' MUHAMMAD HASHIM KHAN KAKAR, J.--- By way of these petitions under Section 115 of the Civil Procedure Code, 1908 (C.P.C.), the judgments and decrees dated 30th April, 2011 and 24th November 2011 ("the impugned judgments"), respectively passed by the learned Senior Civil Judge- II, Quetta ("the trial Court") and Additional District Judge- III, Quetta ("the appellate Court"), have been called in question by the petitioners i.e. Quetta Metropolitan Corporation ("QMC"), through its Administrator. Since common question of law and fact is involved in the matters, therefore, both the petitions are being disposed of through this common judgment.
2. The short facts, relevant for disposal of these revision petitions, are that the respondents are tenants of the petitioners in the shops, situated at Beef Market, Kasi Road and Jinnah Cloth Market, Jinnah Road, Quetta and in this respect agreements were also executed between the parties, however, after expiry of period of the agreements, the same were not extended and the respondents are paying rent to the petitioners on month-inmonth basis. The respondents were called upon by the petitioners to execute fresh lease agreements for the financial year 1999-2000 at the enhanced rent of Rs.2000, Rs.6000 and Rs.8000 per month in view of the decision taken by petitioner No.1 on the basis of a Resolution passed by the QMC vide item No.16 in its meeting held on 4th December 1999. The respondents, being aggrieved of the decision taken by petitioner No.1, filed a suit for declaration and injunction before the learned trial Court, which was decreed in their favour. The petitioners assailed the judgment before the learned appellate Court, which too was dismissed.
3. Messrs Mujeeb Ahmed Hashmi and Abdul Khair Achakzai, learned counsel for the respondents, contended that the increase in the rent was arbitrary and was made without consultation of the respondents, therefore, the respondents are not bound by such a decision made by the petitioners.
While supporting the impugned judgments passed by the two Courts below, he further submitted that, keeping in view the provisions of the Balochistan Urban Rent Restriction Ordinance 1959 ("the Ordinance of 1959"), petitioner No.1 was not authorised to increase the rent, rather the petitioners should approach the Rent Controller for fixation of fair rent with the purview of Section 4 of the Ordinance of 1959.
4. On the contrary, Mr. H. Shakil Ahmed, learned counsel for the petitioners, stated that the provisions of the Ordinance of 1959 are not applicable in respect of the properties, belonging to QMC, autonomous bodies and in case of any violation of the terms and conditions of the agreements, executed between the parties, the provisions of the Balochistan Autonomous Bodies Immovable Property (Ejectment of Unauthorized Occupants) Ordinance, 1965 ("the Ordinance of 1965") can be pressed into service and, thus, there was absolutely no occasion with the Courts below to interfere in the discretion used by the Authority, which is, otherwise, neither arbitrary nor perverse.
5. I have listened to the rival contentions of the learned counsel for the parties in the light of the record, however, I have noticed a legal feature of this case, emerging out of different notifications, crucially relevant for disposal of the instant controversy, which read as under:
(1) "West Pakistan Urban Rent Restriction Ordinance, 1959. No. HG-I0-2/59, 12th March, 1959, (Gazette Extraordinary, 16th" March 1959)---In exercise of the powers conferred by section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of the West Pakistan is pleased to direct that the provisions of the said Ordinance shall not apply to buildings and rented land vested in the Central or Provincial Government."
(2) "No. Judl. 1-17(7)59---In supersession of Home Department Notification No.Judl .-1-17(7)/59, dated 20" June 1962 and in exercise of the powers conferred by section 3 of West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of West Pakistan is pleased to direct that the provisions of the said Ordinance shall not apply to those buildings or lands belonging to Local Body Administering an urban area which are used as shop or are of commercial nature."
(3) "West Pakistan Urban Rent Restriction Ordinance, 1959 (provisions not applicable to buildings or lands belonging to Local Bodies)
[Gazette of West Pakistan, 6th July 1962] ' No. Jud1-1-17(7)/59.- In exercise of the powers conferred by section 3 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of West Pakistan is pleased to direct that the provisions of the said Ordinance shall not apply to such buildings or lands belonging to a Local Body Administering an urban area which used to be let out in the past by means of auction."
6. A plain reading of the aforementioned notifications and sections 2(i) and 3 of the Ordinance of 1959 clearly indicates that the Ordinance of 1959 is not applicable to the shops, which are subject matter of the instant revision petitions. The efficacy of the said notifications could not be questioned on any standard before me by the learned counsel for the respondents. Even otherwise, the respondents have not challenged the findings of the learned appellate Court to that effect before this Court. The learned appellate Court has rightly held that the relationship of landlord and tenant between the parties is created by the contract lease and such relationship is governed by the terms and conditions as laid down in the contract executed between the parties. Thus, the contention of the learned counsel for the respondents, that petitioner No.1 instead of enhancing the rent, should have approached the learned Rent Controller, is devoid of any force.
