1. ' MRS QAISER IQBAL, J.---The applicants have invoked Revision Application under section 115 of the Code of Civil Procedure being dissatisfied from order dated 20-5-2008 passed by Ist. Additional Sessions Judge Malir, Karachi in Civil Appeal No,45 of 2007 against the judgment and decree dated 22-9-2007 and 25-9-2007 passed by Ist Senior Civil Judge Malir, Karachi in Civil Suit No,342 of 2003, which was dismissed.
2. ' The respondent filed suit seeking declaration and permanent injunction in respect of Plot No,21 Block B, Bazar Area Cantonment Board Malir, purchased in open auction on 3-3-1982 admeasuring 400 square yards. The respondent being the highest bidder had paid the bid amount, continued to pay ground rent. The respondent paid a sum of Rs,25,000 on 3-3-1982 submitted lease of building in Schedule VI approached to the applicant No,1 for execution of lease deed, he was directed to produce No Objection Certificate from the Station Headquarters, which was furnished in the year, 1999. The applicant No,1 declined to execute the lease therefore respondent approached the concerned quarters in September, 2001 and was informed that the respondent No,2 has imposed ban on the basis of report from the side of the applicant No,1 did not bother to intimate the respondent for execution of lease. The respondent received a letter on 8-4-2003 along with a cheque of Rs,106751 which was not accepted. The respondent continued to serve notices upon respondent No,1 but all in vain. It is urged that the respondent had made all arrangements for raising construction on the disputed .Plot, on account of non-approval of building plan for want of registered lease deed. The respondent has filed suit with the following. Prayers:--
(a) Declaration that the plaintiff is the absolute owner of plot No,21-B, Cantonment Bazar, Malir Cantonment admeasuring 400 square yards by virtue of purchase in an open auction on 3-3-1982 at the highest bid and payment of ground rent and approval of said sale by the defendants, declaration that the return of price considered is illegal and without lawful authority.
(b) Mandatory injunction directing the defendants to execute register lease deed in respect of the plot in dispute on payment of requisite charges.
(c) Permanently restrain 4he defendants, their representatives, agents, manager, attorney, sub- attorney, executor, assigns, clerk, official and another person or persons claiming under them and on their behalf from selling, alienating, encumbering, creating any charges, liens, in and or negotiating, making any deal and in respect of Plot No,21-B, Bazar area, Cantonment, Malir, Karachi admeasuring 400 square yards.
(d) Any other relief or reliefs which this Honourable Court deems fit and proper in the circumstances of the case.
3. ' The applicants filed joint written statement raised objections about the maintainability of the suit.
4. It was however pleaded that after deposit of 1/4 of bid amount the case was placed before the Board, after its approval the case was referred to competent authority, such sanction was conveyed to the respondent for payment of balance amount of Rs,50,000 along with Miscellaneous Expenses. The respondent had paid lease amount but the documents were not submitted. On 3-5- 2001 applicant No,2 imposed ban on execution of lease deed, it was decided to refund money to the respondents therefore relief as claimed cannot be awarded, suit is liable to be dismissed.
5. ' The learned trial Court settled the following issues:--
(1) Whether the suit is not maintainable under Specific Relief Act?
(2) Whether the plaintiff had purchased the Plot No,21, Block B, Cantonment, Malir, measuring 400 square yards?
(3) Whether the plaintiff has paid total amount of Rs,107651?
(4) Whether the plaintiff has any right of ownership over the plot in question?
(5) Whether the plaintiff is entitled for the relief claimed?
(6) What should the decree be?
6. ' During the course of trial respondent examined himself as well as applicant's representative Yousuf filed his affidavit-in-evidence subjected to cross examination. Trial Court, decreed the suit which was assailed in appeal by 'the applicants which too was dismissed, against the impugned order the applicant has preferred this revision application.
7. ' Learned counsel for the applicants has contended that the suit is whimsical, capricious, arbitrary as it does not fall within the ambit of section 42 of the Specific Relief Act. The points regarding the maintainability of suit was already decided up to the level of High Court on the basis of the evidence adduced. The Courts below have erred in law by holding that the suit as framed and filed is maintainable. It is emphatically stated that the suit is barred by section 42 of the Specific Relief Act. The Courts below have failed to embark upon the material points relating to the legal character vested in respondent after cancellation of the transaction.
8. ' Mr. Shaikh Abdul Majid learned counsel for respondent has contended that the pleas raised by the applicant are not sustainable in law after confirmation of the bid offered, the respondent being highest bidder was entitled to the execution of the lease deed. It is urged that for about twenty one years the respondent was not intimated by the applicant No,2 being competent authority about imposed ban on execution of lease on the plots sold in open auction. It is next urged that the applicants enjoyed the cost of the plot paid to them for over two decades, in whimsical and capricious manner refused to execute the lease addressed a letter to the respondent on 8-4-2003 with a cheque equivalent to the price paid by the respondent which manifestly shows mismanagement in the affairs of the applicants. They slept over two decades for the reasons best known to them avoided to execute lease on flimsy and frivolous grounds in favour of the respondent. It is next urged that the ban regarding the maintainability of the suit was not determined in Revision Application No,104 of 2005 and the order of the rejection of the application under order VII Rule 11, C.P.C. Passed by the trial Court was set aside with the direction to decide the case on merits. It is next urged that the applicants are in league after receiving the substantial amount towards the auction price of the disputed plot as well as upon receiving the ground rent as per receipt available on record the applicants were liable to execute the lease deed. The ban imposed by the applicant No,2 was not retrospective in nature. The communication of the applicant to the respondents in the month of April, 2003 along with the cheque towards the cost of the disputed plot were not warranted under the circumstances of the case which shows mala fide on the part of the applicants on account of high rise in the prices of the plots entire game has been motivated to usurp the plot by playing tactics. It is further disclosed that NOC from station headquarter was obtained in the month of February, 1999 after thorough verification and clearance. The Director Military Lands and Cantonments wrote a letter to Director General Military Lands dated 13-8-2002 recommended the case of the respondents for approval of the Government. The competent authority conveyed sanction thr.Ough letter dated 20th July, 1982 the respondent deposited the entire amount of premium and Miscellaneous Charges as per sanction.
