MUHAMMAD NAEEM ANW AR, J. Petitioners have called in question Notification No.WWB-8-1/II/544-60 dated 23.01.2020, issued by respondent No.3 and notices dated 10.02.2020, issued by respondent No.4, by alleging that they had applied to respondent No.2, being competent authority for allotment of shops, in between 1986 to 1997, where upon respondent No.2 allotted vacant area in the shape of shops to them and they have constructed the shops on their own expenses, the detail of the shops are tabulated as under:- S.No. Petitioners. Shops allotted 1 Petitioner No.1 1,2,7 2 Petitioner No. 23 & 4 3 Petitioner No. 35 & 6 4 Petitioner No. 49.
5 Petitioner No. 510.
6 Petitioner No. 611 & 12 7 Petitioner No. 713.
2. It was also averred that since the allotment of shops they have not only been paying the agreed rent to respondents without any default but also paid the due utility bill to PESCO and SNGPL and, as such, they are running their respective business in the allotted shops smoothly as per the demands of the local inhabitants of the residential area of Hayatabad, Peshawar and, as such, no complaint has ever been made against them but all of sudden respondent No.3 issued the impu gned notification dated 23.01.2020, followed by the notices of respondent No.4, for vacation of shops within 30 days. They alleged that since the allotment in their favour was for indefinite period and there is a relation of landlord and tenant, therefore, through the impugned notification they cannot be evicted as the allotment is still intact being not cancelled, therefore, without any stipulation of time limitation and that too without approaching to Rent Controller , issuance of impugned notificatio ns are without lawful authority , unwarranted and unjustified, hence this petition.
3. Arguments of learned counsel for petitioners heard and available record perused.
4. Undeniably , there exists relationship of landlord and tenant amongst the partie s and the same is based upon allotment in their favour but astonishingly , no such allotment letter/order was annexed with petition which, certainly , would determine the terms and condition s as agreed upon between the petitioners and respondents. Secondly without any document or deed or agreement or allotment how could it be presumed that tenancy was for indefinite period, thirdly , the commencement of tenancy with specific point of time is also not clear and simply it was asserted that allotment was made between 1986 till 1997, fourthly , the contents of notification, issued by respondent No.3 are of worth perusal for convenience, the same is reproduced as under:- No.WWB 8-1/II/544-60 GOVERNMENT OF KHYBER P AKHTUNKHW A WORKER WELF ARE BOARD, PESHA WAR Dated Peshawar the 23.01.2020.
NOTIFICA TION Consequent upon approval of the Comp etent Authority , Khyber Pakhtunkhwa, Workers Welfare Board, "all the occupants/Ex-Allottees of Shops in all workers Cities, Khyber Pakhtunkhwa Workers Welfare Board are hereby directed to deposit all dues (if any) and vacate their respective shops within 01 months, due to expiry of the contract period which will be re-allotted to the Highest Bidders by open auction through Advertisement in the Daily Newspaper , in the near future. Allottees who fail to clear their outstanding rents/dues will not be allowed to participate in the auction/ bidding."
Sdxxx Secretary Khyber Pakhtunkhwa, W orkers W elfare Board.
5. It was categorically mentioned in the impugned notification that eviction was sought on the basis of expiry of contract period, when on one hand petitioners are alleging the tenancy for indefinite period and on the other hand alleged tenancy has expired.
6. By considering the submissions of learned counsel with regard to allotment and lease deed for indefinite period, he was confronted that where is the allotment order and lease deed, he could not wriggle out and frankly conceded that neither the same was annexed with the petition nor he is in possession of the same, rather the petitioners are also not in possession of any such docum ent. The relationship of landlord and tenant is the creation of a contract between the parties, the rate of rent, duration of lease, purpose for letting etc are all governed by the terms of the contract entered between lesser and lessee. The lease of any property is to be dealt with in accordance with Section 105 of Transfer of Property Act,1882, which is reproduced as under:- Section 105. Lease defined.-- A lease of immovable property is a transfer of a right to enjoy such property , made for a certain time, express or implied, or in perpetuity , in consideration of a price paid or promised, or of money , a share of crops, service or any other thing or value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lesser , lessee, premium and rent defined.- The transferor is called the lessor , the transferee is called the lessee, the price is called the premium and the money , share, service or other thing to be so rendered is called the rent.
