KARACHI METROPOLITAN CORPORATION Versus Mst. RAHIMA BAI

1. This Civil Appeal is directed against the judgment dated 29th January. 1986 and decree dated 2nd February, 1986 passed by the IInd Sr. Civil Judge, South whereby he decreed the suit.

2. The facts leading to the filing of the above appeal are that respondents 1 to 7 are owners of Blot of land bearing No. 2/15 Preedy Quarters, Marshal Street, Karachi. The plot is situated in bye‑lane of Marshal Street which is away from main road. The respondents 1 to 7 have constructed a cinema on the aforesaid plot which is known as Kohinoor Cinema. It is alleged in the plaint that towards north of their plot there was a vacant alignment land admeasuring about 538 sq. yards which belongs to the appellant. According to the plaint this plot is desolate and is lying neglected and was being used by buffaloes, cows, horses and unauthorised persons. It is the case of the respondents 1 to 7 that by letters dated 5th February, 1965 and 20th February, 1965 they wrote to the appellant about the unauthorised use of the alignment land and requested to grant the same to them on payment of reasonable price. The appellant by their letter dated 23rd August, 1965 (Ext. 1/D) acknowledged the letters of respondents 1 to 7 and asked them to make a joint req._st for the grant and or transfer of alignment land on behalf of all joint owners of the adjoining plot. Accordingly the respondents 1 to 7 moved a joint letter. The appellants by their resolution No. 1263 dated 15 th January, 1966 recommended the grant of the alignment admeasuring about 538 square yards in favour of respondents 1 to 7 at Rs. 125 per square yard plus rent of Rs. 0.28 paisas per square yard per annum. This resolution was conveyed to the respondents and advised to deposit 25% of the cost of land vide letter dated 27th January, 1966 (Ext. 1/E). The appellants also forwarded resolution to the respondent No. 8 who was then the Controlling Authority of the appellants under the Municipal Administration Ordinance, 1960. The respondent No. 8 did not accord the sanction of the aforesaid resolution and directed the appellants that the land in question should not be granted at the rate below Rs. 200 per square yard. The appellants by their letter dated 30th April, 1969 informed the respondents 1 to 7 and asked them to give offer of the land over and above Rs. 200 per square yard. The respondents 1 to 7 being aggrieved filed a Constitutional Petition No. 319/70 in this Court. This petition was disposed of by judgment dated 10th September, 1980 and directed the respondent No. 8 to decide the matter in accordance with relevant law applicable in 1970. The respondent No. 8 accorded sanction of the aforesaid resolution vide order dated 2nd May, 1981. The respondent No. 8, ordered that the actual area of the alignment land was to be verified from the Revenue record of the Assistant Commissioner, South Karachi before the balance amount remaining to be paid by the respondents 1 to 7 was recovered in a manner as considered suitable in accordance with Government's Resolution No. GRRD 2640 dated 23rd April, 1931 and S‑179/8‑A/47 dated 19th April, 1947 be paid accordingly.

3. The case of the appellants as set out in the written statement is that upon receipt of decision of the respondent No. 8, the entire case was reviewed and the resolution was suitably amended and sent to the Mayor of the appellants for placing the matter before the council for grant of alignment land at the rate of Rs. 250 per square yard as approval accorded by the respondent No. 8 was only the confirmation of the decision and not the order passed under Section 119 of the Municipal Administration Ordinance, 1960. It is the further case of the appellants that the position also changed and under section 45(5) of the Sind Local Government Ordinance, 1979 read with M.L.Os. 60 and 87 the maximum size of alignment land shall not exceed ‑1U square yards. It is further pleaded that the then Mayor referred the matter to the Land Committee for examination and report before placing the matter before the council. It is also pleaded that the matter was under consideration of the Land Committee of the appellants when the respondents 1 to 7 filed Suit No. 4353 of 1984 for specific performance.

4. The trial Court framed the following issues:‑‑

5. "(1) Whether the suit is not maintainable under law?

(2) Whether the defendant No. 1 in the circumstances of this case is bound to convey alignment land in suit to the plaintiffs?

(3) Whether the plaintiffs' suit is premature as alleged by the defendant?

(4) Whether order of Commissioner is or is not under section 119 of the Municipal Administration Ordinance, 1960 If so what is the effect?

(5) Whether the plaint discloses any cause of action?

6. The trial Court after taking into consideration the evidence adduced by the parties and taking into consideration arguments advanced by the learned counsel for the parties decided issue No. 1 in the negative, Issue No. 2 in the affirmative. Issues 3 and 5 held that the plaint discloses cause of action and the plaint is not premature. The suit was decreed vide judgment dated 29th January, 1980 and decree dated 2nd February, .1986.

