1999 PLP 2659 (YLR)

This is an application under Order 39, Rules 1 and 2, C.P.C., whereby the plaintiffs have prayed that the defendants as well as their officers and agents be restrained from taking any coercive action against the plaintiff or from withdrawing permission Letters Nos.KBCA/KMC/ DCB/I/95/ 422, dated 17‑12‑1995 and No.DL/E/1128/98, dated 29‑11‑1998 and from selling, alienating, encumbering, the Nala/drain and the service areas adjacent to the plaintiffs' Building as detailed in paras. 4 and 5 of the plaint. The brief facts of the matter are that the plaintiffs applied for a No Objection Certificate (NOC) vide letters, dated 14‑2‑1995 and 17‑12‑1995 froth the Controller of Buildings, K.B.C.A. and Karachi Metropolitan Corporation (K.M.C.) for the purpose of developing the KMC Nala/drain for car parking, as well as for the purpose of providing a small park for the use of the general public adjacent to their building known as Glass Towers situated just after the main Clifton Bridge on the main Clifton Road, Karachi. Copies of these letters are annexed as B/l and B/2 to the plaint. Accordingly the K.M.C. which was then under the K.B.C.A. granted such No Objection Certificate vide their letter No.KBCA/ KMC/ DCB/ 11/ 95/ 422, dated 17‑12‑1995 which has been filed as Annexure C/1 to the plaint. So also the approved structural drawing for the project has been filed as Annexure C to the plaint. As disclosed in para.5 of the plaint, the plaintiff again applied for further permission to beautify the service lane between the Nala/drain and the plaintiffs' building and the public drive way in front of the said building viz; service area, vide its letter, dated 23‑8‑1998 which has been filed as Annexure D/1. In response to which vide Letter No.DI/E/1128 of 1998, dated 29‑10‑1998 K.M.C. again gave its permission to develop such service areas, a copy of which has been filed as Annexure D/2 to the plaint. Consequently after having obtained these permissions vide letters, dated 17‑12‑1995 and 29‑10‑1998, the plaintiff started the project somewhere in the first week of November, 1998 after having incurred heavy expenditure for this purpose, when on 5‑I1‑1998, the defendants all of a sudden begun to demolish the construction/ development of the Nala/drain which created a law and order situation, however, the officers of the Defendants left the site on 6‑11‑1998. Photographs of such demolition work have been filed as annexure E to the plaint. Nevertheless, in spite of the departure of the defendant's officers from the site they again threatened to take coercive action for the demolition of the said construction work as well as the withdrawal of the permission letters given to the plaintiff, dated 17‑12‑1995 and 29‑10‑1998; hence the suit. A counter‑affidavit has been filed to this application on behalf of the defendant No.1 viz; K.M.C. in which it has been maintained that the abovementioned permission letters have been obtained on the basis of fraud and collusion with the persons who were then incharge of KMC/KBCA. So also it has been maintained by the defendant No. l that the persons who had given such permission letters did not have the lawful authority to do so under the relevant rules and regulations and consequently exceeded their powers in this connection. It is also submitted that in any event the suit is hit by section 10 of the C.P.C., As previously the plaintiff had filed a suit before the Lower Courts bearing No.427 of 1996 which is in between the same parties and based on the same cause of action. Finally it has been averred in the counter -affidavit that a complete ban had been imposed by the Sindh Government as regards covering up open Nalas/drains vide Letter No.RO‑8/(235)/93, dated 19th June, 1993 and minutes of the meeting, dated 16‑6‑1996 which have been filed as Annexures ‑D and D/1 respectively to the counter‑affidavit. It is also maintained in the counter‑affidavit that upon discovery of the fraudulent, collusive and ultra vires permission granted to the plaintiff through letter, dated 17‑12‑1995, the defendant No.1 withdrew such permission vide its letter No.SDL/9493/98, dated 23‑10‑1998 and also wrote to the KBCA vide its letter, dated 4‑11‑1998 requesting that the permission given to the plaintiffs vide letter, dated 29‑10‑1998 may also be withdrawn. The above factual position was controverted in its totality in the rejoinder filed by the plaintiffs to defendant No.1's counter -affidavit. In support of the application, learned counsel for the plaintiff has stressed the following issues:‑‑‑ That the provisions of section 21 of the General Clauses Act incorporating the doctrine of