DORAB PATEL, J.-According to the plaint, the respondents (who were the plaintiffs in the trial Court) are the tenants of the appellant of an open piece of land measuring 800 square yards at the corner of Lawrence Road and Haji Camp Road, Karachi. They had erected a superstructure on this plot and they had been paying for it to the appellant since 1950. Then, according to them, without any prior notice terminating their tenancy, the appellant threatened to eject them and demolish their superstruc--ture, therefore on these allegations, on or about 5-11-1960, they filed a declaratory suit against the appellant in the Court of the Second Sub-Judge, First Class, Karachi.
The relief sought by them in this suit was a declaration and an injunction. The declaration sought was that in the events that had happened the respondents had become the tenants of the plot in their occupa--tion and that the appellant was not entitled to eject them or demolish the superstructures constructed by them on the demised plot, and the injunction sought was to restrain the appellant from evicting them. The appellant contested this suit and submitted that the respondents were unauthorised occupants of the land in their possession and it also denied their allegation that it had received rent from them. It also claimed in its written statement to have ejected them but without prejudice to this plea. It advanced the further submission that it was entitled, under the K. M. C. Rules and Martial Law Order No. 60, to eject them.
2. On these pleadings the first respondent examined himself on behalf of the respondents. He claimed that the respondents had been in possession of the plot in dispute since 1947 and he produced several receipts (Exhs. P-1/1 to P-1/19) and said: "These are rent receipts. Held peaceful possession up to 1960". Then in cross-examination he admitted that the respondents did not have any agreement in support of their plea of tenancy, but he said that the respondents had talks with the appellant's land Manager for the purchase of the plot in dispute. Thus the evidence produced by the respondents was, to say the least, on the meagre side, but presumably because the appellant did not wish to be left behind in the race to produce the minimum evidence possible, it also examined only one witness, its surveyor. This witness produced a plan which was intended to show that the site occupied by the respondents was on a road or on an area marked for a road.
Unfortunately, this evidence was not given clearly, but it is sufficient to point out here that the witness admitted the respondents' allegation that they were being ejected without a notice.
However he denied the respondents' allegation of tenancy and emphatically asserted that the appellant had never realised rent from them.
3. The learned Civil Judge held that the respondents had failed to prove their tenancy because, under the K. Dal. C. Act, a lease could be created only by a written document in the manner prescribed in that Act. However, despite this finding he held that the appellant was not entitled to eject the respondents without a prior notice. Nonetheless he dismissed the suit of the respondents because he held that it was barred under section 94 of the Basic Democracies Order of 1959.
4. Aggrieved by this judgment, the respondents filed an appeal against it in the District Court, Karachi and together with their appeal they had applied for interim relief. As their application in this respect was dismissed, they filed an appeal in the High Court against the dismissal of their application for interim relief, and when this appeal came up for hearing before a learned Single Judge, the learned Single Judge decided to transfer the first appeal of the respondents from the District Court to the High Court. Accordingly, he exercised his powers under section 24, C. P. C. But with the consent of the parties and transferred to himself the appeal filed by the respondents against the dismissal of their suit. Then it would, appear that the learned Single Judge was hearing a similar appeal against the Hyderabad Municipality, therefore he decided to hear both the appeals together and also gave notice to learned counsel to assist him amicus curiae. Thereafter he heard arguments at length in both the appeals for several days and as in the Court below, the appellant's plea was that it could grant a lease only in the manner prescribed under the Karachi Municipal Corpora--tion Act, 1933 (hereafter called the K. M. C. Act) and that as the respondents did not even claim to have such a lease their suit was fit only to be dismissed. A similar plea was raised by the Hyderabad Municipality in the appeal against it, but the facts in that appeal were very different. However, according to the learned Single Judge the plea thus advanced by the Municipalities had led to "a conflict between justice and the formalities of law" and he was of the view that Municipalities had to be estopped from relying on the relevant provisions of the Municipal laws, because they had been collecting rent from the respondents. I may therefore explain here that the rent alleged to have been paid by the respondents to the appellant in this appeal is Rs. 8 per month for 800 square yards of land in a busy commercial area. Learned counsel bad sought to meet the objections thus raised by the learned Single Judge by submitting that the relevant provisions of Municipal law on which they relied were mandatory, so that the alleged receipt of rent was immaterial. And in support of these submissions they had relied on the case-law of the High Courts of the sub-continent as well as English law. But the learned Single Judge dissented from the case-law cited, largely on the basis of decisions on estoppel against companies incorporated under the Companies Act, and I may further explain here that because he took the view that Municipal Corporations were no different from large commercial corporations, he held that the principles of estoppel applicable to commercial corporations were also applicable to claims against Municipal Corporations. Accordingly, he allowed the appeals before him by his judgment dated the 18-8-1965. The decision against the Hyderabad Municipality is not relevant and only the Karachi Municipal Corporation has come in appeal against this judgment.
