1. ' SAJJAD ALI SHAH, J.---The petitioner through instant petition has approached this Court with the following prayers:--
(a) To declare that impugned notice dated 10.10.2012 (Annexure P/23) issued by the Respondent No,1 is illegal, unlawful, arbitrary, mala fide, without jurisdiction and of no legal effect, hence, may be struck down.
(b) To declare that the Petitioner is entitled to use and enjoy the subject land in acccrdance with law and the Respondents have no lawful authority to put hindrance or obstacle in any manner in the lawful business of petitioner without due process of law.
(c) To declare that the NOC/ Permission of forwarding layout plan to KBCA for approval to allow temporary construction on the subject land (Annexure P/16) was duly acted upon, creating valuable right of the petitioner, hence, cannot be cancelled, withdrawn or rescinded by the Respondent No,1 under the doctrine of locus poenitentiae.
(d) To declare that the contemplated action of alleged withdrawal or cancellation of NOC by the Respondent No,1, is unjust, illegal; unlawful, unilateral, mala fide, without jurisdiction and Coram non-judice being in violation of natural principle of justice.
(e) To restrain the Respondents from taking any illegal, unlawful or any adverse action against the petitioner in any manner about subject land without due process of law and to further direct the Respondents to act in accordance with law.
(f) To grant costs of the proceedings; and
(g) To grant any other/better relief as may be considered appropriate by this Honorable Court in the circumstances of the case.
2. ' The controversy precisely in the instant petition appears to be that Plot No,CL-II, Civil Lines Quarter, Karachi admeasuring 13,437 square yards (hereinafter referred to as "subject plot") was leased out in favour of the petitioner in the year 2005 for commercial development including construction of five star hotel. As per lease construction of the hotel was to commence within a period of five years.
3. It appears that despite lapse of seven years the petitioner failed to commence the construction in terms of the lease and consequently requested the respondents to allow petitioner to erect marque on temporary basis for utilizing the said plot and ultimately the respondents vide their letter dated 10.04.2012 granted such permission for a period of five years. It appears that soon thereafter the respondents vide their letter dated 29.08.2012 withdrew the permission so granted and directed the Deputy Commissioner to take over the possession of the plot. Thereafter again the respondents vide their letter dated 10.10.2012, which was addressed to the petitioner, not only withdrew the permission so granted vide letter dated 10.04.2012 but also directed for removal of all existing construction i,e, marque and taking over the possession of the subject plot which led the petitioner to approach this Court. The Petitioner was granted ad interim relief by this Court on 23.10.2012 by suspending withdrawal of permission letter dated 10.10.2012. It further appears that the premises of the Petitioner was sealed and on Petitioner's application this Court vide Order dated 13.08.2014 directed de-sealing with a rider to initiate proceedings as per law.
4. ' Mr. Muhammad Ali A. Hakro, counsel appearing for the petitioner, contends that once the petitioner has issued "no objection certificate" for temporary construction, the same could not have been withdrawn unilaterally especially when the petitioner had acted upon such NOC. It was next contended that the withdrawal of "no objection certificate" for raising temporary construction was without issuing sho w-cause notice or giving an opportunity of hearing, therefore, letter dated 10.10.2012 cannot sustain. In support of his contention Mr. Hakro has placed reliance on the judgments of this Court in the cases of (1) Mir Ghulam Abid Khan v. Pakistan through Secretary and another (2000 CLC 443) and (2) Abdul Ghaffar Bhundi v. The Federation of Pakistan and another 2006 PTD 670.