locus poenitentiae cannot be pressed into service by the defendants, since the transaction is a past and closed one and cannot be reopened even if the permissions were based on a misconception or are otherwise defective due to the alleged lack of authority on behalf of the persons who gave such permission. Learned counsel has relied upon The State v. Muhammad Ismail and others (1980 SCMR 268) and Chairman Selection Committee/Principal King Edward Medical College, Lahore and two others v. Wasif Zameer Ahmed and another (1997 SCMR 15) in support of this proposition. It is further submitted by learned counsel that the guarantee as contained in Article 9 of the Constitution which inter alia provides for the right to life to the citizens of Pakistan is one of the basis on which the plaintiff seeks relief in this suit. Learned counsel has argued in this connection that as held by the Hon'ble Supreme Court while interpreting Article 9 of the Constitution, in Shahla Zia and others v. WAPDA (PLD 1994 SC 693), the citizens of this country have the right to ensure that the quality of their life is not adversely affected by health hazards and pollution and consequently as the Nala/drain is such a hazard, the plaintiff would have the right to cover it up in mitigation of the same. Learned counsel has in this connection further relied upon L.K. Koolwala v. The State of Rajhistan. and others (AIR 1988 R.2), Janki Natruhlal Chhara and another v. Sardarnagar Municipality, Sardar and another (AIR 1986 Gujrat 49), Citizens Action Committee, Naypur v. Civil Surgeon, Mayo (General) Hospital Naypur and others (AIR 1986 Bombay 136). Learned counsel for the plaintiff has further contended that the impugned action/cancellation of the permission letter by defendant No. l violates the provisions of Article 4 which guarantees due process of law to the citizens of this country. In this regard learned counsel has submitted that the plaintiff was never heard before cancellation of the permission granted by defendant No. 1, dated 17‑12‑1995 vide its letter, dated 23‑10‑1998 which militates against the principle of natural justice and due process. Learned counsel has in this regard strenuously denied that the abovementioned letter of cancellation (as per para.8 of the rejoinder filed in response to the counter affidavit of defendant No. l) was ever received by the plaintiff. In support of his contentions learned counsel has relied upon Government of Sindh v. Abbas Ahmed, Advocate and two others (1994 SCMR page 933). Learned counsel's next submission is that the principle of promissory estoppel as contained in Article 114 of the Qanoon‑e Shahadat Order applied squarely in the circumstances of the case as the plaintiff while acting upon the representation of the defendant No.1 had irretrievably changed its position and entered into bona fide contracts as well as incurred heavy expenditure and liability for the construction in question and, hence, the defendant No. l could not resile on its promises or representation earlier given. Learned counsel has cited M.Y. Electronics Industries (Pvt.) Limited v. Government of Pakistan (1998 SCMR 1404) in this connection. As regards the pendency of the suit before the Civil Court viz: 427 of 1996, learned counsel submits that said suit was passed on threats which were being issued from time to time by the defendants for demolition of the construction work whereas in the present suit a fresh cause of action has accrued insomuch as the said threats have been carried out with the result that the construction has been partially demolished. Learned counsel further submits that section 10, C.P.C., only operates in between Courts of concurrent jurisdiction and not in the present case where the previous suit was filed before the Lower Court and the present suit is pending before this Court. In any event learned counsel submits that section 10 would not bar the passing of interlocutory orders such as those which are under consideration in this application. In this connection learned counsel has relied upon Saleem Industries Limited v. Burhani Trading Co. and another (1982 CLC 973) and Smith Kline and French Laboratories Limited and another v. Ferozesons Laboratories Limited and another (1992 MLD 2226). Finally learned counsel submits that at this stage this Court would be competent to give the plaintiff the relief it seeks viz. covering up of the drain/Nala in question at the plaintiffs' risk and cost which is sufficient security for this purpose. If after the trial of the suit this Court comes to the conclusion that covering of the open Nala/drain was unlawful and obtained on the basis of fraud and