P L D 1986 Karachi 574 (PLP)

(5) That he should furnish this office with monthly production disposal returns in such a way that they should reach office regularly by first of the succeeding month. (6) That in case it is found that the area or any part there of was not free and has been granted by in‑advance, the grantee will release the same unconditionally as and when required to do so and will have no claim for any compensation. (7) That in case the area is required by Government for any public purpose the lease will be revoked at any time. (8) The royalty charges will be determined by the Mukhtiarkar Kotri by deputing a Supervising Tapedar who will lease the calculation on actual measurement of the excavation. (Sd.) Illegible. for Deputy Commissioner Dadu. Copy f. w. cs. to the Commissioner Hyderabad for information. Copy f. w. cs. to Director of Mineral Development Lahore for information. Copy f. w. cs, to the Deputy Collector Kotri for information and necessary action. He should ensure that the permit holder starts excavation after complying with the above conditions. Copy to permits holder with reference to his application dated 27‑6‑1969.

27. A study of the above legislative history, relating to the subject reveable that sections 62 and 69 of the Land Revenue Code do not provide for granting of a permit of the nature in question. Rule 66 of the Land Revenue Rules, however, provides for removal of earth, sand, stone etc. but the provisions of the Act of 1948 and the Pakistan Mining Con‑G cession Rules 1960, shall have effect, "notwithstanding anything inconsistent therewith contained in any enactment or in instrument having effect by virtue of an enactment other than the said Act" of 1948. It is noticed that the terms in which the power under rule 66 is expressed are very wide but they must be understood in relation to "notwithstanding clause" of the Act of 1948 read with the Rules of 1960. Rule 66 of the Laid Revenue Rules does not lay down any condition whereas the Pakistan Mining Concession Rules, 1960 read with the Memorandums, referred to above, issued thereunder, prescribe certain conditions as to the maximum area of the land, maximum quantity of the stone, the fees to be levied and the royalty to be charged, which being inconsistent with sections 62 and 69 of the Land Revenue Code and rule 66 made thereunder, will prevail.

28. There perhaps, seems to be another distinction. To my mind, if the work is to be executed on the surface, say just for removal, it may be said to be covered by rule 66 of the land Revenue Rules, subject toy "notwithstanding clause", but if it involves surface or under‑surface work, say, excavation of stone etc., it falls within the ambit of the Concession Rules. This view finds support from a Letter No. D. M. C./Minc: 70(40)/ 54, dated 18‑11‑ 1954 issued by the Director Mineral Concession, Government of Pakistan, a copy whereof was forwarded by the Deputy Secretary to Government of Sind to the Collector for Dadu for information and guidance, under No. 129‑23‑1/54 Revenue Department, Sind Secretariat, Karachi, dated 6th December, 1954, copy whereof was produced by Mr. Mangi, during the course of arguments (with no objection by Mr. Fazeel) relevant the portion whereof reads as under:‑ Subject: Removal of Bajri of Limestone or Sandstone from the surface. Sir, I have the honour to state that the question whether the removal of Bajri (whether of Limestone) from the surface falls within the purview of Pakistan Mining Concession Rules, 1949, has been decided that in case where the removal of Bajri from the surface does not involve excavation or sub‑surface working, it does not come within the purview of Pakistan Mining Concession Rules and as such is outside the jurisdiction of the Department of Mining Concession. (2) The Central Government will, therefore, have no objection to the removal of Bajri from the surface by any person without obtaining a prospecting licence or a mining lease for the same provided that Bajri is now removed from the area which has already been learned out to any person by the Department of Mineral Concessions. This proviso is considered necessary to avoid any dispute between the leasee and any other person who may like to remove from the land. In the instant case the permit envisages excavation, involving sub‑surface work, which exclusively falls within the ambit of Concessions Rules and is beyond purview of rule 66 of the Land Revenue.

29. It is noticed that the definition of 'Mines' or 'Minerals' does not find place in the Regulation of lines and Oilfield and Mineral (Develop ment) Control Act, 1948. The Mining Concession Rules 1960, defines the word 'Mineral' as to "executed Petroleum and Natural Gas". However, the word "Mines" has been defined in section 3( f ) of the Mines Act, 1923 as "Mine" means any excavation where any operation for the purp:)s of searching for or obtaining mineral has been or is being carried on, and includes all works, machinery, tramways and sidings. whether above or below ground, in or adjacent to or belonging to a mine". I have been able to find the definition of 'Mineral' in the Punjab Minor Minerals Rules, 1933. Rule 2 (i) of the same defines "minerals" as including "all kanker (Calcoreous carbonate of lime), stone marble, china‑clay, steatite, boulders, shingle, gravel Lori, and Bajri but excludes coal, the ores of metal earth oil, gold and salt and minerals the extraction of which is governed by the Punjab Mining Manual". Assistance may, thus, be had horn this definition and after reading the several provisions on the Mining Concession Rules, the four Memorandums and the conditions of the permit it can easily be concluded that the permit in question appears to have been issued under the provisions of the Pakistan Mining Concession Rules, 1960. This in fact is also the case presented initially by the plaintiff vide Exh. 4/19, letter addressed by his counsel to defendant No. l stating that has been granted mining permit". Furthermore, it was pleaded by the plaintiff before the L. P A. Banch the permit was issued under the Mining Concession Rules and in this respect reliance was placed on the three Memorandums, referred to above, (vide order dated 26‑101975 passed in L. P. A. No. 85 of 1971).

30. The contention of Nomani as to the ultra vires of the provisions of sections 62 and 69 of the Land Revenue Code to the Act of 1948 though for the reason stated above is only a ademic, however, holds good asp,, between the Provincial Law and the Central Law, the Central Law will` prevail to the extent of inconsistency between the two, as already seen by me above, which is also evident from the provisions of the Act of 1948 and the Rules made thereunder, already referred by me,

31. The plea that rule 66 is ultra vires to sections 66 and 69 of the Land Revenue Code, as the main sections do not provide for the grant of permit, though, again, is of academic interest, has no force, for the reason, namely, when sections 62 and 69 give power to grant lease of land, the granting of permit in respect of the land for removal of sand and stone etc. being an inferior purpose in nature, for a temporary period, will be deemed to be included in the main power. Perhaps, the same thing may be said about the power to issue permit for excavating stone etc. under the Mining Concession Rules read with tile said Memorandums.

32. The plea that the permit is invalid, as it has not been signed by the Deputy Commissioner himself, is devoid of any merit inasmuch as the office file produced before L. P. A. Bench and, later on, exhibited i evidence at the time of trial of the suit, shows that the order granting the permit was passed on the file by the Deputy Commissioner, Dadu under his own signature.

33. It was also contended by Mr. Nomani that the permit has been issued in respect of 800 acres only. The said permit, as such, is invalid. Mr. Fazeel, in reply, submitted that in such a case the doctrine of severality will be applicable and the permit will be deemed to be validly issued in respect of 500 acres only. In this respect he referred to the site‑plan annexed to the plaintiff's application which shows that the 800 Acres of land has been divided into two portion; 500 and 300 each divided by the intervening road, then, of course, under construction by defendant No.

1. He, thus, submitted what since the land has been divided into two distinct portions, namely 500 and 300 acres each, the whole grant will not be invalid. He placed his reliance on Halsbury's Laws of England, Third, Edition, Volume 30, page. 223, paragraph 402, which reads under: ‑ "

402. Excessive length.‑If a lease which otherwise complies with the power in pint of form (Bishop of Bangor v. Parry, (1891) 2 Q B 277 is granted for a term in excess of that authorised, it is good as to the period authorised but void as to the excess Alexander v. Alexander (1755), 2 Ves. Sen. 640, at page 644 ; Compbell v. Leach)." He also placed his reliance on Alexander v. Alexander (28 Eng. Rep. Ch. 8 (408)). Campbell v. Leach ((1931) 27 Eng. Rep. 47), referred in the above passage Re Turner Hudson v. Turner (1931 All ‑E R 782), and Fazal Ilahi v. East Indian Railway Company (A I R 1922 All. 324). These cases go to support the contention of Mr. Fazeel. I am, therefore, of the view that the permit granted in respect of 800 Acres cannot be struck down as a whole, on the ground that it is in excess the power alleged to have been conferred on the Deputy Commissioner. The land being easily apportionable, the permit is to be held, subject to other objections, which I will presently deal with, as valid to the extent of 500 acres of land which is, in fact, the subject‑matter of dispute relating to its use by defendant No. 1, as the entire work of excavation has been carried out by defendant No. 1 IV in that area of 500 Acres only. In support of this view, the provisions of section 227, of the Contract Act, 1872, may also be invoked, which provide that when an agent does more than he is authorised to do, and when the part of what he does, which is within his authority, can be separated from the part which is beyond his authority, so much only of what he does as is within his authority, is binding as between him and his principal.

