QAZI FAEZ ISA, J.--- Civil Petition No, 1260/2015 This petition assails the judgment dated 27th May, 2015 of a learned Single Judge of the High Court of Balochistan, Quetta, passed in Civil Revision No, 42 of 2012 whereby the judgments of the Courts below were set aside and the petitioners were directed to pay the monthly rent as had been determined by the Rent Committee of the Quetta Municipal Corporation approved in the General Body meeting of 4th December, 1999 of the Municipal Corporation Quetta, the predecessor-in-interest of the Quetta Metropolitan Corporation ("the Corporation"), failing which the Corporation "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 1965", that is, the Balochistan Autonomous Bodies Immovable Property (Ejectment of Unauthorized Occupants) Ordinance, 1965 ("the 1965 Ordinance").
2. At the outset both Mr. Tariq Mehmood and Mr. Hadi Shakeel Ahmed, the learned counsel for the ketitioners and the respondents respectively, stated that the parties had compromised their dispute in terms of an unstamped agreement dated 23rd May, 2016 (copy whereof was produced without proper filing) and sought the disposal of this petition in terms thereof. We have gone through the said agreement whereby the premises are agreed to be demolished and to be replaced by a "Mall Structure". To better understand the purported compromise clauses 1 and 5 of the agreement are reproduced hereunder:--- "(1) The Metropolitan Corporation Quetta will construct the shops through the investors of second Party (Subject to Approval by Government of Balochistan) on priority and handover the complete shops to the Legal Tenants within 12 months from the date of vacating/handing over of the shops. 1 or alternative the tenants will be entitled of Rs, 25,000/-per month by the investor w. e f. From the date of Vacation of the Shops."
"5. The Outstanding arrears will also be charged at the rate of Rs 4000/- per month w,e,f, the date of decision arrived at by the Provincial Minister Government of Balochistan Local Government v.
Rural Development Department, Quetta against the tenants and will be adjusted/recovered in 24 instalments."
We are astounded with the said agreement which on the face of it contravenes the provisions of the Balochistan Local Government Act, 2010 ("the Act"), including its section 110, reproduced hereunder:--- "110. Use and disposal of properties of local council.
(1) Properties of local council shall be used only for public purposes.
(2) Immovable properties of local council shall not be sold or permanently alienated: ' Proided that such properties may be given on lease through competitive bidding in public auction with the prior approval of the Government: Provided further that no such property under or near a fly-over bridge shall be leased or otherwise given to any person for private, commercial or noncommercial use, and any order, licence, permission, handcart passes or certificate issued by any authority at any time in this respect shall stand withdrawn and shall be deemed cancelled.
(3) The movable property of a local council which, by the order of the Government is required to be disposed of and all articles declared unserviceable shall subject to approval by the Government, or any authority specially empowered by the Government in this regard, be sold through a transparent competitive bidding in public auction."
' Section 111 of the Act mandates that, "Every Mayor/ Chairman, official or servant of a Local Council, every member of a Local Council, and every person charged with the administration and management of the property of a Local Council shall be personally responsible for any loss or waste, financial or otherwise, of any property belonging to a Local Council which is a direct consequence of decision made by him personally or under his direction in violation of any provision of this Act. It is disconcerting to note that those in charge of the administration/management of the affairs of Metropolitan Corporation Quetta and its properties are themselves disregarding the provisions of the Act. The public interest and that of the citizens of Quetta, must be the foremost concern of the Metropolitan Corporation Quetta. We deprecate the attempt made by the parties to use the pretext of the pending petition to enter into the purported agreement.
3. We were however informed by the learned counsel for Metropolitan Corporation Quetta that the said agreement is subject to the approval of this Court and nothing has been done pursuant to the said agreement as yet. Needless to state it is not within the domain of this Court to accord approval as sought. Be that as it may, for the removal of any and all doubt, we categorically state that no consent, permission or approval has been accorded to the agreement.
4. That having disposed of the matter of the purported agreement we proceeded to hear the case.
Mr. Tariq Mehmood, the learned counsel for the petitioners, stated that the petitioners are statutory tenants of shops owned by the Corporation situated in the Beef Market on Kasi Road and Jinnah Cloth Market on Jinnah Road, Quetta and after the expiry of their leases they could only be evicted in terms of the Balochistan Rent Restriction Ordinance, 1959, and not pursuant to the 1965 Ordinance because the petitioners are not unauthorized occupants in terms thereof. The learned counsel further stated, that the Senior Civil Judge had rightly held that, "the rent can be enhanced with the consultation of the tenants after observing rules, justly and fairly", which decision was upheld by the learned Additional District Judge and there was no reason for the High Court to take a different view. It was next contended that both for the fixation of fair rent and ejectment of the petitioners the Corporation had to seek recourse to the Balochistan Urban Rent Restriction Ordinance, 1959.
