IRFAN SAADA T KHAN, J.---The instant High Court Appeal (hereinaf ter referred to as "HCA" ) has been filed impugning the judgment and decree dated 14.03.2017 and 20.03.2017, respectively , passed by the learned Single Judge of this Court in Suit No.1010 of 1999.
2. Briefly stated, the facts of the case are that the respondent Gymkhana, known as Karachi Gymkhana (hereinafter referred to as "KG" ), was established in the year 1886 and is considered to be the oldest club in Karachi. KG is located on plot No.CL-II/I measuring 57,726 square yards at Civil Lines Quarters, Karachi. That in British Indian era the then government granted a revocable lease to KG on 26.08.1886 on certain terms and conditions. That in the year 1999 i.e. after the expiry of the lease KG approached, through letter dated 29.06.1999, for grant of further lease of 99 years of the property . KG was then offered the lease in consideration of payment of Rs.5 million by the appellant No.1 and the said offer was accepted on the very same date by the KG. An order for the said purpose dated 20.09.1999 was also then issued by the appellant No.1. The respondent then prepared two pay orders on 20.09.1999 and submitted the same before the appellant No.2. However , surprisingly the appellant No.2 refused to accept the said pay orders. The respondent then made another attempt and approached the. appellant No.2 on 12.07.1999 for accepting the said pay orders through a covering letter but the appellant No.2 returned the said payments on the ground that the matter has been referred to the Board of Revenue (BOR). Then on 15.07.1999 the respondent received a letter dated 05.07.1999, this time issued by the appellant No.1, whereby the earlier offer letter dated 29.06.1999 was withdrawn/recalled. Being aggrieved with the said treatment meted out by the present appellants, the respondent filed a suit for declaration, specific performance and perpetual injunction, bearing Suit No.1010 of 1999, before the learned Single Judge of this Court. The matter proceeded before the learned Single Judge who, vide order dated 07.08.2001, framed the following issues:
1. Whether the plaintiff is entitled to Specific Performance of Contract concluded on 29.6.1999?
2. Whether the Defendant is liable to execute 99 years lease of the said. property in favour of the Plaintiff?
3. Whether the Plaintiff was entitled to a perpetual injunction restraining the Defendants from taking any action adverse or discriminatory towards the Plaintiffs use and occupation and leasehold rights in the said property?
3. The matter then proceeded before the learned Single Judge who after fulfilling the legal formalities i.e. examining the witnesses and obtaining the evidences, decided the three issues in favour of the present respondent by answering all these issues in affirmative. The suit thereafter was decreed in favour of the respondent by allowing the prayer clauses 1, 2 and 3, with slight modification. It is against the said judgment and decree that the present HCA has been filed.
4. Mr. Shabbir Shah, A.A.G. has appeared on behalf of the appellants and at the very outset submitted that the agreement entered between the respondent and the appellant No.1 was void and the same being illegal cannot be enforced. He, while elaborating his viewp oint, submitted that legally speaking no agreement took place between the parties on 29.06.1999 since the said agreement, if any, runs contrary to the law and therefore was void. He invited our attention to certain provisions of the Contract Act to support his viewpoi nt and stated that while entering into the agreement Sindh Disposal of Urban Lands Ordinance 1999, Colonization of the Government Lands Act, 1912 and Statement of Conditions issued under the above law dated 15.04.1999 were totally ignored and not considered, hence the agreement was ab initio void and cannot be enforced. He stated that no doubt the land granted to the KG was not "disposed of" to them but if the interpretation made in the judgment given in the case of Mehmood Akhtar Naqvi v. Malik Israr , Senior Member Board of Revenue (PLD 2018 SC 468) is taken into consideration, wherein the term "dispose" has been defined, that would mean grant of tenancy also hence, according to him, in a way the land has been disposed of through the letter dated 29.06.1999 to the respondent, which though subsequently was withdrawn, but from the terms of the said letter it seems that the land has been disposed of illegally by the appellant No. 1 to the respondent, which they in legal parlance cannot do. He read out various portions of the Supreme Court's judgment to support his stance. He stated that as per the Colonization Act no government land could be disposed of but the same could only be leased out for a particular period and after expiry of the said period the said land had to revert back to the government for its utilization by the government only and no vested right could be claimed by any person with regard to lease in his favour , after expiry of the said period. He explained that in the instant matter after the expiry of the lease period of 99 years it appears that the lease was renewed without considering the fact that it could not be leased out for another period without fulfilling certain conditions but the appellant No.1, according to him, in a perfunctory manner allotted the lease to the respondent for another period of 99 years on a consideration of a paltry amount of Rs.5 million, which should not have been done and upon realizing the mistake /error the same was withdrawn, vide letter dated 05.07.1999. He stated that the land belongs to the Government of Sindh (hereinafter referred to as "GOS ") which alone could renew the lease and has every authority to withdraw /cancel the lease, if they cons ider otherwise. He stated that in the Sindh Disposal of Urban Lands Ordinance, 1999 also various parameters have been mentioned which since have not been fulfilled, therefore, the said land cannot be leased out to the respond ent; He however admitted that if a fresh application is made for renewal of lease of land by the KG, the same would be considered sympathetically in accordance with law and would be decided accordingly by the GOS or the concerned department.