34. The plea of Mr. Nomani that the delegation of power under rule 3(2) of Vie Rules of 1960 to the Deputy Commissioner is invalid as the relevant Memorandum has not been published in the official Gazette, seems to carry some weight. The Rules for which the Act of 19.18 provides for publication, also provide, in rule. 3(2), for delegation of power by notification, to be published in the official Gazette. Neither Mr. Fazeel nor Mr. Mangi has produced any notification published in official Gazette. Mr. Fazeel has also, in reply, not at all adverted to this objection of Mr. Nomani. The Memorandum delegating .the power to Deputy Commissioner, therefore, does not appear to have been published l0 in an official Gazette. The permit will thus be held as vitiated against defendant No. 1, so as to impose on it a liability arising out of the same.

35. It is also noticeable that the alleged permit was granted in disregard to the express condition laid down in the Memorandum dated 2‑3‑1983 that the permit be issued in an area where "no sub‑surface work involved". Evidently, the area was in occupation of defendant No. l where such‑surface work was going on. In spite of it, the alleged permit was granted.

36. The plea that the permit was fraudulently procured by the plain tiff, forming part of issue No. 1, some of the facts cast a shadow of doubt on the conduct of the Mukhtiarkar, Kotri and the plaintiff, which go to support the contention of Mr. Mangi that the issue of the permit was the result of a collusion between the plaintiff and the Mukhtiarkar. These facts may briefly be stated as under:‑ (i) On 12th June, 1969, variation Order No. 27, is passed by defendant No. 2, whereunder, the said defendant undertakes to reimburse defendant No. 1. inter alia, for all expenses incurred in obtaining any quarry materials. In that very month, i. e. June, 1969, defendant No. t carries out certain visible preliminary works, such as errection of pilfers, Ramps at Mile 81 and the machinery is also brought there to start the actual excavation of stone. Just after 15 days, i. e. on 27‑6‑1969, the plaintiff' applies for permit for the same land i. e. Mile

81. This land at that time was a desert. There was no approach road to it for the public. The access road in the area was, however, built by defendant No. t in October, 1968, which was closed to the public, as deposed by the witness of defendant No. 1. (ii) Admittedly, the plaintiff has no previous experience. He has no machinery and, pr,,bably, no technical personnel to do the job. The question is; why is it that he applies for quarry right at Mile 81 only? Probably because, it is the Mukhtiarkar who is in league with the plaintiff. It ig the Mukhtiarkar who knows that defendant No. 1 as to start or has started excavation at Mile 81 and the money may be recovered from them, under the Variation Order No. 27. (iii) The plaintiff applies for grant of lease .for one year, but no application fee, as required by Mining Concession Rules, is paid alongwith it. (iv) The application was for grant of one year's lease, but it was processed for permit, probably because, for lease, it was to be entertained by the Director. Mineral Resources, Government of West Pakistan and not the Deputy Commissioner, Dadu. No copy of the permit was endorsed to the Bureau of Mineral Resources Karachi. (v) The application of the plaintiff dated 27‑6‑1969 addressed to the Deputy Commissioner specifically states the 'cantity (sic) to be excavated would be 5,000 tons' but the permit issued to the plaintiff is silent about the quantity, in spite of the fact that the Memorandum, dated 2nd July, 1960, clearly directs that 'the quantity will he specified in the permit so issued and will not exceed more then 5,1100 tons'. Although the insertion of above sentence stating 5 000 tons is denied by the plaintiff. but it is in the same handwriting as that of the correction of 1,0 0 (acres) to 800, and both appeal to have been initialled by the same person, presumably the plaintiff himself. It is also noticeable that the noting portion contained in the office file (Exh, 4/36) also, mention 5,000 tons at more than one places. (vi) The application is alleged to have been made to the Mukhtiarkar on 27‑6‑1959. It is retained by him and is received in the office of Deputy Commissioner, as per office note, on 8‑8‑1969. In fact, the Deputy Commissioner calls for an explanation for the delay in submitting the application to him. (vii) The plaintiff, after the grant of permit takes no sups under the permit. He does not pay even 'the surface fee, as required by the permit itself,, what to say about the payment of rent/royalty in advance as required by the Memorandum dated 25-5‑1962. (viii) The Mukhtiarkar, at no point of time, cares to see if the plaintiff has complied with the terms and conditions of the permit . (ix) As will presently be seen, while examining the other issues‑ (a) the land is not surveyed by the Mukhtiarkar, nor the survey fee is deposited by the plaintiff, till 2‑6‑1970, say, it was deposited about three months after the expiry of the period of the permit. (b) There is nothing in the office file to show that the area was demarcated a, the site by fixing the boundry pillers as required by the Condition No.

4. Same is the case with the fact of possession. There is nothing to indicate that the possession of the land was ever delivered to the plaintiff. (x) There is nothing to show on the office file that the plaintiff ever furnished the office of the Mukhtiarkar with monthly production and disposal return as required by Condition No. 5 of the permit. Nor the Mukhtiarkar ever asked for the same. (xi) The knowledge on the part of the Mukhtiarkar can be assumed that the area in question was not free as it was already in occupa tion of defendant No. 1 and the permit could not materialize in favour of the plaintiff, for that area i. e. site at Mile 81. (xii) As per admission of plaintiff (vide Exh. 4/15), it was in his knowledge that 'the work (of construction of highway) was there (at the time of grant of permit) being carried out near my client's (plaintiff's) land." (xiii) Knowing it fully well that the plaintiff has not taken any steps under the permit, the Mukhtiarkar issues notice dated 5‑1‑1970 to the plaintiff demanding a sum of Rs.11 lacs, as royalty. Not only that, he also mentions in the notice that it is defendant No. 1 who have excavated the land and taken away the stone, as required by them for construction of the Highway. (xiv) The plaintiff sits omit and does not contest or protest against such a huge amount nor he, complains to defendant No. 1 at that very moment. (xv) The 6 months' period of permit ending on 24‑2‑1970 is conven iently allowed to pass, so that the defendant No. 1 may, in the meantime, complete excavation and then another notice is issued by the Mukhtiarkar to the plaintiff to pay the royalty within two weeks. (xvi) By letter dated 3‑3‑1971 the Mukhtiarkar reconfirms his previous estimate of 30 lacs tons of stone, which the defendant No. 1 had removed to their requirement. Not only that, it is further stated in the said letter that a portion of the same is 'still lying on the site'. He further writes, 'I found that Cogefar Astaldi are selling stone on the site to Mr. Ishaque and others who on inquiry stated that they had purchased the same from Cogefar Astaldi' (defendant No. 1). It appears that all this has been stated by the Mukhtiarkar, probably, with a motive to create evidence for the plaintiff, so as to pressurise defendant No. 1, who being a foreign firm, was, then, about to leave Pakistan, to settle the matter with the plaintiff which may result to the benefit of the Mukhtiarkar as well. (xvii) The matter for the recovery of the alleged amount of royalty in the sum of Re. 11 lacs is not processed by the Mukhtiarkar at all Mr. Mangi stated before me that the Mukhtiarkar, without recourse to the Deputy Commissioner, was not authorised to raise that demand and to carry on that sort of correspondence. No action or steps for the recovery of the same are taken as required by law till today. (xviii) The knowledge can be assumed oh the part of Mukhtiarkar that the area in question was not only required by Government, but was actually occupied for the fulfilment of the public purpose i. e. the construction of Super Highway, but still the permit was issued and, therefore, at no time revoked. Condition No. 8 provides for determination of the calculation of actual measurement of the excavation, but no action seems to have been taken in this regard as per office file. (xix) The office file (Exh. 4/35) does not contain the alleged measure ments, either original or a copy thereof. (xx) The original permit was not produced by the plaintiff either before the L. P A. Bench or in the Suit. It is only a certified true copy of a copy of the permit. it, therefore, remains doubtful whether the permit was issued at all to the plaintiff or was it with held, as suggested by defendant No. 1 in his cross‑examination to the plaintiff. All these facts go to show that the action for entertaining, the applica tion, issuing permit and writing a number of letters for payment of royalty so as to enable the plaintiff to claim the same with costs of stone from defendant No. 1 was a result of conspiracy and collusion between the then Mukhtiarkar, Kotri and the plaintiff, to make a wrongful gain ants was an "all arranged" affair between them, as submitted by Mr. Mangi.

