A. R. SHIEKH, J.-The facts forming the background of this case are that the petitioner is occupying shop No. 3 attached to Allah Jawaya Mosque, Abkari Road, Lahore, for the last twenty years.
Previously he was a tenant under the Mosque Committee but in the year 1962 when the properties attached to Allah Jawaya Mosque were taken over by the Auqaf Depart--ment, he became a tenant under it, at the rate of Rs. 40.00 per mensem. On the 19th of November 1968, the petitioner received a notice from the Manager of Waqf Properties Sector 11, Lahore, respondent No. 1, intimating that the rent of the shop had been enhanced from Rs. 40.00 per mensem to Rs. 125.00 per mensem with effect from the 1st of December 1968. He was then issued a rent bill on the said basis. The peti--tioner preferred an appeal against the notice before the Chief Administrator of Auqaf, respondent No. 3, challenging the enhancement of rent as arbitrary, illegal and without jurisdiction but the same was dismissed by (respondent No. 1), on the 25th of July 1969. The petitioner made another application on the 1st of September 1969 to respondent No. 3 for recon-- sideration of the case. In the meanwhile, however, the Administrator of Auqaf, Central Zone, Lahore (respondent No. 2), informed the petitioner vide notice dated the 15th of September 1969 that if the arrears of rent at the rate of Rs. 125.00 per mensem were not deposited within seven days from the receipt of the notice, the petitioner would be ejected with police assistance from the premises in his possession. The petitioner, therefore moved this Court to challenge the enhancement of the rate of rent of the shop from Rs. 40.00 to Rs. 125.00. This petition has been heard along with some other writ petitions, wherein the question of law involved in this case, namely, whether the Chief Administrator of Auqaf is entitled in law to raise rent of a Waqf property (house/shop) under his control and management unilaterally, alsi arises. The common question of law may, therefore, be attended to in the first instance.
2. According to the Scheme of the West Pakistan Waqf Properties Ordinance XXVIII of 1961 (hereinafter called the Ordinance), the Chief Administrator of Auqaf has been empower--ed to take over and assume the administration, control, management and maintenance of Waqf properties by notification in the official Gazette under section 6 of the Ordinance. Any person, who is wrongfully in possession of Waqf property is liable to eviction under section 6-A. Similarly, the power to terminate the lease or resume tenancy for breach of conditions is provided for in section 6-B, appeals against orders passed and action taken under section 6-A or 6-B, are dealt with in section 6-C of the Ordinance. Section 11 pertains to preparation of scheme by the Chief Administrator for Administration of Waqf proper--ties of which control has been assumed by him.
Section 21(2) (bb) provides for framing of rules by the Government so as to prescribe the terms and conditions on which Waqf property may be leased or let out. It may be mentioned that rules entitled; West Pakistan Waqf Properties (Administration) Rules, 1960, were promulgated under section 19 of the West Pakistan Waqf Properties Ordinance, 1959 and although the Ordinance, of 1959'4 has been replaced by the 1961-Ordinance, in which section 21 provides for rule-marking power, no fresh rules on the subject have been framed and by virtue of section 23 of the West Pakistan General Clauses Act the aforesaid rules of 1960 are still in force. By virtue of rule 4, the manager appointed by the Chief Administrator under rule 3, is to prepare for settlement by the Chief Administrator a scheme for the Waqf property in his charge. Under rule 5, the scheme prepared by the manager has to be submitted to the Chief Administrator of Auqaf, who may in his turn settle or may refuse to settle or return any scheme submitted to him or may call for further details or information about the scheme or may direct such further examination of the scheme as he may consider necessary. Rule 7 deals with lease of Waqf properties. The rule has been divided into four clauses. Sub-rule (1)(a) deals with a lease relating to land, while sub-rule (1)(b) pertains to a lease relating to a house or shop. Sub-rule (2) provides that the Chief Administrator of Auqaf may, if in his opinion the continuance of any lease of Waqf property, made after the 4th of November 1961, is not in the Interest of the Waqf property, cancel the lease by giving one month's notice or by tendering one month's rent to the lessee. Sub-rule (3) empowers the Manager of the Waqf to issue a notice after the publication of notification under section 6 requiring a tenant, the occupant of the Waqf property within seven days of the receipt of the notice, to deliver vacant possession thereof or to execute a lease-deed in respect thereof in favour of the Chief Administrator. In case of failure of compliance, the Manager can eject the occupant with use of such force as may be necessary. Sub-rule (4) deals with consequences of sub-letting or transferring the Waqf property without permission of the Manager.
