P L D 1956 Lahore 4 (PLP)

SHABIR AHMAD, J.‑By this appeal under clause 10 of the Letters Patent of this Court, Ghulam Hussain seeks the reversal of a judgment of a learned single judge of this Court who has ‑declared the case a fit one for appeal. The material facts are these:‑ Ghulam Hussain appellant, who was and is perhaps even now a member of the Municipal Committee, Sialkot, applied to that Committee for permission to erect a house. This permission was granted on the 22nd of July 1947, but it lapsed because the erection of the building was not taken in hand within the period prescribed by the Punjab Municipal Act 1911 during which a sanction to build remains in force. He applied again for sanction to build on that very plot and on the 11th of February 1949 his application was granted, but on the 30th of May 1949 that sanction was cancelled. It appears that when intimation about the cancellation of the sanction was served on the appellant, he had not started the building operations. He ignored the revocation of the sanction and, on a date subse quent to that on which notice of revocation was served on him, started construction of the house whereupon a notice was served on him on the 15th of December 1949 under section 195 of the Punjab Municipal Act 1911, calling upon him to demolish the structure built by him after the 30th of May 1949. On the 20th December 1949, the appellant brought a suit for a perma nent injunction to restrain the Committee from interfering with his building the house in accordance with the plan sanctioned on the 11th of February 1949. The Committee pleaded, inter alia, that the plaintiff was not the owner of the plot on which he wanted to build. It was added that the plot was a street or a public street without it being specified whether it was the former or the latter. It was further pleaded that as the sanction to build was given in disregard of the real facts, the revocation was perfectly legal. On the pleadings of the parties, the trial Court framed the following issues :‑ (1) Whether the site in dispute shown in the plan by the letters A, B, C, D, E, F, G, belongs to the plaintiff? (2) Whether the site in dispute was a street? (3) Whether the sanctions for building over the site in dispute, which were given on 22nd June 1947 and 11th Feb ruary 1949, were given with disregard to the real facts and if so what is its effect? (4) Whether the resolution of the defendant Committee dated 30th May 1949 with regard to the cancellation of the sanction to build over the property in dispute was illegal and void? (5) Whether the notice dated 15th December 1949 under section 195 of the Municipal Act was illegal and void? Deciding the first, fourth and fifth issues in favour of the plaintiff, and the second and the third against the defendant, the trial Court decreed the suit. The Committee appealed to the Senior Civil Judge, Sialkot, who reversing the decision of the trial Court on all the issues dismissed the plaintiff's suit. Against the decision of the learned Senior Civil Judge the appellant came up to this Court in second appeal which was decided against him on the finding that because section 19 of the Punjab General Clauses Act authorised an authority empowered by a Punjab Act to issue notifications, orders, rules or bye‑laws to add to, amend, or rescind any notifications, orders, rules or bye‑laws issued by it, the order of cancellation of the sanction passed on the 30th of May 1949 was perfectly valid in law and the dismissal of the appellant's suit was justi fied. It is this decision of the learned single judge that the appellant seeks to have reversed. The learned counsel for the appellant urged that as there is no power conferred by the Punjab Municipal, Act 1911 to cancel a. sanction once granted and the scheme of the Punjab Municipal Act indicated that a sanction once granted should remain in force unless modified' under section 193‑A of the Punjab Municipal Act, section 19 of the Punjab General Clauses Act could not be invoked for the purposes of canceling a sanction which has once been granted by the competent authority. He tried to amplify his contention by pointing out that if a building were constructed when sanction was to be deemed to have been granted as the Municipal Committee passed no order on the application for a period of six months, there could be no revocation, and as that result was inconsistent with the result achieved by giving the autho rity granting the sanction power to revoke, it should be held that section 19 of the Punjab General Clauses Act notwith standing, once a sanction was granted, the Punjab General Clauses Act could not be invoked. He also contended that the term "order" in section 19 of the Punjab General Clauses Act must have been intended to apply to statutory orders and not to orders in individual cases as a sanction to build would be. It is not necessary to adjudicate on these contentions of the learned counsel for the appellant because, as will be indi cated presently, section 19 of the Punjab General Clauses Act was not applicable to the facts of the case. The question to consider is if the sanction was revoked by the authority which had granted it because if it was not so I have no doubt in my mind that the revocation would not fall