37. On the question, raised in clause (iv) of para. 4 of the written statement of defendant No. 1, forming second part of issue No. 1 (and also separately numbered as issue No. 2), whether the rights in the land were not available for allocation to the plaintiff, Mr. Nomani referred to para. 6 of the permit (Exhs. 4:35 and 4/2), which reads as under:‑ "In case it is found that the area or any part thereof was not free and has been granted by inadvertence the grantee will release the same unconditionally as and when required to do so and will have no claim for any compensation." , Mr. Nomani, thus, submitted that because of the above condition. the plaintiff' did not protest against excavation by defendant No. 1 as the land. to the knowledge of the plaintiff himself, was not available for allocation to the plaintiff. As the land was already in occupation of defendant No. 1,1 it appears, the same was not free for allocation to the plaintiff. The Makbtiarkar was in the know of it and that is why‑Condition No. 6 was perhaps, included in the permit. Finding in affirmative.

38. Mr, Nomani submitted, as to the question, whether in terms of the contract, dated 20th March, 1967 defendant No. 1 had acquired the right to enter upon or to exploit all the quarry rights for the purposes of construction of the Karachi Hyderabad Super Highway for itself as stated in clause (vi) of para. 4 of the written statement of defendant No. 1 and aim raised in issue No. 3, that the materials described in the contract, including stone etc. (for constructing road), it was the obligation of the employer.

39. In the Contract Documents of November 15, 1966, Volume I, under the Conditions of Contract, Part I, page 1, the "constructional plaint" has been defined under paragraph 1(1)(i) as under :‑ 'Constructional plant' means all appliances or things of whatsoever nature required in or about the construction, completion or maintenance of the Works or temporary works but does not include materials or other things intended to form or forming part of permanent or temporary works." Reference may also be made to paragraph 1‑7 of Volume II of the said Contract Documents. whereunder the "Availability of Construction Materials" has been described in detail. It is provided in sub‑paragraph (4) of para. 1.7 in respect of "Sources of Aggregates" (defined in the Glossary as 'crushed stone processed gravel, shingle', as under "Sources of aggregates.‑These are located along the alignment f largely in the form of river sands and gravels and limestone deposits. These are same suppliers working, small gravel deposits near Karachi, but quarries and gravel pits will have to be developed for the highway construction. Much of the land along the alignment is owned by the Government and a nominal royalty is levied for materials removed. There the materials are obtained from private land, there is an additional compensation paid to the owner." Reference may further be made to paragraph 4‑1.5 under the heading "Borrow" which provides that "If there is not sufficient excavated material of a suitable quality to complete the embankment, sub grades. shoulders are backfilling to the required lines and grades, the Contractor shall borrow the necessary additional material. Borrow shall be paid for under the regular item of 'Unclassified Excavation". The source and accept ability of the borrow material shall be subject to the approval of the Engineer at all times. Acceptability of the borrow will be determined not only by the characteristics of the material itself but also whether it will be satisfactory in that portion of embankment in which it is to be used. Any soil having a natural in place moisture content in excess of 2 per cent. water than Optmum Moisture Content, as determined by the A S. T. M. Designation : D 155 7 will not be considered as acceptable borrow‑ material unless approved by the Engineer."

40. On the other hand Mr. Fazeel, referring to clauses 4‑1.5 and 1‑7(4) of the said "Contract Documents" submitted that according to the Contract between defendant No. 1 and the Government, the defendant No. 1 were. themselves liable to pay for all borrow pits for aggregate used by them. Mr. Fazeel further submitted that defendants have, in fact, paid to some other private parties in Karachi Area for the aggregate used by them, but have been wrongly denying their liability to the plaintiff on the basis of item No. 73 of their contract.

41. Reading the Contract with its conditions particularly paragraph (4) of clause 14, it appears that defendant No. 1 had the right to enter upon the area and carry out its operation on the Government land with, the object of obtaining materials needed 'for the purpose of constructing the Highway, on payment of nominal royalty (to the Government) and for private land to pay extra compensation to private land owners, and pay for borrow pits outside the highway. Finding accordingly.

42. Regarding demarcation and possession being the fact in issue No. 4, as also raised in clause (vii) of para. 4 of the written statement of defendant No. 1, the plaintiff in his deposition has asserted that the land in question was demarcated and its possession was taken by him, but he has failed to prove is by producing any evidence whatsoever. On the other hand, defendant No. 1 by the evidence on record seems to be in possession of the area, including the land in question much prior to the grant of the said permit. Defendant No. 2 also does not support the assertion of the plaintiff. The plaintiff does not say in his examination in‑chief a word about the demarcation and possession. In the cross examination to the counsel for defendant No. 1, he, however, stated that "I had not personally visited the area of operation because it was not necessary for me to do so as my employees used to work there. When first I was granted the permit my staff had gone to the area but when the defendant No. 1 installed their machinery in the area my staff did not go to the area because it was not necessary. My staff did not prevent defendant No. 1 in the area". The plaintiff further stated that "I had not purchased any machinery for quarrying or crushing the stone, nor any truck for the purpose. I did not change any labour. I know the conditions of the permit. We had installed the boundary pillars to demarcate the area allotted to whose pillers were two feet high. Initially stone were kept at the places which were subsequently substituted with wooden parts. We had purchased wood from Kotri, but I cannot say from whom the wood were purchased as I had not gone personally to purchase the wood. I cannot say how much amount was paid for the wood. I do not possess any receipt for the payment". As to the demarcation and possession he further stated in the cross‑examination "the boundary marks was taken after permit. I do not remember if any document was prepared for handing over possession". As against this the Resident Engineer of defendant while giving evidence deposed that "Since the month of January 1969, i. e. since we started tapagraphic survey and taking of samples at mile 81, it would have been possible to infer that we intended to instal, the quarry and the cruching plant just there'. He further deposed‑'The terrain at mile 81 was a deposit of calcareous rock. The availability of access existed since October 1968 because we had built the track, but the said track for safety as well as insurance reasons, was exclusively reserved for the Company's vehicles and, therefore, was closed to the public."

43. The plaintiff, in the circumstances. could, probably, have no] access to the mile

81. He has failed to produce any one from his staff, or the Government to prove that the area was demarcated. The burden of proof entirely rests on him. His sole word, in the absence of any evidence, oral or documentary, particularly when it pertains to be given by the Government officials, and the office file, on the point, being silent, cannot be believed. The assertion of the plaintiff is nothing but a lie. My finding, therefore, is in the negative.

44. As regards issue No. 5, it was not pressed by defendant No. 1, but, was argued strenuously by Mr. Mangi for defendant No.

