JUDGMENT SHEET

In the Peshawar High Court,

Peshawar
(Judicial Department)
W.P No. 5540-Pof 2019

Shamsheer Khan …vs. Govt of KPK.

Present.

Mr. Taimur Haidar Khan, Advocate for petitioner

Mr. Atif Ali Khan, AAG, for the respondents

Date of hearing: 08.04.2020

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.– By invoking the

constitutional jurisdiction of this court under article

199 of the Constitution of Islamic Republic of

Pakistan, 1973, the petitioner has challenged the vires

of Notification No. SO (Auqaf-II) 2-43/2013-5848-

5947 dated 02nd January, 2014, issued by the

respondent No.02, to the extent of substitution of sub-

clause (iii) of clause (b) of sub rule (1) of rule(7) of the

West Pakistan Waqf Properties (Administration) Rules,

1960, whereby it was substituted as “while 40%

increase shall be made in respect of old or sitting

tenants, after every three years”, with the prayer that:-

On acceptance of this WP on the basis of

Expounded subject, facts and circumstances
the impugned amendment via notification No.
SO(Auqaf-11) 2-43/2013 of taking 40 percent
increased instead of 25 percent and by taking
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illegal surcharge on monthly rent may kindly

declared as illegal, unlawful ultra-vires and
against the statutes of rent laws for the best
interest of justice and fair play.”

2. It was averred in the petition that petitioner is in

possession of shop No.127/Unit 430 near Masjid

Mohabbat Khan as tenant of respondents since, 2003.

That the monthly bill for the month of June,2019, when

served upon the petitioner, with exorbitant increase of

40% of the existing rent shocked the petitioner, as the

same is illegal, unjust, unwarranted unconstitutional,

hence, this petition

3. Respondents were put on notice who opposed

)
the issuance of Writ.

4. Learned counsel for the petitioner contended

that monthly rent could only be extended to the extent

of 25% after every three years, this being the ceiling

limit so any enhancement above 25% would be illegal

and unconstitutional. To substantiate his arguments, he

referred section 04 of the West Pakistan Urban Rent

Restriction Ordinance, 1959, whereby, proviso to sub-

section 02 of section 04 envisages that increase in rent

shall not be more than 25% of the rent already being

paid by the tenant, therefore, the increase in the

monthly rent vide impugned notification by respondent

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No.2 is against the law, based on malafide and

unconstitutional.

5. As against that, the learned AAG for the

respondents contended that for the purpose of increase

of rent of lease of Waqf property, the provisions of

West Pakistan Rent Restriction Ordinance,1959 shall

not be applicable, as, “Waqf properties” were

exempted from the provisions of Ordinance No.VI of

1959 and added that the West Pakistan Waqf Properties

(Administration) Rules, 1960 were framed in

accordance with section 19 of West Pakistan Waqf

Properties Ordinance, 1959 and the rules framed under

it have no relevancy) with Ordinance No.VI of 1959

(West Pakistan Urban Rent Restriction Ordinance,

1959) and requested for dismissal of Writ Petition.

6. Argument heard and record perused.

7. Essentially, the petitioner referred to on proviso

to sub section 2 of Section 4 of West Pakistan Urban

Rent Restriction Ordinance,1959, which reads as;

“Provided that increase in the rent to be

fixed under this section shall not exceed 25
percent of the rent being paid by the tenant
on the date of filing of application under sub
section (1)”
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However, Section 3 of Ordinance No.VI of 1959

provided a clause for exemption of certain prosperities;

which reads as;

3. Government [or an officer authorized by it

in this behalf] may direct by a [notification
published in the gazette that all or any of the
provisions of this ordinance shall not apply
to any particular building or rent land or any
clause or buildings or rented land”

Therefore, the notification as mentioned in

Section 3 for exemption was published as under: -

The following properties have been exempted

from the provisions of ordinance:
(i) Properties under the control and
management of
) Charitable Institutions
Department, Peshawar

(ii) Properties attached to Dayal Sing

College, Trust Society, Lahore, and

(iii) Building and rent land administrative

control, management and maintenance
whereof is taken over and assume by the
Chief Administrator of Auqaf”

Evidently, Para-iii of notification manifested

that “Waqf properties” are exempted from the

provision of West Pakistan Urban Rent Restriction

Ordinance,1959, therefore, the ceiling limit of 25% as

provided in Ordinance No.VI of 1959 shall not be

applicable to Waqf Properties and shall not be

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interpreted in any manner for its application to Waqf

properties.