7. The appellants being aggrieved against the judgment and decree of the IInd Sr. Civil Judge/Assistant Sessions Judge, Karachi South have preferred this First Appeal on the grounds mentioned in the Memo of Appeal:

8. Mr. S. M. Muslim Naqvi, the learned counsel for the appellants has raised the following contentions:‑‑

(1) The resolution was mere recommendations and under Rule 5 of the Contract Rules the appellants were fully competent to vary the terms and conditions of the contract before execution thereof.

(2) The findings on issue No. 1 are contrary to law.

9. On the other hand Messrs Syed Nasiruddin and Ikram Ahmed Ansari the learned counsel for the respondents 1 to 7 have contended that the findings of the learned trial Court on issue No. 1 are in accordance with law. If once a resolution of the appellants has been acted upon, it cannot be suspended.

10. Mr. Makhdum Abdul Wali the learned counsel for the respondent No. 8 has supported the judgment.

11. I have given due consideration to the arguments addressed at the Bar and have also gone through the R & P. I lave also, perused the impugned judgment.

12. The respondents 1 to 7 moved individual applications (Ext. 1/C) for grant of the alignment of the land to them. The appellants by its letter dated 23rd August, 1905 (Ext. 1/D) asked the respondents 1 to 7 to move application on behalf of all the joint owners of the plot. The respondents moved a joint application dated 23rd September, 1965 as required by the appellants. The appellants in their meeting held on 15th January, 1966 passed the following Resolution No. 1203‑ It is advantageous to reproduce which reads: ‑

13. "As recommended by the Finance Sub‑Committee vide Resolution No. 317 dated 27th December; 1965, the Corporation is pleased to accord their sanction to the grant of land measuring 538 square yards (area and measurements are subject to verification by the City Deputy Collector) as alignment land in Plot No. 2/15 PRI. Preedy Qr. in favour of Mrs. Rahima Bai and others the owners at Rs. 125 per square yard plus land rent at Rs. 0.28 per square yard per annum under Rule 21 of Land Sale Rules with the condition that the lease of the alignment land will run concurrently with the lease of the original plot subject to the approval of the Commissioner, Karachi. The allotte shall not use the said land for any other purpose than the one specified in their application placed on the file."

14. The appellants conveyed the Resolution to the respondents 1 to 7 by their letter dated 27th January, 1966 (Ex. 1/E). The respondents deposited 25% charges vide challan (Ex. 1/F) and certificate of the Bank dated 21st April, 1970 (Ext. 1/G). The appellants forwarded Resolution to the respondent No. 8 for j sanction. The respondent No. 8 by its letter dated 10th September, 1966 informed the appellant that "proposal at Rs. 125 per square yard is worth not lees than Rs. 200 per square yard, therefore the respondents 1 to 7 were advised by the appellants to pay Rs. 200 per square yard. The respondents 1 to 7 being aggrieved filed a Constitutional Petition in this Court. The case was remanded to the respondent No. 8. The respondent No. 8 approved resolution vide its order dated 2nd May, 1981.

15. The learned counsel for the appellants had contended that upon receipt of decision of respondent No. 8, the entire case was reviewed and the resolution was suitably amended and sent to the then Mayor for placing the matter before the council for grant of alignment of land at the rate of Rs. 25 per square yard as the approval accorded by the respondent No. 8 was only the confirmation of the decision and not the order passed under section 119 of the Municipal Administration Ordinance, 1960.

16. The learned counsel for respondents 1 to 7 has contended that the resolution of the appellants was duly communicated to respondents 1 to 7 and respondents 1 to 7 deposited 25% of the price as directed by the appellants. The Federal Court of Pakistan has defined locus poenitentiae in the case of Shahbaz v. Crown P L D 1956 FC 46.

17. "Locus poenitentiae in law refers to the power of receding till a decisive step is taken. If a decisive step is taken other considerations would arise, but if that step is yet to be taken, we see no reason to restrict the power to modify or cancel."

18. In this case the Government ordered the remission of the prison sentence of Shahbaz with effect from the 14th August, 1954, but before the order was acted upon, it was rescinded on the 13th August, 1954. It was held that the order cancelling remission was not open to any objection. In the case of Lt.‑Col G.L. Bhattaeharya v. The State and 2 others P L D 1964 SC 503 which was also a case of remission of sentence under section 401 of the Criminal Procedure Code, it was held that the remission of sentence becomes effective when duly communicated to the Superintendent of Jail who is duly bound to give effect to it in accordance with the Prisoners' Act. In Pakistan v. Muhammad Himayatullah P L D 1969 SC 40 the respondent was a permanent member of the Madras Civil Service, on migration to Pakistan was appointed in the General Administration Reserve. He joined service in the Ministry of Economic Affairs on 8th June, 1948 on the assurance allegedly given to him that he would get a starting salary of Rs. 1,000 per month. Subsequently, a formal office Order was issued on 6th November, 1948 fixing his salary at Rs. 620 per month. His representation was turned down by the Prime Minister on 11th April, 1958. The respondent continued his representation which was finally accepted by the President on 1st October, 1959. His communication was communicated to the Secretary of Railways and Communication as well as the respondent. The Hon'ble Supreme Court held as follows:‑‑

19. "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e. the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created m favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."

