ABDUL LATIF KHAN, J:- Through instant Constitutional petition, the petitioners seek issuance of an appropriate writ directing the respondents to process the case of respondents by charging the lease rates as provided in Policy 2004 for the whole area of 1587.26 Sq Yard (1301.96+285.30) and after adjusting the amount already paid, issue challan for the balance amount and also to convert Old Grant/Cantt Code Lease of petitioners' property into Regular Lease by interlay executing the Appropriate Lease Deed.
2. Arguments heard record perused.
3. A perusal of record reveals that occupancy rights of Bungalow No.4-A comprising of 1301.96 Sq.Yard (0.269 Acres) Survey No.190/A, situated at 4 A, Hospital Road, Peshawar Cantt were transferred by Mrs.Najma Andrews in favour of predecessor of petitioners No.2 to 4 and petitioner No.1 vide sale deed No.1856 dated 17.5.1990 on Old Grant Terms in the record of Military Lands and Cantonments, Peshawar Region. A policy was introduced in the year 1996 for conversion of Old Grant/Cantt Code Leases into Regular Leases whereby government offered Regular Lease for 99 years renewable for another similar term by charging 20% of the market rate as premium with annual ground rent of Rs.2 per Sq.Yard. The petitioners applied on 1.1.1998 for the grant of Regular Lease which was allowed through letter dated 28.9.1998, whereby petitioner was asked to deposit Rs.9,03,840/- for the recorded area of 1301.96 Sq.Yard as premium money on the basis of assessm ent made by local Evaluation Committee, constituted by respondents. The payment was made on 31.3.2000, by the petitioners, however the lease deed was not executed by the respondents despite repeated requests on behalf of petitioners. The petitioners requested through letter dated 3.6.2000 to provide challan for purchase of stamp paper and thereafter serious efforts were made for execution of deed but invain. On 27.5.2005 under the new policy of 2004, petitioner was asked to deposit Rs.8,60,800/- as premium charges and further Development Charges of Rs.65,098/-. As the petitioners have already paid Rs.9,03,840/- and as such Rs.43,040/- was already lying with the respondents as excess premium money however as per direction of respondents Rs.65,098/- Developmental charges were deposited by the petitioners and requested for execution of the deed as the matter was lingering on for more than 5 years without any valid reason. The petitioners also submitted judicial stamp paper valuing Rs.26,650/- and was entitled to get the lease executed. The respondents failed to execute the lease despite deposit of premium money, developmental charges and judicial stamp papers. The policy for conversion was revised on 10.8.2006 whereby lease rates were enhanced however under Clause 3(a) those who have already paid the dues and could not get the lease deed, were to be dealt with under old policy. The relevant clause is reproduced for convenience:- General Conditions. a) Already Paid dues cases. For cases where grantees have already paid the dues but could not get the leases executed due to time lag/expiry of the Government Letter etc, shall be dealt under the Old Policy.
4. Lateron the petitioners received a letter on 12.3.2007 whereby applications were again invited for the purpose and petitioners in compliance to that moved an application on 14.3.2007. The respondents on each inspection of their technical staff found excess area of 285.30 Sq.Yds in the disputed Bungalow and asked the petitioners to pay premium money for the excess land through letter dated 12.2.2008, whereby the petitioners were charged premium at new rates and total premium money of Rs.32,33,894/- as developmental charges for the total area of 1587.26 Sq.Yard.
