1999SCMR1163 (PLP)

CH. MUHAMMAD ARIF, J.

Petitioners resorted to the Constitutional Jurisdiction of the Lahore High Court, Lahore, under Article 199 read with Articles 4(1) and 18 of the Constitution to lay challenge to (a) the construction of a 1600 meter long Fly Over/Bridge and (b) the construction of a 50 feet wide, 30 feet high and 320 feet long wall in the middle of the road running through the Cavalry Ground Commercial Area Lahore Cantonment by the respondent-Government in collaboration with the respondent-Lahore Development Authority, .L.D.A. for short, contrary to their rights in shops constructed by them on the areas/lands purchased from the respondent- Cantonment Board, Lahore under 90 years leases for Commercial purposes. The prayer clause in their Constitution Petition bearing Writ Petition No.6576 of 1998, reads as under:-- "It is, therefore, respectfully prayed that this learned Court be pleased to declare that the construction of a Fly Over/Bridge by the respondents 1 and 2 with the help of respondent No.3 within the Cantonment area and putting up of a wall 50 feet wide 30 feet high and 320 feet in length, is without lawful authority and of no legal effect."

2. Another Constitution Petition, bearing Writ Petition No.6080 Awl, was also brought by certain other individuals and both the petitions were heard together in the High Courts. A learned Single Judge of the High Court was of the view, inter alia, that the project in hand having been actuated by 'a public purpose, the same cannot be thwarted by invoking the principle of promissory estoppel. As the principal Law Officer of the Province had stated before him that acquisition of land/property has not even commenced as yet but, if started, it will be processed strictly in accordance with law".. and that the question o` adequate compensation would be decided by the competent Authority within a month of initial notification of acquisition. In view of the categorical statement by the learned Advocate-General, no further comment is called for with regard to this aspect of the matter. "

3. Only the petitioners challenged the judgment, dated 30-4-1998 in Writ Petition No.6376 of 1998, under section 3 of the Law Reform Ordinance, 1972. Their Intra-Court Appeal was dismissed by a learned Division Bench of the High Court on 3-6-1998, in the following terms:-- "

13. As a result of the foregoing discussion, we have reached the conclusion that the rights of the appellants flowing from the deed of lease, dated 15-7-1986 and Map Mark 'A' are easement rights dependent upon the user of servient rights of the Cantonment Board. Neither these rights are permanent nor continuous and so this cannot be construed as perpetual burden upon the servient rights of Cantonment Board. We also hold that the appellant did not enjoy their rights exclusively. "

14. In view of the above, we therefore, are of the view that the Cantonment Board has power to reduce/decrease the aforesaid rights. Add to it, we hold that the Cantonment Board and the Government of Punjab had the authority to construct the Flyover in exercise of their Police-powers. Question No. l so stands disposed of in above terms. The precedents cited by the learned counsel for the parties proceeded on dissimilar facts and are hardly applicable to the facts of the case in hand.

15. Having disposed of first question and having concluded that the appellants are owners of easement rights in parking strip and frontage of road which belongs to Cantonment Board and that these rights are neither continuous nor perennial in nature and their extent depends upon the use of servient tenements, we find little merit in these two questions. Suffice it to say, that the Provincial Government is constructing Flyover Bridge with the concurrence of Cantonment Board; that the Executive Officer of the Cantonment Board before the learned Single Judge appeared and stated categorically to that effect. We find that the appellants have no right whatsoever to raise this question. Section 45 ibid pertains to procedure and no exception can be taken by any person other than the Board itself. Similarly, the rule of promissory estoppel is inapplicable to the facts of the case in hand. His Lordship Mr. Justice Ajmal Mian, (Now Chief Justice of Pakistan) in Army Welfare Sugar Mills Ltd. v. Federation of Pakistan (1992 SCMR 1652) on the question of promissory estoppel observed as follows:

(i) the doctrine of promissory estoppel cannot be invoked against the Legislature or the laws framed by it because the Legislature cannot make a representation; (ii) Promissory estoppel cannot be invoked for directing the doing of the thing which was against the law when the representation was made or the promise held out; (iii) no agency of Authority can be held bound by a promise or representation not lawfully extended or given; (iv) the Doctrine of Promissory Estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking, it, and (v) the party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by enforcement of the promise.' Also see M/s Gadoon Textile Mills and others v. WAPDA and Federation of Pakistan (1997 SCMR 641).

16. Seen from this angle it is quite clear that the appellants who are the owners of lease hold rights in plots in their possession, have no right to curtail servient rights of the Cantonment Board or Punjab Government and furthermore cannot cause perpetual inconvenience to user of the Road who are public-at-large. This being the position we are of considered view that the Provincial Government is empowered to construct the Flyover/Bridge with the concurrence of the Cantonment Board, in the area belonging to the latter, and the principles of promissory estoppel are not applicable to the present case.