20. The dictum was followed by this Court in the case of P L D 1975 Karachi 373. The upshot of the above discussion is that an order cannot be altered or rescinded if any immediate fixed right of present or future was accrued to the party because such a right is a fixed right in contradiction to being expedient or contingent right. In the instant case the appellant had accepted the proposal of the respondents 1 to 7 vide Resolution No. 1263 dated 25th January, 1986. This resolution was communicated to the respondents vide letter dated 27th January, 1986 (Ext. 1/C) and in pursuance of this Resolution the respondents deposited 25% of the price as directed by the appellants. The respondent No. 8 had also accorded sanction vide decision dated 2nd May, 1981. The appellants would now be estopped from withdrawing it. As stated above, the appellants accepted Rs. 16,812.50 from the respondents 1 to 7. This being the case, the appellants had thereafter no power to reconsider again under Section 21 of General Clauses Act. In the present circumstances the appellants accorded their sanction to grant of land admeasuring 538 square yards and a sum of Rs. 16,812.50 being 25% of the occupancy value of the land at Rs. 125 per square yard also having been accepted.

21. I do not think the appellants had any power to re‑consider it again. There seems to be no provision in Municipal Administration Ordinance, 1960, or in Sind Local Government Ordinance to revoke a sanction once given.

22. The learned counsel for the respondents 1 to 7 has submitted that the respondents 1 to 7 are entitled to invoke the principle of promissory estoppel against the appellants and seek a direction to grant the lease notwithstanding the subsequent policy and/or section 45(5) of the Sind Local Government Ordinance, 1979 read with M.L.Os. 60 and 87.

23. The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the' dealings which have taken place between the parties and that the said principle has been evolved by the Courts for doing justice and there is no reason why it should be given limited application by way of defence. The principle of promissory estoppel can be invoked in the instant case. I am of the view that the respondents 1 to 7 are entitled to the grant of lease and the appellants cannot withhold it based on the said subsequent policy and/or under section 45(5) of the Sind Local Government Ordinance, 1979 or M.L.Os. 60 and 87.

24. The other aspect of the case is that the Controlling Authority accorded its approval to the sanction to grant of land admeasuring 538 square yards at Rs.

125. The appellants did not represent against the decision of the Controlling Authority within thirty days as provided by section 111(2) of the Municipal Administration Ordinance, 1960.

25. I agree with the submission of the learned counsel for the appellants that provisions of section 119 of the Ordinance are not attracted in the present case. Mr. Ikram Ahmed Ansari the learned counsel for the respondents 1 to 7 has also fairly conceded this legal position.

26. As regards the last contention of the learned counsel for the appellants that the sanction does not comply with Sind Land Rules. This contention is devoid of force. The appellants had passed a resolution granting land to respondents 1 to 7 at Rs. 125 per square yard. The resolution was duly communicated to the respondents 1 to 7 and the respondents 1 to 7 deposited 25% occupancy charges m pursuance of the resolution. The respondent No. 8 accorded its approval to the resolution on 2‑5‑1981. The appellants instead of 1 executing a lease in the prescribed form wanted to wriggle out when the decisive step was already taken. The respondents 1 to 7 filed the suit for directing the appellants to execute the lease after completing all the formalities. In the present case there is a binding contract between the parties. I am of the opinion that the suit is not hit by the provisions of section 4 of the Specific Relief.

27. Now if the appellants entered into a contract of its statutory duty and the respondents 1 to 7 acted upon it, the appellants cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from their unreasonable conduct, to respondents 1 to 7. In such a situation, the Court is not powerless from holding the appellants to their promise and it can be enforced by a Court directing the appellants to perform their duty. A suit would certainly lie to direct performance of a duty.

28. The learned Civil Judge accordingly was fully justified in directing the appellants to complete all the formalities and to grant a lease in the prescribed form. For this proposition it is not necessary to cite decisions nor text books, although I have been taken through case law and other authorities by counsel or, both sides.

29. The learned counsel for the respondents has fairly conceded that he is not pressing prayer No. 2. The learned counsel, has also stated at the Bar Chas respondents 1 to 7 are prepared to execute lease in the prescribed form and will move the Sub‑Registrar for cancellation of the lease already executed on 15‑3‑1981. In the result, the judgment and decree in so far as prayer No. 2 in concerned shall be set aside. The appellants are directed to execute the lease in the prescribed form within six weeks from today and in case of default the `Nazir' of this Court is directed to register the lease in the prescribed form after expire of six weeks at the cost of the respondents 1 to 7.

30. Hence, for the foregoing reasons, the appeal fails and is dismissed. But in the circumstances of the case there shall be no order as to costs.

31. AA./K‑104/K

32. Appeal dismissed