Ziad Mufti

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

W.P. No._____________/2002 1.

Ziad Ahmad Mufti

of Mufti

2.

Syed Ahmad Naeem

sons

Muhammad

3.

Mst. Kalsoom Mufti

daughter

Naeem

All residents of Darussalam, near Banat-ul-Islam High School, Sahiwal. Petitioners VERSUS 1. The Government of Pakistan in the Ministry of Minority Affairs, Islamabad. 2. The Chairman, Evacuee Trust Property Board, Govt. of Pakistan, 9-Court Street, Lahore. 3. The Deputy Administrator, Evacuee Trust Property, Sahiwal. Respondents

Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

Respectfully Sheweth: 1. That the names and addresses of the parties for the purpose of service are the same as given. 2. That the petitioners are tenants of Evacuee Trust Property Urban Property. The said property was initially allotted to Mufti Zia-ulHassan, the predecessor of the petitioners in 1950 and on his death, was further allotted to his successors (the present

petitioners) in the year 1983. Respondent No. 1 is the Federal Govt. in whom the Evacuee Trust Property vests under section 6 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. Respondent No. 3 is the District Officer dealing with the affairs of the evacuee trust properties within Sahiwal. 3. That the petitioners with the permission of the Chairman Evacuee Trust Board set up an Islamic institution “Jamia Zia-ul-Quran” for the religious and Quranic education of the girls and women. A double storey building consisting of two big halls and a number of class rooms have been constructed for the purpose and more than six hundred students attend the classes to learn Quran & Hadis at different intervals in a day without payment of a single penny. (Copies of Sanction Letter dated 15.1.91 and 1.7.98 are Annexes “A & B”). 4. That the petitioners have been paying rent to respondent No. 3. The rate of rent has been progressively increased by a percentage generally by 30% after every three years. 5. That for the month of February 2002, the notices have been issued by respondent No. 3, requiring the petitioners to pay rent. The rate of rent has been so fixed that in many cases the increase is 800 to 4800 percent. A comparison of the rent payable is given in Schedule I to this petition. The Schedule may graciously be read as part of this petition (copies of the Rent Bills are attached as ANNEX “C”). 6. That the enhanced rate of rent has been issued by respondent No. 3 in purported exercise of the powers conferred and assumed under Notification No. SRO(1)/2001, dated 5th September, 2001, whereby the amendments have been effected in the Scheme for the management and disposal of Urban Evacuee Trust Properties, 1977. Copy attached as ANNEX “D”. By this amendment paragraph 11 has been introduced and analysis of paragraph 11 shows that evacuee trust urban property has been categorised in various categories and formula of per square foot has been

introduced. Needless to mention that the formula of periodic increase in rent too has been retained. Resultantly, the petitioners are obliged to pay out of proportion increase in rent periodically. 7. That the petitioners are aggrieved of the demand of payment of enhanced rent and the introduction of paragraph 11 in the Scheme for the management of Urban Evacuee Trust Property 1977 and challenge the same being arbitrary, unreasonable and oppressive and without lawful authority inter alia on the following: GROUNDS i)

That ordinarily the relations between the landlord and tenant are governed by various statutes. In Punjab, the matters are governed by Punjab Rent Restrictions Ordinance, 1959, wherein by introduction of Section 5-A an automatic increase of 25% after every three years has been introduced for non-residential properties. For the residential properties a landlord seeking increase in the rent has to get a fair rent fixed through the Rent Controller. It may not be out of place to mention that under section 3 of the Punjab Urban Rent Restriction Ordinance, the evacuee trust properties are exempted from the operation of the Punjab Urban Rent Restriction Ordinance, 1959. A comparison of the formula of increase in the properties owned by individuals and the properties which vest in the Federal Government will clearly demonstrate that the ratio of increase in the evacuee trust urban properties is too high rather arbitrary.

ii)

That the arbitrariness of the formula of increase in juxtaposition with the properties owned by private landlords as compared to the properties of the Evacuee Trust Property Board—the biggest landlords in the country further demonstrate the arbitrariness in as much

as the evacuee trust properties are not subject to local taxes of property tax etc. iii)

That another important factor which demonstrates the arbitrariness of the formula applied is the fact that the evacuee trust urban properties are at least 55 years old in as much as all the evacuee trust properties are of preindependence. The petitioners can say without fear of contradiction that properties in their possession have never been got repaired by the Evacuee Trust Property Board and still the increase is manifold more than an ordinary private landlord.

