MUHAMMAD HASHIM KHAN KAKAR, CJ. The instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), carries the following prayer clause: "Keeping in view the above mentioned facts and circumstances, it is respectfully prayed as under: a. That the impugned publication dated 18.10.2024 published by the Respondent No. 2 in Daily Newspaper Jang, Quetta may kindly be declared as null and void. b. That direction may kindly be issued to Respondent No. 2 to renew the lease of Cafe Baldia, Quetta in favour of petitioners as per proposed proposal of lessor and lessee. c. To restrain the respondents from any kind of publication of bids in respect of Caf Baldia, Quetta. d. Any other relief as may be deemed fit and appropriate in the circumstances of the case may also kindly be awarded in favour of the petitioners in the interest of justice, equity and fair play".
2. The petitioners have filed this constitutional petition challenging the legality of publication made in daily newspaper Jang, Quetta on 18.10.2024, wherein bids were invited in respect of 'Caf Baldia' situated at Shahra-e-Iqbal, Quetta. It is case of the petitioners that they are in possession of restaurant in question since 1959 and are regularly paying the monthly rent. They approached the respondents for extension of the agreement and cancelation of the impugned publication dated 18.10.2024, but the respondents are reluctant to do the needful.
3. Mr. Akbar Shah learned counsel for the petitioners argued that the decision of the Municipal Corporation, Quetta, to auction the Cafe Baldia, which is a significant heritage site in Quetta, will severely damage and harm the same. According to the learned counsel the said property being immoveable antiquities under Section 2(g) of the Balochistan Culture Heritage Preservation Act, 2010 and Section 2(i) of the Balochistan Antiquities Act, 2014 is required to be preserved and protected and no construction can be carried out in the said premises because it will certainly destroy, damage, deface and mutilate the same. While concluding his arguments, he offered to increase the monthly rent from Rs. 6,500 to 3,50,000 and requested for issuance of directions to the respondents to extend the lease in favour of petitioners.
4. Mr. Zahoor Ahmed Baloch, learned Additional Advocate General, duly assisted by Mr. Hamza Shafqaat, Administrator MCQ, during the course of arguments stated that the petitioners are paying only rupees 6,500 per month, whereas the highest bidder is ready to pay rupees 01 million per month and the decision regarding auctioning Caf Baldia is taken in order to increase the revenue. They further stated that no alteration to the basic structure of the cafe will be permitted in view of the direction issued by this Court in C.P. No. 59 of 2010.
5. There is no cavil to the proposition that the Corporation has the authority to lease out its properties to maximize revenue. However, this authority must be exercised in a manner that does not compromise the heritage status of property because heritage sites including 'protected antiquities' and 'special premises' are to be preserved and protected by the state under the Constitution and statutory enactments as well as international conventions. We acknowledge the need for revenue generation but emphasize that such actions should not come at the cost of cultural heritage.
6. It is imperative to mention here that a number of restaurants have been converted into shoes shops, plazas and high rise buildings and Cafe Baldia is the last remaining restaurant, which 'serves as a vital social hub for the community and holds significant cultural value. The members of legal fraternity/politicians, businessmen, students and members of civil society gather to discuss political and social issues. To preserve the basic structure of Caf Baldia, the following directions have already been issued by this Court in C.P. No. 59 of 2010: "In pursuance of order dated 23.03.2015 lessee Muhammad Nadeem of Cafe-e-Baldia is in attendance. With consent of Deputy Mayor, MCQ, the rent of the caf in question is increased from Rs. 6500/- to Rs. 50,000/- (Rupees fifty thousand only) per month. It was further agreed between the parties that since most of the hotels/restaurants in Quetta city i.e. Stanley Restaurant, Dawn, Farah, Regal hotels etc. have been closed and converted into plazas, whereas it is the sole caf used by the inhabitants of Quetta city as well as the members of legal fraternity, as such, the lessee shall improve the standard of plantation, food, crockery, fixtures and furniture etc. without structural change and further construction. It is made clear that, being a National Asset, neither will be the cafe in question converted into commercial plaza, nor will be open space reduced by further construction".
