' Plaintiffs have filed this suit for declaration and permanent injunction against the defendants with the following prayer:-- "16.a. Declaring that the plaintiff and other legal heirs of deceased Syed Zafar Ali have a legal right and character to possess and enjoy the Property bearing No,NC No,164, Deh Safooran, measuring 7,500 Sq.Yards, opposite, Star Gate, Shahrah-e-Faisal, Karachi, as successors in interest of the deceased lessee.
16.b Declaring that the impugned Order No,PS/MBR(LU)/89-386 dated 13-9-1989 passed by the defendant No,2 as contained in Letter No,Rev.2683/89 dated 18-9-1989 of defendant No,3 is void ab initio, unlawful, unjust and of no legal effect whatsoever.
16.c To declare that the threatened actions of the defendants for resumption of the suit property is consequently illegal, unlawful and is liable to be set aside.
16.d To declare that the plaintiff and the legal heirs mentioned in para.3 of the plaint are the lessees of the defendant.
16.e To permanently restrained the defendants or any person or any body claiming through or under it from taking over the possession of the suit property, and/or in any manner interfering with the possession of the plaintiff of the suit property, from evicting the plaintiff/lessees from the suit property and/or demolishing completely or any part of the raised construction on the suit property, and from resuming the suit property.
16.f . To direct the defendants by mandatory injunction to execute the lease of the suit property for 20 years with effect from 1-7-1985 to 2005 A.D. In favour of the plaintiff and other legal heirs in accordance with law in accordance with renewal clause.
16.g Cost of the suit.
16.h Any other relief which this Honourable Court may deem fit and proper to grant on the facts and circumstances of the case.,"
2. The facts of the matter are that on 28-3-1956 the Collector of Karachi leased land measuring 7,500 square yards from NC No,164, Deh Safooran to Syed Zafar Ali for the construction of rest house which lease was for a period of 30 years and was renewable at the option of the lessee. Pursuant to the grant of lease, the said Syed Zafar Ali constructed a hotel on the said land in the name of Hostellerie-de-France. Thereafter said Syed Zafar Ali died and his estate devolved on the plaintiff Syed Raunaq Raza and three other legal heirs named in para. 3 of the plaint. The names of the legal heirs were mutated in the Record of Rights in respect of the said land. While the lease was subsisting, defendants unilaterally enhanced the annual rent which was opposed by the plaintiffs and other legal heirs of deceased Syed Zafar Ali. The Government as a counterblast cancelled the lease of the land whereupon a writ petition was filed in the High Court which petition was compromised and withdrawn. The original renewal clause in the lease was deleted and in its place the following renewal clause was inserted: "On the expiry of this period, the lease, unless it has been resumed earlier, may be renewed by the Government for another period not exceeding 20 years on such terms and conditions as the Government may then determine."
3. Prior to the expiry of the lease, the plaintiffs and other legal heirs of later Syed Zafar Ali made applications to the defendants for renewal of the lease and the first such application was dated 16- 3-1980. No action was taken by the defendants and the lease on completion of 30 years period expired on 1-7-1985. Plaintiffs, however, continued their efforts for the renewal of the lease which also was recommended by the Commissioner of Karachi. The lease was, however, not renewed and on 24-9-1989 plaintiffs received a notice dated 18-9-1989 from the Deputy Commissioner, Karachi East informing that the Government of Sindh has refused the request to renew the lease of the land vide Order No,PS/MBR(LU)/89-386, dated 13-9-1989 and the plaintiffs were required to remove the construction raised on the land and hand over vacant possession within seven days of the receipt of the notice to the representative of the Mukhtiarkar, East Karachi otherwise the structure will be removed at the cost of the plaintiffs. Plaintiffs claim that the defendants' refusal to renew the lease is without valid and cogent reason. That the plaintiffs have expended an amount of Rs,50,000,000 in the construction of the hotel building which has created valuable interest of the plaintiffs in the land and the same cannot be taken away without proper determination and the action in this regard of the defendants is illegal. During the pendency of the suit plaintiff Syed Raunaq Raza expired and his legal heirs were joined as parties. The defendants have contested the matter and filed their written statement in which two legal objections were taken that no cause of action accrued to the plaintiffs and the suit is barred by law. On factual plane it was stated that the land in question was leased for the purpose of rest house but in violation of the condition, plaintiffs have constructed a hotel. The defendants have further averred that as the plaintiffs have accepted the substituted clause of renewal, no right exists in the plaintiffs for renewal as it was within the power of the Government to renew or not to renew the lease. The fact that the plaintiffs have requested for renewal was admitted but the stand taken was that it was within the absolute discretion of the Government to decline such request. The defendants ultimately sought dismissal of the suit.
