1991 PLP 2387 (MLD)

Zafar Chaudhry for Petitioner. Raja Dilshad A. Khan for Respondents Nos. 1 to

3. Qazi Abdul Hameed for some of the private Respondents. Date of hearing: 9th June, 1991. The petitioner filed this Constitution petition assailing the grant of lease of plot in dispute measuring 1 Kanal 9 Marlas 100 Sq.ft. comprising Khasra No.1509-min, in favour of the residents of Yasin Street, Hall Road, Lahore, through Muhammad Ayub one of the residents vide order dated 28th April, 1969, of the Administrator of Auqaf subject to the condition that the plot in dispute will be used as recreation park for the children on payment of monthly rent. The factual assertions made in the petition are that the plot in question is part of the Waqf property, the administration, management and control of which was taken over alongwith other properties vide Notification dated 26th October, 1968, and possession thereof was also taken by the Auqaf Department pursuant to the said Notification on 29th October, 1968. The respondents after taking over the possession issued notices dated 9-11-1968 (Annexure `B') and 23-11-1968 (Annexure `C') to the petitioner requiring him to execute lease-deed and also to pay the rent. It was further asserted that in response to the said notices the petitioner executed formal rent, note for a period of two years and tendered rent for the said plot at the rate of Rs.20 per mensem. The rent for the period commencing from 29th October, 1968 to 30th April, 1969 at the aforesaid rate was received by the respondents. It is claimed that the tenancy so created was cancelled on the representation of respondents 4 to 47 vide impugned order, dated 28-4-1969 by giving one month's notice. The parties are in agreement that after the expiry of the one month's period the possession was taken over from the petitioner and the residents of Yasin Street through their association are in possession since then.

2. Learned counsel in support of the petition contended that the tenancy so created could not be cancelled without providing an opportunity of hearing to the petitioner and that the notice of one month given after cancellation of the tenancy cannot be taken up as a substitute of a show-cause notice.

3. I have considered the aforenoted contention of the learned counsel but find it without merit. The petitioner in para. 4 of the petition has averred that he did execute formal rent note for a period of two years but this position has not been accepted in the comments submitted by the respondents. In reply to para. 4 of the petition the only thing conceded is that the petitioner had paid the rent against receipt for the period commencing from 29th October, 1968 to 30th April, 1969. In view of the aforenoted position taken in the comments the petitioner was asked to produce the copy of the rent note. The answer given was that he does not remember now having executed any rent note. It will, therefore, be seen that mere payment of the rent for a certain period would not create a tenancy for a fixed period. The petitioner admittedly lost his possession since April, 1969 and in the circumstances he cannot seek restoration of possession on the basis of monthly tenancy after expiry of a period of more than 2 years. Even for another reason interference in exercise of extraordinary Constitutional jurisdiction which is essentially discretionary jurisdiction is not warranted. The plot in question has been given on lease to the residents of the street for use as recreation park for the children. The interest of the residents of the Mohallah has to be given preference over the interest of one individual especially when the individual has not been able to show any vested right to the grant of the lease of the plot in question.

4. Before parting with this judgment it may be noted that one Mst. Shamim Akhtar Butt entered appearance and claimed that pursuant to the judgment dated 22nd October, 1977, passed in Writ Petition No.1216-R of 1976 she is entitled to be given area out of Khasra No.1504 so as to allow her three times the plinth area of the bungalow transferred in her favour. I have gone through the copy of the judgment passed in the said petition. There is a mention of the area of 1 Kanal 9 Marlas and 100 Sft. as Waqf property. This area as such is to be separated from the remaining area of Khasra number in dispute and Mst. Shamim Akhtar Butt is at liberty to seek from the concerned quarters the implementation of the direction given in the judgment dated 22nd October, 1977. The subject-matter of this petition has nothing to do with the rights being claimed by Mst. Shamim Akhtar Butt. With these observations and for the reasons given above this petition is dismissed. The parties are, however, left to bear their own cost. H.B.T./A-1355/L???????????????????????????????????????????????????????????????????????????????? Petition dismissed.