1995 PLP 1536 (CLC)

4. On these and other averments, the petitioners/plaintiffs seek declaration to the effect that the respondents have no legal authority to enhance or claim increased rent and demand of enhanced rent is ineffective against their rights. In addition, they also requested for the issuance of injunction directing their respondents to receive rent at the rate already agreed upon or paid on or before 26‑6‑1983 and not to receive rent at their rate mentioned in the aforesaid notification.

5. The respondents contested the suit and have taken up various objections, legal as well as factual. Their preliminary contentions are that the suit is not competent in its present form, that it is in violation of rent agreement that the petitioners‑plaintiffs have no cause of action and are estopped by their own conduct to institute the present suit. On the factual aspect of the case, they have asserted that the respondents are well within their competence to enhance the rent and that the increase has been determined by competent Authority in accordance with the relevant rules, keeping in view the nature, cost and age of the property.

6. On these pleadings, as many as eight issues were framed but for the purpose of this revision petition, only the following issues, at Serial Nos.5 and 6, are worth consideration:‑‑ (5) Whether defendants have enhanced the rent according to law?. (6) Whether the defendants have any right to enhance rent with retrospective effects?

7. The learned trial Judge decided both these issues against the respondents. On the other hand, the learned Additional District Judge, without fully discussing the application of the abovementioned notification, accepted the increase in rent on general tendency of escalation of prices in the open market and in consequence, dismissed the plaintiffs‑petitioners' suit in all respects, on 4‑4‑1991. Aggrieved by the said decision, the plaintiffs/petitioners have come up to this Court in the present revision petition for the redress of their grievance.

8. I have heard learned counsel for both sides and perused the record of the case carefully. The main question for determination in this revision petition is as to whether Notification No.F(3)‑8.12/82‑707/83, dated 27‑6‑1983 is applicable to the property in occupation of the petitioners, not being employees of Government or WAPDA. Both the parties agree that the enhancement in rates of rent has been made in consequence of and under the notification, mentioned above, issued by Government of Pakistan, Finance Division, Islamabad (Exh.P.W.l/D‑3 and Exh.P.W. 1/46).

9. Mr. Shehryar Khan, Technical Officer, Chief Engineer, WAPDA, Tarbela Dam, when examined as D.W. 1, admitted in positive terms that amendment has been made by reason of this notification in Fundamental Rules 45‑A‑III, section (6)/ii, that the plaintiffs‑petitioners' case is covered under Fundamental Rule 45‑B and that there is no notification for enhancement of rent with regard to Fundamental Rule 45‑B separately. It is further in his evidence that provision of Notification of 27‑6‑1983 has not so far been made applicable to the servants of WAPDA nor to property situated on the right bank, but is made applicable to property of left bank in the occupation of the petitioners‑plaintiffs only.

10. The fact remains that WAPDA is an autonomous Corporation and there is no cogent/tangible and concerte evidence on record to indicate that proceedings of notification dated 27‑6‑1983 have been adopted by the concerned and designated competent Authority of WAPDA. It may be pointed out here that even otherwise no. attempt, whatsoever, has been made by respondents to apply the notification itself to property in occupation of public servants of WAPDA anywhere in the country. In the circumstances, I am of the view that its application to the petitioners‑plaintiffs is not only arbitrary but discriminatory.

11. It is pertinent to observe that Fundamental Rules 45‑A and 45‑B are governed by separate and distinct legal incidents and different considerations in matter of assessment of and determination of rent. Resultantly the mode of assessment of rent in respect of property falling within the scope and ambit of Fundamental Rule 45‑A cannot be borrowed and applied to the property covered by and going in the teeth of Fundamental Rule 45‑B. In the instant case, fresh assessment of rent is allegedly made in accordance with Fundamental Rule 45‑A, envisaging enhancement from 150% to 900%. There is no precise evidence on record to indicate which functionary has been legally delegated the power, by the competent Authority to make fresh assessment of rent and enhance the same. Mr. Shehr Yar Khan (D.W. 1) has himself assumed the jurisdiction and has delegated to himself the power, function and task to propose a formula for such purpose without placing on record any document vide which such powers were either conferred on him or were delegated to him for this particular purpose. The specimen (Exh.D.W.1/3) prepared by him is not legally acceptable for two reasons:‑‑ Firstly, that the so‑called assessment for property covered by Fundamental Rule 45‑A is not applicable to property falling within the purview of Fundamental Rule 45‑B, and Secondly, the assessment is not made by competent Authority nor has so far been applied with uniformity to property in occupation of the employees of WAPDA in the whole of the country.

