SHAKEEL AHMED, J.- The petitioner has filed this Constitutional petition with the following prayer:- "It is, therefore, humbly prayed that on acceptance of instant petition this Hon'ble Court may pleased to declare the decision of taking of possession of suit land as directed in letter dated 29.09.201 1, in derogation of Lease Policy as well as the other precedents quoted above, as illegal, void, misuse of power , discriminatory and ineffective upon the rights of the petitioner . Any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case may also be granted to the petitioner ."
2. The facts of the case giving rise to this litigation, are that grandfather of the petitioner Col. Rtd. Mr. Abdur Rauf (now dead) got a piece of land measuring 7623 square feet, on lease from the Secretary of State for India through an agreement in the year 1923 for 75 years, which was later on revised in the year 1935 for 62 years. It was also averred in the petition that another piece of land measuring 1209 square feet was also leased for 33 years in the year 1943. In the lease, there was a stipulation that "the lessee shall have no right to the land on account of any building or other structure erected by him on the land nor shall retain any such aforesaid building or structure, if the Secretary of State call upon him to remove that, provided that the lessee shall have the right to demand five years notice for the removal, and subject in the event of such removal to compensation on account of any such building". After execution of lease deed, the predecessor in interest of the constructed shops and dwelling houses over the land with the sanction of the competent authorities. In this lease, there was a clause for renewal after the expiry of the term at the option of the Secretary of State. At the end of the document there is a stipulation, which is reproduced as under.
"Notwithstanding anything aforesaid should the land possession be required at anytime for State purpose, it will be resumable on the service of the proper notice of five years, subject always to compensation being payable on such resumption of building or other structures as laid down in para-5".
3. It was stated in the petition that before expiry of lease period, the petitioner applied for renewal in term of para No. 5 of the agreement for further period of 99 years on 10.09.1996. The petitioner regularly paid the lease amount/rent as per agreement and never committed default in its payment. His petition was recommended by the Executive Engineer Highways Division, Abbottabad, for extension of lease to highe r authorities, however , vide letter dated 18.07.2000, he was intimated that his request has been declined, but on his representation, again his case was recommended for renewal as is reflected from letter dated 27.07.2007. However , the Government of Khyber Pakhtunkhwa decided to dispose of the plots in accordance with the provisions of Policy as soon as it is finalized.
The new land lease policy approved by the cabinet was circulated by the Government of Khyber Pakhtunkhwa on 12.12.2001, wherein it was stipulated that in future henceforth all the expired lease shall be renewed at the prevailing market rates for a specified period with conditions specified therein accordingly . The petitioner was directed to approach the D.O.R Abbottabad, for renewal of lease. Government of Khyber Pakhtunkhwa extended lease to a number of similarly placed persons, but under similar circumstances he was refused renewal and all his efforts to get the lease renewed proved to be a wild goose chase and ultimately , vide letter dated 29.09.2001, his request was turned down, which necessitated to file the present constitutional petition.
4. Learned counsel for the petitioner vehemently argued that the impugned letter dated 29.09.201 1, whereby the administrative department was directed to proceed for taking over the possession of the property in dispute is illegal and not sustainable in the eye of law. He next contended that once the respondent accepted rent of the holding over period, they cannot ask for possession of the disputed properties as they were not allowed to approbate and reprobate. He further argued that by virtue of the provisions of Section 112 and 116 of the Transfer of Property Act No IV of 1882, (hereinafter referred to as the Act), the respondents having accepted the rent of the leased land would be deemed to have renewed the lease. He lastly , argued that under similar circumstances, lease was renewed to a number of lessees. In support of his contention he quoted the examples of King Sarai Expired Lease etc and prayed for similar treatment.
5. On the other hand, the learned A.A.G, representing the department argued that service of notice upon the petitioner as required under the lease agreement is proved. He next argued that neither any rent of the leased land was paid nor received by the respondents, after expiry of term of lease and retention of possession of land in dispute by the petitioner is illegal and without lawful authority and he is liable to pay mense profit of the said period. He further argued that petitioner is occupying premises without consent of lessor, he is tenant by sufferance and his status is that of trespasser and can be ejected any time. He lastly argued that earlier petitioner had filed a suit before the Tribunal constituted under the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act 1977, Abbottabad with similar relief, which was dismissed vide judgment dated 29.03.2011. He added that this judgment was not assailed before the higher forum, which has attained finality and without disclosing the fact of filing a suit, he filed constitutional petition, therefore, his petition is liable to be dismissed being hit by Res-judicata as well as due to concealment of fact and prayed for dismissal of the petitioner.
