The petitioner Messrs Shamim Akhtar Cosmetics Manufacturer have filed this Constitutional petition to impugn the orders dated 14-10-1997 and 7-1-2003 passed by respondents Nos. 3 and 2, respectively.
2. The relevant facts of the case are that on 4-11-1991 respondent No,
1. State Life Insurance Corporation of Pakistan filed an application under section 8 of Sindh Rented Premises Ordinance, 1979 (hereinafter to be referred as the Ordinance of 1979) before the Rent Controller Karachi (South), being Rent Case No, 1819 of 1991. In their application they stated that the petitioner is their tenant in respect of Go downs Nos.G-1, E& J admeasuring 1366 sq. Feet on the ground floor or their Building No, 5-B, situated at Dr. Ziauddin Ahmed Road, Karachi, at the rate of Rs,100 per month, excluding electricity, water and other charges which are payable separately. They further stated that the present rented value of the premises in the adjoining locality is ranging between Rs,4 to Rs,18, per sq. Feet, therefore; the petitioner are also liable to make payment of rent to them according to such prevalent market rental value, at the rate of Rs, 17, per sq. Feet per month. In paragraph No,4 of the application respondent No, 1/landlord also made reference to the actual rent of certain other premises in the same locality to show genuineness of their claim and to add force to their plea for enhancement in the rate of rent at Rs,17 per sq. Feet per month.
3. On 1-10-1992 petitioner filed their written objections, wherein they admitted old tenancy rights of the rented premises in their favour at the rate of Rs,100 per month. They further stated that disputed building in their possession is very old and it has remained neglected and un-repaired by respondent No,
1. In such circumstances, respondent No,1 are not entitled for the relief of enhancement in the rate of rent.
4. During the proceedings of the case Peer Khan Sajjad, Deputy Manager and authorized officer of respondent No,1 corporation, filed his affidavit in evidence reiterating the assertions made in the application for fixation of fair rent. He also placed on record bunch of documents (A/2 to A/62) to fortify the claim of respondent No,1 for enhancement in the rate of rent of the case premises at the rate of Rs,17, per sq. Feet per month. In his cross examination this witness did not dispute the claim of the petitioner regarding their old tenancy in the case premises as well as the fact that the building in which petitioner are occupying go downs admeasuring 1366 sq. Yard is old one.
5. From the side of petitioner one of their partner Mr. S.M. Akhtar filed his affidavit-in-evidence wherein he highlighted various facts to show, that demand of enhancement of rent at the rate of Rs, 17, per sq. Feet per month made by respondent No,1 was not justified and the application was filed by respondent No,1 with mala fide intention. This witness was cross-examined by the learned counsel for respondent No,1 wherein he admitted the fact that the petitioner were tenant in respect of disputed go downs at the rate of Rs,100, per month since the year 1959-60; since then rent has never been enhanced by them; and the case premises are situated in the heart of the city.
6. The Rent Controller after hearing the arguments of learned counsel for the parties, vide its order dated 14-10-1997, allowed and disposed of the application of respondent No,1 in the terms that petitioner were directed to make payment of rent at the enhanced rate of Rs,12 per sq. Feet per month from the date of institution of the rent case, being the fair rental value of the case premises in their possession.
7. In the appeal, preferred by the petitioner being F.R.A. No,316 of 1997 (New No,1254 of 2001) the petitioner remained unsuccessful as their appeal was dismissed and order of fixation of fair rent at the rate of Rs,12 per sq. Feet per month passed by the Rent Controller/respondent No,3 was maintained by Appellate Court (respondent No,2) vide its order dated 7-1-2003.
8. Mr. Muhammad Sadiq, Advocate arguing this petition on behalf of the petitioner vehemently contended that the enhancement in the rate of rent ordered by the respondent No,3 at the rate of Rs,12 per sq. Feet is not only much higher than the prevalent rate of rent in the locality where the disputed tenement in possession of the petitioner is located but, it is also out of any reasonable proportion. He further contended that the building in which disputed tenement is located was constructed during pre-partition days and thereafter no care of its maintenance and repair was ever taken by respondent No, 1.As a result, condition of the building has deteriorated considerably but all these aspects of the case were totally overlooked by respondent No,3 while fixing the fair rent at the rate of Rs,12 per sq. Feet per month. Learned counsel also made reference to certain documents regarding payment of property tax made by respondent No, 1 to show that rate of rent now fixed by respondent No,3 and Maintained by respondent No,2 has no rational to the value of the property assessed by the Government for levy of property tax over the building, Learned counsel, however, did not dispute the facts that tenement in possession of the petitioner was let out to them in late 50's at the rate of Rs, 100 per month and since thereafter not even once rent was enhanced by the petitioner. He also conceded that for fixation of fair rent for the first time by the Rent Controller, through application under section 8 of the Ordinance of 1979 no specific percentage for enhancement in the rate of rent has been provided by the statute, and the criteria under the said provision of law is to take into account all the factors specified therein collectively and not merely any single factor.
9. Learned counsel lastly contended that application under section 8 of the Ordinance filed by respondents through their attorney was not maintainable in law as the said attorney was not lawfully authorized by the respondent No,1 corporation to initiate such proceeding against the petitioner.
10. On the other hand, Mr. Siddique Mirza, learned counsel for respondent No,1 contended that looking to the location of the case premises; its area and locality; increase in the value of the properties at Karachi metropolitan city, and rate of inflation, the rate of rent fixed by Rent Controller is still on the lower side. The attorney of the respondent No,1 has not wily orally asserted these facts in his evidence but documentary evidence was also brought on record to show that rate of rent in the same locality is ranging even up- to Rs,45 per sq. Feet per, month. He further contended that since late 50's uptill now cost of construction and cost of land has gone up by hundred/thousand times and looking to all these aspects of the case Rent Controller has fairly ordered enhancement of rent at the rate of Rs,12 per sq. Feet, as against Rs,17, per sq. Feet claimed by the respondent No, 1.
