1993 PLP 1299 (CLC)

(2) Whether the plaintiff paid consideration to the defendant in respect of the above plot and possession of the plot delivered to the plaintiff? (3) Whether the above plot is a road in S.I.T.E.? (4) Whether letter dated 8‑1‑1987 is illegal and ultra vires? (5) To what relief the plaintiff is entitled? The plaintiff examined himself and the defendants examined Irshad Ali Shaikh as their respective witnesses. Having heard Mr. S.A. Samad Khan, the learned counsel for the defendants, and perused the record, my findings on the issues are as follows:‑ ISSUES NOS.1 AND 2:With regard to the Issues Nos.l and 2, Mr. Samad Khan does not contest that the Plot No.S/87‑A was allotted to the plaintiff; that the plaintiff paid consideration to the defendants and that possession of the plot was delivered to the plaintiff. He, however, contends that the allotment of the plot to the plaintiff was by way of licence and not lease. He refers to the agreement which has been produced as Exh.5/1 by the plaintiff. The agreement provides that "the annexed licence shall from this govern their relationship in respect of the said premises." The licence, which has been annexed to the agreement provides, by clauses 1 and 2 thereof, as follows:‑‑ "

1. If and when the factory, hereinafter agreed to be erected by the applicant, shall be completed, within the time hereinafter allowed and in conformity with the terms and conditions hereof so as to be fit for use to the satisfaction of the owner, or such person as the owner may nominate shall have given his certificate in writing, to the effect that all the terms and conditions of this Agreement, on the part of the applicant to be observed and performed, have been duly complied with and that the factory erected by the applicant, is fit for use, the owner shall, be a good sufficient lease, demise unto t1re applicant all THAT piece or parcel of land, admeasuring 0.38 acres or thereabout, delineated in red upon the plan hereto annexed, situated within the Industrial Trading of the Owner at Trans Lyari Ouarters in the Registration District and Sub‑District of Karachi and bounded as follows:‑‑ On the North Drain & H.T.O.H. Line. On the East S.I.T.E. land. On the West 66', wide road. On the South Plot No.S/85. For the terms of five to ninety‑nine years at annual rent of Rupees Seven Hundred Sixty (Rs.760) subject to the revision as provided for, and upon the covenants, terms and conditions, in the lease, draft whereof is hereto annexed, with such amendments, as may be necessary in respect of matters which may have been or may be agreed between the owner and the Applicant.

2. Upon payment by the applicant to the owner a fee of Rupees Seven Hundred Sixty (Rs.760 only) and of rates, taxes and other outgoings the applicant, his agents, servants, employees, his contractors and other persons may enter upon the said land during the period of twelve calendar months from the 10‑3‑1982, or during such extended period as the owner may in writing grant, with or without conditions, for the purposes of compliance with the provisions hereof relating to the erection of the factory agreed to be erected by the applicant and for manufacturing and storing a Printing and Packaging." It will be seen that what is granted to the plaintiff is only a licence for a period of 12 months commencing from the 10th March, 1982, and that it is contemplated by the licence that upon compliance with the conditions set out in clause 1 of the Licence, the defendants agreed to grant lease to the plaintiff on the terms and conditions contained in the draft of a lease, which is annexed to the licence. The draft of the lease has been signed by the defendant himself but has not been signed by the plaintiff and has not been registered. It is, therefore, obvious that no lease was ever granted by‑ the defendants to the plaintiff in respect of Plot No.S/87‑A. ISSUE N0.3: The defendants by their letter dated the 8th January, 1987 (Exh.5/3) stated that Plot No.S/87‑A was not a plot but was a road for public service and utility which cannot be allotted and called upon the plaintiff to show cause within a fortnight why the provisional allotment in respect of the plot may not be cancelled. The plaintiff sent a reply dated the 25th January, 1987 (Exh.5/2) stating that no road is shown in the site plan attached to the agreement and requesting the defendants to withdraw the aforesaid letter (Exh.5/3). The plan attached to the agreement is the same as Exh.5/15. The defendants' witness, Irshad Ali Shaikh, has stated, in his examination‑in‑chief, that the plot which was cancelled formed part of the road from 1978 onwards and that it was allotted to the plaintiff by mistake. In cross‑examination. he has admitted that Exh.5/15 was prepared by the defendants. He has further stated in cross‑examination that when the agreement (Exh.5/1) was executed, the defendants were not aware that Plot No.S/87‑A was part of the road and that the defendants came to know that it was in fact a road for the first time when a complaint was received from neighbouring allottee. He has further stated that when the letter dated the Ist November, 1984 (Exh.5/4) was sent by the defendants, Plot No.S/87‑A was not, according to their records, part of the road. The plan (Exh.5/15) does not show that the plot in question was in fact a road although it does show certain other roads in the area. It does, however, show that it is located in continuation of a 66' wide road which falls between Plot No.S‑64 and S‑49 and cuts across 50' wide road and continues up to the boundary of the alleged Plot No.S/87‑Ad. It further shows that if in fact the area in question is a plot then access to Plot No.S‑88 to the north thereof would be completely blocked‑ because, as stated in the cross‑examination of the witness, Plot No.S/87‑A ends where the boundaries of the SITE end. It seems, therefore, possible that the area shown in the plan was in fact part of 66` wide road running from east to west. The defendants, however, have not produced any other document to show that the area shown as Plot No.S/87‑A. on the SITE plan was in fact a road, nor has any explanation been ever given by the defendants' witness to explain why the area has been shown as a plot and not as a road or as to how a mistake, if any occurred in preparation of the SITE plan. In this view and in view of the fact that the defendants' witness has admitted in cross‑examination that on the date of the letter (Exh.5/4) i.e. the Ist November, 1984, the Plot No.S/87‑A was not, according to the defendants' record, part of the road, it is not possible to accept the defendants' plea that the area was not a plot but a part of the road. ISSUE N0.4: By the letter dated the 8th January, 1987 (Exh.5/3), the defendants called upon the plaintiff to show cause why the provisional allotment of the plot may not be cancelled. The reason for writing the letter obviously was that, according to the defendants, the plot was not a plot but a road. Since I have held that there is no evidence to hold that the area in question was a road and not a plot, the question which arises is whether because the reason for writing the letter has not been established, the letter becomes illegal or ultra vires. Mr. Samad Khan, the learned counsel for the defendants, submits that by virtue of the provisions of sections 67 and 68 of the Easements Act, the defendants were entitled to cancel the licence at any time; and has relied on the case of Dominion of India v. Sohan Lal AIR 1950 East Punjab 40 where it was held that even where the licence is revocable the licensee is entitled to a reasonable notice before the licence is revoked and that if the licence is revoked without reasonable notice, the remedy of the licensee is by way of damages and not by w4y of an injunction. It is not the case of the plaintiff that the licence could not be revoked and since all that the defendants did by the letter dated the 8th January, 1987, was to call upon the plaintiff to show cause why the provisional allotment in respect of the plot may not be cancelled, the letter is not illegal or ultra vires. ISSUE N0.5: In view of my finding that the defendants had not granted any lease to the plaintiff and that only a licence was granted by the agreement (Exh.5/1) and in view of the fact that the plaintiff's case is based on the s allegation that a lease for 99 years was executed in his favour has not been established, the plaintiff is obviously not entitled to the relief of the declaration that he is a lessee of the plot it) question. Consequently, the plaintiff is also not entitled to injunction to restrain the defendants from cancelling the alleged lease. The plaintiff is, therefore, not entitled to the reliefs claimed in the suit and the suit is, consequently, hereby dismissed with costs. H.B.T./M‑1593/K Suit dismissed.