2016S852 (PLP)

QAZI FAEZ ISA, J.- Civil Misc. Application No. 2087 of 2016 Through this miscellaneous application two months extension in time is sought to effect compromise which has now been purportedly effected therefore the application has become infructuous and is accordingly dismissed. Civil Petition No. 892/2015

1. Through this petition the petitioners assail the order dated 30th March 2015 of the Balochistan High Court, Quetta to the extent that the rent payable by the petitioners was increased, which has been attended to in paragraph 1 of the said order reproduced hereunder: "In pursuance of order dated 23.03.2015, lessee Muhammad Nadeem of Caf -e-Baldia is in attendance. With consent of the Deputy Mayor, MCQ, the rent of the caf in question is increased from Rs.6500/- (Rupees six thousand and five hundred only) to Rs.50,000/- (Rupees fifty thousand only) per month. It was further agreed between the parties that since most of the hotels/restaurants in Quetta city i.e. Stanley Restaurant, Dawn, Farah, Regal hotels etc. have been closed and converted into plazas, whereas it is the sole caf used by the inhabitants of Quetta city as well as the members of legal fraternity, as such, the lessee shall improve the standard of plantation, food, crockery, fixtures and furniture etc., without structural change and further construction. It is made clear that, being a National Asset, neither will be the caf in question converted into commercial plaza, nor will be the open space reduced by further construction."

2. At the outset Messrs Tariq Mehmood and Hadi Shakeel Ahmed, the learned counsel for the petitioners and the respondent No.2 respectively, stated that the petitioners had entered into an agreement (copy whereof was produced without proper filing) with the Mayor of the Metropolitan Corporation Quetta and this petition should be disposed of in terms thereof. The copy of the said unstamped, undated and unregistered agreement comprising of three pages refers to this petition and envisages an altogether different scenario, whereby Caf Baldia will be demolished and replaced by a multistoried building having a bakery, hotel, showrooms, halls and offices and the monthly rent payable to the Metropolitan Corporation Quetta would be fifty thousand rupees only. We were quite surprised to have been confronted with the agreement as it was completely beyond the purview of the existing litigation, which was the determination of rent. The parties however entered into the said agreement encompassing matters that were neither before the High Court nor have been raised before us. The said agreement also is in violation of the order of the Hon'ble High Court which had stipulated that, Baldia Caf will not be replaced by a "commercial plaza" nor will the open space be "reduced by further construction." The petitioners did not assail this part of the High Court's order. And, the respondents have not even challenged the said order. The Hon'ble High Court had also observed that, with the closure of a number of caf s and restaurants in Quetta, Caf Baldia was, "the sole caf used by the inhabitants of Quetta city as well as the members of legal fraternity", situated as it is in front of the Katchery (City Courts) in a very congested part of the City. The only grievance brought by the petitioners before this Court was the enhancement in monthly rent from six thousand and five hundred rupees to fifty thousand rupees. Unfortunately, the petitioners and the respondent No. 1 have used the pretext of the present petition to embark upon a venture for individual personal benefit.

3. If the said agreement was to be implemented it would undoubtedly further degrade Quetta City's environment, add to congestion, increase pollution and deprive the people of the use and enjoyment of the only remaining caf in the City. We thus deprecate the attempt made by the parties to use the pretext of the pending petition to enter into the purported agreement. The public interest and that of the citizens of Quetta, which ought to be the foremost concern of the Metropolitan Corporation Quetta was unfortunately eclipsed by it.

4. The agreement also contravenes the provisions of the Balochistan Local Government Act, 2010 ("the Act"), particularly section 110, reproduced hereunder: "

