' This judgment will dispose of Writ Petitions Nos. 5605, 2883, 6375, 6712, 8075, 8076, 8077, 8078, 8097, 8178, 9120, 9709, 9710, 10132, 10043, 10354, 10583, 10673, 11060 and 11885 of 1999, 2800, 3409, 4701, 8280, 10146 and 18616 of 2000, as common questions of law and facts are involved.
2. All the petitioners are cultivators of evacuee trust lands, under leases granted by respondents since before 1974. The leases are governed by Scheme prepared under section 30 of the Evacuee Trust Properties (Amendment and Disposal) Act, 1975 (Act XIII of 1975), hereinafter referred to as the Act. The Scheme prepared under the Act is known as "Scheme for the Lease of Evacuee Trust Agricultural Land, 1975". Paragraphs 3 and 7 of the Scheme are relevant and are reproduced below:---
3. (1) The lease of the land in rural areas shall be given to the following:---
(i) The Cultivator.
(ii) The J & K Refugees allottee lessee.
(2) The proposed lessee under sub-para. (1) above may be allowed to retain land up to a maximum, of 12-1/2 acres provided he--
(i) does not own more than 4-1/2 acres of agricultural land; or
(ii) who has no tenancy rights of 12-1/2 acres or more anywhere; ' Provided that if a person was in possession of land measuring more than 12-1/2 acres and excess area has been taken away from him, the lessee shall be given a choice for the retention of 12-1/2 acres in a compact block as far as possible.
(3) If a proposed lessee was cultivating' the land alongwith his major son or brother, the major son or brother, as the case may be, shall have independent right for the grant of lease.
(4) No person shall be granted lease under para. 3 unless he has cleared all the arrears due, as determined by the Chairman."
"7. The rate of lease money for the grant of lease under para. 3 shall be as follows:---
(i) the annual lease money shall be calculated on the basis of average rate for the last two terms of lease where the land had been leased out.
(ii) Where no such formula is available under sub-para. (i) above, the rate of lease money shall be determined by the Deputy Administrator/Assistant Administrator concerned on the recommendations of he Committee; but it shall not be less than the 12 times the land revenue.
3. The Scheme was amended in December 1998. Paragraph 7 of the Scheme was substituted and the substituted paragraph reads as follows:-- "(7) (i) Subject to sub-clause (2), from Kharif, 1998, the minimum rates of lease money for grant of lease under Clauses 3 and 5 shall be assessed and charged in accordance with the quality of land as specified below namely:--- 'Quality of land Rate per produce index unit ' Canal irrigated land Rs,25 ' Irrigated by tubewell Rs,20 land ' Barani land Rs,10 ' Banjar land, salinity Rs,08
4. The petitioners in some cases were issued notices for payment of the revised lease money as determined in accordance with substituted paragraph, which compelled such -petitioners to file Constitutional petitions inter alia on the ground that the revised formula cannot be made applicable to subsisting leases. This position was conceded by learned counsel for the Board who placed on record copy of the Circular issued by the Chairman advising the Officers to apply the revised rates to future leases. To this extent these petitions have borne fruit. As it was that the revised formula for assessing these money is unreasonable and oppressive, its validity may be determined by this Court. It was asserted that or later this question will have to be decided by this Court.
5. The main arguments in the cases were addressed by Malik Muhammad Azam Rasool. Advocate, in number of petitions, while the other learned counsel appearing for the petitioners adopted the same. Mr. Farooq Amjad Mir, Advocate, for petitioner in Writ Petition No,8616 of 2000, also challenged the provision in the Amended Scheme regarding sale and disposal of the trust property. On behalf of the Board, Ch. Fazle-e-Hussain, Advocate, led the arguments while Mr. Qamar-uz-Zaman, Advocate, appearing for respondents in the Writ Petition No,8280 of 2000 supported the arguments.
6. Malik Muhammad Azam Rasool, Advocate, has mainly contended that since section 30 of the Act does not lay down any guideline, the Board has to structure the discretion in accordance with equity and fair play; that the power given in section 30 of the Act has to be exercised reasonably as it is not unfettered; that power under section 30 of the Act is not in accordance with the Islamic Principles and finally that as the original scheme envisages 30% increase, the Board is not empowered to charge lease money on the basis of new formula. He further contended that as the petitioners have a right to stay on the land, the change in the rate of rent or the mode of assessing the land ought to have been fixed after hearing the petitioners and knowing their point of view. He has invited attention to Paragraph 10 of the Writ Petition No,5605 of 1999, which contains the comparative statement of rent that each of the petitioners has been paying and will now pay under the new formula. The increase roughly ranges from Rs,200% to 400%. In case of petitioners in Writ Petition No,I8616 of 2000, Mr. Farooq Amjad Mir, Advocate, has pointed out that in the year 1977 the lease money was Rs,30% per acre per annum and after progressive increase from time to time, it stayed at Rs,240 in December, 1998. With the enforcement of new formula, the rent has now been increased to Rs,1.700 from Rs,240 i.e, an increase of about 650%.
