Provincial Government through Secretary Local Government, Peshawar Vs Fazal ur Rehman & others

lltdanafisfuct

PESITAWAR HIGH COURT, PESITAWAR.

(JUDICIAL DEPARTMENT)

JUDGMENT

W.P.No.139l-Pl20l4

Provincial Government through Secretary Local Government, Peshawar etc Versus Kamal Khan etc.

Date of hearing: 10.10.2023

Date of announcement:

Fetitioner by: Mr. Sabah-ud-Din Khattak Advocate.

Respondents by: Mr. Hassan U.K. Afridi Advocate.

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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 acceplance of this writ petition, the imPugned iudgments and decrees/orders of the learned lower courts maY be declared as illegal, without iurisdiction 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 lit 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 dated

15.11.1999 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 wriuen 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 leamed Addl:

District Judge-IV, Kohat vide judgment dated 22.A2.2014.

Aggrieved from impugned orders of the leamed executing Court, petitioners/defendants have filed instant Constitutional petition.

3.Arguments heard and record perused.

4.Perusal of record reveals that dispute in case in hand is arising from impugned orders of the two Courts below passed in execution proceedings' It so happened that respondent No.l 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 9ft 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.l to 8 brought a suit against Provincial Goverrment, 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 6gbtt,.AD 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-l 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 payrnent ofrent.

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 Jindings and discussion it is held that plaintffi have succeeded in establishing their clairn und conseqwent upon admhsion/ consenl of defenclants a consent decree is hereby granted infavour of plaintffi as PraYedfor.

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 reliefas 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.l to 8 had refused to sign the same. For settling this controversy the irnpugned 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.l in the agreement which is also reproduced hereunder for ready reference.

O The lease shall befor a period of 33 years in the tirst 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 Govemment 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 2'd or 3'd agreement. It appears from the above reproduced clause that the drafter of the clause was also aware of this fact and that is why the period of lease had been kept at the maximum of 33 years and the words "may bd' had been used for renewal of the contract on same rent' Holding the lease agreernent 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.l 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.(lse and disposal of properties of local governments.-(1) Ptoperties of local governments shall be used only for public parposes, (2) Immwable properties of local governrnents shall, subiecl to section 125, not be sold or permanently alienated: Provided that such properties may be given on lease through competifive bidding by public auction. Provided fwther that no such properly under or neor a lly-over bridge shall be leased or otherwise given to any person for private, commercial or non4ommercial use in ony circumstances' whatsoever, and any order, license, permission tehbazari ticket, handcart passes or cettificate issued by any authorily at any time in this respect, before the commencement of the North-West Frontier Ptovince Local Governmenl (Third Amendment) Ordinance' 2002, shall, notwithstanding any law ot -withdrawn or order judgnent of any Court, stand ind shall be deemed cancelled. (3) The movable poperty of a local government which is required to be disposed oli' shall be sold through competitive bidding by public auction. (0 AA articles declated unserviceable

shall be disposed of through competitive bidding by pablic auction.

Similarly section 40 of the Local Government Act, 2013 was also providing that properties of Local Govemment, could only be lease out through competitive bidding in public auction for a period to be determined by the Provincial Govemment. 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 Govemment 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 leamed 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 ofcontravening section 124 of the Local Govemment 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 ofthe 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 leamed executing court was in direct conflict with section I24 of the Local Govemment 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 fuither 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 Govemment 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 heldthatexceptincaseofinherent,lackofjurisdiction Executing Court could not go beyond the decree and has toexecutethedecreeasitis.ItwasalsoheldthatSection 47 CPC was enabling Court to embark upon an inquiry as

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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 tsoard Versus Kishan Lal" reported as AIR 1934 All.

509 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 underSection4TCPccouldquestionexecutabilityofa 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 or legal rights of a decree holder if refused to be executed decree had been passed in violation of any provision of

law. Further ahead in said judgment it was also held:

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n7. In view of principle of law discussed in the cited judgments we arc inclined to obseme that apparently in the instant case the Civil Court seized with the matter may 'have assumed jurisdtction to grant the relief us prayed for subiect to its satisfoction as to whether the petitioners in individual capacity can represent large number of people of the area and what is thetr 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 sowght declaration and iniunction agatnst verbal instructions allegedly issued by the respondents to denottfy Sindhri Taluaka. Inasmuch as during pendency of the suit and execution application on dilferent occasions ili"iot respondents had been issuing ind withdrawing notitications from titne to time hut no request was ever made by the Petitionets to imPugn them before the Courts. Above all on 13th January, 1999 last noffication was tssued in Pursuance whereof an earlter notiJication 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 -reii"f against it for getting it ainulled through Process of law' Thus we are of the oPinion that executing Court can take into consideration subsequent events even after passing aflhe decree in exetcise if Ui iurisdiction under section 47, C.P.C.- in order lo ensure that the process of law maY not he abused and int iuatiul pronouncements should be implemenled effectively instead of making them ineffective on account of their inexecutability. Therefote, in

our opinion learned High Court has rightb refused to exccute the decree because after ils passing it has becotme inexecutable on account of subsequent event laking place on 13th January, 1999 when latest notiftcation de-notifying the Taluka of Sindhri wos issued.

In view of what has been stated heretnabove no interfetence in the impugned order is called for. Therefore, petition is dismissed and leave to ftle 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.tr1.2022,has also dealt with the question in following manner:- "The aforesaid record would clearly suggesi that the petitioners were ahle n- obnio a decree at the back of provincial government in respect of 'the disPuted ProPefi which is admitted,ly a Public road. In mY humble view, the decree obtained bY the petitioners in obtained such manner cannot be allowed frautlutent -to be executed. at the cost of the public good. It is not the absolute rule that a -dr"r", which Prima facie is not capable of exccution should still be eicuted when from lhe facts and circumstances of the case, it is obvious that if the said deuee is allowed to he executed, it would cause serious Preiudice 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

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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.

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