P L D 1966 (W (PLP)

QADEERUDDIN AHMED, J.‑

The above appeals have been heard together because, as pointed out by me in Second Appeal No. 397‑64 on the 18th of January, 1965, the impression created on my mind was that these two Municipalities like others acting in similar circumstances had allowed things to drift or connived at what was happening, but decided, after allowing a considerable period of time to elapse, to use the provisions of law inconsistently with their own attitude and antagonistically towards the situation for which they were themselves at least, partly responsible. Cases have been repeatedly coming to my notice which have the common pattern that Municipalities allow the occupation of their land or property, recover charges, fee or rent for their occupation sometimes even allow superstructures to be built on such land, recover taxes which are incidental to the existence of such superstructures and after allowing such situations to exist for a long time, decide to reverse the position by falling back on the technicalities of law. Thus they go over all that was said, written or done by them on the simple plea that what was permitted or allowed, was neither recognisable nor binding under the law. In this manner they create a conflict between justice and the formalities of law.

2. The above point of view will become clearer after I have stated the facts which form the background of these proceedings. I may mention for the sake of convenience that the facts are explained and commented on below in paragraphs 3 to

18. The general contentions of law raised by counsel are set out in paragraph

19. A misunderstanding as to a fact is removed in paragraph 20; and references to the provisions of special laws on which counsel have relied are contained in paragraph

21. The provisions of special laws are discussed in paragraphs 22 to 28 and the general contentions are examined in paragraphs 29 to

36. The conclusion is set out in paragraph 37.

3. I. A. No. 44/64 arises from Suit No. 2322/60 which was filed by Moosa M. Adam and others against the Karachi Municipal Corporation (or the K. M. C.) and its Land Manager for a declaration that the plaintiffs were the tenants of a plot of land and that the defendants were not entitled to eject them from land or the superstructures which were on it as well as for an injunction to restrain the defendants from proceeding contrarily. They had alleged that the K. M. C. was the owner of a plot of land which was 40' x 20' and was situated at a corner of the crossing of Lawrence Road and Haji Camp. They were in occupa tion of it from 1950, and had been paying rent for it regularly to the K. M. C. The K. M. C. threatened on the 4th of November 1960 to evict them from that land by demolishing the superstructures which existed on it and by removing the goods that were in it. An interim injunction was issued against the K. M. C. by the trial Court. The K. M. C. resisted the suit, and alleged inter alia that the plaintiffs had been evicted from the site before the service of the order of injunction. It alleged that action had been taken against the plaintiffs under Chapter IV of Schedule VI of the K. M. C. Rules and Martial Law Order No. 60/1960, and that at the time of the suit it was itself in possession of the site; therefore, the suit was infructuous. It further alleged that the suit was barred by section 94 of the Basic Democracies Order of 1959. But it had subsequently changed its stand and Mr. Fazle Haq has explained that stand by stating in this Court, that the plaintiffs had re‑occupied the site after the institution of the suit with the result that it was contested on merits. The following issues were framed:‑ (1) Whether the plaintiffs are lawful tenants or unauthorised occupants of the land in suit? (2) Whether the defendants' attempt to eject the plaintiffs without a notice and to demolish the structure which stands on the land in suit was ultra vires and illegal, and against equity and natural justice? (3) Whether the plaintiffs are already legally ejected from the suit land, and the suit has since become infructuous? (4) Whether the plaintiffs are entitled to any relief? (5) Whether the suit is barred by section 94 of the Basic Democracies Order of 1959, and (6) What should the decree be?

4. A glance at the above issues will show that in Issue No. 1 the question of the existence of tenancy is embodied while in Issue No. 3, the contradictory question as to whether they had been evicted from the site has been included. Moreover, there is no issue on the question of re‑occupation of the site by the plaintiffs.

5. During the trial, one witness was produced on behalf of the plaintiffs and one on behalf of the defendants. The plaintiffs produced four receipts issued by the K. M. C. They are Exhs. P. 1 to P. 1/4 and prove that "cabin rent',' had been paid for 1954, 1956 and 1960. They have also produced 15 challans which are Exhs. P. 1/5 to P. 1/ 19, according to which licence‑fee for the cabin was also paid by them. These challans appear to relate to 1955 to 1958. They have also proved two notices from the Land Manager of the K. M. C. Exhs. P. 1/20 and P. 1/21 relating to 1957 by which "rent for the cabin from January 1957 to December 1957" was demanded from the plaintiffs. The witness (P. W. 1) of the plaintiffs has stated that no objection was ever taken by the K. M. C. to their occupation of the site; on the contrary there were negotiations in 1959 relating to the sale of the site by the K. M. C. to them, but in 1960 a gang of labourers was sent by the K. M. C. to the site to remove the cabin or the superstructure; therefore, the suit was filed. He stated that the land was taken from the Land Manager of the K. M. C. and that there was no agreement of lease in writing. He admitted that the superstructures were not approved constructions. The witness (D. W. 1) of the K. M. C. stated that the plaintiffs were in occupation of a portion of a road. To establish this fact, he produced a plan Exh. 1).

1. He alleged that the plaintiffs had been evicted from the site, but had reoccupied it, although they were never tenants or lessees of the K. M. C. He further stated as follows:- "At present the road is narrow. I saw the plaintiffs in have never for the same. The structures are temporary. Possession since 1952. No notice was served upon the Plaintiffs realised rent. We have ceased to realise rent after Martial, Law. Exh. D. 1 is from the Department. It is wrong that the plots are not on the road."

6. The above statement shows that the plan does not correctly represent the present state of the site, because now the road is narrow. Moreover, according to it, the plaintiffs have been in continuous occupation of the site from 1952. Additionally the K. M. C. has realised rent upto an unspecified time after the Martial Law was declared. I tried to understand the plan Exh. D‑1, but found that it is neither intelligible nor apparently even relevant to this suit. Mr. Fazle Haq was fair enough to state during the hearing of this appeal that he was unable to explain the relevancy of the plan.

7. The above is the entire evidence that has been produced by the parties, but the suit was dismissed by the trial Court, mainly on the ground that neither the existence of a lease nor of a licence was proved, because neither the legal requirements of a valid lease nor of a valid licence were fulfilled. It was held that under rule 2 (2) of Chapter IV of Schedule VI of the K. M. C. Rules, the K. M. C. could evict a licensee after 24 hours notice. Such notice had not been given in this case., Nevertheless the suit did not succeed, because it was held to be barred by section 94 of the Basic Democracies Order of 1959.

8. Here I may note that Mr. Fazle Haq has conceded that the K. M. C. could not resist the suit of the plaintiffs on the basis of Martial Law Order No. 60 of 1960, that he could not press the allegation that the plaintiffs had been evicted but had reoccupied the site, and that the suit was barred by section 94 of the Basic Democracies Order of 1959.