6. We have heard the learned counsel for the parties at length and have also gone through the available record with their able assistance.
7. It is an admitted fact that prior to filing of present writ petition, petitioner had filed a suit before Tribunal, constituted under section 12(1) of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977.
8. After a full dressed trial, suit filed by the petitioner was dismissed vide judgment dated 29.03.201 1.
9. On reading of averments of the plaint its prayer and contents and prayer of the present petition, we find that contents and prayer in the suit as well as writ petition are almost identical.
10. It will be appropriate to reproduce the findings of the Tribunal recorded on issue Nos. 6, 7, 8,9,10,1 1, 12, 13 and 14 :- Issue No. 6 The suit property is the public property. The plaintiff in his plaint admitted this fact that out of suit property one plot leased out to them vide lease agreement dated 24.01.1935 and the second plot leased out to them through subsequent lease agreement in the year 1943 and this fact is not only admitted by the plaintiff but also established from the lease deed Ex:PW-4/D-1. The facts admitted need not to prove. Thus, issue is decided in positive.
Issues No. 7, 10 & 1 1.
As issues No. 7, 10 & 11 are inter connected linked together, therefore, they are taken together for discussion and decision. It is the case of the plaintiff that out of the suit property one piece of land measuring 7623 Sq. Ft has been leased out to them in the year 1935 for 62 years and another piece of land measuring 1209 Sq. Ft was leased out to them in the year 1943 for 33 years. and in this respect the plaintiff had relied upon the lease deed Ex.PW-4/D-1, thus, the first lease obtained in the year 1935 have to expire in the year 1997 after elapse of 62 years while the second lease obtained in the year 1943 had to expire in the year 1976 after lapse of 33 years, so the second lease of the plaintiff had already expired in the year 1976 while the first lease had already expired in the year 1997 and as the lease of the plaintiff is not further renewed or extended for further period which is evidence from the various letters such as letter ExPW-2/D-2, Ex.PW-2/D-3, ExPW-2/D-4 and ExPw 2/D- 5, thus, the plaintiff are not entitled to retain the possession over the suit land. The burden of the renewal of the lease was on the plaintiff but he had not brought any documentary as well as oral evidence on the file which could suggest that the lease has been extended or has been renewed. Though, he relied on some documents and letters of the department but the same neither extended nor renewed the old lease but rather through above mentioned letters the official of the department had forwarded the application of the plaintiff for renewal to the competent authority. However, no extension of the lease has been granted or the lease of the plaintiff has been renewed, so far. Thus, the issues No. 7 & 10 are decided in positive and issue No. 11 is decided in negative.
Issues No. 8 & 9 The plaintiff was lessee of the suit property whose lease has been expired in the year 1976 and 1997 and thus, the possession of the plaintiff over the suit property became unlawful and he is in possession of the suit property without any lawful authority. After the expiry of lease of the plaintiff he was given notices under NWFP, Removal of Encroachment Act, 1977 as his possession on the suit property became unlawful.
Therefore, issues No.8 & 9 are decided in negative.
Issue No. 12.
The plaintiff had produced agreement of lease dated 24.01.1935 and as per clause 5 the lease, the lessee shall have the right to demand 05 years, notice for the removal of building/structure and subject always in the event of such removal to compensation on account of any such building or structure, being payable by the Secretary of State to the lessee, at valuation to be made by the Public Work Department at the prevailing market rate, in which connection the decision of the secretary to Govt. of NWFP PWD, shall be final and binding on both parties. Para No. 06 of the agreement provides that the lease shall be renewed at the option of the Secretary of the State at the end of the stipulated period of lease on terms to be than mutually agreed and subject in the event of the lease not being renewed to all buildings or the structure at the option of the leaser being taken over by the Secretary of State on the terms specified in para 05, above.
