1994 PLP 317 (CLC)

Musheer Alam for Plaintiff. K.M. Nadeem, AA: G. for Defendant. Date of hearing: 16th April, 1990. In his suit for declaration and permanent injunction plaintiff Raunaq Raza has filed this application (CMA 6413 of 1989) for issue of interim injunction restraining the defendants from taking over possession of the suit property or from ejecting the plaintiff from the same.

2. Admitted facts of the case are that on 28‑3‑1956 the then Collector of Karachi ordered leasing out of 7,500 sq. yds. of land from Na Class No.164 Deh,Safooran to S. Zafar Ali (father of the Plaintiff) for a period of 30 years for constructing there upon a Rest House. After efflux of 30 years the lease was renewable at the option of the lessee. In pursuance of such order dated 28‑3‑1956 S. Zafar Ali constructed over the suit property a hotel under the name of M/s. Hostelleriedge‑France. Later on S. Zafar Ali expired on 21‑9‑1963 leaving behind plaintiff Raunaq Raza and three others, whose names were brought in the record‑of‑rights.

3. During subsistence of the lease the legal heirs of Zafar Ali filed Writ Petition No.736 of 1966 in the then High Court of West Pakistan, against the defendants challenging cancellation of the lease. During pendency of the writ petition there was compromise between the parties and the writ petition was withdrawn. The terms of the compromise were given in a letter dated 7‑12‑1967 from the Deputy Secretary, Land Utilization, Board of Revenue, West Pakistan to legal heirs of Zafar Ali (Copy R/5). One of the terms and conditions of the compromise was that the lease shall be for the remaining period of 30 years and it shall not be renewable at option of the lessee although under Collector of Karachi's order dated 28‑3‑1956 the lease was renewable at the option of the lessee, if the initial lease period was over. The legal heirs of Zafar Ali accepted said condition and also agreed for payment of Rs. 18,000 per year as lease money, payable half‑yearly in advance on or before 1st January and 1st July of each year.

4. The legal heirs of Zafar Ali moved for renewal of the lease and their case for renewal of lease of 30 years was recommended by the concerned Mukhtiarkar and by the concerned Deputy. Commissioner under letters dated 15‑9‑1985 and 14‑11‑1985 respectively. The Commissioner, Karachi under his letter dated 1‑12‑1986 recommended to the Board of Revenue that the land measuring 7,500 sq. yds. (Suit Property) earlier leased out to Zafar Ali may be sold to the legal heirs of Zafar Ali at the rate of Rs.300 per Sq. Yd. In the alternative the Commissioner recommended renewal of the lease for another 30 years. However, the Board of Revenue refused request for renewal. of the lease of the suit property, and such intimation was given by the Deputy Commissioner East, Karachi to widow of Zafar Ali under a letter dated 18‑9‑1989. Under the same letter the heirs of Zafar Ali were called upon to remove the construction over the suit property and to hand over vacant possession of the same within a period of 7 days of receiving the said letter, or else the structure would be demolished. This letter prompted the plaintiff to file this suit.

5. Mr. Mushir Alam, learned Counsel for the plaintiff argued' that application of heirs of Zafar Ali for renewal of the lease was moved on 2‑5‑1984 and renewal of lease was duly recommended by all the Revenue Officials up to the level of Commissioner and as such renewal of the lease should have been permitted. Learned Counsel for the plaintiff put reliance on para.25 of Statement of Conditions for Grant of State Land, published in Sindh Government Gazette, Extraordinary, para.1 dated 5‑6‑1975. The Statement of Conditions was issued in pursuance of the, provisions contained by section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912. Learned Counsel for the plaintiff further argued that in view of para.25 of said Statement all existing leases of State (and for building purposes were to be renewed on the same terms and conditions and that this created vested right in favour of the heirs of Zafar Ali against the defendants. It was further argued that no order for resumption of the suit property was passed or communicated to the lessees, as required by said Act. On the point of balance of convenience learned Counsel argued that the lessees had raised construction over the suit property and had spent a lot on raising of the construction and on making it fit for being run as a hotel and as such they would suffer irreparable loss if they were ejected at this time. Replying to objection raised by the defendants in para. 3 of their written statement that the purpose of the grant was violated inasmuch as instead of constructing rest house the lessee had constructed a hotel, learned Counsel for the plaintiff referred to Government of West Pakistan letter dated 24‑1‑1968 (Copy R/6) where the word "hotel" has been used and argued that the defendants had never objected that was constructed and not rest house. Reference was also made to the Board of Revenue, West Pakistan's letters dated 31‑12‑1968 and 24‑1‑1969 which also used the word `hotel' and not `rest house'. Referring to section 24 of the said Act, learned Counsel for the plaintiff argued that the lessees were pot given an opportunity to appear and state their objection, before passing of the orders directing their eviction. Lastly it was argued that no copy of the order dated 13‑9‑1989 was sent with the letter dated 18‑9‑1989 (Copy Annexure‑I). In support learned Counsel for the plaintiff relied on the cases of (i) Muhammad Amin v. Allana and others (PLD 1988 Revenue 29 and PLD 1988 Rev. 29), (ii) Muqeem v Ranjho (PLD 1988 Revenue 33) and (iii) Muhammad Tufail and another v. Faqir Muhammad (1989 CLC 1529).