17. For the reasons stated above, we- do not find any merit in this I.C.A. and is accordingly dismissed/affirming the decision of the learned Single Judge although on a different pedestal, with no order as to costs. While parting with this judgment, we would like to make it clear that this order will not preclude the appellants from availing of any other remedy and or to claim compensation if awardable under the law for the curtailment of their easement rights in the parking strip. If the appellants initiated any such action, the concerned competent forum will determine the same strictly in accordance with law and not otherwise'."

4. It appears that the case of the petitioners -in relation to their, alleged rights in the parking strip, which admittedly belongs to the Cantonment Board, was resolved by learned Single Judge as also the learned Division Bench of the High Court, .gas liable to be decreased/curtailed with a view to catering to the traffic-needs of ".. more than half million residents of Lahore" and that the Flyover was designed in such a way as not to extinguish their rights completely. Similarly, petitioners' plea that there was any illegality attached to even dealing with their property rights by the L.D.A. either singly or even in collaboration with the Cantonment Board, was not in order in that the matter in relation to easement rights stands regulated by section 28 read with section 37 of the Easement Act, 1882 and-the rules of easement embodied in the said Statute. Thus, visualized petitioner's rights flowing from the deed of lease, dated 15-7-1986 and Map Mark 'A' were dependent upon the user of servient rights of the Cantonment Board in that they are neither permanent nor continuous. The above finding by the learned Division Bench of the High Court, in petitioner's I.C.A. No.369 of 1998, also takes good care of their plea that the treatment meted out to them was violative of the principles of promissory estoppel and that the conclusion of the cause (in High Court) will not tantamount to deterring the petitioner from availing of any other remedy and/car to claim compensation under the law for the curtailment of the easement rights in the parking strip.

5. Mr. A.K. Dogar, learned Advocate Supreme Court appearing in support of this petition, has relied upon Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223) to contend that the case reported as Karachi Building Control Authority and another v. Saleem Akhtar Rajput and 2 others (1993 SCMR 1451) is distinguishable and that his client could maintain the Constitution Petition in the High Court. The precise plea was that the ratio in the later precedent is not relevant in that the action, subject matter of dispute therein, was being taken under the Karachi Building and Town Planning Regulation, 1979 but, in their case, neither any law in that behalf was pressed into service by the respondents before the High Court nor such law, even if in existence, would ensure to the benefit of the respondents as it will be repugnant to the Cantonments Act, 1924. The endeavour of the learned counsel was to make out a case for his clients under section 116(h) of the Cantonments Act, 1924, as, according to him, it is the duty of the Cantonment Board to construct projects and alter the streets within the areas similarly located as the shops of the petitioners, which duty could not be surrendered by the Cantonment Board in favour of any authority except as provided under section 3(4) of the Cantonments Act, 1924. Further, that the Constitution Petition on behalf of the petitioners was maintainable in the High Court as it is not a right in the strict juristic sense of then term which can be pressed into service for maintaining such Constitution Petitions but, as held in Fazal Din (supra), a personal interest in performance of a legal duty which had not been performed in manner required by law, is discernible in the case of the petitioners for maintaining a Constitution Petition in the High Court.

6. We are afraid the contentions raised by the learned counsel in support of this petition are devoid of any merit. The case of the petitioners was meticulously considered by the High Court at both the stages and it was rightly concluded that their right of easement in the parking strip is not of such a nature which does not admit of interference/regulation for achieving the objective of catering to the traffic-need of 50 million residents of Lahore. It is not the case of the petitioners that the appropriate authorities have completely extinguished their easement rights or that the same have been acquired contrary to the dictates of the law on the subject. Be that as it may, the observations made by the learned Single Judge in para. 17 of the judgment, dated 30-4-1998 quoted above, have not even so much as been controverted on behalf of the petitioners. Even the learned Division Bench of the High Court has favourably considered any future claim of the petitioners for compensation on account of the curtailment of petitioners' easement rights in the parking-strip and such observations have not been shown to be suffering from any taint whatsoever.

7. As regards the plea that the Constitution Petition before the High Court was maintainable at the instance of the petitioners and decisions to be contrary by the learned Single Judge as also by the learned Division Bench, are contrary to the ratio in the case of Fazal Din (supra), suffice it to say that in presenti no cause of action has accrued in favour of the petitioner even to take the matter before the Civil Courts of plenary jurisdiction, much less before the High Court. The observations made by the learned Division Bench of the High Court in the last sub-para. of the judgment, dated 3rd June, 1998 cannot be equated with conceding the requisite locus in the petitioners to maintain a Constitution Petition. In fact, petitioner's I.C.A. was dismissed and the decision of the learned Single Judge was affirmed with the observation that they are not precluded from availing of any other remedy and/or to claim compensation "... if awardable under the law for the curtailment of their easement rights in the parking strip." It is up to the petitioners to initiate whatever proceedings they want to before the appropriate forum/s in line with the above observations.

8. Not finding any force in this petition, the same is dismissed and leave isle refused H.B.T./M-217/S Petition dismissed