9. The plaintiffs went in appeal against the judgment of the trial Court and made an application before the First Appellate Court for restraining the K. M. C. from evicting them. An interim order was issued in their favour but was vacate by the Additional District Judge, Karachi vide his order dated 1‑2‑64 as follows:‑ "Land Manager cannot orally grant land. Private arrange ments cannot be recognised. Title has not been proved. Occupation gives no title. Order is vacated. Application is dismissed with costs."

10. They have come to this Court in M. A. No. 16 of 1964 against that order. It was admitted to regular hearing by Inamullah, J. as he then was and. an interim injunction was simultaneously issued which was confirmed after notice to the K. M. C. When the appeal came up for final decision, it was realised that its decision would virtually dispose of the First Appeal. Counsel for the parties, therefore, agreed that the first appeal be withdrawn under section 24, C. P. C. and decided by this Court along with the Miscellaneous Appeal. Thus M. A. No. 16/64 and I. A. No. 44/64 have `come up together for decision now.

11. The facts of Il. A. No. 397/64 are outwardly different but they are not so essentially. The appeal has arisen from suit No. 920/60 which was filed by Muhammad Hanif Mian Jan against the Hyderabad Municipality. He alleged in the plaint that the shop measuring 100 sq. feet situated at Station Road, was leased to him by the Hyderabad Municipality; that he had also constructed the shop, and was in occupation of it for a number of years. He had paid "yearly lease money" to the Municipality for it. He suddenly received a notice dated the 12th of May, 1960 intimating him that his lease had been cancelled, and that he should vacate the premises within 3 days. He, therefore, gave a statutory notice to the Municipality and instituted the suit, for a declaration that the cancellation of the lease was illegal, the notice was bad, and for an injunction that the Municipality be restrained from dispossessing him from the premises. The suit was resisted by the Municipality on the grounds that the shop belonged to it and that permission to occupy it was granted by it to one Muhammad Hanif, son of Muhammad Usman on yearly basis, but the permission was not renewed after 1960. It was admitted that "lease money" had been paid by the plaintiff from 1953 up to March, 1959, but it was alleged that "the land under the shop" was in the "road area"; moreover, it was within 16 feet of the Fort Wall. Additionally it was alleged that the plaintiffs could not be allowed to remain there as that land was required for widening the Station Road. It was also alleged that the plaintiff was not a lessee; therefore, no notice was required, though a notice of 3 days had been served on him.

12. The following issues were framed on the pleadings of the parties:‑ (1) Is the plaintiff the lessee of the shop in dispute? (2) Whether the superstructure of the shop belongs to the defendant ? (3) Does the land over which the disputed shop is built lie within the road area: If so, what is the effect? (4) Whether the notice served on the defendant is not proper and valid? (5) Has any cause of action accrued to the plaintiffs? (6) Is the suit not properly valued? (7) Is the suit not maintainable according to law? (8) Is the suit time‑barred? (9) Has the Court no jurisdiction to try this suit? (10) What should the decree be? Issue No. 6 was not pressed by the Municipality, and the rest of the issues were decided in favour of the plaintiff with the result that the suit was decreed by the trial Court with costs.

13. The trial Court held that Muhammad Hanif, son of Mian Jan was the tenant, because there was adequate documentary proof on the record of the Municipality to support it. The learned trial Judge observed as follows:‑ "Mr. Ikramali (the Assistant Land Manager) has further admitted that Hanif has paid the rent for this shop after the recording of this entry in the ledger dated 10‑4‑

54. The Municipality after having accepted the plaintiff as their tenant by recording his name in the ledger and after accepting rent from him from 1954 onwards, cannot deny his status in this arbitrary manner." He held that the shop belonged to the Municipality, but was not situated in "road area".

14. The Municipality went in appeal against the above order which was accepted by the Second Additional District Judge' Hyderabad with the following concluding observation:-- "I may also point out that there are 8‑10 other shops of the appellant Municipality adjacent to the shop in question in the same line. But it is curious to find that the Appellant Municipality had singled out the respondent only. Their action should have been uniform."

15. On my inquiry, Mr. Abdul Jaleel, counsel for the Hyderabad Municipality, explained that the road by the side of which the shop in question and a few shops are situated, mostly runs along with the. Fort Wall. But at the place where the shops are situated, the wall has left the road and taken a curve, thereby leaving between the wall and the road a somewhat triangular open piece of land. Traffic of the road does not pass over that triangular land; therefore, the stand of the Municipality is not that it is a part of the road, but has been only that it is within the "road area". According to counsel, it is not correct that S to 10 shops are situated on that piece of land. In spite of tic statement of the learned Additional District Judge that he had inspected the site, counsel, who belongs to Hyderabad, respectfully ventured to say that the number of the shops that are situated there is four to five. The length of the plot along the side of the road, according to him, should be about 150 feet. But he admitted that the Municipality has taken action against Muhammad Hanif only, who is one of the occupants of the shore, and not against others, although all the shops belong to the Municipality, and were allowed by the Municipality to be occupied by several persons.

16. Counsel further conceded that the expression "road area" was not a technical or artistic one, and that it was neither defined in any statute nor did it occur in the relevant statutes or the rules made thereunder.

17. The main grounds on which the First Appellate Court accepted the appeal are that no lease‑deed had been produced which could satisfy the strict requirements of law. The lease in favour of the respondent (Muhammad Hanif) was a temporary on therefore, the appellant Municipality could cancel it at any time under rule 16 of the Hyderabad (Sind) Municipality Land Management and Land Sale Rules framed under section 58 (a) of the Sind Municipal Boroughs Act, 1925. The pro forma of the agreement of lease which is contained in rule 16 was not executed. It has a provision that tenancy can be terminated by one month's notice, but in this case only three days' notice was given to terminate it. This inadequacy of the notice was held to be c immaterial because a long time had elapsed since the matter for the first time came up for consideration. Moreover, the appellate Court pointed out that the General Body of the appellant Municipality had passed a resolution terminating the lease of the respondent. Apart from it, according to the Court, no lease for more than seven years could be created in terms of section 48 of the Sind Municipal Boroughs Act, 1925 without the sanction of the Commissioner. As there was no such sanction in this case, the occupation became unauthorised after the expiry of seven years next after the commencement of the lease. The mere fact that they were paying the rent, which was accepted by the servants of the Municipality did not establish tenancy because "the appellant Municipality is not bound by the acts of their servants". Apart from all this, the Municipality was held to be not authorised to lease out any portion of a public street without the previous sanction of the Provincial Government under section 114 of the Sind Municipal Boroughs Act, 1925 which was applicable to the exclusion of the Transfer of Property Act. Thus there could be no tenancy in this case under the latter Act. Its final conclusion was that‑-- "the appellant Municipality was perfectly justified in having terminated the lease of the respondent."

