2021 PLP 699 (CLC)

MUHAMMAD NAEEM ANWAR, J.

By invoking the constitutional jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of Notification No. SO (Auqaf-II) 2-43/2013-5848-5947 dated 02nd January, 2014, issued by the respondent No.02, to the extent of substitution of sub-clause (iii) of clause (b) of sub-rule (1) of Rule (7) of the West Pakistan Waqf Properties (Administration) Rules, 1960, whereby it was substituted as "while 40% increase shall be made in respect of old or sitting tenants, after every three years", with the prayer that:- "On acceptance of this WP on the basis of Expounded subject, facts and circumstances the impugned amendment via Notification No.SO(Auqaf-11) 2-43/2013 of taking 40 percent increased instead of 25 percent and by taking illegal surcharge on monthly rent may kindly be declared as illegal, unlawful ultra-vires and against the statutes of rent laws for the best interest of justice and fair play."

2. It was averred in the petition that petitioner is in possession of Shop No.127/Unit 430 near Masjid Mohabbat Khan as tenant of respondents since, 2003. That the monthly bill for the month of June, 2019, when served upon the petitioner, with exorbitant increase of 40% of the existing rent shocked the petitioner, as the same is illegal, unjust, unwarranted unconstitutional, hence, this petition

3. Respondents were put on notice who opposed the issuance of Writ.

4. Learned counsel for the petitioner contended that monthly rent could only be extended to the extent of 25% after every three years, this being the ceiling limit so any enhancement above 25% would be illegal and unconstitutional. To substantiate his arguments, he referred section 04 of the West Pakistan Urban Rent Restriction Ordinance, 1959, whereby, proviso to subsection (2) of section 4 envisages that increase in rent shall not be more than 25% of the rent already being paid by the tenant, therefore, the increase in the monthly rent vide impugned notification by respondent No.2 is against the law, based on mala fide and unconstitutional.

5. As against that, the learned A.A.G. for the respondents contended that for the purpose of increase of rent of lease of Waqf property, the provisions of West Pakistan Rent Restriction Ordinance, 1959 shall not be applicable, as, "Waqf properties" were exempted from the provisions of Ordinance No.VI of 1959 and added that the West Pakistan Waqf Properties (Administration) Rules, 1960 were framed in accordance with section 19 of West Pakistan Waqf Properties Ordinance, 1959 and the rules framed under it have no relevancy with Ordinance No.VI of 1959 (West Pakistan Urban Rent Restriction Ordinance, 1959) and requested for dismissal of Writ Petition.

6. Argument heard and record perused.

7. Essentially, the petitioner referred to on proviso to subsection (2) of Section 4 of West Pakistan Urban Rent Restriction Ordinance, 1959, which reads as; "Provided that increase in the rent to be fixed under this section shall not exceed 25 percent of the rent being paid by the tenant on the date of filing of application under subsection (1)". However, Section 3 of Ordinance No.VI of 1959 provided a clause for exemption of certain prosperities; which reads as;

3. Government [or an officer authorized by it in this behalf] may direct by a [notification published in the gazette that all or any of the provisions of this ordinance shall not apply to any particular building or rent land or any clause or buildings or rented land" Therefore, the notification as mentioned in Section 3 for exemption was published as under: - The following properties have been exempted from the provisions of ordinance: (i) Properties under the control and management of Charitable Institutions Department, Peshawar (ii) Properties attached to Dayal Sing College, Trust Society, Lahore, and (iii) Building and rent land administrative control, management and maintenance whereof is taken over and assumed by the Chief Administrator of Auqaf" Evidently, Para-iii of notification manifested that "Waqf properties" are exempted from the provision of West Pakistan Urban Rent Restriction Ordinance, 1959, therefore, the ceiling limit of 25% as provided in Ordinance No.VI of 1959 shall not be applicable to Waqf Properties and shall not be interpreted in any manner for its application to Waqf properties.

8. In order to determine legal aspect of the impugned amendment in the rules, whether the same are "intra-vires" or "ultra-vires", to the rules of 1979 which is framed under section 25 of Khyber Pakhtunkhwa Waqf Properties Ordinance, 1979 where under sub clause-C of subsection (2) of section 25, reads as:- 25(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely: (C) Prescribing the terms and conditions on which the Waqf properties may be leased or let out. Thus section 7 of West Pakistan Waqf properties (Administration) Rules, 1960 were related to lease of Waqf property and sub clause (iii) of sub-clause (b) of Rules 7 were substituted such as; (iii) The rent reserved shall be the best available market rate in respect of new allottee, to be determined through an open auction, in favour of highest bidder on the spot or at such other place close to it as may be easily accessible to the attending bidder, to be conducted in presence of the Administrator Auqafand Additional Deputy Commissioner (Revenue) of the respective district "While 40% increase shall be made in respect of the old or setting tenant after 03 years" We have considered the legal aspect of the petition and found that the petitioner is aggrieved of only 40% increase which shall be made after every 03 years on the plea that in West Pakistan Rent Restriction Ordinance, 1959, the maximum increase could be 25% of the rent being paid. 9 We are not persuaded to agree with the contention of learned counsel for the petitioner that the impugned amendment to the extent of 40% increase after every 03 years is violative and ultra-vires the constitutional rights of the petitioner as protected under Articles 04 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 because both the laws were made by the legislature with different intentions and the protection of equal law does not at all mean that all the laws must be uniform. It is by now settled that "conception of equality before the laws does not involve the idea of absolute equality amongst human being which as a physical impossibility". In this regard, the apex Court in case title "Abid Hussain Sherazi v. Secretary Ministry of Industries and production, Government of Pakistan, Islamabad" (2005 SCMR 1742) has observed that: - "The protection of equal laws does not mean that all laws must be uniform"

10. In the case of "I-A Sherwani and others v. Government of Pakistan" (1991 SCMR 1041), the apex Court enumerated the seven (7) principles with regard to equal protection of law and reasonableness of classification: - (i) That equal protection does not envisage that every citizen is to be treated alike in all circumstances but it contemplates that persons similarly situated or similarly placed or to be treated alike. (ii) The reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis. (iii) The different laws can validly be enacted for different sexes, persons in different age group persons having different financial standings and persons accused for heinous crime. (iv) That no standard of universal implication to test reasonableness of classification can be laid down as what may be reasonable classification in particular set of circumstances maybe unreasonable in others set of circumstances. (v) That the law applying to one percent or one clause may be constitutionally valid if there is sufficient basis or reasons for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant the execution of mischief of article 25. (vi) The equal protection of law means that all persons equally placed be treated alike both in privileges comfort and liabilities imposed. (vii) That in order to make a classification reasonable, it should be based, (a) An eligible differentia which distinguishes person or thing that are grouped together from those who have been left out. (b) That the differentia must have rationalenexus to the object sought to be achieved by such classification."

11. For proper determination, the preamble of both the statutes that is Khyber Pakhtunkhwa Waqf Properties Ordinance (Ordinance No.1979) and that of West Pakistan Urban Rent Restriction Ordinance, 1959 would make it clear that former was promulgated for proper management of Waqf properties in Khyber Pakhtunkhwa and the latter relates to restrict the increase of rent of certain premises within the limits of urban area and the eviction of tenants therefrom in the province, thus, the object, the intention of legislature and limitation of both the statutes are different from each other, thus, the uniform applicability of both cannot be based on the touchstone of article 25 of the Constitution of 1973.

12. For the reasons discussed above, this petition is hereby dismissed being without substance. SA/315/P Petition dismissed.