within section 19 of the Punjab General Clauses Act. The learned counsel for the appellant, raised this point before the learned single Judge who, being of the view that the point involved a question of fact as to whether the sanction which was given by the Executive Officer was revoked by the Committee alone or by the Executive Officer also, did not allow the point to be argued. It appears that the counsel for the parties had not noticed that on the record there was an admission by the respondent that the sanction which was granted by the Executive Officer was revoked by the Com mittee and that the Executive Officer neither did, nor pur ported to, revoke the sanction. In paragraph 3 of the written statement, the defendant had said that the Executive Officer was not in possession of the full facts when he granted the plaintiff permission to build on the plot and that when the real facts were brought to the notice of the Municipal Committee, it revoked the sanction as it was competent to do. There can be no doubt, therefore, that the sanction which was granted by the Executive Officer on the 11th of February.1949 was revoked by the Municipal Committee on the 30th of May 1949. If the admission of the respondent in the written statement had been brought to the notice of the learned single judge, it is by no means unlikely that his decision with regard to section 19 of the Punjab General Clauses Act being applicable would not have gone in favour of the Committee. As worded section 19 of the Punjab General Clauses Act empowers only the authority which issues a notification, order etc. to revoke it and I would, therefore, hold that as the sanction to build granted to the, appellant was revoked by an authority other than the one which had granted it, the revocation was not covered by section 19 of the Punjab General Clauses Act. Finding himself faced with the difficulty that the ground on which the learned single judge had based his decision was not sustainable, the learned counsel for the respondent argued that though no doubt the Committee ‑had revoked the sanction for construction which had been granted by the Executive Officer, that Officer had himself concurred in that revocation. There is nothing on the record in support of this contention and the only thing on which the learned counsel for the respondent relied was the intimation sent to the appellant. This document was not placed on the record but as the Muni cipal file was with the learned counsel for the respondent, it was available to the Court. The intimation is contained in a letter of the Executive Officer, No. 270/268, dated the 30th of May1949, to the address of the appellant, a translation of which is as follows:‑ "With reference to resolution No. 94, dated the 16th of May 1949, passed at the general meeting of the Committee, you are hereby informed that the sanction granted to you by the Executive Officer of the Municipal Committee, Sialkot, in his letter No. 270/16th July 1947, dated 11th of February 1949, was against law and has therefore been revoked by the Municipal Committee. You should consider your applica tion for building the house as rejected and should not make any construction because a part of the plot on which you intend to build is a street of the Committee. If you make any construction, you will do so at your own risk. (Sd.) A. LATIF, Executive Officer, Municipal Committee, Sialkot." There is nothing in this letter which might even remotely suggest that the Executive Officer did anything about the revo cation beyond sending intimation about it to the appellant. The wording of the letter makes it absolutely clear that the revocation resulted from resolution No. 94 passed by the general meeting of the Municipal Committee. I have no doubt that the Executive Officer did not even adopt the order of revocation passed by the Municipal Committee and wrote the letter merely to inform the appellant of the action taken by the Municipal Committee with regard to his application for permission to erect a building. It was nest argued by the learned counsel for the respon dent that the revocation by the Municipal Committee could not be deemed to be invalid because the permission for erection of the, building was itself invalid and no order of revocation either by the Executive Officer or by the Municipal Committee was necessary. In this connection his reliance was on sec tion 189 of the Punjab Municipal Act the relevant part of which as applicable to Committee which have Executive Officer reads as follows:‑ 189. (1) No person shall erect or re‑erect or commence to erect or re‑erect any building without the sanction of the Executive Officer. Provided that the Executive Officer shall not, without the approval of the Committee, sanction the erection or re -erection of any building which involves any projection or encroachment over or upon any land vested in the Committee or any land, the property of Government, which has been transferred to the Committee for management Provided further that if the Executive Officer refuses to sanction the erection or re‑erection by any person of any building except on the ground that such erection or re‑erec tion would be in contravention of any bye‑law or of any general scheme sanctioned by the Commissioner restricting