2. The plaintiff did not say a word in his examination‑in‑chief about the payment of any amount to the Government towards any fee or royalty. About the permit fee he has simply stated in the cross‑examination that ''I cannot say if I paid the permit fee after the expiry of the permit period". However, Mr. Fazeel submitted that the fee of Rs. 800 was paid on 2‑6‑1970. It is, therefore, apparent that the fee has been paid after the expiry of the period of the permit. The Mining Concession Rules, 1960 require the fee to be paid alongwith the application and the Memorandum requires the payment of royalty in advance, the plaintiff under Condition No‑3 was required to credit the amount of fee and royalty into the Government Treasury as required under the Act of 1948 and receipt copy T of challan to be submitted to the office of Deputy Commissioner which the plaintiff failed to do, as required. Moreover, the Memorandums dated 2nd July, 1960 and 15th January, 1962 mention the rate of the royalty and require the payment to be made in the Government Treasury as to rents, royalties, annual fees and surface fees and the copy of the receipted challan sent to the Buearue of Mineral Resources for record. It is also required by the Memorandum, dated 2nd March, 1963 that the royalty is to be deposited by the permit‑holder in advance. The plaintiff, therefore, has failed to prove the payments, as required under the Mining Concession Rules and the Memorandums issued thereunder. It is signifi cant to note that the Deputy Commissioner, Dadu while forwarding a copy of the permit to the Deputy Collector, Kotri for information and necessary action, required him to ensure that the permit bolder starts excavation after complying with the conditions stated in the permit". It implies that the right, if any, was to accrue to the plaintiff only on crediting the amount of fee and royalty into the Government Treasury as required by Conditions Nos. 1 and 3 of the permit read with the Roles and the Memorandums. The application fee at the rate as stated in the Rules, was to be paid alongwith the application, which will be entered into the register. No such fee has been stated to be paid at all. The permit under its condition No. 1 specifically provided that the permit holder will pay surface fee at RI. 1 per Acre. The compliance of this condition, alongwith some others, was a condition precedent before any excavation could be started by the plaintiff, as per direct issued to the Deputy Collector, Kotri, referred to above. The plaintiff has. Tailed to comply with the condition of the permit. The person having authority to issue permit has the power to impose conditions in respect of such permit. The permit in question, it is U apparent. was subject to certain express conditions. The plaintiff has, on his own showing, failed to comply with the said conditions. The plaintiff, therefore, did not act in accordance with the conditions of the permit, the Memorandum and the provisions of the Mining Concession Rules, and particularly by non‑compliance of the conditions laid down in the permit has run the risk of inviting its sanctions. The effect would, therefore, be that the permit will be held as ineffective and of no consequence.

45. As regards clause (xii) of para. 4 of the written statement forming second part of Issue No. 1 as also raised in Issue No. 6, (which was not argued separately, as merged into clause (xii) above), it is specifically stated in the permit that in case the area if required by the Government for any public purpose the lease will be revoked at any time, it is noticed that although the area was already physically engaged in carrying out a public purpose, but the permit was not specifically revoked by defendant No. 2, apparently due to collusion between the Mukhtiarkar and the plaintiff. Finding accordingly.

44. As regards Issue No. 9, it seems inter‑linked .with other issues already discussed. It has already been held ' by me ,that the plaintiff did not take possession of the land and defendant No. 1 was already in occupation of the land when the plaintiff applied for it and the permit was issued to him. It is stated in the permit itself that in case it is found that the area or any part thereof was not free and has been granted by inadvertance, the grantee will release the same unconditionally as and when required to do so and will have no claim for any com pensation. It is established on record that the land in question at the time of granting the permit, rather some time prior to it, was physically in occupation of defendant No. 1 and the land was not free for a grant on permit or lease whatsoever. This fact was not brought to the notice of the Deputy Commissioner, Dadu by the Mukhtiarkar of Kotri while recommending the plaintiff's application for the grant of licence to him. y It appears that the Deputy Commissioner Dadu granted the said permit by inadvertence. However, it was at no time found by defendant No.2 that the land in question was not free and had been granted b inadvertance. The plaintiff was at no point of time required to release the same de facto, probably because of the collusion between the Mukhtiarkar and the plaintiff. Finding accordingly.

47. My conclusion Issue No. 1, for the combined reasons, as discussed above, is that the .permit, in effect, rendered itself as invalid and ineffective. Findings on Issues Nos. 2 to 6 and 9 have already be cue recorded separately, which also have got bearing on finding of Issue No. 1.

48. Issue No. 7.‑In order to establish the alleged quantity of 30 lacs tons of stone excavated by defendant No. 1 from the land covered by the said permit, Mr. Fazeel relied on Exh. 4/3, a letter dated 5‑1‑1970 issued by the Mukhtiarkar to the plaintiff and Exh. 4/6, a letter dated 3‑3‑1971, also issued by the Mukhtiarkar to the plaintiff reconfirming the said quantity, further alleging that defendant No. 1 have removed the stone in their requirement and a portion of the same was still lying on the site. Not only that, but it was further alleged by him that on enquiry he (Mukhtiarkar) found that defendant No. 1 were selling stone on the site to one Mr. Ishaque and others who, on enquiry, stated to him that they had purchased the stone from defendant No.

1. Mr. Fazeel has also placed his reliance on the statement of one Chowkidar Zamir, at page 39 of the file (Exh. 4/36) and measurements alleged to have been received from the Tapedar (Exh. 4/14), besides a number of other letters (Exhs. 4/5 and 5/23). The plaintiff in his evidence has stated that the said measurements (Exh. 4/14) were recorded by the Tapedar and provided to him. It has, however, been stated in evidence on behalf of defendant No. 1 that 30 lacs tons cannot be excavated and were not required even for the entire work. It was also stated that no stone were sold. However, the witness stated in cress‑examination, that he cannot say for certain that after completion of Highway, the stones were not sold. In any case, it was admitted by defendant No. 1 that the total excavated quantity of stone was 1,23,210 tons,

49. The plaintiff's assertion that defendant No. 1 exacavated 30 lacs tons of stone is solely based on the demand of Mukhtiarkar made to him through the several letters referred to above. The plaintiff could not and, in fact, has not stated anything from his own knowledge. I am afraid, the entire evidence produced by the plaintiffs to prove the quantity of 30 lacs tons does not bear any credence, in fact or law. The Tapedar, who has been alleged by the plaintiff to be the author of the measurements and who allegedly provided the said measurements 'to the plaintiff, was not produced in the evidence and same is the case with the Mukhtiarkar who was also not produced in evidence

50. In respect of the alleged measurements, it is significant to note that the Division Bench in L. P. A. No. 85 of 1971, at different times, while hearing the appeal against the order of a learned Single Judge refusing to grant attachment/ injunction against defendant No. 1, passed the following order on 17‑5‑1972 "The claim of the appellant is based upon the demand notice issued by the Mukhtiarkar whereby it is stated that 30 lacs tons of stone was quarried whereas it is the case of the respondent that 1,23,210 tons were removed from there. We would like to be certain as to the quantity quarried before we dispose of this application. Adjourned to 1st June, 1972, and it is further ordered, that the Assistant Advocate‑General should direct the Mukhtiarkar to appear alongwith his measurement book in which he has recorded the measurement and reached the conclusion as to the quantity quarried on the above date," On first June, 1972 in pursuance of the notice, issued by the Division Bench, referred to above, Mr. Osman Ghani Rashid, appeared and stated that the concerned Mukhtiarkar has been screened out and it has not been possible to get the measurement book as was required to be pro duced. He, therefore, requested for time. On 15‑8.1972 the statement made by the Assistant Advocate‑General was challenged and it was stated that the Mukhtiarkar had not been removed from service. On the contrary, he has been promoted. The L. P. A. Bench was then pleased to direct summons to issue to Mr. Ibrahim Bhatti by name, as he was the Mukhiarkar at that time, and the present Mukhtiarkar to produce or cause to be produced the measurement book in question on the next date of hearing. On that date. the summons did not appear to have been served. On 28‑9‑1972 the learned Assistant Advocate‑General stated that he was unable to secure his attendance. He, however, stated that there was "no documents." On 7‑11‑1975 the Assistant Advocate‑General further stated "no that documents, or, records are with the Government" and so 'the measurement alleged to have been recorded by the Tapedar and referred to by the Mukhtiarkar in‑ his letters, were not there. The concerned Mukhtiarkar was, however produced before the Court either in L.P.A. or in the suit. The measurement (Exh. 4/14) is only a carbon copy. The office file produced by the plaintiff does not contain any measurements at all, The plaint is also silent about the said document, It was neither filed alongwith the plaint nor was included in list of documents to be relied upon. The onus t9 prove the quantity of 30 lacs tons entirely rests on the plaintiff, which he has failed to discharge.

