' This judgment shall dispose of Writ Petitions Nos.346 of 2004 as well as 491 of 2004 as common questions of law and facts are involved in both of them.
2. S.M. Ismail, the petitioner in this case, is a lessee of a plot measuring 90 x 150 feet at the Embassy Road, Sector G-6/4, Islamabad which lease he obtained from the Staff Welfare Committee of the Capital Development Authority (C.D.A.), Islamabad and which was effective from 1-1-1973.
3. According to the learned counsel for the petitioner, this was renewable for a further period of 5 years pursuant to a letter dated 15-1-2002 written by the C.D.A. Provided he paid a sum of Rs.1,00,000 per month as rent irrespective of the fact that the lease agreement then had not expired or in alternate to hand over the possession of the site forthwith.
4. The petitioner in response made a conditional acceptance to the effect that the lease period be extended to 30 years and the lease amount be charged at the rate of 15 times of the initial rent of Rs.1000 per month. It is the case of the petitioner that this conditional acceptance was never responded. The C.D.A., however, kept on demanding the vacation of the premises. Some negotiations took place inter se the parties.
5. In meanwhile, the matter was taken by the petitioner to the Court of Rent Controller, Islamabad, where he asked for determination of fair rent of the site in question.
6. The C.D.A. Kept on repeating its offer without any change and in this connection meetings also took place inter-se the parties. When ultimately a notice was given to the petitioner to vacate the premises within 24 hours. This notice was sent on 7-2-2004. On the next date, the petitioner was disposed of the premises and the physical possession of his Petrol Pump was taken over, which was built on the leased land.
7. While apprehending dispossession, the petitioner also instituted a civil suit for an injunctive order against the C.D.A. It is said that on 5-3-2003 the C.D.A. Made a statement before the learned Civil Judge, Islamabad, to the effect that the petitioner shall 'not be ejected illegally from the said plot and due process of law shall be observed in his case and pursuant to the statement, the suit was disposed of.
8. While in the petition before the Rent Controller, a decision came fixing the tentative rent at the rate of Rs.20,000 per month.
9. This notice of 7-2-2004 and the forcible eviction of thepetitioner have now been challenged before this Court through this Writ Petition.
10. The C.D.A. Has also submitted its parawise comments.
11. According to the learned counsel for the petitioner, the Rent Restriction Ordinance having been promulgated on 23-1-2001 and the provisions reflected in section 4, which reads as follows:-- "Ordinance to override other law.---The provisions of this Ordinance shall have effect notwithstanding anything contained in any'other law for the time being in force, or in any instrument or document." would have an overwhelming effect over the C.D.A. Ordinance 1961 and its section 49(b) authorizing a summary ejectment of an unauthorized occupant by the Deputy Commissioner of the C.D.A. On the basis of a 15 days' notice.
12. According to the leaned counsel, even if the notice of 7-2-2004 be taken as notice under section 49(b) of the C.D.A. Ordinance, 1961, it is violative of the said section because it has not been issued by the Deputy Commissioner and the notice period is 24 ours instead of the statutory period of 15 days.
13. According to the learned counsel, the Rent Restriction Ordinance of 2001, in its definition clauses defines a landlord in the following words:- "(g) 'landlord' means the owner of the premises and includes any person for the time being authorized or entitled to receive rent in respect of any building or rented land, whether on his own account or on behalf, or for the benefit, of any other person, or as a trustee, guardian or receiver, and or a tenant who, being authorized under the terms of his lease so to do, sublets the building and every other person for the time being deriving title from the landlord;
14. Learned counsel has also referred to section 17(1) of the new Ordinance and stated that even if dispossessed through an illegal notice, the petitioner continues to be a tenant at the site. Section 17(1) of the Islamabad Rent Restriction Ordinance, 2001 reads as follows:-- "Eviction of tenant.---A tenant in possession of a building or rented land shall not be evicted therefrom except in accordance with provisions of this section."
15. Reference has been made to the case of "Raja Hassan Ali Khan v. Additional District Judge, Islamabad and 2 others" (2003 CLC 1819)and it was said that notwithstanding the fact that the new Rent Restriction Ordinance required a notification before coming into effect, it made not difference if that notification was not issued. His last argument before this Court was that the lessor in this case: was the Staff Welfare Committee and not the C.D.A. And who alone could have ousted the petitioner in accordance with law on the expiry of any agreement inter-se the parties, while the C.D.A. Having handed over this plot of land to the said Committee was destitute of any rights to act as they did in this connection.
