C.M. No, 2/2016 As both the learned counsel for parties, have argued on the point of limitation, therefore, this application under Section 5 of the Limitation Act for condonation of delay is being taken, up first.
2. After hearing the learned counsel for the parties, we have noted that the office had sent the copy of the impugned order dated 07.06.2016 to respondents on 19.07.2016 after when it reached in the office during the summer vacation. The applicant applied for the issuance of certified copy on 28.07.2016 and on the same day it was prepared and delivered to the applicant and the ICA was filed on 04.08.2016. i,e, within 20 days and during the summer vacation. Since the file was transmitted to the office on 12.07.2016, though the applicant applied on 28.07.2016, therefore, delay in filing the ICA is condoned as there is sufficient cause to file the I.C.A. After the expiry of 20 days without any fault of the applicant. This C.M., therefore, is allowed.
I.C.A. No, 311/2016.
3. This single order shall dispose of the instant appeal as well as I.C.A. No, 312 of 2016 titled "Ghulam Rasool etc. Versus D.S. Pakistan Railways etc." and I.C.A. No, 313 of 2016 titled "Khalil-urRehman etc versus D.S. Pakistan Railways", as all these appeals have arisen out of one order deciding common question of law and facts.
4. This Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 is directed against order dated 07.06.2016 passed by learned Single Judge in Chamber whereby through a single; order the writ petition filed by the appellants was dismissed alongwith other Writ Petition Nos. 4262 and 4043 of 2016 praying for declaring the policy of 2014 as not applicable to them and also for holding that the impugned advertisement dated 25.02.2016 was illegal, without jurisdiction and lawful authority with a further prayer to restrain the respondents from auctioning the land interfering into the possession of the appellants.
5. Brief facts giving rise to the filing of this Intra Court Appeal are that respondent/Pakistan Railways put to auction the land for construction of shops in the year 2004 under the policy dated 24.04.2002 initially for a period of 10 years with a renewal option for one-time extension of 5 years with 5% increase every year. The appellant being the highest bidder in the public auction advertised through the newspaper, was declared the successful bidder who deposited the money including the annual increase as per schedule and policy as well as the security. According to the appellants, after the completion of initial period of 10 years, a request was made to respondents to further extend the period for 5 years but they had taken the stand that vide the then existing policy dated 14.04.2014, extension of the period beyond 10 years was banned and thereafter shops were put to auction. The appellant challenged the said policy through the writ petition on the ground that it could not operate retrospectively to their dis-advantage. However, the writ petition was dismissed by learned judge, in Chamber primarily on account of the fact that it involved disputed question of facts and that the arbitration clause was available in the agreement for resolution of such disputes-arising out between the parties.
6. Rana Asif Saeed, Advocate learned counsel for the appellants contends firstly, that no notice was issued to the appellants of termination of lease agreement; secondly; said policy of 2014 would not be applicable to the appellants as it had already been declared as policy without a retrospective effect vide order dated 15.04.2015 passed in Writ Petition No, 4644 of 2015; thirdly, the agreement between the appellants and respondents was made on the basis of policy of the year 2002 which clearly stipulates for one time extension for 5 years; fourthly, by accepting the lease amount by respondents subsequent to the expiry of 10 years and by retention of the possession by appellants and security by the respondents they had impliedly admitted the extension of lease period and fifthly, submits that appellants are being discriminated as against other similarly placed persons who have been granted 5 years extension vide Letter No, 469-W/Auction/SDK issued in the month of April 2015.
7. Conversely, Mian Muhammad Ishfaq Hussain, Advocate, learned counsel for respondents contends that the order passed by learned Judge in Chamber is legal. Adds that as per prevalent policy dated 09.05.2016, the property of Pakistan Railways is to be leased out, therefore, it needs to be dismissed straightway.