51. Mr. Fazeel has, however, contended that the said document (Exh. 4/14) has been admitted in evidence without any objection by the other side and thus stands proved. Reliance is placed by him on the cases reported as Malik Din and another v. Muhammad Aslam (PLD1969SC136) and Gopal Das and another v. Sri Thakurji and others (AIR1943PC83).

52. In the first‑named case P L D 1969 S C 136 the Hon'ble Supreme Court observed that :‑‑ "the objection regarding the defect, if an, in the method of proof of the document, cannot be raised at this stage. For, the document was admitted into evidence, without any objection, in the trial Court. It is now well‑settled that an objection, as to the formality of proof, must be taken at the earliest stage and if it has not been taken then, it cannot be allowed to be taken at the appellate stage."

53. In the second‑named case A 1 R 1943 P C 83 Mr. Fazeel relied on the following observation :‑ "where the objection to be taken is not that the document is itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complaint for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial."

54. It appears that in the Supreme Court case the objection as to the defect in the method of proof of the document was raised at the appellate stage of Second Appeal in the High Court, whereas in the Privy Council case the trial Judge admitted the impugned document and pointed out that on the face of the compromise of 1896 the receipt was declared to have been admitted and accepted together with the two wills of Manki Bahu. No discussion or decision thereupon appears to be recorded in the trial Court because, perhaps, no objection was taken at the trial to the admission in evidence of the receipt.

55. On the other hand, Mr. Nomani placed his reliance on the following observation of Sajjad Ahmad J., appearing at page 191 in the case reported as Khan Muhammad .Yusuj Khan Khattak v. S. M. Ayub and 1 others (PLD1973SC; 160), which reads as under :‑ "When I say that the document Exh. P. E. is unproved. I have in mind the mandatory provisions of section 67 of the Evidence Act, which lay down that 'if a document is alleged to be signed of written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting." If the case of the respondent was that the appellant had signed the original of Exh: P. E. or the certificate appended to it, it must have been proved that it was in the appellant's handwriting, for which no effort whatsoever was made. In the case of Bengal Friends & Co. v. Gour Benode Sah & Co., this Court had expressed itself on this point as follows :‑ `Documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them.' I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as `exhibits' as faithful copies of tire contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence Act. If instead of the copy Exh. P. E., the original form `E' which informed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued that by merely exhibiting it, the document should be taken for granted as bearing the signature of the appellant without proof that in fact it was written and signed by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it."

56. With all respect, I am inclined to follow the observations quoted hereinabove and also the observations of the Hon'ble Supreme Court in the case Messrs Bengal Friends & Co. Dacca v. Messrs Gour Benode Shah & Co. (P L D 1969 S C 447). There seems to be a distinction between a document, which is a copy of judicial record, and received in evidence without proof of signature and handwriting of the person alleged to have signed and written, and a document which has copy of the document not forming part of judicial record, but taken on record without an objection by the otherside. In the instant case the measurement (Exh. 4/14) is a carbon copy, alleged to have been signed by some Tapedar on 28‑12‑1969, with a heading as "measurement sheet Deh Taluka Kotri". The said document does not show any other thing. Presumably it pertains to the entire deh. It does not say that it pertains 'to mile 81 only or that the site at mile 81 falls within the said deh and if so how much part of the deh is covered by mile

81. It does not give any particulars as at whose instance the measurements were taken, when they were taken, and in whose presence were taken and they pertain to whom i.e. who carried out the excavation and the period of excavation. It bears no diary number or any other official number so as to indicate the case and names of the parties concerned with it. Unless the genuineness and authenticity of the documents and its contents, including its authorship and it relationship with the case, by putting the man in the witness box who is alleged to have written and signed the same is produced, the document cannot be relied upon, simply because the document, which a carbon copy, has gone on record without an objection by the otherwise. In the absence of proper proof, as to its signature, it cannot be taken a conclusive proof of the fact in issue as to actual measurement, particularly when the surrounding circumstances of the case including its non. production in L. P. A. cast a shadow of doubt on the authenticity of the document and authorship itself. My finding. therefore, is that the quantity of stone excavated by defendant No I at Mile 81, as 30 lacs of tons, has not been proved. It is only 1,23,210 tons, as admitted by and on behalf of defendant No. 1, as specified in their letters produced in evidence.

57. Regarding the second part of the issue that defendant No. 1 was required to take the plaintiff's consent or pay royalty for the excavated stone, my finding is that it was neither required nor possible for the reasons already discussed under Issues Nos. I and 2 to 6 and 9 and particularly for want of knowledge on the part of defendant No. 1.

58. Issue No. 8.‑This issue relates to the question whether the plaintiff has waived his right, if any, for reason of inaction, laches, delay and acquiesance. Mr. Fazeel submitted that the plaintiff was perusing actively his right against defendant No. 1 eversince he came to know of the unauthorised excavation of stone by them. In his deposition the plaintiff stated that although he was aware that defendant No. 1 was quarrying stone to the area licensed to him, but "he did not lodge any objection with the Government". He further deposed, "when defendant No. 1 installed their machinery in the area my staff did not go to the area because it was not necessary" . . . . MY staff did not prevent defendant No. 1 from operation in the area". Mr. Nomani, on the other hand, however, relied on section 115 of the Evidence Act, 1872. Mr. Fazeel further submitted that the question of estoppel or the waiver by the plaintiff does not arise and his right to claim from defendant No. 1 the cost of stone and the amount of royalty is not affected. In support of his submission, he relied on a number of decisions reported as: (i) Muhammad Hayat v. Ghulam Nabi and others A I R 1931 Lah. 598, (ii) Fakir Khan and others v. Ismail Khan and others A I R 1933 Lab. 179, (iii) Nandkishore and others v. Damodar Balaji A I R 1942 Nag. 59, (iv) Sh. Assudibai Sahijram, Mirpurkhas v. Sh. Hatibai w/o Vasudev and others A I R 1943 Sind 177, (v) Mst. Rahmatan v. Muhammad P L D 1963 (W. P.) Lab. 368, (vi) Qutnb‑ud‑din v. Muhammad Siddique P L D 1969 Lah. 418, (vii) Karachi Municipal Corporation v. Moosa M. Adam and 4 others P L D 1972 Kar. 571, (viii) Islamic Republic of Pakistan v. Israrul Haq and 23 others P L D 1981 S C 531, (ix) Treasurer of Charitable Endowments for Pakistan v. Central Board of Revenue, Islamabad and others P L D 1981 Kar. 357, (x) Muhammad Munir v. Ahmad Ally Memoir and 2 others P L D 1982 Kar.425, (xi) Muhammad Saghir Ahmad v. Qurban Ali and others 1983 C L C 2127, and (xii) Ali Muhammad and 2 others v. Ghulfam and another P L D 1983 Kar. 99. (i) In the first‑named case (A I R 1931 Lah. 598) it was observed that "there can be no estoppel except when one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. There is nothing in the present case to establish that this was the intention of the plaintiff. He had the right either to object under Order XXI, rule 58 or rule