collusion on the plaintiff's part, the said unlawful act would be rectified by passing appropriate orders in due course. Learned counsel has relied upon Zakia Khatoon v. Roomi Enterprises (1995 SCMR 753) and the leave granting order of the Hon'ble Supreme Court in Civil Petition No.392 of 1995 entitled Pakistan Memon Educational and Welfare Society v. Gul Muhammad and another in support of this proposition. On the other hand Mr. Muhammad Yasin Kiyani, learned counsel for defendant No.1 maintained that the entire exercise is unlawful and beyond the jurisdiction of the person/persons who gave the impugned sanction for covering up the Nala/drain vide letter, dated 17‑12‑1995, as the provisions of the Sindh Local Government Ordinance, 1979 were not followed. In this respect he has invited my attention to section 45(4) of the Ordinance whereby the disposal of immovable properties belonging to K.M.C. has to be made through public auction and no contract for the transfer of such immovable property otherwise than in accordance with the provisions of the Ordinance would be binding on the K.M.C. as per section 45 (7). Secondly Mr. Kiyani has contended that the powers of the K.M.C. have to be exercised through a council set up in accordance with section 10 of the Ordinance which has not been done in the present matter and as such the relevant permission letter is ultra vires of the powers of the person who issued the same. As regards the doctrine of promissory estoppel, learned counsel submits that before such doctrine could be pressed into service, the party doing so had to show that it had suffered to its detriment or altered its position because of the representation made by the other party which has not been established in the present case by the plaintiff. As regards section 21 of the General Clauses Act, learned counsel submits that the provisions thereof are fully applicable in the present case as the defendant No.1 exercised its powers under section 21 by revoking the earlier no objection granted by letter, dated 17‑12‑1998. In support of his submissions learned counsel has relied upon Muhammad Yousuf Chaudhry v. The Member Board of Revenue/Chief Settlement Commissioner Punjab and another (PLD 1989 Lahore 322), Sardar Muhammad Ebrahim Khan v. Government of Azad Jammu and Kashmir (PLD 1989 Azad J&K 1), Nazir Ahmed v. Muhammad Tahir (PLD 1992 Lahore 1989), Moosa Adam v. MC and 4 others (PLD 1972 Kar. 571) and M/s. Firdous Spinning and Weaving Mills and others v. Federation of Pakistan and two others (PLD 1984 Karachi 522). I have heard both the learned counsel and my conclusions are as follows:‑‑‑ It would be seen that the entire controversy hinges on the issue whether the permissions given by defendant No.1 and KBCA, dated 17‑12‑1995 and 29‑10‑1998 for the covering of the Nala/drain and beautification of service road adjacent to the plaintiffs' building known as Glass Towers was given lawfully and whether the plaintiffs can rely upon the same to claim the Constitutional guarantees as contained in Articles 4 and 9 of the Constitution and also invoke the doctrine of promissory estoppel as per Article 114 of the Qanoon‑e‑Shahadat Order. Reverting to the legality of the abovementioned permissions which has been assailed by Mr. Kiyani, it would be seen that a presumption of regularity is attached to all judicial and official acts as per Article 129(e) of the Qanoon‑e‑Shahadat Order. Of course this is a rebuttable presumption and the burden of proof to the contrary lies upon the person who challenges the same in this case the defendants Nos. l to 5 and 13 to

16. In my view Article 129(e) embodies and reflects the doctrine of indoor management which propounds that outsiders who are not privy to the functioning of private or official bodies can always rely upon any representation made by any officer/servant of such bodies in order to successfully counter any defence mounted by such body on the basis that such officer/servant lacked the authorization to give such permission. Mr. Kiyani has submitted that in fact that person who gave these authorizations acted totally in violation of the relevant law viz the Sindh Local Government Ordinance, 1979 whereby as per section 45(4) all contracts for transfer of immovable properties belonging to the defendant No.1 can only be entered into after inviting offers in an open public auction. So also Mr. Kiyani has submitted that the powers of defendant No. l are to be exercised through the council set up in accordance with section 10 of the Ordinance which has not been done in the present case. In this regard he has further submitted that a complete ban was imposed by the Government