2013 PLP 2639 (YLR)

ABDUL LATIF KHAN, J.

Brief facts relevant for the disposal of this case are that the petitioner filed suit for declaration against the respondents to the effect that he was not liable to pay the amount of Rs.3,39,045.60 as developmental charges and premium, as the excessive amount charges imposed by the respondents for conversion of the plot, which had already been developed and superstructure-building had already been constructed on the above mentioned plot, fully described in the heading of the plaint and prayed for the recovery of the said amount. After hard contest between the parties the suit was dismissed by the trial Court vide judgment and decree dated 30-6-2006. Feeling aggrieved the petitioner preferred appeal, which was also dismissed by the appellate Court vide its judgment and decree dated 26-3-2007. Hence this petition.

2. Learned counsel for the petitioner contended that the amount of premium and developmental charges assessed at the enhanced rate by the respondents was not liable to be paid by the petitioner for the reason that he had moved an application on 22-5-2001 before cut-date given by the respondents i.e. 31-5-2001. He reiterated his stance by referring to the Diary No.550 dated 24-5-2001. The office of respondents and note dated 23-5-2001 reveal that the application was received by the Office of Cantonment Board well within time and claimed that excessive amount cannot be recovered from the petitioner and should be considered under the old terms and conditions of new policy. He further added that the amount of Rs.3,39,045.60, as developmental charges and premium has been deposited by the petitioner under protest on 12-12-2003 and referred to para 5 of the letter Exh.P.W.1/19, wherein he claimed that the payment of developmental charges and premium were paid by him under protest due to the reason that the respondents were all out to evict him from the premises.

3. On the other hand the learned counsel appearing on behalf of the respondents contended that the petitioner has not deposited the developmental charges and premium in time and supported the impugned judgments and decrees of the Courts below. He added that the case of the petitioner is hit by the principle of estoppel as he has deposited the amount in dispute and as such cannot question the same in the Civil Suit.

4. The perusal of the record reveals that the Government of Pakistan Ministry of Defence vide letter No.2534/D-12/ML&C/ 96 dated 17-7-1996 announced policy for conversion of property held on old grant/code leases into regular leases for a period of 99 years (renewable) under the Cantonment Land Limitation Rules, 1937 (Schedule-IX-C). The Cantonment Executive Officer Nowshera vide letter No.207/Adm/Land/1148 dated 30-4-2001 addressed to the present petitioner offered lease to the petitioner under the CLA Rules 1937 in respect of House No.344/1-8 and a cut date of 31-5-2001 was given to apply on the prescribed form (Schedule-V) obtainable from his office. After obtaining the form (Schedule-V) he applied to Cantonment Board on 22-5-2001, which is prior in time to the cut date i.e. 31-5-2001 and in this way he has applied right in time to the respondents before cut date. The Director Military Land Cantonment, Peshawar Region Peshawar vide letter No.7/M/3381/DPR dated 13-9-2003 accorded sanction to the application for lease under the policy moved by the petitioner. The petitioner deposited the enhanced amount (disputed amount) on 12-12-2003, vide Exh.P.W.1/18 and the petitioner wrote a letter to Cantonment Executive Officer through a lawyer on 12-12-2003 vide reference No.PF/ASG/ NSR, Exh.P.W.1/19, claiming the payment made by him under protest till the determination of the matter by the competent Court.

5. All the documentary evidence was brought on record through the Office of the Cantonment Board/respondents and have been exhibited without any objection from the defendants/respondents' side. Even otherwise these documents came from the record of the respondents and the defendants/respondents do admit all these documents without any objection. Even the written statement filed by the respondents does not contain specific denial of the averments made in the plaint, which too tantamounts to admission on their part. No rebuttal of these documents could be produced by the defendants/respondents. The agreement deed Exh.P.W.l/3 executed on 30-12-2003 was after the payment made by the petitioner under protest, which cannot be termed as estoppel on their part. Article 114 of Qanun-e-Shahadat Order, 1984 is reproduced as under:-- "114 Estoppel. When one person has by his declaration act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing".

6. When a person has by its declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative is allowed in any suit or proceeding between the parties to deny the truth of that thing. Party to estoppel must have intentionally inducted a belief in the other party regarding the fact with intention that on the faith of that belief it may act in certain way, where a party does not by its representation, induce that belief upon the other party, there would be no estoppel. Estoppel aught to be with clarity. Person in knowledge of fact and alive of the situation is not taken to be misled by the act of the other. Estoppel deals with the question of fact and not with the question of right. No rule exists that a man is estopped from asserting the right, which he has said that will not assert. When a person agrees not to assert a right, in some circumstances, he may be bound by his agreement, but that would be a different matter and it would be based on the contract of relinquishment of one's right and not on estoppel.

7. In the instant case the amount deposited under protest would not be taken as estoppel on the part of the petitioner for the reason that the other side was very much alive of the situation and on the same date the petitioner wrote letter to them alleging therein the factum of protest with regard to the payment.

8. The moot point in this case is as to whether the plaintiff remained reluctant or lethargic to obey the policy of the Government or the direction given by the defendants in shape of cut date, reply to which would definitely be in negative as he had applied well within time and the high-ups of the defendants have accorded sanction of the same and it is the defendants-respondents, who kept mum for a period of more than two years upon the sanction accorded and not disclosed it to the petitioner. This sanction for the first time has seen the light of the day in evidence through P.W.1 employee of the respondents/ department, which shows that the respondents-defendants were negligent in performance of their duties and cannot be allowed to take benefit of their weaknesses and the petitioner is not liable to be burdened due to their lukewarm attitude.

9. The enhanced amount of Rs.3,39,045.60 as additional charges and premium were wrongly levied in the case of the petitioner as he does not come within the ambit of revised charges under the new policy and shall be dealt with under the old charges at the rate of Rs.50 per square foot.

10. The Courts below have failed to evaluate the evidence available on file. The enhanced and excessive charges are claimed by the respondents without lawful authority. Admittedly the disputed property is held by the plaintiff-petitioner on old grant based lease, later on converted as referred to above, but within the parameter given by the respondents. For foregoing reasons, this revision petition is accepted and the judgments and decrees of the courts below are set aside. Consequently the suit of the plaintiff/petitioner is decreed as prayed for. MH/364/P Revision allowed.