' The facts of the case are that the plaintiff on behalf of Messrs All & Co., Contractors, submitted an application on or about 27th June, 1969 to the Deputy Commissioner, District Dadu, for the grant of lease or one year for utilising and removing quarries gravel stone aggregate in Deh Sonvaiher Makan Para Tipchatul, Taluka Kotri, District Dadu in an Area of about 800 acres for 5000 tons being the quantity to be excavated, on payment of usual royalty. A sketch of the area was also attached to that application. The matter was referred to Mukhtiarkar, Kotri who, having stated no objection on 19th August, 19o9 to the said grant, put up the file before the Deputy Commissioner, who on 20th August, 1969 agreed to the said grant as suggested in the Note submitted to him by the Revenue Branch. Accordingly a permit, dated 25th August, 1969 was issued in favour of Messrs Ali & Co., to excavate stone aggregate (Bajri) and ordinary sand from an area of 800 Acres of the said Deh on the terms and conditions as embodied in the said permit. Defendant No. 1, a foreign firm, at the relevant time, was constructing Super Highway under a contract with the Government of West Pakistan. As alleged in the plaint before the plaintiff could commence excavation, defendant No. I without the plaintiff's consent excavated huge quantities of ordinary stone etc. Which, according to the estimate of the Mukhtiarkar, Taluka Kotri, was in the region of approximately 30 lacs tons. The excavation was done between 25th August, 1969 and the next 3/4 months thereafter. The Mukhtiarkar, Kotri issued a notice, dated 5th January, 1970 to the plaintiff demanding a royalty from the plaintiff for the entire stone etc. Excavated. On receipt of the notice, the plaintiff made enquiries to confirm the contents thereof and found that in fact it was defendant No. I who had taken the aforementioned stone aggregate and had utilised a vast quantity thereof in construction of the Pakistan National Highway (Karachi to Hyderabad Section) for which it had a contract with the Highway Department. On receipt of another notice, dated 14th March, 1970 from the Mukhtiarkar, Kotri demanding the payment of royalty, within a fortnight, the plaintiff served a notice dated 24th March, 1970 on defendant No. 1 through their counsel with a copy of the same to Mukhtiarkar.
Thereupon, defendant No. 1 through their letter, dated 31sth March, 1970 called upon the plaintiff to furnish certain documents to it. The plaintiff through his letter, dated 9th April, 1970 furnished the said documents to defendant No. 1, as desired. Some correspondence between defendant No. 1 and the Highway Department was exchanged and the plaintiff was kept informed of it. Defendant No. 1 ultimately wrote a letter, dated 12th June, 1970 to the plaintff that the said defendant had excavated the quantity of 1, 23, 21.0 tons, as detailed below, at Mile-S1
(1) Various aggregates 1, 170 tons
(2) Base Course 1, 90, 303 tons
(3) Shoulder Base Course 12,737 tons ..Wwwweessa.
Total 1, 23, 210 tons Defendant No. 1 having denied its liability to pay compensation for the quantity of stone excavated by it, the plaintiff has filed the above suit claiming a sum of Rs. 45,00,000 (Rupees fourty-five lacs) for 30 lacs tons of stone at Rs.
1.50 per ton plus 11,10,000 being royalty payable to the Government with 9% interest and cost of the suit.
2. Defendant No. I filed its written statement. It also gave notice to the Government of Sind under third party proceedings which was served on it on 20th August, 1971, and the service was held good by the Additional Registrar (0. S) on 24th August, 1971. The Government of Sind gave no reply to it.
However, the Government of Sind was impleaded by this Court's order, dated 10th April, 1972, as defendant No.
2. The said defendant No. 2 filed its written statement on 10th January, 1973.
3. Defendant No. 1 while denying almost every allegation of the plaintiff, inter aliu, contended that said permit was fradulently procured by the plaintiff and/or unlawfully issued by the Deputy Commissioner, Dadu and was otherwise null and void as it was issued in disregard to the provisions of law. It was specifically denied that the excavation site utilised by defendant No. 1 in the vicinity of 81 mile on the Karachi-Hyderabad Super Highway under contract with the Government of then West Pakistan belonged to the plaintiff or it was ever in his possession, power or control. It was further denied that defendant No. 1 excavated 30 lac tons of stone either from the land covered by the alleged permit or from any other land. It was, however, submited that defendant No. I procured approximately 1,23,210 tons of aggregates and other stones from the quarrying site in the vicinity of 81 mile in respect of which the said defendant was not liable to pay any royalty to the plaintiff. The claim of the plaintiff was thus denied. It was further submitted that the plaintiff did not inform or make any claim to the said defendant in respect of the alleged right. In any case, it was alleged that in the event of difficulty, the said defendant could have easily shifted to another site. It was, however, submitted that the plaintiff was himself not liable to the said sum of Rs. 11,10,000 to be paid to the Mukhtiarkar. Lastly, while denying the claim in tow, it was alternatively prayed that in the event of any judgment and decree to be passed against the said defendant, a decree against third party, now defendant No. 2, to the extent of the said amount may be passed.