5. ' On the other hand, Mr. Ahmed Pirzada, learned counsel appearing for the respondent, contends that long-term lease was granted in favour of the petitioner for the construction of five star hotel on very concessional rates just to promote already depleting business of resorts and hotels in Karachi, however, the petitioner has miserably failed to fulfill the terms and conditions on which the lease was granted by constructing a five star hotel and taking note of such violation, the respondents cancelled the very lease which has been challenged by the petitioner by filing a Suit No,1512 of 2014 before the original side of this Court which has directed parties to maintain status quo in respect of the lease. As to the issuance of letter dated 10.10.2012 it is contended that since the subject land is situated just adjacent to the Chief Minister's House i,e, Red Zone and it was realized that permission of temporary construction in the shape of marque is a potential threat not only to the Chief Minister's house but to the adjacent building like, Commissioner's House, Gymkhana, Movenpic Hotel, Pearl Continental Hotel and Rangers Headquarters, therefore, the permission was withdrawn and the subject land was sealed, however, in compliance of this Court's order dated 13.8.2014 subject property was de-sealed . Mr. Pirzada has further invited our attention to letter dated 25.09.2013 of respondent No, 1 addressed to respondent No, 2 asserting that despite withdrawal of permission to raise katcha construction, the petitioner is raising pacca construction by flouting the covenant of concessionary lease.
6. ' In response, Mr. Hakro contends that the lease was granted in the year 2005 a worse era for the hotel industry, therefore, it was not possible and feasible for the petitioner to spend heavy amount in the hotel industry which at that relevant time was already in difficult.
7. ' We have heard the learned counsel for the respective parties and have perused the record of this case.
8. ' In our opinion, there are two aspects of this case, firstly temporary construction of marque in consequent to the licence/permission dated 10.4.2012 and its withdrawal vide letter dated 10.10.2012 and secondly cancellation of lease on account of non-fulfillment of terms and conditions i,e, to commence the construction of five star hotel within a period of five years. The second portion of the controversy is subjudiced before the original side of this Court by way of a Suit No,1512/2014 wherein the petitioner has challenged the order dated 18.8.2014 of the Deputy Commissioner, Karachi South, whereby subject land was resumed under subsection (5) of Section 10 and Section 24-A of the Colonization of the Government Lands Act, 1912 and this Court while suspending such order directed the respondent not to interfere with the possession of the petitioner, whereas subject matter of the instant petition is the first portion of the controversy i,e, utilization of the subject land as a marriage garden after constructing a marque.
9. There appears to be no dispute that the present use of the subject land by raising temporary construction of marque by the petitioner is in gross violation of the terms of concessionary lease granted to petitioner at the rate of only Rs,700/= per square yard whereby a plot admeasuring 13437 square yards just opposite P.C. Hotel was leased for a period of 99 years, just for Rs,10,391,206/- a price in which even 100 square yards commercial plot is not available in the nearby vicinity leave aside such a huge commercial plot situated in the heart of the city and at the most expensive place. The main consideration/justification for granting this plot on such a low price as evident from the contents of lease was to attract foreign investment by undertaking construction of a five star hotel, the construction whereof was to commence at the most by 2010 but the petitioner instead of commencing construction in terms of lease diverted its use, which in our view could not be but with connivance of respondents. Even the Petitioner has pleaded that five star hotel could not be constructed on account of law and order situation prevailing in the city which prevented the inflow of the foreign investment. However, this could be a ground for surrendering the lease but not to divert its use for earning easy money by exploiting terms and conditions of the lease. Notwithstanding, it .Appears that one of the most valuable property of the province is being misused may be with the connivance of some of the officials of Revenue Department, and the permission to misuse the subject land in violation of terms of lease was allowed by the respondent through letter dated 10.04.2012. Perusal of letter dated 10.04.2012 would reflect that it is nothing but a license to use the property in violation of the terms of lease, as in absence of such permission the act of the petitioner for utilizing the subject property and raising temporary construction of marque would have been unlawful. Now we will address the contention of Mr. Mohammad Ali that since the permission has been acted upon, such permission therefore, could not be unilaterally revoked. The argument is totally misconceived and the case law cited has no relevance as complete answer to this proposition is provided in Section 64 of the Easements Act, 1882 which provides that, where a licence has been granted for a consideration, and the licensee, without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from the grantor.
10. In view of the fact that the petitioner would only suffer damages on account of withdrawal of such permission which even otherwise is against the terms and conditions of the lease, therefore, in our opinion the instant petition does not appear to be maintainable and therefore, is dismissed.
11. ' Let a copy of this order be sent to the Chairman NAB to look into the matter to ensure that there is no corruption or corrupt practice involved while allowing the petitioner to violate the terms of lease by installing marque on a plot granted for a specified purpose on a concessionary rate.