This single order will dispose of Civil Revision No,1401/2004 titled "Flex-o-Sin versus Liaqat Ali Chaudhry and another" and Civil Revision No, 1428/2004 titled "Parks and Horticulture Authority versus Liaqat Ali Chaudhry and two others" as both these petitions arise out of the same judgment.
2. Facts of the case in a narrow compass are that Respondent No, 1 is involved in the business of advertisement under the name and style of Evershine Neon Signs. Respondent No, 1 was granted permission to install a hoarding, in front of Main Boulevard Gulberg, adjoining the wall of Gymkhana Club, on yearly rent basis. Respondent No, 2, had been extending the period from 1993 till 1998.
Respondent No,2 asked Respondent No, 1 to remove the hoarding as the road was being expanded and a commitment was made to re-allot the same site to Respondent No, 1, on completion of road work. Respondent No, 1 approached Respondent No, 2, on completion of the road expansion work, for re-allotment of site. Respondent No, 2 declined to accede to the request of Respondent No, 1, Respondent No, 1, then approached various authorities, for redressal of its grievance, including Chief Minister and the Prime Minister. All efforts of Respondent No, 1 went futile, which grave to the cause to initiate the suit against Respondent No, 2.
3. It was asserted in the plaint that Respondent No, 2 resiled from its commitment to reallot the disputed site, after completion of road work due to mala fide and the refusal is discriminatory; the plaintiff has a right which is denied dishonestly and a decree for declaration was prayed with permanent injunction. Respondent Not contested the suit, filed written statement, controverted therein the assertions of the plaint. Various preliminary objections were raised as well. Respondent No, 2 admitted the allotment of site to Respondent No, 1 and its removal due to expansion of work.
Refusal to re-allot the site was justified on the plea that as per new plan, land along the jail road was reserved for land scaping with flower beds and for plantation of trees. Policy decision was referred where sign board in the green belt was disallowed. Learned trial Court framed issues and after recording the evidence of the parties, decreed the suit in favour of Respondent No, 1 and against Respondent No 2 vide judgment and decree dated 08-03-2004. The decree dated 08-03- 2004 was challenged in appeal by Respondent No, 2 as well as M/s Flexo Signs/present petitioner.
Learned Appellate Court dismissed both the appeals on 10.05,2004, hence this petition against concurrent findings of the Courts below.
4. Learned counsel for the petitioner has contended that the High Court has jurisdiction to set aside, in revisional jurisdiction, the concurrent judgments of two Courts below. Court can interfere when the case of misreading, non-reading of evidence or wrong assumption of law is made out. Cases reported as "Imam Din and 4 others versus Bashir Ahmed and 10 others" (PLD 2005 SC 418), "Muhammad Afzal through his legal heirs and others versus Riaz Mehmood ADJ and 8 others" (PLD 2004 Lahore 115) and 'Muhammad Akbar versus Muhammad Malik and another" (PLD 2005 Lahore 1), were referred in this respect. Learned counsel relied upon the cases of "H.M. Saya & Co., Karachi versus Wazir Ali Industries Ltd, Karachi and another" (PLD 1969 SC 65), 'Allah Data versus Ahmed Ali Shah and others" (2003. SCMR 1202) and "Ch. Jalal Din versus .Mst. Asghar Begum and others" (1984 SCMR 586) to contend that appeal by a stranger is competent if such appellant is adversely effected by the decree. He then contended that Respondent No, 1 has based his claim on verbal commitment of Respondent No,2 An oral agreement requires strict proof through clearest and most satisfactory evidence with utmost precision as to the circumstance of time and place etc. He supported his contention by citing cases of 'Veknat Rao and another versus Nammdeo and others"
(AIR 1931 PC 285), 'Amina Rehman versus Mirza Karamat Hussain and others" (1993 MLD 1898) and "Ali Muhammad Khan versus Riazuddin Khera" (PLD 1981 Karachi 170) Learned counsel then proceeded to argue that permission granted by respondent No,2 to Respondent No,1, to put up hoardings/billboards on green belt, as per regulation framed under Section 44 of Punjab .
