P L D 1980 Karachi 261 (PLP)

ABDUL HAYEt: KURESHi, J.--By the present appeal under clause 10 of the Letters Patent the appellant Messrs Quaid Cap House seeks to challenge a judgment of a learned Single Judge of the erstwhile High Court of West Pakistan dated 29-5-1979, where by Constitutional Petition No-93/1970, was dismissed. The petition has been filed to challenge the orders of the functionaries of Evacuee Property Trust Board where by rent in respect of two tenements in possession of the appellants had been enhanced. We have heard Messrs Rashida Patel for the appellants and Mr. Muzaffar Hassan for the respondents. On the conclusion of the hearing of the case we had by a short order dismissed the appeal with no order as to costs but subject to enhancement of rent taking effect from the date on which the order of enhancement had been communicated to the appellants. The reasons for such short order follow presently.

2. The appellant are tenants in respect of two tenements bearing Nos. G/4 and 2/4 on Survey No. M. R. 1/150 located on Bunder Road, Karachi. The tenements are business premises. The tenement having larger area is used as a shop while the tenement having smaller area is used as an office. The appellants had obtained the premises in 1948, and used to pay a rent of Rs. 130, per month for the shop and Rs. 10, per month for the Office. On the migration of the Hindu owner the property was taken over by the Custodian and later the Management was taken over by the Divisional Evacuee Trust Committee. For the first time the said Committee increased the rent of shop to Rs. 158,50, and that of the Office to Rs. 22.50. Such increase was not challenged. By two separate orders dated 26-3-1964, the Secretary of the Divisional Evacuee Trust Committee, Karachi, informed the appellants that the rent of the shop had been enhanced to Rs. 317 per month and that of the Office to Rs. 33.75, per month and that such enhancement had been made retrospectively as from 1-7-1963. It seems the appellants made an application for reduction of rent and by a letter dated 22-5-1966, the Secretary of the Divisional Evacuee Trust Committee informed the appellant that the request for reduction could not be acceded to and he could under the circumstances file an appeal before the Divisional Commissioner who was also the Chairman of the Divisional Evacuee Trust Committee. An appeal was filed which was heard by the said Commissioner and Chairman and dismissed by order dated 15-12-1965. A revision application was then filed by the appellant before the Chairman of the Evacuee Trust Board and the same was also dismissed after hearing on 27-12-1967, but relief was extended to the appellants to the effect that the rent would include the Municipal taxes also. Aggrieved by the orders the appellants filed a petition under Article 98 of the late Constitution on 22-1-1970.

3. This petition was heard by a learned Single Judge and it seems that a statement was made by the counsel appearing for the respondents that the relevant instructions in regard to re-assessment had not been complied with. The learned Single Judge recorded in the impugned judgment that if the case involved the mere question of non-compliance with the instructions he would have allowed the petition but on a consideration of the fact that the petition had been filed at a very belated stage, the same was liable to fail on the ground of laches.

4. At the time of hearing Mrs. Rashida Patel contended before us that the delay in filing the petition arose by reason of non-communication of the orders that were sought to be challenged. Additionally, the learned counsel contended that the initial order enhancing the rent retrospectively was one without jurisdiction or at least opposed to all norms of justice and for that reason benefit should be extend to the appellants. Mr. Muzaffar Hassan for the respondents attempted to justify the order of enhancement of rent even on merits but since the Trust Committee had not filed any appeal we would not be inclined to enter into that question. The learned counsel for the respondents also supported the judgment of the learned Single Judge on the ground of laches defeating the right to maintain the petition.

5. The order enhancing the rent was passed and communicated to the appellant on or about the 26th of March, 1964, and the petition was filed after a lapse of nearly 6 years. The sole question for consideration is whether the delay is accountable and if not whether the petition was liable to be dismissed on the ground of laches. It is admitted case that an appeal was filed before the Divisional Commissioner and Chairman of the Divisional Evacuee Trust Committee, Karachi, in 1965. By a reasoned order this appeal was dismissed and enhancement was held justified. Thereafter, a revision application, which we must say was not maintainable as the learned counsel has not shown to us any provision of law conceding a right of filing a revision against the order of enhancement, was filed. Be that as it may, this revision application was rejected in the presence of the appellants on 27-2-1967 and the appellants were extended the benefit to the extent that the rent was to include even the Municipal taxes. It seems the appellant applied for a copy of the decision in this revision application and on 23-8-1967, he received reply wherein it was stated that the same had been dismissed. "In your presence on 27-2-1963". The period starting from 23-8-1967 to 22-1-1970 when the petition under Article 98 of the Constitution was fixed has not been accounted for. Some simple copies of application to obtain a copy of the order had been placed on the record before the learned Single Judge but there is nothing more to show that such applications were in fact made. The remedy by way of revision was also not available so that the order which should have been challenged was the one that was passed by the Divisional Commissioner and Chairman of the Divisional Evacuee Trust Committee in December, 1965. The petition was filed after a lapse of nearly 5 years. Even if it is held that the time consumed in availing the remedy by way of revision may be condoned still the petition was belated by nearly 2J years. On such ground the -learned Single Judge came to the conclusion that the petition suffers from laches and was liabl to be rejected on that ground. What is more that the appellant had also acquiesced in the adverse order and thereby disentitled himself to relief.

6. On the next contention of Mrs. Rashida Patel, she has invited our attention to a judgment delivered by one of us in an reported case of Shaukat Ali Khan v. The Commissioner and Chairman, Divisional Evacuee Trust Property Committee, registered as Constitutional Petition No. 170/1971, and decided on 30-5-1974. In that case also rent was enhanced with retrospective effect. To such extent one of us had taken the view that the order of enhancement of rent could not be given retrospective effect. In the memo of petition under Article 98 of the late Constitution such a ground was raised in paragraph 17(b) before the learned Single Judge. The judgment of the learned Single Judge does not show if that point was canvassed. However, since the order of enhancement was to take effect,, retrospectively, the same is bad to such extent. We are of the view that the order of enhancement should take effect only from the date on which it was communicated viz. 26-3-1964.

7. In the result, we dismiss the appeal subject to the observations in the last paragraph. In the circumstances of the case there will be no order as to costs . M.Y.M.?????? Appeal dismissed.