5. Mr. Shah next contended that even if for argument's sake it is assumed that the agreement entered between the appellant No.1 and the respondent dated 29.06.1999 was in accordance with law but the main factor of the amount of consideration of the lease was not taken into consideration while allotting the lease and a land measuring almost 60,000 square yards in the heart of the city has been allotted at a meager sum of Rs.5 million only for a period of 99 years. He stated that if the market value of the said land, at present, is determined, the same would run into billions of rupees hence, according to him, even if KG desires to get the said land on lease for another 99 years, the same has to be given on present/ prevailing market rate and not otherwise. He stated that the Governor had no jurisdiction or power to direct the grant of lease of the land in favour of the respondent hence, according to him the Governor transgressed his powers, which was rightly recalled subsequently .
6.The learned counsel next submitted that in the present matter no principle of vested right is applicable. He relied upon the following judgments in support of his above claim: i) Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCMR 907 ) ii) The Engineer-in-Chief Branch through Ministry of Defense, Rawalpindi and another v. Jalaluddin (PLD 1992 SC 207) iii) Messrs Excell Builders and others v . Ardeshir Cowasjee and others (1999 SCMR 2089 ) iv) C. P. No.127 of 2012---Regarding pensionary benefits of the judges of superior Court from the date of their respective retirements, irrespective of their length of service as such Judges ; HRC No.40927-S of 2012--- Application by Abdul Rehman Farooq Pirzada and Civil Miscellaneous Appeal No.176.12012 in C.P.No.Nil of 2012-- -Begum Nusrat Ali Gonda v . Federation of Pakistan and others (PLD 2013 SC 829 )
7. He further stated that since the basic agreement was void hence the entire edifice built upon the said void agreement should crumble to the ground being non-est in the eyes of law. In support of his above argument, he placed reliance upon the following decisions: i) Yousaf Ali v. Muhammad Aslam Zia and others. (PLD 1958 Supreme Court (Pak.) 104] ii) Dr. Zahir Ansari and others v . Karachi Development Authority and others (PLD 2000 Karachi 168 )
8. He also stated that there is no estopple in law and in support of this assertion relied upon the following judgments: i) Messrs Army W elfare Sugar Mills Ltd. and others v . Federation of Pakistan and others (1992 SCMR 1652 ). ii) Agar Textiles (Private) Ltd. through Authorised Officer v. Federation of Pakistan through Secretary , Ministry of W ater and Power , Islamabad and 2 others (PLD 2016 Sindh 431 ) iii) Messrs Gadoon T extile Mills and 814 others v . WAPDA and others 1997 SCMR 641 ) iv) Muhammad Asif Bangash v . A.S.P ., Kohat and 4 others (PLD 2005 Peshawar 107)
9. He further stated that the contract was against the public policy and in this behalf relied upon the following decisions: i) Sultan T extile Mills (Karachi) Ltd., Karachi v . Muhammad Yousuf Shamsi (PLD 1972 Karachi 226 ) ii) Habib Bank Ltd. v . A.B.M. Graner (Pvt.) Ltd. and others (PLD 2001 Karachi 264 )
10. Mr. Shah next contended that what treatment has been meted out with the other clubs is of no consideration as the case of KG has to be examined independently . He submitted that since no agreement was concluded between the parties hence, according to him, the parties cannot be considered to be ad -idem with each other . He, while explaining this point, stated that in entering into any agreement by the parties, the parties have to be of one mind.
He stated that in the instant matter the parties do not seem to be of one mind as, according to him, the letter dated 29.06.1999 was subsequently withdrawn on 05.07.1999, meaning thereby that a wrong committed by the appellant No.1 on the instructions of the Governor of Sindh, if any, was subsequently rectifie d, hence, in his view, the matter has to be considered as a fresh one, and as suggested earlier , KG has to file a fresh application to the GOS for renewal of lease, which would be decided by them alone in accordance with law. He stated that if KG is of the opinion that it is imperative upon the GOS to renew the lease, the same is a mistaken notion on behalf of KG as the original allotment letter dated 26.08.1886 clearly stipulates that the government is at liberty to resume the plot at any time they think fit to do so and that no compensation could be claimed by the KG for any loss. He stated that the above condition leaves no room of doubt that it would be the government who would decide the fate of the plot being held by the KG and KG only possess a revocable lease in their favour and nothing else. He stated that the parties appear to be of two different minds as one is applying for renewal of lease, whereas the question of renewal, in his view, does not arise, there fore, the principle of ad-idem squarely applies in the instant matter which has totally been ignored by the learned Single Judge while passing the impugned order . In support of his above submission, he placed reliance on the following judgments: i) Muhammad Matloob and 10 others v . Jamshed K. Marker and 2 others (PLD 2006 Karachi 523 ) ii) Farzand Ali and another v . Khuda Bakhsh and others (PLD 2015 SC 187 )
11. The learned counsel next contended that in any contract there are two primary conditions i.e. offer and acceptance, however , according to him, in the instant matter these conditions appear to be lacking. He stated that though there is an offer but where is the acceptance? He stated that the letter dated 29.06.1999 could not be termed to be an acceptance, as the person who has accepted the offer was not legally empowered to do so. He stated that since this important aspect of the contract was missing therefore the said acceptance letter dated 29.06.1999 firstly cannot be a legal acceptance and secondly cannot be termed to have created any vested right in favour of the present respondent, what to say about the fact that it was subse quently withdrawn by the said authority itself.
