The instant Constitutional petition seeks declaration, of the petitioner as lessee and letter dated 13.3.2004 issued by Respondent No, 1 to be declared illegal, void and of no legal consequence whereby development charges amounting to Rs, 8,17,265/- besides a sum of Rs, 27,81,027/- on account of premium, rent and miscellaneous charges were required to be deposited.
2. Precisely, relevant facts are that the petitioner held an "Old Grant" of the Bangalow No, 23/Survey No, 213, Zafar Road, Lahore Cantt. (already developed area) measuring 1634.53 square yards. The respondents formulated a Policy regarding conversion of Old Grants to regular leases in form of Schedule IX-C of the CLA Rules 1937 vide letter -dated 30.12.1999 where-under all the formalities were to be completed till 27.3.2000. Thereafter another policy was introduced on 30.10.2003 by the Ministry of Defence vide letter-dated 13.12.2003, exclusively for those persons who had deposited the money but failed to execute the lease deeds, extending the time of application of the policy up to 30.6.2004. The petitioner in response to this policy approached the respondents for conversion of her Old Grant. The competent authority decided to lease out the area of Banglow of the petitioner in Schedule-IX-C for residential purposes upon payment of premium of Rs, 15,47,955.80 and Annual ground Rent of Rs, 3;269.06 besides deposit of Rs, 145/- as miscellaneous Charges. The petitioner was also required to furnish non-judicial papers for drawing of the lease deed. This was conveyed through letter-dated 27.3.2000 dispatched at 8-Abid Majeed Road, Lahore Cantt, whereas the petitioner after death of her husband, was living at Rawalpindi and thus the letter did not reash her.
The petitioner claims that she received the letter some where in May, 2001 when she represented the respondents through letter dated 8th June, 2001 in response to which she was conveyed, that the needful could be done by her, before 30.9.2001.
3. The petitioner being a widowed/aged lady, deputed her brother-in-law for deposit of all the amounts and ancillary charges who deposited it, including premium of ground rent and miscellaneous charges on 26.9.2001. As regards purchase of stamp papers respondents did not provide the representative of the petitioner with the exact value of the stamp paper needed for inscribing the lease deed and thus the petitioner requested his son-in-law to enquire from the respondents the amount of stamp paper needed with an application dated 24.10.2001. On application of the petitioner Respondent No, 1 sought advice from Respondent No, 2 where after he on 14.2.2002 replied that her case has been considered by the competent authority and has been rejected and she can have refund of the amount already deposited by her.
4. The petitioner after refusal by Respondent No, 1 approached Respondent No, 3 through an application-dated 31.3.2002 for sympathetic consideration of the matter. Pending this application Government of Pakistan, Ministry of Defence, Rawalpindi, approved on 13.12.2003, further extension of old grant policy up to 30.6.2004 where on the petitioner again on 16.1.2004 represented to Respondent No, 1 that she has already paid the rent/premium etc. on 26.9.2001, therefore, lease deed in the name of the grantee for residential purposes be completed.
5. Respondent No, 1 informed the petitioner through his letter dated 10.2.2004 that grantees who had deposited all the dues before 30.9.2001 but could not complete the lease formalities could file fresh applications for conversion of their properties as referred above but the premium will be charged at new/current rates. She filed a fresh application on 12.2.2004 in response to which she was informed by Respondent No, 1 through letter dated 13.3.2004 that competent authority has sanctioned conversion of her grant into regular lease for a period of 99 years for residential purposes on payment of premium of Rs, 27,77,613/- and annual ground rent of Rs, 3269/- in addition to payment of development charges of Rs, 8,17,265/- till 31.5.2004. Petitioner aggrieved of the decision of the respondents through their letter-dated 13.3.2004 filed the instant Constitutional petition with the relief noted above. The respondents in response to notice by this Court appeared through their counsel, and are represented.