8. In order to determine legal aspect of the

impugned amendment in the rules, whether the same

are “intra-vires” or “ultra-vires”, to the rules of 1979

which is framed under section 25 of KPK Waqf

Properties Ordinance,1979 where under sub clause-C

of sub-section 2 of section 25, reads as:-

25 (2) In particular and without prejudice to

the generality of the foregoing power such
rules may provide for all or any of the
following matters, namely:

(C) Prescribing the terms & conditions on which the

Waqf properties) may be leased or let out.Thus

section 7 of West Pakistan Waqf properties

(Administration) Rules, 1960 were related to lease

of Waqf property and sub clause (iii) of sub clause

(b) of rules 7 were substituted such as;

(iii ) The rent reserved shall be the best available

market rate in respect of new allottee, to be

determined through an open auction, in favour of

highest bidder on the spot or at such other place

close to it as may be easily accessible to the

attending bidder, to be conducted in presence of the

Administrator Auqafand Additional Deputy

Commissioner (Revenue) of the respective district

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“While 40% increase shall be made in respect of

the old or setting tenant after 03 years”

We have considered the legal aspect of the

petition and found that the petitioner is aggrieved of

only 40% increase which shall be made after every 03

years on the plea that in West Pakistan Rent Restriction

Ordinance, 1959, the maximum increase could be 25%

of the rent being paid.

9 We are not persuaded to agree with the

contention of learned counsel for the petitioner that the

impugned amendment to the extent of 40% increase

after every 03 years is violative and ultra-vires the

constitutional rights of) the petitioner as protected under

Articles 04 and 25 of the Constitution of Islamic

Republic of Pakistan, 1973 because both the laws were

made by the legislature with different intentions and

the protection of equal law does not at all mean that all

the laws must be uniform. It is by now settled that

“conception of equality before the laws does not

involve the idea of absolute equality amongst human

being which as a physical impossibility”. In this regard,

the apex Court in case title “Abid Hussain Sherazi. vs.

Secretary M/O Industries and production, Government

of Pakistan, Islamabad” (2005 SCMR 1742) has

observed that: -
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“The protection of equal laws does not mean that all

laws must be uniform”

10 In the case of “I-A-Sherwani &others .vs.

Government of Pakistan” (1991 SCMR 1041), the

apex Court enumerated the seven (7) principles with

regard to equal protection of law and reasonableness of

classification: -

(i) That equal protection does not envisage that

every citizen is to be treated alike in all
circumstances but it contemplates that
persons similarly situated or similarly placed
or to be treated alike

(ii) The reasonable classification is permissible

but it must be founded on reasonable
distinction or reasonable
X basis.

(iii)The different laws can validly be enacted for

different sexes, persons in different age group
persons having different financial standings
and persons accused for heinous crime.

(iv) That no standard of universal implication to

test reasonableness of classification can be
laid down as what may be reasonable
classification in particular set of
circumstances maybe unreasonable in others
set of circumstances.

(v) That the law applying to one percent or one

clause may be constitutionally valid if there
is sufficient basis or reasons for it, but a
classification which is arbitrary and is not
founded on any rational basis is no
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classification as to warrant the execution of

mischief of article 25.

(vi) The equal protection of law means that all

persons equally placed be treated alike both
in privileges comfort and liabilities imposed.

(vii) That in order to make a classification

reasonable, it should be based,

(a) An eligible differentia which

distinguishes person or thing that are
grouped together from those who
have been left out.

(b) That the differentia must have

rationalenexus to the object sought to
be achieved by such classification.”

11 For proper determination, the preamble of both

X

the statutes that is Khyber Pakhtunkhwa Waqf

Properties Ordinance (Ordinance No.1979) and that of

West Pakistan Urban Rent Restriction Ordinance,1959

would make it clear that former was promulgated for

proper management of Waqf properties in KPK and the

latter relates to restrict the increase of rent of certain

premises within the limits of urban area and the

eviction of tenants therefrom in the province, thus, the

object, the intention of legislature and limitation of

both the statutes are different from each other, thus, the

uniform applicability of both cannot be based on the

touchstone of article 25 of the Constitution of 1973.

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12 For the reasons discussed above, this petition is

hereby dismissed being without substance.

Announced:
08.4.2020 JUDGE

JUDGE

(Nazir) (DB : Hon’able Mr. Justice Ijaz Anwar, J and

Hon’able Mr. Justice Muhammad Naseem Anwar, J)

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