WIOAR AHMAD, J:- Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners seek the following relief:- "by acceptance of this writ petition, the impugned judgments and decrees/orders of the learned lower courts may be declared as illegal, without jurisdiction and without lawful authority and the respondents may be directed to sign the new agreement lease deed with the petitioners according to the policy of the government mentioned above or any other orders deem fit may be passed in the case.
2. As per instant petition, respondents/plaintiffs had instituted a suit for declaration etc against petitioners/defendants challenging notice No.9157 dated15.11.1999 issued by petitioners relating to enhancement of rent/ lease amount as illegal and against law. The suit had been contested by petitioners/defendants through filing written statement and raising various legal and factual objections. At conclusion of proceedings, learned civil Court below had decreed suit of respondents/ plaintiffs vide judgment and decree dated 11.05.2009. Execution petition was filed for execution of the decree by decree holders. During execution proceedings, judgment debtors offered the decree holders a fresh contract over which the former filed objections. The objections of decree holders were allowed by learned Executing Court vide order dated 31.01.2013. Revision petition filed by petitioners/defendants was dismissed by learned Addl: District Judge-IV, Kohat vide judgment dated 22.02.2014. Aggrieved from impugned orders of the learned executing Court, petitioners/defendants have filed instant Constitutional petition.
3. Arguments heard and record perused.
4. Perusal of record reveals that dispute in casein hand is arising from impugned orders of the two Courts below passed in execution proceedings. It so happened that respondent No.1 had acquired certain property of Tehsil Municipal Committee Kohat on lease for 33 years vide lease agreement dated 06.04.1963. The monthly rent was fixed as Rs.105/- in the lease deed. In clause-v of the condition of lease deed, the yearly rent of demised property was fixed as hundred rupees and twelve paisa and clause-viii provided that the period of commencement of lease was 9th September, 1961, for 33 years onward. As per said clause the lease deed would be deemed to have ended on 9th September, 1991. In clause-ix of the condition, it was also stipulated that nothing contained in document i.e. agreement between the parties, would affect rights of the government as were stated in Section 41 of the Punjab Land Revenue Act. The agreement was signed by the then Chairman Municipal Committee Kohat and countersigned by Chief Officer Municipal Committee Kohat. Respondents No.1 to 8 brought a suit against Provincial Government, Administrator Municipal Committee Kohat and Chief Officer, Municipal Committee Kohat in the court of learned Senior Civil Judge, Kohat on 13.12.1999 praying for grant of decree of declaration to the effect that plaintiff had been lessee under Municipal Committee Kohat for 99 years on the basis of above mentioned lease deed dated 06.04.1963 and that they had only been bound to pay rent at the rate specified in the agreement and therefore notice bearing No.9457 dated 15.11.1999 (whereunder rent had been claimed at the rate of Rs.1796/- per month instead of then running rent Rs.105/- per annum) was wrong illegal and ineffective upon the rights of plaintiffs. In body of the plaint also it was claimed that the property had been leased to them for 99 years but same lease deed (providing their lease rights for 33 years) had been annexed with the plaint and mentioned in para-1 thereof. Written statement was submitted wherein claim of the plaintiff as raised in the plaint was contested and it was contended that the plaintiff had been tenant under the Municipal Committee Kohat and that they were bound to pay rent but they had been defaulting in payment of rent. Evidence was also recorded in the case which need not be discussed here. Finally the then counsel representing Municipal Committee Kohat had also submitted an application on 11.05.2009 conceding the stance of plaintiff. Statement of the counsel for plaintiff had also been recorded as CW and the suit was decreed to the following effect:- As a sequel to detailed findings and discussion it is held that plaintiffs have succeeded in establishing their claim and consequent upon admission/ consent of defendants a consent decree is hereby granted in favour of plaintiffs as prayed for.
It is not clear whether the counsel had been instructed to give such consent by the competent authority, in writing or he had colluded with the plaintiff and conceded their stance but said issue was relating to the proceedings in the original suit and therefore, this court does not deem it to appropriate to discuss it further. Whatever may be the mode and manner of conducting proceedings in the suit a final judgment and decree was rendered on 11.05.2009 by granting the relief as reproduced above.
5. An issue again cropped up before executing Court regarding the modality of regulating future relations between the parties as lessee and lesser, for which purpose the department had prepared a draft agreement but decree holder i.e. respondents No.1 to 8 had refused to sign the same. For settling this controversy the impugned orders have been passed wherein both the courts below have arrived at a conclusion that the decree was to be executed as it was and that the rate of rent would remain same for ninety nine years, therefore, fresh draft agreement could not be offered to the decree holder by the judgment-debtor. While holding so both the courts below could not realize that first agreement in case in hand had admitted been executed for 33 years. After lapse of said agreement on 9th September 1991, no further agreement had been executed between the parties. There was only a clause in the relevant agreement relating to grant of extension in the contractual relationship between the parties and under said clause the suit has been decreed. It was clause (i) of condition No.1 in the agreement which is also reproduced hereunder for ready reference.
