1999 PLP 2064 (YLR)

MIAN MUHAMMAD AJMAL, J.‑ In this Constitutional petition, the petitioner has prayed for declaration to the following effect:‑‑ "(A) That the petitioner being the lessee of the land granted by respondents; having paid all the dues up‑to‑date, is entitled to retain the land comprised of a Petrol Pump in the name of Bara Bus Stand Petrol Pump, G.T. Road, Peshawar; (B) that the respondents have got no right to dispossess the petitioner without any cogent reason and without recourse to legal action in accordance with law; (C) that the sealing of the Petrol Pump without even issuance of a due notice to the petitioner is illegal, void ab initio, in violation of the Constitutional right and also condemning the petitioner unheard; and (D) any other relief deemed proper in the circumstances of the case may also be granted."

2. The factual background of the case is that originally the respondents leased out space/vacant site measuring 54 x 110 feet located at General Bus Stand to one Ahmad Gul son of Muhammad Gul for construction of a Petrol Pump at the rate of Rs.400 per month. Subsequently, the original owner transferred this site to Hidayatullah Khan son of Abdul Hamid Khan which was regularised by the Municipal Corporation to him on deposit of transfer fee of Rs.10,000 and monthly rent of Rs.500. Afterwards this space was transferred to Muhammad Naeem Khan on payment of transfer fee of Rs.10,000 and/plus monthly rent of Rs.600 and was directed to execute necessary agreement. It is alleged that since 1989, the petitioner is the lessee of the said space/plot and has constructed a building thereon and also installed a Petrol Pump. That the respondents each year enhanced the rent of the said premises and the petitioner has been regularly depositing it annually in advance. In the year 1998, the respondents intended to increase the rent exorbitantly to which the petitioner did not agree, however, he expressed his. willingness for fair enhancement in the rent. The respondents stopped receiving the rent and the petitioner was thus obliged to deposit it in the Court of Rent Controller, Peshawar. Respondent No. l forcibly entered the premises and sealed the Petrol Pump without any lawful authority and without any notice to the petitioner. The petitioner endeavoured to persuade respondent No. l to act in accordance with law but could not succeed in his attempt and as such has invoked the Constitutional jurisdiction of this Court through the present writ petition.

3. Learned counsel for the petitioner contended that the petitioner is a lessee of the premises who used to deposit the rent regularly with the Municipal Corporation, the last of which was deposited @ Rs.777 per month up to June, 1998 vide Receipt No.27 Book No.779, dated 18‑8‑1997. The Corporation however, refused to accept rent beyond June, 1998, whereafter the petitioner under the compelling circumstances was constrained to deposit the rent up to June, 1999 in the Court of Rent Controller under its orders. He submitted that no notice was served upon the petitioner before taking the action against him, as such he has been condemned unheard which is against natural justice and equity.

4. Opposing the aforesaid contentions vehemently, learned Advocate‑General argued that the petitioner could not invoke the Constitutional jurisdiction of this Court for enforcement of extension of the expired lease, the written lease agreement whereof could not be produced by him. He contended that the Rent Controller had no jurisdiction to entertain an application for deposit of rent of the property of Municipal Corporation and to pass any order thereon that too without notice to the lessor. He urged that the Mayor/ Chairman was empowered to lease the immovable property of the Local Council for not more than three years with the prior sanction of the Local Council/Municipal Corporation. After the expiry of lease the petitioner was in unauthorised occupation of public property, hence possession was taken over in accordance with law after due service of notice by affixing the same on site.