12. Mr. Shah next contended that the learned Single Judge while passing the order has failed to appreciate the difference between a lease and a license. He stated that the letter dated 26.08.1886 was a revocable license and not a lease hence there cannot be a question of renewal of lease in the instant matter . He stated that KG was in fact granted a revocable license for 99 years, which stood expired after the said period hence, according to him, KG firstly has to return the said plot of land to the government and if they want to continue with the same they have to apply for fresh renewal of license and not lease, which would be decided by the GOS but their claim with regard to renewal of lease, according to him, was totally misplaced and cannot be made in view of the facts and the law explained by him. He stated that even if Sections 105 and 107 of the Transfer of Property Act are considered, they would support the stance of the appellants. Mr. Shah also read out the above provisions of law to support his viewpoint. He also placed reliance on the decision given in the case of Government of Sindh through Secretary and Director General, Excise and Taxation and another v. Muhammad Shaft and others (PLD 2015 SC 380) in support of this his argument.
13. The learned counsel next stated that again even if for argument's sake it is assumed that there was an agreement, the said agreement since was unregistered hence cannot be relied upon. He invited our attention to Sections 17 and 49 of the Registration Act. He further stated that Section 60 of the Easements Act also supports his viewpoint that if a revocable agreement was between the parties, the same stands revoked on the day of its expiry and in this behalf relied upon the following judgments: i) M. A. Naser v . Chairman, Pakistan Eastern Railway and others (PLD 1966 Dacca 69 ) ii) Ch. Ahmed. Nadeem v . Abdul Qayyum and another (PLD 2016 Islamabad 98)
14. Mr. Shah next contended that an illegality cannot be perpetuated merely because substantial time has elapsed or a third party interest has been created and in support thereof placed reliance upon the following decisions: i) Maulana Abdul Haque Baloch and othe rs v. Government of Balochistan throu gh Secretary Industries and Mineral Development and others (PLD 2013 SC 641 ). ii) Syed Mehmood Akhtar Naqvi and others v. Malik Israr , Senior Member , Board of Revenue Sindh and others (PLD 2018 SC 468 ).
15. He thereafter invited our attention to Section 3 of the Government Grants Act, 1895 and stated that the matter has to be considered under this provision of the law. Mr.Shah next contended that the learned Single Judge while passing the order has fallen into error in not considering Section 22 of the Specific Relief Act, which is a mandatory provision of the law as nobody could be asked to perform an illegal action or an impossibility , which in the instant case had been done to favour the respondent by the Governor of Sindh. In support of his above arguments, the learned counsel placed reliance on the following decisions: i) Farzand Ali and another v . Khuda Bakhsh and others (PLD 2015 SC 187 ) ii) Liaqat Ali Khan and others v . Falak Sher and others (PLD 2014 SC 506 ) iii) Mst. Mehmooda Begum v . Syed Hassan Sajjad and 2 others (PLD 2010 SC 952 ) iv) Shakeel Ahmed v . Mst. Shaheen Kousar (2010 SCMR 1507 ) v) Muhammad Sharif and others v . Nabi Bakhsh and others (2012 SCMR 900 )
16. Mr. Shah, in the end, prayed that since the judgment and the decree passed by the learned Single Judge suffer with a number of irregularities and illegalities hence the same may be vacated/set-aside.
17. Khawaja Shams-ul-Islam Advocate has appeared on behalf of the respondent and stated that the suit property was granted for 99 years lease by the competent authority . He stated that it was the appellant No.1 who offered a grant of 99 years lease upon payment of Rs.5 million, which was duly accepted by the respondent and thereafter vide letter dated 20.06.1999 the property was leased out to the respondent, however , for the reasons best known to the appellant No.2 they intervened in the matter and pressurized the appellant No.1 to withdraw the letter of allotment of lease, which was subsequently withdrawn vide impugned letter dated 15.07.1999. He stated that it was under these circumstances that the respondent was left with no option but to file a suit for permanent injunction against the Present appellants, which was rightly decreed in favour of the respondent by the learned Single Judge, through his detailed and comprehensive order . He stated that evidences were recorded through commission, in which witnesses have supported the stance of the respondent, and after recording of the evidences and examining the witnesses and after thorough cross-examination it was duly established that the version of the respondent with regard to grant of lease in their favour was duly established and proved and thereafter the matter was decreed in favour of the respondent.