4. The Government of Sind having been impleaded as defendant No. 2, as aforesaid, filed its written statement on 10th January, 1973. The genuineness and the validity of the alleged permit issued to the plaintiff was, inter cilia, disputed.
5. The following content issues were adopted by this Court on 3rd September, 1984, as re-cast, in place of the issues framed on 23rd September, 1974 :- `(1) Whether the plaintiff has been lawfully granted permit, dated 25th August, 1969 or whether it is invalid for any of the reasons stated in the written statement ?
(2) Whether the rights purportedly granted to the plaintiff by the said permit were not available for allocation to the plaintiff?
(3) Whether in terms of the contract, dated 20th March, 1967 the defendant's No. 1 acquired the right to enter upon or to exploit all the quarry rights for the purposes of the construction of the Karachi/Hyderabad Super Highway ?
(4) Whether the land allegedly covered by the permit, dated 25th August, 1969 was demarcated and possession taken by the plaintiff. If so, when and what is the effect ?
(5) Whether the plaintiff paid any surface or permit fee during the period of the permit ? If not, what is its effect ?
(6) Whether the permit was revoked on grounds of public purpose prior to and/or after the grant of the same to the plaintiff ?
(7) Whether or not the defendant No. 1 excavated a quantity of 30 lacs tons of stone either from the lands covered by the alleged permit or from any land and whether the defendant No. 1 was required to take the plaintiff's consent or pay him any royalty for the excavated stone.
(8) Whether the plaintiff has waived his right, if any, for reasons of inaction, lathes, delay and acquiescence ?
(9) Whether the defendant No. l's possession of the land in question being prior to the application the grant of the alleged permit, the plaintiff has any claim against the defendant No. 1 ?
(10) Whether the plaintiff is entitled to the amount of Rs. 56,10,000 with interest at 9% from the defendant No. 1 ?
(11) Whether the defendant No. 1 is entitled to full indemnity from the defendant No. 2 in respect of any amount that may be found payable by defendant No. 1 to the plaintiff ?
(12) Whether the defendant No. 1 is entitled to an additional 25% from the defendant No. 2 ?
(13) What should the decree be ?
6. It will not, perhaps, be out of context to mention here that the plaintiff had filed an application, dated 4th March, 1971 under Order XXXVIII, rule 5 and Order XXXIX, rule I read with section 151, C. P. C.
For attachment before judgment of the properties of defendant No. 1 and alternatively for restraining the said defendant from selling, transferring or disposing of the said properties specified in the schedule annexed therewith This application was dismissed by a learned Single Judge of this Court by his order, dated 29th April, 1971. The plaintiff filed a Letters. Patent Appeal bearing No. 85 of 1971 which was disposed of by a Division Bench on 26th October, 1976 whereby the above said application for interim relief was ordered to be disposed of afresh, according to law.
Certain submissions have been made by Mr. Nomani, learned counsel for defendant No. 1 in this regard which will, however, be adverted to by me at the proper stage. Now I propose to deal with the case issue-wise.
7. Issues Nos. 1 to 6 and 9.-To examine issue No. 1, "whether the plaintiff has been lawfully granted permit, dated 25th August, 1969 or whether it is invalid for any of the reasons stated in the written statement", it is imperative to see 'the reasons' on which the validity of the permit has been challenged. The said reasons as they have been stated in para. 4 of the written statement of defendant No. 1 are, therefore, reproduced as under :- "The said permit was fradulently procured by the plaintiff and/or unlawfully issued and/or issued due to inadvertence on the part of the Deputy Commissioner, Dadu and/or is otherwise null and void on all or any of the following grounds in that-
(i) the alleged permit has not been issued in accordance with the West Pakistan Regulation of Mines and Mineral Development Ordinance, 1958 and the West Pakistan Mineral Concession Rules, 1958;
(ii) the alleged permit has been issued contrary to the provisions of Act XXIV of 1948 and the Pakistan Mining Concession Rules, 1960;
(iii) the Deputy Commissioner, Dadu had no power to issue such permit, which is entirely illegal and void ab initio;
(iv) the said permit was not issued in the manner prescribed by law and is of no legal consequence;
(v) the alleged permit purports to have been issued pursuant to an application, dated 27th June, 1969 after the defendants had already entered the land and had completed all requisite preliminary work during the first and second weeks of June, 1969, for setting up the 5th site and last for crushing plant and the said land was not available for allocation to the plaintiff;
(vi) the alleged permit was granted on 25th August, 1969 when the defendants having already set up the crushing up (sic) as aforesaid had admittely gone into production of aggregates etc., and when the land in question was not available to any person other than the defendants, who having been awarded on 20th March, 1967, the contract for the construction of the Karachi-Hyderabad Super Highway work duly authorised to enter upon and/or to exploit all the quarrying sites for the purpose of said construction;
(vii) the land allegedly covered by the permit, dated 25th August, 1969 was never demarcated and was consequently never taken possession of by the pliantiff or any other person on his behalf; (viii)the alleged permit was deliberately applied for unlawfully procured with a view to making dishonest claims on the defendants;
(ix) the alleged permit was not issued by a duly authorised officer and has not been signed by any such officer;
(x) the relevant law relating to the mining concession does not contemplate the grant of permit at all;
(xi) the alleged permit did not come into effect during the period in question as the plaintiff did not even pay the surface fee during this period;
(xii) in any case in terms of clauses 6 and 7 of the alleged permit, the land in question was liable to be resumed by the granter without any compensation and the alleged permit, even if valid, could be revoked for public purposes and was in effect so revoked by the land in question being put to such public purpose prior to and/or after the grant thereof.
