1989 PLP 1056 (CLC)

"ALLOTMENT OF OPEN SPACE AT COMMERCIAL COMPLEX SAFINA MARKET NORE‑I. Reference:‑Your application dated 29‑10‑1980. With effect from Ist July, 1982 open space measuring 50 yards x 20 yards (150' x 60') at Safina Market adjacent to shop No.22 is allotted to you for running service station/garage thereon. The said allotment is however made on temporary basis. You would, therefore, be liable to vacate the premises on one month's notice in advance from this office for which you will, not be entitled for any claim or compensation whatsoever." The plaintiff claims to have invested substantial amount of money on the said plot in putting up a service station/garage. In March, 1987 he approached the defendant to procure his approval for the construction of an Auto Workshop ‑and was given permission for construction of ground floor. Thereafter some differences arose between the plaintiff and the defendant and therefore the defendant vide his letter dated 21‑1‑1988 called upon the plaintiff to vacate the plot. Hence the necessity arose for filing this suit. C.M.A. No. 1981/88 is an application under Order XXXIX Rules 1 and 2, C.P.C. for restraining the defendant from interfering with plaintiffs possession of the open space which is subject‑matter of this suit. C.M.A. No.2996/88 is an, application under Section 151 C.P.C. while C . M . A . No.2697 is an application under Order VII, Rule 11 C.P. C. By both these applications the dismissal of suit and rejection of the plaint respectively are sought on the grounds mentioned therein. C . M . A . No.6128/88 is an application under Section 151 C .P. C . whereby it is prayed that the plaintiff be allowed to deposit the rent in respect of the open space in this Court. First. of all I propose to take up C . M . A No.2696/88 and C . M.A. No.2697/88 as the fate of the remaining two CMAs will be determined by the decision of these two CMAs. Several objections were raised by the defendant's counsel Mr. Umar Qureshi against the maintainability of this suit but those which were pressed vigorously were, (1) that this suit was barred under Section 10 of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 and (2) that the suit was barred under Section 42 of the Specific Relief Act. So far as the first objection is concerned reference may be made to Section 3 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 whereby such a licensee could be evicted from such land or building on determination of the licence aster service of notice. It will be useful to reproduce section 3.of the Ordinance as well:‑ "

3. If, on the expiry, whether before or after the commencement of this Ordinance, of the period of any lease or licence in respect of any land or building of which the Central Government is the lessor or licensor or on the determination of such lease or licence on the ground of breach of any covenant imposing an obligation on the lessee or licensee to give possession of the demised land or building required for any public purpose, the lessee or licensee refused or failed or refuses or fails, to vacate that land or building and put the Central Government into possession of the same, any officer authorised by the Central Government in this behalf may, notwithstanding any thing contained in any other law for the time being in force or in any contract, at any time, enter upon the demised land or building and recover, vacant possession of that land or building by evicting the lessee or licensee and may also demolish and remove the structures, if any, erected or build thereon by the lessee or licensee: Provided that such officer shall, before demolishing and removing any structures under this section, issue a notice to the lessee or licensee calling upon him to remove such structures within the period specified in the notice." Whenever such eviction was going to be effected the jurisdiction of Civil Courf to pass any order or grant any injunction restraining the same was barred under Section 10 of the said Ordinance. Section 10 may also be reproduced as follows:‑ "

10. No Civil Court shall pass an order in any suit or proceeding granting a temporary or interim injunction restraining the Central Government. or any officer authorized by it from taking possession of any land or building under this Ordinance." Letter dated 21‑2‑1988 which is Annexure 'B' to the plaint determined the license and was also a notice as required by section 3 of the Ordinance. Hence after the service of this notice which the plaintiff has himself admitted in para 15 of his plaint, the defendant was entitled to forcibly evict the plaintiff from the land in suit and no civil Court could pass any order or grant any injunction restraining the same in view of Section 10 of the said Ordinance already reproduced above. The reply of Mr. Bilal. Khawaja to this objection was that letter dated 21‑1‑1988 was only a notice determining the license and did not fulfill the requirements of a notice required by Section 3 of the Central Government Lands and Building (Recovery of Possession) Ordinance, 1965. According to him it was only after one month had expired to the service of letter dated 21‑2‑1988 that the plaintiff would have become a licensee whose licence had been determined. It was incumbent upon the defendant to have thereafter served another notice as provided under Section 3 of Central Government Lands Building (Recovery of Possession) Ordinance 1985 specifying a period during which the plaintiff had to vacate the premises. It was only after the expiry of such period that the plaintiff could have been evicted under the above Ordinance and not before that. Hence,, according to the plaintiff two notices one under the licence agreement and the other under Section 3 of the above Ordinance were necessary before the plaintiff could have been evicted under Section 3‑ of the above Ordinance while according to defendant's counsel only one notice was sufficient before the plaintiff could have been evicted under section 3 of the above Ordinance. I do not, find any substance in the contention of plaintiff's counsel that two separate notices one under the agreement and the other under section 3 of the Ordinance separately were necessary. A bare perusal of Section 3 of Central Government Lands and Buildings (Recovery of Possession) Ordinance 1965 makes it quite clear that any officer authorised by the Central Government (a) may enter upon the demised land or building and recover, vacant, possession of that land or building by evicting the licensee . and (b) may also demolish and remove the structures if any, erected or built thereon by the licensee if (1) on the expiry of the period of licence or (2) on the determination of such licence on the ground of breach of any covenant imposing an obligation on the licensee to give up possession of the demised land or building required for any public purpose, the licensee refuses or fails to vacate that land or building and put the Central Government into possession of the same. The only proviso under this section is that such officer before demolishing and removing any structures under this section should issue a notice to the licensee calling upon him to remove such structures within the period specified in the notice. Nowhere under section 3 of Central Government Lands an Buildings (Recovery of Possession) Ordinance 1965 it is provided that a notice is necessary before entering upon a demised land or building and before recovering its possession or a notice for determining the licence shall be separate and distinct from the notice before demolishing the structure or building as provided under Section