18. Mr. Shams stated that a proper bindin g contract was entered between the parties, which was illegally withdrawn /cancelled, when the same was duly acted upon by the appellant No.1 and the respondent and due payment through pay orders was also offered, which was illegally and incorrectly refused and returned by the appellant No.2 to the respondent. He stated that under the circumstances the appellant No.2 was bound to accept the offer made by the competent authority i.e. the appellant No.1, which was accepted by the respondent. He stated that there was no occasion of filing an application before the appellant No.2 for renewal of lease since, in his view, the same has already been made and done by the appellant No.1 but was illegally and incorrectl y cancelled /withdrawn. He next submitted that the appellant No.2 has no jurisdiction to raise any objection in respect of the lease entered between the appellant No.1 and the respondent, as the appellant No.2, according to him, has acted in a totally derogatory manner . He invited our attention to the evidences submitted before the learned Single Judge and the cross- examinations of the parties to prove that the lease was made in a proper manner and all the requirements of law were duly fulfilled. Mr. Shams invited our attention to Section 105 of the Transfer of Property Act to prove that when a proposal has been made and has been accepted by the other side, the same becomes a binding and concluded contract and the same has to be accepted in a legal parlance. He also invited our attention to Sections 52, 60 and 61 of the Easements Act, read with Sections 39 and 40 of the Land Revenue Act, 1967. He stated that the allotment of land to KG was of permanent nature, which could not be withdrawn /cancelled by the appellants. In support of the above submissions, the learned counsel placed reliance on the following decisions: i) Commissioner of Income T ax, Peshawar Zone, Peshawer v . Messrs Siemen A.G. (PLD 1991 SC 368 ) ii) Sharif Haroon v . Province of Sindh and another (PLD 2003 Karachi 237 )
19. Mr. Shams next submitted that a ground has been taken by the AAG that since the amount of Rs.5 million has been returned by the appellants hence there is now no binding contract between the parties. He stated that the said argument taken by the learned AAG is misplaced as, according to him, when the contract, in his view, stood concluded between the parties, this ground is no more available with the appellant No.2 as returning of the amount after a proper offer, which was accepted by the respondent, was a mala fide act on the part of the appellant No.2, for some extraneous reasons.
20. Mr. Shams also stated that the main cause of the refusal of the offer was to usurp the leased land allotted to the KG by evil doers as some high officials, including some politicians, want to illegally acquire the said land by hook or crook for their vested interest and to obtain benefit of this land, being in the heart of city. The learned counsel further stated that the appellant No.2 has no concern or jurisdiction to interfere in respect of the matters being dealt with by the appellant No.1 as according to him the appellant No.1 was the compete nt authority to grant lease to the respondent. He stated that the interference by the appellant No.2 or any other department including the Land Utilization Department or BOR was illegal and this interference was nothing but an attempt to usurp the land leased out to KG for ill intentions. He next stated that the stance of the AAG that the letter dated 29.06.1999 was issued by mistake is a fallacious argument as, according to him, the said offer letter was not issued by way of mistake rather the said offer letter given to KG was made after fulfilling all the legal requirements by the competent authority and whatever amount of lease was determined by the appellant No.1, the same was duly prepared and handed over, hence, the question of issuance of letter by mistake does not carry any weight and is uncalled for .
21. The learned counsel next stated that the instant HCA is not maintainable since the same has been filed by an incompetent person. While elaborating his viewpoint, Mr. Shams stated that the HCA has neither been filed by the appellant No.1 nor by the appellant No.2 but by a Section Officer, who has no authority .to file the said HCA 'and hence at the very outset this HCA is not maintainable, being filed by an incomp etent person and is liable to be dismissed in limine. He next submitted that the land was allotted to KG for recrea tional purposes for its members and as per the original allotment made in 1886, KG is entitled for renewal of its lease after expiry thereof and the appellants have no jurisdiction not to renew the lease or to claim back the land leased out to KG for any purpose other than the one for which the said land was allotted to KG. He invited our attention to various documents, original of fer letter and other documents to augment his stance.
22. Mr. Shams next stated that the land under question is in the possession of KG for the last more than 130 years and since there is no change in the status of the land, the same cannot be taken back from KG. In support of his above contention, he placed reliance on the following judgments: i) Karachi Metropolitan Corporation v . Mst. Rahima Bai and 7 others (1988 MLD 374 ) ii) Nasira Sultana v . Habib Bank Limited and others (PLD 1975 Karachi 608)
23. He next stated that the distinction drawn by the learned AAG with regard to license and lease is also misplaced as, according to him, it has nowhere been claimed by the appellants, as is evident from the various documents relied upon by him, that the land was ever licensed to KG. He stated that from the original letter of 1886 it is clear that the land was leased out and not either allotted or licensed to KG but was leased out for a period of 99 years, which was renewable. Hence, according to Mr. Shams, the distinction tried to be drawn by Mr. Shah is firstly wholly misplaced and secondly does not cater to the situation prevailing in the instant matter as according to him, Mr. Shah has simply tried to confuse the matter or to bring in such facts which are alien to the facts obtaining in the instant matter . He, therefore, stated that all the decisions relied upon by Mr. Shah, in trying to distinguish between a lease and a license, are not, applicable to the present case. Mr. Shams in this regard placed reliance on the decisions given in the following cases: i) Abdullah Bhai v . Ahmad Din (PLD 1964 SC 106 ). ii) Haji Noor Muhammad and others v . Karachi Development Authority and 2 others (PLD 1975 Karachi 373)
24. The learned counsel next stated that for a valid contract there has to be a valid offer and acceptance. He stated that if the facts of the case are examined it would become quite clear that there was a valid offer made by the appellant No.1, which was duly accepted by the respondent, hence, according to him, all the parameters of a valid contract were duly fulfilled and the same cannot be unilaterally withdrawn/cancelled by either the appellant No.1 or the appellant No.2 under any circumstances. In support of his contention, he placed reliance on the following decisions: i) Devi Prasad Sri Krishna Prasad Ltd. and another v . Secretary of State (AIR 1941 Allahabad 377) ii) Von Hatzfeldt W ildenburg v . Allexander 1(1912) 1 Ch 2841.
