MASUD ABID NAQVI,--- Through this petition, letter dated 07.02.2012 issued by respondent No,2 has been challenged which allegedly makes demand of outstanding rental charges/ arrears amounting to Rs,4,850,253/- for the period 01.01.1982 to 30.06.2012 from the petitioner.
2. Learned counsel for the petitioner submits that petitioner is a Limited Company incorporated in 1964 engaged in the Business of Lubricating Oils. Respondent No,1, a government owned entity, entered into a lease agreement with Messrs Gulf Oils (Great Britain Karachi Limited), the predecessors of the petitioner, in respect of a piece of land measuring 9005 Sqft situated at Badami Bagh, Lahore in March 1954. Subsequently, Messrs Gulf Oils was merged with the petitioner company in 1964 and the lease was transferred in the name of the petitioner company. Thereafter, petitioner constructed a warehouse at the said site at its own expense. Further submits that since the inception of the lease, the petitioner company has never defaulted and has been paying the advance lease charges according to the unilaterally increased rate from December 1954 until 2012.
Further submits that the demand of alleged arrears by the respondents on account of unilateral increase in lease charges retrospectively, at the rate of 1600% from 01.01.1982 to 30.06.2012, vide a back dated letter bearing No,473-W/87/Haroon Oils/P&L, dated 07.02.2012, signed by the respondent No,2, received in the office of the petitioner on 07.03.2013, is illegal and unlawful as the petitioner has not defaulted during the said period. Furthermore, under clause-6 of the agreement, the lease charges could be determined by the respondents for payment by the 'petitioner and under Clause 16 of the lease agreement, charges could be subject to revision and such revised charges were to take effect from the date fixed in the Lease Agreement for advance payment thereof, whereas, such an increase could be effective only for preceding one year. However, the petitioner kept paying the lease dues agreed between the parties as per agreement in accordance with the revised rate.
3. Learned counsel for petitioner further submits that the respondents, contrary to the conditions of the agreement, enhanced the charges w,e,f, 01.01.1982 without any justifiable cause and reasons vide the back dated impugned letter and also sealed the leased property in pursuance thereto.
Alleges that the illegal and arbitrary demand of retrospective 1600% increase in the lease charges by the respondent No,1 through impugned letter and act of sealing the lease property is against the express provisions of law and Articles 18, 24 and 25 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, liable to be declared without lawful authority. To substantiate his arguments, learned counsel for the petitioner relies on Khalid Mahmood v. Collector of Customs, Lahore, Custom House, Lahore (1999 SCMR 1881) and Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. (PLD 2001 Karachi 344).
4. Learned counsel for the respondents, at the very outset, has raised preliminary objections that this petition is not maintainable on the ground of laches and for want of non-joinder of necessary parties, namely, General Manager, Pakistan Railways, as envisaged in Section 80 of C.P.C. Further submits that this petition involves factual controversies which requires recording of evidence with regard to correct determination of rent etc and that it is a settled principle of law that violation of contract or failure to abide by the terms and conditions mentioned therein or to honour obligations arising out of an agreement cannot be decided in exercise of constitutional jurisdiction and such controversies can only be resolved by the appropriate forums provided by law and that the contractual rights, commitments, undertakings, minutes of meetings and obligations can be enforced through courts of the ordinary/general jurisdiction for which appropriate remedy is a civil suit instead of invoking constitutional jurisdiction under Article 199 of the Constitution. To supplement his arguments, learned counsel for the respondents relies on Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another (2005 SCMR 37), Messrs SF Engineering Services through Proprietor v. Federation of Pakistan through Secretary, Water and Power, Islamabad and 4 others (PLD 2014 Sindh 378) and Abdul Nadi v. Government of Balochistan, Local Government Rural Development Agrovilles Department through Secretary and 2 others (2014 CLC 1450).
5. On merits, learned counsel for respondents submits that in pursuance to the rent agreement with all the parties dealing with oil business, a meeting was held on 17.01.2000, wherein the new slab for future rent was decided. The petitioner miscalculated the payable rental charges and avoided to pay the rental charges according to the increase in the rent charges. It is submitted that the petitioner calculated and paid the rent based on its own whimsical calculations at the rate of Rs,0.86 per sqft, w,e,f, 01.01.1982 to 01.01.2000 and ignored the essentially increased rental charges to the following effect:-- 01.01.1982 31.12.1984to@ 100% increase on Rate of 1981 01.01.1985to@ 200% increase on 31.12.1987 Rate of 1981 01.01.1988to@ 300% increase on 31.12.1990 Rate of 1981 01.01.1991to@ 400% increase on 31.12.1993 Rate of 1981 01.01.1994to@ 500% increase on 31.12.1999 Rate of 1981 'The petitioner failed to make the payments of rental charges @ of Rs,2.00 per sqft. For the above mentioned period as per minutes of meeting/policy dated 17.01.2000. Letter dated 22.10.2002 issued by the Director Property and Land Headquarter Office No,5-AC/0-Pt-XI/P&L attaches the minutes of meeting dated 23.09.2002 which shows the increase on the rate of 1981 w,e,f,01.01.2000 to 30.06.2002 @ 600%. Further submits that as per minutes of meeting dated 16.06.2005, it was decided as per agenda item No,11, that different oil marketing companies would pay the rent as per the following schedule.