18. The above background of Second Appeal No. 397 of 1964 draws attention to three salient features of the case. Firstly, the land and the superstructure of the shop which is occupied by Muhammad Hanif are claimed by the Municipality to be its own property and have been found to be so; yet the Municipality means to terminate the lease of its occupant and to evict him from it owing to its objectionable situation as if the wrong committed by the Municipality in constructing or letting the shop situated in the "road area" created a defect in the tenancy of the occupant. Secondly, the occupant could be treated like a trespasser because the formalities of law required for creating a lease had not been complied with by itself. Thirdly, the officers and servants of the Municipality have treated the relationship between that body and Muhammad Hanif as that of a landlord and tenant and accepted rent for a number of years; yet the Municipality seeks to disown the acts of its servants and officers, and to forget the money that, has gone into its coffers for evicting Muhammad Hanif from one of its shops without proving any scheme for widening the road.

19. I had issued notice to Mr. Sh. Muhammad Sadiq, Advocate, to appear for assisting the Court in arriving at correct conclusions. He is especially qualified to do this job in Municipal cases because he was the Legal Adviser to the Delhi Municipality for a number of years and had the benefit of working with an against lawyers of wide experience in that field. I felt that it was necessary to secure the assistance of such a quality because Mr. Abdul Jaleel of Hyderabad and Mr. Fazle Haq of Karachi are lawyers of vast experience in the administration and enforcement of Municipal Laws. My anxiety has been to find out as to how justice can be done in these cases. To satisfy the demands of equity and justice Mr. Abdul Jalil took the stand that Muhammad Hanif could legally get no relief in these proceedings, but that he was not completely without a remedy against the hardship of the circumstances because it was open to him to claim damages from those servants and officers of the Hyderabad Municipality owing to whose misdeeds and misrepresentations, if any, loss din, may have been sustained by him. So long as this remedy was available to him, the public mind and judicial conscience could be satisfied because if, on the one hand, there were difficulties in the way of the wronged person to get redress, there were on the other hand complications of equally difficult nature in the way of Municipalities for keeping their affairs straight. Mr. Fazle Haq emphasised that a big organisation like the K. M. C. had to deal with thousands of pieces of land and structures as well as with scores of people whose object was not always straightforward and fair and who could easily manage to lace or find the K. M. C. in situations which disclosed contradictions between the acts or deeds of the K. M. C. and the laws which governed it. If a strict view of the technical requirements of the law was not taken and liabilities of the Corporation were recogni sed as having arisen from the carelessness or forgetfulness of its servants and officers, then soon the Corporation would be at the mercy of the miscreants of the vast population of the city. He emphasised that the technicalities of law served as a protection both for the K. M. C. and the public. Mr. Sh. Muhammad Sadiq, on the other hand, contended that both the Hyderabad Munici pality and the K. M. C. have been wrongly relying on the broad proposition that they were legally not authorised to create any lease or to grant any licence except in writing. As this position was not borne out by the strict law, they had no foundation to rest their case on that technicality in so far as these appeals were concerned. Secondly, he argued that distinction should be drawn between the acts of a statutory body done (i). without observing the formalities of law, (ii) done in disregard of a prohibition of law, (iii) and done without the power under the law to do them. He emphasised to respect of the third category that there was a difference between (a) the absence of the authority of a statutory body itself to do an act and (b) the absence of the authority of some of its officers of that body to do it or to do it in a certain manner. Acts falling under any of these categories are legally defective as well as objectionable, but the degree of their ineffectiveness is not uniform; nor is their defect equally invalidating or incurable. Thirdly, he contended that there is no estoppel against law, yet there can be estoppel for' a natural as well was a legal person against asserting the illegality of his or its own acts.' This latter estoppel does not amount to recognizing illegalities in practice while repudiating them in theory because it furnished the means to give relief against approbation and reprobation, fraud and dishonesty which is presumably one of 'the objects of all law.

20. Before proceeding to discuss the law, I may remove a misunderstanding that is existing in both the cases with respect to a fact. Mr. Abdul Jalil and Mr. Fazle Haq have devoted a good part of their addresses to prove that nobody could be allowed to occupy a street or public street if the Municipality concerned decided to remove an obstruction created by him. They argued that a Municipality could allow a street or a public street to be used for purposes other than those for which such a street is meant; but such permission must be granted strictly in accordance with the formalities prescribed by law and can be enforced only with the technicalities of law. This was, according to them inherent in the public character of a street or a public street as well as in the interest of the public in it. References were made during the arguments to the definitions of "street" and "public street" to the circumstances in which a street or a public street could be allowed to be occupied by a person, as well as the circumstances in which a street or a public street could be discontinued by a Municipality. But this entire discussion ‑ was beside the point because the plots of land which are in dispute in these cases are neither situated in streets nor in public streets. The K. M. C. did not plead in its written statement that the superstructures in dispute stand at such a place; nor did it claim any issue on that basis (see paragraph 3 above). Its witness Abdur Rehman Qureshi, a Surveyor, did state that Moosa M. Adam and others were in occupation of a portion of a road, but the plan which he has produced to substantiate this allegation is irrelevant (see paragraph 6 above). His evidence is to sketchy and too sweeping to be convincing. He does not specify as to on ‑what part of which road the superstructures in dispute exist so that it may be possible to determine whether they stand on a public street or not. In the Hyderabad case, the situation is worse because admittedly the shop in, dispute does not stand on a street or a public street but is situated in a "road area". The superstructure of the shop is claimed by the Hyderabad Municipality to be its own property. This means that if it forms an obstruction on a public street, then Muhammad Hanif has nothing to do with that because it was existing when he was allowed by the Municipality to occupy the shop. Any decision of that body to remove the obstruction is an action against itself, such a decision does not amount to finding fault with the conduct of Muhammad Hanif; nor can he be considered to be under any obligation to forego his tenancy rights so that the Municipality may rectify its own error to his detriment. On the contrary, the plea of the Municipality that the shop is within the road area amounts to confusing the issues that arise between the parties by creating an impression that Muhammad Hanif is in some manner responsi ble for the obstruction or is under some obligation to co‑operate adversely to his own interest in the rectification of that error. Mr. Abdul Jalil has referred in his arguments to the need for widening the road by the side of which the shop in dispute is situated, but as noted above, no such scheme has been proved. Moreover, the action which the Municipality has taken was not under the law which is relevant to the acquisition or possession of property for the furtherance of a public scheme. Thus the questions of law that are involved in these appeals are to be considered without any bias in favour of public utility or public need.