25. He next stated that the reliance of Mr. Shah on Sindh Disposal of Urban Lands Ordinance, 1999, Statement of Conditions issued under the said law dated 15.04.1999 and Colonization of the Government Lands Act, 1912 are not applicable in the instant matter as, according to him, this is not a case of fresh lease whereas all the provisions mentioned under the above laws relate to a fresh lease, hence, these provisions of law are not applicable in the instant matter . He stated that had this been a case of fresh allotment/lease then it could be said that these provisions of law had some bearing on the present matter but according to him admittedly since this is a case of renewal of lease, hence, the provisions of law, as mentioned by Mr. Shah, are not applicable and are liable to be ignored/repelled. He further stated that all the decisions relied upon by Mr. Shah in support of his arguments relatable to above laws are firstly not applicable and secondly are quite distinguishable in nature.
26. The learned counsel in support of his above contention relied upon the following judgments: i) Kalimuddin Ansari v . Director , Excise and T axation (PLD 1971 SC 1 14) ii) Khushi Muhammad v . Noor Din and others (PLD 2002 SC 702 ) iii) Messrs Green Fuels v . Shell Pakistan Limited (2005 CLC 1602 (Karachi)) iv) Muhammad Jamil v. (1) The Chairman, Industrial Court, West Pakistan and (2) The Orient Match Factory , Limited, Shandara (PLD 1964 SC 559 ) v) Commissioner Inland Revenue (Zone-I) L TU, Karachi v . Messrs Linde Pak Ltd., Karachi (2020 SCMR 333 ) vi) Manindra Nath Bose v . Bala-ram Chandra Patni and others [AIR 1973 Calcutta 145 (V 60 C 35)] vii) Associated Hotels of India Ltd. v . R. N. Kapoor (AIR 1959 Supreme Court 1262 (V 46 C 174))
27. Mr. Shams next contended that most of the provisions of law relied upon by Mr. Shah are not applicable to the instant matter as these are subsequent in time to the original lease given to the KG in 1886 hence would be of no help to him.
28. Mr. Shams next contended that the appellants have not pointed out that KG has ever violated the terms upon which the land was leased out to them. Hence, on this aspect also the appellants cannot interfere in the land leased out to KG.
29. Mr. Shams, in the end, stated that the HCA filed by the appellants is firstly not maintainable in law and secondly is liable to be dismissed with heavy cost since, according to him, the appellants have miserably failed to point out any error or misreading in the judgment of the learned Single Judge, which he supports, and therefore this HCA being meritless is liable to be dismissed.
30. We have heard both the learned coun sel at considerable length and have also perused the record, the law and the decisions relied upon by them.
31. Before proceeding any further we deem it appropriate to reproduce the law herein below upon which reliance was placed by the learned counsel for the parties: TRANSFER OF PROPER TY ACT, 1882
105. Lease defined . ---A lease of immoveable property is a transfer of a right to enjoy such property , made for a certain time, express or implied or in perpetuity , in consideration of a price paid or promised, or of money , a share of crops, service or any other thing of value, to be rendered periodically or on spec ified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor , lessee, premium and rent defined. ---The transferor is called the lessor , the transferee is called the lessee, the price is called the premium, and the money , share, service or other thing to be so rendered is called the rent. (Underline ours)
107. Leases how made. ---A lease of immovable property , from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than on each such instrument shall be executed by both the lessor and the lessee: Provided that the Provincial Government may from time to time, by notification in the official Gazette, direct that lease of immovable property other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrume nt or by oral agreement without delivery of possession.
REGISTRA TION ACT, 1908 Section 17. Documents of which Registration is compulsory:---( 1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) Instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested and contingent, of the value of one hundred rupees and upwards, to or in immovable property; Explanation: In the case of an assignment of a mortgage the consideration for the deed of assignment shall be deemed to be the value for registration;
(c) non-testamentary instruments (other than the acknowledgment of a receipt or payment made in respect of any transaction to which an instrument registered under clause (e) relates) which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) lease of immovable property from year to year , or for any term exceeding on year , or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property: Provided that the Provincial Government may, by order publish in the official Gazette, exempt from the operation of this subsection any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
(2) Nothing in clauses (d) and (c) of subsection (1) applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a Joint Stock Company , notwithstanding that the assets of such Company consists in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, limiting or extinguishing any right title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) any document not itself creating, declaring. assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property , but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court except a decree, or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding; or
(vii) any grant of immovable property by the Government: or
(viii) any instrument of partition made by Revenue Officer; or
(ix) any order granting a loan or instrume nt of collateral security granted under the Land Improvement Loans Act, 1883, or
(x) any order granting a loan under the West Pakistan Agriculturists Loans Act, 1958 (W.P. Act XVII of 1958), the Agricultural Development Bank Ordinanc e, 1961, or under another law for the time being in force relating to the advancement of loans for agricultural purposes, or any instrument under which a loan, is granted by a cooperative society for any such purpose, or any instrument made for securing the repayment of a loan so granted; or
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage money , and any other receipt for payment of money due under a mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer; or
(xiii) any counterpart of a lease, where the lease corresponding thereto has itself been registered.