Development of Cites Act, 1976, is neither easement under Section 4 of the Easement Act 1882 nor a lease under Section 105 of the Transfer of Property Act 1882. Such permission is mere a license within the meaning of Section 22 of the Easement Act 1882. A license is revocable at the will of lincesor, even if it is granted for consideration. The only remedy against the breach of condition of license is the suit for damages. Suit for injunction against such breach is not competent. Learned counsel supported this contention by relying upon the cases of 'Muhammad Akbar Khan versus Province of West Pakistan" (PLD 1961 SC 17), 'M.A. Naseer versus Chairman, Pakistan Eastern Railways and others" (PLD 1965 SC 83), 'Abdur Rashid Malik versus Pakistan Railways and 3 others" (1992 CLC 2209), 'Mst Nazir Begum and others versus Province of West Pakistan and others" (PLD 1966 (W.P.)
Lahore 195), "Muhammad Hashim versus Zulifqar Ali Khan and others" (PLD 1963 (W.P.) Lahore 418) and 'M/s Zaidi's Enterprises etc versus Civil Aviation Authority etc" (PLD 1999 Karachi 181). Learned counsel submitted further that expansion of road was completed in the year 1999 and the suit was filed on 15.07.2003, while limitation for filing such suit as per Article 115 of the Limitation Act, 1908 is three years. The suit was barred by limitation but the Courts have ignored the same. Learned counsel contended that under Section 3 of the Limitation Act, the Court is bound to notice question of limitation, irrespective of the fact whether the parties have raised such question or not. Cases of "Hakim Muhammad' Buta and another versus Habib Ahmad and others" (PLD 1985 SC 153) and "Government of Pakistan versus Muhammad Bashir" (PLD 2005 Lahore 177) were referred in this respect. Learned counsel submitted that law requires that agreement with the government must be in writing and oral agreement has no value. A directive by Prime Minister or a Chief Minister does not create any vested right. He has lastly contended that case of the Respondent No, 1 does not fall within the ambit of Section 42 of the Specific Relief Act and leaned Courts below have assumed jurisdiction erroneously.
5. Learned counsel for Respondent No, 1 has fully supported the impugned judgments. He has submitted that Respondent No, 1 was allotted the premises prior to the creation/existence of Parks and Horticulture Authority. Respondent No, 2 in its written statement has no denied the assertions of the plaint regarding its verbal promise to re-allot the disputed site after the completion of the road widening work. The inability to re-allot the site was attributed to a ban imposed by the Government for installation of sign board, in the green belt. He then submitted that appeal by stranger is only competent when there is permission by Court. Neither any request was made nor a leave was granted to appeal as a stranger. The appeal was incompetently filed and was liable to be dismissed on this score alone. Learned counsel in support of his contention referred to the cases of H.M. Saya & Co., Karachi' versus Wazir Ali Industries Ltd. Karachi and another" (PLD 1969 SC 65), 'Malik Muhammad Iqbal v. Ghulam Muhammad" (1989 Law Notes 1298) and "Syed Musarrat Hussain Zaidi and another versus Syed Salim Jawaid Zaidi and another" (PLD 1993 Karachi 548). He added that the disputed site was allotted to petitioner during the currency of injunctive order. The site was not alloted to the petitioner at the time of institution of suit, therefore, the petitioner was thus neither necessary. nor a proper party. While referring to the case of "Nazir Ahmad versus Muhammad Rafiq" (1993 CLC 257) and "Province of Punjab through Chief Secretary and 5 others versus Malik Ibrahim and sons and another" (2000 SCMR 1172), it was contended that point not raised before trial Court, could not be agitated at revisional stage. Learned counsel referred to the cases of 'Makramullah versus Province of East Pakistan" (PLD 1969 Dacca 417), "The District Magistrate, Lahore and another versus Fariq Sayyed Fayyazuddin and another" (PLD 1965 SC 371) and 'Muhammad Siddiq, etc versus Market Committee, Tandlianwala, etc" (NLR 1981 UC 299) to submit that discretion to revoke the license cannot be exercised arbitrarily. It was submitted that not a single ground of revision petition, meets the requirement of Section 115 CPC. He has submitted that scope of revision is limited and according to the principle of law laid down by the Hon'ble .