3. The argument advanced in all these cases is based on the interpretation of rule 7(1)(b) (iii) and (iv), which provisions are reproduced below for facility of reference:- "7. Lease of waqf properties..-(1) Unless otherwise specifically provided in the scheme settled under rule 5, the following directions with regard to the lease of Waqf property shall be deemed to form part of such scheme:-
(a) ---------.
(i) ---------..
(ii) ---------.
(iii) ---------.
(iv) ---------.
(b) where the lease relates to a house or shop:-
(i) ------------..
(ii) ------------.
(iii) the rent reserved shall be at the best available market rate:
(iv) other things being equal, preference shall be given to the old lessee whose lease is due to expire and who agrees to the renewal thereof
(v) ------------.
Learned counsel argued that after control has been assumed by the Chief Administrator of a particular Waqf property by virtue of section 6 of the Ordinance, the tenant is to continue in the premises if the Manager does not exercise option of eviction by serving seven days' notice under sub-rule (3) of rule 7. In the absence of this exercise of option, the tenant is to continue on the premises as a tenant. The only obligation on him is to execute a lease deed in favour of the Manager, as directed. It will be noticed that the said sub-rule (3) does not speak of a lessee or a tenant, it uses the term "occupant" which may mean a person in occupation with or without authority. Referring to sub-clause (iv) of clause (b) of rule 7(1), it has been contended that preference has to be given to the old lessee, whose lease is due to expire and who agrees to renewal thereof, if all other things are equal. This, according to learned counsel, provides for continuance of old tenants on the premises. Coming to sub-clause (iii) of clause (b) of rule 7(1), providing that the rent reserved shall be at the best available market rate, learned counsel for the various petitioners attempted to argue that this provision is almost on a par with the various provisions of the West Pakistan Urban Rent Restriction Ordi--nance of 1959, which is aimed at protecting the rights of the tenants and restraining the unscrupulous landlords from charging exorbitant rents and the matter has been left in the hands of the Rent Controller to fix fair rent of a particular premises. This argument, however, is not available to the petitioners the occupants of the premises of Waqf properties over which control has been assumed by the Chief Administrators of Auqaf, for the simple reason that all these properties have been exempted from the operation of the West Pakistan Urban Rent Restriction Ordinance and to invoke the provisions of the said Ordinance, through tire backdoor will be negation of the exemption granted by the Government from the provisions of the said Ordinance. What cannot be done directly, cannot be permitted to be done indirectly. Acting on this principle the argument is repelled.
4. A further argument has been addressed with regard to the application of the rule of audi alteram parten before enhanc--ing the rent of Waqf properties by the Chief Administrator of Auqaf. It has been argued that because the Chief Adminis--trator of Auqaf or his lower officers are statutory functionaries and they are bound by the rules framed by the Provincial Government for regulating control and management of Waqf properties, the said functionaries cannot be permitted to act arbitrarily or capriciously in the matter of enhancement of rents of old tenants of the premises, who have been in occupation thereof since before assumption of control by the Chief Administrator or even from fresh entrants to whom the premises are demised by the Chief Administrator. To our mind the following four categories of cases may arise in respect of Waqf properties at the time the control thereof is assumed by the Chief Administrator:-
(1) Lessee/tenant holding property under a regular lease for a particular period from the Waqf and/or Mutawalli of the Waqf and the lease is subsisting;
(ii) tenant from month to month tenant, or/lessee whose period of tenancy or lease has already expired and has continu--ed in occupation of the demised premises, as a tenant holding-- over, or a tenant at sufferance;
(iii) the premises are in occupation of a person who is neither a tenant nor a lessee and may be a licensee or an unauthorised occupant; and (iv)---.. The premises are lying vacant and a fresh tenancy has to be entered into by the Auqaf Department.