7. The said order of this Court was challenged before the Hon'ble Supreme Court of Pakistan, which was disposed of vide order dated 24.05.2016, with the following observations: "2. The parties however entered into the said agreement encompassing, matters that were neither before the High Court nor have been raised before us. The said agreement also is in violation of the order of the Hon'ble High Court which had stipulated that, Baldia Cafe will not be replaced by a "commercial plaza" nor will the open space be "reduced by further construction." The petitioners did not assail this part of the High Court's order. And, the respondents have not even challenged the said order. The Hon'ble High Court had also observed that, with the closure of a number of cafes and restaurants in Quetta, Cafe Baldia was, "the sole caf used by the inhabitants of Quetta city as well as the members of legal fraternity", situated as it is in front of the Katchery (City Courts) in a very congested part of the City. The only grievance brought by the petitioners before this Court was the enhancement in monthly rent from six thousand and five hundred rupees to fifty thousand rupees. Unfortunately, the petitioners and the respondent No.1 have used the pretext of the present petition to embark upon a venture for individual personal benefit."
8. Needless to observe that under the provisions of Balochistan Culture Heritage Preservation Act, 2010 and Balochistan Antiquities Act, 2014, the preservation of heritage sites is paramount, and any decision regarding the property must prioritize its historical and cultural significance over mere financial gain. In this regard, reference can be made to the principles established in the case of "Kamil Khan Mumtaz v. Province of Punjab" (PLD-2016 Lahore 699), which underscore the importance of protecting heritage sites from irreversible damage due to commercial interests. It must be ensured that the auction process does not lead to alterations that would compromise the heritage status of the cafe.
9. Reverting to the second contention of the learned counsel regarding monthly rent of the premises in question, the said caf is situated at main Shahra-e-Iqbal adjacent to District Court Quetta and besides the members of civil society, legal fraternity along with their clients usually gather over there, the same is in a pathetic condition. The Corporation has decided to auction the cafe to increase its revenue, which is within its rights as a governing body. The petitioners have been paying a nominal rent of 6,500 rupees per month, which is significantly lower than the bid received by the Corporation from open market. The Administrator has informed that the highest bid received for the subject property is more than one million. The petitioner's contention that since the lease agreement executed between the parties was extendable; therefore lease holding rights of the property in question could not have been auctioned through open biddings. We have considered this argument in the light of the lease agreement executed between the parties. In this regard sub-clause-(1) of Clause 2 of the lease agreement is relevant, which is reproduced:
(1) That the Lessees have agreed to take on lease and the Lesser has consented, with the previous approval of the Provincial Government, to lease out to the Lessees the Cafe Baldia, including the existing lawns, the attached rooms and the bakery, already in Lessees possession, for a period of thirty (30) years commencing from 1st January, 1987 extendable with mutual consent by a similar period of lease.
(Emphasis supplied)
The ibid clause clearly stipulates that only with the "mutual consent" of the parties the lease agreement can be extended for a similar period of lease. This clause envisages extension in lease period if the parties mutually agreed and did not by itself constitute an agreement to renew the lease. In "Heysons Commercial and Industrial Corporation Ltd. v. Trutess of the Port of Karachi"
(1987 CLC 591), it has been held by High Court of Sindh, Karachi that that the word "mutual" signified that there had to be consensus between the parties on the terms for renewing the lease, and until there is such consensus it cannot be presumed that both parties agreed or complied with the renewal clause.
10. Since the Administrator of Corporation has categorically stated that the rent being offered by petitioner is far less than the actual, market rates and in order to support his contention the Administrator has referred the bids received for the property in question. The highest bid in this regard is more than one million, therefore in such view of the matter, the petitioner's plea that on the basis of longstanding possession his lease be renewed at nominal rate is not worth consideration, even it would amount to huge loss to the exchequer of Corporation who according to Administrator is already facing financial crunch in order to meet the daily expenses to run the Corporation, however considering the case of petitioner, the petitioner is entitled for right of first refusal to the highest bid received for the property in question. In case the petitioner accepts the amount of rent offered by the highest bidder then the Administrator should consider the offer of the petitioner in accordance with law. The Administrator of Corporation and Chief Officer of Public Private Partnership Authority have stated that no alterations to the basic structure of the caf will be permitted, as it is a heritage site, and any conversion into a plaza or high-rise building would lead to congestion in the city.
In view of the foregoing discussion, the petition, being without merit is dismissed without any order as to cost.