Explanation. -A document pur-porting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money .
(3) Authorities to adopt a son, executed after the first day of January , 1872, and not conferred by a will, shall also be registered.
49. Effect of non-registration of documents required to be registered.-- No docu ment required to be registered under this Act or under any earlier law providing for or relating registration of documents shall--
(a) operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property; or
(b) confer any power to adopt unless it has been registered.
EASEMENTS ACT, 1882
52. "License" defined.-- Where one person grants to another , or to a definite number of other persons, a right to do, or continue to do, in or upon the immoveable property of the grantor , something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property , the right is called a license.
60. License when revocable . A license may be revoked by the grantor , when unless:--
(a) it is coupled with a transfer of property and such transfer is in force;
(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution.
61. Revocation express or implied . The revocation of a license may be express or implied.
Illustrations
(a) A, the owner of a field, grants a license to B to use a path across it. A, with intent to revoke the license, locks a gate across the path. The license is revoked.
(b) A, the owner of a field, grants a license to B to stack hay on the field. A lets or sells the field to C. The license is revoked.
THE GOVERNMENT GRANTS ACT, 1895
3. Government grants to take effect according to their tenor . All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor , any rule: of law , statute or enactment of the Legislature to the contrary notwithstanding.
SPECIFIC RELIEF ACT, 1877
22. Discretion as to decreeing specific performance. The jurisdiction to decree specific performance is discretionary , and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
The following are cases in which the Court may properly exercise a discretion not to decree specific performance: I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiffs part.
Illustrations
(a) A, a tenant for life of certain property , assigns his interest therein to B, C, contracts to buy, and B contracts to sell, that interest. Before the contract is completed, A receives a mortal injury , from the effects of which he dies the day after the contract is executed. If B and C were equally ignorant or equally aware of the fact, B is entitled to specific performance of the contract. If B knew the fact, and C did not, specific performance of the contract should be refused to B. (b) A contracts to sell to B the interest of C in certain stock-in-trade. It is stipulated that the sale shall stand good, even though it should turn out that C's interest is worth nothing. In fact, the value of C's interest depends on the result of certain partnership accounts, on which he is heavily in debt to his partners . This indebtedness is known to A, but not to B. Specific performance of the contract should be refused to A.
(c) A contracts to sell, and B contracts to buy, certain land. To protect the land from floods, it is necessary for its owner to maintain an expensive embankment. B does not know of this circumstance, and A conceals it from him.
Specific performance of the contract should be refused to A.
(d) A's property is put up to auction. B requests C, A's attorney , to bid for him. C does this inadvertently and in good faith. The persons present seeing the vendor's attorney bidding think that he is a mere puffer and cease to compete. The lot is knocked down to B at a low price. Specific performance of the contract should be refused to B.
II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff.
Illustrations
(e) Omitted by the Specific Relief (Amendment) Ordinance, XXII of 1983,
(f) A and B, trustees join their beneficiary , C, in a contract to sell the trust estate to D, and personally agree to exonerate the estate from heavy encumbrances to which it is subject. The purchase-money is not nearly enough to discharge those encumbrances, though at the date of the contract, the vendors believed it to be sufficient. Specific performance of the contract should be refused to D.
(g) A, the owner of an estate, contracts to sell it to B, and stipulates that he, A, shall not be obliged to define its boundary . The estate really comprises a valuable property , not known to either to be a part of it. Specific performance of the contract should be refused to B, unless he waives his claims to the unknown property .
(h) A contracts with B to sell him certain land, and to make a road to it from a certain railway station. It is found afterwards that A cannot make the road without exposing himself to litigation. Specific performance of the part of the contract relating to the road should be refused to B, even though it may be held that he is entitled to specific performance of the rest with compensation, for loss of the road. (i) A, a lessee of mines, contracts with B, his lessor , that at any time during the continuance of the lease B may give notice of his desire to take the machinery and plant used in and about the mines, and that he shall have the articles specified in his notice delivered to him at a valuation on the expiry of the lease. Such a contract might be most injurious to the lessee's business, and specific performance of it should be refused to B.
(j) A contracts to buy certain land from B. The contract is silent as to access to the land. No right of way to it can be shown to exist. Specific performance of the contract should be refused to B.
(k) A contracts with B to buy from B's manufactory and not elsewhere all the goods of a certain class used by A in his trade. The Court cannot compel B to supply the goods, but if he does not supply them, A may be ruined, unless he is allowed to buy them elsewhere. Specific performance of the contract should be refused to B.
The following is a case in which the court may properly exercise a discretion to decree specific performance.
III. Where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.'
Illustration A sells land to a Railway company , who contract to execute certain works for his convenience. The company take the land and use it for their railway . Specific performance of the contract to execute the works should be decreed in favour of A.
The W est Pakistan Land Revenue Act, 1967
39. Record of rights and documents included therein.--(1) Save as otherwise provided by this chapter , there shall be a record-of-rights for each estate.