7. The change has been sought to be justified by Ch. Fazle-e-Hussain, Advocate, by referring to section 30 of the Act, which empowers the Board to make a Scheme for Management of the Trust Properties, with the approval of the Government. He has urged that the formula was debated thoroughly and each of its aspects has been examined by the Board; by the Federal Government and the Standing Committee of the erstwhile National Assembly. According to him, the formula is based on the known facts that there has been appreciation in the value of the land and in the crops produced. According to him, since the exercise is honest and has the approval of the Federal Government, it cannot be questioned. He has maintained that there is no requirement of granting prior hearing to the petitioners as the Board has the legal authority to amend the Scheme and to thereby change the formula of assessing rent and increasing the same.
8. The crucial question, which may determine the fate of these petitions, in my judgment, is the question whether the petitioners are entitled to hearing before revision of rent. As has been demonstrated, the increase in the rent under the amended formula is exorbitant. It is equally correct that the petitioners are petty cultivators as under Paragraph-3, a maximum of 12-02 acres can be leased out in favour of the cultivator. The right of the cultivator and the Jammu and Kashmir Refugee allottee/lessee has statutory recognition as Paragraph 3 of the Scheme commands that the lease of the land in rural area shall be given to these two in order of priority.
This right to hold the land cannot be frustrated by demanding exorbitant rent. In other words, the right to hold the land cannot be made to suffer by change in the rate of rent. It is in this context that right of hearing as enjoined under the principles of natural justice assumes importance.
9. I need not burden this judgment with decisions on the subject of right of hearing to persons who are likely to be adversely affected by orders/actions of public functionaries. The principles are well- settled. It is also settled that this right will be deemed to be part of every statute, unless specifically excluded. There is no provision either in the Act or the Scheme excluding the application of this principle. Therefore, the application of the principle cannot be denied on this ground. Analogy can be drawn from Municipal Laws, which require that before the tax or fee is imposed or increased, the proposal shall be published, the objection invited and decided. Even in the Scheme prepared by Evacuee Trust Property Board for Management of Urban Trust Properties, 1977, Paragraph-II requires invitation of objections from the tenants and their disposal by the District Officer "after giving the objections an opportunity to be heard". I see no rational basis, therefore, as to why these petty cultivators who are undisputedly affected adversely by the new formula, should not have been heard before imposing upon them an enhancement ranging from 200% to 650%. It would have been just and fair if the proposed enhancement/the new formula was published, objections invited and view-point of the petitioners or their representative bodies heard. Such a course would have served the requirement for natural justice. Additionally, association of the petitioners would ensure increased chance of recovery of the rent. Since phenomenal increase has been provided for without hearing the petitioners, I am inclined to declare the new formula and the substantial increase as without lawful authority.
10. In view of the above conclusion, the other points need not be examined in detail. Suffice it to say that section 3 of the Act does empower the Board to frame the Scheme for management etc. Of the Trust Property with the prior approval of the Federal Government. Section 30 of the Act cannot be struck down on the ground that it does not lay down the guidelines. Malik Muhammad Azam Rasool, Advocate, failed to specify the guidelines, which ought to have been incorporated. He is, however, right that nobody can claim to exercise the statutory powers against the principles of equity and fairness. I have already held that in exercise of this power, the respondent-Board is obliged to follow the principles of natural justice and to hear the view-point of the affected parties before imposing upon them a formula or mode of rent which results in phenomenal increase. As for the argument that section 30 of the Act is un-Islamic, Mr. Fazl-e-Hussain, Advocate, is right that this point can only be adjudicated by the Federal Shariat Court as per Constitutional provisions. If so advised, the petitioners may raise this point before the Federal Shariat Court. The provision for the amended Scheme enabling sale and disposal of trust property has been attacked by Mr. Farooq Amjad Mir, Advocate, but this need not be adjudicated as the question is not involved in any of the petitions. The proper occasion will be as and when the sale is made by the Board.
11. For all the above reasons, I allow the writ petitions and hold that the provision of new formula for assessing rent given in substituted Paragraph 7 of the Scheme so has been made without lawful authority and consequently of no legal effect.
12. It is clarified that it will be open to the Board to provide for change/increase in the rent/lease money but only after hearing the petitioners in a suitable manner like inviting the objections and consideration of the same. I would leave the parties to bear their own costs.