1998 PLP 76 (MLD)

(iii) as far as possible the lease shall be of the highest bidder, auction being held on .the spot or at such other place close to it as may be easily accessable 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 reserve 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 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; (2) The Chief Administrator may, if in his opinion the continuance of any lease of Waqf Property, made after the 4th November,' 1961, is not in the interest of the Waqf Property, cancel the lease:-- (i) by giving one months' notice to the lessee and the lease shall stand terminated on the expiry of such period; or (ii) by tendering one month's rent to the lessee and the leases shall stand terminated forthwith on such tender. (3) (1) After the publication of the notification under section 6 of the Ordinance, the Manager may issue a notice requiring the occupant of the Waqf Property within seven days of the receipt of the notice, to deliver vacant possession thereof to him or to execute a lease deed in respect thereof in favour of the Chief Administrator; (2) If the occupant fails to comply with the notice issued under above sub-rule (1), the Manager may eject him with the use of such force as may be necessary; (4) If a lease of a Waqf Property, without permission of the Manager sub-lets or in any way transfers the Waqf property; (i) the lease in his favour shall stand terminated; (ii) the rent, if any, paid in advance shall stand forfeited, and (iii) the lessee, sub-lessee or transferee shall be liable to be ejected therefrom forthwith, with use of such force as may be necessary."

4. A bare reference to sub-clause (iii) of clause (b) of Rule 7 (ibid) would show that it speaks of beginning of tenancy/lease and if by extended interpretation it is taken to be applicable to subsisting tenancies/leases also yet the total law on the subject is silent as to the interval after which the increase in rent could be made by the functionaries of the Auqaf Department. The word the rent reserved" has a manifest reference to the beginning of lease be it a case of lease by a contract or by operation of law meaning thereby that the Auqaf Department shall of course be within its right to demand rent from the incoming lessee or even from the lessee already in possession to pay the same at the best available market rate. This right of lessor is absolute and may not be denied but at the same time it should also not be forgotten that in the case of contractual tenancy, the contract in regard thereto can only be concluded with the mutual consent of the parties and this purpose can only be achieved if the contracting parties come to terms with each other in no far as rate of rent and other incidents of the lease/tenancy are concerned almost the same rule is applicable in the case of tenancy by operation of law inasmuch as the Auqaf Department shall of course be within its right to demand the rent at the best available market rate and the tenant wishing to continue in possession of the demise premises shall have a right to negotiate with the functionaries of Auqaf Department in that regard because intrinsically oven in the case of tenancy by operation of law, it ultimately comes to a contract between the parties and legally speaking it is based upon mutuality and consensus. Again the term "rent best available in the Market" means and implies the determination therefore with reference to the rent of the adjoining properties and other properties located in the vicinity of the property in question. Obviously, the lessee could object to the determination so made by the functionaries of the Auqaf on the ground that the same is not in accord with the prevalent rent in the Market and his right to challenge the enhancement in rent appears to have been conceded in favour of the lessee by providing that he could object to the notice for enhancement of rent and could also file an appeal against the order rejecting the objection or even straight away against the notice itself, therefore, it could not be maintained that the tenant/lessee had no say in the matter and that the rent could be enhanced by the functionaries unilaterally at their whims or discretion. The rule of law laid down in the case of Muhammad Wasil noted supra is also to the same effect. In para. 10 of the judgment in the case noted above, it has been clearly observed as under:-- "Before the enforcement of West Pakistan Urban Rent Restriction Ordinance, the principle of 'laissez-fairs' was applicable to all tenancies and it was never considered that a landlord would charge an amount which would scane away his tenants. The relationship has to be regulated by two willing parties so that the landlord gets the best available rent and the tenant is also not forced to pay something which he not willing to pay. The principle applies to the tenancies of Waqf Properties. " The other part of the dictum in the case noted above that the Chief Administrative Auqaf or his lower officers duly empowered in that behalf could enhance the rent unilaterally so that the rent reserved could be brought in accord with the best available market rate is relatable to the peculiar circumstances of that case inasmuch the tenancies forming subject-matter of that case were found to be from month to month while it is not so in the present case as the parties have not argued their case on that premise. Needless to add that the said rule as laid is more particularly related to a stage of beginning of tenancy or that of the first enhancement after the establishment of tenancy be operation of law, therefore, the judgment in Wasil's case is distinguishable on its own facts and may not be applicable in the facts and circumstances of the present case.

5. The theory of discretion as relied by the learned counsel for the respondent cannot be countenanced in the present day society where the functionaries of the State are expected to conduct themselves fairly, justly and equitably meaning thereby that even in the case of exercise of discretion it must be shown that the discretion so exercised is not only fair but also just and equitable in the circumstances of the particular case because after all the functionaries of State, vested with powers to carry out certain functions of the sovereign, are not expected to assume the role of absolute rules. The purpose aforenoted can only be achieved if the proposed action is shown to be bona fide, supported by reasons, therefore, and is taken with due diligence and required element of prudence and caution. The theory of exercise of discretion and the structuring thereof has been amply dealt with in the case of Chairman R.T.A. v. Pak Mutual Insurance Company Ltd. Rawalpindi (PLD 1991 SC 14) wherein a profuse reference has been made to American jurisprudence 2nd Edition, Volume 63-A (Public Officers & Employees) sections 7, 308, 315 and