of Sindh on covering of storm water and sewerage drains as evidenced by letter, dated 19th June, 1993 and minutes of meeting, dated 16‑6‑1996 filed as Annexures D and D/ I to the defendant No. 1's counter‑affidavit. However, in my view prima facie at this stage it appears that a presumption of regularity can be attached to the permission given by defendant No. 1, dated 17‑12‑1995 and 29‑10‑1998 even though it has been strenuously argued by learned counsel that such permission was based on fraud and collusion on the part of the plaintiff. Of course the defendants would be free to lead evidence to this effect during the trial of this case and if indeed it was established that the permissions were obtained mala-fidely and unlawfully the same could be set aside by this Court. Secondly, in my opinion the provisions of Article 114 of the Qanoon‑e- Shahadat Order which embody the principle of promissory estoppel are fully applicable to the facts of the case. Such principle has been decided by the Hon'ble Supreme Court in the case of M.Y. Electronics Industries (Pvt.) Limited v. Federation of Pakistan, (supra) wherein it was held that where a person acting on a representation by the Government or a person competent to represent on behalf of the Government, changes his position to his detriment or enters into a binding contract or incurs a liability then in such a case the Government will not be allowed to withdraw from its representation or promise. However, the Hon'ble Supreme Court has further held that this doctrine is subject to the following limits:‑‑‑ (i) The doctrine cannot be invoked against the legislature or the laws framed by it. (ii) The doctrine cannot be invoked for directing the execution of a particular act which was against the law when the representation was made or promise held out. (iii) No agency or authority can be held or bound by a promise or representation not lawfully extended or given. (iv) The doctrine will not apply where no steps have been taken consequent to the representation or inducement so as to intrievably commit the property or the reputation of the party invoking it. (v) Finally a party which has indulged in fraud or collusion for obtaining some benefit under the representation cannot be rewarded by the enforcement of the same. Applied to the present circumstances it is quite apparent that the limitation at serial No.(i) above viz. invocation against the Legislature or any law is not relevant as this is not the case of the plaintiffs. As regards limitations Nos.(ii)(iii) and (v) viz: invocation of the doctrine for directing the execution of any act which was against the law or for binding any agency or authority to a representation not lawfully extended, it would be seen that at this stage it cannot be determined without taking evidence whether any fraud or collusion was committed by the plaintiff in obtaining the relevant permissions. So also it would be seen that as regards the lawfulness of the permission itself viz. whether it was in violation of section 45 of the Sindh Local Government Ordinance, it is apparent that the transaction in question does not concern the transfer of the drain/Nala to the plaintiff in the sense that they could claim any proprietary rights over the same. The area to be covered up is for the general convenience of the public viz. parking lot and park which to say the least are in short supply in the city. Finally, as regards Limitation No.(IV), it is also the plaintiffs' case that they had altered their position based on such permission since they had undergone financial expenditure for the construction in question and had also advertised their project based on the proposed parking lot and park to be constructed at the Nala/drain. In my view, therefore, at this stage no exception can be taken to the applicability of the doctrine of promissory estoppel to the facts of the present case as enunciated by the Hon'ble Supreme Court in M.Y. Industries (Pvt.) Limited v. Government of Pakistan (Supra). As far as the case of Moosa Adam v. KMC and 4 others (supra) relied upon by Mr. Kiyani is concerned in my opinion the same is distinguishable as the facts in that case were different. There a Division Bench of this Court came to the conclusion that the respondents had not been able to establish that they had irretrievably changed their position on a mere representation of a petty official of the K.M.C. which consisted of a receipt containing the words licence fee for cabin rent. "The Learned Division Bench held that the same did not amount to a representation for the lease of the municipality land in question which could only be done through the