1999CLC559 (PLP)

(5) On22‑1‑1997 Rs.1,633 (6) On27‑1‑1997 Rs.1,633 Total Rs 11,977 It is clear that in the month of January within a span of twenty‑three days the appellant made six payments amounting to Rs.11,977 but all of a sudden within twenty‑four hours after the last payment the cancellation order was issued. The impugned order was as follows: As directed by the Minister Auqaf, Azad Government of the State of Jammu and Kashmir, Shop No.35, is cancelled from the name of Nawab Khan son of Abdul Sattar Khan Afghani Pathan tenant and is transferred in the name of Muhammad Nawaz son of Muhammad Alain resident of Bhurkey Tehsil Mirpur under usual terms and conditions." (Translated). It is clear from the foregoing that the impugned order does not state that it was being passed for non‑payment of rent. In fact it does not state that the appellant had defaulted. The order clearly shows that the Minister cancelled the lease in favour of the appellant and awarded the lease to respondent No.7. After having accepted the rent for the period when lease deed had expired long ago the lease period stood' legally extended. Action against the tenant could be taken only on the ground that he had failed to pay rent for two months for which one week notice was to be given as is provided in Rule 7 of .the Azad Jammu and Kashmir Waqf Properties (Administration) Rules, 1961. The record shows that the Department at no stage took any action for ejectment of the appellant and they were only asking him to make payment of the arrears of rent. They threatened him in writing that ejectment proceedings will be started if he failed to do so gut such proceedings were never initiated. The Minister Auqaf is not authorised under the Act to cancel the lease. In fact he was not even authorised to order the ejectment of an unauthorised person. The appellant was a defaulter and even if his lease deed expired action could only be taken by the competent Authority of the Department which at no, stage wanted the appellant's ejectment. It only wanted to recover arrears of rent. During arguments before this Court Ch. Shah Wali and Ch. Muhammad Afzal were allowed to raise a point for the first time that a writ petition in the present case was in any case not maintainable as it has been filed to enforce a contractual liability. The case was adjourned to enable Mr. Liaquat Ali Khan, the learned counsel for the appellant, to prepare his reply on this point. Mr. Liaquat Ali Khan countered the, objection by submitting that the principle pressed by the learned counsel for. the respondents was not applicable because apart from violation of the contract between the parties, violation of Rule 7 of the Azad Jammu and Kashmir Waqf Properties (Administration) Rules, 1961 was committed, therefore, a writ was maintainable. Rule 7 is as follows:‑‑ "7 Lease of Waqf Properties.‑‑‑ Unless otherwise specifically provided in etc the scheme settled under Rule 5, the following directions with regard to the lease of Waqf property shall be deemed to form part of such scheme:‑ (a) Where the lease relates to land:‑ (i) The lease shall be in writing; (ii) the period of lease shall not exceed three years; (iii) as far as possible the lease shall be made, through auction, in favour of the highest bidder, auction being held on the spot or at such other place. close to it as tray be easily accessible to the attending bidders; (iv) the successful bidder shall deposit one year's rent in advance at the time of auction and this amount shall be adjusted towards the rent of the final year; (b) Where the lease relates to a house or shop:‑‑ (i) the lease shall be in writing; (ii) the period of lease shall not exceed two years; (iii) the rent reserved shall be at the best available market rate; (iv) other things being equal, preference shall be given to the old lessee whose lease is due to expire and who agrees to the renewal thereof; (v) the lessee shall deposit two months rent in advance and the same shall be adjusted towards the rent of the last two months of the period of lease; (vi) if the tenant fails to pay rent for two months, he shall be liable to ejectment on one week's notice." Mr. Liaquat, Ali Khan relied on a judgment of the Supreme Court of Pakistan reported as Muhammad Ashraf Ali v. Muhammad Naseer and 2 others 1986 SCMR 1096 in which it was held that where the question of jurisdiction and competency of functionaries of Cooperative Fund was involved, the jurisdiction of High Court to deal with such matters could not be altogether ruled out on the ground that dispute between the parties arose out of a contract. The learned counsel also relied on two recent judgments of Lahore High Court. In Inpak Tech. Industries (Pvt.) Ltd. v. Government of Punjab 1998 MLD 1383 the petitioner had been given a contract for collection of District Council Tax. He filed a writ petition to challenge the action of the Provincial Government in exempting the certain goods from the levy of the tax. Objection that the writ petition was not maintainable because it was based on a contract was repelled on the ground that although the petitioner was working under a contract but he had challenged in the writ petition the authority of the Provincial Government to pass an exemption order. The objection was repelled. In Messrs Wak Orient Power and Light Limited v. Government of Pakistan, Ministry of Water and Power through its Secretary, Islamabad and 2 others PLJ 1998 Lah. 665, a Full Bench of the Lahore High Court observed that the trend of authorities had changed and remedy of writ is permitted in cases involving contract between a private person and State functionaries. Violation of Rule 7 has been proved. It is also clear that the Minister Auqaf was not an authority under the Azad Jammu and Kashmir Waqf Properties Act and he violated the said Act and the rules made thereunder bypassing the impugned order. Therefore, it is a clear case of violation of law apart from violation of contract. Thus, our view is that a writ was maintainable. As discussed above the judgment of the High Court proceeded on a wrong assumption that the lease deed had expired. It is also our view that the appellant had been given a lease of Waqf Property which was partly governed by statutory ,rules and it is only the Chief Administrator of Auqaf Department who could take action against the appellant for his ejectment. The notices issued by the Department show that they accepted him as a tenant and did not want his ejectment if he was to deposit the arrears of rent. Therefore, the concerned functionaries will be free to proceed in accordance with law if so advised. It was argued by Ch. Muhammad Afzal, the learned counsel for' respondent No.7, that the appellant was not a State subject and, therefore, he did not enjoy any Fundamental Right under the Azad Jammu and Kashmir Interim Constitution Act. It is true that some of the Fundamental Rights are only enforceable by State subjects but for filing of writ petition no such distinction is imposed by the Azad Jammu and Kashmir Interim Constitution Act., whether the non‑State subjects can be given a property on lease was to be seen and decided initially by the concerned Department but no such decision has been taken. We, therefore, set aside the order passed by the High Court, accept appeal filed by the appellant and declare that the impugned order, dated 29th April, 1998 was passed without lawful authority and is of no legal effect. It is ordered that the appellant will be put back in possession if he deposits the arrears of rent for the period he was in possession within fifteen days from today. H.B.T./340/SC(AJ&K) Order accordingly.