IBAD-UR-REHMAN LODHI J.:- By means of this single order , I intend to dispose of this petition and Writ Petition No.1480 of 2012 filed by the present petitioners and also W.P. No.3320 of 2012 filed by Muhammad Sadiq, as the petitioners have challenged the impugned demand raised by the respondents' authorities regarding conversion of lease vide letters dated 04.01.2012 and 25.10.2012.
2. With the consent of learned counsel for the parties, the hearing of this petition and all referred petitions is being treated as pacca one.
3. The present petitioners are in possession of properties No.230 and 231, Survey No.162/848 and 223 and 233, Survey No.162/849, whereas Muhammad Sadiq petitioner in W.P. No.3320/2012 is in possession of residential plot No.2, Survey No.431/2.
Iftikhar Ali Malik etc./present petitioners on the basis of revised policy of Government of Pakistan in the year 2007 vide letter No.3/6/D 12(ML&C)/97-2007, dated 31.12.2007 have applied the Cantonment Board, Rawalpindi for conversion of their properties held on old grant lease into regular lease in Schedule IX-C of The Cantonment Land Administration Rules, 1937 (C.L.A.) for commercial purposes. On the other hand, Muhammad Sadiq petitioner in W.P. No.3320/2012 with respect of his property has applied the Cantonment Board for conversion of lease from Schedule VIII to Schedule IX-C of The Cantonment Land Administration Rules, 1937 from residential to commercial purpose. The Cantonment Board, Rawalpindi has accorded sanction in all the applications of the petitioners vide impugned letters dated 04.01.2012 and 25.10.2012 with certain conditions including payment of premium, surcharge, development charges and annual ground rent, which were calculated in view of the policy revised in the year 2012.
4. The case of the present petitioners is that since they have applied to the respondent authorities for grant of commercial leases in the year 2007, therefore, they have to be charged for such premium and other charges in view of the policy , which was in vogue in the year 2007.
5. Learned counsel for respondents' Board and learned Standing Counsel appea ring for Military Estates Officer, Rawalpindi both have submitted that the petitioners have applied the Board for conversion of their properly use in the year 2007, whereas revised clauses in policy of 2007 for conversion of propert ies held on old grant/Cantt code leases into regular leases under the CLA Rules 1937 and conversion/change of purpose of regular leases into fresh leases was promulgated on 12.01.201 1. After giving the date of promulgation of such revised policy , learned counsel representing the Board has submitted that since on the date, when originally the petitioners have applied the Board for conversion, no such policy was in existence, therefore, the provisions as were revised in year 2011 were to be applied in the cases of petitioners, but not at the rates, which were originally provided on 31.12.2007. It is also the version of the Cantt Board that in fact final sanction was granted to the petitioners in the year 2012 and the rates prevailed in the said year in view of the revised policy were to be charged from the petitioners.
6. In a case of similar background, the Hon'ble Supreme Court of Pakistan in case titled "CITY DISTRICT GOVERNMENT , KARACHI versus MUHAMMAD IRF AN and others " (2010 SCMR 1 186), has found as under:- "5. As in instant case respondents have submitted application for conversion of land use much prior to issuance of the new policy , which now has been framed, therefore, the respondents shall be liable to pay the charges which were prevailing at the time when application for seeking permission was submitted by them and the learned High Court vide order dated 21 April, 2004 has rightly invoked above principle of law in instant case. "
Similarly , a Division Bench of Sindh High Court in case titled "WORKS CO-OPERA TIVE HOUSING SOCIETY , KARACHI AND ANOTHER versus THE KARACHI DEVELOPMENT AUTHORITY " (PLD 1978 Karachi 529), has observed in the following manner:- "Housing Scheme--Development charge--Supreme Court in previous proceedings relating to same case directing that respondent do honour commitments made by Central and Provincial Governments to petitioner- Society and allot them land as expressed in notification dated 9 June 1964--Order of Supreme Court, held, must be implemented in light of rates and charges prevalent on 9th June 1964 and respondents not entitled to higher rates determined subsequently."
