1986 PLP 1496 (MLD)

Briefly stated the appellant's case is that he was granted lease of a plot of land situated between Plots Nos.490 and 491 J.M. Shikarpur Colony, M.A Jinnal Road, Karachi, by K.M.C. on 16‑12‑1956 for a period of 5 years. This lease was renewed for another.5 years. On expiry of this extended period, the appellant applied for further extension of lease for another 20 years. The K . M. C . agreed to extend the lease provided the rent was enhanced to Rs.2,000 per month. Hence the appellant filed Suit No.64 of 1965. During the pendency of this suit there was an agreement between the K . M. C . and the appellant that the land would be charged at Rs.1,500 per month and that in addition to the above piece of land an additional piece of land which was adjacent to the petrol pump site of the appellant and was used by the K . M . C . as a depot for dumping coaltar etc, would also be granted to him provided that the appellant withdrew the above suit. Consequently the appellant withdrew the suit. However, after the withdrawal of the suit and deposit of Rs.18,000 being the rent for one year the K.M.C. refused to perform its agreement. Hence the appellant filed Ean appeal before the Commissioner which was dismissed. He then filed a writ petition which too was dismissed with the advice to file a suit. Consequently he filed the present suit in which he prayed as under:‑ " (a) For specific performance of the agreement to lease 91.22 and 22.33 sq. yds. of land situated between Plots Nos.490 and 491 J.M.3 at the corner of M.A. Jinnah Road and Motilal Nehru Road contiguous with the existing petrol pump site leased out to the plaintiff as per plan annexed with the plaint and marked as Annexure "1". (b) Declaration that the plaintiff is entitled to adjustment of rent at the rate of Rs.3,137 per annum out of the total rent of Rs.18,000 per annum for the entire period that the plaintiff is not put in possession of the additional said two pieces of land total measuring 114.55 sq. yds. mentioned above. (c) Cost, of the suit." This suit was thereafter dismissed and the appeal was also dismissed as shown above. The learned Civil Judge as well as the Additional District Judge held that the parties had not formally reduced the contract into writing as contemplated by the rules. Hence, the question of its enforcement does not arise. It was further held th9t the K . M . C . had never agreed to grant lease of the additional piece of land demanded by the appellant. I have heard Mr. S.S. Akbar for the appellant and Mr. Muslim Naqvi, for the respondent K.M.C. at length. The only point involved in this appeal is as to whether K.M.C. had even agreed to grant the lease of the additional piece of land to the appellant as requested by him besides the petrol pump site which was already on lease with him for which he had enhanced the rent to Rs.1,500 per month. Mr. S.S. Akbar has taken me through various letters exchanged between the parties in this connection. First of all he referred to letter Exh.P.7, in which he had requested Land Manager of the K.M.C. for extension of lease of petrol pump site for 20 years. Additionally he had requested for the adjacent piece of land. The reply was communicated to him by the land manager, vide Exh. P.8 making an offer of 5 years extension of the lease of petrol pumps site only provided he agreed to pay rent of Rs.2,000 per month. In reply the appellant sent the letter Exh.P.9 offering the rent of Rs.1,500 per month provided the additional area was also included in the lease besides the petrol pump site and its extension for 20 years. In that event he agreed to withdraw the suit. On this letter there is a note of Chairman that the applicant was prepared to deposit the years' rent at Rs.1,500 per month in advance. The lease was to be for 10 years renewable for another 10 years. He directed that, such a note may be put up to the Corporation. Accordingly note Exh. P.10 was prepared by the Land Manager and placed before the Corporation for approval. The note reads as under:‑ "As per orders (Flag A) Mr. S. Badshah Quli, was informed that the lease can be renewed for a further period of 10 years provided the suit is withdrawn." He has now informed that he was withdrawn the suit and has requested that the lease be renewed at Rs.1,500 p.m. which includes the rent for the additional area also. Mr. Badshah wants that the land measuring 203 sq. yds. and 83.3 sq. yds. situated adjoining to his petrol pump site as shown in red in the plan flag 'B' may be given to him. He has seen me and said that he has agreed to pay the rent at Rs.1,500 p.m.‑ before the Chairman only on the understanding that this area will be given to him. It is, therefore, submitted for orders whether the above area is to be given to him, if approved, the note for the Corporation through the Finance Sub‑Committee placed below may kindly be signed. According to Mr. S.S. Akbar this amounted to an acceptance of the offer and culminated into a complete contract binding on both the parties. It is different matter that the Corporation agreed to extend the lease of petrol pump only for 10 years at Rs.1,500 per month and directed that the additional piece of land be retained for use of Municipality. He further submitted that the appellant had performed his part of the contract that is deposited and one's lease money at Rs.1,500 per month and withdrew the suit but the respondent K.M.C. did not perform their part of the contract. Hence he is entitled to specific performance of the contract particularly the inclusion of the additional piece of the land for the lease. In the alternative he requested that the amount commensurate with the additional area be adjusted