6. The learned counsel for petitioner submitted that conversion of Old Grant into regular lease for residential purposes was subject to the condition of payment of premium of annual Ground Rent and Misc. charges which were deposited by the petitioner and on this deposit her Old Grant automatically stood converted into regular lease and there was no necessity of any other formal order by the Respondents. He further contended that the letter dated 27.3.2000 issued by the respondents did not envisage the value of the stamp papers and even thereafter she was never required to furnish these stamp papers for any specific amount thus, she could not be penalized for any 'fault on her part. According to him, non-execution of lease deed on stamp papers is to work against the petitioner and the respondent should not bank upon it, as they were not to be benefited out of it. He further elaborated his arguments by saying that the respondents were only interested in money which was deposited within time on 26.9.2001 and the same till today is in their utilization, thus, refusal of the respondents contained in the impugned letter dated 13.3.2004 is not justifiable, in any manner. The learned counsel for the petitioner further emphasized on the provisions of Stamp Act 1899 to contend that stamp papers were to be purchased by the vendor/lessor but according to the prevalent practice value of the stamp papers was to be paid by the vendee/lessee. His preciely submission is that respondents never required the petitioner to pay/deposit any specified value of stamp papers and that the lapse, if any, is on the part of the respondents and on its, base is, the petitioner cannot be penalized. It was also submitted that respondents themselves extended time for. conversion of Old Grant to Regular Lease in Schedule IX-C, of CLA Rules 1937 up to 30.6.2004 and they inspite of using petitioner's money for more than three years should not be allowed to return back and to claim some any additional amount on the basis of exorbitant and excessive rates, whereas under law respondents are supposed to act fairly and reasonably being statutory functionaries. The learned counsel for the petitioner prayed that the respondents may be required to executed the lease deed in favour of the petitioner within the time framework fixed by this Court because they have themselves failed to perform their part of agreement.
7. The learned counsel appearing on behalf of the respondents refuted the arguments of the petitioner, supported the letter dated 13.3.2004 by arguing that the deposit of money in itself did not create any vested right, title or interest in favour of the petitioner unless and until some, lawful deed is executed between the parties. He further contended that furnishing of stamp paper for execution of lease, which was to be provided by the petitioner, was a condition precedent clearly laid down in the policy of which the petitioner was aware. According to him, the policy under discussion was .formulated in the year 1996, and the petitioner applied for the first time under this policy on 30.12.1999 and her request though was accepted but the formality of completion of lease deed. was clearly provided in the letter dated 27.3.2000 which the petitioner did not fulfil and lost her right of conversion under the policy. The learned counsel for the respondents further emphasized that policy matters like the one in hand are not subject to scrutiny by this Court in the Constitutional jurisdiction. It was also submitted on behalf of the respondents that since, the case of the petitioner was to be considered under the extended new policy she was bound to deposit the amounts on the revised/prevalent rates and after lapse of time fixed therein, no indulgence to her may be shown.
8. I have anxiously considered that respective arguments of the learned counsel for the parties and have examined the record appended herewith. Undeniably request of the petitioner for conversion of her Old Grant to regular lease in Schedule IX-C of the CLA Rules 1937 was accepted by the respondents vide letter dated 27.3.2000 which reads as under:-- "Reference:-- your letter dated 30.12.1999.
2. Sanction of the competent authority is hereby conveyed to the following measures in Lahore Cantonment:--
(a) Resumption of entire area measuring 1634.53 sq. Yards of Bungalow No, 23 Survey No, 213, Lahore Cantt and extinguishing the Old Grant Rights thereof.
(b) Leasing out the above area measuring 1634.53 Sq. Yards of Bungalow No, 23, Survey No, 213, Lahore Cantt in ScheduleIX-C of the CLA Rules, 1937 for "Residential" purpose to the existing grantee Mrs. Rehana Majid upon payment of premium of Rs, 15,47,955.80 and Annual Ground Rent of Rs, 3,269.06.
3. Please therefore to complete the following formalities:--
(Xi) To deposit a sum of Rs, 15,47,955.80 as premium Rs, 3,269.06 on account of ground rent and Rs, 145 mist charges in this office.
(ii) To furnish non-judicial stamp papers of appropriate value for drawing up lease deed of the above bungalow.
4. The above sanction is valid up to 31st March, 2000 (Extended up to 30.9.2001 vie MEO Lahore Letter No, L-R/23/218 dated 8 June, 2001). Sd/- (JAVED AKHTAR) Military Estate Officer.