7. The learned appellate Court has rightly held that in case of any violation of any provision of the contract, the provisions of the Ordinance of 1965 would come into play. It may be observed that after expiry of lease agreements between the parties, the lessees, in absence of any agreements to the contrary, will be considered to be holding over the lease and in that event, the lessor will be authorized to take over the possession of the properties B in occupation of the lessees, while exercising powers conferred upon the petitioners within the purview of the Ordinance of 1965. Since the leases, executed between the parties, stand determined by efflux of time, as such, the petitioners are authorized to initiate proceedings against the respondents strictly in accordance with law under the provisions of the Ordinance of 1965.
8. After setting at rest the afore mentioned two controversies, the only question, which requires to be determined by this Court, is as to whether the petitioners were authorized to enhance the rent, if so, whether the same is arbitrary and unreasonable? In this respect, I am of the opinion that the law recognizes such power of the petitioners to regulate and maintain it properties and it cannot be questioned by persons like the respondents under one or the other pretext. So long there is no arbitrariness and so long there is no illegality and colourful exercise of power, it cannot be questioned by the respondents. Only if it is shown that they have been singled out for different treatment, the respondents can succeed in questioning the right of the QMC to enhance the rent. It is also specifically provided almost in all the agreements executed between the parties that during the existence of lease agreements, the enhancement of rent by the petitioners would be applicable to the lessees. So far as the arbitrariness and reasonableness of enhancement in the monthly rent is concerned, I have painfully observed that the respondents have been in possession of the shops in question for the last about 50 years and paying a meager amount of Rs.80 to Rs.200 per month in respect of the shops situated at the hub of the city. It may be observed, that, admittedly, the respondents are not paying monthly rent according to the prevailing market rates, which has made out a case for enhancement of rent against the respondents. Although under the provisions of Balochistan Local Council (Property) Rules 1983, it was duty of the petitioners to take such steps as may be necessary to ensure that the properties vested in it are managed and maintained in the best interests of the public, yet it appears that the petitioners woke up from a long slumber with a shuddering realization to protect and safeguard the interest of the QMC and the public exchequer.
9. It may be observed that during the proceedings of Constitutional Petition No.59 of 2010 titled as Mst. Parveen vs. Government of Balochistan, a number of tenants of the QMC were agreed to enhance the rent in respect of the premises in their occupation from Rs.22 per annum up to Rs.45,000 and Rs.1,00,000 per month. Besides hearing the respondents in the instant case, full- fledged opportunity of hearing was provided to them in the proceedings of the said constitutional petition, but they are reluctant, while taking benefits of technicalities, to enhance the rent. Needless to observe that even the proposed enhancement in monthly rent is far less than the market value, prevailing in Quetta city, hence, the proposed rent is neither arbitrary, nor exorbitant.
10. Learned counsel for the respondents submitted that leasing out is not a sovereign exercise, but it is like any other act of an ordinary individual and, therefore, the QMC or the public bodies cannot claim any higher right. He further submitted that it will be opposed to public interest to deny the right of the respondents to obtain renewals. If they are denied for the renewal, they will be uprooted and their livelihood will be affected. The submissions made by the learned counsel for the respondents are devoid of any force, because it is the larger interest of the Society that has to be taken into account. If certain persons, merely because they bid at the auction and became successful bidders and thereby became entitled to enjoy the right for certain period, are allowed to contend that they must be granted renewal, then there will be no control for the public bodies.
Persons let into possession would like to continue as long as it is possible, and then their heirs will be let into possession and it will likewise become a heritable right. It cannot be permitted at all. The properties of local bodies cannot be allowed to be fettered by perpetuity. Public bodies have the right to put the properties belonging to them in auction and augment their income and, thus, deal with it in a manner more advantageous to them. Any direction not to hold auction or not to increase the monthly rent or to renew the lease will not only put an unwarranted limit on their right, but would work against the larger interest of the Society. Further, it will lead to monopoly. Thus, a few persons, who get into the property, because they happened to be successful bidders for a particular period, cannot be allowed to close the doors.
11. There is one other aspect to be noted in this regard. Though in spite of specific directions the respondents did not produce the lease documents, yet it can be presumed that the respondents are there now because of the public auction. In other words pursuant to the public auction held, they being the highest bidders were allotted. The shops to enjoy the right. Therefore, when they owe their entry to a public auction, is it open to them to say that no public auction should be held. Can they say "it is all right, I have, come into the property, thanks to a public auction, "let us have no more actions". According to my opinion the respondents under the law will not be entitled to put forward such contention. Their entry into the property is because of a public auction and they cannot claim that such an entry should be barred for others, enabling them to remain in the property for ever, that too, on their terms and conditions.
12. Admittedly, there is no point in dispossessing the respondents, if they are prepared to pay the enhanced rent as per notification issued by the petitioners. They are in the premises doing business, apparently, with considerable investment. If the respondents are ready to make the payment of monthly rent at the enhanced rent, it is proper that the respondents be allowed to continue their possession of these premises. They must, however, pay the rent at the enhanced rate as per notification from the date of its issuance.
' For the aforesaid discussion, the petitions are allowed and the impugned judgments passed by the Courts below are set aside. The respondents are directed to make the payment of monthly rent on enhanced rate from 4th December 1999 and in case of failure, the petitioners would be at liberty to initiate proceedings for ejectment of the respondents from the shops in question in accordance with the provisions of Ordinance of 1959.