(i) The lease shall be for a period of 33 years in the first instance but the lease may be renewed on the same rent for two further periods of 33 years each.
This clause has also been taken into consideration by the courts below while passing the orders impugned in instant writ petition. It was also held in the orders that the rate of rent shall remain same for 99 years. The contract itself was not for 99 years. The Provincial Government was having an express policy of lease for maximum period of 33 years. The determination of rate of rent was for those authorities who were supposed to have been entering into 2nd or 3rd agreement. It appears from the above reproduced clause that the drafter of the clause was also aware of this 7 fact and that is why the period of lease had been kept at the maximum of 33 years and the words "may be" had been used for renewal of the contract on same rent. Holding the lease agreement to be regulating relationship of parties for a period of 99 years (on the basis of the referred clause) and that also on same rent, was not at all appropriate, rational and legal. Placing such an interpretation on the clause of the agreement by the two courts below in the impugned order was also wrong and illegal. So far as terms of the decree was concerned, it is also important that the consent decree (managed to have been obtained by respondents No.1 to 8) cannot be given an effect against express provision of law. Section 124 of the Local Government Act, 2001 was providing that immoveable properties of the Local Government Act could only be leased out through competitive bidding in public auction. Same Section 124 is reproduced hereunder for ready reference:
124. Use and disposal of properties of local governments.--(1) Properties of local governments shall be used only for public purposes. (2) Immovable properties of local governments shall, subject to section 125, not be sold or permanently alienated: Provided that such properties may be given on lease through competitive bidding by public auction. Provided further that no such property under or near a fly-over bridge shall be leased or otherwise given to any person for private, commercial or non-commercial use in any circumstances, whatsoever, and any order, license, permission tehbaz,ari ticket, handcart passes or certificate issued by any authority at any time in this respect, before the commencement of the North-West Frontier Province Local Government (Third Amendment) Ordinance, 2002, shall, notwithstanding any law or judgment or order of any Court, stand withdrawn and shall be deemed cancelled (3) The movable property of a local government which is required to be disposed of, shall be sold through competitive bidding by public auction. (4) All articles declared unserviceable shall be disposed of through competitive bidding by public auction.
Similarly section 40 of the Local Government Act, 2013 was also providing that properties of Local Government, could only be lease out through competitive bidding in public auction for a period to be determined by the Provincial Government. When the law was requiring auction of the properties of local government through open competitive bidding and that also for a period to be approved by the Provincial Government then a mere clause relating to extension of the contract cannot be deemed to be having operation in disregard of the express provisions of law. The judgment and decree of the learned civil court had been passed in the context of extension clause in the contract and its effect at the most would be that the decree of the civil court had given said clause a binding effect. Such binding effect had been given to the clause by the civil court when the Local Government Act, 2001 was in field. At the time of passing of the impugned order, the law was having the effect of conflict with the provisions of extension clause in the agreement (re-enforced through decree of the civil court). Same was having an effect of contravening section 124 of the Local Government Act, 2001. Either of the two could be given operation in the instant matter. When the executing court was faced with this situation, the executing court should have given preference to operation of the law rather than the extension clause of an expired agreement notwithstanding the fact that same was having backing of the judgment and decree. When a decree is found to be in contravention of some express provision of law in its pith and substance then it would be nullity in the eyes of law. Here the main operation of the impugned judgment and decree as evident from the impugned order of the learned executing court was in direct conflict with section 124 of the Local Government Act, 2001 and section 40 of the Khyber Pakhtunkhwa Local Government Act, 2013, (subsequently) therefore, the decree in hand was in conflict with law of the land in pith and substance. The decree was providing that the contract should be executed for further 66 years on the rate of rent settled in 1961 while law was providing that the property should be put to public auction. So the conflict was not on any ancillary matter but the main substances of the decree were conflicting with the substance of law regulating leasing of the properties of local government.
The question that emerged for determination of this court was whether while seized with the instant writ petition arising from execution proceedings, can this court or for that matter an executing court refuse to give effect to judgment and decree which is found to be conflicting with any provision of law. Before embarking upon a survey of case law on the subject it is important to be noted that this question is also relating to executability of the decree. Even in the instant writ petition this court has to decide whether to give effect to the provision of section 40 of the Local Government Act, 2013 or to give effect to extension clause in the contract re-enforced by judgment and decree of the learned civil court.