317. The wisdom contained in these sections is to the following effect:-- "A public office is a public agency -or trust created in the interest and for the benefit of the people, and since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officer are held in trust for the people and are to be exercised on behalf of the Government or of all citizens who may need the intervention of the officer. Such trust extends to all matters within the range of the duties pertaining to the office. In other words, public officers are but the servants of the people and not their rulers. A public officer is amenable to the rule which forbids an agent or trustee to place himself in such an attitude towards the principal or cestui que trust as to have his interest conflict with his duty

Where a statute is silent with respect to the time within which an official act must be performed, the law contemplates that the duty must be performed within a reasonable time. A public official who undertakes to perform an act, even an act which is completely discretionary, must do so reasonably and in complete good faith without such delay as would frustrate its ultimate objective ....One who accepts a public office does so cum onere, or with the burden, and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all Constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office, and while he remains in such office the public has the right to demand that he performs such duties. The acceptance of every public office implies an agreement on the part of the officer that he will execute its duties with diligence and fidelity. The duty of a public officer to fulfil the obligations of his office should take precedence over all other matters ....Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardised by his neglect. In other words he is bound, virtue officer to bring to the discharge of his duties that prudence, caution, and attention which careful men usually exercise in the management of their own affairs. " As far structuring of discretion it is in the same judgment that a reference has been made to Administrative Law test by Kenneth Culp Davis which is instructive in its content, therefore, the same is being reproduced hereunder:-- "Structuring discretion means regularising it, organising it, producing order in it, so that decisions will achieve a higher quality of justice

The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements open rules, open findings, open reasons, open precedents, and fair informal procedure ....When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. The movement from vague standards to definite standards to brad principles to rules may be accomplished by policy statements in any form, by adjudicatory opinions, or by exercise of the rule-making power .... When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. " It is, thus, obvious that the discretionary powers vested in public functionaries are held in the nature of trust for the people, therefore, the same should be exercised in a manner that it should not give an impression of arbitrariness, despotism or absolutism rather on the contrary in the exercise of such powers a public functionary must show that he has conducted himself within the confines of law. justice, equity and good conscious. The proposed action must be shown to have been made in the best interest of the sovereign and reasonable good and benefit of the people to be effected thereby. The balance aforenoted just be maintained and need it be added here that it is all the more necessary in a situation where the law itself is silent in regard to a particular aspect of the matter meaning thereby that the same has been left in the discretion of a public functionary. Needless to add that where the Statute itself does not' prescribe explicitly a time period within which an official act be performed, the law contemplates that the said act may be performed within a reasonable time. This brings me to the question as to when and after what interval the rent m relation to a house or a shop could be increased by the Auqaf Department. Apart from the theory that in the event that the Statute itself is silent on the subject, the requisite act or duty could be performed within a reasonable time, an answer to the said question can also be found from the various clauses of Rule 7 of the West Pakistan Waqf Properties (Administration) Rules, 1960. A bare reference to sub-clauses (ii) and (iv) of Clause (b) of Rule 7 (ibid) would show that while it is provided by sub-clause (ii) that the period of lease shall not exceed two years it is also ordained that the preference should be given to the old lessees whose lease is due to expire and who agrees to the renewal thereof meaning thereby that the increase in rent at the rate best available in the market could be demanded by the Auqaf Department and settled between them and the lessee on the afflux of the lease period of two years unless the tenancy is cancelled earlier on any of the ground enumerated in sub-rule (2) of the said Rule. This also appears to be a reasonable time after which the increase could be made.

6. As far the argument of the learned counsel for the petitioner that the rent of the premises controlled and managed by the Auqaf Department could not be increased before the expiry of 3 years as the said period has been provided under the Urban Rent Restriction Ordinance, 1959. It would be noted that Urban Rent Restriction Ordinance is not applicable to the properties of the Auqaf Department. The instant case is one of exceptions inasmuch as the relationship between the parties is governed and regulated by an independent act i.e. Punjab Waqf Properties Ordinance, 1979 and the rules made thereunder as referred to above wherein normal tenure of the lease is fixed as two years which period of time is presently interpreted to mean a period of time after which increase in the rent could be sought and settled, therefore, it could not be validly argued that the petitioners have been treated discriminatory and against the equality clause of the Constitution. '

7. This being the state of law it is so obvious that the Auqaf Department could not possibly increase rent for the second time within the same year. The demand made in that regard is illegal, capricious and arbitrary, therefore, the same is struck down as such. At best the Auqaf Department could increase the rent after the afflux of period of two years from the last increase and not before. There is yet another aspect of the matter which needs to be attended to inasmuch as it is also not shown by any document, order or even otherwise that the rent factor was determined by the functionaries of the Auqaf Department before issuing notices to the petitioners in regard to second increase in rent so as to show that the said increase was in accord with the prevalent market rate. Obviously, the notices for second enhancement in rent within the same year were issued at the whim of the functionaries of Auqaf and without any basis therefor, therefore, the same cannot be sustained.

8. In result these petitions are allowed with costs. The notices as also the demand for increase in rent for the second time within the same year i.e. 1996 are declared to he without lawful authority and of no legal effect. A.A./M-463/L Petition accepted.