4. On the basis of the pleadings of the parties the following issues were framed:--
(1) Whether the impugned Order No,PS/MBR(LU)/89-386, dated 13-9-1989 passed by the defendant No,2 as contained in Letter No,Rev.2683/89 dated 18-9-1989 of defendant No,3 is void ab initio, unlawful, unjust and of no legal effect whatsoever?
(2) Whether the plaintiffs and the legal heirs mentioned in para.3 of the plaint under law are entitled for renewal of the lease of the suit property?
(3) What should the decree be?
5. To prove its case, Mrs. Uroos Syeda Raza widow of Syed Raunaq Raza appeared as witness for the plaintiffs, who filed her affidavit-in-evidence and produced documents Exh.5/l to Exh.5/26. She was cross-examined by the defendants' counsel. From the side of the defendants, affidavit-in- evidence of Nasimul Ghani son of Abdul Ghani, Deputy Secretary (LU) BOR Sindh was filed who was cross-examined by the counsel for the plaintiffs.
6. Mr. Nadeem Azhar Siddiqui, learned counsel for the plaintiffs, has contended that the Commissioner of Karachi has recommended for renewal of the lease to the plaintiff's and the Commissioner being competent authority, his recommendation could not be ignored by the Board of Revenue, Sindh. He has further contended that in view of clause (25) of the Statement of Condition for grant of State land in the local limits of Karachi Taluka, K.D.A., etc. Issued under Colonization of Government Lands (Punjab) Act, 1912, the plaintiffs have right to the renewal of lease. He has further contended that the impugned order of non-renewal of lease and resumption of land is contrary to the principle of natural justice as no hearing whatsoever was granted to the plaintiffs before passing of the adverse order against them. He has further contended that in terms of the substituted renewal clause, the plaintiffs were entitled to grant of renewal of 20 years. In support of his submission, he has relied upon the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447, Syed Raunaq Raza v.
Province of Sindh and others 1994 CLC 317, Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435, Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268, Shah Muhammad v. Muhammad Hanif PLD 1988 Rev.
43 and Yarntex Trading Company and others v. Chief Controller of Buildings and others PLD 1998 Kar.
11.
7. On the other hand, Mr. Muhammad Qasim Mirjat, learned Assistant Advocate-General, appearing for the defendants, has relied upon Condition 3 of the Statement of Conditions and has contended that the plaintiffs have no right to the grant of lease and that the lease is not inheritable. He further contended that there is no use of the property by the plaintiffs since 1984 when the lease was in existence and plaintiffs have nowhere alleged that they have experience of running a rest house.
With regard clause (25) of the Statement of Conditions, he stated that the competent authority to lease the land was the Deputy Commissioner and not the Commissioner. He further stated that even the structure raised by the plaintiffs on the land was without approval of. Civil Aviation Authority, which was the violation of the conditions of lease. He further stated that the suit has been filed by only one legal heir and it is not explained as to why the remaining legal heirs mentioned in para.3 of the plaint were not made party. In support of his submission, he has relied upon the case of Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435, Haji Muhammad Qasim v.
Government of Sindh 2003 YLR 2586 and Muhammad Suleman v. Additional Deputy Commissioner (General), Lahore Cantt. PLD 2000 Lah.
262. In rebuttal, Mr. Nadeem Azhar Siddiqui, counsel for the plaintiffs, stated that the right to inherit lease was itself admitted by the defendants when they mutated the names of the legal heirs of late Syed Zafar Ali in the Record of Rights. He further stated that the plaintiffs are holding over the land in question under section 116 of the Transfer of Property Act and in terms of the order passed on the injunction application are regularly paying to the defendants rent yearly which is also being accepted by the defendants.