6. This Court while seized with instant petition (as stated earlier), is confronted with a question whether executing Court can refuse execution or change the terms of a decree? If so then what would be the circumstances and necessary consideration for executing Court to refuse execution of a decree. In this respect Hon'ble Sindh High Court while giving its judgment in case of "Messrs Haji Ahmed & Co Versus Muhammad Siddique and others" reported as PLD 1965 (W.P) Karachi 293, has held that except in case of inherent, lack of jurisdiction Executing Court could not go beyond the decree and has to execute the decree as it is. It was also held that Section 47 CPC was enabling Court to embark upon an inquiry as to execution, discharge and satisfaction of a decree and therefore question of fraud in obtaining decree could not be inquired into or decided upon by Executing Court. A similar observation had also been recorded in the judgment of Allahabad High Court in case "Cantonment Board Versus Kishan Lal" reported as AIR 1934 All. 609 where it was held, regarding question of fraud that a party might institute a fresh suit and challenge decree separately but the executing Court would not be able to re-open the suit, where any decree had been granted, on the ground of fraud. Law on the subject was further developed and Hon'ble Supreme Court of Pakistan while giving its judgment in case of "Fakir Abdullah and others Versus Government of Sindh through Secretary to Government of Sindh, Revenue Department, Karachi and others" reported as PLD 2001 SC 131 held that an executing Court while exercising jurisdiction under Section 47 CPC could question executability of a decree if it is satisfied that the decree was nullity in the eye of law or it has been passed by a Court having no jurisdiction or execution of decree would not infringe legal rights of a decree holder if refused to be executed or decree had been passed in violation of any provision of law. Further ahead in said judgment it was also held: "7. In view of principle of law discussed in the cited judgments we are inclined to observe that apparently in the instant case the Civil Court seized with the matter may 'have assumed jurisdiction to grant the relief as prayed for subject to its satisfaction as to whether the petitioners in individual capacity can represent large number of people of the area and what is their personal interest to seek the relief; secondly whether the Court is competent to grant the relief as claimed in the plaint particularly with reference to.the aspects of the case wherein instead of challenging any notification the plaintiffs sought declaration and injunction against verbal instructions allegedly issued by the respondents to denot6 Sindhri Taluaka. Inasmuch as during pendency of the suit and execution application on different occasions official respondents had been issuing and withdrawing notifications from time to time but no request was ever made by the petitioners to impugn them before the Courts. Above all on 13th January, 1999 last notification was issued in pursuance whereof an earlier notification dated 3-1-1998 was withdrawn but the petitioners did not bring this aspect of the matter the knowledge of the Court nor sought any -relief against it for getting it annulled through process of law. Thus we are of the opinion that executing Court can take into consideration subsequent events even after passing of the decree in exercise of its jurisdiction under section 47, C.P.C. in order to ensure that the process of law may not be abused and the judicial pronouncements should be implemented effectively instead of making them ineffective on account of their inexecutability.
Therefore, in our opinion learned High Court has rightly refused to execute the decree because after its passing it has become inexecutable on account of subsequent event taking place on 13th January, 1999 when latest notification de-notifying the Taluka of Sindhri was issued.
In view of what has been stated hereinabove no interference in the impugned order is called for.
Therefore, petition is dismissed and leave to file appeal is refused.
Following said judgment, this Court while giving its earlier judgment in case of "Haji Sher Muhammad & others Vs Aftab Ahmad and another" (COC No.105/2022) decided on 31.11.2022, has also dealt with the question in following manner:- "The aforesaid record would clearly suggest that the petitioners were able to obtain a decree at the back of provincial government in respect of the disputed property which is admittedly a public road. In my humble view, the decree obtained by the petitioners in obtained such fraudulent manner cannot be allowed to be executed at the cost of the public good. It is not the absolute rule that a decree which prima facie is not capable of execution should still be executed when from the facts and circumstances of the case, it is obvious that if the said decree is allowed to be executed, it would cause serious prejudice to the public interest.
7. Coming back to facts of instant case, it was also apparent that consent decree in the case in hand was not executable. Same was a nullity in the eyes of law and its operation was running contrary to express provisions of law.
8. In light of what has been discussed above, instant writ petition is allowed, both the impugned orders are set aside and the relief is also moulded to the effect of giving declaration, that judgment and decree of learned civil Court cannot be executed against express provisions of law i.e, Section 124 of Local Government Act 2001 and Section 40 of Khyber Pakhtunkhwa Local Government Act 2013.