21. The most important legal questions in these appeals, according to the emphasis laid by learned counsel for the Municipalities, are as to (i) whether their clients could grant a lease or licence without a writing, and (ii) if they did grant a lease or licence, acted on such a grant or openly recognised it, then as to what is the effect of the illegality that may be found in such a grant. References were made to the provisions of three statutes and the rules made thereunder for finding an answer to the first of these two questions. The answer to the second question was agreed by counsel to depend on the determination of the contentions that are set out above in. paragraph

19. The three statutes are the City of Karachi Municipal Act, 1933, the Sind Municipal Boroughs Act, 1925 and the Municipal Adminis tration Ordinance, 1960. Mr. Fazle Haq, counsel for the K. M. C. has relied on sections 55, 56, 229 and 230 of the City of Karachi Municipal Act, 1933 and rules 5 and 6 of Chapter VII of Schedule I and rules 1 and 3 of Chapter IV of Schedule I and rules 1 and 3 of Chapter IV of Schedule VI of the rules framed under the City of Karachi Municipal Act, 1933. Mr. Abdul Jalil, counsel for the Hyderabad Municipality, has relied on sections 48, 49, 90 and 152 of the Sind Municipal Boroughs Act, 1925, and rule 16 of the Hyderabad (Sind) Municipality (Land Management and Land Sale) Rules. The Municipal Administration Ordinance, 1960 has replaced the City of Karachi Municipal Act, 1933 as well as the Sind Municipal Boroughs Act, 1925. Sections 1 and 3 of the Ordinance came into force in West Pakistan on the 11th of April, 1960 and the rest of the Ordinance was enforced on the 16th of April, 1960 in Karachi, and on the 1st of May, 1960 in West Pakistan. It has not been given retrospec tive effect; therefore, does not apply to the leases or licences which were granted by the Municipalities in these cases. In the Karachi case, Moosa M. Adam and others are in occupation of the plot of land from 1950 or 1952, and in the Hyderabad case, Muhammad Hanif has been, according to Mr. Abdul Jalil, admittedly in occupation of the shop from 1954 at least. References have, however, been made to sections 2 (4), 26, 83 and 126 of the Ordinance. The Rules to which references were made are the West Pakistan Municipal Committees (Contracts) Rules, 1960, and West Pakistan Municipal Committees (Licences) Rules and Bye‑Laws which were published in the Gazette Extraordinary of West Pakistan dated the 30th of December 1964.

22. It is necessary to pay due attention to the above mentioned provisions of special statutes before examining the contentions set out in paragraph 19 above. The Municipal Administration Ordinance, 1960 and the rules made thereunder need not be examined because they are not applicable to these proceedings. Taking up the provisions of the City of Karachi Municipal Act, 1933, I may note that section 55 applies to the disposal of property which belongs to the Corporation other than waste lands, and section 56 applies to waste lands. The expression "waste lands" is defined in section 5 (49) as the lands situated within the City for the management and disposal of which special rules have been sanctioned by the Provincial Government. Admittedly, no special rules have been sanctioned in respect of the land in dispute; therefore, section 56 has no application. Clause (a) of section 55 provides that the Chief Officer may grant a lease of any immovable property belonging to the Corporation, the premium or rent of which does not exceed Rs. 1,000.00 for any period not exceeding 12 months at a time. Clause (b) provides that the Chief Officer can with the sanction of the Standing Committee grant a lease of such property for a period not exceeding three years if the premium or rent of it does not exceed Rs. 5,000.00. Clause (c) empowers the Chief Officer to grant a lease of any property belonging to the Corporation with the sanction of the Corporation itself. Clause (e) (ii) provides that the sanction of the Provincial Government is necessary for leasing out a land whose value exceeds Rs. 10,000.00. Let me note here that these provisions empower the Chief Officer himself to make the contracts which are in dispute in those proceedings and that they apply to streets and public streets also. Subsection (1) of section 229 of the Act lays down that: "(1) Every contract made by or on behalf of the Corporation shall be made in accordance with the provisions of Chapter VII of Schedule I" Subsection (2) ' of that section lays down that a contract which is not made in accordance with that Chapter will not be binding on the Corporation. The Chapter mentioned in subsection (1) deals with all "contracts" including leases. Rules 5 and 6 only of that chapter are relevant for the present purpose. They are as follows:‑‑ "(5) Every contract entered into by or on behalf of the Corporation and involving an expenditure exceeding two thousand rupees shall be in writing and sealed with the common seal of the Corporation. 6. (1) Every contract under or for any purpose of this Act, shall be executed on behalf of the Corporation by the Chief Officer. (2) No such contract for any purpose which the Chief Officer is not empowered by this Act to carry out without the approval or sanction of some other Municipal Authority shall be executed by him until or unless such approval or sanction has first of all been duly given."

23. Mr. Fazle Haq argued that rule 6 made it compulsory that every contract be in writing, because sub‑rule (1) of it contains the direction that every contract shall be "executed" on behalf of the Corporation by the Chief Officer. Counsel attached importance to the words "every contract" which occur in sub rule (1) and to the words "no such contract", which occur in sub‑rule (2) and contended that they made it necessary that all contracts, whatever their nature be, have to be in writing because otherwise they cannot be executed by the Chief Officer. But this interpretation does not take into consideration the exemption from writing which is contained in rule

5. Under that rule, a contract which involves an expenditure up to two thousand rupees need not be written and sealed. This provision is nullified if the interpretation of Mr. Fazle Haq is accepted. Mr. Shaikh Muhammad Sadiq pointed out that rule 6 does not prescribe as to what contracts should be in writing, but deals with those contracts only which are required to be in writing, and merely prescribes the manner of the execution of contracts. If every contract, irrespectively of its value, had necessarily to be in writing and were to be executed by the Chief Officer only for and on behalf of the K. M. C., then administration of the Corporation will be substantially obstructed and its violation will become the rule, or else some other law will have to be found to do justice in unfeasible situations. See in this connection the following observations of the Supreme Court of India in Chatturbhuj Vithaldas v. Moreshwar Parashram (AIR 1954 SC 236) :‑-- "(40) In our opinion, this is a type of contract to which section 230 (3) Contract Act would apply. This view obviates the inconvenience and injustice to innocent persons which the Federal Court felt in J. K. Gas Plant Manufacturing Co. Ltd. v. Emperor A I R 1947 F C 38 at pp. 41, 42, and at the, same time protects Government. We feel that some reasonable meaning must be attached to Art. 299 (1) (of the Constitution of India). We do not think the provisions were inserted for the sake of mere form. We feel they are then to safeguard to Government. against unauthorised contracts. If in fact a contract is unautho rised or in excess of authority it is right that Government should be safeguarded. On the other hand, an officer entering into a contract on behalf of Government can always safeguard himself by having recourse to the proper form. In between is a large class of contracts, probably by far the greatest in numbers, which though authorised, are for one reason or other not in proper form. It is only right that an innocent contracting party should not suffer because of this and if there is no other defect or objection, we have no doubt that Government will always accept the responsibility. If not, its interests are safeguarded as we think the Constitution intended that they should be. (41) In the present case, there can be no doubt that the Chairman of the Board Administration acted on behalf of the Union Government and his authority to contract in that capacity was not questioned. There can equally be no doubt that both sides acted in the belief, and on the assumption, which was also the fact, that the goods were intended for Government purposes, namely, amenities for the troops. The only flaw is that the contracts were not in proper form and so, because of this purely technical defect, the principal could not have been sued. But that is just the kind of case that section 230 (3), Contract Act is designed to meet. It would in our opinion, be disastrous to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspon dence and that every petty contract must be effected by a ponderous legal document couched in a particular form. It may be that Government will not be bound by the contract in that case. But that is a very different thing from saying that the contracts as such are void and of no effect. It only means that the principal cannot be sued; but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government. There is authority for the view that when a Government Officer acts in excess of authority Government is bound if it ratifies the excess: See Collector of Masulipatam v. Chavaly Venkata Narainappah, 8 Moo Ind. App. 529 at p.

