MALIK MUHAMMAD QAYYUM, J:- Chand Foundation, the petitioner herein, which claims to be a charitable institution, has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calling in question the orders/actions of the respondents cancelling the lease granted to it vide registered deed dated 27A1993.By the Evacuee Property Board.
2. The dispute in this petition relates to property bearing No.SW-98-R- 26 measuring 3 kanals, 2 marlas 41 SqJL situate at Dev. Samaj Road Sanat Nagar, Lahore which was evacuee in nature. On an application of the petitioner, this property was leased out to it initially for "a period of 30 years by the Evacuee Trust Property Board on the terms and conditions contained in the lease deed dated 27.6.93 for the purpose of running an educational institution. This lease was granted with the approval of the Federal Govt: which was conveyed vide letter No. 4(18)P-93 dated 21st June, 1993 of the Ministry of Minorities Affairs, Govemment of Pakistan, Islamabad. It may be mentioned that this property had earlier been handed over to Lahore Metropolitan Corporation for running a school and it was only after the Lahore Metropolitan Corporation had conveyed its no objection to the grant of lease in favour of the petitioner vide its certificate dated 21st June, 1993, that lease deed was executed between the petitioner and the Evacuee Trust Property Board.
3. It is common ground between the parties that pursuant to the lease, the petitioner was put in possession of the property where it is running a school under the name of "Lahore Model School".
4. On 08.2.1994, the Deputy Secretary, Evacuee Trust Property Board .Directed the Assistant Administrator Evacuee Trust Property Board, Lahore to cancel the lease deed dated 27.6.1993 as the Federal Govemment by its letter dated 06.11.1993 had withdrawn the approval which was granted to the lease earlier on 21.6.1993. The Deputy Secretary (Residual) Evacuee Trust Property Board thereupon approached the Sub-Registrar, City, Lahore for cancellation of the lease in implementation of the order of the Federal Government. These orders/actions of the respondents have been challenged by the petitioner by filing this constitutional petition.
5. In the written statement filed by the respondents, neither grant of lease for its validity has been disputed. It has been explained that the Federal Government had withdrawn its approval to the lease at the request of the petitioner itself. A separate written statement has been filed by Lahore Metropolitan Corporation in which averments made in this petition have been denied, though in a vague and evasive manner.
6. In the rejoinder filed by the petitioner, it has been stated that the request of withdrawal of lease to which reference has been made in the written statement by the Federal Government was with respect to another property bearing No.SW-99-R-2 measuring 21 kanals which was separate and distinct from the property in dispute which bears No. SW-98-R-26 and measures 3 kanals 2 m arlas.
7. In support of this petition, Ch. Muhammad Ashraf and Mr. Muhammad Hanif Zahid, learned counsel for the petitioner has raised the following contentions:
(i) that the decision of the Federal Govemment to withdraw its approval to the lease in favour of the petitioner was based upon misconception and misapprehension inasmuch as the request of the petitioner for withdrawing the approval related to different property and not the property in dispute;
(ii) that order dated 21st June, 1993 of the Federal Govemment having been implemented and given effect to by execution of registered lease of deed could not subsequently be withdrawn;
(iii) that the petitioner has been condemned unheard as neither any notice nor any opportunity to show cause was afforded to;
(iv) that the impugned order was malafide',
(v) that in any event the concluded contract between the parties could not be cancelled except in accordance with terms contained in the lease itself.
8. Learned Deputy Attorney General for Pakistan and the learned counsel appearing for other respondents have also been heard.
9. The contention of the learned counsel for the petitioner that the of the lease is based upon misconception about the true facts is wellfounded and is amply supported by the record. It is to be seen from a ppfusal of the impugned orders that the Eviwuee, Trust Property Board directed the cancellation of the lease pursuant to ti letter of the Federal Government dated 06.11.1993 withdrawing its approval to the lease which had been granted 00 27.6.1993. However, no reason which necessitated the Federal Government to withdraw its approval has been stated in any of the orders. But in the ,written statement filed by the Federal Government, it has been explained that the approval was withdrawn on a request made by the petitioner itself To substantiate this plea, the Federal Goverament/respondent No. 1 has appended alongwith the written statement the following documents:
(i) a copy of the letter dated 20.6,1993 from the Evacuee Trust Property Board to the Ministry of Minorities Affairs;
(ii) letter dated 21.6.1993 to the Chairman, Evacuee Trust Property Board from Ministry of Minorities Affairs;
(iii) photostate of the Lease dated 27.6.1993 between the Evacuee Trust Property Board and the petitioner;
(iv) order of the Prime Minister of Pakistan approving lease of 21 kanals of land for extension of Lahore Model School dated 15.6.93;
(v) application dated 08.6.1993 of the petitioner for lease of land;
(vi) letter dated 19.6.1993 of the Evacuee Trust Property, Board to the Additional Secretary Incharge, Ministry of Minorities Affairs;
(vii) letter dated 23.89 from Ministry of Religious Affairs and Minorities Affairs to the Evacuee Trust Property Board;
(viii) Letter of Cabinet Division Govemment of Pakistan dated 233.1989 to All Secretaries/Additional Secretaries-in-Charge of Ministries/Divisions;
(ix) Letter dated 23.4.1989 of the Secretary, Evacuee Trust Property Board to the Deputy Secretary, Ministry of Religious Affairs and Minorities Affairs;