5. Mr. Hadi Shakeel Ahmed, the learned counsel for the respondents, stated that the decision of the Rent Committee unanimously approved by the Governing Body of the Corporation had to be given effect to, all the more when no mala fide or ulterior motive was alleged let alone established. He next contended that the petitioners were paying a meager rent for valuable properties that are situated within the heart of Quetta City and that the said rent increase was still well below the market rates. It was next urged that the stance of the petitioners is contradictory as on the one hand they allege that the Corporation could approach the Rent Controller for fixation of fair rent under the Balochistan Urban Rent Restriction Ordinance, 1959 whereas the petitioners themselves did not do so and instead filed the suit. He further stated that as per Notification dated 20th June, 1962 issued pursuant to section 3 of The Balochistan Urban Rent Restriction Ordinance, 1959 this Ordinance was not applicable, "to those buildings or lands belonging to Local Body Administering an urban area which are used as shop or are of commercial nature", which was followed by another Notification of 6th July, 1962 issued under the same provision whereby this Rent 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." The Additional District Judge had clearly held that the Balochistan Urban Rent Restriction Ordinance, 1959 was not applicable to the Corporations' buildings and the occupants thereof were to be evicted, "by using the provisions of Balochistan Autonomous Bodies Immovable Property (Ejectment of Unauthorized Occupants)
Ordinance, 1965", which determination was not assailed by the petitioners before the High Court, therefore, as per the learned counsel, they are now estopped from doing so. The learned counsel concluded by stating that the petitioners, despite being called upon by the Corporation to execute agreements at the stipulated enhanced rates elected not to do so, had become unauthorized occupants and thus the 1965 Ordinance was fully applicable to them.
6. We have heard the learned counsel and have gone through the record. No ulterior motive has been subscribed to the Corporation in enhancing the rent, but simply that it was considerably more than what the petitioners were paying earlier and that the rent could only be increased by mutual consent of the parties, failing which the Corporation was required to submit an application for determination of fair rent. The petitioners however themselves did not take recourse for determination of fair rent under section 4 of the Balochistan Urban Rent Restriction Ordinance, 1959 but instead had filed a suit for declaration and injunction with the prayer that the Corporation could not unilaterally and arbitrarily increase rent, which was accepted by the learned Senior Civil Judge but without giving any reason. If for arguments' sake it is accepted that rent can only be enhanced by the Corporation in agreement with the tenants then no agreement would materialize because tenants would not be expected to pay more rent if they could get away with by paying less. The properties of the Corporation, as noted above, have also been specifically excluded from the purview of the Balochistan Urban Rent Restriction Ordinance, 1959 and the learned counsel could not' rebut the said exclusion. Since the properties of the local bodies, including the Metropolitan Corporation Quetta, have been excluded from the applicability of The Balochistan Urban Rent Restriction Ordinance the Corporation is not required to submit an application for fixation of fair rent thereunder.
7. We lastly attend to the contention of the learned counsel for the petitioners that the learned Judge of the High Court should not have mentioned that upon failure of paying the enhanced rent ejectment proceedings should be initiated pursuant to the Balochistan Autonomous Bodies Immovable Property (Ejectment of Unauthorized Occupants) Ordinance, 1965. However, as noted above, the learned Judge had reiterated what had already been determined by the Appellate Court which finding was not assailed by the petitioners before the High Court. In any event the learned counsel has not been able to persuade us about the non-applicability of the 1965 Ordinance in respect of persons who are in occupation of the Corporation's properties without the same being leased out to them.
8. We can also not be unmindful of the fact that the petitioners have dragged out this matter for a period of over sixteen years and are not paying the increased rents determined in the year 1999.
The amount then determined would undoubtedly be much below the prevailing market rates. Be that as it may, in case the petitioners or any one or more of them want to continue with the tenancy of the premises in their occupation they should proceed in terms of the Corporation's Notice dated 22nd December, 1999 whereby they were called upon by the Corporation to submit stamp papers of prescribed value for execution of fresh agreements as per the rent determined by the Rent Committee which was confirmed by the resolution of the Corporation dated 4th December 1999. The petitioners shall however start paying rent on the said rates immediately. As regards the accumulated rent, as per the rates determined by the Rent Committee which were approved by the Corporation on 4th December, 1999, the same shall be paid within a period of three months. With such modification in the well-reasoned judgment of the High Court this petition is dismissed.
C.R.P. No, 559/2015 ' This Review Petition seeks the review of an interim order dated 1st July, 2015 whereby the petitioners were directed to deposit 50% of the increased rent within one month with the Registrar of this Court. However, since we have disposed of the main petition, the review petition has become infructuous and is accordingly dismissed. In case the petitioners, or any one or mere of them, had not complied with the said interim order such default is condoned since all the petitioners have been given the opportunity to start paying the rent as well as to pay the accumulated rent as mentioned in the foregoing paragraph.