8. I have considered the arguments of the learned counsel and have gone through the record.
9. There is no dispute that the land was leased to Syed Zafar Ali for 30 years on 28-3-1956 for construction of rest house and the option of renewal of the lease was vested in the lessee. It is also not disputed that during the currency of the lease, Syed Zafar Ali died and the names of his legal heirs were entered in the Record of Rights for the land in question. When the land has been mutated in the Record of Rights in favour of the legal heirs of said Syed Zafar Ali by the defendants, the contention of the learned A.A.-G. That the lease was not inheritable has no force. Even otherwise, he has not been able to show any clause of lease or provision of law which may bar inheritance of lease by the legal heirs of the deceased lessee. At the same time, the other objection of the learned A.A.-G. May also be considered that the suit is filed only by one legal heir i,e, Syed Raunaq Raza and not by all the legal heirs and therefore, the learned A.A.-G. Stated that in the absence of explanation for not impleading the remaining legal heirs, the suit was not maintainable.
This objection of the learned A.A.-G. Can conveniently be disposed of by observing that in para. 3 of the plaint, the plaintiffs have given the names of other three legal heirs and in the prayer clause, the plaintiffs have sought relief for all the legal heirs. It is not disputed by the learned A.A.-G. That the names of the legal heirs of Syed Zafar Ali as mentioned in the plaint are not the same whose names were mutated in the Record of Rights on the death of Syed Zafar Ali. The suit is, therefore, not filed for the benefit of the plaintiff Syed Raunaq Raza/his legal heirs alone but also for all the legal heirs of late Syed Zafar Ali. One of the legal heirs, in my view, can maintain a suit for the benefit of all the legal, heirs who were co-lessees in the land in question.
10. The main contention of the learned counsel for the plaintiffs was that under Condition 25(1) of the Statement of Conditions for grant of State land in local limits of Karachi Taluka, K.D.A. Etc. Mandatorily required the renewal of lease on the same terms and conditions as of the original lease Exh.5/1 is a letter dated 28-3-1956 of the Collector of Karachi by which 7500 square yards of land was leased to Syed Zafar Ali for a period of 30 years for construction of rest house. Para. 1 of this letter provided that the lease is renewable at the option of the lessee. The renewal para., in this lease was replaced by a new para. Contained in the letter dated 24-1-1968 (Exh.512) of the Deputy Secretary (Land Utilization), West Pakistan which provided that on the expiry of this period, unless the lease is resumed earlier, may be renewed by the Government for another period not exceeding 20 years on such terms and conditions as the Government may then determine. Although, this gives an appearance that the Government has been given discretion to resume the lease and to renew or not to renew the lease, but on careful examination this does not appear to be so. As the question of resumption before expiry is not involved, the same needs no consideration in this case.
However, as far as the question of renewal is concerned, it is settled principle of law that power vested in the Government functionary has to be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment under which it is exercised. Reference is made to section 24-A of the General Clauses Act, 1897 and to the case of Airport Services (supra). Now in the context of the present case, whether the requirement of law has been fulfilled or not will be seen from the impugned order. It simply says that your request for renewal of the lease has been refused. Why it has been refused is not mentioned. Particularly, when there is a stipulation of renewal of 20 years, the giving of reason was all the more necessary. The learned A.A.-G. Has contended that the plaintiffs have violated the lease inasmuch as the construction plan was not approved by the Civil Aviation Department and instead of rest house, hotel has been constructed and that the property is not being put to use. It may be noted, in the first place, that these alleged violations are not mentioned in the impugned order. Even, if assuming that these alleged violations were the reasons for non-renewal of lease, then it became all the more necessary for the defendants to give hearing to the plaintiff as laid down by the Honourable Supreme Court of Pakistan in the case of Sardar Muhammad Aslam Sial v. Government of Pakistan 1985 SCMR 9 at page 17 as follows:-- "The learned Judge in Chambers found as fact, on the basis of the record produced before him, that there existed practice as well as precedents of the renewal of leases after the expiry of the term. Besides, as the facts go to show, it was not a case of mere refusal simpliciter grounded as it was on the alleged bad record of the breeders i,e, the appellants. From the refusal, so reasoned, it is manifest that the requests of the appellants for renewal of their leases had in point of fact been taken up but were however, turned down on the ground of their bad record of which they were not given any notice nor provided any opportunity to defend themselves. Such a decision was clearly adverse to the appellants and reflected upon their performance as breeders and in that the learned Judge in Chambers was right in holding that in this view of the matter the appellants were entitled to be given an opportunity to defend themselves before passing any orders and such an action was clearly against the principles of natural justice, void and without lawful authority. While upholding this finding it is unnecessary to examine the other contention that the impugned orders were otherwise bad as the same were passed on the dictates of the higher authorities by the functionaries exercising jurisdiction under the provisions of the Act."