iv)

That under Article 38 of the Constitution the State is to “provide for all citizens within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and pleasure.” It is submitted that the enormous increase in the rate of rent was reflected in the Schedule eliminates the existing facilities for work for adequate livelihood. No doubt, Article 38 is included in the principles of policy yet this Hon’ble Court can enforce these principles indirectly by placing an interpretation on the various legislative instruments are to be given an interpretation which is in consonance with Sharia. It is submitted that no rule of Sharia permits the Government Agencies to be oppressive and unreasonable.

v)

That the amendment in the Scheme has been incorporated in purported exercise of powers conferred upon the Government under section 30 of the Evacuee Trust Properties (Management & Disposal) Act, 1975. It is submitted that no guidelines having been provided it is a case of excessive delegated legislation.

vi)

That assuming without conceding that section 30 of the Evacuee Trust Properties (Management & Disposal)

Act, is a valid piece of legislation. It is submitted that no guidelines having been provided to frame a Schedule under the said enactment, it was imperative to structure the discretion. That exercise not having been done, the exercise of discretion as such is open to serious legal exceptions. vii)

That it is an established principle of law that a public office is in the nature of Trust and the duties to be performed by the person holding public office are required to be performed for the benefit of the people justly, fairly and honestly. These strings are all the more necessary in the present case in as much as the properties being managed by respondent No. 2 are in their inception “Trust” properties.

viii) That section 30 of the Act permits respondent No. 1 to make one or more schemes for the amendment and maintenance of Evacuee Trust Properties. Section 30 of the Act, however, does not provide the guideline in this behalf. It is submitted that it is a case of excessive delegated legislation. Respondent No. 1 cannot use the unguided discretion so as to cause oppression to the lessees. Respondents No. 1 & 2 have to follow the provisions of enforcement of Sharia Act, and as such follow the age-old recognised principles under Islamic Fiqah that the Islamic State cannot exercise its powers which may result in “Zulam” ( ix)

).

That the exploited demand of rent of the property being used for religious/charitable purposes tantamounts to exploitation by the respondent. It is submitted that exploitation in any case is adhorable and particularly when it is by a Govt. Department of an Islamic State.

x)

That initially the Evacuee Board was established under the Displaced Persons Compensation and Rehabilitation

Act and Displaced Persons (Land Settlement) Act, 1958. Since the properties attached to Evacuee Trust were to be retained as such no provision was enacted for the transfer of such properties. “Non-Trust” properties were ordered to be transferred. One of the yardsticks for calculating the price of such properties was 40 years aggregate rent formula. The petitioners are by and large displaced persons. They have been paying the rent to the Evacuee Trust Property Board since 1.4.1960. Thus calculated the petitioners have already paid the price of the property. xi)

That the following comparison at a glance will further demonstrate the high-handedness of the respondents: S. No.

Privately owned properties

Properties managed by Evacuee Trust Board.

1

All the taxes property The Evacuee Trust tax etc. are paid by the Property Board does not owners/landlords. pay the property tax etc.

2

The properties can be The properties are and in most cases are invariably more than half newly built properties. a century.

3

The minor repairs, white wash, paint etc. are as a Rule responsibility of the landlord.

There is hardly a case where the repairs have been carried out by the Evacuee Trust Property Board.

Despite the above obvious advantages claimed and enjoyed by the Evacuee Trust Property Board the ratio of increase in rent is far above the ratio permissible under the Punjab Urban Rent Restriction Ordinance and that too only the non-residential properties. xii)

That it is worth-mentioning that this Hon’ble court in similar matter at the Principal Seat has called for parawise comments from respondent No. 2 and also has

directed the respondents to restrain from employing coercive measures to enforce new scale of rents and also directing petitioners to pay the rent at old rate. (Copy of writ petition No. 3460/2002 and order dated 1.3.2002 are attached as Annexes “E & F”). 8. That the petitioners have no other adequate remedy except to invoke the extra-ordinary constitutional jurisdiction of this Hon’ble Court. Keeping in view the above-mentioned facts, it is respectfully prayed that this petition may graciously be accepted and it may graciously be declared that amended para No. 11 of the Scheme for the administration of the Evacuee Trust Property 1977 is ultra vires of the powers of the respondent No. 1. It is further prayed that the demand of enhanced rent may graciously be declared to be without lawful authority and the respondents may graciously be restrained from charging the enhanced rent from the petitioners. Any other relief to which the petitioners may be found entitled may graciously be granted to the petitioners. HUMBLE PETITIONERS, Dated: ___________ Through: Mirza Aziz Akbar Baig, Advocate Supreme Court of Pakistan. District Courts, Multan. Note: -

As per instructions, no writ petition was filed earlier on the above mentioned facts. Advocate

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

W.P. No. ______________/2002 Ziad Ahmad Mufti etc.