554. We accord ingly hold that the contracts in question here are not valid simply because the Union Government could not have been sued on them by reason of Art. 299 (1) (of the Constitution of India)."

24. Section 230 of the City of Karachi Municipal Act, 1933, deals with licences and written permissions. Subsection (1) of it lays down simply that "wherever it is prescribed that the permission of the Corporation is necessary for the doing of any act, such permission shall (unless it is expressly provided other wise) be in writing". The words "wherever it is prescribed" should be noted in this subsection. Subsection (7) provides that‑ "The acceptance by or on behalf of the Corporation of the fee of licence or permission shall not entitle the person paying the fee to the licence or permission."

25. The above provisions were used by Mr. Fazle Haq by way of an additional defence after contending that there was no lease since there was no writing. If the reply was that they were licensees then, according to counsel, the counter‑reply could be found in the above provisions and thus the demand and acceptance of "rent" for the land on which the cabins exist did not amount to a licence or permission. But Subsection (1) applies to permissions which are "prescribed", and Mr. Fazle Haq has not referred to any rule which "prescribes" a permission for using a plot of land by constructing a cabin on it. Mr. Fazle Haq had to concede that no rule was ever framed under the City of Karachi Municipal Act, 1933, which "prescribed" this. The necessity for such a permission may or may not arise from the provisions of the Easements Act, 1882, or from other statutes, but it does not arise as far as Mr. Fazle Haq was able to indicate, from any rule of the, K. M. C.

26. Subsection (7) of the section is important simply because it excludes the argument that the payment of fee for a licence or permission itself constitutes a licence or permission. But that was not the argument of Mr. Hafiz Sultan Ahmed who appeared for the occupants nor was it the contention of Mr. Shaikh Muhammad Sadiq, who appeared amicus curiae. They have sought to use the conduct of the Corporation as a bar in its way to denying the lease, licence or permission by reason of the alleged defective observance of formalities or technicalities of the transaction.

27. The above stand of Mr. Hafiz Sultan Ahmed and Mr. Sh. Muhammad Sadiq assumes importance when it is realised that Mr. Fazle Haq has sought recognition of the authority of the K. M. C. to evict the owners of the cabins as trespassers on the ground that the cabins could be "removed" by it from the plots in dispute under rules 1 and 3 of Chapter IV of Schedule VI of the Municipal Rules. In order to understand the respective arguments of the two sides on this important claim of the K. M. C., it is necessary that the entire chapter which consists of three rules only be perused. It is as follows:‑-- "(1) No person shall, except with the permission of the Chief Officer and in accordance with such conditions, including the payment of rent, as he may impose either generally or specially in that behalf, place or deposit upon any street or in any open space vested in the Corporation or drain, well, or channel therein, any stall, chair, bench, box, ladder, bale, tray or other thing and the Chief Officer may without giving notice remove any such stall, chair, bench, box, ladder, bale, tray or other thing or may in lieu of such removal collect such rent for the use of the land as he may impose. 2. (1) No person shall, except with the permission of the Chief Officer and in accordance with such terms and conditions including the payment of rent or otherwise as the Chief Officer may impose either generally by regulation or in each special case‑ (a) open, break up, displace, take up or make any alteration in, or cause any injury to, the soil or payment, or any well, fence, post, chain or other material or thing forming part of any street or any open space vested in the Corporation; or (b) deposit any building materials in any street or in any open space vested in the Corporation; or (c) set up in any street or in any open space vested in the Corporation any scaffold or any temporary erection for the purpose or any work whatever, or any posts, bars, rails, boards or other things by way of enclosure, for the purpose of making mortar or depositing bricks, lime rubbish or other materials. (2) Any permission granted under sub‑rule (1) clause (b) or (c), shall be terminable at the discretion of the Chief Officer, on his giving not less than twenty‑four hours' written notice of the termination thereof to the ‑person to whom such permission was granted.

3. The Chief Officer may, without notice, cause to be removed any building materials, or any scaffold or any temporary erection, or any posts, bars, rails, boards or o then things by way of enclosure, which have been deposited or set up in any street or in any open space vested in the Corporation without the permission or authority specified in sub‑rule (1), or which, having been deposited or set up with such permission or authority, have not been removed within the period specified in the notice issued under sub‑rule (2)." A careful reading of the above rules will show that rule 2 has no application to this case. Rule 1 relates to "placing" or "depositing" any "stall, chair, bench, box, ladder, bale, tray or other things". The erection of a superstructure or cabin is not "placing" or "depositing" it. Moreover, a cabin is not a "chair, bench, box, ladder, bale, tray"; nor is it a "stall" because a stall means, according to the Oxford Dictionary, a fixed seat or a board "especially one in front of a shop". It cannot fall in the category of "other thing" because those words are to be interpreted ejusdem generis. Additionally, a notice of 24 hours is necessary under that rule which was admittedly not been given in this case by the K. M. C. That notice is a condition precedent and cannot be dispensed with on the ground that the proceedings in Court are prolonged. Rule 3 does not apply because under that rule too a notice of 24 hours is necessary. Moreover, a cabin is neither "any scaffold" nor "any temporary erection" because the temporary erection referred to in the rule should be of the type of "posts, bars, rails, boards and other things by way of enclosures" to serve the purpose of carrying "on any work whatever" as is indicated in rule 2 (1) (c). Thus the owners of the cabins cannot be removed by the K. M. C. in this case under the above chapter and there is no other provision under which it may dispossess them by force without having recourse to the Rent Controller or a civil Court.

28. Turning now to the provisions of law on which Mr. Abdul Jalil has relied, one can at once see that section 152 of the Sind Municipal Boroughs Act, 1925 has. no application because it relates to obstructions and encroachments upon public streets and open spaces, but in this case the occupants have neither created any such obstruction nor have they made any such encroachment. If at all, the Municipality itself should be responsible for the alleged obstruction or encroachment. Sections 48 and 49 of the Act relates to the authority of making contracts and the mode of executing them. It is unnecessary to reproduce or discuss them because none of them was alleged by Mr. Abdul Jalil to have been violated. The observation of the First Appellate Court that the lease of Muhammad Hanif became illegal after seven years (see paragraph 17 above) is obviously untenable. Mr. Abdul Jalil did not support that view. He has rightly conceded that the lease was not required to be in writing and that delivery of possession could under the relevant law create the relationship of landlord and tenant. Rule 16 of the Hyderabad (Sind) Municipality Land Management and Land Sale Rules has no application, because neither the execution of a lease deed in Form C was compulsory, nor was that form used in this case by the Hyderabad Municipality. The provisions of that form, therefore, could not be invoked by the Municipality for evicting the tenants. Moreover, even the terms of that form were not complied with by the Municipality (see paragraph 17 above). In these circumstances, the condona tion of the defect of the notice by the First Appellate Court was erroneous. Moreover, the learned Judge was not right in holding that the General Body of the Municipality could terminate tenancy by simply passing a resolution to that effect. Section 90 of the Act was used by Mr. Abdul Jalil to show that recovery of fee for a licence did not necessarily convert it into a lease. That may be so, but in this case, the Municipality had treated the relationship as that of landlord and tenant and had purported to terminate it by giving a notice of three days. In these circumstances, "rent" too was recovered by the Municipality (See paragraph 11 above) which is an additional proof of the existence of that relationship.