Supreme Court of Pakistan in the case of "Haji Noor Muhammad versus Abdul Ghani and 2 others"
(2000 SCMR 329), instant revision petition is not competent. He found further support in this contention, from the cases of 'Noor Rehman and others versus Muhammad Yousaf ' (2000 CLC 1138) and Municipal Committee Murree through Administrator versus Homi Jamshed Kaikobad"
(2001 CLC 935). He emphasized that the suit is competent in terms of Section 56 (f) of the Specific Relief Act, while placing reliance upon the cases of "M/s. Zor Engineering Ltd versus State Bank of Pakistan" (PLD 1980 Lahore 534) and 'Blackwood Hodge (Pakistan) Ltd versus Hakimsons (Impex)
Ltd" (1983 CLC 1251). Learned counsel submitted that the remedy of suit for damages for illegal revocation of the licence is no bar to a suit for permanent injunction and in support of this contention referred to the case of `Abbasia Cooperative Bank through Manager and another versus Hakeem Hafiz Muhammad Ghaus and 5 others" (PLD 1997 SC 3).
6. Learned counsel for Respondent No, 2 adopted the line of arguments of the petitioner.
7. Heard learned counsel for the parties and perused the record.
8. Mayor Lahore through Secretary Lahore Municipal Corporation, allotted the premises for installation of neon sign/Tri-vision vide letter dated 19.10.1993 (Ex.P-2). Respondent No, 1 has throughout been paying the rent. Respondent No,2/Parks and Horticulture Authority came into existence in September, 1998, resultantly the management and control of disputed site went to Respondent No, 2, who by virtue of Notification No, SO (1)-1)-3-4/98 dated 16.12.1998 were given exclusive authority and right to lease out advertisements in notified area. Petitioner's signboard, remained installed at T-Junction of Jail Road in front of Gulberg Main Boulevard. close to Gymkhana Club (shown properly in the site-plan Exh. P-4). Respondent No, 1 kept paying the rent to Respondent No,
2. Respondent No,2 asked the Respondent No, 1 to remove the signboard, during the course of widening of Jail Road, with verbal commitment to re-allot it to the Respondent No,1 after the completion of road construction/widening process. Contents of para 3 of the written statement are admitted according to provisions of Order VIII Rule 5 CPC. Respondent No, 2 in its written statement has not denied the assertions of the plaint regarding its verbal promise to re- allot the disputed site after the completion of the road widening work. The inability to re-allot the site was attributed to a ban imposed by the Government for installation of sign board, in the green belt. The right of Respondent No, 1 for the re-allotment of the sight, was admitted by Respondent No,2 and that is why, other suitable location was offered which the Respondent No,1 declined to accept. Respondent No,2 ignoring it's policy and by violating the ban, allotted the petitioner disputed site on 16.2.2004, during the pendency of the suit. The site was allotted exactly on the day when the injunctive order in favour of Respondent No, 1 was vacated. The undue haste speaks about the keen involvement of Respondent No, 2 to allot the disputed site to the petitioner.
9. Learned appellate Court has rightly held that impugned action of the Respondent No,2 is rnala fide while holding so the Court observed: that the signboard of Respondent No,. 2 was removed which was installed consequent upon the order of the Court off acceptance of application of Respondent No,1; that the fee/rent for the relevant period was deposited by the Respondent No, 1; that reinstallation of signboard was declined on the ground of ban by Government and for the reason that disputed site was left open for green belt; and at the same time it was allotted to the Petitioner despite the ban etc. Respondent No,2 being authority of Government has showed undue haste in allotting the site to petitioner without awaiting the fate of suit.
