1990 PLP 1125 (CLC)

Constitutional Petition No.D‑172 of 1989, decided on 29th August, 1989. ‑‑‑‑Art. 199‑‑‑Natural justice, principle, violation of‑‑‑Earlier order pased by Authority was challenged by petitioner on ground that petitioner was not aware of that order‑‑‑Order itself showed that it was announced in presence of parties whose presence was duly mentioned in order‑‑‑Petitioner himself had admitted that after passing of that order he continued to comply with the order though he claimed that it was being done by him under protest‑‑‑Petitioner in circumstances, held, could not be allowed to challenge order in which he had completely acquiesed‑‑‑Subsequent order having been passed by Authority without hearing petitioner to which he was entitled that order and demand notice served on petitioner without hearing him, were wholly without jurisdiction and illegal. Masood Shahcryar for Petitioner. G.M. Khan Laghari for Respondents. Date of hearing: 29th August, 1989 . SAEE'DUZZAMAN SIDDIQUI, J.‑‑The petitioner who is in occupation of Premises No.G‑4 in Building No.R.B.7/2, Opp. Khaliqdina Hall, MA. Jinnah Road, Karachi has filed this Petition to challenge the enhancement of monthly rent of the premises occupied by it, from 1‑1‑1982 at the rate of Rs.1,800 per month and at Rs.3,600 per month from 1‑1‑1987. The following are the admitted facts of the case. The petitioner is in occupation of tenement No.G‑4 in Building No.R.B.7/2, Opp. Khaliqdina Hall, M.A. Jinnah Road, Karachi, known as Capital Building. The petitioner was originally paying rent of this premises to M/s. Hussain D'Silva at the rate of Rs.382.88. However, pursuant to the order of Supreme Court passed on 8th May, 1987 in the case of Shri Tikamadas v. E.T.P. Board, this rent was being recovered by the Deputy Administrator of Evacuee Trust Property. By Notice dated 25‑2‑1978 respondent No.3 demanded rent of the premises at the rate of Rs.600 per month with effect from 1‑1‑1978. The petitioner objected to the above enhancement but his objections were not accepted. Accordingly, the petitioner continued to pay rent upto July, 1981 at the rate of Rs.600 per month. On 7‑9‑1981 the petitioner received another notice from Respondent No.3 in which the rent was proposed to be enhanced from Rs.600 to Rs.3,000 with effect from 1‑7‑1982. The petitioner again objected to the above enhancement of rent by letter dated 21‑10‑1981, Where upon Respondent No.3 fixed the rent at Rs.1,800 per month effective from 1‑1‑1982. The petitioner who felt aggrieved with the aforesaid fixation of rent filed an appeal before the Administrator of Evacuee Trust Property (Respondent No.2) but this appeal was rejected. The petitioner then filed a revision application before the Secretary, Govenment of Pakistan which was also rejected on 7‑1‑1988. However, while rejecting the revision application of the petitioner the revisional authority made an observation that the assessment of the rent of the property at Rs.1,800 was on a lower side keeping in view its commercially important situation. It was also observed in the revisional order that the rent of the premises should be re assessed in accordance with the prevailing rent in the locality. The grievance of the petitioner is that after the order of the revisional Authority the petitioner received a demand notice in December, 1988, in which rent was demanded at the rate of Rs.3,600 per month with effect from 1‑1‑1987. That the order passed by respondent No.l dated 7‑1‑1988 and the subsequent demand issued by Respondent No.3 demanding rent at the rate of Rs.3,600 per month with effect from 1‑1‑1987 is wholly without jurisdiction as under the law the officer concerned had no such authority to pass such an order. With regard to the objection of the petitioner to the validity of the order dated 7‑1‑1988 passed by Respondent No.l we may only observe that this order was announced on 7‑1‑1988 and it shows that at that time Khawaja Riaz Ahmad, Vice‑President of the petitioner was present and so also the Deputy, Administrator, Evacuee Trust Property, Karachi. The petitioner in paragraph 12 of the petition has admitted that rent at the rate of Rs.1,800 has been paid upto 31st December, 1988, though it is claimed that this payment was made under protest. The present petition was filed in this Court on 5‑2‑1989. In the memo of petition nowhere the reason for not challenging the order dated 7‑1‑1988 has been explained. Mr. Masood Shaheryar, learned counsel for the petitioner orally contended before us that the petitioner was not aware of the order dated 7‑1‑1988 and as such he could not file any petition in this Court against the aforesaid order. There is nothing on record to show that the petitioner was not aware of the order dated 7‑1‑1988. In fact from the order it is quite clear that it was announced on 7‑1‑1988 in presence of the parties whose presence was duly noted in the impugned order. From reading of the petition also it is clear that after passing of the above order dated 7‑1‑1988 A the petitioner continued to pay rent of the premises at the rate of Rs.1,800 per month upto December, 1988 though it is claimed that it was paid under protest. 1n these circumstances, we are of the view that the Petitioner cannot be now allowed to challenge the order dated 7‑1‑1988 in which he has completely acquiesced. However, the other grievance of the Petitioner that the demand of rent at the rate of Rs,3,6000 per month by the Deputy Administrator evacuee Trust Property Karachi in Decemeber 1988, is without lawful authority as the petitioner was not heard before fixing the above rent is not without force. The petitioner has specifically allegaed in the petition that after the order dated 7-1-1988, no further notice was issued to him by the Respondent and without hearing him the rent was fixed at Rs.1,800 has been fixed at lower side and that it required reassessment in accordance with current market rate but before reassessment of rent the petitioner was entitled to be heard. We accordingly allow the petition to the extent that the demand notice served on the petitioner in December,1988, demanding rent at the rate of Rs.3,600 per month is wholly without jurisdiction and lawful authority. There will be no order as costs. H.B.T.\M-1048\K Order accordingly.