29. The above discussion does not include an examination of the contentions advanced on behalf of the Municipality and those raised by Mr. Sh. Muhammad Sadiq in reply which have been noted in para. 18 above. Mr. Fazle Haq appeared in that connection to be earnest when he argued that the Karachi Municipal Corporation had to do a vast amount of work in this big town as well as to deal with a large number of men who were not always scrupulous; therefore, technicalities of law were the safest protection against misdeeds, and so did Mr. Abdul Jalil appear to be when he argued that if the actions of the servants and employees of the Municipalities amounted to misuse of legal technicalities then justice could be done by taking proceedings against such servants and employees who were personally liable for untoward consequences. Mr. Fazle Hao felt safe on te6hnica lities because in his view there could be no lease without a writing in terms of sections 229 anti 230 of the City of Karachi Municipal Act, 1933, read with rules 5 and 6 of Chapter VII of Schedule 1 of the rules framed under that Act, with the result that the occupants could be instantly evicted by force; in terms of rules 1 and 3 of Chapter IV of Schedule VI of the said rules: His object was, therefore, only to lend moral support to the acts of the K. M. C. by referring to its extensive duties and to the unscrupulous tendencies of a section of the population. He did not realise that the servants and employees of his Municipality could not be wholly excluded from the unscrupulous section of the population because they formed a part of it, and that a big organisation is expected to display proportionate efficiency. There are commercial companies in the world which are financially as big as small empires, but their vastness has never been accepted as an excuse for their wrongful omissions or misdeeds. To take a contrary view would amount to conceding that they may embark on huge ventures involving the fate of a vast number of men without considering themselves responsible for the consequences of their inefficiency. Their vastness is not a licence to be inefficient. It is the other way round. The consolation offered by Mr. Abdul Jalil is neither fully sound in law, nor satisfactory to the conscience. It is not entirely sound because if the servants and employees were not authorised grant leases without complying with certain formal they were at least allowed, in these cases to do this class of business with continued negligence without any let or hinderance over a number of years. As pointed out by Charles. worth in his book on Negligence (3rd Edn.) at page 66: "In one sense it may be said that it is never within the scope of a servant's employment to commit an act of negligence. In all these cases it may be said, as it was said here, that the master has not authorised the act. It is true he has not authorised the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agents has conducted himself in doing the business which it was the act of his master to place him in. If the servant is doing negligently something which he was employed to do carefully, the negligent act is in the course of his employment and the master is liable," Additionally, the consolation is not satisfactory to the conscience because the damage that can be done by inefficient or dishonest servants and employees cannot be compensated by them through their own resources. Moreover, in both of these cases, there was persistent and deliberately neglectful disregard of law.

29. As to the disregard of law, Mr. Fazle Haq pointed out that the Chief Officer only could grant a lease and not the Land Manager; therefore, the act of the latter officer in the Karachi case was without authority. According to him, it was ultra vires of the powers of that officer and of the legally authorised manner of leasing property; therefore, not binding on the K. M. C. This plea of ultra wires was not taken in the written statement and is not embodied in the issues. It is not discussed by .the trial or the First Appellate Court. Moreover, this argument does not apply to the Hyderabad case. But it has been carefully analysed and met by Mr. Shaikh Muhammad Sadiq.

30. It is to be noted once again that the main ground of attack taken by the Municipalities in these cases is that the leases ought to have been in writing but that is not correct. As to the lease made in Karachi, it did not involve the expenditure of Rs. 2,000.00 or more therefore, it was not necessary to be made in writing. Even if it was to be made by the Chief Officer, there is nothing on the record to support the presumption of Mr. Fazle Haq that he was not aware of it and had nowhere ordered or sanc tioned it. The Chief Officer has not said so; nor has anybody else.

31. With the above reservations let us assume for the sake of argument that the lease of the K. M. C. was required by the rules to be in writing and to be executed by the Chief Officer and sealed with the seal of the Corporation. This defect ordinarily renders transactions illegal and therefore, not binding. Particularly so on a corporation because being a statutory body it has no authority to act otherwise than according to law. In support of this proposition Mr. Shaikh Muhammad Sadiq has cited Ml. Counsil, Tiruvarur v. Kannuswami (A I R 1930 Mad. 600), Munl. Bd., Lucknow v. Deb (A I R 1932 Oudh 193), Abdul Hamid v. M. C., Peshawar (A I R 1935 Pesh. 124), Motihari Municipality v. Jawad Hussain (A I R 1938 Patna 429), Bhumbho Metharam v. Distt. Local Board (A I R 1940 Sind 199) and Fazal Din v. Municipal Committee, Lyallpur (P L D 1956 Lah. 916). Mr. Fazle Haq too has referred on this point to Ali Hussain v. Karachi Municipal Corporation (P L D 1957 Kar. 463) and Civil Revision No. 231 of 1960. Mr. Shaikh Muhammad Sadiq has further referred in this connection to the observations of Ayanger in his classic book on the Law of Municipal Corporation in British India (Second Edition of 1924) at pp. 122,127, 131 and 173‑

78. But he pointed out that these judgments and these passages of the book were distinguishable because there was nothing in them to negative the proposition that an act done by a Corporation in violation of the method prescribed for doing it could be valid against their persons provided the act was done deliberately, continued over a long time and was within the competence of the Corporation together with the elements of estoppel present in the transaction. Such acts ought to be distinguished from those which are ultra vires of the powers of the Corporation itself. What is to be remembered in this discussion is that every illegal act of a natural person is not regarded as null and void, nor is every conveyance made by him in violation of legal provisions treated as a nullity. But a different view is taken when a corporation fails to observe legal formalities of its procedure on the sole ground that being a creature of law it has no power to violate that law. It is regarded as a form of ultra vires activity. But all violations of legal authority cannot be treated flatly. A distinction can be drawn, has been drawn and ought to be drawn between those acts which are ultra vires of the manner laid down for doing them, or of the authority of the person who did them, and an act which the corporation is not at all empowered to do: See Anwar Sultana v. Pak Co‑Operative: Housing Society Ltd. (P L D 1964 Kar. 116). If its agents persis tently perform those acts which it is empowered to perform in an illegal manner, and the corporation tolerates this state of affairs for years on and without correcting its agents or taking steps to discover the illegalities or checking violations of law, while on the contrary, deriving benefit from such transactions, as has been done in these cases by the recovery of rent, then a sudden reversal of that attitude of the corporation founded merely on such violations is bound to be regarded by equity and good conscience as pleading law to defeat the object of law or as a deception practised on law itself. In such circumstances, showing sensitiveness in favour of formalities of law would amount to sanctioning illegal practices and not preventing them. It would, in other words, amount to giving a licence to such a corporation to trade on its illegalities.