the erection or re‑erection of buildings or any class of buildings, such person may, within fifteen days from the date of the service of the Executive Officer's order refusing to sanction such erection or re‑erection, appeal to the Com mittee, and the Committee's decision shall, subject to the provisions of sections 225, 232 and 236, be final. The argument was that the plot on which the appellant wanted to build was land, which vested in the Committee and, there fore, the sanction given by the Executive Officer was, because of the first proviso to subsection (1) to section 189 of the Punjab Municipal Act, void and inoperative. Lands that vest in the Committee have been detailed in section 56 of the Punjab Municipal Act and it was clause (g) of subsection (1) of that section on which the learned counsel for the respondent based his claim. This clause says that all public streets not being land owned by Government, and the pavements, stones and other materials thereof, and also trees growing on and erections, materials, implements and things provided for, on such streets, shall, subject to any special reservation made or to any special conditions imposed by the Provincial Govern ment, vest in the Municipal Committee. Reliance was placed on the finding of the learned Senior Subordinate judge on issue No. 2 as also on the remarks of the learned single judge that though the word " public " was not used in the finding in connection with the street, the intention of the learned Senior Subordinate judge was to hold that the place was a public street. The distinction between a street and a public street has been brought out in subsection (13) of section 3 of the Punjab Municipal Act which reads as follows:‑ 13. (a) " Street" shall mean any road, footway, square, Court, alley or passage, accessible whether permanently or temporarily, to the public, whether a thoroughfare or not ; and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post, chain or other barrier, if houses, shops or other buildings abut thereon, end if it is used by any persons as a means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not, but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid and shall include also the drains and gutters therein or on either side and the land, whether covered or not by any pavement, verandah, or other erection, up to the boundary of any abutting property not accessible to the public ; (b) " Public street " shall mean any street:‑ (i) heretofore levelled, paved, metalled, channelled, sewered or repaired out of municipal or other public funds, unless before such work was carried out there was an agreement with the proprietor that the street should not thereby become a public street, or unless such work was done without the implied or express consent of the pro prietors ; or (ii) which, under the provisions of section 171, is declared by the Committee to be, or under any other provision of this Act becomes, a public street. It cannot be held that the Senior Subordinate judge had found as a fact that the plot of land on which the appellant intended to build was a public street, as neither issue No. 2 which related to this matter nor the finding of the learned Senior Subordinate judge said that the point for consideration was whether the plot was a public street. I have mentioned already that in their written statement the Municipal Committee claimed that the plot on which the appellant wanted to build had the status of a public street or a street and if the Committee thought that the written statement meant that the plot was a public street, there was nothing to prevent them from applying to the learned trial judge to amend issue No:

2. This they never did and proceeded to lead their evidence on the issue as it stood. It is hardly open to the learned counsel for the respondent to rely on the remarks of the learned single judge with regard to this matter because the learned judge had in very clear terms said in his judgment that he was deciding the case in favour of the respondent because section 19 of the Punjab General Clauses Act made the revocation under consideration perfectly legal and operative. The learned counsel for the respondent wanted opportunity to prove that the place was a public street, but it would be giving the Committee undue advantage over the appellant to allow them at this stage of the case to shift their position and lead evidence on a point which they could have easily made the subject of an issue. But if it were assumed that the learned Senior Subordinate Judge intended to find that the plot on which the appellant wanted to build was a public street, the finding' was obviously not justified by the evidence produced by the Municipal Committee. The defini tion of public street given in subsection (13) of section 3 of the Punjab Municipal Act, would make a plot a public street only if the Committee had, before the passing of the Punjab Municipal Act, 1911, levelled, paved, metalled, channelled, sewered or repaired it from municipal or other public funds or which had under section 171 of the Act been declared by the committee to be a public street or which had by or under any other provision of the Act become a public street. Learned counsel for the respondent could point to no provision