Sr.No,Period Rented Rate to be charged 101.7.2002 toMessrs PSO a 30.6.20083.75% of D.0 Value 201.7.2002 toMessrs Shell a 30.6.20083.87% of D.0 Value 301.7.2002 toMessrs Caltex a 30.6.20084.00% of D.0 Value
6. Learned counsel of the respondents further clarifies that rent based on D.C. Value of 2002 is @ 4.00% for the period 01.07.2002 to 30.06.2008. The letter No,5-AC/0/Pt-XIV/P&L dated 01.07.2011 issued by the Director Property and Land Headquarters Office, Lahore prescribes the following rates applicable to different companies: Sr.No,Period Rented Rate to be charged '101.7.2008 toMessrs Shell a 30.6.20135% of D.0 Value 201.7.2008 toMessrs Caltex a 30.6.20135.50% of D.0 Value 301.7.2008 toMessrs Compound 30.6.2013Escalation a 7.5% per annum w,e,f, 01.07.2008 ' According to D.C. Value, the rent has been calculated @ 5.50% of D.C. The rates worked out for Messrs Caltex Pvt. Ltd., has also been made applicable to Messrs Haroon Oil Ltd. Therefore, there is no discrimination meted out to the petitioner as all the other clients of respondents are paying the rates worked out by the respondents, without any default except the petitioner. Respondents have correctly determined the rental charges as per minutes of meeting dated 17.01.2000, attended by all the stake holders who had agreed on the payment as per the revised rates and that petitioner is a defaulter in payment of the rental charges despite repeated requests by the respondents. The petitioner, if aggrieved, should have approached the respondents but he did not challenge the demand notice before the competent authority. Instead the petitioner approached this Court directly, which is not the mandate of Article 199 of the Constitution. He thus prays for dismissal of the instant writ petition.
7. I have heard the learned counsel for the parties and have gone through the available record.
8. Before touching upon the merits of the case, I would like to discuss, first of all, preliminary objections raised by the learned counsel for the respondents, regarding the maintainability of this petition. Learned counsel for the petitioner relies on Khalid Mehmood v. Collector of Customs, Customs House, Lahore (1999 SCMR 1881) and Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. Through Managing Director (PLD 2001 Karachi 344) to argue that if the order complained of is patently illegal, void or without jurisdiction, this Court can be approached under Article 199 of the Constitution. In such matters, neither the alternative remedy would be sufficient nor would the restraint on the jurisdiction come in the way of High Court in exercising its extraordinary constitutional powers, therefore, according to him, this petition is maintainable before this Court.
9. The case law referred to by learned counsel for the petitioner is applicable to a case where the order under challenge is patently void, mala fide or without jurisdiction. In the present case, the impugned letter dated 07.02.2012 was undisputed issued by the competent authority. Learned counsel for petitioner has failed to point out any basic invalidity or essential illegality in the impugned letter, other than raising factual accusations, to bring his case within the orbit of extraordinary constitutional jurisdiction of this Court. On the contrary, factual controversies requiring evidence have been raised to seek decision on the issues involving quantum of rent, the increase due, outstanding amount, the period of default and liability of the petitioner. The case would also demand adjudication on the claim and quantum of payments made by the petitioner.
These are obviously disputed questions of facts, requiring a full fledged trial for their resolution.
Such an exercise cannot be undertaken by this court under Article 199 of the Constitution. Reliance can be placed on Collector of Customs, Lahore and others v. Universal Gateway Trading Corporation and another (2005 SCMR 37). Furthermore, constitutional jurisdiction is not intended for deciding disputed facts and to frustrate the general or the procedural law. Adjudication of controversy involving disputed questions of fact is by and large possible only after recording of evidence of the parties in a trial before the forums of plenary jurisdiction.
10. The petitioner has approached this Court allegedly against the demand of defaulted amount and de-sealing of the leased premises. The petitioner denies the default while the respondents assert their demand. This obviously create a dispute as to whether the petitioner paid the rent or the increase thereof under the contract of lease and also whether quantuin of increase has been correctly determined by the contesting parties or not under the contract. An elaborate inquiry is needed to settle these issues of facts requiring oral as well as documentary evidence for which constitutional petition is not an appropriate remedy. In such like cases, constitutional petition would not be competent. The extraordinary constitutional jurisdiction is intended primarily for providing prompt remedy in cases where legality or illegality of the assailed act of the executive or other authority can be established without an intricate inquiry into complex or uncertain facts.