' Admittedly no hearing was given to the plaintiffs.
11. Reverting now to the Statement of Conditions, it may be noted that this Statement of Conditions was published in Sindh Gazette Extra Part-I dated 5-6-1975 and was issued under section 10 of the Colonization of Government Lands (Punjab) Act, 1912 as Statement of Conditions for grant of State land in local limits of Karachi Taluka, K.D.A. Etc. Condition 25(1) is as follows:- "25(1) Notwithstanding anything contained in these conditions all existing leases of State land for building purposes shall be renewed on the same terms and conditions attached to such leases subject to payment of revised rates of increase rent determined by the Deputy Commissioner, provided that such rates shall be reported to the Board of Revenue."
' This condition starts with non obstante clause. In the case of E.F.U. General Insurance Company Ltd. v. Federation of Pakistan PLD 1997 SC 700 at page 728, the manner of interpreting non obstante clause is provided as follows:-- "A non obstatne clause is usually used in a provision to indicate that the provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency between the non obstante clause and another provision, one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clause. (Bindra on Interpretation of Statutes, 7th Edition)."
12. In the face of the above law dealing with non obstante clause, condition 25(1), as quoted above, despite inconsistency with other conditions, though none has been pointed out, will have affect of prevailing over other conditions. Condition 25(1) as it lays down that notwithstanding anything contained in these conditions all existing leases of State land for building purposes shall be renewed on the same terms and conditions attached to such leases subject to payment of revised rates of increase rent determined by the Deputy Commissioner, provided that such rates shall be reported to the Board of Revenue. The conditions attached in the replaced renewal clause was that the Government may renew the lease for another period not exceeding 20 years on such terms and conditions as the Government may then determine. The words used in Condition 25(1) are all existing leases of State land for building purposes shall be renewed word 'shall' has been used and in the context of the subject which is the lease of land. The Legislature if it so desired could have given discretion to the Government by using the word "may" instead of "shall". In my view, word "shall" has been used to give the condition a mandatory force so that it is applied in every case of existing lease without any difference or distinction. Read in this manner, there remains no doubt in my mind that the Legislature only wanted application of the condition to all existing leases and thus, made it in mandatory form. Therefore, insofar as the question that the Government had discretion to refuse the renewal of lease as contained in the replaced renewal clause was by operation of law turned into that of a mandatory condition to renew the lease. The only attached condition remained was that renewal was to be made for another period of 20 years on such terms and conditions as the Government may then determine. Admittedly plaintiffs have applied for the renewal of the lease in the year 1980 and when in 1985 the lease expired Condition 25(1) was in force. Thus, the Government was left with no option but to renew the lease for another period of 20 years. Insofar as the terms and conditions are concerned, the same will also be governed by Condition 25(1) which provides for revised rates of increase of rent determined by the Deputy Commissioner.
13. The net result of the above discussion is that in terms of Condition 25(1) of the Statement of Conditions, which provision was in the field on termination of initial period of lease i,e, 1-7-1985, the plaintiffs and the other legal heirs of (late) Syed Zafar Ali were entitled to the renewal of lease for another period of 20 years on the revised rates of increased rent determined by the Deputy Commissioner. In view of the above finding, the impugned order, dated 13-9-1989 and notice dated 18-9-1989 of the defendants are declared as illegal and void. Consequently, the defendants are directed to renew the lease of the said land in favour of plaintiffs and other legal heirs of Syed Zafar Ali from 1-7-1985 for a period of twenty years. The rent already paid be adjusted in the revised rent, if any.
14. The suit is, therefore, decreed in the above terms with no order as to costs.