ORDER
SHEET
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Date Order
with signature of Judge
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PRESENT: MR. JUSTICE FAISAL ARAB
MR. JUSTICE
SYED HASAN AZHAR RIZVI
DATE OF HEARING 15.09.2011
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Mr. Abdul Rehman Advocate for the Petyitioner.
Mr. Ahmed Pirzada Special Counsel for BOR.
Mr. Sher Muhammad K. Shaikh learned DAG.
Syed Hasan Azhar Rizvi J;
Petitioners are the Trustees of
Minocher Cowasjee Trust and in the capacity as trustees Petitioners are the
owners of property bearing Survey No.15, Civil Lines, Karachi admeasuring 1115
square yards. Said property on 1st August, 1875 was leased subject
to H 3/1 condition in the name of Cowasjee Minocher Dubash the father of the
Petitioner by the Secretary of State in Council, who was succeeded in interest
by Respondent No.1. As per terms of the lease/allotment enclosed as Annexure
“A/3 with the Memo of Petition it was clarified that:-
“the terms of your tenure are
such that your occupancy is both transferable and heritable and will be
continued….without any objection or question as to title whosoever shall from
time to time be its lawful holder subject only to the condition of the payment
annually of the above land revenue according to the provisions of the Bombay
Land Revenue Code, or of any other law for the time being in force and to the
liability to have the said rate of assessment revised at the expiration of a
term of 99 years reckoned from 1st August 1875 and thereafter at
successive period of 99 years”.
2. After expiry of the lease
of the subject property on 10.05.1978 Respondent issued letter to the
Petitioners for renewal of lease of the subject property. Since no assessment
was fixed by the Respondent for about 20 years therefore, on 04.03.1999
Respondent issued demand notice to the Petitioners. In reply to that on
07.04.1999 Petitioners sent a letter through registered A/D post and requested
to allow them to pay the amount in monthly instalments of Rs.50,000/- but no
reply was received to that letter from the Respondent. Thereafter, Respondent
informed to the Petitioners that rent had been increased from Rs.350 per square
yard to Rs.650 per square yard and the Petitioners by letter dated 24.06.2009 requested
to issue necessary challan for renewal of lease. The Secretary, Land
Utilization Department, Government of Sindh issued public notice in press,
which is enclosed as Annexure “F/2” with the Memo of Petition whereby lease
holders of H 3/1 type of leases were directed to renew their properties on
payment of the amount according to the area/locality as mentioned in the public
notice. Rental rate of Rs.650/- per square yard is mentioned for renewal of
properties situated in Civil Lines at Sr.No.15 of that public notice.
3. Learned Counsel for the
Petitioners submitted that the Respondents were demanding illegal gratification
of Rs.200,000/- for the Mukhtiarkar and Rs.800,000/- to the officials of the
Revenue Department. Petitioners are aged persons and not in a position to be
subjected to extortion by demanding such huge amount from them. Learned counsel
for the Petitioners urged that the Petitioners have legitimate expectation to
pay charges as such they are entitled to pay charges that are only specified in
the lease deed and no other charges be imposed in respect of the premium or any
illegal gratification for renewal of lease, which are contrary to the terms of
the original lease.
4. Respondent No.iii, the
Mukhtiarkar (Revenue), Saddar Town, CDGK filed para-wise comments dated
29.12.2010, wherein he has not challenged the tenure of lease of the subject
property is expired in the year 1974. It is stated in the comments that the
Board of Revenue has decided the renewal of lease charges at Rs.1650/- per
square yard as lease money and Rs.3/- per square yard per annum as ground rent
and request of the Petitioners for renewal of lease had already been
entertained by the respondent subject to payment of outstanding dues. A letter
was issued by the Respondent to the ADO (Rev)-II, C.D.G.K., on 02.09.2010. It
is admitted in the comments that in the year 1978 Provincial Government had not
fixed any rate for renewal of lease and the demand notice for the first time
was issued to the Petitioners in the year 1999 and now the Government has
revised the rate of rent at Rs.650/- per square yard. It is also admitted in
the comments that the Petitioners have applied for the renewal of lease of the
subject plot and such request has already been sent to the concerned officer. It
is further mentioned in the comments that since the Petitioners have not paid
any amount for renewal of lease after its expiry and the government has revised
the rate, as stated above, therefore, request is made to direct the Petitioners
to contact the Member Land Utilization Department, Board of Revenue for renewal
of lease.
5. We have heard Mr. Abdul
Rehman Advocate for the Petitioner, Mr. Ahmed Pirzada learned Special Counsel
for Board of Revenue, Mr. Sher Muhammad K. Shaikh learned DAG and perused the
record with their assistance carefully.
6. The only grievance of the
Petitioners is that the Respondent has not renewed the lease and the officials
of the Respondent are creating hurdles in renewal of lease by demanding illegal
gratification from the Petitioners, who are aged persons. Petitioners never
refused to pay charges for renewal of the lease of subject property. Most of
the averments of the Petition have not been challenged, denied or disputed by
the Respondent in their comments. In clause “C” of the Prayer clause of the
present petition, the Petitioners have shown their willingness to pay the rent
for renewal of the lease.
7. Above are the reasons of
our short order dated 15.09.2011, whereby the present Petition was allowed in
the following terms:-
1) The
Petitioners are entitled to have their leases renewed for further period of 99
years with effect from 01.08.1974 at the rate published in the public notice by
the Secretary, Government of Sindh, Land Utilization Department, which
prescribed the renewal rate at Rs.1650/- per square yard. The lease would be
subject always to the payment of periodical assessment of ground rent and cess
at the rate applicable from time to time.
2) Upon
payment of renewal fee and clearance of all past dues, the Respondents shall
register 99 years Lese Deed in favour of the Petitioners within a period of two
months.
J U
D G E
Karachi
Dated : _______________ J
U D G E