16. According to the learned counsel for the petitioner, as the dispossession of the petitioner was illegal, he ought to be restored the possession. In this connection he referred to the cases of: (1)
"Abdul Haq and 2 others v. The Resident Magistrate, Uch Sharif Tehsil Ahmadpur East, District Bahawalpur" (PLD 2000 Lahore 101); (2) "Sikandar and 2 others v. Muhammad Ayub and 5 others"
(PLD 1991 SC 1041); (3) "Syed Mehdi Hasnain v. Muhammad Ayub and others" (1970 SCMR 434); (4)
"Muhammad Aslam v. Station House Officer and others" (1993 MLD 152).
17. Mrc Zaheer Bashir Ansari, Advocate for C.D.A Workers' Union is before this Court to state that the Staff Welfare Committee was a distinct and separate body and was different from the C.D.A. Who alone could act against the plot under reference.
18. Mr. Zaheer Bashir Ansari, Advocate went on to say that as the contract of lease inter se the petitioner and the Staff Welfare Committee was outside the ambit of C.D.A. Ordinance, 1961 being not an agreement between the C.D.A and the petitioner, the C.D.A. Ordinance, 1961 shall have no effect vis-a-vis this agreement.
19. Learned counsel for the C.D.A. Refers to the eviction notice dated 7-2-2004 which is placed at page 17 of the file and states that the notice has been issued by the Chairman of the Staff Welfare Committee who is the Director Personnel C.D.A. And not by the C.D.A. Learned counsel while making reference to the prayer clause of the writ petition which reads as follows:-- "In the circumstances, it is, therefore, respectfully prayed that this Honourable Court may graciously be pleased to issue writ declaring the notice dated 7-2-2004 issued by the respondents seeking y eviction of the site in question within 24 hours and subsequently the action of the respondents in taking forcible possession from the petitioner of the site in question, as illegal, unlawful, the out lawful authority and of no legal effect."
' Argues that the notice 7-2-2004 having been by a Welfare Body cannot be challenged under the provisions of Article 199 of the Constitution because the Welfare Body is not an agency and submits that the writ petition is not maintainable.
20. Learned counsel made reference to another notice which is of 15-1-2002 and stated that this notice which came after the expiry of the 30 years' period of lease (1-3-1973 to 31-12-2002) was also signed by the Secretary of the Staff Welfare Committee and not by anyone on behalf of C.D.A.
According to the learned counsel, this notice mentions in its paragraph No.2 a proposal made by this Committee to the petitioner offering him extension in lease provided the rent was enhanced.
That the earlier lease having expired and there being no further lease or contract inter se the parties and also that the parties being at variance on the proposal made for a new contract, show that there was need for determination of contractual obligations which would not attract the provisions of Article 199 of the Constitutio4. When no agreement was forthcoming inter se the parties, the Staff Welfare Committee, it is said, advertised the terms for a ne' lease and received offers, Annexure 'RA' is the copies of the bids which were received by the C.D.A.
21. Learned counsel for the C.D.A. Went on to stay that money received by the Welfare Staff Committee from the present site and another site is actually spent alongwith some more contributions towards the welfare of the widows and orphans of the employees.
22. The repeated argument of the learned counsel was that the Staff Welfare Committee being not a Government agency cannot be brought within the ambit of Article 199 of the Constitution and that secondly as the matter involved a question as to what ought to be the correct bid for the leased property, such a matter ought not to be entertained in a writ jurisdiction.
23. Learned counsel speaking on the role of the C.D.A. In connection with the site under reference stated that this was, anyhow, given/leased out to Staff Welfare Committee for a period of time and that period of time also having lapsed required a renewal, and, therefore, the Board came into picture for this limited performance. That it was, therefore, upon the advice of the Board that the Staff Welfare Committee thought of negotiation with the petitioner about the enhanced leased amount, which decision of the Board at page 17 is attached with the written statement. With respect to the fact as to what shall be the effective date of the promulgation of the Federal Rent Restriction Ordinance, 2001, learned counsel makes reference to its section 1(2), 2(k) and 3 of the Ordinance. These reads as follows:-- "1(2): It shall extend to such urban area of Islamabad Capital Territory and apply to such buildings and rented lands as the Federal Government may, by notification in the official Gazette, specify."
"2(k): 'Urban Area' means such area or areas of the Islamabad Capital Territory as the Federal Government, may, by notification in the official Gazette, specify."