Replying to the submissions of Mr. Sadiq with reference to the maintainability of the rent application learned counsel submitted that on behalf of respondent No,1 corporation rent application was signed and presented by Mr. Jafar Hussain Siddiqui, who was duly authorized on behalf of respondent No,1 corporation through General Power of Attorney dated 10-1-1991, which was executed in his favour on the basis of earlier Board's Resolution dated 11-11-1990. Learned counsel also placed on record photo stat copy of such General Power of Attorney executed in favour of M.Jaffar Hussain Siddiqui before filing of rent application. He further submitted that the plea of maintainability of rent application with reference to the authority of person filing it was even not raised by the petitioner in their written objections thus such plea cannot be raised at this belated stage while dealing with this matter under the Constitutional jurisdiction of this Hon'ble Court. Replying to the other, submission of the Mr. Sadiq regarding non-maintenance of the building Mr. Mirza contended that such assertions are concocted and baseless and in any case if petitioner have any grievance of such nature, then proper remedy available to them is to approach the Rent Controller in terms of section 12 of the Ordinance 1979, but on this ground fixation of fair rent as per prevalent market rate cannot be denied to the respondent No,
1. In support of his submissions Mr. Mirza placed reliance upon the case of Messrs Olympia Spinning and Weaving Mills Ltd. And another v. State Life Insurance Corporation of Pakistan (2001 SCM R 1103).
11. In this case Appeals Nos.1278 to 1281 of 1998 preferred by other tenants of respondent No,1 against the order of Rent Controller regarding fixation of fair rent, which order was also maintained by Hon'ble High Court of Sindh, were dismissed by the apex Court with observation that "it is not an invariable rule of law that for determination of fair rent, all the four factors postulated in section 8 of the Ordinance must co-exist." Referring to various other judgment of High Court in this context it was further observed that all the four factors enumerated in section 8(1) of the Ordinance of 1979 have to be cumulatively taken into consideration for determination of fair rate of rent. Further such factors are only required to be taken into consideration nor the purpose of exercising judicious discretion and cannot be applied mechanically.
12. I have carefully considered the arguments advanced by learned counsel for the parties and perused the case record.
13.Before discussing factual aspects of the case and examining the above noted contentions of the learned counsel, it would be appropriate to mention here that the jurisdiction of this Court under Article 199 is extraordinary in nature which is aimed at proper dispensation of justice and to avoid abuse of the process of law. Therefore, normally such jurisdiction is not to be exercised by the High Court to interfere with the discretionary orders of the subordinate Courts, where jurisdiction has been conferred upon it by some special statutes. Moreover, as held by this Court in the case of Messrs Mehraj (Pvt.) Ltd., v. Miss Laima Saeed acid others (2003 M LD 1033) "jurisdiction of this Court under Article 199 of Constitution cannot be, invoked to circumvent the provisions of rent laws so as to serve the purpose of -second appeal, which has been specifically done away by the legislature, while promulgating the Ordinance of 1979, unless the findings recorded by the Tribunal are found to be based on patent misreading of evidence of the same are arbitrary, capricious, and perverse and have resulted in gross miscarriage of Justice".
14. Reverting to the facts of the present case it will be seen that admittedly case premises were let out to the petitioner in the year 1959-60 at the rate of Rs,100, per month when the cost of construction and the cost of land, even in the heart of the city was nominal in comparison to the prevalent cost of land and cost of construction. Rent Controller while fixing the rent of the case premises at the Rate of gs.12, per sq. Feet has taken into consideration not only this aspect of the case but also other documentary evidence placed on record by respondent No,1 to show that in the same locality other properties have been let out by the landlords even at the rate of Rs,45, per sq. Feet.
15. Considering all these factors and the concurrent findings of two Courts below regarding fixation of rent at the rate of Rs,12, it cannot be said that such findings are arbitrary or based on misreading of evidence. As held by the apex Court in the case of Olympia Spinning and Weaving Mills (supra) the cumulative effect of all the four factors enumerated in C section 8(1) of the Ordinance 1979 is to be taken into consideration by the Rent Controller for fixation of fair rent, therefore,- mere fact that property tax paid by the landlord in respect of the building, having the case premises on the ground floor, is much less than the rate of rent fixed by Rent Controller, cannot be made basis to hold that findings are not based on proper appreciation of evidence/case record.
16. Other submissions of Mr. Sadiq with reference to maintainability of the rent application and non-maintenance of the building by respondent No,1 have also force for the reasons that learned counsel_ for respondent No,1 has placed ,on record duly executed power of attorney dated 10-1- 1991 in favour of S.Jaffar Hussain Siddiqui authorizing him on behalf of respondent No,1 for filing such proceedings. If the petitioner had raised such objection at any earlier stage, which was not done by them, then respondent No,1 could have produced the power of attorney before Rent Controller. The submission of Mr. Sadiq regarding non-maintenance is also equally not without force as for such grievance proper remedy available to the petitioner is under section 12 of the Ordinance, 1979 but it cannot be made basis for denying the relief of fixation of fair rent to the landlord in terms of section 8 of the Ordinance.
17. For the foregoing reasons I had found no substance in this Constitutional petition which was accordingly dismissed by short order dated 23-5-2005.