100. He chose the latter course and that gave him a right of suit under rule

103. There is no question, therefore, of estoppel". The facts in that case were that the plaintiff was ejected in execution of a decree against another person from part of a certain property but he continued to remain in possession of the other part. However, under Order XXI, Rule 100, C. P. C., he applied to the Court to be restored to possession of the part from which he had been ejected. The application having been dismissed on the ground that he was not in possession on his own account, he filed suit under Order XXI, Rule 103, C. P. C. The trial Court decreed the suit but the learned District Judge, on appeal, dismissed it on the ground that he was estopped from setting up his ownership as he had been present at the time of attachment and at the time .of the auction also and knew what was going on. On second appeal to the High Court the decree in first appeal was set aside and the case was remanded to him for the decision on the other matters arising. (ii) In the second‑named case (A I R 1933 Lah. 179) it was held that in order to sustain the plea of estoppel it must be proved that the defendants, relying on the declaration made by the plaintiffs, were mislead to act to their detriment in such a manner as they would not otherwise have done. In that case the plea of estoppel was not raised in the trial Court nor was it covered by the issues. The District Judge, however, allowed the said plea raised at the appellate stage. The finding was, however, negatived by the High Court as without any substance what soever as by the alleged declaration, if taken as a whole, the plaintiffs were not estopped from denying the defendants' right to redeem the land. (iii) In the third‑named case (A I R 1942 Nag. 59) it was held that "In order to create an estoppel, there must be a duty owing by the person estoppsd to speak or to act which he has failed to perform: Jones Brothers Ltd. v. Wood‑house (1923) 2 K B 117: 92 L J K B 638: 129 L T 317: 67 S J 518, were relied on in other words, as pointed out in Baswantapa v. Ranu (`85) 9 Bom. 86, there must be something like wilful misleading of the purchaser by some breach of duty". (iv) In the fourth‑named case, (A I R 1943 Sind 177; it was, inter alia, observed that as one of the essential conditions of the proper application of this principle, is the condition that the person to whom the representation has been made and on which he has acted, has, as a result, altered his former position to his prejudice. (v) In the fifth‑named case (P L D 1963 Lah. 368) while interpreting section 115 of the Evidence Act, 1872, it was held that the Principle of Estoppel is applicable only if person has by his declaration, act or omission, intentionally caused or permitted another to believe a thing to be true and to act upon such belief. (vi) In the sixth‑named case (P L D 1969 Lah. 418), again, while inter preting section 115 of the Evidence Act 1872, it was observed that "It is clear from a plain reading of the section that to estop a person from asserting his right, it is necessary to prove that he had made representation intentionally to another person. Mere silence or failure to object may not amount to intentional representation in every case. Secondly, as pointed out by Monir‑in Principles and Digest of the Law of Evidence, third Edition at page 909, among others, the constituent elements of estoppel are that representation was of a nature which induced the person to whom it .vas made to alter his position to 'his detriment and further that the latter has actually altered his position to his detriment on the faith of the representation made. All these elements must co‑exist to create estoppel against a person. In the instant case, none of these conditions has been satisfied. Even if Muhammad Siddiq defendant is to be taken at his word, all that he says is that the plaintiff was present and did not object to the attestation of the mutation in favour of the defendants. This falls far short of creating estoppel within the meaning of section 115 against the plaintiff." (vii) In the seventh‑named case (P L D 1972 Kar. 571), Dorab Patel, J., as he then was, observed that "Be that as it may, in order to a plea of estoppel, the party advancing this plea has also to show that it has suffered to its detriment or altered its position on account of the representation made‑to it by the opposite‑party". (viii) In the eighth-named case (P L D 1981 S C 531) the Honourable Supreme Court on the applicability of the principle of estoppel observed as under "There must be representation by a party, and the representation must have led the person pleading estoppel to do something detrimental to his own interests owing to the action of the other party. Apart from this there is the general governing principle of estoppel that there can be no estoppel against the statute. No corporate body or statutory functionary can be bound by estoppel to do something beyond its power and cannot be bound to do something which is regulated by statute in any other way than the statute requires." ' (ix) In the ninth‑named case (P L D 1981 Kar. 357), after reviewing a number of cases, certain principles as to estoppel were deduced therefrom. (x) In the tenth‑named case (P L D 1982 Kar. 425), relying on the observation in the case of Haji Muhammad Youns (P L D 1956 Kar. 755), cited as (which reference, on checking, is found to be incorrect) quoted as "If a person has acted to his detriment or altered his position on the basis of any declaration, act or omission of another person, that other person will not be allowed to go back upon it to the detriment of the opposite party". la that case the defendants did not start construction on the representation or any act or omission or commission of the plaintiff and altered his position. (xi and xii) In the last two judgments, (1983 C L C 2127) and (P L D 1983 Kar. 99) as cited by Mr. Fazeel, which are one and the same, it was observed that "In order to attract the provision of section 115 of the Evidence Act and apply the principle of estoppel it is necessary that it may be established that a representation was made to the other side and on the basis of that representation the other party has altered his position. In these circumstances an estoppel will be created against the person making the representation".

59. In the above cited large number of cases, it was held, in the circumstances of those cases, that there was no estoppel, but the facts and circumstances of these cases, generally speaking, are different and distin guishable from the facts and circumstances of the instant case. In A I R 1931 Lab. 598 the house was auctioned in execution. The plaintiff did not object at that moment, but, later on filed a suit under Order XXI, Rule

103. In A I R 1933 Lah. 179, the mortgaged property was gifted. It was held that, in the circumstances, if the admission is taken as a whole, there was no estoppel against the mortagee. In A I R 1942 Nag. 59, the house was auctioned, though the land was owned by the plaintiff, who did not then object in that circumstance. A I R 1953 Sind 117 was a case of estoppel against statute and similar is the position with P L D 1981 S C

531. In P L D 1981 Kar. 355, there was no evidence of estoppel. In P L D 1969 Lab. 418, it was held that for estoppel represent ation and change of position was necessary and so it was held in P L D 1972 Kar.

571. The case reported in P L D 1982 Kar. 425 relates to the purchase of building. In both the cases reported in 1983 C L C 2127 and P L D 1983 Kar. 99, it was held that there was no estoppel as there was no representation.

60. To examine the doctrine in some detail, it will be convenient to begin with a satisfactory definition of "Estoppel by Representation." According to Spencer Bower and Turnor on "Estoppel by Representation". Third Edition, 1977, page 4 the following definition of the doctrine of "Estoppel by Representation" emerges:‑ "Where one person (`the representor') has made a representation to another , person ('the representee') in words or by acts or conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and‑with the result, of including the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped, as attempting to establish by evidence, any averment substantially at variance with his former representa tion, if the representee at the proper time, and in the proper manner, objects thereto."

61. On the point of "Representation by silence or inaction", which is directly relevant for purpose of the present case, the learned authors, at page 48 of the book, supra, stated as under :‑ "It is well‑established that under certain conditions silence or inac tion may constitute a representation, as much as positive language or conduct, for the purpose of an estoppel. The main condition subject to which alone silence or inaction counts as a representation is that a legal (not a more moral or social) duty shall have been owed by the representator to the representee to make the disclosure, or take the steps, the omission of which is relied upon as creating the estoppel. The theory is this. The parties to a transaction are entitled to assume, as against one another, ominia rite esse acta; each of them is entitled to suppose that the other has fully discharged all such obligations (if any) of disclosure or action towards himself as may have been created by the circumstances. If, therefore, he receives from that other no intimation, by language or conduct, of the existence of any fact which, if existence of any fact which, if existing, it would have been the latter's duty, having regard to the relation between them, the nature of the transaction, or the circumstances of the case, to reveal, he has legitimate ground for believing that no such fact exists, or that there is nothing so abnormal or peculiar in the nature of the trans action, or in the circumstances of the case, as to give rise to any duty of disclosure, and to shape his course of action on that assumption; in other words, he is entitled to treat the representator silence or inaction as an implied representation of the non‑existence of anything which would impose, or give rise to, such a duty, and, if he alters his position to his detriment on the faith of that representation, the representator is estopped from afterwards setting up the existence of such suppressed or undisclosed fact: The terms, 'lying by'. 'standing by' `acquiescence', `waiver , `lashes', and 'encouragement' are often used. in .preference to 'estoppel' for the purpose of enunciating and justifying the rule under discussion:‑ 'lulling to sleep' is another term that appears in the cases‑but it is really one and the same doctrine which is the subject of these terminological variants . . . . . ."

62. The learned authors further stated at page 51 of the said book as under "So, also, if a party, having a right to assert his status as a share holder in a company, or his right to a share in any business or concern, is mute and passive whilst proceeding are being taken by the company, or other persons interested in the business or concern, to forfeit his share or deal with the property as if he had no part or lot therein, and makes no protest or complaint, and takes no step to prevent or defeat such proceedings, this passivity on his part operates either as a representation that he has finally abandoned any claim to such status, right, or interest which he may have ever possessed, or else as an acknowledgment that he never had any such claim at all; in either ease, he is precluded from asserting it on any subsequent occasion as against the parties to whose adverse proceedings he raised no objection at the time."