of the Municipal Act, which could give the plot in question the status of a public street, nor could he bring the case within the provisions of section 171 of the Punjab Municipal Act, which requires, inter alia, that if a Municipal Committee considers that in any street other than a public Street, or in any part of such street within the Municipality, it is necessary for the public health, convenience or safety, that any work should be done for the levelling, paving, metalling, flagging, channelling, draining, lighting, or cleaning c thereof, the Municipal Committee may by written notice require the owner or owners of such street or part thereof, to carry out such work in a manner and within a time to be specified in such notice and should the owner refuse or should he fail to carry out the work within the time specified, the Committee may, by written notice, require the owners of the land or buildings fronting, adjoining or abutting upon such street or part thereof to carry out the work in such manner and within such time as may be specified in the notice. The section further provides that if the Committee wants to declare a street or a part thereof to be a public street, it shall give intimation of their intention by putting up a notice in the street and unless within one month next after such notice has been so put up, the owner or any one of several owners of such street or such part of street lodge objection thereto at the Municipal Office, the Municipal Committee may declare it to be a public street vested in the Committee. There is no evidence nor is it contended by the learned counsel for the respondent that the procedure contemplated by section 171 of the Punjab Municipal Act, was adopted but he maintained that the evidence on the record showed that the Municipal Committee had spent some money for the purposes of levelling etc. of the plot on which the appellant wanted to build, and contended that that fact would make the street a public street. The definition of a " public street " which has been reproduced above makes it clear that the levelling, paving, metalling, channelling, sewering or repairing of a street out of Municipal or any other fund would make it a public street only if it had been done before the coming into force of the Punjab Municipal Act, 1911, and these things done subsequently, would not matter unless the provisions of section 171 of the Punjab Municipal Act had been complied with. The evidence on the record shows that fourteen or fifteen years ago the Municipal Committee had spent some money on the plot of land in question and even if that evidence were accepted, the case would not be covered by clause (b) of subsection (13) of section 3 of the Punjab Municipal Act. I would, therefore, hold that it had not been established that the plot on which the appellant wanted to build was a public street. The plot in question not being a public street the sanction given, by the Executive Officer under section 189 of the Punjab Municipal Act, could not be considered to be invalid under first proviso to subsection (1) of that section. The learned counsel for the respondent contended that under the Municipal Act, the Committee had the power to cancel the sanction given by the Executive Officer and tried to support this argument by reference to the second proviso to subsection (1) of section 189 of the Act. The second proviso provides for an appeal to the Committee only in cases in which sanction has been refused by the Executive Officer and does not give power to the Committee to sit in judgment over the orders of the Executive Officer granting the sanction. It was then contended by the learned counsel for the respondent that section 193 of the Punjab Municipal Act gave concurrent powers to the Committee and the Executive Officer to refuse sanction to erection or re‑erection of a building and, therefore, the resolution of the Committee passed on the 30th' of May 1949 was not invalid. This argument is based on a mis reading of the section relied upon. No doubt the first subsection of section 193 of the Punjab Municipal Act states that the Committee or the Executive Officer shall in certain cases refuse an application for erection or re‑erection of a building and the second states that in certain cases the Committee or the Executive Officer may refuse sanction to erect or re‑erect a building, but the power of the two authorities is not thereby made concurrent. The section provides for cases in which the power of sanction vests in the Committee or the Executive Officer as the case may be. The words " or Executive Officer" were inserted in the section by the Punjab Municipal (Executive Officers) Act II of 1931, which introduced changes in a number of other sections of the Act, in order to bring the section in conformity with the other sections of the Act which had been amended by the Act of 1931. There is nothing in the language of section 193 of the Punjab Municipal Act to justify the conclusion that the Committee and the Executive Officer had concurrent powers to refuse sanction. In view of what has been said above, I would accept the appeal, reverse the decision of the learned single Judge and decree the plaintiff's suit with costs throughout. M. R. KAYANI, J. I agree. A. H. Appeal accepted.