(Under lining is by me to high-light the relevant parts)
9. This letter was dispatched at 8 Abid Majeed Road, Lahore Cantt.' whereas the petitioner was residing at Rawalpindi. On her representation, respondents allowed her to deposit requisite amount till 30.9.2001 and the needful was done by her on 26.9.2001. The above reproduced letter'clearly depicts that conversion of petitioner's property for residential purposes, was allowed/granted upon the payment of premium of Rs, 15,47,955.80 and annual ground rent of Rs, 3269.06 Though the 'petitioner was directed to complete the other formalities, mentioned in Para 3(i) and (ii) but this direction was not made subject to the sanction granted to her. The condition of deposit of amount mentioned in Para 3(i) of the letter dated 27.3.2000 were fulfilled and since its Para 3(ii) was ambiguous in its own language as the same neither specified the amount of the non-judicial stamp papers nor any time limit for submission of those stamps papers was fixed therein, the alleged non-compliance can not be held to deprive her of her vested rights conferred by Para 3 of the same letter. It was rightly pointed out by the learned counsel for the petitioner that sanction granted to the petitioner was only made subject to deposit of the amount where after the conversion granted became a vested right of the petitioner automatically, as conversion of Old Grant Rights into Lease Hold Rights was not dependent on execution of lease deed and the same was also not postponed till its completion. The law on the point is so settled that it admits of no ambiguity or uncertainly: In Faiz Ali vs. Mst. Rafia Jan (PLD 1956 Lahore 94), under the terms and conditions of tenancy in that case, a tenant could acquire proprietary rights qua the land in his tenancy upon payment of "whole of the purchase money" and upon fulfillment of other terms and conditions, Government was to execute formal conveyance granting proprietary rights. Though the widow in the said case had deposited the purchase money, but no conveyance deed had been executed, and still the widow gifted away the property. The question arose whether or not she had become full owner and whether she could make a valid gift. A Division Bench of this Court, by relying on Mst. Malap Kaur Vs. Hakim Singh and others (8 P.R. 1915), it was observed that the defendants (the widow when they had paid the full necessary sums to the Government, became ipso facto owners in their own rights of the land in suit" these observations were also relied subsequently by another Division Bench of this Court in Jagat Singh vs. Mst. Raj Devi (AIR 1938 Lahore 554), and also by relying on yet another unreported judgment of a Division Bench of this Court in Kishan Singh etc. vs. Labh Singh etc. (Civil Appeal No, 891 of 1933), wherein again the question of validity of gift before formal conferment of proprietary rights was involved and it was observed "that Mst. Askaur acquired proprietary rights with the deposit of the price of the land", it was held that the widow became full owner of the tenancy lands in her possession on the date when she deposited and the Government accepted the sale price."
Another Division Bench decision reported as Ibrahim vs. Mst. Rajji (PLD 1956 (W.P.) Lahore 609) is also in point. In that case, the contention raised was that "unless a sale-deed was executed, no transfer of proprietary rights in favour of tenant could take effect." By referring to Section 175 of the Government of India Act, 1.935, which is analogous to Article 173 of the Constitution of the Islamic Republic of Pakistan 1973, it was, inter alia, held that. "In a case of this nature, the contract of sale shall be completed as . soon as the sale price is deposited by the tenant, subject of course to fulfillment of the necessary terms and conditionsAnd it is contemplated by the parties that the sale shall also be evidenced by a formal deedwhich may be executed at any time after the completion of the sale".
In Ilam Din vs. Muhammad Din (PLD 1964 Supreme Court 842) the questions whether "acquisition of proprietary rights takes effect from the date upon which the payment is made, or "on the any later date on which the deed may be executed and registered" came up for consideration and the law was thus laid down by the Honourable Superior Court:- "Some argument was addressed to us upon the requirements of Section 176 of the Government of India Act, 1935 which was then in force to support the contention that the contract of sale was ineffective, unless duly executed as required by the aforesaid section. The reply presented with a great deal offence is that ever since. 1915, it had, in an unbroken line of cases, been held that in respect of obligations to third parties, the title in the property matures in favour of purchaser when, transfer having been authorized the proper dues have been deposited."
In Faiz Elahi v. Shamir (1991 CLC 2005) a learned Single Judge of this Court had inter alia held that an occupancy tenant under the Act becomes absolute owner of the land the moment he pays the price of its to the Govt. and his title is not postponed to the acquisition of conveyance deed". After making extensive reference to the case-law, it was further held that "Shamir had paid the price of land in 1958 and had thus become the absolute owner of the land in the said year". This decision was challenged in the Hon'ble Supreme Court, but was helped. The judgment of the Apex Court is, reported as Shamir v. Faiz Elahi (1993 SCMR 1456) wherein it was authoritatively laid down that "Shamir had acquired the proprietary rights of the suit land on payment of necessary consideration" and that "he was full-fledged owner of suit property and competent to sell the same under the law."