This section does not lay down the manne r in which a lease has to be executed, which has been left entirely to the intention of the parties, thus, it is established law that question whether an instrument amount to a lease or is only an agreement to obtain a lease depends on the intention of the parties, which is to be gathered from the instrument as a whole, the circumstances in which it was executed and even from the conduc t of the parties. Adverting to the lease in perpetuity , the fate of which shall be determined on the principle set out by the Supreme Court in a reported case titled Muhammad Ayaz V ersus Ishtiaq ( 1996 SCMR 19 ), wherein it was observed that:- "6. The lease in perpetuity is envisaged by section 1115 of the Transfer of Property Act (No. IV of 1882). The construction of the agreement photo copy Exh.R.3 is the main point for determination. From the perusal of the photo copy of the agreement, the intention clearly seems to be to allow the lessee to continue for an indefinite period so long as he pays the rent regularly and performs other usual conditions of tenancy . In the identical case of Muhammad Azizal Bari v. Moulvi Raziuddin Muhammad Idris Khan and another (AIR 1939 Calcutta 423) a learned Division Bench of Calcutta High Court had held that the gene ral rule of construction that a grant of an indefinite lease rules for the life of the grantee should apply as "as pointed out by their Lordships of the Judicial Committee in Babu Lekhraj Roy v. Kunhya Singh (1879) 3 Cal. 210 that "if a grant be made to a man for an indefinite period it enures generally speaking for his lifetime and passes no interest to his heirs unless there are some words showing an intention to grant an hereditary interest."
Likewise, as asserted by the petitioners, that the subject shops were allotted to them, then terms & conditions of respective rights and liabilities would be governed by the agreement/allotment order as provided in Section 108 of transfer of Property Act, 1882, but in absence of any such agreement/contract or lease deed, a tenant-at-will is however not recognized as a lessee under the Transfer of Property Act. He cannot claim any right as a lessee, for, he is not a tenant for any certain period. A tenant-at-will is not liable to pay any rent but is liable to pay compensation for such use and occupation. Even otherwise in case of a lease the respective right and liabilities shall be regulated in accordance with provisions of Section 108 of the Act, ibid, and shall be determined as per the dicta laid down in case titled Inayatullah Versus Lyallpur Improvement Trust, Lyallpur (1977 SCMR 488), wherein it is held that: "All these provisions in section 108 of the Transfer of Property Act are applicable only in the absence of a contract or local usage to the contrary . Any express covenant in the lease-deed has the effect of overriding a covenant to the contrary implied under this section. In this view of the matter in the instant case the stipulation contained in lease-deed (Exh. D. 1) discussed above must prevail and shall have effect, irrespective of section 108 of the Transfer of Property Act. As already discussed above, on the termination of this lease, the superstructure raised by the appellant has vested absolutely B in the Trust. Thereby the building is deemed to be the property of the Trust. In this view of the matter under section 83(2-A) of the Municipal Administration Ordinance, 1960 read wish section 49 of the Punja b Town Improvement Act, the appellant was liable to ejectment from the premises in pursuance to the notice served on him. There is, therefore, no force in this appeal which is dismissed.
But there is no order as to costs in the circumstances of the case.
Appeal dismissed:"
7. Come what may, as before us, no such instrument/document was placed, which could support the version of the petitioners, in absence of which, the contents of notice/impugned notification and the submission of the learned counsel representing the petitioners are repelling in nature, which make the petition in hand is one of disputed question of facts which requires recording of evidence and the same cannot be resolved in writ jurisdiction. In this regard we are supported with the decision reported in case titled Fida Hussain Vs Mst Saiqa (2011 SCMR 1990 ), wherein it was observed by their lordships as under:- "High Court was not to resolve disputed questions of fact in exercise of constitutional jurisdiction under Article 199 of the Constitution."
Likewise in another case titled Government of Punjab Vs Ghulam Nabi (PLD 2001 SC 415) it was held by the Hon'ble Supreme Court of Pakistan that:- "High Court could not go into the disputed question of facts in exercise of Constitutional jurisdiction"
8. Thus we do not consider it a fit case to entertain this writ petition for issuance of declaration to annul the impugned notification and notices as against the law or unjustified.
9. In view of all the above facts, we are not persuaded to entertain this petition, which is accordingly dismissed in limine.