Vs.

Govt. of Pakistan etc.

AFFIDAVIT of: Ziad Ahmad Mufti son of Mufti Muhammad

Naeem,

R/o Darussalam, near Banat-ul-Islam High School, Sahiwal.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-mentioned petition are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of March 2002 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. _____________/2002 In W.P. No. ______________/2002 Ziad Ahmad Mufti etc.

Vs.

Govt. of Pakistan etc.

APPLICATION FOR DISPENSING WITH THE FILING OF CERTIFIED COPIES OF ANNEXURES. =========================================

Respectfully Sheweth: That certified copies of Annexes “

”

are not available. However, uncertified/photo state copies of the same have been annexed with the petition, which are true copies of original documents. It is, therefore, respectfully prayed that this Hon’ble court may please dispense with the filing of aforesaid copies of documents. PETITIONERS Dated: __________

Through: Mirza Aziz Akbar Baig, Advocate Supreme Court of Pakistan. District Courts, Multan. IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. _____________/2002 In W.P. No. ______________/2002 Ziad Ahmad Mufti etc.

Vs.

Govt. of Pakistan etc.

DISPENSATION APPLICATION. AFFIDAVIT of: Ziad Ahmad Mufti son of Mufti Muhammad

Naeem,

R/o Darussalam, near Banat-ul-Islam High School, Sahiwal.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-mentioned application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of March 2001 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

W.P. No. ______________/2002 Ziad Ahmad Mufti etc.

Vs.

Govt. of Pakistan etc.

INDEX S. No. NAME OF DOCUMENTS

ANNEXES PAGES

1

Urgent Form

2

Stamp Paper.

3

Writ Petition.

4

Affidavit

5

Schedule I comparison of rent.

6

Copies of Rent Bill.

7 8 9 10

Copy of Notification. Copy of writ petition No. 3460/2002 and order dated 1.3.2002 are attached. Dispensation Application. Affidavit.

11

Application U/s 151 C.P.C.

12 13

Affidavit. Vakalatnama

A B C&D

PETITIONERS Dated: ____________ Through: Mirza Aziz Akbar Baig, Advocate Supreme Court of Pakistan. District Courts, Multan. IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No._______________/2002 In W.P. No. ______________/2002 Ziad Ahmad Mufti etc.

Vs.

Govt. of Pakistan etc.

Application under section 151 C.P.C. for the grant of Stay Orders. The applicants respectfully submit as under: 1. That the above captioned writ petition has been filed before this August Court. 2. That the contents of the revision petition should be considered as part and parcel of this application. 3. That the petitioners have a good prima facie case. 4. That the respondents are bent upon to charge the enhanced rent from the petitioners. In case they succeeded, the petitioner will suffer irreparable loss. 5. That the balance of convenience lies with the applicants. It is, therefore, respectfully prayed that during the pendency of the writ petition the respondents may kindly be restrained from charging the enhanced rent from the petitioners. Affidavit is attached. Humble Applicant Dated: __________ Through: Mirza Aziz Akbar Baig, Advocate Supreme Court of Pakistan. District Courts, Multan. IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No._______________/2002 In W.P. No. ______________/2002 Ziad Ahmad Mufti etc.

Vs.

Govt. of Pakistan etc.

STAY APPLICATION. AFFIDAVIT of: Ziad Ahmad Mufti son of Mufti Muhammad

Naeem,

R/o Darussalam, near Banat-ul-Islam High School, Sahiwal.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-titled application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of March 2002 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT

SCHEDULE SHOWING PRESENT INCREASE OF RENT.

S. No.

Property Unit No.

Sub Unit No.

1

0011

009

PREVIOUS PRESENT rent paid for Nov, Dec rent assessed recoverable 2001 (tow months) for Jan, Feb 2002 (two months) 1714.00 82,720.00

Percentage increased 4826%

SCHEDULE SHOWING PRESENT INCREASE OF RENT.

S. No.

Property Unit No.

Sub Unit No.