5. Mr. Ghous Muhammad, who has argued this appeal with ability, took us through the relevant provisions of the K. M. C. Act as well as the Municipal Administration Ordinance, 1960, and submitted that the conditions prescribed therein for the execution of leases were mandatory and therefore the learned Single Judge had erred in holding that the appellant was estopped from relying on them, and in this connection he also took us through the case-law and submitted that the view of the learned Single Judge was contrary to the case-law of more than half a century and had caused chaos in the administration of Municipalities. I will now consider the arguments of Mr. Ghous Mohd , but as the appeal was decided against the appellant solely on the basis of estoppel, it is necessary to be clear about the meaning of an estoppel, and I would first consider this aspect of the case.
6. As the respondents have not pleaded any estoppel in their plaint, it is difficult to know what type of estoppel they rely on. But, at the highest, it could only be an estoppel by representation, therefore I would quote here the classic definition of an estoppel by representation given by Bower in his Estoppel by Representation, (1966 Edition), page 4: "From a careful scrutiny and collation of the various judicial pronouncements on the subject, of which no single one is, or was perhaps intended to be, quite adequate, and many are incorrect, redundant, or slipped in expression, the following general statement of the doctrine of estoppel by representation emerges ; where one person ("the representor") has made a representation to another person ("the representee") in words or by acts and conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and with the result, of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in the proper manner, objects thereto."
Although the appellant denies the alleged tenancy claimed by the respondents, I will not even consider its evidence, and assume that the first respondent's evidence is true, but even so, does it make out any case of estoppel ? I have observed earlier that the first respondent claimed to have produced rent receipts. But although he claimed possession since 1947 in his evidence and since 1950 in his plaint, the so-called rent receipts produced by him relate to the period from and after 1954. Turning now to his evidence, he has merely said that the respondents had been "in possession since 1947 as tenants". 1n these circumstances, at the highest, it can be contended that the appellant, by giving the alleged rent receipts, had made a representation that it would accept the respondents as tenants. I may however point out that the question of the identity of the alleged representator is shrouded in mystery. Be that as it may, in order to succeed in a plea of estoppel, the party advancing this plea has also to show that it has suffered to its detriment or altered its position on account of the representation made to it by the opposite-party. Unfortunately, even if we overlook the fact that no plea of estoppel has been raised in the plaint, the respondents have not even attempted in their evidence to show how they had altered their position on account of the appellant's alleged representation, therefore as an essential ingredient of an estoppel was not proved. I do not see how the respondents can be permitted to raise this plea, and when I pointed out to Mr. Naqvi that the essentials of an estoppel had not been alleged even in evidence, learned counsel feebly requested that the case should be remanded to the trial Court. We refused this request because there is absolutely no justification for it.
7. I now turn to Mr. Ghous Muhammad's criticism of the judgment under appeal. I would repeat here that the view of the learned . Judge was that, as the appellant had created a tenancy In favour of the respondents it was estopped from repudiating their tenancy. Learned counsel's criticism of this finding was two-fold : that there was no tenancy and that there was no estoppel, and taking l first the question of tenancy, the only evidence in support of this finding is the first respondent's evidence and the so-called rent receipts which he produced. Unfortunately, on examination of these receipts (Exhs. P/1/1 to P-1/19), I find that the first four receipts contain the following words: "Licence fee for cabin rent". Confusing though these words be, they might be stretched to support a plea of tenancy, but all the other receipts, which are later receipts, only contain the- words "Licence for cabin rent". In these circumstances, Mr. Ghous Muhammad's submission that the learned Single Judge has misconstrued these receipts is correct. I am aware that the use of the words "Licence" and "rent" in a receipt is not always decisive. But as the burden was on the respondents to prove their alleged tenancy, I have no doubt that the evidence produced was not sufficient to prove this plea.
8. I now turn to the question of estoppel, and before I consider the provisions of the K. M. C. Act to which Mr. Ghous Muhammad referred us. I have to emphasise here that the first respondent has neither identified in his evidence the person or persons who had issued the receipts (Exhs P-1/1 to P-1/19) nor has he specified the person or persons who had granted them a tenancy. Mr. Naqvi however stated that the tenancy had been created by an oral contract with the appellant's Land Manager. As I shall presently show, this submission is not correct, but even if I assume for the sale of arguments that the respondents can be permitted to advance this submission, it will not help their case. I now turn to the provisions of the K. M. C. Act to which Mr. Ghous Muhammad referred us, and as the plea of the respondents is that their tenancy was created in 1947 or in 1950 it is only this Act which is relevant to their contention.