32. Two answers have been given to the above contention. One of them was that the occupants were not innocent persons because it was their duty to know legal restrictions and require ments. They cannot be heard to say that they were ignorant of them or that they could trust an official organisation like a Municipality to act in accordance with its own prolific rules. This answer has been supplemented, as noted above, with equitable considerations by Mr. Fazle Haq, who referred, for this purpose, to the heavy duties of the K. M. C. and suggested that the tenants did not show scruples when their greed was to be satisfied, and by Mr. Abdul Jalil who offered the consolation that the tenants had after all a remedy against the servants and employees of the Corporation themselves. These equitable considerations beg to question and need not be refuted again: (See paragraph 29 above). The only part of this argument that needs to be met is that the tenants were bound to know the law and to avoid illegalities. But the same argument applies with greater force to the Corporation; therefore, the Corporation is not an innocent party. The choice is not between a party at fault and an innocent party. The Municipalities are in a worse position that that because they have accepted benefit of their conduct by receiving rent. The scandal that is involved in permitting a corporation to contradict its conduct has been penetratingly explained by Lord Halsbury L. C. in Bloomenthal v. Ford (1897 A C 156) as follows:‑- "My Lords, it appears to me that it is hopeless to contend that, after a representation made by the company for the purpose of inducing a man to act upon it by parting with his money, it is competent for them to turn round and say `you should have enquired. You should have observed certain circumstances; and if you had done, that you would have been better advised than to advance the money, because you would have known that `fully paid‑up shares' did not mean what the words themselves signify, but meant that no further liability should be insisted upon in respect of them. . . Now, the ground upon which that is suggested appears to be partly a question of law and partly a question of fact. As to the question of law, I confess for myself I entertain a doubt whether it is ever true, in a case where one person has been induced to act by the misrepresentation of another, that you can go beyond the fact whether it is so or not. . . . . Once the conclusion is arrived at that the belief was induced, and inten tionally induced, by a mis‑statement of a fact intended to operate upon the mind of another, upon which the man has acted, then I do not think any case can be found in the books in which it has been suggested that the legal consequence does not follow, namely, that there is estoppel, and that it is open to the person who has made the representation to say, I told you so‑and‑so; but you ought not have believed me. You were too great a fool. I had a right to mislead you because you were too great fool. I do not believe that any such case can be brought forward, or that there is any authority for such a proposition." It is difficult to urge estoppel against illegal acts of a corporation in more emphatic language.

33. Another answer was that the requirements of law fall outside the will of the Corporation; therefore, the Corporation cannot alter them by its negligence, oversight or ignorance‑See Corporation of Canterbury v. Cooper (99 L T R 612). It cannot even be estopped from questioning the validity of the lease in spite of its representa tions to the contrary because invalidity of the lease is entirely independent of such representations. The remedy in such circumstances was an action in tort. But here an important distinction arises from the nature of the law that has been violated. As explained above, the law that ,has been allegedly violated in these proceedings relates to contractual powers and to the manner of making the transactions. Acts done in violation of such provisions of law are not ultra vires in the strict sense of the expression because they do not fall outside the authority of the Corporation‑See Anwar Sultana v: Bank. Co‑Op. Housing Society Ltd. (P L D 1964 Kar. 116). In paragraph 16 of the Judgment a distinction is drawn between the primary and secondary sense of ultra vires and in paragraph 15 of it emphasis is laid on the presumption of the regularity of "in‑door management". The presumption which is mentioned in paragraph 15, should be noted along with the following observations made by the Privy Council in Martime Elec. Co. v. General Diaries (A I R 1937 P C 114) because their Lordships have explained the view of Lord Cairns expressed in Burkinshaw v. Nicolls ((1878) 3 A C 1004) that a representation made inconsistently with law as to the validity of certain shares could create estoppel: "At page 1017 (of (1878) 3 A. C. 1004) Lord Cairns observed as follows:‑- `He comes before the Court not in any way affecting to break in upon the enactment which I have read. He says:' I bow to the words of the enactment. I have not in any way attempted to interfere with it, but I have taken, in the course of business a share, in regard to which I have the representation of the company that that section has been complied with." The conduct of the Municipalities in these proceedings has beets for years such as to assure the tenants that the tenancy was acceptable to them as valid. This was sufficient in the circum‑ C stances of these cases to create estoppel because granting tenancy was not ultra vires the Municipalities‑the method only was illegal. This view is explained in the Law of Evidence by Wood roffe and Amir Ali (9th Edn.) at page 869 as follows:‑ "The principle of estoppel by conduct applies to corporations as well as to individuals, with this qualification, that if the act undertaken was in and of itself ultra vires of the Corporation, no act of the body, can have the effect of estopping it from alleging its want of power to do what was undertaken . . . . . In the case of corporations, particularly joint‑stock companies the application of the rule sometimes gives rise to difficulty, but such difficulty, is met by bearing in mind the distinction between those things which the company can do, if it goes the proper way to work to do them, and those things which by virtue of its constitution the company can under no circum stances do at all." Lahore High Court appears to have impliedly acted on that qualification with respect to Municipalities. See in this connection the trend of thought of Bhide, J., Cold‑stream, J. and Jai Lal, J. in Faqir Chand v. Municipal Committee, Ludhiana (155 I C 491), Md. Hussain v. Sialkot Municipality (A I R 1936 Lah. 689) and Anant Ram v. Small Town Committee, Pundri (A I R 1937 Lah.84). Bhide, J. has observed at page 491 as follows:‑-- "But it seems to me that although the Committee had no power to grant the sanction, it would now be estopped from withdrawing it and requiring the plaintiff to demolish the structure. As stated above, the Committee accepted a penalty of Rs. 35 and granted the necessary permission in writing for the structure erected by the plaintiff."

34. It is true that a corporation has no power to do that' which the law has not permitted it to do; but if the law has permitted it to grant leases in a certain manner, then the manner is subservient to the purpose. It would be erroneous to treat 1 the manner and the power at par. This distinction is well explained in section 755 at pp. 785‑86 of Volume 13 of the American Jurisprudence, as follows:‑ "on principle, it would seem that the terms `illegality' and `ultra vires' represent totally different and distinct ideas. A contract of a corporation may be both ultra vires and illegal, though it by no means follows that because such a contract is ultra vires it is also illegal; nor is illegality a necessary, or perhaps even a usual, characteristic of ultra vires contracts. Whether a contract is illegal or not is determined by its. quality, and in this connection it matters little whether it is the contract ; of a corporation or of an individual; whether it is ultra vire or not is determined from a consideration of the powers expressly conferred upon the corporation by the instrument of its creation, together with those other powers implied in the purposes of its creation and in the powers expressly granted."