3. The licence was not for a specified period. It was a temporary licence. The occupant was liable to vacate the premises on one month's A notice in advance which notice had already been given. This notice also met the requirements of the proviso to Section 3 in case the defendant intended to demolish the structure of building. The conten tion of Mr. Bilal Khawaja that such notice should mention that it was a notice under section 3 of Central Government Lands and Buildings (Recovery of Possession) Ordinance also does not hold any water. It is a settled law that mere omission to mention the provision of law; under which a notice is issued, is not fatal nor would it invalidate a B notice which is otherwise valid and complies with the requirements of the statutory notice. The second objection related to the maintainability of the suit. According to Section 42 of the Specific Relief Act 'only a person entitled to any right to any property can institute the suit against any person denying such right.' A revocable licence does not amount to such right in the property and therefore no suit can be filed to seek an injunction against ‑ revocation of the same or for declaration that the contract in suit is still subsisting. The most illustrious case on this point is M.A. Nasir v. Chairman, Pakistan Eastern Railway; reported in PLD 1965 S.C.

83. In this suit a contractor was granted right by the Railway to sell refreshments to the upper class passengers at its restaurants, refreshment rooms and buffet cars terminable on notice. The Railway wanted to terminate the. contract whereupon the contractor filed the suit. The suit of the contractor was dismissed and the order of dismissal was maintained right up to the Supreme Court. The following extract from the judgment of the Supreme Court may be useful to reproduce. "Some arguments were advanced to show that initial notice of termination of the contract was waived by the telegram dated 19th March, 1962 and that the period of contract was extended by .another six months. It was therefore contended that there was an obligation on the Railways to give further notice of 6 months. It seems that by reason of the request of the Contractor the Railways granted him 6 months more to leave the Railway premises and to remove his goods there from. The Contractor then submitted application for a fresh catering contract in respect of these very stations of which he was the then contractor and his application was granted in respect of some of stations. In view of our finding that the present suit is not maintainable it is not necessary for us to express any opinion on the question. Whether it was an agreed variation or notation of Contract or a mere extension of time to enable the Contractor to fulfill his obligation under the contract, and whether his subsequent conduct would amount to estoppel, waiver and acquiescence. These questions may be agitated in a properly framed suit. It will then also be for consideration whether the plaintiff who managed to continue as catering contractor for about two years even after termination of the contract can legitimately complain of reasonable notice. In the suit there was also a prayer for a declaration under section 42 of the Specific Relief Act that the contract in question was still subsisting. The learned counsel has not pressed this point before us. Under the provision of Section 42 of the Specific Relief Act person entitled "to any legal character" or to "any right to property" can institute a suit for a declaratory relief in respect of his title to such legal character or right to property. It will therefore suffice to say that 'section 42 does not contemplate a suit like the present one." I am therefore satisfied that this agreement merely conferred right :o carry on business of service of vehicles on the plot of Naval Department and for that purpose temporary structure could be raised. The licence was revocable. Plaintiff was not given any general right of occupation but only the right to use the plot. Such right does not amount to licence coupled with transfer of property as it was specifically intended to be revocable at the will of the granter. No suit can be filed under Section 42 of Specific Relief Act for the declaration of such a revocable licence or for injunction against revocation of such licence. I am' therefore of the clear view that both these objections must prevail and the plaint should be rejected. Hence I reject the plaint under Order VII, Rule 11, C.P.C. The suit as well as all the 4 CMAs referred to above stand disposed of accordingly. M.Y.H/S‑300/K Order accordingly.