9. The only provisions of this Act to which we were referred are sections 55 and 56 and sections 229 and 230. Section 55 relates to the disposal of property belonging to the appellant other than waste lands and, for the purpose of this appeal, it is sufficient that the only officer of the appellant who is empowered to transfer such land is the Chief Officer, and that provided the annual premium or rent or both does not exceed Rs. 1,000. Section 56 deals with the disposal of waste lands and, according to it, waste land can be transferred "in accordance with the rules which have been made by the said Municipality . . . . ." This provision is not relevant as it is not contended that the plot in dispute is waste land. In any case, Mr. Naqvi has not referred us to any rules which would empower the appellant's Land Manager to transfer waste land, therefore, this section is of no assistance to the plea or rather the arguments of the respondents in this appeal. Section 229, on which Mr. Ghous Mohd. Relied, is important and reads as follows : "229.-(1) Every contract made by or on behalf of the Corporation shall be made in accordance with the provisions of Chapter VII of Schedule I.
(2) No contract shall be binding on the Corporation unless it has been made in accordance with the provisions of the said Chapter."
Section 230, in so far as it is relevant, reads as follows "230.-(1) Wherever it is prescribed that the permission of the Corporation is necessary for the doing of any act, such permission shall (unless it is expressly provided otherwise) be in writing.
(2) A licence or permission given under this Act shall specify the period for which, and the conditions and limitations subject to which, it is granted, and shall be signed in the prescribed manner.
(3) For every licence or permission a fee may be charged at such rate as shall from time to time be fixed by the Chief Officer with the previous approval of the Standing Committee.
(7) The acceptance by or on behalf of the Corporation of the fee for a licence or permission shall not entitle the person paying the fee to the licence or permission.
(8) Every application for a licence or permission, shall be addressed to the Chief Officer.
Once again these provisions do not confer any authority what--soever on the appellant's Land Manager to transfer or alienate land. Additionally, reading the sections together, it is clear that a lease or a licence has to be executed in writing, otherwise it is void and of no effect against the appellant. Turning now to the rules framed by the appellant, Mr. Naqvi thought that rules 5 and 6 contained in Chapter VII of Schedule I supported his argument. I cannot agree with this view. In the first place, these rules do not refer to leases and the plea of the respondents is that they are lessees and not licensees. And as I am not able to understand how these rules can lend any support to the case of the respon--dents, I would first quote them : "5. Every contract entered into by or on behalf of the Corporation and involving an expenditure exceeding two thousand rupees shall be in writing and sealed with the common seal of the Corporation.
6.-(1) Every contract under or for any purpose of this Act, shall be executed on behalf of the Corporation by the Chief Officer.
(2) No such contract for any purpose which the Chief Officer is not empowered by this Act to carry out without the approval or sanction of some other Municipal Authority shall be executed by him until or unless such approval or sanction has first of all been duly given."
Because rule 5 prescribes that a contract on behalf of the appellant shall be in writing and sealed with the appellant's common seal only when it involves an expenditure exceeding Rs. 2,000, Mr. Naqvi's submission was that, as the appellant had not produced evidence to show that the contract in question exceeded Rs. 2,000, it could not rely on this rule, and this was also the view of the learned Single Judge. With great respect, T cannot agree with it. On the plain language of the rule, it relates to contracts which involve expenditure on the part of the appellant and no expenditure was required in the present case ; therefore it has no relevance to the claim of the respondents, whether as lessees or as licensees. Secondly, the effect of rule 6 is that no contract whatsoever can be made on the appellant's behalf by its officers except by its Chief Officer. But as in the present case the plea of the respondents, even in evidence, is of an oral contract with the appellant's Land Manager, it is clear that the agreement on which they rely, even if true, is hit by rule 6, and as this rule has to be read with section 229, I have no doubt that it is mandatory and not directory. The result is that Mr. Naqvi's reliance on these rules is misconceived, and, on the other hand, I agree with Mr. Ghous Muhammad that the effect of these rules read with sections 229 and 230 of the K. M. C. Act is that the alleged agreement on which the respondents rely is null and void, and similarly the receipts on which they rely are hit by the express provisions of section 229.
10. I have also to observe here that similar provisions were contained in the Municipal legislation of the various provinces of the sub-continent and Mr. Ghous Muhammad's submission was that such provisions had always been held to be mandatory. This submission is correct. Thus nearly 70 years ago a Division Bench of the Bombay High Court held in Ahmedabad Municipality v. Sulemanji (I L R 27 Bom. 618) that the Provisions of the Bombay District Municipal Legislation regarding the execution of contracts by Municipalities were mandatory, not directory. Mr. Naqvi has not referred us to any decision of the Bombay High Court in which a different view was taken, nor am I aware of it. That has also long been the view of the Allahabad High Court Radha Krishna v. Municipal Board of Benares (I L R 27 All. 592). The view of the Madras High Court is the same, and I would only refer here to the leading case of that Court Raman Chetti v. Municipal Council of Kumbakonam (I L R 30 Mad. 290). That has also been the consistent view of the Calcutta High Court, and I may refer here to the classic judgment in Muhammad Ibrahimullah v. Commis--sioner for the Port of Chittagong (AIR 1927 Cal. 465) where all the earlier decisions of the Calcutta High Court have been discussed.
