2(2) & 3 ---Specific Relief Act (I of 1877), S. 42---Suit for declaration--- Lease agreement -
--Enhancement of rent by Metropolitan corporation (lessor) ---Sc ope---Municipal Corporation
called upon the plaintiffs to execute fresh lease agreement at the enhanced rate of rent against
which plaintiffs filed suit which was decreed concurrently ---Validity ---Appellate Court had
rightly found that relationship of landlord and tenant existed between the parties ---Provisions of
West Pakistan Urban Rent Restriction Ordinance, 1959 would come into play in case of any
violation of any provision of contract ---Lessor would be authorized to take -over the possession
of properti es in occupation of lessee after expiry of lease agreement between the parties, in
absence of any agreement to the contrary ---Lessor corporation was authorized to initiate
proceedings against the lessees in accordance with the law under the provisions of W est Pakistan
Urban Rent Restriction Ordinance, 1959 after lease period--- Lessor was authorized to regulate
and maintain its properties ---Lessees could not question such power of lessor in absence of any
arbitrariness or illegality and colorful exercise of power ---Lessees could succeed in questioning
the right of Lessor ---Corporation to enhance the rent only if it was shown that they had been
singled out for different treatment ---Lease agreement showed that Enhancement of rent by the
lessor Corporation was a pplicable to the lessees during existence of lease agreement ---Lessees
had been in possession of the shops in question for the last about 50 years and they were paying
a meagre amount ---Plaintiffs were not paying monthly rent according to the prevailing ma rket
rates which had made out a case for enhancement of rent against them ---Public bodies had the
right to put the properties belonging to them in auction and augment their income and deal with
it in a manner advantageous to them ---Any direction not to hol d auction or not to increase rent or
to renew the lease would not only put limit on their right but same would work against the larger
interest of the society ---Few persons who got into the property being successful bidders for a
particular period could not be allowed to close the doors ---Impugned judgments and decrees
passed by the courts below were set aside--- If lessees were prepared to pay the enhanced rent as
per notification issued by the Lessor -Corporation then they should not be dispossessed--- Lesse es
were directed to pay rent on enhanced rate for the period they had not paid the same and in case
of their failure the Lessor -Corporation would be at liberty to initiate proceedings for ejectment
from the shops in question---Revision was accepted in circ umstances.
H. Shakil Ahmed for Petitioners.
Mujeeb Ahmed Hashmi for Respondents (in Civil Revision Petition No. 41 of 2012).
Abdul Khair Achakzai for Respondents (in Civil Revision Petition No. 42 of 2012).
Date of hearing: 15th May, 2015.
JUDGMENT.
MUHAMMAD HASHIM KHAN KAKAR, J. --- By way of these petitions under
Section 115 of the Civil Procedure Code, 1908 (C.P.C.), the judgments and decrees dated 30th
April, 2011 and 24th November 2011 ("the impugned judgments"), respectively passed b y the
learned Senior Civil Judge -II, Quetta ("the trial Court") and Additional District Judge - III, Quetta
("the appellate Court"), have been called in question by the petitioners i.e. Quetta Metropolitan
Corporation ("QMC"), through its Administrator. Since common question of law and fact is
involved in the matters, therefore, both the petitions are being disposed of through this common
judgment.
2. The short facts, relevant for disposal of these revision petitions, are that the respondents
are tenants o f the petitioners in the shops, situated at Beef Market, Kasi Road and Jinnah Cloth
Market, Jinnah Road, Quetta and in this respect agreements were also executed between the
parties, however, after expiry of period of the agreements, the same were not exte nded and the
respondents are paying rent to the petitioners on month- in-month basis. The respondents were
called upon by the petitioners to execute fresh lease agreements for the financial year 1999 -2000
at the enhanced rent of Rs.2000, Rs.6000 and Rs.8000 per month in view of the decision taken
by petitioner No.1 on the basis of a Resolution passed by the QMC vide item No.16 in its
meeting held on 4th December 1999. The respondents, being aggrieved of the decision taken by
petitioner No.1, filed a suit for declaration and injunction before the learned trial Court, which
was decreed in their favour. The petitioners assailed the judgment before the learned appellate
Court, which too was dismissed.
3. Messrs Mujeeb Ahmed Hashmi and Abdul Khair Achakzai, lear ned counsel for the
respondents, contended that the increase in the rent was arbitrary and was made without
consultation of the respondents, therefore, the respondents are not bound by such a decision
made by the petitioners. While supporting the impugned judgments passed by the two Courts
below, he further submitted that, keeping in view the provisions of the Balochistan Urban Rent
Restriction Ordinance 1959 ("the Ordinance of 1959"), petitioner No.1 was not authorised to
increase the rent, rather the peti tioners should approach the Rent Controller for fixation of fair
rent with the purview of Section 4 of the Ordinance of 1959.