6. The application was vehemently opposed by Mr. K.M. Nadim, learned AA: G. who appeared for the defendants. He emphasised on the point that after compromise having been reached between the parties in the writ petition, the lessees were bound by the conditions of the compromise, one of which was that the lease shall not be renewable at option of the lessees. Referring to the Statement of Conditions issued under subsection (2) .of section 10 of the said Act, learned AA.‑G. argued that the same was issued on 5‑6‑1975 and it had no retrospective effect and as such para.25 of the Statement of Conditions would not benefit the plaintiff and other heirs of War Ali. Learned AA.‑G. further argued that renewal of lease was not a vested right of a party and that a lease comes to end by efflux of time. It was next argued that suit of the plaintiff suffered from laches as the lease expired on 1‑7‑1985 while the present suit was filed on 30‑9‑1989. Learned AA.‑G. also referred to section 36 of the said Act, where it has been laid down that a Civil Court shall not have jurisdiction in any matter which can be disposed of by the Collector of Provincial Government or by the Board of Revenue under the said Act.

7. No doubt renewal of the lease be ordered by the Provincial Government or the Board of Revenue and not by a Civil Court. However, the Civil Court has jurisdiction to examine the cases to be satisfied if the executive functionaries have exercised their powers in accordance with law and have followed the statutory obligations as well as the principles of natural justice. To that extent the Civil Courts have jurisdiction and this observation does not militate against the provisions contained by section 36 of the said Act.

8. It is correct that the plaintiff was party to the compromise by which he withdrew his writ petition and had agreed to one of the conditions of the compromise that the lease shall not be renewable at option of the lessees. On that score the plaintiffs or other heirs of Zafar Ali had no vested right to ask for renewal of the lease. However, the Statement of Conditions issued under section 10(2) of the said Act is to be given its due weight. Para.25(1) of the Statement of Conditions reads as below:‑‑ "Notwithstanding anything contained in these conditions all existing leases of State land for building purposes shall be renewed on the same terms and conditions attached to such leases subject to payment revised rates of increase rent determined by the Deputy Commissioner, provided that such rates shall be reported to the Board of Revenue." Language of the aforesaid para. 25(1) is not ambiguous and it starts with the word "notwithstanding" and applies to all the leases of State land which existed on 5‑6‑1975. The provisions contained by said para. 25 may not be retrospective but they are admittedly prospective. The lease in question admittedly expired on 1‑7‑1985. This means that said lease existed on 5‑6‑1975 when the Statement of Conditions was issued. In this view of the matter, I am of the view that para.25 of the Statement of Conditions by using the word "shall" made it obligatory for the defendants to renew the lease on the existing terms and conditions, subject to payment of revised rates of increased rent, as specified in the said para.

9. Case of Muhammad Amin (PLD 1988 Revenue 29) deals with resumption of land from. the grantee under section 24 of the said Act and the view taken was that resumption of land could not be ordered unlbss grantee was issued written notice requiring him to rectify breach of condition. Case of Muqeem (PLD 1988 Revenue 33) has no application to this case and it deals with revisional powers of the Board of Revenue. In the case of Muhammad Tufail and another (1989 CLC 1529) it was held that where agreement between the parties for transfer of land in favour of the plaintiffs after proprietary rights were conferred upon the defendants, bad preceded the allotment, the application of section 19 of the said Act would stand excluded. In cited case the subordinate courts declined the prayer for interim injunction on the ground that it was aimed at frustrating the warrants of eviction but the interim injunction protecting possession of the petitioners over the suit property was issued by Lahore High Court on the ground that the balance of convenience appeared to be in favour of the petitioners and they would suffer irreparable loss in having to lose the possession and that the petitioner wanted protection of their possession only till determination of their case, as set up is the plaint. In the present case the balance of convenience falls on the plaintiff who would suffer irreparable loss if he evicted from the suit property before his suit is decided. I, therefore, issue interim injunction against the defendants restraining them from dispossessing the plaintiff from the suit property till decision of the suit. AA./R‑250/K Order accordingly.