63. Mr. M. Munir, former Chief Justice, Supreme Court of Pakistan in his well‑known book on the Principles and Digest of the Law of Evidence has dealt with the subject of representation by omission; an extract from which may be summarised as under :‑ "Under certain conditions abstention from speech, or from action, may be deemed to constitute a representation as much as positive language or conduct for the purpose of estoppel. The main condition subject to which alone silence or inaction counts as a representation is that a legal (not a mere moral or social) duty shall have been owed by the representator to the representee to make the disclosure, or to take the steps, the omission of which is relied upon as creating the estoppel. The rule is based on the principle expressed in the of quoted expression, that, where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent. Per Thompson, J., in Niven v. Belknap 2 Johns, 357, cited in Begelow, 6th Ed., 650; see also Thomas Barclay v. Syed Hussain Ali Khan (1937) 6 C L J

601. In many cases a man may innocently be silent, but in other cases a man is bound to speak out, and his very silence becomes as expressive as if he had openly consen ted to what is said or done, and become a party to the transaction. Gheran v. Kunj Behari 9 A. 413, 419 If a period, having a right and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complaint of the act Nidamarthu Balasarya Bheemaraju v. Changati Mndvanjayaudu, 1931 M. 354: 131 1 C 669; Woodroffe, Ev., 9th Ed. 878. (Munir's Law of Evidence, Pak. Publishers Limited, Karachi, section 115, pp. 350‑52).

64. Estoppel is based on the maxim allegans contraria non est audiendus (a person alleging contradictory facts should not be heard) and is that species of proesumption jurts et de jure, where the fact presumed is taken to be true, not as against all the world, but as against a particular party. The doctrine of estoppel is, in fact. an equitable doctrine, a rule of exclu sion, which implies that if a person has by act or omission altered his position, he will be estopped and be precluded or debarred from denying it or take a position so as to alter his position to the detriment of the other person, the opposite party.

65. In order to constitute a valid estoppel by representation, the r following principles may be deduced from the law cited above:‑ (i) That the party sought to be estopped, or same person, for whose representation such party is in law responsible, made a representa tion. (ii) Estoppeal must be certain. It should clearly refer to the represen tation on which it may be found. (iii) That the case which the party is sought to be estopped from making setting up, or attempting to prove, contradicts in substance his original representation. (iv) That such original representation was of a nature to induce, and was made with tire intention of inducing, the party raising the estoppel to alter his position to his detriment. (v) That the party raising estoppel actually altered his position to B his detriment on the faith of such original representation. (vi) That the original representation was made to the party letting up the estoppel. (vii) Estoppel cannot circumvent the law. So, there be no estoppel against the statute. Therefore, if the representation is not in accordance with certain provision of law it shall not operate a estoppel against the party making it. (viii) Estoppel by itself does not create title, nor it extinguishes the right. It merely operates as an impediment to litigation. (ix) Estoppel by representation in its application is restricted to the parties.

66. Applying the above principles in so far as applicable to the facts of the present case, it has come on record that defendant No. 1, had, under a contract with the then Government of West Pakistan for the construction of Karachi‑Hydeabad Super Highway, set up its first crushing plant at mile 5 in late 1967. Upto June 1969 the crushing plant was set up, with different intervals. miles, 5, 27, 43 and

62. In or about June, 1969 the crushing plant was set up at mile 81, being the last crushing site Excavation Unit was installed in or about July, 1969, and the required machinery such as Belt, Conveyors, Vibrating Screnes, Crushers Hopper, Generator and Dumpling vehicles were brought on the site. Site office was established and the staff of defendant No. l in sufficient number engaged in the work spread over the area and the excavation was stated. No. one protected or prevented the said defendant against the said operation. It is stated by the plaintiff in his deposition that he had taken possession of the land in question and erected boundry pillars. If this statement, for argument's sake, is taken as correct which, however, is not true, then he must have come to know even before he took the alleged possession and his alleged staff was not able to erect boundry pillers that defendant No. 1 was in possession and the work of excavation was in progress. Even after the receipt of notice of demand of Rs. 11 lacs in January, 1970, the plaintiff kept quiet, probably, because his permit had not expired and to lodge a claim against defendant No. 1 would have resulted in protesting to the Government by defendant No. 1 which would have entailed cancellation of the permit‑for a number of reasons, or defendant No. l would have taken some other action such as shifting from the site at mile

81. Leaving said every thing as it is, the plaintiff has himself admitted in the deposition that "I knew that defendant No. 1 was quarrying stone in may area. I had not lodged any objection with the Government in this connection." The plaintiff by the wilful omission to protest against the occupation of the land arid excavation thereof caused defendant No. 1 to believe that it has the right to excavate stone from the said land without anybody's claim on it. The defendant No. 1 appears to be under bona fide belief that .the land in question was the Government land for all purposes and it was entitled to quarry the same having a valid right to do it within the terms of the contract.

67. The defendant No. I, in the circumstances, would not have acted in the manner, he did i. e. excavated stone at Mile

81. Had he been informed of it, he would have easily shifted to another site, say, Mile 82 or any other site. There was no impediment in its way in doing so. I, therefore, hold that the plaintiff's wilful abstention from making any protest or taking any action during the period of permit is sufficient to constitute it as representation by conduct and it has acted as estoppel against him in terms of section 115 of the Evidence Act 1872.

68. Issues Nos. 11 and 12.‑Issues Nos. 11 and 12 are taken up first. Mr. Nomani relying on the Variation Order No. 27, dated l2th March, 1969 has contended that defendant No.1 is entitled to full indemnity from defendant No. 2 in respect of any amount that may be found payable by defendant No. I to the plaintiff. Mr. Fazed, in reply, submitted that it is a matter between the two defendants with which the plaintiff has no concern. He however, stated that the correspondence between the two defendant does disclose that defendant No. 1 had bean claiming that the royalty if payable, is to be reimbursed by the Government.

69. Mr. Nomani pleaded that in case the amount of royalty or for that matter the cost of stone is paid by defendant No. 1 to the plaintiff, the entire amount is to be reimbursed by defendant No. 2 to defendant No, 1, with an additional amount at the rate of 25% of the said amount which is to be paid by defendant No. 2 to defendant No. 1, as Condition No. (a) of the Variation Order No. XXVII stipulates that the payment under the said order will be made on the basis of reimbursement of monies paid plus 25 (twenty‑five) per cent (provisional rate) which amount shall lie deemed to cover all costs including overhead and profits.

70. It is noted curiously that defendant No. 2 has not cared to lead any evidence in the case. He has not even cross‑examined the plaintiff or the only witness for defendant No.

1. Even the written statement filed on its behalf, to say the least, is sketchy and slipshod. Not only that Mr. Mangi, counsel for defendant No. 2 also abstained from saying a word about these two issues. It is noticed that the case of defendant No. 1 has been, from the very beginning that in case the said defendant is found liable to pay any amount to the, plaintiff, the same is to be reimbursed by defendant No. 2. 1n this respect, reference may be made not only to the relevant paragraphs of the written statement of defendant No. 1 but, also to a number of letters addressed by them to the Karachi‑ Hyderabad Highway Authorities. Exh. 4/23 is a letter from defendant No. 1 to Highway Authorities, which specifically states that "In view of that has been‑stated above, we require, in case of payment for royalties to Messrs Ali and Company, the authorization for the quantities and the rate under Variation Order No. 27 and the reimbursement of the amount under Item‑'73 B. O. Q. of the Conditions ‑of the Contract" reference may also be made to a letter (Exh. 4/25) issued by defendant No. I to. the plaintiff through his Advocate stating that '‑we are entitled for the reimbursement under clause 73 of the Conditions of Contract. Any payment to be made by us will only be done alter the quantity and rate have been mutually agreed ‑to by the Employer (Highway Authority) and the Consulting Engineer and the reimbursement of the amount to us has been executed." In fact, the plaintiff was on being advised. requested by defendant No. 1 to deal directly with the Highway Authorities as per instruction of the Chief Engineer, Hyderabad (Exh..4/28). Thereupon, the ,plaintiff appears to have taken up the matter with the Highway Authorities through his (Exh. 4/30), but there was no response. I am, therefore, left with no option but to hold that defendant No. I is entitled to the reimbursement of the amount. if any, round payable by defendant No. 1 to the plaintiff, with 25% extra as per the Variation Order, dated 12th June, 1969, referred to above. Find ing accordingly.