4. On the contrary, Mr. H. Shakil Ahmed, learned counsel for the petitioners, stated that the
provisions of the Ordinance of 1959 are not applicable in respect of the properties, belonging to
QMC, autonomous bodies and in case of any violation of the terms and conditions of the
agreements, executed between the parties, the provisions of the Balochistan Autonomous Bodies
Immovable P roperty (Ejectment of Unauthorized Occupants) Ordinance, 1965 ("the Ordinance
of 1965") can be pressed into service and, thus, there was absolutely no occasion with the Courts
below to interfere in the discretion used by the Authority, which is, otherwise, neither arbitrary
nor perverse.
5. I have listened to the rival contentions of the learned counsel for the parties in the light of
the record, however, I have noticed a legal feature of this case, emerging out of different
notifications, crucially relev ant for disposal of the instant controversy, which read as under:
(1) "West Pakistan Urban Rent Restriction Ordinance, 1959.
No. HG- 10-2/59, 12th March, 1959, (Gazette Extraordinary, 16th" March 1959) ---In
exercise of the powers conferred by section 3 of the West Pakistan Urban Rent Restriction
Ordinance, 1959, the Governor of the West Pakistan is pleased to direct that the provisions of the
said Ordinance shall not apply to buildings and rented land vested in the Central or Provincial
Government."
(2) "No. Jud1. 1- 17(7)59--- In supersession of Home Department Notification No.Jud1.- 1-
17(7)/59, dated 20" June 1962 and in exercise of the powers conferred by section 3 of West
Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of West Pakistan is pleased to
direct that the provisions of the said Ordinance shall not apply to those buildings or lands
belonging to Local Body Administering an urban area which are used as shop or are of
commercial nature."
(3) "West Pakistan Urban Rent Restriction Ordinance, 1959 (provisions not applicable to
buildings or lands belonging to Local Bodies)
[Gazette of West Pakistan, 6th July 1962]
No. Judl -1-17(7)/59.- In exercise of the powers conferred by section 3 of the West
Pakistan Urban Rent Restriction O rdinance, 1959, the Governor of West Pakistan is pleased to
direct that the provisions of the said Ordinance shall not apply to such buildings or lands
belonging to a Local Body Administering an urban area which used to be let out in the past by
means of auction."
6. A plain reading of the aforementioned notifications and sections 2(i) and 3 of the
Ordinance of 1959 clearly indicates that the Ordinance of 1959 is not applicable to the shops,
which are subject matter of the instant revision petitions. The efficacy of the said notifications
could not be questioned on any standard before me by the learned counsel for the respondents.
Even otherwise, the respondents have not challenged the findings of the learned appellate Court
to that effect before this Cour t. The learned appellate Court has rightly held that the relationship
of landlord and tenant between the parties is created by the contract lease and such relationship is
governed by the terms and conditions as laid down in the contract executed between the parties.
Thus, the contention of the learned counsel for the respondents, that petitioner No.1 instead of
enhancing the rent, should have approached the learned Rent Controller, is devoid of any force.
7. The learned appellate Court has rightly held that in case of any violation of any provision
of the contract, the provisions of the Ordinance of 1965 would come into play. It may be
observed that after expiry of lease agreements between the parties, the lessees, in absence of any
agreements to the con trary, will be considered to be holding over the lease and in that event, the
lessor will be authorized to take over the possession of the properties in occupation of the
lessees, while exercising powers conferred upon the petitioners within the purview of the
Ordinance of 1965. Since the leases, executed between the parties, stand determined by efflux of
time, as such, the petitioners are authorised to initiate proceedings against the respondents
strictly in accordance with law under the provisions of the Ordinance of 1965.