The Sind Chief Court had also taken the same view in Bhumbo Metha Ram v. District Local Board (AIR 1940 Sind 199) and though this judgment was not cited before Inamullah. J., as he then was, he also took the same view in All Hussain v. K. M. C. (PLD 1957 Kar. 463). I am aware that the observations of Inamullah, J. In this case are obiter dicta, but the same view was taken by a Division Bench of the West Pakistan High Court in Dr. Fazal Din v. Municipal Committee, Lyallpur (PLD 1956 Lah. 916). Thus the trend of authority is clear, consistent, and uniform the formalities prescribed in municipal legislation with regard to the execution of contracts by Municipalities are mandatory and there can be no estoppel against them. The reasons for this are obvious : the Legislature's awareness of the frailties of human nature and the consequent possibilities of malverisation of public funds and assets, and the necessity of maintaining a record so as to ensure responsibility of municipal councillors to their electors. As was observed nearly a century ago by Lord Bramwell in Young v. Mayor ((1883) 8 A C 517), with reference to the requirement of a seal "the Legislature has made provisions for the protection of rate-payers. Shareholders, and others, who must act through the agency of a representative body, by requiring the observance of certain solemnities and formalities which involve deliberation and reflection. That is the importance of the seal. It is idle to say there is no magic in a wafer".
11. In my humble opinion, there is nothing improper or unjust in the view that there can be no estoppel against a statute, and I cannot understand how the learned Single Judge came to the conclusions that the appellant's reliance on the very statute by which it was created amounted to something improper because it was an insistence on the mere technicalities of law at the expense of justice. With respect, this criticism was unfair to the long line of eminent Judges who, for generations, have held that there can be no estoppel against a statute. I say this not to be derogatory, but because this further means that whatever the view of the learned Single Judge, on the principle of stare decisis at least, he should not have dissented from the settled law.
12. However, In dissenting from the long established view of the Courts, the learned Single Judge has relied on judgments of the Lahore High Court, on the principles of estoppel as applied by the English Courts, on the principles of American Jurisprudence and on Indian decisions, and I will now examine whether the law relied upon by the learned Single Judge was relevant to the question of estoppel against a statute.
13. The judgments of the Lahore High Court on which the learned Single Judge relied are Faqir Chand v. Municipal Committee, Ludhiana (155 I C 491), Muhammad Hussain v. Municipal Committee, Sialkot (AIR 1936 Lah. 689), Anant Ram v. Small Town Committee, Pundri (AIR 1937 Lah.
84). It is true that the Lahore High Court has in these judgments extended the principle of estoppel to Municipalities and so, although the facts in these cases are distinguishable, it can be said that they support the view taken by the learned Single Judge. However, as I have pointed out, the question of estoppel against a statute was considered by a Division Bench of the West Pakistan High Court in Dr. Fazal Din v. Municipal Committee, Lyallpur and the learned Judges held that even the requirement under the Municipal Laws that a contract by a Municipality could only be made by axing its seal to the contract was binding and that non-compliance with this provision rendered contracts by Municipalities void. Apart from the fact that this view was later re-affirmed by the West Pakistan High Court in Dr. Azeem Shad v. Municipal Committee, Multan (PLD 1968 Lah. 1419), the learned Single Judge erred in preferring the judgments of the Lahore High Court to that of a Division Bench judgment of the West Pakistan High Court. This he simply could not do.
14. I now turn to the English judgments on which the learned Single Judge relied. But as I have earlier quoted, the English Law of estoppel, as stated by Bower, I may, with advantage, quote here the relevant passage from Bower on the question of Estoppel against a Statute. At page 131 the learned author has stated :- "Just at it is a good affirmative defence to an action on a contract that it cannot be performed without directly contravening the provisions of a statute and that, by enforcing it or otherwise judicially treating it as valid, any Court would be sanctioning and condoning such contravention, so also it is a good affirmative answer to a case of estoppel by representa--tion that any closure of the representor's mouth would result in a like judicial recognition of, and connivance at, a statutory illegality. The private rights and interests of the individual must yield in such circumstances to the higher rights and interests of the State. In accordance with these paramount considerations of public policy, it has been held that no estoppel can be allowed which will preclude the representor from asserting, and bringing to the notice of the Court, the statutory illegality of such acts, proceedings, and instruments as are sought to be validated by the estoppel put forward.