(2) The record of rights for an estate shall include the following documents:-
(a) Statements showing, so far as may be practicable:
(i) the persons who are land-owners, tenants or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein;
(ii) the nature and extent of the interests of those persons, and the conditions and liabilities attaching thereto; and
(iii) the rent, land-revenue, rates, cesses or other payments, due from and to each of those persons and Government;
(c) a statement of customs respecting rights and liabilities in the estate;
(d) a map of the estate; and
(e) such other documents as the Board of Revenues may with the previous approval of Government prescribe.
40. Making of special revision of record-of-rights. (1) When it appears to the Board of Revenue that record-of- rights; for an estate does not exist, or that the existing record-or -rights for an estate requires special revision, the Board of Revenue may, by notification, direct that a record-of-rights be made or that the record-of-rights be specially revised, as the case may be.
(2) A notification under subsection (1) may direct that record-of-rights shall be made or specially revised for all or any of the estates in any local area.
(3) A record-or -rights made or specially revised for an estate under this section shall be deemed to be the record- or-rights for that estate, but shall not affect any presumption in favour of Governme nt which has already arisen from any previous record-of-rights.
32. The first ground agitated by Mr. Shah was with regard to term "disposal" as spelt out and explained in Akhtar Naqvi's case. We have carefully examined the above judgment and tend to disagree with the submissions of Mr. Shah as the term lease or license could not be confused with the term "dispose". In the judgments referred above, the Hon'ble supreme Court of Pakistan has discussed that whether adjustment of Government lands could be made with that of a land belonging to a private real estate developer , hence it is very much clear that this judgment has no bearing whatsoever to the present case in hand and that by no stretch of imagination, the term "lease or license" as defined in TPA, Easements Act or other laws could be construed to mean "disposal", as tried to be explained by Mr. Shah, as in our view the term "lease and license" have separate connotation and meaning from that of "disposal". Moreover , from the grant of lease letter dated 26.8.1886, it is evidently clear that the land given on lease to the respondent was for recreational purposes and not for other purpos es and the Government has the power to resume the plot at any time if thinks fit. Hence when it is established that the plot of land given to the KG was a lease for specific purposes and that the Government has power to resume the same, when deems it necessary , it could not be accepted that the said plot of land was "disposed of " to the KG. Even if arguments' sake, Mr. Shah's submissions regarding disposal is accepted, then why did the appellant No.1 offered for its renewal and why did the agreement was renewed, though later on the same was withdrawn, but can this be done in the case of a disposal. We are sanguine that answer to this question would be in negative as in case of a disposal, there does not arise any situation for an offer for renewal of lease or that of revocation of the same. Hence, so far as this argument of Mr . Shah is concerned, we do not find force in it hence reject the same.
33. The next issue agitated by Mr. Shah was with regard to lease and license. The terms lease and license have been defined in TPA and Easements Act explained (reproduced supra). From the agreement dated 26.8.1886 and the subsequent correspondence made between the respondent and the appellant No.1 in 1999 it is clear that the plot was given on lease and not on license to the K.G as in every correspondence the term lease or renewal of lease has been used by the Authority . It may be worth noting that the witnesses who have appeared and have led evidences and in their examination-in-chief and other documents also they have admitted that the relationship between the two parties i.e. appellant No.1 and the respondent was by virtue of a lease. Hence, the submission of Mr. Shah that there was a license agreem ent between the parties and not lease does not hold field and the same also stands rejected. Needless to state that the decisions relied upon in this behalf by Mr. Shah are distinguishable from the facts obtaining in the instant case.
34. The next point agitated by Mr. Shah was with regard to questioning the power of the appellant No.1 to enter into the agreement with the respondent. This aspect has also been examined and the case laws have been threshed out, here again we tend to disagree with Mr. Shah. The record reveals that in 1886 the appellant entered into an agreement of lease with the present respondent through a valid agreement and after expiry of the same, it was the appellant No.1 who offered the respondent for renewal of the same, which was duly accepted by the respondent, though subsequently withdrawn. Perusal of these documents demonstrate that all the parameters as required for a valid contract were fulfilled, as explained under Section 2(e) of the Contract Act, 1872. There was a promise of renewal of lease, consideration being the lease money hence in our view all the parameters of a valid agreement were duly fulfilled. The decisions relied upon by Mr. Shah have been examined and have been found to be distinguishable from the facts obtaining in the instant matter . The agreement of 1886 was made by the competent Authority whereas renewal has also been made by the competent Authority . It was in the light and assurance of various letters of 1999, between the appellant No.1 and the respondent that the pay orders were prepared, furnished and submitted to the appellant No.1, though not encashed. Hence, on this aspect also we are of the view that when a legally enforceable agreement was entered between the parties it was a binding contract which ought to have been performed and cannot be acted upon as per the will, wish and desire of the appellants. Moreover prior to withdrawal of the lease the parties were ad-idem with each other being of one mind, however it was due to the reasons best known to the appellants that the lease was withdrawn without assigning any reason whatsoever .
Hence the issue of parties being not ad-idem with each other is also found to be misplaced and the decisions relied upon by Mr. Shah on this very aspect are found to be quite distinguishable from the facts obtaining in the instant matter as well.