The petitioners requested for review of the order on 27.7.2008 followed by various written and verbal requests and thereafter a letter was received by the petitioners on 12.4.2011, directing to pay the amount of Rs.32,33,894/-. Learned counsel for petitioners submitted that the petitioners never remained lethargic at any stage and have deposited the amount though sought extension for deposit of the same but complied with the orders of respondents and the amount deposited was lying with the respondents for considerable long period since 1998 but till date the lease deed has not been executed and informed the Court that the respondents has worked out for a sum of Rs.54,58781/- as per further revised rate on 22nd November 2012,which was highly oppressive to the petitioners and is being burdened without any fault on their part. Learned AAG submitted that it is the petitioners who were at fault as they did not produce the judicial stamp paper for execution of deed. When confronted with the situation that the amount alongwith developmental charges was deposited by petitioners in old and revised policy and is still lying with the respondents, has conceded to this effect, however stressed that due to non-production of stamp papers the matter was delayed which does not stand to reason. If the petitioners have deposited amount alongwith developmental charges at relevant time in the year 1998 and thereafter deposited the amount alongwith charges under revised policy alongwith deposit of Rs.26,650/- for judicial stamp paper then it was the bounden duty of respondents to get the deed executed in favour of petitioners as subsequent delay caused was not on the part of petitioners and instead respondents were instrumental in the non-execution of lease deed in favour of petitioners. The entitlement of petitioners as per Old Grant Policy 1996 and deposit of amount in compliance to the order of respondents has been admitted by learned DAG and is apparent from the available record.
Moreover respondents have claimed revised rates from the petitioners which is not oppressive in nature for the reason that previously 1301.96 Sq yard was granted to the petitioners and on the direction of respondents the amount was deposited alongwith developmental charges but strange enough that respondents department has re-measured the bungalow and found additional excess area of 285.30 Sq.Yds but the value was determined for the entire area of 1587.26 sq Yard which was not in line with law as the petitioners could not be burdened for the wrong committed by respondents. The case of petitioners as provided under the law has to be dealt with in accordance with Old Policy as it is the respondents who failed to process the case of petitioners for execution of lease deed. The respondents were under obligation to execute the same and the plea of learned DAG justifying the non-execution of judicial stamp paper is misplaced. There appears a case of slackness and negligence on the part of respondents who failed to perform their duties in accordance with law, rules and regulations. The respondents authority being public functionary was required to perform their duties efficiently in line with law and inaction delay or lukewarm attitude of respondents without any lawful excuse amounts to mal-administration and cannot be allowed to take benefit of their own wrong. The learned counsel for petitioners relied upon the judgment of Sindh High Court in case of M/S Farhat Imrana and Haidari & company (Pvt) Ltd Vs Military Estate Officer (Constitutional Petition No.D-2314 and 2315 of 2008) decided on 30.11.2010 and judgments of the apex Court in Civil Review Petition No.41-K & 42-K of 2011 in CPLA No.386-K & 387-K of 2011, in the same case Military Estate Officer Vs Farhat Imrana, whereby the Civil Review Petitions were dismissed filed against the CPLAs vide which the judgments of Sindh High Court was upheld by the apex Court, in which the respondents department was held responsible for their inaction and proposed disciplinary action against the delinquent officials. Learned DAG also relied upon the judgment of this Court in Writ Petition No.1748 of 2012 decided on 28.11.2013 and the judgment of apex Court in Civil Petition No.64 of 2014, whereby the same case was dismissed as not pressed by petitioner. However the facts and circumstances of referred case was altogether different from that of instant matter. Learned counsel for petitioners candidly conceded at the bar that the petitioners are ready to deposit the amount of Rs.32,33,894/- directed by respondents to deposit under Review Policy of 2007 which shows the conduct of petitioners who seems to be serious in execution of lease deed however learned DAG was bent upon to compel the petitioners for deposit of Rs. 54,58781/- as claimed vide letter dated 22.11.2012 by respondents. We are of the view that the referred letter has been issued without any justification and lawful authority by respondents and offer of petitioners for deposit of Rs.32,33,894/- seems to be quite reasonable and as such allow this petition, direct the petitioners to deposit the amount of Rs.32,33,894/- minus previous amounts deposited by the petitioners within a period of one month positively and respondents are directed to execute the lease deed in favour of petitioners within one month of the deposit of amount. Order accordingly.