9. I have considered the arguments advanced at bar. Perusal of the sanction of the Government reveals that the highest bid was approved by the competent authority in 1982 as indicated in the letter and for execution of lease in schedule of CVA Rules, 1937 subject to payment of premium. The subsequent event of imposition of ban does not apply to the cases which were already sanctioned for execution of lease subject to the payment of dues. The ban imposed in the year, 2001 on the plots sold in auction, lease of plots are with prospective effect, case in hand does A not fall within the purview of the ban imposed. This factum also finds support from the letter dated 21-12-2002.
10. The recommendation made by the applicant manifestly shows that the respondent did not violate any law, complied with all the requirement paid all the dues in time per schedule. The Karachi based Cantonment authority has endorsed in its letter No,14/385 DKMRL/13 dated 13-8-2002. The applicants have been utilizing he amount paid to them. The condition of deposit of bid amount were fulfilled, the bid was accepted subject to deposit of amount demanded which was approved by one of forum. After inordinate delay the respondents' plea that the applicant had imposed ban on execution of lease in May, A 2001 and decided to refund the money deposited by the respondent were not of any significance. The above point was considered in case of Mst. Rehana Asghar v.
11. Military Estate Officer Lahore Circle Lahore and 2 others 2005 MLD 28 Lahore which reads as under:- - "In Faiz Ali v. Mst. Rafia Jan PLD 1956 Lah.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 fulfilment 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 v.
12. Hakim Singh and others 8 P.R. 1915, it was observed that the defendant (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 observation were also relied subsequently by another Division Bench of this Court in Jagat Singh v. Mst. Raj Devi AIR 1938 Lah.554, and also by relying on yet another unreported judgment of a Division Bench of this Court in Kishan Singh and others v. Labh Singh and others Civil Appeal No,891 of 1933, wherein again the question of validity of a 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."
13. ' Another Division Bench decision reported as Ibrahim v. Mst. Rajji PLD 1956 W.P.Lah.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 the tenant could take effect". By referring to section 175 of the Government of India Act, 1935, w 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 conditions. And it is contemplated by the parties that the sale shall also be evidenced by a formal deed which may be executed at any time after the completion of the sale.
14. ' In Ilam Din v. Muhammad Din PLD 1964 SC 842 the question 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 Supreme Court:-- "Some arguments were 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. Their reply presented with a great deal of force that ever since, 1915, 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."
15. ' 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 it to the Government 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 said year": This decision was challenged in the Honorouable Supreme Court, but was upheld. 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."
16. ' Relying on Ilam Din v. Muhammad Din PLD 1964 SC 842 and Ali Ahmed 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. "
17. ' In case of Syed Ali Shah v. Government of Pakistan through Ministry of Defence 1994 CLC Lah.369 it is held that public functionaries/statutory body while dealing with the subject and justly and fairly in accordance with law and they are bound to stand by their comments, failure of public functionary and statutory authorities to stand up their comments would result in undermining confidence of public in such bodies. In the above case petitioner vide order in question was being allowed commercialization at exorbitant rate which was not prevalent at the time of filing of the application, due to failure on the part of the authority to finalize the matter in time. The imposition of commercialization was considered to be invalid, discriminatory and being violative of provisions of Articles 4 and 25 of the Constitution. It is further observed that doctrine of promissory estoppel is applicable against the Government in exercise of Governmental, public or executive functions of the doctrine of execution necessity or frame of future executive actions cannot be invoked to defeat the doctrine of promissory estoppel. The doctrine of promissory estoppel has been accepted and enforced in the case of Federation of Pakistan v. Choudhry Muhammad Aslam 1986 SCMR 916.
18. From the admitted facts it stands established that the respondent has participated in the auction bid carried out requirements in accordance with the Cantonment Laws, lawful bid of the respondent was accepted by the applicant No,l, neither fraud or collusion for obtaining benefits has been revealed from the record, coupled with the applicant No,2 had imposed ban which cannot by any stretch of imagination be retrospective in nature. The auction was held in the year, 1982 whereas the imposition of the ban was disclosed to the respondent in the year, 2003. The applicants are estopped to fake such pleas at a belated stage, the respondent cannot adversely suffer due to delay in disposal of case by competent authority. I, therefore, hold that the applicant No,2 was estopped to pass an order for return of the amount already paid if the applicants hail failed to finalize the matter the respondciH; cannot be allowed to suffer, the order passed by the applicant No,2 is discriminatory being violative of provisions of Articles 4 and 5 of the Constitution of Islamic Republic of Pakistan 1973 as held in case of Shrim Munir and others PLD 1990 SC 295 and Government of Pakistan through Secretary Ministry of Religious Affairs and 3 others 1992 CLC 219.
19. It will not be out of place to mention that in execution proceedings the competent Court had not only delivered the possession of the disputed plot to the respondents but Nazir has also executed leases in his favour in accordance with the judgment and decree passed by the Courts below.
20. Resultantly I am of the view that the Revision Application is not maintainable in law and is hereby dismissed. The parties are left to bear their own cost.