1

0011

12

PREVIOUS PRESENT rent paid for Nov, Dec rent assessed recoverable 2001 (two months) for Jan, Feb 2002 (two months) 1147.00 9922%

Percentage increased 865%

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

W.P. No._____________/2002

1.

Ziad Ahmad Mufti

of Mufti

2.

Syed Ahmad Naeem

sons

Muhammad

3.

Mst. Kalsoom Mufti

daughter

Naeem

All residents of Darussalam, near Banat-ul-Islam High School, Sahiwal. Petitioners VERSUS 1.

The Government of Pakistan in the Ministry of Minority Affairs, Islamabad.

2.

The Chairman, Evacuee Trust Property Board, Govt. of Pakistan, 9-Court Street, Lahore.

3.

The Deputy Administrator, Evacuee Trust Property, Sahiwal. Respondents

Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

Respectfully Sheweth: 1.

That the names and addresses of the parties for the purpose of service are the same as given.

2.

That the petitioners are tenants of Evacuee Trust Property Urban Property. Respondent No. 1 is the Federal Govt. in whom the Evacuee Trust Property vests under section 6 of the

Evacuee Trust Properties (Management and Disposal) Act, 1975. Respondent No. 3 is the District Officer dealing with the affairs of the evacuee trust properties within Sahiwal. 3.

That the petitioners have been paying rent to respondent No. 3. The rate of rent has been progressively increased by a percentage generally by 30% after every three years.

4.

That for the month of February 2002, the notices have been issued by respondent No. 3, requiring the petitioners to pay rent. The rate of rent has been so fixed that in many cases the increase is 800 to 4800 percent. A comparison of the rent payable is given in Schedule I to this petition. The Schedule may graciously be read as part of this petition (copies of the Rent Bills are attached as ANNEX “A”).

5.

That the enhanced rate of rent has been issued by respondent No. 3 in purported exercise of the powers conferred and assumed under Notification No. SRO(1)/2001, dated 5th September, 2001, whereby the amendments have been effected in the Scheme for the management and disposal of Urban Evacuee Trust Properties, 1977. Copy attached as ANNEX “B”. By this amendment paragraph 11 has been introduced and analysis of paragraph 11 shows that evacuee trust urban property has been categorised in various categories and formula of per square foot has been introduced. Needless to mention that the formula of periodic increase in rent too has been retained. Resultantly, the petitioners are obliged to pay out of proportion increase in rent periodically.

6.

That the petitioners are aggrieved of the demand of payment of enhanced rent and the introduction of paragraph 11 in the Scheme for the management of Urban Evacuee Trust Property 1977 and challenge the same being arbitrary, unreasonable and oppressive and without lawful authority inter alia on the following: -

GROUNDS i)

That ordinarily the relations between the landlord and tenant are governed by various statutes. In Punjab, the matters are governed by Punjab Rent Restrictions Ordinance, 1959, wherein by introduction of Section 5-A an automatic increase of 25% after every three years

has

been

introduced

for

non-residential

properties. For the residential properties a landlord seeking increase in the rent has to get a fair rent fixed through the Rent Controller. It may not be out of place to mention that under section 3 of the Punjab Urban Rent Restriction Ordinance, the evacuee trust properties are exempted from the operation of the Punjab Urban Rent Restriction Ordinance, 1959. A comparison of the formula of increase in the properties owned by individuals and the properties which vest in the Federal Government will clearly demonstrate that the ratio of increase in the evacuee trust urban properties is too high rather arbitrary. ii)

That the arbitrariness of the formula of increase in juxtaposition with the properties owned by private landlords as compared to the properties of the Evacuee Trust Property Board—the biggest landlords in the country further demonstrate the arbitrariness in as much as the evacuee trust properties are not subject to local taxes of property tax etc.

iii)

That another important factor which demonstrates the arbitrariness of the formula applied is the fact that the evacuee trust urban properties are at least 55 years old in as much as all the evacuee trust properties are of preindependence. The petitioners can say without fear of contradiction that properties in their possession have never been got repaired by the Evacuee Trust Property

Board and still the increase is manifold more than an ordinary private landlord. iv)

That under Article 38 of the Constitution the State is to “provide for all citizens within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and pleasure.” It is submitted that the enormous increase in the rate of rent was reflected in the Schedule eliminates the existing facilities for work for adequate livelihood. No doubt, Article 38 is included in the principles of policy yet this Hon’ble Court can enforce these principles indirectly by placing an interpretation on the various legislative instruments are to be given an interpretation which is in consonance with Sharia. It is submitted that no rule of Sharia permits the Government Agencies to be oppressive and unreasonable.