So no assumption of powers which are ultra vires of any person. Officer or corporation can be validated by the process of raising an estoppel against him who assumes them. A contract ultra vires a statute (for example) cannot be validated by in application of an estoppel nor can a building society be deemed by virtue of an estoppel to have greater powers than are given to it by its governing statute or constitution, or a company becomes entitled by estoppel to exceed its statutory powers to those given to it by its memorandum of association. Nor can the lack of such essential formalities as the consent of a Minister of the Crown or the making of a contract under seal of other particular formalities prescribed by statute, be remedied by estoppel, when the statute has made them the necessary conditions of entering into the transaction."
I have quoted the passage at length because it states the law as it stood in 1966. I may however refer here again to Young's case and to a judgment of the Judicial Committee, the more so as the learned Single Judge has referred to them but not followed them.
15. In Young's case the appellants' sued the respondents for work admittedly done by him for their benefit. But the value of the work done far exceeded -- 50 and according to the Public Health Act "Every contract made by an urban authority whereof the value or amount exceeds -- 50 shall be in writing and sealed with the common seal of such authority." The respondents repudiated liability for the appellant's claim on the ground that the seal of the Leemington Corporation had not been affixed on the contract and therefore it was null and void, in view of the Public Health Act. The legality of this contention was tested before the House of Lords and I may point out - here that, according to the common law also all Corporations, including commercial Corporations, were required to affix their seal when entering into contracts. However, for generations the Courts of Chancery had given relief against this common law rule and held that where a Corporation was acting within the scope of its powers and through its authorised. Agents it could be estopped from pleading the Common law rule. According to the appellant (Young), this rule was also fit to be extended to contracts made by Municipal Corporations and the appeal was taken as a test case to the House of Lords on this point. But their Lordships unanimously drew a distinction between the common law rule and the prohibition enjoined by a statute, namely, the Public Health Act and held that there could be no estoppel against a statute therefore they dismissed the appeal. I now turn to the judgment of the Judicial Committee in Maritime Electric Company Ltd. v. General Dairies Ltd.
(AIR1937PC114) and I may point out that this case was decided on the agreed statement of facts without any evidence. The facts were that the respondents were manufacturers of Milk products and they used to buy electricity from the appellant and cream from farmers at a price depending, amongst other things, on the cost of manufacture of its milk products, which necessarily included the electricity charges debited to them by the appellant. Further, the respondents used to receive bills from the appellant which it always paid promptly and they would then recover the amounts thus paid by them from the farmers from whom they had purchased cream. Suddenly, the appellant informed them that it had, for a long period, under charged them and therefore it filed a suit for the recovery of the shortfall. Its claim in the suit was that the charges it could levy were fixed under the local Electricity Act and therefore it was entitled, despite its earlier mistakes, to recover the additional amount due to it under the Electricity Act. The respondents resisted the claim solely on the plea of estoppel. Their submission was that they would not be able to recover the appellant's claim from the farmers, and therefore, as the difficulty had been caused by the appellant's mistake, the appellant was estopped from recovering its claim. I cannot conceive of a stronger case for estoppel and certainly the equities in favour of the respondents in that case were far higher than those in favour of the respondents in the present case. Yet in allowing the appellant's claim Lord Maugham observed at page 116 : "In such a case-and their Lordships do not propose to express any opinion as to statutes which are not within this category-where as here the statute imposes a duty of a positive kind, not avoidable by the performance of any formality, for the doing of the very act which the plaintiff seeks to do, it is not open to the defendant to set up an estoppel to prevent it. This conclusion must follow from the circumstance that an estoppel is only a rule of evidence which under certain special circumstances can be invoked by a party to an action ; it cannot therefore avail in such a case to release the plaintiff from an obligation to obey such a statute, nor can it enable the defendant to escape from a statutory obligation of such a kind on his part. It is immaterial whether the obligation is onerous or otherwise to the party suing. The duty of each party is to obey the law."
Thus the common law Courts have for generations drawn a distinction between estoppels generally and estoppels against statutes, and the settled law is that estoppels cannot be pleaded against statutes.
16. However, in taking a contrary view, the learned Single Judge has relied on a judgment of Lord Halsbury's in Bloomenthal v. Ford ((1897) A C 156) and observed with reference to it : "It is difficult to urge estoppel against illegal acts of a Corporation in more emphatic language." I have examined this judgment and I find that it relates only to a Public Limited Company which was in liquidation.
For advances made to the Company, the appellant had received shares which stated that they were fully paid up. However, it would appear that they were not fully paid up, and when the company ran into difficulties and liquidation proceedings began, the liquidator made a demand on the appellant for the amount unpaid on the shares Issued to him. The contention of the liquidator was that the appellant was aware that his shares were not fully paid up. The appellant denied this allegation and further, relied on the Company's statement in the share certificates that the shares were fully paid up. The House of Lords held that the Company and its liquidator were estopped by the statement In the share certificates that these shares were paid up, I am In respectful agreement with this view taken and no other view is possible, but the question in this appeal is of estoppel against a statute and the judgment is completely irrelevant to that question.