35. We will now dilate upon the issue that whether the appellant No.1, who has offered renewal of lease to the respondent was the competent authority or not, as agitated by Mr. Shah. It is noted that offer was made by the appellant No.1, which was duly accepted by the respondent and it was only thereafter that the pay orders were prepared of the offered amount. Record reveals that none other but an officer of Secretary level made the offer, being the highest officer of the concerned department, from the various documents furnished in evidence and in examination-in-chief, the appellant has miserably failed to point out that the action of the appellant No.1 was illegal or that he has proceeded with the action of renewal of lease initially without any legal basis. From the evidences it is clear that it was not the renewal of lease which was illegal but in fact it was the withdrawal of the letter which was illegal as the same appears to be tainted with malice and with some extraneous consideration, not brought on the record. The record duly reflects that the witnesses did not produce any evidence so as to suggest that the approval initially granted by the appellant No.1 was illegal, without approval or without following the rules of procedure.
Hence, on this aspect also we do not accept the contention of Mr. Shah that the agreement entered into between the respondent and the appellant No.1 was void, illegal, not enforcible or impracticable, hence on this aspect also we reject the contention of Mr. Shah. Case laws cited by Mr. Shah are definitel y distinguishable from the facts obtaining on this aspect of the matter .
36. The next issue raised by Mr. Shah was on the point of locus poenitentiae. We have examined this aspect also and have considered the various docume nts and the case law with utmost care. In our view, this principle does not come to rescue Mr. Shah, as no doubt any authority passing any order can rescind it but in the present case this principle does not seem to be applicable. The reason why this principle is not applicable being that the appellant No.1 has miserably failed to adduce any reason or evidence to prove that the authority which initially offered renewal of lease was either incompetent or has not followed the rules of procedure or acted contrary to the law.
From the evidences and the various documents furnished before the learned Single Judge or before us, it is clear that whatsoever documents furnished, the authenticity and veracity of these documents were never challenged.
The learned Single Judge has quite rightly reproduced the deposition of the witnesses in paras 12, 13 and 14 of his judgment to come to the conclusion that the authority which had offered the lease was the competent authority and the withdrawal of the letter was in fact without any legal basis and reason. Though an authority passing the order can withdraw and rescind the same but the same should be legally justified and established that since the original grant was illegal hence the same was recalled/rescinded or withdrawn but in the present, case it is clear that the original offer letter issued was in accordance with law, whereas the subsequent withdrawal, without assigning any reason, appears to be illegal, hence the act of the appellant No.1 could not be endorsed under the given circumstances. We, therefore, are of the view, that the principle of locus poenitentiae in the present circumstances is not applicable or attracted. Thus the decisions relied upon by Mr. Shah, in this behalf, are surely distinguishable from the facts obtaining in the instant matter .
37. So far as the argument with regard to vested right and the ground with regard to fact that if original agreement is void entire edifice built up it is also void is concerned, these arguments are found to be not applicable to the facts obtaining in the instant since it is noted that the agreement was neither void nor the authority making the said offer was incompetent.
38. Mr. Shams has raised an objection with regard to maintainability of this appe al as the same is signed by an incompetent person. Suffice to say that since neither the appellant No.1 nor the appellant No.2 have denied the said person, Yar Muhammad, to be not an officer of the land Utilization department hence this argument of Mr. Shams is rejected.
39. We agree with the submissions of Mr. Shams that the laws referred to by Mr. Shah with regard to Colonization of the Government Lands Act, 1912, Sindh Disposal of Urban Lands Ordinance, 1999 and statement of conditions dated 15.4.1999 have no bearing to the case in hand as this is a case of renewal of lease and not that of a fresh lease. We have also noted that provision of Section 3 of the Government Grants Act, 1895 also has no bearing to the present case in hand.
40. It has categorically been mentioned in Section 60 of Easements Act (reproduced above) that if licensee has executed a work of a permanent character license could not be revoked. Though it is observed that the present case is that of lease however if for arguments' sake it is accepted that it was a license even in that case a work of a permanent character is not revocable. It is an admitted fact that the K.G. had erect ed work of permanent character on the plot. Section 105 of the TPA clearly stipulates that lease is a transfer of a right to enjoy such property for a certain time or in perpetuity . In the presen t case it is noted that the plot of land allotted to the K.G. in 1886 was on lease and after expiry of the same it becomes a lease in perpetuity , when the appellant offered the respondent for renewal for a further term in consideration of a price or a premium, as the case may be. In the instant case it is noted that after expiry of the lease an offer for renewal was made by the appellant, which was very much accepted by the respondent, however the consideration received for the renewal of lease was subsequently returned and the offer was withdrawn, which apparently in the given circumstances seems to be illegal on the part of the appellant No. 1. Since when a lease in perpetuity has been enforced and effected withdrawal of the same without assigning any reason is illegal. Hence this aspect of the matter also is found to be against the appellant. Furthermore the decisions relied upon this issue are definitely distinguishable.
41. From the upshot of the entire discussion made above, we have found no illegality , irregularity , non-reading or misreading in the order passed by the learned Single Judge. Hence this appeal is found to be meritless and the same is accordingly dismissed along with listed application(s).
42. The appellants thus are directed to renew the lease of the respondent without any delay . However , so far as the amount of lease money is concerned, the same could be fixed by taking into consideration the rates of lease as fixed for other Clubs/Gymkhanas of Karachi only .
43. Before parting with the judgment we would like to record our appreciation for the able assistance provided to us by Mr . Shah and Mr . Shams for reaching to the above conclusion.