8. After setting at rest the afore mentioned two controversies, the only question, which
requires to be determined by this Court, is as to whether the petitioners were authorized to
enhance the rent, if so, whether the same is arbitrar y and unreasonable? In this respect, I am of
the opinion that the law recognizes such power of the petitioners to regulate and maintain it
properties and it cannot be questioned by persons like the respondents under one or the other
pretext. So long there is no arbitrariness and so long there is no illegality and colourful exercise
of power, it cannot be questioned by the respondents. Only if it is shown that they have been
singled out for different treatment, the respondents can succeed in questioning the right of the
QMC to enhance the rent. It is also specifically provided almost in all the agreements executed
between the parties that during the existence of lease agreements, the enhancement of rent by the
petitioners would be applicable to the lessees. S o far as the arbitrariness and reasonableness of
enhancement in the monthly rent is concerned, I have painfully observed that the respondents
have been in possession of the shops in question for the last about 50 years and paying a meager
amount of Rs.80 t o Rs.200 per month in respect of the shops situated at the hub of the city. It
may be observed that, admittedly, the respondents are not paying monthly rent according to the
prevailing market rates, which has made out a case for enhancement of rent against the
respondents. Although under the provisions of Balochistan Local Council (Property) Rules 1983,
it was duty of the petitioners to take such steps as may be necessary to ensure that the properties
vested in it are managed and maintained in the best inte rests of the public, yet it appears that the
petitioners woke up from a long slumber with a shuddering realization to protect and safeguard
the interest of the QMC and the public exchequer.
9. It may be observed that during the proceedings of Constitutional Petition No.59 of 2010
titled as Mst. Parveen vs. Government of Balochistan, a number of tenants of the QMC were
agreed to enhance the rent in respect of the premises in their occupation from Rs.22 per annum
up to Rs.45,000 and Rs.1,00,000 per month. B esides hearing the respondents in the instant case,
full-fledged opportunity of hearing was provided to them in the proceedings of the said
constitutional petition, but they are reluctant, while taking benefits of technicalities, to enhance
the rent. Needl ess to observe that even the proposed enhancement in monthly rent is far less than
the market value, prevailing in Quetta city, hence, the proposed rent is neither arbitrary, nor
exorbitant.
10. Learned counsel for the respondents submitted that leasing out is not a sovereign
exercise, but it is like any other act of an ordinary individual and, therefore, the QMC or the
public bodies cannot claim any higher right. He further submitted that it will be opposed to
public interest to deny the right of the res pondents to obtain renewals. If they are denied for the
renewal, they will be uprooted and their livelihood will be affected. The submissions made by
the learned counsel for the respondents are devoid of any force, because it is the larger interest of
the Society that has to be taken into account. If certain persons, merely because they bid at the
auction and became successful bidders and thereby became entitled to enjoy the right for certain
period, are allowed to contend that they must be granted renewal, then there will be no control
for the public bodies. Persons let into possession would like to continue as long as it is possible,
and then their heirs will be let into possession and it will likewise become a heritable right. It
cannot be permitted at al l. The properties of local bodies cannot be allowed to be fettered by
perpetuity. Public bodies have the right to put the properties belonging to them in auction and
augment their income and, thus, deal with it in a manner more advantageous to them. Any
direction not to hold auction or not to increase the monthly rent or to renew the lease will not
only put an unwarranted limit on their right, but would work against the larger interest of the
Society. Further, it will lead to monopoly. Thus, a few persons, who get into the property,
because they happened to be successful bidders for a particular period, cannot be allowed to
close the doors.
11. There is one other aspect to be noted in this regard. Though in spite of specific directions
the respondents did not produce the lease documents, yet it can be presumed that the respondents
are there now because of the public auction. In other words pursuant to the public auction held,
they being the highest bidders were allotted the shops to enjoy the right. Therefo re, when they
owe their entry to a public auction, is it open to them to say that no public auction should be
held. Can they say "it is all right, I have, come into the property, thanks to a public auction, "let
us have no more actions". According to my opinion the respondents under the law will not be
entitled to put forward such contention. Their entry into the property is because of a public
auction and they cannot claim that such an entry should be barred for others, enabling them to
remain in the prope rty for ever, that too, on their terms and conditions.
12. Admittedly, there is no point in dispossessing the respondents, if they are prepared to pay
the enhanced rent as per notification issued by the petitioners. They are in the premises doing
busines s, apparently, with considerable investment. If the respondents are ready to make the
payment of monthly rent at the enhanced rent, it is proper that the respondents be allowed to
continue their possession of these premises. They must, however, pay the rent at the enhanced
rate as per notification from the date of its issuance.
For the aforesaid discussion, the petitions are allowed and the impugned judgments
passed by the Courts below are set aside. The respondents are directed to make the payment of
monthly rent on enhanced rate from 4th December 1999 and in case of failure, the petitioners
would be at liberty to initiate proceedings for ejectment of the respondents from the shops in
question in accordance with the provisions of Ordinance of 1959.
ZC/73/Bal Revision allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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