M UHAM M AD FAHEEM W ALI J. Petitioner filed instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, seeking issuance of direction to respondents to permit him to commercialize the leased property.
2. Facts of the case, in brief, are that the petitioner is lease holder of the plot No. 43, area measuring 03 Kanals ___ 17 Marlas situated at Circular Road, D.I.Khan, under the Tehsil Municipal Administration, D.I.Khan. Initially the lease was for a period of 33 years, and thereafter on the request of petitioner, the same was extended to a period of 99 years vide letter dated 19.02.1973 for residential purposes, and it was registered under the Registration Act, 1908. The petitioner constructed house over the leased property, however, the surrounding area of leased property has been commercialized; therefore, petitioner wanted to convert his residential lease into commercial one. Tehsil Council of Tehsil Municipal Administration acceded the conversion request of petitioner and forwarded the matter to the respondent No.3 for final approval. The respondent No.3 vide letter dated 27.02.2017 replied that if the TMA is interested to change the nature of lease, then the same need to be put to open bidding. Accordingly, the conversion of lease was refused to petitioner; hence, the instant constitutional petition.
3. In compliance of the order of this Court respondents No.2 & 5 submitted their separate para- wise comments, wherein they opposed issuance of desired writ mainly on the ground that the lease was for residential purpose only and same cannot be converted into commercial lease.
4. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
5. A scanning of the record reveals that the petitioner vide lease deed dated 04.01.1975 obtained the property in question on lease for a period of 99 years and it was mutually agreed by parties that lease was for the construction of residential house and the same was registered vide Wasiqa No.7 dated 07.01.1975. Moreover, per annum lease amount was also fixed on the basis of residential nature of the demised premises. In order to fully and appropriately appreciate the issue involved in the present case, it is desirable to refer to the relevant provisions of the Transfer of Property Act, 1882.
6. Chapter V of the Transfer of Property Act, 1882 deals with the lease of immovable property and Section 105 defines 'lease' and the said definition is as under:
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 of value, to be rendered, periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, 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, service or other thing to be so rendered is called the rent.
7. Section 108 of the T.P. Act explains the rights & liabilities of lessor and lessee and provisions of the said section relevant to the present case i.e. Section 108(A)(o) reads as under:
108. Rights and liabilities of lessor or lessee.- In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:
(A) Rights and Liabilities of the Lessor: o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he-must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto;
8. The supra quoted provision of law clearly provides that the Lessee must not use or permit another to use the property for a purpose other than that for which it was let out or leased. In the instant case, since the purpose of the lease was for residential use and clause (o) of Section 108(A) of the Transfer of Property Act touches the question of user, therefore, this clause requires the lessee to use the property as, a man of ordinary prudence would use his property and not to use the property for any other purpose, for which it was not so leased.
9. In the instant case, from the tenancy agreement, what can be seen as a collateral evidence is the purpose of the tenancy and such purpose clearly is for residence and the annual tenancy charges were fixed according to the purpose of use. Now, if the lease is converted into commercial lease, then the criteria for fixing of annual tenancy charges will be quite different and such charges cannot be fixed arbitrarily or on the basis of cherry picking until and unless the same is put to an open auction. Moreover, in view of the above quoted legal position, if the purpose of lease is changed then definitely it shall exterminate the lease agreement dated 04.01.1975 registered vide Wasiqa No.7 dated 07.01.1975; and for new agreement there shall be an open auction giving equal opportunity to all the stake holders, particularly when the property in question is located in a commercial hub, and it is the right of respondents to grant lease to a highest bidder if put to open auction. Hence, equitable relief cannot be granted to the petitioner at the cost of rights of Tehsil Municipal Administration.
10. On the other hand, since petitioner has obtained leased property for a period of 99 years, therefore, he also cannot be deprived from enjoying peaceful possession till completion of the lease tenure and any attempt made by the respondents, by unilaterally putting the property to auction, to fetch an enhanced amount, to the detriment of the rights of petitioner/lease holder, would definitely amount to sheer injustice that also cannot be encouraged.
11. This being the position coupled with the fact that exercise of jurisdiction by this Court under Article 199 of the Constitution is purely discretionary in nature and meant to foster the cause of justice and fair play, we do not find any valid reason for indulgence. Consequently, the Constitutional Petition merit no consideration and stand dismissed with no order as to cost.