While dealing with the same question involved in this matter , this Court in case titled "Syed ALI SHAH versus GOVERNMENT OF PAKIST AN through Ministry of Defence and 2 others " (1994 CLC 369 ), has held that:- "--Sched. X (Modified)---Estoppel Promissory estoppels--Applicability-- Petitioner's application for seeking division of property in question, into commercial plots was granted at the rate specified in the order conveyed to petitioner---Petitioner depositing amount in question---Subsequently Authority issuing official order conveying grant of permission of commercialization of such property at an enhanced rate---Validity-- - Petitioner had applied for division of property into commercial plot in 1984 and as per initial demand notice he had deposited required amount---Official order was delayed due to inter-departmental conflict and during such conflict, rate for commercialization of plot had considerably increased---Ultimately in 1991, sanction was granted and new enhanced rates were demanded-- Petitioner having applied in 1984 and initial demand having been made before enhancement of such rate (in 1989), petitioner was entitled to the grant of division/commercialization of his property at the rate which was prevailing at the time he made such application and deposited the amount as per demand of Authority before enhanced rates were enforced in 1989---Charging of price at the enhanced rate merely for the reason that formal order had been passed/issued in 1991 due to the lapse on part of Authority would not entitle it to charge at the enhanced rate subsequently enforced-- Petitioner having deposited amount of initial premium as per demand of Authority he could not be burdened with enhanced rates subsequently enforced, on the principle of promissory estoppels whereby respondent could not charge enhanced rates."
It is interesting to note that the Cantonment Board, Rawalpindi has sanctioned site plan for commercial building in favour of Muhammad Sadiq-petitioner of W.P. No.3320/2012 vide resolution No.59(1 12/A), datedst th 23.06.2006 and subsequent thereto, the building has been erected and the same is being charged for the purpose of property tax by the Cantonment authorities.
Hence, in view of above precedents, the demand excessive to the rates, as were originally introduced on 31.12.2007 are held as unauthorized and excessive to the rates being claimed by the respondent authorities.
7. It is also evident from the record that on 29.06.2012, in this petition and in the connected W.P. No.1480/2012, whereas on 21.12.2012, in W.P. No.3 320/2012, the operation of impugned orders dated 04.01.2012 and 25.10.2012 were suspended subject to deposit of lease money at the rate of the year 2007 with the respondent- Board. The record further reveals that the present petitioners have deposited the directed amount in this petition and W .P. No.1480/2012 on 04.09.2012.
It also transpired from record that Muhammad Sadiq petitioner in W.P. No.3320/2012 could not deposit the directed amount within stipulated period, whereupon he moved C.M. No.163 of 2013 praying for a direction to the Military Estate Officer/Board to receive the amou nt in view of the order passed by this Court on 21.12.2012 alongwith an application moved by the petitioner before the office of Military Estates Officer, Rawalpindi Circle, Rawalpindi Cantt, which was received in the latter 's office against diary No.1827 on 31.12.2012. The respondents are under notice in the said C.M.
According to learned counsel for the petitioner , the said application of the petitioner has not so far been disposed of in any manner by the Military Estates Officer. The non-disposal of such application of the petitioner is confirmed by the learned Standing Counsel. As such, the Military Estates Officer-respondent is directed to receive the due amount according to the rates prevailing in the year 2007 from the petitioner within next 30-days.
8. The demand of excessive amount by the respondent authorities is declared illegal and without lawful authority and the impugned orders dated 04.01.2012 and 25.10.2012 are set aside.
9. Since the requisite amount has already been deposited by the petitioners in this petition and in connected W.P.
No.1480/2012 with the respondent' s Board, therefore, the respondents are directed to proceed accordingly and final order be passed within next 30-days positively for conversion of their properties held on old grant lease into regular lease in Schedule IX-C of The Cantonment Land Administration Rules, 1937 for commercial purposes, whereas in W.P. No.3320 of 2012, when the directed amount by the petitioner to the respondents is deposited within 30-days, the petitioner in that petition be extended same relief, as is grante d in W.P. Nos.1479 and 1480 of 2012 for conversion of lease of his property from Schedule VIII to Schedule IX-C of The Cantonment Land Administration Rules, 1937 from residential to commercial.
10. With these observations, all the Constitutional petitions are allowed .
IBAD-UR-REHMAN LODHI J.:- For the reasons recorded in my separate judgment of even date passed in Writ Petition No.1479 of 2012 titled Iftikhar Ali Malik and others versus Government of Pakistan and others , this writ petition stands allowed .
IBAD-UR-REHMAN LODHI J.:- For the reasons recorded in my separate judgment of even date passed in Writ Petition No.1479 of 2012 titled Iftikhar Ali Malik and others versus Government of Pakistan and others , this writ petition stands allowed .