The learned Single Judge has also relied on another judgment of the House of Lords in Burkinshaw v. Nicolls ((1878) 3 A C 1004), but as that judgment also relates only to estoppel against a public Limited Company ; it is equally irrelevant. The learned Single Judge has also relied on a case reported in Corporation of Canterbury v. Cooper (99 L T 612). There the facts were that the respondent, who was a very old lady, was a lessee under a lease granted by the Canterbury Corporation centuries back in 1599. However, in 1892 she negotiated a fresh agreement with the Canterbury Corporation. But as this lease of 1892 had been executed without the prior approval of the local Government Board, it was illegal, therefore, many years later the Canterbury Corporation sought to repudiate it and filed a suit for trespass against the respondent which was decreed, and one of the questions before the Court was whether the Canterbury Corporation could be entitled to repudiate the lease executed by it on the ground that it was in breach of the provisions of the Municipal Corporation Act. This is the only portion of the judgment which is relevant to the present appeal, and in reference to it Channel. J. Observed "The result is that the lease Is undoubtedly invalid. It was contrary to the statute and I am inclined to think, though in my opinion it is not necessary to decide it, that . . . . . . It was void". In my humble opinion, far from supporting the view of the learned Single Judge, these observations are fatal to his view. Finally, the learned Single Judge has relied , on several other English decisions, but as they relate to estoppels against Joint Stock Companies, they are not relevant and I need not consider them.
17. Again, as I have observed, the learned Single Judge has relied on Indian case-law, and, I may add here, to a judgment of the Karachi seat of the West Pakistan High Court reported in Anwar Sultana v. Pak Co-operative Housing Society (PLD 1964 Kar. 116). Excluding one judgment of the Indian Supreme Court, which I shall now consider, all these cases relate to estoppels against Companies incorporated under the Companies Act, 1913, and are therefore irrelevant to the present appeal. The judgment of the Indian Supreme Court is Chatturbhuj Vithaldas v. Parashram (AIR 1954 SC 236). The learned Single Judge has relied on the observations at paragraph 41 of the judgment.
Bose, J. Has observed there "It would in our opinion, be disastrous to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally or through correspondence and that every petty contract must be effected by a ponderous legal document couched in a particular form. It may be that Government will not be bound by the contract in that case, but that is a very different thing from saying that the contracts as such are void and of no effect. It only means that the principal cannot be sued ; but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government.
There is authority for the view that when a Government Officer acts in excess of authority Government is bound if it ratifies the excess."
These observations are not relevant for more reasons than one. In the first place, they were obiter dicta arid made in the course of an appeal in an appeal in an election petition. Secondly, the observations have reference to Article 299 of the Indian Constitution. As that Article is not in part materia with the relevant provisions of the K. M. C. Act, the observations are of no help whatsoever to the construction of the K. M. C. Act, and for this reason, the judgment in the Province of West Pakistan v. Mistri & Patel Company (PLD 1959 Kar. 782) is also not relevant. Finally, the observations have reference to a contract executed by a Govern--ment Officer who was empowered by the Government to execute such contracts. But in the present case, the respondents rely on an alleged agreement with the appellant's Land Manager. As the appellant's Land Manager had no authority whatsoever under the K. M. C. Act to make any such agreement, the observations quoted are not relevant on this ground also. In my humble opinion, therefore the learned Single Judge erred in extending the rule laid down In the observations quoted to the present case.
18. Finally, as I have observed, the learned Single Judge has also relied on American Law, but reliance in this connection is based solely on a passage in American Jurisprudence. First Edition, section 758 at 788 of Volume 13. However, as rightly submitted by Mr. Ghous Mohammed, the passage cited is not relevant because once again it relates to estoppel generally and not to estoppel against statutes or against Municipal Corpora--tions. With regard to the statement in American Law about estoppel against Municipal Corporations, Mr. Ghous Mohammed referred me to section 168 of the 19th Volume at page 820. The passage states : "Municipalities act in both a governmental and a proprietary capacity and an estoppel Is not asserted if such will embarrass a Municipality in its capacity as a governing body or operates to prevent it from exercising its police power. Neither a wrongful nor an unauthorised act of a Municipal Officer or agent estops the Municipality . . . . . . : ' Although the position under the American Law appears to be a little different from that under our law, I agree with Mr. Ghous Mohammed that on the whole it does not support the view taken by the learned Single Judge. But I must further observe here that as the K. M. C. Act is a purely local statute, in my humble opinion, the reference to American Law is not justified. After all, this Act was one in a long series of statutes in the sub--continent relating to the powers of local self-governing bodies, and it is not the respondent's case that this Act was intended to make a departure from the pattern of Municipal Legislation in the sub-continent, therefore, as Sind was part of the Province of Bombay when this Act came into force, the case-law relevant to it: construction would be firstly that of the Bombay High Court, then of the other High Courts of the sub-continent and finally the judgments of the superior Courts in England, because the statutes pertaining to local self-Governing Bodies in the sub--continent were framed on the English pattern.