Reference can be made to Messrs SF Engineering Services through Proprietor v. Federation of Pakistan through Secretary, Water and Power, Islamabad and 4 others (PLD 2014 Sindh 378).
11. This view has also been affirmed by the Hon'ble Supreme Court of Pakistan in judgment given in the case of Pakcom Limited reported as (PLD 201.1 SC 44) wherein it was held that infringement of a contract or failure to abide by the terms and conditions mentioned therein or to honour obligations arising out of an agreement cannot be decided in exercise of the constitutional jurisdiction. And that such controversies should be resolved by approaching the 'appropriate forums provided by law. The contractual rights, commitments, undertakings and obligations have to be enforced through courts of ordinary jurisdiction for which normal remedy is a suit than invocation of Article 199 of the Constitution. The Hon'ble Apex Court has made a similar observation in the case reported as Noor Muhammad Qureshi and another v. The Divisional Superintendent, Pakistan Railways, Quetta (1979 SCMR 157), as under:- "enforcement of contractual rights,, could not be enforced by resorting to constitutional jurisdiction of High Court."
12. The petitioner has neither challenged the lease or contract nor has the petitioner invoked any of the settled principles on High Court's power of judicial review of the contract. The petitioner has only impugned the respondent's notice/letter dated 07.02.2012 for recovery of increased rentals andsealing of the leased premises. Petitioner's case appears to involve the implementation and enforcement or non- enforcement of the terms of the lease than validity or invalidity of lease itself.
The question whether the petitioner complied with the terms of lease relating to enhancement of the rental or not, is obviously a question of fact requiring evidence for determination. The Hon'ble Supreme Court of Pakistan has settled the principles with regard to the exercise of extraordinary constitutional jurisdiction and powers of judicial review of High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan in the matters pertaining to contracts. The cases of Habibullah Energy Limited and another v. WAPDA through Chairman and others (PLD 2014 SC 47) and Messrs Ramna Pipe and General Mills (Pvt.) Ltd. v. Messrs Sui Northern Gas Piple Lines (Pvt.) and others (2004 SCMR 1274) can be relied upon in support. Furthermore, the Hon'ble Apex Court has deductively held in another case reported as Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi (1998 SCMR 2268) as under:-- "It has consistently been held that while routine contractual disputes between private parties and public functionaries are not open to scrutiny under the Constitutional ' jurisdiction, breaches of such contracts, which do not entail inquiry into or examination of minute or controversial questions of fact, if committed by Government, semi-Government orLocal Authorities or like controversies if involving dereliction of obligations, flowing from a statute, rules or instructions can adequately be addressed for relief under that jurisdiction. Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obligated to act justly,fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. In such behalf even where a contract, pure and simple, is involved, provided always that public element presents itself and the dispute does not entail penitentiary facts of a disputed nature, redress may be provided. A number of precedents have contextually come to-occupy the field and, inter alia, may be noted (1) Anjuman-e-Ahmdiya, Sargodha v. Deputy Commissioner, Sargodha (PLD 1966 SC 639), (2) The DFO South Khari v. Ram Sanehi Singh, 1971 (3) Supreme Court Cases 864 AIR 1973 SC 205; (4) Rashid A. Khan v. West Pakistan Railway Board PLD 1973 Lahore 733;
(5) The Majilis-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony v. Secretary to Government of West Pakistan, Communication and Works Department, PLD 1975 SC 355; (6)
Muhammad Ashraf All v. Muhammad Naseer and 2 others 1986 SCMR 1096 (7) Messrs Dwarkadas Marfatia and Sons v. Board of Trustees, Bombay Port,. AIR 1989 Supreme Court 1642; (8) M.H./Abidi v. State Life Insurance Corporation, 1990 MLD 563; (9) Mahabir Auto Stores v. Indian Oil Corporation, AIR 1990 Supreme Court 1031; (10) Sh-rilekha Vidyarthi v. State of U. P. AIR 1991 Supreme Court 537; (11) Messrs Pacific Multinational (Pvt) Ltd v. Inspector General of Police Sindh PLD 1992 Karachi 283; (12) Messrs Presson Manufacturing Ltd. v. Secretary Ministry of Petroleum and Natural Resources and 2 others 1995 MLD 15 (Lahore) and Shoaib Bilal Corporation v.
Government of Pakistan KLR 1997 Rev. Cas. 27 Lahore.
13. In view of the foregoing detailed discussion, I find that this petition involving contractual rights, commitments, undertakings, minutes of meetings, obligations and factual controversies, requiring recording of evidence, is not cognizable by this Court in its constitutional jurisdiction, hence, the same is accordingly dismissed.
14. Before parting with this judgment, I would like to commend the valuable research work carried out by Research Centre of this Court, specially Mr. Aamir Shahzad Khan, Civil Judge/Research Officer for the preparation of this judgment.