8. Arguments heard. Filed perused.
9. After hearing the learned counsel for the parties we have straightway observed that policy dated 24.04.2002 "for license of UNCULTIVATED BARREN RAILWAY LAND FOR AGRICULTURAL PURPOSES WHERE MAJOR EFFORTS FOR INVESTEMENT IS REQURIED" the land was allotted to the appellants for 10 years, with 5 years renewal option. However, before the expiry of the said period the "REVISED POLICY FOR LEASING OF CULTIVABLE/BARREN AGRICULTURAL LAND" was promulgated on 14.04.2014 with immediate effect stipulating as follows: "The above said policy will be immediately enforced and no farther extension beyond ten (10) years will be granted in case of already leased barren land".
It signifies that it was immediately enforceable and no extension beyond the period of 10 years was to be granted to the existing lease holders. (underlining is for emphasis.)
10. We have also read the order dated 15.04.2015 passed by Single Judge of this Court in Writ Petition No, 4644 of 2015 titled "Raja Riffat Hayat versus Pakistan Railways through Chairman etc." wherein policy dated 10.7.2014 regarding Railways agricultural land measuring 4000 acres was already declared to operate prospectively. In this context, the learned counsel for the respondents has drawn the attention of this Court to "POLICIES FOR EXTENSION IN LICENSE PERIOD AND AUCTION OF ALREADY CONSTRUCTED PREMIUM SHOP" dated 09.05.2016 regarding the question of extension of license period of already constructed premium shops whose license was not extended to 5 years, permits only subject to deposit of 50% of the DC rates of area as premium, with 30% increase in rent of the previously paid annual rent. However, as its vires is not challenged before us, therefore, we will-restrain commenting upon it.
11. As per clause 3 of the lease agreement between the parties, a lease period of 10 years was extendable to 5 years subject to enhancement, at the rate of 5% of last, year rental charges. Clause 3 of the agreement is reproduced as under:--
3. NOW THIS INDENTURE WITNESSTH that in pursuance of the said agreement and in consideration of the rent hereby reserved and the conditions and convents hereinafter contained and to be observed by the lessee, the lessor do hereby demise unto the lease of the said shop(s) hereinbefore mentioned to hold the same unto, the lessee for a period of 10 years extendable for another term of five years with the consent of both the parties, subject to enhancement of the rent @ 5% after the expiry of each year.
The option for renewal of agreement for 5 years was also provided in Clause 15 which is reproduced as under:
15. That the lessee shall have to apply with the lessor three month before the expiry of the agreement showing his intention for extension of the agreement for another term of five years.
Lessor will consider the application of the Lessee on merit and according to rules of the department. If approved by the competent authority, the agreement will be renewed on enhanced rate of 5% of the last year's rental charges. The Lessee shall deposit the yearly rental charges in full, in advance, with Station Master/Divisional Accounts officer, Pakistan Railways under the authority letter issued by the Divisional Superintendent Pakistan Railways, Multan in this regard."
Importantly, nowhere in the agreement the unilateral change in the terms and conditions was allowed to respondents.
12. Admittedly, 10 years lease period of the appellants had already expired but they have retained the possession and have also been paying the rent to the government treasury besides retaining their security in the account of respondents/department. We have also noticed that lease of the sops at Railway Market, Sadiqabad initially granted for 10 years has already been extended to 5 years to similarly placed persons vide Letter No, 469-W/Auction/SDK issued in the month of April 2015 from Pakistan Railways Sukkur, Division.
13. The respondents have not issued any notice to the appellants to vacate the shops or even intimated them that they have no intention to extend the lease period for 5 years. Under clause 15 of the agreement, although it was required of the appellants to have applied for such extension but their intention can also be ascertained and gathered through the above said admitted facts. The similarly placed persons were already extended the lease period for 5 years. Needless to observe that the government is within its right to apply any beneficial terms and conditions in the policy for leasing out the land but it would not prejudice the rights of the existing lease holders already acknowledged as such by the government. Here reliance can be placed upon Messrs Army Welfare Sugar Mills Ltd. And others versus Federation of Pakistan and others (1992 SCM R 1652).
14. Keeping in view the above facts, we are of the firm view that prayer made in the writ petition in respect of the policy dated 15.07.2014 is to be allowed and we hereby hold that it operates prospectively and not to the appellants. This Intra Court Appeal, therefore, stands allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.