The clause 05 and 06 of the agreement provided 05 years notice to the defendant for removing the structures or to vacate the possession and the structure will be assessed by the department and the improvement so assesses will be paid to the lessee by the lessor . It is admitted fact that the lease has been expired on 1976 and 1997. The Sub Divisional officer vide letter No. 1129/5 dated 18.7.2000 ExPW -4/D-30 had asked the plaintif f that as the lease period had expired and the plaintif f is occupying the government property without obtaining extension from competent authority , therefore, they were directed to vacate the above mentioned property within 15 days then vide letter No. 2191/2-P dated 13.10.2000 ExPW -4/D-31 again the plaintif f were asked to vacate the possession of the plots. Vide letter No. 2514-2P dated 23.12.2000 ExPW -4/D-32 the plaintif f was once again directed through a notice to vacate the above mentioned plot as the lease period has since been expired and the extension also refused by the Govt. of NWFP . Vide letter No. 5123 dated 23.12.2000 ExPW -4/D-33, the Executive Engineer Abbottabad asked the plaintif f to deposit the outstanding amount and vacate the suit property . Since 2000 after giving notices of notices of vacation about 10 years had elapsed and the plaintif f neither vacated the suit property nor got extension of their lease from the competent authority , therefore, issue No. 12 is decided in positive.
Issue No. 13.
The improvement made by the plaintiff has to be assessed by the defendant and they are required to pay the cost of improvements made by the plaintiff. In this respect one can refer to the report of a committee consisting of Deputy Director (B & R) Abbottabad, Technical officer Finance & Panning Abbottabad and Technical Officer Tehsil Municipal Abbottabad who has inspected the site of the suit property and assess the value of the building/structure which they reported vide letter No. 43/1/L dated 25.2.2002 ExPW-4/D-42.
Thus, the plaintiff are entitled to the tune of Rs. 22,90,990/- as improvement. Cost of the building work out by the committee. Therefore, the issue No. 13 is decided in positive.
Issues No. 14 & 15 As a sequel of my above discussion on various issues as it has been held that the lease of the plaintiff had expired since long ago and the lease has not been renewed or extended, therefore, their possession became illegal and the defendant had rightly issued notices under the NWFP Removal of Encroachment Act, 1977, thus, the plaintiffs have got no cause of action and not entitled to any relief, therefore, the suit of the plaintiff stand dismissed.
11. A plain reading of findings recorded on the aforesaid issues would reflect that so far as contents and prayer of the writ petition is concerned, they raise all those issues, which have been decided in the suit referred to earlier by us and the same has not been challenged before higher forum which has attained finality .
12. It is settled principle of law that principles of res judicata are also applicable in the proceedings arising out of constitutional petition as held by the August Supreme Court of Pakistan in Hussain Bakhsh' s Case (PLD 1970 SC 1). In this behalf reliance can also be placed on the judgments reported as Ghulam Rasool and 12 others vs Shana and 12 others (MLD 2001 661). It is by now settled that earlier suit on the same subject matter having dismissed on merit and subsequent, writ petition on the same subject matter is neither competent nor maintainable being hit by doctrine of Res-judicata . In this context reference may also be made to the case reported as Mirza Muhammad Yaqoob vs Chief Settlement Commission, Lahore & Syed Sadiq Hussain Zaidi (PLD 1965 SC 254), wherein it was held that general principle of Res judicata is applicable to writ petitions. In this behalf reliance can also be placed on the case reported as Asif Jan Siddique vs Government of Sindh and others (PLD 1983 SC 46 ).
13. It is also an admitted fact that petitioner had filed suit as is highlighted by the respondent No. 2 in preliminary objection No. 6 of the comments titled "Col (Rtd.) Mukhtar Ahmad Usmani and others vs Deputy Director (B & R)
Works & Services Department, Abbottabad", which was dismissed by the Court of competent jurisdiction. This fact is not mentioned by the petitioner in the contents of the writ petition and even did not annex copy of the suit and judgment with the writ petition. It is by now settled that constitutional jurisdiction is discretionary in character. The petitioner has concealed this material fact from this Court which is fatal in nature as held by the Apex Court in the cases reported as Principal King Adward Medical College Lahore vs Ghulam Mustafa and others (1983SCMR 196) & Abdur Rashid vs Pakistan and others (1969 SCMR 141).
14. Though this case needs no discussion on merits, however , in the larger interes t of justice, we advert to the contention of learned counsel for the petitioner raised before this Court. Admittedly , the first lease expired in the year 1976 and the second lease expired in the year 1997 and those were never renewed which is evident from various letters issued by the respondents /department. The petitioner / his legal heirs are occupying the premises without consent of the respondents as the rent deposited by the petitioner has been refunded as is reflected from letter dated 01.05.2002. It is settled principle of law that a tenant occupied the premises without the consent of landlord is a tenant by sufferance and his status is not better than a trespasser and can be ejected by any time.
