IBAD-UR-REHMAN LODHI, J.---Anjuman Faiz-ul-Islam is being treated as a lessee under Evacuee Trust Property Board in respect of Property No,210/B situated at Bazaar Talwaran, Naya Mohallah, Trunk Bazaar, Rawalpindi measuring 01-Kanal, 19-Marlas 12-square feet. Originally Deputy Commissioner, Rawalpindi on 06.01.1948 passed an order regarding allotment of such property in the name of Yatim Khana Anjuman Faiz-ul-Islam. It is, however, not disputed that now the property is being treated as evacuee trust property and is being possessed by the Anjuman as lessee under Evacuee Trust Property Board as against token rent of Rs,08 per month.
The documents, which have been placed on record before this Court, demonstrate that Anjuman Faiz-ul-Islam/lessee has entered into an agreement, which has been given the name of "Financing and Development and Co-tenancy agreement" signed on 14.05.2016 creating an interest of a third party namely Syed Ibrahim Shah, who has been introduced in the said agreement as "financer cum developer", whereby said financer cum developer was allowed to become a co-tenant with Anjuman Faiz-ul-Islam. Said Syed Ibrahim Shah moved an application before the Deputy Administrator, Evacuee Trust Property, Rawalpindi intimating that he has entered into an agreement with Anjuman Faiz-ul-Islam and such Anjuman has no objection to co-opt him as a co-tenant/sub-tenant and such sub-tenancy be allowed. The application moved by Syed Ibrahim Shah is shown to have been received in the office of Deputy Administrator, Evacuee Trust Property on 16.05.2016 and the Deputy Administrator, who seems to be very "vigilant" and "active" officer for the purposes of referred application, proceeded to allow the same by means of a detailed order on the same day i,e, 16.05.2016.
After once, the Deputy Administrator allowed the application by including the name of applicant Syed Ibrahim Shah in tenancy rights of the referred property, it was at a subsequent stage that on 25.05.2016, a joint application was moved by the lessee and the person, who was allowed to be included as a co-tenant, seeking a permission to grant lease in favour of co-tenant for a period of next 30-years. The applicants further provided the details of the proposed construction of the commercial building over the land, which was being used for Yatim Khana. Proposed arrangements show that only the following area after construction would be left in the use of Anjuman Faiz-ul-Islam, whereas the remaining would be used exclusively by the inducted co- tenant:-
1. Basement 30 feet x 30 feet
2. Ground floor 240 square feet Second floor complete
4. Third floor 25% approximate
5. Madrassa and mosque existing at ground floor presently would be located at rooftop.
Such proposed arrangement was sanctioned by the Evacuee Trust Property Board and an order in this regard signed by the Deputy Secretary (Property) of the Board on 08.09.2016 was issued. This communication was addressed to the Administrator, Evacuee Trust Property, (Northern Zone), Rawalpindi and the Deputy Administrator, Evacuee Trust Property Office, Rawalpindi and its copies were endorsed to Staff Officer to Chairman and Secretary to Evacuee Trust Property Board, Lahore.
2. To manage and dispose of evacuee properties attached to charitable, religious or educational trusts or institutions, an Act namely The Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) was promulgated on 15.01.1975. Section 30 of the said Act empowers Evacuee Trust Property Board to prepare one or more schemes with the prior approval of Federal Government for the management, maintenance and disposal of evacuee trust property and for the efficient performance of the functions of Board and in exercise of such powers, a Scheme for the Management and Disposal Urban Evacuee Trust Properties, 1977 was framed. Chapter VI-A of said Scheme deals with the "reconstruction and new construction" The provisions relevant for the purposes of present case of such Chapter are reproduced herein below and the effect of the same would be dealt with subsequently upon the arrangements proposed and settled with regard to the property under question:- 18-A
(i) If a residential or commercial property is required to be reconstructed or a new construction is to be raised, the following procedure shall be adopted:-- a. If a tenant applies for reconstruction of the building in his occupation, without additional floor area, the permission may be granted by the concerned Administrator subject to the conditions laid down in sub-clause of clause 14 and enhancement of rent of the property by fifty percent of the existing rent
(ii) If a tenant of residential unit applies for reconstruction of the unit with a view to use it, partly or wholly for a commercial purpose, himself, the Chairman may, if considered necessary, grant permission for such reconstruction, subject to the following conditions, namely f. The property shall not be sublet either partly or wholly. In case of default thereof, the tenancy rights shall be liable to be cancelled 18-B If a tenant of a property in his possession applies for raising a commercial project covering ground area not exceeding five kanals the permission thereof may be granted by the Chairman and for the project exceeding five kanals such permission may be granted by the Board.
18-C
(1) If the Board decides to develop a property, and the tenants of the property have not shown willingness to develop that property, offers or tenders may be invited through press and other media for development of the property The perusal of above procedure as provided in the Scheme framed by the Board with the prior approval of the Federal Government goes to reveal that it is always an existing tenant only, who is competent to apply for reconstruction of a building in its occupation and further that no subletting partly or wholly is allowed with regard to any property already in possession of a lessee or tenant and that third party interested would only be inducted, if the Board decides to develop a property and the tenant of the property has not shown willingness to that proposal, then offer/tender may be invited through press or other media for development of the property. The case in hand if adjudged on the touchstone of above provisions, it is clear that all has been done in reverse order as the procedure, which has been adopted in order to include a third person interested and to convert the property of Yatim Khana, where Madrassa and mosque also located, to a purely commercial use, the terms of the scheme have been followed in a crude manner. The officials representing the existing lessee i,e, Anjuman Faizul-Islam either have entered into an intrigue hatched by the officials of Evacuee Trust Property Board and the private person, who has been attempted to be inducted as a co-tenant, rather in fact a lessee for next 30-years of a commercial premises over an area of almost 02-Kanals in the heart of the city at the rate of bounties of the State or they have been forced to enter into such agreement with a third person for which a lessee has no authority to enter into or to create a sub-tenancy in respect of the existing lease.
The Deputy Administrator at his place seems to be agreeable even before the third person approaches him for such unauthorized practice, as from the record, it is evident that the application moved by third person was not only entertained, but after complete working on the same, the same was allowed by the Deputy Administrator by means of an order comprising seven paragraphs on the same day, when it was shown to have been moved and once the third person was allowed to be inducted as a co-tenant only then the existing tenant has been shown to have entered in the arena by showing their willingness to the arrangements approved by the Deputy Administrator already. All what happened is nothing, but a result of maneuvering and to get engineered result. No sanction can be accorded to such colourable exercise. The officials of each Government Department should perform their duties diligently and honestly by showing their loyalty to their Department and giving preference to interests of State exchequer. They should also give up their worldly desires over interests of the State, as in doing such functions, they are paid reward/salary from the Government exchequer.
3. The acts on the part of respondents in entering into an agreement by an existing lessee with a third person, giving sanction to such arrangement, induction of a third person as a co-tenant in already existing tenancy/lease, conversion of the land use of a property presently being used for Yatim Khana, Madrassa, mosque into a commercial premises are the acts having no sanction behind them and thus, all are declared as such.
4. Resultantly, this Constitutional petition is allowed as prayer for.