But, as I have shown the view taken by the learned Single Judge is completely inconsistent with this case-law.
19. However, the learned Single Judge has deliberately dissented from the long established case- law and extended to Municipal Bodies the rule of estoppel applied by the Courts to Companies incorporated under the Companies Act. In the opinion of the learned Single Judge this was just and equitable because public Corporations were not different from Commercial Corporations had to be equated with them. With respect, I cannot accept this view. In order to protect the public interest to check corruption and to ensure the purity of the democratic process, the Legislature has always imposed drastic controls on the powers of the employees of Municipalities, and so under the K. M.
C. Act, whilst the Corporation itself has wide powers, the only officer empowered to contract on its behalf is its Chief Officer and that in the manner specified under the Act. To nullify these provisions by equating Municipalities with joint stock Companies and then invoking the rule of estoppel would, in my humble opinion amount to frustrating the intention of the Legislature. Further, even with regard to estoppel against Companies, a Company is not estopped from repudiating the action of its agents if it is ultra vires of its powers under its Memorandum and Articles. This is because the public is deemed to have notice of a Company's Memorandum and Articles. But all the more is the public deemed to have notice of statutes such as the K. M. C. Act, and so even on the assumption that there is some analogy between Companies and Local Bodies, this does not lead to the conclusion that a Municipality can be estopped from relying on the statutory conditions which prescribe the manner in which it shall enter into contracts.
20. I must in fairness point out here that the learned Single Judge dissented from the settled law because he came to the conclusion that the appellant was acting arbitrarily and unjustly, and that was also Mr. Naqvi's submission. Accordingly, I invited the learned counsel to show us how the appellant was acting arbitrarily. Learned counsel submitted that as the respondents were lessees the appellant's attempt to eject them by falling back on the provisions of the K. M. C. Act was unjust and this was also the view of the learned Single Judge. I regret I cannot agree with it. Additionally, at the highest, the appellant's attempt to evict the respondents would be improper only on the assumption that the appellant was not otherwise entitled to eject them. But there is no justification whatsoever for this assumption although it is the basis of the view taken by the learned Single Judge, and I may explain here that even if we assume that the respondents were the appellant's tenants at Rs. 8 per month, they claim a lease of a large open plot. Now, both under the Sind Rent Restriction Act and under the Karachi Rent Restriction Act such tenancies were not protected, and as the respondents filed their suit during the pendency of the Karachi Rent Restriction Act, it is clear that at all relevant times the respondents were not entitled to any protection under rent control legislation. Therefore even if I assume for the sake of argument that the respondents were the appellant's tenants, the appellant could have terminated their tenancy at any time by a notice to quit and then ejected them. In these circumstances, merely because the appellant sought to assert its remedies under the K. M. C. Act, I do not see how its conduct can be branded as unjust nor can I see any equity in favour of the respondents.
21. The only point which remains for determination is whether the appellant is entitled to evict the respondents under the summary procedure available to it under its own rules. Mr. Naqvi relied on the appellant's admission that it had not served a notice to quit on the respondents. But as the respondents were trespassers, they were not entitled to notice. Learned counsel then referred us to section 83 of the Municipal Administration Ordinance. But this section relates to encroach--ments on a street made under a licence granted by the Municipal Committee. As the respondents are in unauthorised occupation of the land, they have seized, they cannot claim the benefit of this section. On the other hand, Mr. Ghous Mohammed relied on Chapter IV of Schedule VI of the Municipal Rules and submitted that the appellant was entitled to evict the respondents summarily under rule 3 of this Chapter. As Mr. Naqvi submitted that the case of the respondents did not fall under rule 3 or any of the rules of Chapter IV, it is necessary to examine them. But before I do so, I may point out that an issue had been framed on the question whether the respondents could be ejected in the manner sought by the appellant. This was the crucial issue In the suit and it reads : "Whether the defendants' attempt to evict the plaintiffs .... And to demolish the structure on the land in suit was ultra vires and illegal and against equity and natural justice." The burden of this issue was rightly placed on the respondents and I will now consider the arguments of the learned counsel in the light of this circumstance.