in the lease money because the possession thereof was not given to him alongwith the petrol pump. He acted P L D 1964 (W.P.) Kar. 116, P L D 1961 Kar. 549 and P L D 1972 Kar. 571 in support of his contentions. On these points I do not find myself in agreement with the contentions of Mr. S.S. Akbar. None of the rulings cited by him, applies to the facts of this case. P L D 1964 (W.P.) Kar. 116 is a ruling given by Mr. Justice Qadeeruddin, where it was held that a contract which was ultra vires not for want of power in Corporation itself but for lack of power in its officer to perform such duty o because of non‑compliance with certain formalities required by law to be observed, may be valid as to third person and therefore, the appellant cannot take advantage of this ruling. The next ruling which was reporter in P L D 1961 (W.P`.) Kar. 599 relates to allotment of shop made b K . M . C . It says that even if the agreement of lease of the shop in unregistered the same can be treated as a lease. As the period c lease this was less than 12 months, it will amount to tenancy‑at‑will. The same is valid because Chief Officer is authorised to lease out municipal property up to 12 months. It cannot apply to the present case by any stretch of arguments because in this case the lease was extended for 10 years. The third ruling which was reported in P L D 1972 Kar. 571 on the contrary goes against the appellant. It clearly lays down that a lease or licence by the K . M. C , has to be executed in writing also the same would have no legal effect. These provisions ar mandatory and not merely directory. Unauthorised act of K . M . C . Officer does not create estopped against the K.M.C. Mr. S.S. Akbe unsuccessfully tried to distinguish this ruling, which was also relib upon by the lower Court, by submitting that the act referred there was 'unathorised'. Whereas in the present case the Chairman was 'authorised' to extend the lease under section 8(2) of Municip~ Administration Ordinance, 1960 up to any period subject to the approve of controlling authority. Admittedly approval of controlling authority was not obtained in this matter. Even the Corporation had not accepted the proposal of the Chairman regarding the additional piece of land Hence the act if any was unauthorised and, therefore, did not creal any right in favour of the appellant. Mr. Muslim Naqvi, who appeared for the K.M.C, submitted the latter had never agreed to lease out the additional piece of land the appellant. None of the letters written by the K.M.C. to the appellant mentions that the K . M . C . had agreeed to grant the lease of the addition area. The Corporation in its resolution Exh. P.11 which is at page has in unequivocal terms refused to lease out the additional area an directed that it shall continue to be used by the K . M . C . No agreement can be spelled out from the above facts and circumstances, what say of an agreement in writing and ' formally signed and sealed required by the law. Hence the appellant cannot, claim specific performance thereof. He further submitted that according to section 119 of the Municip Administration Ordinance, the order of the Commissioner or controllir authority is final and cannot be questioned in any Court. In this connection he relied upon 1969 S C M R 46 where was held that an order passed by the Commissioner in appeal and section 119 of Municipal Administration Ordinance, was final and cannot be called in question in any Court. Finally he referred to P L D 19 Lah. 1419 which is an illustrative ruling and applies to the present case fully. It was held therein that it is necessary that after the officers acting on behalf of the local body have reached the agreement they should draw up formal documents and execute in accordance with the relevant provision of law. The judgment in this ruling which w given by D.B. was written by Sardar Muhammad Iqbal, J. who made clear that where the agreement was in the form of correspondence a tenders and no formal document was executed in accordance with terms of rule 5 of West Pakistan Municipal Committee (Contract) Rules 1960 there was no valid contract. I find myself in complete agreement with the contentions of Mr Muslim Naqvi. I am of. the clear view that letter, dated 20‑6‑1966 does not admit of any ambiguity, it only stipulates that the case for the renewal of lease of the above petrol pump site, can be recommended t the K.M.C: if the appellant agrees to pay Rs.1,500 per month an deposits 2 years rent in advance. It does not mention that recommendation will be made for the additional land as well. Moreover, this was on the recommendation and final decision was to be taken by the competent authority which could also refuse to accept the recommendation, which it actually refused. There is no material on record to agree with the contention of Mr. S.S. Akbar that the inclusion of the additional piece of land in the lease was approved by the Chairman at any stage on that the K.M.C. was bound by any such approval. Mr. Muslim Naqvi, pointed out that the appeal has become infructious. We are now completing year 1985 while even the extended period of lease had expired in 1974. The appellant has enjoyed the possession of the petrol pump site for a long time and is in arrear of lacs of Rs. which he has not cared to deposit. The lease has already been cancelled and the petrol pump site has been allotted to some body else. The appellant was no more in possession of the petrol pump of the site. I am, therefore, of the clear view that the appeal has no merit whatsoever, I, therefore, dismiss the appeal with costs, and uphold the concurrent judgments of both the lower Courts. M.Y.H. M.Y.H. Appeal dismissed