"3:Power to exempt.---The Federal Government may, by notification in the Official Gazette, direct that all or any of the provisions of this Ordinance shall not apply to such building or buildings as are, or may be, used as Government Offices: ' Provided that such exemption shall not extend beyond the period of five years from the date of completion of construction of such building as certified by the Authority."
24. According to the learned counsel, section 2(k) of the Ordinance is merely descriptive of the urban area of Islamabad which is to be notified by the Federal Government. That this is the first step and this is to be followed by subsection (2) of section 1 of the Ordinance. Learned counsel went on to say that, therefore, two notifications one after the other were required, one specifying the urban area which had been already issued and the second defining such parts of the urban area to which the Ordinance would apply. That the subsequent notifications were issued only lately i.e. On 24th June, 2004 and upon directions of this Court. That without these two notifications, the Rent Ordinance was inoperative. Learned counsel went onto say that the issuance of the Notification under section 1(2) was not an exercise in vain but it had specific purpose because obviously Islamabad being the Capital Territory, Government buildings and many other buildings had to be excluded from the operation of the new law, whereas certain other buildings had to be included within the ambit of the new law and all this required sorting out these and issuance of the second notification.
25. Learned counsel states that when a methodology is prescribed by law, this methodology has to be followed and in this connection he makes reference to the following cases: (1) "Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others' (PLD 1971 SC 61), (2)
"Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others" (2002 SCMR 312 relevant portion at page 323); (3) "Khalid Saeed v. Shamim Rizwan and others" (2003 SCMR 1505 relevant portion at page 1520).
26. Learned counsel for C.D.A. Further stated that when the intention of the legislature is clear, a plain meaning had to be given to a statute. In this connection he places reliance on case of "Rahamat Khan v. Abdul Razzaq" (1993 CLC 412 relevant portion at page 424 and at425). While respectfully differing with the judgment in the case of "Raja Hassan Ali Khan v. Additional District Judge, Islamabad and others" (2003 CLC 1819), the learned counsel stated that the learned Court while giving that judgment was not properly assisted in that case.
27. While closing his arguments with respect to the maintainability of this writ petition, the learned counsel makes reference to the case of: (1) "Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others" (PLD 1973 SC 236 relevant portion at page 257) and (2) "Muhammad Sharif through Legal Heirs and four others v,. Sultan Hamayon and others" (2003 SCMR 1221 relevant portion at page 1229).
28. Opposing the application coming from the side of the Workers Union through Mr. Zaheer Bashir Ansari, Advocate, the learned counsel for the C.D.A. Stated that this was motivated. While elaborating this, he said that for 30 years the workers have not even bothered to look into the fact as to what was being charged from the petitioner and how much of the money was meant for the welfare of the workers. Learned counsel further said that the workers were neither the lessors nor an interested party. That factually it was wrong to state that the ouster took place in 24 hours' notice because this was a last notice amongst the series of notices which started w.e.f. 15-1-2002.
29. Learned counsel for C.D.A. Argued that with respect to the civil litigation, referred to by the learned counsel for the petitioner, C.D.A. Was not a party there and, therefore, no statement was made on its behalf. That the Rent Restriction Ordinance was not at all applicable to the present case.
30. Learned counsel for the petitioner in rebuttal stated that in fact the C.D.A. Was the main force in ejecting him and not the Welfare Committee and this is evident from the averments which are reflected in page 20 of his writ petition, and which show that at the time of the ouster of the petitioner, a Special Magistrate of C.D.A. Was also present alongwith the relevant C.D.A. Staff and that he is in fact challenging this very act of the C.D.A. Which was illegal.
31. That it was not correct to say that C.D.A. Was not a party before the Civil Judge. That the C.D.A.
Was represented there by its counsel and who filed a Wakalatnama on behalf of the C.D.A. And that it was the Legal Advisor of the C.D.A before such a Court who made the statement. That due process of law shall be observed before eviction of the petitioner. While re-enforcing his argument, the learned counsel referred once again to the case of "Abdul Haq and 2 others v.. The Resident Magistrate, Uch Sharif, Tehsil Ahmadpur East, District Bahawalpur and six others" (PLD 2000 Lahore 101) and argues thatthere were both remedies to be pursued whether under section 9 of the Specific Relief Act or the Constitutional provisions by a lessee or a tenant.
32. According to the learned counsel appearing for Workers Union, the Workers Association was totally non-functional as far as the Welfare Body is concerned which was governed by the C.D.A.