35. In the cases that are under consideration now the tenants can in the above view rely on the conduct of along duration of the Municipalities and clinch the argument by pointing out that rent was received by them as a beneficial incident of that relationship,, They can insist that the Municipalities are estopped now from contradicting their conduct by pleading the technicalities of law for accomplishing a wrong and not for advancing justice.

36. The contention that Municipalities are not bound by any illegal acts of their servants and employees is founded on too sweeping a proposition of law... I submit with profound respect that that proposition was the foundation of the authorities in which the view was taken that a corporation can in no cir cumstances be saddled with the responsibility or any commitment that was illegally made. As a general reply to the proposition I may quote from page 1011 of Sarkar on Evidence (10th Edit.): "The principle of estoppel by conduct applies to corporation as well as to individuals. A corporation is bound as much a an individual by the wrongful acts of its servants and the result of misrepresentation (made) by an agent is the same in the case of a corporation as in the case of an individual." But, as pointed out later in the same paragraph of that book this principle is often departed from in the case of corporations. The reason is that (a) corporations are the creature of law and (b) "there can be no estoppel against law." This view was recognized to be a hard and narrow one in the case of Radha Krishna Das v. The Municipal Board of Benares (I L R 27 All. 592) but satisfaction was found in the reply of an English authority that‑ "It may be said that this is a hard and narrow view of the law; but my answer is that Parliament has thought it expedient to require this view to be taken, and it is not for this or any other court to decline to give effect to a clearly expressed Statute because it may lead to apparent hardship. Brett, L. J., in his Judgment said:‑-- "I think that the mere want of seal prevents the plaintiffs from recovering, and I am further of opinion, having read, all the cases on the point, that the fact that the defendants had the benefit of the contract will not prevent them from setting up the statute in answer to the plaintiff's claim.. The mere want of a seal is a complete bar." The above view is reproduced in the Judgment from H. Young 8c Co. v. The Mayor & Corporation of Royal Leamington Spa (1883 L R 8 A C 517). It has been supplemented by further quotations from that authority such as these:‑ "It is true that this works great hardship upon the new applicants . . . . It is, however, for the Legislature to determine whether the benefits derived by enforcing a general rule are not too dearly purchased by occasional hardships. . . That is the importance of the seal . . . . The decision may be hard in this case on the plaintiffs, who may not have known the law. They and others must be taught it, which can only be done by its enforcement." If one of the objects is teaching law to the public then with all respect, it is a hard way doing so and certainly not the way of teaching law to the Municipalities in these cases. As great emphasis has been laid in the above observations on the affixation of seals, therefore, I may submit with the deep respect that the common law requirement of affixing seals is not now regarded, as one without exceptions. A division Bench of the Madras High Court has quoted with approval in Municipal Council, Tiruvarur v. Kannuswami (A I R 1930 Mad. 600) the following observations made by the Judges of the Calcutta High Court in Muhammad Ibrahim Moola v. Commis sioner for the Port of Chittagong (A I R 1927 Cal. 465): "It is a rule of common law in England that, with certain exceptions, a corporation is bound by those contracts only which are made under the Corporate Seal. The exceptions are‑(i) where the contract is ‑ executed, (ii) in small matters of very frequent occurrence, and (iii) where it is impossible to affix the seal, as in cases of great urgency." Venkoba Rao has explained seven exceptions, at page 641 of his commentary on the Indian Contract Act (1951 Edition), "to the general rule of the common law that any expression. of the corporate will in the case of corporations aggregate to be legally effective must be under seal," and has supported them with case law. Under exception (f) he has quoted the remark of Cockburn, C. J. that the rule requiring seal on contracts of Corporations created for trading purposes was a‑ "relic of barbarous antiquity." The form and method of transaction are to be recognised separately from the authority of doing it and to be given respective importance. Thus in respect of even constitutional requirements of transactions made by the state more importance has been given to the existence of authority in the servant or employee who acted for the state than to the formalities which may be directory and not mandatory. See for instance The Province of West Pakistan v. Mistri and Patel Company (P L D 1959 Kar. 782.). The idea which needs emphasis is that the object of a provision and the justification of the action taken under it are paramount and that the technique of performance is subservient to them. Venkoba Rao has pointed out in his above‑mentioned commentary at page 649 that‑ "Even when the articles expressly prohibit the managing agents from borrowing, if they borrow in contravention of the articles and the money so borrowed is applied for carrying on the business of the company, and the transaction is bona fide it will bind the company. Even when the articles require the seal to be put in the presence of two directors, if only one director signs, acting on the agreement by the company would give rise to an estoppel. Even in the case of ultra vires borrowing by the company, if it has been spent in paying off just debts the lender can stand in the shoes of the creditors who have been paid off." The above observations are founded on the following authorities: (1) T. R. Pratt Ltd. v. E. D. Sassoon & Co. A I R 1936 Bom. 62 at pp. 75, 78 & 80. (2) Equity Insurance Co. Ltd. v. Dinshaw & Co. (Bankers) Ltd. A I R 1940 Oudh 202 at p. 204. (3) Probodh Chandra Mitra v. Road Oils (India) Ltd. A I R 1930 Cal. 782 at p. 787. (4) In re: Airedale Co‑operative Worsted Manufacturing Society, 1933‑I Ch. D 639. (5) Sinclair v. Brougham 1914 A C

398. The last two Judgments are to be noted in particular. The crux of the problem is explained in section 758 at page 788 of Vol: 13 of American Jurisprudence as follows:‑ "In the modern cases especially, the rule has been frequently announced that the plea of ultra vires should not be allowed to prevail, whether interposed for or against a corporation, when it will not advance, justice, but, on the contrary, will accomplish a legal wrong."

37. The overall conclusion accordingly is that the leases which are in question in these proceedings were not required by the special statutes and the rules made under them to be in writing. Even if the view in this respect be to the contrary, the actions of the Municipalities taken in those cases to‑evict the parties are bad in view of the provisions on which their counsel have relied because the notices necessary under them have not been given. Mr. Fazle Haq conceded this on behalf of the K. M. C. Additionally the conduct of the Municipalities has been such as' to create estoppel against contradicting it by que3tioning the validity of the leases on which the parties have acted for years As a result of these conclusions I. A. No. 44 of 1964 is accepted with costs throughout, the judgment of the trial Court is set aside and the suit is decreed for declaration that the K. M. C. is not entitled to eject the plaintiffs in the manner in which it has sought to eject them as well as for injunction restraining the K. M. C. from evicting the appellants in the manner in which it has attempted to do. Consequently M. A. No. 16 of 1964 is accepted with costs. Similarly II. A. No. 397 of 1964 is accepted with costs and the Judgment of the First Appellate Court is set aside. K.B.A. Appeal accepted.