22. Chapter IV of the Municipal Rules deals with obstructions and empowers the Chief Officer to remove them summarily. Because the rules refer to the type of structures which can thus be removed summarily by the Chief Officer, Mr. Naqvi's submission was that the respondents had erected a cabin on the plot in dispute and that a cabin did not fall within the mischief of these rules. Even on the assumption that a cabin does not fall within the mischief of these Rules, as the burden of the issue was on the respondents, they had a prove that the superstructure erected by them was a cabin. But as they have not produced an iota of evidence in this respect, it seems to me that the issue could only have been decided against them with consequences fatal to their suit. Mr. Naqvi however relied on the fact that the learned Single Judge had taken a different view.
We therefore examined the evidence, and I have to state with regret that the first respondent has refrained from describing the structure erected on the plot in dispute. As there is thus no evidence about the structure constructed by the respondents, they cannot possibly contend that as it was a cabin the appellant's Chief Officer was not entitled to remove it under the rules. However, even if we assume for the sake of argument that the structure erected by the respondents was a cabin; what type of cabin was it ? Why can a cabin not be a temporary structure? That is the appellant's evidence, and there is absolutely no evidence to contradict- it. Additionally, I may observe here that even at this stage of a Letters Patent Appeal Mr. Naqvi could not give us any particulars about the cabin. With these observations I will not examine the rules of Chapter IV.
23. Rule 1 empowers the Chief Officer, with or without notice, to remove "any stall chair, bench, box, ladder, bale, tray .... Or other thing" on a road or on open space belonging to the appellant. Mr. Naqvi submitted that the words "other thing" in this rule had to be construed ejusdem generis with the words preceding them and therefore a cabin could not come within the mischief of this rule. I agree with this submission and further, as Mr.' Ghous Mohammed also relied on rule 3, it is not necessary to consider the other rules. Rule 3 reads as follows : "3. The Chief Officer may, without notice, cause to be removed any building materials, or any scaffold or any temporary erection, or any posts, bars, rails, boards or other things by way of enclosure, which have been deposited or set up in any street or in any open space vested in the Corporation without the permission or authority specified in sub-rule (1), or which, having been deposited or set up with such permission or authority, have not been removed within the period specified in the notice issued under sub-rule (2)."
Even on a casual comparison of the rules, it is clear that the scope of this rule is much wider than of rules 1 and 2. Prima facie the words "any temporary erection" are wide enough to cover most types of cabins. It is also not irrelevant to point out here that when these rules had been first framed, they had applied only to streets, and the obvious intention of the rule---maker in framing rule 3 in such wide language was to empower the Chief Officer to remove all obstructions whatsoever of a temporary nature from roads and streets, an intention which is also manifest from the heading of the Chapter. By an amend--ment dated the 15th September 1936 this power was extended to all open spaces vested in the appellant, but it is obvious that the powers conferred on the Chief Officer were not in any way curtailed by this amendment. In these circumstances in my humble opinion, the words "any temporary erection" are wide enough to include cabins. However, the learned Single Judge has taken a contrary view, and as Mr. Naqvi only relied on the reasons given by the learned Single Judge, it is necessary to examine them.
24. According to the learned Single Judge, rule 3 was not attracted because the appellant had not given a notice calling upon the respondents to remove their cabin. But notices are required under this rule only when the Chief Officer wishes to remove any obstruction which has been sanctioned by him, and as even the first respondent has not said in his evidence that the respondents had erected their cabin after obtaining the Chief Officer's permission, I am not able to agree with the view of the learned Single Judge. The only other reason given by the learned Single Judge for his finding In the respondent's favour was that a cabin was neither a scaffold of any temporary erection "because the temporary erection referred to in the rule should be of the type of posts, bars, rails . . . . . " With great respect, I demur to these observations. The view of the learned Single Judge is that the normal meaning of the words "any temporary erection" has to be curtailed by reference to the words "posts, bars, rails etc." In other words, according to the learned Single Judge, the words "any temporary erection" have to be construed ejusdem generis with the subsequent words, which come after a comma and the word "or". With respect, I am aware of the principle that the meaning of general words following particular words can be curtailed with reference to the class or genus constituted by the particular words. But I am not aware of any principle to the contrary. As observed by Craies on Statute Law, 6th Edition, page 183, "The question whether, when the Legislature has used general words in a statute, not following particular or specific words, those words are to receive any;(and, if so, what) limitation is one which may sometimes be answered by considering whether the intention of the Legislature on this point can be gathered from other parts of the statute." In the light of the principle contained in these observations I had earlier referred to the intentions of the rule maker in rule 3 and in my humble opinion, the object of rule 3 is to empower the Chief Officer to remove from streets and roads all erections whatsoever of a temporary nature. Accordingly I am not able to agree with the view of the learned Single Judge and I hold that the appellant is entitled to take action against the respondents under rule 3.
25. The appeal is therefore allowed and the suit of the respondents is dismissed. I would, however, leave the parties to bear their own costs.
IMDADALLY H. AGHA, J. -I agree.
K. B. A.