Thereafter , he was not entitled to retain the possession of the suit property and was bound in law to deliver the vacant possession of the property in dispute to the respondents forthwith. There is no payment of the rent after expiry of the period of lease, therefore, it could not be said that there was liability of renewal of the suit property or it was a case of holding over by the petitioner . Even otherwise, the petitioner did not take a specific plea of holding over within meaning of Section 116 of the Transfer of Property Act in his petition. In the case of Ch. Noor Hussain Vs. Ch. Allah Bakhsh and others, 1984 SCMR 446 , it was held by the august Supreme Court that: "In order to succeed in establishing his right to the renewal of lease by holding over, the onus of the proof laid heavily upon the lessee. He had to prove that after the determination of the lease, the lessor or his legal representative had accepted the rent from the lessee or had otherwise assented to his continuing in possession".
In this behalf, reliance can also be placed on the cases reported as Messers Rehman Cotton Factory Vs. Messers Nichimen Co. Ltd. (PLD 1976 S.C. 781, Sheikh Liaqat Ali Vs. Riaz Ahmed C.P.L.A. No.1322 of 1999, decided on 17.11.1999, Kirpa Ram Brij Lal Ys. Municipal Committee Amritsar and another (AIR 1929 Lah. 547, Harry Kempson Gray and another Ys. Bhagu Mian and others (1929) 57 Indian Appeals 105 PC, Gurudas Kundu Chowdhury and others Ys. Hamendra Kumar Roy and others (AIR 1929 PC 300, Dawood Hercules Chemicals Limited Ys. Water and Power Development Authority (1991 CLC Note 269 p.207, Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad Ys. Mst. Ismat Qayyum Malik (PLD 1994 Lah. 360, Ganga Dutt Murarka Ys. Kartik Chandra Das and others (AIR 1961 SC 1067), Bhawanji Lakhamshi and others Ys. Himatlal Jamnadas Dani and others (AIR 1972 SC 819), Morrison Ys. Jacobs (1945) 1 KB 577, Sundar Singh and others Ys. Ram Saran Das (AIR 1933 Lah. 61), Ganga Ram Ys. Mt. Shib Devi (1898) 33 PR 1898, Pribhu Dial Ys. Ram Chand (1904) 5 PR 1904, Mian Akbdur Rashid Ys. Province of Punjab (PLD 2003 Lah. 389), Shabnum Ashraf Ys. Muhammad M. Iqbal (2003 YLR 495) and Rure Khan Ys. Ghulam Muhammad (AIR 1924 Lah. 643).
15. In the case of M/S Rehman Cotton Factory (supra ), the distinction between the tenancy or lease by sufferance and by holding over was clearly stated as under:- "As to the submission that the appellant's position after the 30th June, 1956 continued to be that of tenant "holding over" within the meaning of section 116 of the Transfer of Property Act, there is clear distinction between a tenant continuing in possession after the determination of the lease with the consent of the lessor whether express or tacit and a tenant continuing in possession without the consent of his lessor. In the latter case the lessee's position is that of a 'tenant by sufferance' in the language of the English Law. Under Section 116 of the Transfer of Property Act, the essential condition for treating a lessee, as tenant "holding over" is that the lessor accepts rent or otherwise assents to the lessee's continuing in possession. But there is not a speck of evidence to that effect: Rather all indications on the record point to the opposite. It is not denied that twice the respondent peremptorily refused the appellant's request for extension of lease beyond the 30 June, 1956, because the respondent had decided to re-enter the business of ginning cotton in Pakistan, itself.
Therefore, the Courts below rightly concluded that the appellant's possession of the factory after the 30 June, 1956 was contumacious and therefore, wrongful. Hence the liability to pay damages."
16. In this context, reference may also be made to Halsbury' s Law of England, Fourth Edition, Re issue, 1994, Vol. 27(1) page 163, Para 176, it is stated that "A person who enters on land by a lawful title and after his title has ended, continues in possession without statutory authority and without obtaining the consent of the person then entitled, is said to be a tenant at sufferance, as distinct from a tenant at will who is in possession with the landlord' s consent".
17. In view of the above, we hold the petitioner to be a tenant at sufferance and not by holding over within the meaning of Sections 112 & 116 of the Act. However , in the event of removal he shall be entitled to compensation in term of Clause-5 of the lease agreement, subject to clearance of dues of the respondents, if any .
18. For what has been discussed herein above, we dismiss this writ petition being not maintainable as well as on merits. 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.