v)

That the amendment in the Scheme has been incorporated in purported exercise of powers conferred upon the Government under section 30 of the Evacuee Trust Properties (Management & Disposal) Act, 1975. It is submitted that no guidelines having been provided it is a case of excessive delegated legislation.

vi)

That assuming without conceding that section 30 of the Evacuee Trust Properties (Management & Disposal) Act, is a valid piece of legislation. It is submitted that no guidelines having been provided to frame a Schedule under the said enactment, it was imperative to structure the discretion. That exercise not having been done, the exercise of discretion as such is open to serious legal exceptions.

vii)

That it is an established principle of law that a public office is in the nature of Trust and the duties to be performed by the person holding public office are

required to be performed for the benefit of the people justly, fairly and honestly. These strings are all the more necessary in the present case in as much as the properties being managed by respondent No. 2 are in their inception “Trust” properties. viii) That section 30 of the Act permits respondent No. 1 to make one or more schemes for the amendment and maintenance of Evacuee Trust Properties. Section 30 of the Act, however, does not provide the guideline in this behalf. It is submitted that it is a case of excessive delegated legislation. Respondent No. 1 cannot use the unguided discretion so as to cause oppression to the lessees. Respondents No. 1 & 2 have to follow the provisions of enforcement of Sharia Act, and as such follow the age-old recognised principles under Islamic Fiqah that the Islamic State cannot exercise its powers which may result in “Zulm” ix)

.

That the exploited demand of rent tantamounts t exploitation by the respondent. It is submitted that exploitation in any case is adhorable and particularly when it is by a Govt. Department of an Islamic State.

x)

That initially the Evacuee Board was established under the Displaced Persons Compensation and Rehabilitation Act and Displaced Persons (Land Settlement) Act, 1958. Since the properties attached to Evacuee Trust were to be retained as such no provision was enacted for the transfer of such properties. “Non-Trust” properties were ordered to be transferred. One of the yardsticks for calculating the price of such properties was 40 years aggregate rent formula. The petitioners are by and large displaced persons. They have been paying the rent to the Evacuee Trust Property Board since 1.4.1960. Thus calculated the petitioners have already paid the price of the property.

xi)

That the following comparison at a glance will further demonstrate the high-handedness of the respondents: S. No.

Privately owned properties

Properties managed by Evacuee Trust Board.

1

All the taxes property The Evacuee Trust tax etc. are paid by the Property Board does not owners/landlords. pay the property tax etc.

2

The properties can be The properties are and in most cases are invariably more than half newly built properties. a century.

3

The minor repairs, white wash, paint etc. are as a Rule responsibility of the landlord.

There is hardly a case where the repairs have been carried out by the Evacuee Trust Property Board.

Despite the above obvious advantages claimed and enjoyed by the Evacuee Trust Property Board the ratio of increase in rent is far above the ratio permissible under the Punjab Urban Rent Restriction Ordinance and that too only the non-residential properties. xii)

That it is worth-mentioning that this Hon’ble court in similar matter at the Principal Seat has called for parawise comments from respondent No. 2 and also has directed the respondents to restrain from employing coercive measures to enforce new scale of rents and also directing petitioners to pay the rent at old rate. (Copy of writ petition No. 3460/2002 and order dated 1.3.2002 are attached as Annexes “E & F”).

7.

That the petitioners have no other adequate remedy except to invoke the extra-ordinary constitutional jurisdiction of this Hon’ble Court. Keeping in view the above-mentioned facts, it is respectfully prayed that this petition may graciously be accepted and it may

graciously be declared that amended para No. 11 of the Scheme for the administration of the Evacuee Trust Property 1977 is ultra vires of the powers of the respondent No. 1. It is further prayed that the demand of enhanced rent may graciously be declared to be without lawful authority and the respondents may graciously be restrained from charging the enhanced rent from the petitioners. Any other relief to which the petitioners may be found entitled may graciously be granted to the petitioners. HUMBLE PETITIONERS, Dated: ___________

Through: Mirza Aziz Akbar Baig, Advocate Supreme Court of Pakistan. District Courts, Multan.

Note: -

As per instructions, no writ petition was filed earlier on the above mentioned facts. Advocate