P L D 1960 (W (PLP)

The parties have led evidence in support of their contentions. The plaintiff examined Kazi Nabiullah (Ex. 6), an employee of Burmah Shell & Co., who proved by Exs. 6/1 and 6/2 that Burmah Shell had agreed to install the petrol pump at the request of the plaintiff on the terms and conditions contained in Ex. 6/1; Mr. S. M. Shaikh (Ex. 7), Chief Sanitary Inspector of Karachi Cantonment Board produced resolution of the Karachi Canton ment Board dated 4th October 1956 (Ex. 7/1) to show that the plaintiff's application for permission to erect a petrol pump was rejected for the reasons given in it. The plaintiff also examined Muhammad Naim (Ex. 8), plaintiff's son, to prove that in com pliance with the terms of the lease deed she had deposited all the dues claimed by the defendants, that she had always been ready and willing to perform her part of the contract, that Burmah Shell & Co. had agreed to allot a petrol pump for installation on the plot in question and that the breach was committed by the defendants. This witness also proved that the plaintiff incurred an expense of Rs. 915 for purchasing stamp paper for preparation of lease deed and also incurred expenses of Rs. 177‑4‑0 towards the registration of the lease deed. He also proved that the balance of Rs. 107‑12‑0 was paid by her to a lawyer for the preparation of the lease deed. He also proved that the plaintiff incurred an expense of Rs. 400 for the preparation of the plan submitted to the Cantonment Board. This witness also proved that the plaintiff suffered damages in the sum of Rs. 6,000 as loss of profit, which she would have earned if the business of the petrol pump was started by her. He also stated that after the rejection of the plan the plaintiff approached the defendants for the refund of the amount paid by her but they did not pay any heed to it and proved notice Ex. 5/4. In cross‑examination this witness was unable to give the name of the architect who was paid Rs. 400 for the preparation of the plan submitted to the Karachi Cantonment Board for sanction. He admitted that the plaintiff has no receipt for the payment of Rs. 107‑12‑0 to the lawyer for the preparation of the lease. He also admitted in cross‑examination that his mother had not started or invested any amount in the proposed business except the payments made to the defendants. He denied that the Military Estate Officer was prepared to return the money paid to the defendants, and stated that be never offered any amount to the plaintiff towards her claims. The defendants only examined Karamatullah (Ex. 9), the Military Estate Officer at the material time, who deposed that he recorded no objection on the plan and his office was not responsible for the rejection of the plan. He admitted that the amount paid by the plaintiff was not refunded during his tinge. He also stated that he was expecting that no objection will be raised for the construction of the petrol pump as the District Magistrate had given no objection certificate. He also admitted that the plan was rejected because P. W. D. raised objections. Issue No. 1.‑

As far as this issue is concerned, the question for consideration is on what terms and conditions the plot in dispute was leased out to the plaintiff. Exhibit 9/1 is the advertise ment on the basis of which the plot was offered for sale. This document was produced by Mr. Karamatullah, Military Estate Officer, who was examined as a witness on behalf of the defen dants in this case. The notice states " Notice is hereby given that the premium on lease of the site hereunder specified will be offered for sale by auction at the rent and for the period and subject to the conditions hereunder stated (subject to confirmation of the sale by the Government of Pakistan, Ministry of Defence) at the site on the 5th day of January 1956, at 1100 hours. The form of lease to be executed by the purchase and plan of the site may be inspected at the office of the Military Estates Officer, Karachi Circle, (Brunton Lines near Frere Hall Post Office) Karachi, on any working day between 09'00 and 16'00 hours." The particulars of the plot are the same as described in the plaint. It mentions several "Conditions of Tenure", including Clause