(x) Letter dated 15.9.1991 of the Ministry of Religious Affairs and Minorities Affairs to Evacuee Trust Property Board;
(xi) Letter dated 24.11.1991 of the Deputy Secretary, Evacuee Trust Property Board to the Ministry of Religious Affairs;
(xii) Letter dated 10.12.1991 from the Ministry of Minorities Affairs to the Chairman, Evacuee Trust Property Board;
(xiii) Agreement for transfer of Evacuee Trust Property No. SW-98-R-26 situate in Sant Nagar Lahore on lease to the President, Chand Foundation Of Lahore Model School
10. A perusal of these documents clearly bears out the stand of the petitioner that the request of the petitioner foundation as contained in its letter dated 23.9.1993 in for withdrawal of lease related to property measuring 21 kanals bearing No3W-99-R-2 situate near Chishtia High School Islampura (Karishna Nagar), Lahore and not the property bearing No3W-98-R-26 measuring 3 kanals 2 mar las situate at Dev Samaj Road Sant Nagar, Lahore which is the property now in dispute. From these documents placed on the record by the parties, it is evident that there were two separate and distinct properties for lease of which the petitioner had made requests, first one being the property beiiifag Ko. SW-98-R- 26 sought for setting up a primary school which is being tun under the name of Lahore Model School while the lease for the second property was sought for the' extension of school so as to start the secondary classes. There was no request of the petitioner at all for withdrawal of the lease of the property in dispute. Even the learned Deputy Attorney General for Pakistan was not in a position in dispute this fact It is thus evident that the impugned orders of the Federal Govemment proceed on misconception and cannot be sustained.
11. Be that as it may, the contention of the learned counsel for the petitioner that once the contract of lease was duly acted upon and implemented, it could not be cancelled except in accordance with the terms of the lease itself is unexceptionable. It is a common ground between the parties that pursuant to the lease deed petitioner had been put in possession of the property in which it is running a primary school. Clause 10 of the lease deed provides that lease could. Only be cancelled if there was any violation of the terms and conditions of the deed by the lessee or in the event of failure to use the property for the purpose for which it had been leased out. It is hot the case of the respondents that the petitioner had violated any of the conditidns of the ease and it is an admitted fact that the property is being used for running an educational institution. Clause 9 of the deed provides for arbitration in the event of dispute between the parties arising out of the lease. That clause too was not invoked by the respondents and instead of referring the dispute, if any, to the arbitration, they Unilaterly proceeded to direct the cancellation of the lease.
12. In somewhat similar cases, the Supreme Court of Pakistan has been pleased to rule the unilateral cancellation by the Govemment of the leases granted by it to be without lawful authority.
Reference may be made to Anjuman- E-Ahmadfya, Sargodha Vs. The Deputy Commissioner, Sargodha and another (PLD 1966 SC 639) and The Majlis-I-Intimzamia. Jamia Masjid. Ghuiam.
Muhammad Abad Colony, Lyallpur Vs. The Secretary to Govemment of West Pakistan.
Communication and Works Department, Lahore (PLD 1975 SC 355).
13. The impugned orders are liable to be struck down for another reason also which is that neither any notice nor any opportunity to show cause against the proposed cancellation was afforded by the respondents to the petitioner. The impugned orders have been passed without observing the principle of natural justice which are deemed to be a part of the law of this countary and cannot, therefore, be sustained.
14. The learned Deputy Attorney General stated that these principles have no application in cases relating to cancellation of leases. I am unable to greejwth him. It is now well settled that no action, even if it be administrative, can be tafcen % ft JtatiiMf of public functionary except after following the principles of natural justice, the minimum requirement of which )* t9t8prd M opportunity of being heard to the person whose rights are likely to be affedea! This principle fully applies even to cancellation of leases. (See Rehmat Ullah and another Vs: the Secretary, Evacuee Property Trust Board, Govemment of Pakistan, Lahore and 2 others. (1972 SCM R 168).
15. As regards the objection raised in the written statement that the petitioner should have made a reference to arbitration rather than filing this constitutional petition, suffice it to say that tb .Petition is primarily directed against the order passed by the Federal Govemment and validity of that order,could not be determined by the arbitrator in terms of clause 9 of the Lease of Deed especially when the Federal Govemment was not a party to arbitration agreement Be that as it may, this objection has no validity in view of the pronouncement of Supreme Court in Anjuma-E-Ahmadiya, Sargodha Vs: The Deputy Commissioner, Sargodha and another (PLD 1966 SC 639). In that case, appellant filed writ petitions which were dismissed by High Court by observing that the sale deed executed'in favour of the Anjum an providedfor arbitration which was an adequate remedy. It was, however ruled by the Supreme Court of Pakistan that as the lease was cancelled except in accordance with terms of the lease itself, the Anjum an was entitled to maintain a petition. The rule laid down in that case was reiterated in The Majlis-I-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur Vs: The Secretary to Govemment of West Pakistan, Communication and Works Department, Lahore (PLD 1975 SC 355).
In view of what has been stated above, this petition is allowed; the impugned orders are declared to be without lawful authority and of no legal effect.