5. We have duly considered the respective arguments of the learned counsel for the parties and perused the file.

6. It is worth mentioning that neither of the parties have placed on file the lease agreement, the execution of which was mandatory under sub‑Rule (3) of Rule 5 of the N.‑W.F.P. Local Councils (Contract) Rules, 1980 which provides that all agreements shall be written on stamp paper of the appropriate value and shall, where necessary be registered under the law for the time being in force for the registration of document. Vide memo. No. 251 dated 14‑11‑1989 the petitioner was informed about the transfer of plot to him subject to the deposit of Rs.10,000 as transfer fee and payment of rent of Rs.600 per month, he was also directed to execute necessary agreement but no such document was annexed by him with the writ petition. The mode and the manner in which the local council could lease its property is provided in sub‑Rule (2) of Rule 7 of the North‑West Frontier Province Local Councils (Property) Rules, 1980 which reads as follows:‑‑ "7.‑‑‑(1) .. (2) Notwithstanding anything to the contrary contained in the North‑West Frontier Province Local Councils (Contract) Rules, 1980, any immovable property of a Local Council may be leased, disposed of by sale or otherwise alienated by the Chairman‑‑ (a) on his own authority, if the period of the lease does not exceed one year; (b) with the previous sanction of the Local Council, if the period of the lease is more than one year, but not more than three years; (c) with the previous sanction of Government in any other case: Provided that the property in the shape of shops, markets or in the form of any other commercial schemes shall be disposed of on rent through open auctions or sealed tenders, as may be determined by the Local Council: Provided further that if the Local Council does not desire to dispose of any such property through auction or sealed tenders, it shall obtain prior approval of Government." Since the lease deed is not available, therefore, it cannot be said as to how and in which manner and for what period the property was leased out to the petitioner and whether the deed was got registered or not. Respondent No.1 for his non‑production of the record has blamed the petitioner stating in para. 'd' of his written statement as under:‑‑ "(d) ..... The petitioner had always had the lease agreement with him. He managed/conspired to have the record of the Municipal Corporation removed/disappear and then coined the excuse of having not a copy of the same with him to mislead the Court .... The above allegation has not been specifically controverted or denied by the petitioner and it being a question of fact cannot be resolved in writ jurisdiction which require recording of evidence.

7. Another question whether the petitioner was given a notice/order before any action was taken against him is also a disputed question of fact. Respondent No. I in ground 'b' of his written statement has asserted the service of notice on the petitioner in the following words:‑‑ "(b) The contents as framed are likewise incorrect. The petitioner is not a lessee. The lease had expired much earlier. He was holding the property unauthorisedly. He was put on notice more than once. He refused to receive the written notice where after it was pasted at the site. The possession was taken over in accordance with law" This disputed question also requires evidence for its determination. The expressions 'public property' and 'unauthorized occupant' have been defined in clauses (h) and (j) of section 2 of the N.‑W.F.P. Public Property (Removal of Encroachments) Act, 1977 respectively which are to the following effect:‑‑ "Section 2(h) 'public property' means a building, land, place or premises, which vests in, or is in the possession or under the management or control of Government, Local Council, autonomous body, or such other authority... (j) 'unauthorized occupant' means a person who has made encroachment on, or is in occupation of, any public property without the express permission or authority of a competent authority and includes‑‑ (i) a lessee or licensee who after the expiry of the period of lease or licence or on determination of such lease or licence, continues to remain in occupation of any public property; (ii) a person inducted into any public property by the lessee or licensee thereof; and (iii) every member of the lessee's or licensee's family who remains in occupation of any public property after the expiry of the period of lease or licence of after the determination of the lease or licence in respect of the same".

8. All disputes as to whether any property is or is not a public property or that any lease or licence of such property has not been determined, are exclusively triable under section 13 of the Act (ibid) by a Tribunal constituted under section 12 of the Act, and the jurisdiction of Civil Courts has been barred, therefore, this Court in its Constitutional jurisdiction cannot take cognizance of the matter which has to be adjudicated upon exclusively by a Tribunal constituted by a Special Law. Consequently this writ petition being incompetent and unmaintainable is dismissed in limine alongwith C.M. Nos.163 and 216 of 1999. C.M.A./M.A.K./428/P Petition dismissed in limine.