Officers only. That as the plot under reference was purchased through contribution of the workers of the C.D.A., therefore, C.D.A. Had no locus-standi in the matter.
33. Learned counsel went on to say that it is the Welfare Committee who has to ultimately decide about the terms of the lease and not the Director Personnel who was an impostor and not appointed in a legal manner.
34. The arguments addressed at length before this Court lead us to the conclusion that there is no dispute about the fact that the plot under reference and pertaining to the C.D.A. Was given to the Welfare Committee of the C.D.A.'s employees so that the income derived from this plot be utilized for welfare purposes and that the said Committee was plenipotentiary with respect to all the day to day matters relating to this plot. The only grievance coming from the newly impleaded workers' representative being that the main control of this body has been kept with themselves by the officials and the workers had a very little say although 'their funds were utilized'in some way or the other for procurement etc., for the said plot.
35. The petitioner's complaint was that the action which has been taken against him was at the end of the C.D.A without any proper decision in connection with reletting of the premises to the petitioner at the end of the Workers' Welfare Committee.
36. The inference which one draws from the contentions raised here was that the said Welfare Committee being the incharge of the said plot had not acted independently in respect of any action which was required to be taken with respect to the renewal of the lease of the plot.
37. The admitted position is that the lease period of the petitioner had expired and the lease had to be renewed when he was dispossessed. It is at about this juncture that multiple litigation inter see the parties had started. But the action with respect to the renewal of the lease remained in abeyance because of the various positions which were being taken by either side. The Federal Rent Restriction Ordinance, 2001 had been published but its effective date of promulgation had been subjected to the issuance of a notification by the Federal Government as envisaged in section 1(2) of the Ordinance. This notification was published againstdirections of this Court only recently and the Rent Restriction Ordinance becomes effective now.
38. But the real resolution of the problem lay in the renewal of the lease at the end of a body who had the powers in this connection and this was the Welfare Committee and not the C.D.A. The property undoubtedly belongs to the C.D.A. And had been given over for welfare purposes to this Committee. The C.D.A., therefore, had some role in the matter and it is possible that the muscles of the C.D.A. Were used in ousting the petitioner at the relevant time after the notice. But the matter called for verification whether such an action en the part of the C.D.A. Had the blessings and the support through an independent decision of this Committee.
39. It may, however, be observed that the Welfare Committee was working within the Capital Development Authority and was as much an agency as the C.D.A. Being its component. It could not be said to be alient to the body. The C.D.A. Having delegated certain powers to it with the functional role to deal with the plot in hand and use its funds for purposes of welfare of the Staff. The argument of the learned counsel for the C.D.A. Challenging the maintainability of this writ petition against this Welfare Committee, therefore, does not appear convincing as much as the arguments of the learned counsel for the petitioner side with respect to his contentions about the jurisdiction of the Rent Controller.
40. Even today, a common counsel is appearing on behalf of the C.D.A. And the Welfare Committee. The intricate questions raised were, therefore, not so essential for the present dispute.
The most important question being as to what was the independent decision at the Welfare Committee with respect to the renewal of the lease.
41. Incidentally, it may be mentioned that it was openly alleged in the Court that the bosses in the C.D.A. Under the influence of certain political figures were trying to grab this property and would lease it out surreptitiously to someone whom the authorities have been directed to accommdate.
42. This being the position which has finally emerged after lengthy arguments of both sides, this Court directs that the matter be first referred to the Welfare Committee who shall hear the petitioner afresh without prejudice to any past litigation or offer for renewal of the said lease of this Petrol Pump and shall take a decision on the question of renewal af the lease within three weeks from today. For these three weeks, status-quo shall be maintained. But in case the Committee fails in taking any action, as stated above, the petitioner shall be put in possession of the premises in the meanwhile until the Committee decides the fate of renewal of the lease on such terms which were reasonable, according to the market value, genuine and not meant to defeat the rights of the petitioner through deceit or circumvention of procedure in law.
43. The Committee shall also ascertain as to what assets of the petitioner were lying at the Petrol Pump at the time its possession was taken over and will take measures for safeguarding his rights in respect of these assets in accordance with law.
44. As the crucial question with respect to the renewal of the lease has been referred to the Welfare Committee, who has to now independently decide the fate of the lease, these writ petitions stand disposed of with further detections to the said Committee for submitting its report to this Court by the 1st of August, 2004. The Chairman C.D.A. To ensure this. No costs.
45. A copy of this order be given Dasti to the parties so that it is brought to the notice of the Committee for compliance.