71. Issue No. 10.‑The plaintiff has claimed from defendant No. 1 a total sum of Rs. 56,10,000 out of which Rs. 45,00,000 is claimed as price of stone, at the rate of Re. 1 and 50 paisa per ton, for 30 lacs of tons. In addition, a sum of Rs. 11,1000 has been claimed from defendant No. 1 as royalty payable by the plaintiff to defendant No. 2 at the rate of Rs. 0.37 paisa per ton as per rate stated in permit. The plaintiff has also claimed interest at the rate of 9% per annum. in his deposition, the plaintiff has stated that the rate of stone in open market was Rs. 3 or 4 per ton. according to the price lists of two companies (Exhs. 4/32 and 4/33) produced by him. The plaintiff, as stated, has claimed at a lesser rate as the quantity of stone involved in the case was huge. The defendant have not said anything about the said rate. I have already held that the plaintiff has failed to prove the alleged quantity of 30 lacs tons of stone excavated from 'the land in question. However, on the basis of the admission of defendant No, 1, I have held that the quantity of stone, excavated at Mile 81 is 1, 23, 210 tons only. It is also noticeable that the permits, as per Memo randum, is to be read . as entitling the plaintiff to excavate 5,000 tons of stone only. In the circumstances, if the permits is at all hold to be valid (which as already held, is not so) the plaintiff may be said to be entitled to excavate 5,000 tons only and to appropriate the said stone to his use or sell the same in the market and pay royalty thereon to defendant No.

2. The plaintiff's entitlement will, therefore, be limited to the said quantity of 5,000 tons only. The plaintiff has, however, failed to prove the cost and rate of stone. It is noticed that the price lists (Exhs. 4; 22 and 4 133) Q have been brought on record, subject to the objection of defendant No.1. The plaintiff has failed to produce any representative of either of the two companies who are alleged to have issued the said price lists. The price, as quoted in the price lists, which, however, is not established; may be that as prevailing in the city. There is no evidence as to the costs of excavation, cost in the middle of the desert, where there was no approach or transport facilities available. As to the royalty as I have already held that the demand appears to be made by the Mukhtiarkar in collusion with the plaintiff. In fact, it is not even supported by Mr. Mangi, Assistant Advocate‑General I may also observe that at one stage of arguments, Mr Mangi stated that he may advise the Government to withdraw the said demand, provided the plaintiff shows his readiness to withdraw the suit.

72. However, the claim is based on an action in tort. The question, therefore, arises, whether in an action of trespass on land the plaintiff's possession is necessary. It has already been held that the plaintiff has faded to prove his possession. In fact, he has not denied that defendant No. 1 was in possession even before the plaintiff applied for grant of permit. To meet this situation, Mr. Fazeel placed his reliance on the case of Currimbhoy & Co. Ltd. v. L. A. Creet and others (A I R 1930 Cal. 113) and submitted that a stranger who violates the possession of a person cannot discharge the violation by saying that the possession was without title or fees or by showing that it was wrongful, unless he shows that third person was entitled to possession and the stranger had acted under the authority of that third person. This case relates to a coal mine, wherein, on the question of trespass to land, it was held that‑ "Trespass is a wrong to another's possession ; it is an injury to a possessory right and, therefore, the proper plaintiff in an action for trespass to land is the person who is in actual or constructive possession of the land i.e., entitled to immediate possession. The gist of the action of trespass must be and is the wrong to the right of the plaintiff's possession. The right to possession is all important in an action for trespass ; and a mere right of property without a right to possession is not sufficient to support the action. Right to possession is one of the constituent elements of the complete right of property ; and it has been laid down from very old times that a person with a right to possession can always maintain an action of trespass against a wrongdoer. So, also in the case of a person in actual possession. Such a person has against a mere stronger or wrongdoer the same remedies as if he had the right to possession and he can as against the stranger maintain trespass and in general the stranger who violates his possession cannot justify the violation by showing that the possession was without title or even by showing that it was wrongful unless he further proves not only that a third person was entitled to the possession but that he, the stranger, had acted with the authority of the said third person : see Pollock & Write on Possession in the Common Law, pp. 145‑

147. The fact of possession in the sense referred to above, therefore, is prima facie evidence of title, and is alone sufficient to sustain the plaintiff's case against a mere wrongdoer : see Bullen & Leake, 3rd Edn. pp. 801‑802 ; see also Dicey on Parties, p. 333 et sq." I am afraid, the facts of the instant case are distinguishable inasmuch as the plaintiff was not in actual or even constructive possession. Defendant No. 1, on the plaintiff's own showing, was already in possession. The plaintiff's right to possession is under cloud. He has even failed to prove the possessory title for non‑compliance of the terms and con ditions laid down in the permit itself. On the plaintiff's own showing, he even did not lodge a protest in respect of defendant No. 1 being in possession and he engaged in excavating stone from the land, even after the grant of permit.

73. Mr. Fazeel also placed his reliance on the case of The Midnapur Zamindary Co. Ltd. v. Ram Kanai Sing Deo and others (A I R 1926 Pat. 130) and submitted the action in trespass can be based on constructive possession. The facts of this case are also distinguishable as it was a case of land and it was observed that the delivery of possession was not necessary for completion of permanent lease under the Transfer of Property Act and hence it was held that a lessee who never got the possession of the land can maintain an r action for trespass or for injunction and damages. The instant case is not that of a lease under the Transfer of Property Act, but is that of a permit, which will be governed by the provisions of Mining Concession Rules, 1960 and the Memorandum issued thereunder, read with the conditions laid down in the permit itself. It is apparent on record that the land in question was already in occupation of defendant No 1 and the said land was not a free land to be made available to the plaintiff under the permit.

74. As regards plaintiff's being in constructive possession I may refer to the following passage from Salmond on Jurisprudence (Twelfth Edition, page 292) which reads as :‑ "Possession consists basically in a relationship between a person and an object within the context of the society in which he lives. It is, therefore, primarily a matter of fact and the differences between legal and non‑legal or actual possession result from the need t advance the policy of the law by regarding this relationship as existing where in fact it does not obtain ; and this in turn may lead to the development of the notion that in law I may have possession of an object as against one person while not having possession of it as against another." Constructive possession, it may be said, is mediate or derivative as against direct or immediate. As laid down in the case reported as Motrendra Nath Bagchi v. Tarak Chandra Sinha and others (A I R 1932 Cal. 504) "by constructive possession is generally meant possession as distinguished from actual possession, through a tenant or agent. It has also been used in connection with property which is incapable of actual possession and is said to be in the constructive possession of the owner as waste land or lands under water". The doctrine as to constructive possession, may however, be invoked by rightful owner, who in the circumstances of the case, is defendant No. 5 and not the plaintiff It has already been noticed that the plaintiff was, at no time, in actual possession of the land nor he derived constructive possession. Moreover, the question of constructive possession does no arise as the right or title to possession in favour of the plaintiff was not complete inasmuch as the land was required to be demarcated and actual possession to be given and thereafter excavation was to commence on certain conditions which were not fulfilled. In any case, the defendant No. 1 was in prior possession to carry out the purpose of the contract. My finding, on this issue, therefore, is in the negative. Otherwise too, for my findings on issues Nos. 1 to 9 the plaintiff is not entitled to the amount claimed, or any other sum in the suit.

75. Issue No. 13. ‑The ultimate result is that the suit is dismissed with costs to defendant No. 1 only.

76. Before parting with the case, I would like to direct the Registrar to send a copy of this judgment to Secretary, Ministry of Law, Government of Sind, for onward transmission to the concerned Authority for taking appropriate action against the concerned Mukhtiarkar and Tapedar, Kotri, if in service. A. A. Suit dismissed.