2. It is in the following terms: "The lessee shall erect on the site petrol pump of the descrip tion and dimensions as may be approved by the Cantonment Board under the provisions of the Cantonments Act, 1924 within a period of twelve months from the date of execution of the lease, and shall maintain the said pump in good repair, and shall not without the sanction in writing of the Cantonment Board alter or add to the said petrol pump in any way." It is thus obvious that the object for leasing out plot was to erect on the site a petrol pump of the description and dimension to be approved by the Cantonment Board. The lease deed Ex. 6/1 also contains in Clause 5 a similar condition which has already been reproduced in the earlier part of the judgment. Undoubtedly the plot was leased out to the plaintiff for the purposes of erecting a petrol pump in accordance with the plan to be approved in writing by the Cantonment Board under the provisions of the Cantonments Act. It is proved by Ex. 7/1 that the Cantonment Board by its resolution dated 4th October 1956 rejected the application of the plaintiff for the construction of the petrol pump. The relevant portion of the resolution is reproduced below: " The plans of construction of the petrol pump in the Abyssinia Lines are hereby rejected due to the reason that the site is very close to the Abyssinia Lines and the petrol pump if allowed to be built up at this place will come in the way of the purpose diversion of Malir Road as pointed out by the Superintending Engineer in his letter noted on the Agenda side.' A perusal of the resolution shows that the plan was rejected merely on the ground that the site is very close to the Abyssinia Lines and the petrol pump if allowed to be built up at this place will come in the way of the proposed diversion of Malir Road as pointed out by the Superintending Engineer. The plaintiff, through Mr. S. M. Shaikh (Ex. 7), Chief Sanitary Inspector of the Karachi Cantonment Board produced two letters Ex. 7/2 and 7/3 dated 3rd October 1956 and 21st September 1956 respectively from the Assistant Secretary to the Chief Commissioner, Karachi to the Executive Officer, Karachi and the other letter from the Superintending Engineer, Administration Circle to the Secretary to the Chief Commissioner, Karachi to show that the Karachi Cantonment Board rejected the plan for the construction of the petrol pump on the said plot of land on the intervention of the Superintending Engineer and the Chief Commissioner, Karachi. The relevant portion of Ex. 7/3 reads as under: "In continuation of this office No. SE. Adm./VIII/O (9)/6113 dated 15‑9‑56 on the above noted subject I have the honour to enclose herewith a copy of the Executive Engineer, Admn. III's No. 836 Spl., dated 6‑9‑56 which reveals that a piece of land on Malir Road has been allotted by the Cantt. Authorities for Petrol Pump. The pump will come in the way when this portion of the Road is diverted. The consulting Engineer (Roads) has also seen the site and has asked to take up the case officially. It is therefore requested that the Cantt. Authorities may be asked to cancel the allotment in the best interest of Government work." The relevant portion of Ex. 7/2 reads as under: "It has been brought to the notice of this Administration that a portion of land on Malir Road has been allotted for installa tion of a Petrol Pump just in front of Abyssinia Lines. The existing Road is proposed to be directed and this pump comes within the area of the road. I am, therefore, to request that the allotment of land for this pump may please be cancelled immediately so as to avoid unnecessary expenditure on com pensation which may have to be paid to the party by the Government." The letter Ex. 7/3 shows that the Pak P. W. D., of the Government of Pakistan raised an objection to the allotment of the plot in dispute by the Cantonment Authorities for the construction of a petrol pump as it would come in the way when this portion of the road is diverted, and requested the Cantonment Authorities to cancel the allotment in the best interest of Government work. Similarly the letter Ex. 7/2 addressed by the Assistant Secretary to the Chief Commissioner to the Executive Officer, Karachi also shows that the Malir Road is proposed to be diverted and this pump comes within the area of the road. He therefore requested that the allotment for this land may be cancelled immediately to avoid unnecessary expenditure on compensation to be paid by the Government. On close examination of these documents it is abundantly clear that the Karachi Cantonment Board rejected the plan submitted by the plaintiff' as it was objected to by another Department of the defendant. There is not the slightest doubt in my mind that the Karachi Cantonment Board had no choice in the matter and rejected the plan to meet the Government requirements in the public interest. On these facts the question arises whether the defendants committed any breach in respect of the lease granted by them to the plaintiff. Mr. Munawar Abbas, the learned counsel for the plaintiff, invited my attention to section 108 (c) of the Transfer of Property Act in support of his contention that under the ordinary law the lessee is entitled to full enjoyment of the property leased out to her and that as the defendants were themselves responsible for the rejection of the plan, they had violated the provisions of this law and are liable to compensate the plaintiff for the losses suffered by her on account of the breach committed by them. The learned counsel in this connection invited my attention to several authorities including Naorang Singh v. A. J. Meik and another (A I R 1923 Cal. 41), Wazuddin Gazi and another v. Munshi Sayeb Ahamed and another (A I R 1935 Cal. 464 at page 465), Razzaq Ali v. Ram Autar Lal (A I R 1919 Oudh 398 (1)), Gajadhar Ramchandra Jatia and another v. Rambhau Vishwanath Gharpure (A I R 1938 Nag. 439), Indu Bhusan Choudhry and others v. Moazam Ali Biswas and another (A I R 1929 Cal. 272) and Tayawa v. Gushidappa and others (I L R 25 Bom. 269) in support of his contention that where after the lease is executed the covenant for quiet enjoyment is broken by the lessor, the lessee is entitled to sue the lessor for damages of the breach of the contract. The provisions of the Transfer of Property Act however are not applicable to Crown grants, but there is considerable authority for the proposition that its provisions may be referred for construing them. This principle was accepted in Secretary of State v. Pemmaraju Venkayya Garu and another (A I R 1917 Mad. 465) and British India Corporation Ltd., Cawnpore v. Secretary of State (A I R 1945 All. 425). The salutary rule under the common law is that the lessee is entitled to enjoy the properties leased out without interruption and there is an implied covenant that the lesser's title is such that no lawful entry, eviction or interruption will occur. Cf. Barnes & Co. v. Lloyd & Sons ((1895) 2 Q B D 619). In A I R 1923 Cal. 41, repudiation of the lease on the part of the lessor was considered sufficient disturbance. In A I R 1935 Cal. 464, a plot of land was leased out by the lessor to the lessee for paddy cultivation. Later on the landlord leased out the adjoining plot to other parties for purpose of fisheries, who in undated the other tenants' land with salt water for rearing fishes. This resulted in injury to the first tenants inasmuch as the paddy land had been converted into Jalkar and the possibility of growing the crops, which was the object of the tenancy, was destroyed by the action of the lessor. It was held: "that the landlord is bound by an implied obligation to indemnify the tenant against disturbances by his own act or by the acts of those who claim under him." The question is whether in this case there was any such disturbance or interruption on the part of the lessee which entitles the plaintiff to claim damages from the defendants. After careful considera tion of the matter, I am satisfied that the defendants by their own action frustrated the object of the lease which was granted by them to the plaintiff. The defendants gave the plot in dispute to the plaintiff for the purpose of installing a petrol pump. They only asked the plaintiff to obtain the sanction of the Cantonment Board for the construction of the building in accordance with their rules and bye‑laws. It is admitted before me that the plaintiff did not in any way infringe the bye‑laws of the Karachi Cantonment Board for the construction of the building but the plan submitted by her was rejected purely on the ground that the proposed site was likely to be used for the diversion of the Malir Road by the Pak P. W. D. Thus the quiet enjoyment of the plot of land leased out the plaintiff was disturbed by the action of the defendants themselves. It was urged by Mr. Ghiasuddin, the learned counsel for the defendants that the Karachi Canton ment Board had nothing to do with the defendant‑Government and they acted in accordance with the statutory authority vested in them under section 181 (2) of the Karachi Cantonment Board. The learned counsel, however, lost sight of the fact that the Karachi Cantonment Board in this case did not act on their own. The objection to the construction of the petrol pump came from the Pak P. W. D. They first moved the Chief Com missioner of Karachi who in turn informed the Karachi Cantonment Board that if the allotment in favour of the plaintiff is continued the Government will have to pay compensation at the time of taking over the site for the purposes of diverting the Malir Road. Pak P. W. D. is also a department of the Central Government. Any steps on their part to frustrate the object of the lease in favour of the defendants is an action of the defendant‑Government. In my opinion no distinction can be made between the action of one department of the Government with the action of another department of the Government. The defendant‑Government will be responsible for the action of their officers, whether it be in the Defence Ministry or Pak P. W. D. The evidence in this case leads me to the definite conclusion that the plan of the proposed petrol pump was rejected by the Cantonment Board at the instance of the responsible officers of the defendant‑Government. On this evidence I have no hesitation in holding that the defendants themselves were responsi ble for disturbance of the quiet enjoyment and frustrated the object of the lease. In law they are liable to compensate the plaintiff for the losses suffered by her and to refund the amount paid by her towards these amounts. Issue No. 2.