10. The record further reveals that Respondent No, 2 has justified the allotment of the site to the petitioner on the ground that a summary to Chief Minister qua the allotment of disputed site either to petitioner or to Respondent No, 1 was sent and the Chief Minister approved the allotment of site to the petitioner instead of Respondent No,
1. Chief Minister being Chairman of PHA is competent to allot a site despite a ban. Exh. P-8, a directive of the Chief Minister dated 24.11.2003, is available on record, wherein the Chief Minister desired for the favourable consideration of the request of the Respondent No, 1 for re-allotment of the site. Respondent No, 2 ignored it, while in compliance of this directive the Respondent No,2 could allot the site to Respondent No,1 despite a ban. Relevant part of Ex.D-4 where Respondent No,2 has conveyed to the Chief Minister is reproduced as under: ft(i)
(ii)The proposed location is purely green area, which is not allowed for publicity hoarding.
(iii)However, PHA can entertain the request on other suitable locations."
The site was not re-allotted to the Respondent No,1 as the site was a green belt and at the same time the same was allotted to the petitioner by sending defective summary to the Chief Minister through misrepresentation. No one can be allowed to reprobate that which he has himself approbated. Respondent No,1 has totally neglected to consider that the ban was imposed on the basis of representation dated 24.04.2003 (Exh.D-3) on new hoardings. The case of Respondent No, 1 was not of a new site but of the re-allotment of site already allotted to him. Government functionaries are required to perform their functions fairly and transparently in a clean manner.
11. The verbal commitment of Respondent No,2 for re-allotment of the site, after the completion of the widening of the road, from perusal of written statement is admitted fact. It is also admitted that the period for which the site was allotted had not expired. DW-1 in his statement has admitted that 20-30 billboards were installed within the notified area of Respondent No,2 and the period in each case has been renewed until December 24, 2004. The refusal to Respondent No,1 for re-allotment of site was due to ban and the policy of Respondent No,2 offered the Respondent No,1 an alternate site acknowledging the latter's right of allotment of the site. Now new plea of Respondent No 2 can be entertained or considered except the one set up by it in its written statement.
12. State functionaries in the matter of contractual obligation are not placed at a higher pedestal than the citizens/subject. Superior Courts have taken serious view of unilateral termination of agreement or the unequal treatment by state functionaries. It was held in the case of 'M/s Presson Manufacturing Limited versus Secretary, Ministry of Petroleum and Natural Resources and 2 others"
(1995 MLD 15) that an arbitrary, capricious and unfair exercise of discretion by state functionaries renders the exercise of the judicial review. Their Lordships of Hon'ble Supreme Court in the case of "Shaukat Ali and others versus Government of Pakistan and others" (PLD 1997 SC 342) have held that if the action of the state functionary concerned is prompted with malice/mala fides, Court may interfere with the same. In the case "Abdul Haq and others. versus Province of Sindh" (PLD 2000 Karachi 224) it was declared that the higher the authority the more the responsibility for obedience and observance of law. Any failure or disobedience in due observance and performance of such inviolable obligation may attract judicial superintendence, enforcement and, correction. It was declared in. the case of "Ch. Mukhtar Ahmad versus Government of Punjab and others" (2000 CLC 1073) that the authority having failed to consider the case of Respondent No,1 at par with other similar placed ones, action of the authority was violative of Art.25 of the Constitution. 1973. It was also observed that every public functionary was bound to act in accordance with law. 'In a recent case of "Javed Iqbal versus PASSCO and another" (2004 CLC 478) it was observed by this Court.. "It can hardly be disputed by any one that for a society. which claims to be organized, civilized and law abiding, it is imperative to stand by its commitments, undertakings and to be honest and fair in its dealings. It is moreso for any functionary believing in rule of law neither to discriminate between the citizens, nor to exercise discretion at its pleasure. It is well settled rule that an authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. The principle of reasonableness and rationality which is an essential element of equality or non- arbitrariness is projected by Article 25 of our Constitution and it must characterize every State action, whether it be under authority of law or in exercise of executive power. Article 25'speaks of equality before law and equal protection of law. Public Corporation as an instrumentality of the Government, in the sense brought out above, has to observe equality and cannot-exclude a person by discrimination."