110. Use and disposal of properties of local council. (1) Properties of local council shall be used only for public purposes. (2) Immovable properties of local council shall not be sold or permanently alienated: Provided that such properties may be given on lease through competitive bidding in public auction with the prior approval of the Government. Provided further that no such property under or near a fly-over bridge shall be leased or otherwise given to any person for private, commercial or non-commercial use, and any order, licence, permission, handcart passes or certificate issued by any authority at any time in this respect shall stand withdrawn and shall be deemed cancelled. (3) The movable property of a local council which, by the order of the Government is required to be disposed of and all articles declared unserviceable shall subject to approval by the Government, or any authority specially empowered by the Government in this regard, be sold through a transparent competitive bidding in public auction." Section 111 of the Act mandates that, "Every Mayor/Chairman, official or servant of a Local Council, every member of a Local Council, and every person charged with the administration and management of the property of a Local Council shall be personally responsible for any loss or waste, financial or otherwise, of any property belonging to a Local Council which is a direct consequence of decision made by him personally or under his directions in violation of any provision of this Act ". It is disconcerting to note that those in charge of the administration/management of the affairs of Metropolitan Corporation Quetta and its properties are themselves disregarding the provisions of the Act. We were however informed by the learned counsel for Metropolitan Corporation Quetta that the said agreement is subject to the approval of this Court and nothing has been done pursuant to the said agreement as yet. Needless to state it is not within the domain of this Court to accord approval as sought. Be that as it may, for the removal of any and all doubt, we categorically state that no consent, permission or approval has been accorded to the agreement. In any event the said agreement, as stated above, is against the provisions of the Act, contravenes the order of the High Court and is against the public interest.

5. That having disposed of the matter of the purported agreement we proceeded to hear the case. Mr. Tariq Mehmood, the learned counsel for the petitioners, stated that the subject matter of the Constitutional Petition No. 59 of 2010, wherein the said impugned order was passed, was altogether different and had nothing to do with the petitioners or the caf they run under the name and style of "Caf Baldia". The learned counsel gave the background of Caf Baldia which had been rented out to Muhammad Akbar (the father of petitioner No.3) in the year 1959 by the Quetta Municipality, the predecessor-in-interest of the Municipal Corporation Quetta and then the Metropolitan Corporation Quetta, at a monthly rent of three hundred rupees. Subsequently, a 'Lease Deed' dated 2nd March 1978 was executed in favour of Muhammad Akbar's son the petitioner No. 3, Naseem Ahmad Khan and Hussain Falah by the Administrator Quetta Municipality for a period of three years commencing from 1st December 1978. Thereafter, an 'Agreement' was entered into by the Municipal Corporation, Quetta with petitioner No. 3 and Nasim Ahmad Khan in December 1981 extending the lease for three years commencing from 1st January 1981; the lease was further extended for a period of another three years commencing from 1st January 1984 by 'Agreement' dated 9th October 1983 between the same parties and again extended for a period of thirty years commencing from 1st December 1977 by 'Agreement' dated 22nd April 1985. However, before the expiry of the Agreement dated 22nd April 1985 an 'Agreement/ Lease Deed' dated 27th October 1988 was executed by the Municipal Corporation, Quetta in favour of Nasim Ahmad Khan, petitioner No. 3 and Husain Falah, which was also for thirty years, commencing from 1st January 1987.

6. The learned counsel for the petitioners referred to the opening words of the impugned order which shows that it was passed pursuant to an earlier order dated 23rd March 2015, however, the said earlier order did not pertain to Caf Baldia or the petitioners, but was in respect of the properties of the Metropolitan Corporation Quetta which were either in illegal occupation or in possession of tenants who had stopped paying rent or were paying a mere pittance. The learned counsel contended that the case of such parties could not be equated with that of the petitioners who were running Caf Baldia since 1959 in accordance with law and held valid leases. In such circumstances, it was stated, that there was no reason for the petitioner No.1 to voluntarily agree for a manifold increase in the monthly rent on 30th March 2015 when the lease in the petitioners' favour subsisted till 31st December 2016.

7. Mr. Tariq Mehmood's contentions with regard to the increase in rent made on the basis of the purported statement of the petitioner No.1 is a purely factual controversy which can at best be attended to by the Hon'ble High Court itself. Consequently, with regard to the enhancement of rent recorded in the order dated 30th March 2015 we transmit this petition to the High Court, which will be treated as a review application or one under section 12(2) of the Code of Civil Procedure, for decision in accordance with law. The Office is directed to retain a copy of the petition for its record. MWA/N-7/SC Order accordingly.