5. In cases falling under category (i) above the Administ--rator has been given power to terminate leases made after the 4 of November 1961, if he is of the opinion that tire continuance of any leaseth of Waqf property is not in the interest of the Waqf property by giving one month's notice to the lessee and the lease shall stand terminated on the expiry of such period or by tendering one month's rent to the lessee and the lease shall stand terminated forthwith on such tender. This is by virtue of rule 7(2). Under the Ordinance, regardless of the date namely the 4th of November 1961 mentioned in the aforesaid rule 7(2), section 6-B empowers the Administrator to terminate the lease and resume tenancy if he is satisfied that a lessee or a tenant has committed a breach of the conditions of the lease or tenancy. It further provides that if the breach is capable of rectification the Administrator shall not order the termination of lease or resumption of the tenancy, if the lessee or the tenant on having been given notice, rectifies the breach within reasonable time.
In other words, the lessee or the tenant will be entitled to continue on the premises on the same terms and conditions on which he was on the premises at the time of the assumption of control, during the subsistence of his tenancy or lease, subject of course to the provisions of section 6-B and rule 7(2). Therefore, the question of enhance--ment of rent unilaterally in such cases will not arise, because in the absence of novation of the contract of lease, its breach may result in contractual liabilities.
6. Coming to cases falling under category (ii), i.e., tenants from month to month or tenants/lessees, who are holding over or are tenants or lessees at sufferance, their tenancies are liable to termination on the expiry of the relevant month. It will be for the Chief Administrator of Auqaf or the Manager or his lower officers, empowered in that behalf, to permit them to continue on the premises or to ask them to vacate the premises, if they are not willing to continue on the premises at an enhanced rent settled by the authority concerned under rule 7(1)(b)(iii), which provides that the rent reserved shall be at the best available market rate. It is at this stage that according to the petitioners such a tenant is to be associated with the question of determination of enhancement of rent. The tenant being a tenant at sufferance or a tenant holding over, as already observed above, cannot successfully invoke the considerations which have been incorporated in the provisions of the West Pakistan Urban Rent Restriction Ordinance. It will be a question of contract to be entered into with free consent of the parties, namely, the old tenant and the landlord, a statutory functionary in the instant case. That there are fetters on the powers of the Chief Administrator to enhance the rent is the oft-repeated argument at the bar but we are constrained to remark that no authority, rule, or law has been cited before us in its support. It may be added that the very opening words of rule 7(1) to the effect that unless otherwise specifically provided in the scheme settled under rule 5, the following directions with regard to the lease of Waqf property shall be deemed to form part of such scheme, indicate clearly that all that follows in rule 7 is in the nature of directions, i.e., guidelines for the statutory functionaries and these are not, In any manner, to provide any protection to the tenants to claim their associa--tion at the time of enhancement of rent. If the Chief Administ--rator of Auqaf or his lower officers at the time of assuming control have not enhanced rent straightaway and have permitted such tenants or lessees to continue on the same terms and conditions, the functionaries will in no manner be precluded from enhancing the rent at a subsequent stage; rather they will be duty bound to make enhancement from time to time to get the best possible market rate. However, in both the cases falling under category (i) or category (ii), after the termination of lease period under (i) or determination of the monthly tenancy of the tenant holding over or tenant at sufferance under (ii), if the rent is enhanced and all other things are equal, by virtue of the provisions of rule 7(1)(b)(iv) the old lessee in, the preference provided he agrees to the renewal of the lease in cases covered by category (i) or enters into a regular lease in cases falling under category (ff) for a future period of two years.
7. The case of a licensee will fall under the third category and will attract the provisions of rule 7(3).
He may be served with a notice to quit within seven days or may be asked to execute a lease deed in respect of the property in his occupation in favour of the Chief Administrator of Auqaf. On his failure to do so, he will be ejected with use of such force as may be necessary because a licence can be revoked at any time by the licenser. Under this category, persons who may be unauthorised occupants may also be considered to be included and the same provisions, namely, rule 7(3), will be applicable to them. However, the Administrator may even invoke the provisions of section 6-A which provides for eviction of persons wrongfully in possession of the Waqf property. It may be added that the use of term `occupant' in contradistinction to lessee or tenant also supports the view that rule 7(3) covers cases of licencees or unauthorised occupants.
8. Category (iv) cases need not detain us any more because at the time when the rent of vacant premises is fixed by the Chief Administrator of Auqaf, whom has to hear ? The future tenants a non- existent class at the relevant time.