Relying on Ilam Din v. Muhammad Din (PLD 1964 SC,842) and Ali Ahmad v. Rabia Bibi (PLD 1971 B.J.
38), it was held in Nathay Khan v. Mehr Din (1994 MLD 1630) that" an allottee tenant of Government's land becomes owner of the land when he makes the payment of entire price" that the "date of the payment of price is effective date for passing of title in favour of grantee, notwithstanding that conveyance deed is not executed in his favour."
10. Viewing the case from another angle, execution of a written document was not essential to complete the contract to which the Government was a party and for this purpose sanction having already accorded by the respondents in their letter dated 27.3.2000 above reproduced, was enough to equip the petitioner with rights of a lessee. In similar circumstances, this Court held in the case of Col. M. Sana, Assistant Director (Medical) Provincial Health Directorate, Lahore Versus.
The Government of West Pakistan (PLD 1962 W.P.) Lahore 509) that in order to create binding effect of the contract with the Government functionary, formal execution of any document is not a pre- requisite. In this situation it was not correctly argued that by mere deposit of money by the petitioner, no vested right in her favour, was created. It, goes without saying that the petitioner deposited the entire amount on 26.9.2001 which was never attempted to be returned till the time the fresh demand was made by the respondents and they utilized this money to their own advantage for a long period of about three years. This conduct of the respondents amounts to estoppal and they cannot be allowed to resile from their commitment, just to grab more money from her, without any just cause or reason Respondents have neither given any reason for increase of conversion rates though they were obliged to give reasons, in terms of Section 24-A of the General Clauses Act, and the law laid down by the Honourable Supreme Court in the cases of.
Messrs Airport Support Services Versus The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) and Col. (Rted.) 'Ayub Ali Rana Versus Dr. CARLITE S. PUNE and another (PLD 2002 Supreme Court 630). Above all the Banglow of the petitioner is already located in a developed area of Lahore Cantonment but in spite of it, respondents besides increasing the above referred rates, have demanded development charges of Rs, 8,17,265/- without giving any explanation for the apparently fake demand.
11.Adverting to the lawfulness of the basis to recall the conversion already allowed on the ground that the petitioner did not provide the non-judicial stamp papers. Section 29. of the Stamp Act, 1899 is the relevant provision of law and under its clause-d, in absence of an agreement to the. contrary of the expenses of providing the proper stamps were to be borne by the lesser. The practice prevalent is that lessee normally provides the value of the stamp papers. Now there is nothing on the file to show that the petitioner was ever required to pay/deposit the specified value of the non- judicial stamp papers: Neither such specification was given in the letter dated 27.3.2000 nor there is any other letter issued by the respondents calling upon the petitioner to do the needful. Para 4 of the above-referred letter did not limit the date by making it a part of the decision contained in its clause (b). Even otherwise execution of lease deed was to the benefit of the petitioner and not to that of the respondents who had already received and utilized the entire amount, which they had demanded at that time. Hence it did not lie with the respondents to refuse the execution of lease deed, on such lame and unconcerned excuses, which according to my above findings were other- wise un-justified.
12.The petitioner had not challenged the policy of the respondents of conversion of Old Grants to Lease for Residential purposes in Schedule IX-C of CLA Rules 1937 rather her case was that the conversion under this policy has been granted to her and has matured without execution of formal documents so the arguments regarding non-maintainability of the writ petition on account of policy matter, over looked the prayer of the petitioner.
14. For what has been discussed above. the impugned decision of. the respondents contained in letter dated 13.3.2004 is not only illegal/unfounded but is also arbitrary/fanciful, thus, the same is declared to be void and non-existent, With the result that the petitioner has become lessee under sanction letter dated 27.3.2000 and the Respondent No, 1 is accordingly. directed to convey/inform the petitioner exact value of the non-judicial stamp papers requisite for inscribing the lease deed in her favour under his sanction contained in letter dated 27.3.2000 and to execute the lease deed and all other ancillary documents within a period of six months. Resultantly. this petition is accepted and the writ as prayed is issued with no order as to costs.