The above survey of law reveals that the illegal and mala fide act of the State functionaries cannot be left, unattended. Civil Courts being the Courts of ultimate jurisdiction have the jurisdiction to entertain a suit against the mala fide act of the Federal Government, Provincial Government or Local Authorities. Hon'ble Supreme Court of Pakistan in the case of "Hazara (Hill. Tract)
Improvement Trust through Chairman and others Versus Mst Qaisra Elahi and others" (2005 SCMR 678) has enunciated the law that a mala fide of. authority which is apparent on the face of the record is not liable to be ignored and the Court seized of the matter is under a legal obligation to take notice of mala fides. Argument of learned counsel for the petitioner and that of Respondent No,2 that suit of Respondent No,1 was not maintainable, has no force.
13.Learned counsel for the petitioner has assailed the impugned decree, as a stranger and was required to seek permission/leave in this respect, which was neither sought nor accorded. The site was allotted to the petitioner ignoring prior rights of Respondent No,1. It was allotted during currency of ban, in the area which as per police of Respondent No,2 is reserved for green belt and during the pendency of the suit. It reflects that undue favour has been extended to Respondent No,2, ignoring the all norms and relevant rules. petitioner is seeking equity without meeting the fair standard that "He who seeks equity must do the equity". The petitioner has laid much stress on the status of Respondent No,1, who according to him is neither lessee under Section 105 of the Transfer of Property Act, nor enjoying under Section 4 of the Easement Act, 1872. The status of Respondent No,1, according to the petitioner, is at the most that one of the licensee which is revocable at any time. I am afraid that this argument is of any help to the petitioner. Respondent No,1 was allotted site and the licence to use the disputed premises cannot be revoked unless a due notice for revocation of licence is given. August Supreme Court in the case of 'New Jubilee Insurance Corporation versus National Bank of Pakistan Karachi" (PLD 1999 SC 1126) has laid down the law that when an act or order which inflicts civil consequences on a person, in respect of his reputation or property which is harmful to his interest, he is entitled to be heard before such an action or order is taken or passed. petitioner has raised the question of limitation at this belated stage. It is evident from the record that Respondent No,2 considered the request of the petitioner, in view of the directive of the Chief Minister and the Prime Minister. The refusal for re-allotment of site for installation of publicity sign was lastly conveyed by Respondent No,2 to Deputy Secretary (V) C.M.
Secretariat Punjab Lahore through letter dated 26.05.2003 (Ex.D-4). A fresh period of limitation starts from the refusal .dated 26.05.2003 and the suit of Respondent No, 1 is well within the period of limitation, petitioner wanted to set up a new case, other than the one set up. by Respondent No,2 in its written statement. The grounds, which the petitioner has not agitated before the lower appellate Court; cannot be urged at the revisional stage.
14.The act of Respondent No,2 is mala fide and illegal. It lacks the element of transparency and fairness. The disputed site has been denied to the Respondent No, 1 on the ground that location is purely green area and there is a ban but surprisingly the same location has been allotted to the petitioner. While allotting the disputed site to the petitioner the rights and entitlement of Respondent No,1 were ignored. The petitioner as well as Respondent No,1 have failed to point out any instance of misreading or non-reading of the evidence. The case of the wrong assumption of law has also not been made out. I am, therefore, not inclined to interfere in the concurrent findings of the two Courts below, in the revisional jurisdiction.
15. For the foregoing, there is no force in this revision and the same is dismissed accordingly.