12. If the new assessment, as envisaged vide Exh. P.W. 1/1, is brought face to face with assessment of rent devised in Letter No.TAR/18‑1‑121 dated 15‑2‑1965 in respect of each and every type of property, a great disparity is visible and cannot be reconciled. A property situated in rural area, as the one in dispute, cannot fetch or justify increase of 900% after elapse of almost three decades and deep depreciation. A true copy of Letter No.TAR/18‑1‑121 has been placed on record by the witness in hand and its veracity is not disputed al all. The letter speaks clearly that the assessment made therein had received the approval of the Chief Engineer but the witness makes it bold to suggest that it contained only a proposal which is obviously wrongful statement just to evade consequences of the sharp disparity pointed out above. On the face of it and, in all events, the fresh assessment as is apparent from document Exh.P.W.l/1 and the notices of enhancement Exh.P.W.l/2 to Exh. P.W. 1/44, some issued on 20‑11‑1984 and some issued on 23‑12‑1984, in my considered view, proceed on erroneous data prepared by incompetent functionary and is only applicable to the property covered by Rule 45‑A referred to above and not to the property in dispute, for which a separate notification is necessary as is admitted by the witness in hand.

13. From the narration given above, I see no escape from the conclusion that amendment made' in Fundamental Rule 45‑A has no application to the case of the petitioners. Needless to mention that the notification or statutory rule imposing burden is to be strictly construed and doubt, if any, is to be resolved. in favour of a subject and citizen rather than the State. It is indeed very strange that the agreement of rent (Exh. P.W.1/D‑6), for instance, in case of threat of ejectment provides appeal before the Administrative Committee. In this case, Rehmatullah (P.W.1) Senior Store Keeper, has admitted that the petitioners have submitted appeal copy of which is Exh.P.W.l/45, against the notices issued for enhancement of rent or to face ejectment in case of failure to pay enhanced rent and its arrears from 27‑6‑1983; although such notices for the first time were issued partly on 20‑11‑1984 and partly on 13‑12‑1984. There is nothing to show that the appeal has been decided by the Administrative Committee until today, nor its decision, if any, has been placed by the respondents on record. The petitioners were therefore obliged to go to law by way of the present action.

14. Although, the agreement (Exh. P.W. 1/D‑6) does not in clear and precise terms authorise the concerned Administration to enhance the rent during the currency of lease period, nevertheless Fundamental Rule 45‑B by which the petitioners are governed provides that rent in respect of the residential or business purpose allotted to a private person by Government or Autonomous Corporation could be recovered at the rate prevailing in the locality for similar purpose. The parties have failed to place on record any evidence relating to rent prevailing in the locality for similar purpose at the time of issuance of notice.

15. Here a question crops up whether or not rent can be increased. It is noteworthy that the property in dispute is not located in urban area and hence cannot be governed by West Pakistan Rent Restriction Ordinance, 1959. The disputed property is situated in a far‑flung rural area, where even rate of rent must have increased reasonably. I can take judicial notice of the fact that at least rents chargeable on old rates must have increased to the extent of 30%. It is therefore equitable and in consonance with fair play that the petitioners are liable to pay 30% more on the old rates payable by them from the date of issuance of notices i.e. 20‑11‑1984 and 23‑12‑1984.

16. Since considerably period has elapsed due to litigation, the arrears so far accumulated, if calculated at the enhanced rate to the extent shown above, will be. recoverable in 12 equal instalments from the date of judgment.

17. The judgment of the learned Additional District Judge, Haripur stands modified to the extent so indicated. This revision petition thus stands disposed of in the above terms. The parties are directed to bear their own costs. AA./1736/P Order accordingly.