9. The discussion above would show that the relationship of the Chief Administrator and lessees/tenants of the Waqf properties under his control is not governed by the provisions of the West Pakistan Urban Rent Restriction Ordinance. Since in the Punjab the Transfer of Property Act (excepting section 107 in respect of leases in the municipal areas) is not in force, its provisions as to matters of principle are followed as rules of justice, equity and good conscience. Section 116 being one of such provisions, its principle will be applicable subject to the provisions of sections 6-A, 6-B and 6-C of the Ordinance read with rule 7. The provisions of rule 7 are guidelines for the statutory functionaries, as already observed above, because they are to form part of the scheme to be settled by the Chief Administrator of Auqaf. Next, it has to be considered whether these guidelines are justiciable. It is not denied that the scheme framed by the Chief Administrator of Auqaf is justiciable only at the instance of the beneficiaries of the Waqf, the devotees of the shrine or the saint or persons affected by the scheme in so far as they can show to the superior Court that they are persons aggrieved in the sense the term is used in Article 98 of the abrogated Constitution Act of 1962. Tenants do not come within this category, for purposes of fixation or enhancement of the rent of the premises demised to them. Much less can the guidelines or directions forming part of such a scheme for purposes of regulating lease of such properties, be assailed by the tenants under Article 98 of the abrogated Constitution Act of 1962. This objection, however, was repeatedly brought to the notice of learned counsel for the petitioners and they have failed to give any satisfactory reply.
10. Learned counsel for the respondents have pointed out, and rightly so, that there is no question of the tenants being condemned unheard at the time of enhancement of rent, because the moment a tenant holding over or a tenant at sufferance is asked to pay enhanced rent arrived at by the relevant authority (of course without having associated the said tenant at the time of determination of that enhanced rent) and he refuses to pay that enhanced rent or to execute a regular lease deed in that regard, as is necessary under the rules, he will become a person wrongfully in possession of the Waqf property as he will not be entitled or will have ceased to be entitled to continue on the premises and as such the provisions of section 6-A will at once come into play. At that stage, he will be given a reasonable opportunity of showing cause why he should not be summarily evicted by the Administrator. Again, if the Administrator does not agree with the objections raised by him in his representation, he will be entitled under section 6-C to file an appeal against the order of eviction passed under section 6-A before the Chief Administrator of Auqaf. Thus the tenant, although not associated at the time of enhancement of rent, has two chances of defending his tenancy, first, when a notice is served on him to vacate the premises under section 6-A, and, secondly, before the appellate authority under section 6-C. In the circumstances, it cannot be said that the Chief Administrator of Auqaf or his lower officers have been turned into tyrants in giving them the unfettered powers to enhance rents or it will in any manner jeopardise goodwill of the members of the business community, who happen to be tenants of various Waqf properties in the country of which control has been assumed by the Chief Administrator of Auqaf. Before the enforcement of the West Pakistan Urban Rent Restriction Ordinance, the principle of laissez-fairs was applicable to all tenancies and it was never considered that a landlord would charge an amount which would scare away his tenants. The relationship has to be regulated by two willing parties so that the landlord gets the bests available rent and the tenant is also not forced be pay something which he is not willing to pay. The same principle applies to the tenancies of Waqf properties. Of course there has been some concession given to old tenants, who are willing to pay the rent so determined under rule 7(1)(b)(iii). There is, however, no impediment or fetter on the power of the Chief Administrator of Auqaf or his lower officers duly empowered in that behalf to raise or enhance the rent unilaterally, so that the rent reserved is in accordance with the best available market rate.
11. It is an admitted position that the petitioner did not hold the property under a regular lease for a particular period from the Waqif or Mutawalli of the Waqf and, therefore, his tenancy falls under the second category of cases enumerated in para. 4 above, namely, his status is that of a tenant from month to month. We have found above that in the case of such a tenant even if the Chief Administrator of Auqaf or his lower officers have not enhanced the rent straightaway, at the time of assuming control and have permitted or allowed such a tenant to continue on the same terms and conditions, the said functionaries are not precluded from enhancing the rent at a subsequent stage.
12. The result is that this writ petition is without force and is accordingly dismissed. There will, however be no order as to Costs.