‑I have already, while narrating the facts of the case, noted that so far as the claim of the plaintiff for the refund of the amount paid by her is concerned, she was granted a decree on 10th March 1958 by Lari, J. There is thus no dispute left so far as this is concerned. The question remains as to what extent the defendant Government is liable to pay damages to the plaintiff. It is proved by Muhammad Naim (Exh 8) son of the plaintiff that his mother incurred expenses of Rs. 915 for the purpose of stamp paper Rs. 177‑4‑0 for the registration of the lease deed and Rs. 107‑12‑0 for the preparation of the lease deed. She also paid a sum of Rs. 10 on 19th June 1956 vide Exh. 5/3 towards demarcation fee. This witness also proved that the plaintiff paid a sum :of Rs. 400 for the preparation of the plan submitted to the Karachi Cantonment Board. The claim is not unreasonable. Although the plaintiff's son has not been able to give the name of the Architect and produce the receipt of the lawyer concerned but the claim is so moderate and consistent to the charges made at Karachi that I must accept it as correct. The plaintiff has satisfactorily proved that she incurred an expense of Rs. 1,200 for the preparation of the lease and the plan and the defendants in this respect must reimburse her. In addition to this the plaintiff has claimed Rs. 6,000 towards damages for the loss of profit on account of the breach committed by the defendants. But it was admitted by the plaintiff's son in cross‑examination that his mother had not started or invested any amount in the proposed business except the payments made by her to the defendants. It is however proved beyond doubt that the amount of Rs. 30,169‑2‑0 remained blocked with the defendants for a considerable time. Out of it a sum of Rs., 3,010 remained blocked with them from January 1956 to March 1956. The remaining sum of Rs. 27,169‑2‑0 remained blocked with them from 19th June 1956 to 28th March 1959. The plaintiff, on account of the breach committed by the defendants, was deprived to profitably make use of the above mentioned amounts. In these circumstances the learned counsel for the plaintiff is perfectly justified in his contention that had this money remained with the plaintiff, she would have at least earned interest at 6% per annum. The plaintiff's demand for interest at 6% as compensation for the period the said amount remained blocked with the defendants is reasonable. According to the parties the interest at 6% during the above‑mentioned period on the first item comes to Rs. 579 and on the second item comes to Rs. 4,481‑6‑

0. Both in equity and law the plaintiff is entitled to claim 9: sum of Rs. 5,060‑12‑0 on this account from the defendants. As a result of the above finding I grant the plaintiff a decree for Rs. 6,660‑12‑

0. This amount will carry interest at 6% per annum from the institution of the suit till its realization. The defendants will also bear proportionate costs. The defendants will pay the decretal amount within two months. K.M.A. Suit decreed.