execution of contract by the municipality. Such is not the case on the facts of the present matter as I have already held that no transfer of property is in issue. Reverting now to section 21 of the General Clauses Act which incorporates the doctrine of locus poenitentiae (and which is in mitigation of the principle of promissory estoppel) it would be seen that as per settled law the Government authorities cannot invoke this doctrine on a mistaken belief or a misconception where a vested right has accrued to any other person based on such a belief or misconception. In this regard reference can be made to State v. Muhammad Ismail and Chairman Selection Committee Principal King Edward Medical College Lahore v. Wasif Zameer Ahmed (supra). Applied to the facts of the present case, it is admitted that the permission letters were issued although allegedly based on some fraud, collusion or misconception of the law. Consequently in view of the admitted position that the permission letters were issued and the fact, though tentative, that the plaintiffs have undergone considerable expense for the construction in question, the defendant No.1 cannot be heard to say at this stage that the permissions were validly revoked and that it had the authority to do so in pursuance of section 21 of the General Clauses Act. So also it would appear, at this stage, that the permissions were revoked without hearing the plaintiffs as it has been flatly denied in the rejoinder to defendant No.1's counter: affidavit that the letter revoking such permission, dated 23‑10‑1998 was issued without giving the plaintiffs any hearing which militates against the basic principle of natural justice as embodied in Article 4 of the Constitution viz: that no one can be condemned unheard. Mr. Farogh Naseem has further submitted that the plaintiffs are also entitled to invoke the provisions of Article 9 of the Constitution viz: their right to life which has been propounded by the Hon'ble Supreme Court in Shahla Zia v. WAPDA to include the right to cover up the drain in question as it is a health hazard. I am afraid I cannot agree with this proposition in the circumstances of the case. The reason is simple because in Shahla Zia v. WAPDA (supra), the Hon'ble Supreme Court extended the definition of the word "Life" appearing in Article 9 of the Constitution to the quality of life as enjoyed by the petitioners who were the residents of Islamabad and had impugned the installation of a grid station as well as of cutting of trees in a green belt by WAPDA alleging that this would impair their quality of life. This was a public interest litigation case, however, the present case is certainly not a public interest case and the plaintiffs are not acting due to any altruistic motive in covering up the drain in question. If that be the case then in my opinion the plaintiff would not at all be willing to cover up all the drains in the city. As regards section 10 of the C.P.C suffice it to say that as per settled law it only operates between Courts of competent jurisdiction and not, as in the present case where the earlier Suit was filed before the Lower Courts. Even otherwise interlocutory orders can always be passed in the suit which is later in time as in the present case. In view of all the foregoing facts and reasons this application is allowed. The plaintiffs were permitted to cover up the drain in question as per the original permission granted by defendant No. l subject, however to their risk and cost vide order, dated 11‑1‑1998 which is confirmed. The plaintiff are also directed to ensure that adequate cleaning arrangements are made at the site for regular cleaning of the drain and that sufficient area has been developed for a small public park. In this respect the Nazir of this Court is appointed to inspect the construction at site and report whether or not such area and cleaning facilities are available. Such inspection to be carried out upon prior notice to the parties. The Nazir's fee is fixed at Rs.10,000 which shall be paid by the plaintiffs. It is clarified, however, that this order shall in no manner be construed to transfer any proprietary rights to the plaintiffs over the parking lot and park which shall remain the property of K.M.C. we alongwith the plaintiffs' shall maintain it such. In this respect, if need be, the parties may propose suitable arrangements for the administration and regulation thereof which would then be considered by this Court and appropriate orders passed. As the defendants in the matter have seriously challenged the contention raised in the suit it shall be heard and decided within three months. Q.M.H./M.A.&./E‑24/K