' From the abovestated reasons, it appears that some of them have been the basis of a number of other issues separately numbered as issues Nos. 2, 3, 4, 5, 6 and 9. All these issues are, therefore, being considered together.
8. Mr. A.A. Fazeel, learned counsel for the plaintiff, submitted that the alleged permit (Exh. 4/2) was issued to the plaintiff on 25-8-1969 which was valid for six months of an area of 800 acres. The survey fee, as envisaged in the permit, was paid by the plaintiff on 2nd June, 1970. As to the validity of the said permit Mr. Fazeel, referring to office file of the Deputy Commissioner, Dadu (Exh. 4/36) invited my attention to office noting starting from page 1 and the order of the Deputy Commissioner for the issuance of the permit 'as suggested' which is signed by the Deputy Commissioner himself and is, dated 20th August, 1969. In support of his contention that the said permit was lawfully granted to the plaintiff, be relied on sections 62 and 69 of the Sind Land Revenue Code, 1879 read with Rule 66 made thereunder.
9. In the alternative, Mr. Fazeel submitted that the said permit could be issued under Rule 3(2) of the Pakistan Mineral Concession Rules, 1960. As a second alternative, it was submitted by him that Rule 6 of the said Rules provides for prospecting licence and a mining lease only, as set out in Parts I and II of the Second Schedule to the said rule. He, thus, submitted that the permit in question was not to be governed by the said Rules.
10. Mr. Fazeel, in relation to issue No. 2, relied on the permit (Exh. 4/2) and submitted that the plaintiff, in so far as the alleged noncompliance of clauses 6, 7 and 8 was concerned, was not required to fulfil the same by the Government, at any point of time'.
11. As regards issue No. 5, he submitted that the contract, dated 20th March, 1967 between defendant No. 1 and the Government of West Pakistan has not been exhibited, though it has been referred to in the evidence, but he will, however, have no objection if the said contract is taken into consideration. He, therefore, conceded "that the said contract includes for payment of royalties in the tender price and indemnity against royalties for the material used by defendant No. 1, but it was an internal arrangement between defendant No. 1 and the then Government of West Pakistan, now the Government of Sind, with which the plaintiff has little concern, in so far as it goes against the interest of the plaintiff and the rights acquired by him under the permit.
12. As regards issue No. 4 he referred to the plaintiff's evidence, (Exh. 4) to the effect that his staff was working in the area and his Manager Maqbool Hussain had visited the site. The area was duly demarcated which, according to him, has not been rebutted by defendant No. 1.
13.
13. As regards issue No. 5, he submitted that the surface fee was paid by the plaintiff on 2nd June, 1970. The mere delay or non-payment of the said fee will not render the permit invalid. The Government was empowered under Rule 71 of the Mining Concession Rules to exercise its power of distress to realise the fee. Even otherwise, the Government did not take any action as to the non- payment of the fee.
14. As regard issues Nos. 6 and 9 Mr. Fazeel submitted that the plaintiff being a grantee, it makes no difference if defendant No. 1 was in possession or not. It was further submitted by him that the Government could revoke the permit issued to the plaintiff, but as it was not done, the plaintiffs right to claim compensation from defendant No. 1 remains intact, even if defendant No. 1 is held to be in possession of the area in question at the relevant time.
15. A. E. Nomani, learned counsel for defendant No. 1 contended that the Regulation of Minefield and Mineral Development (Federal Control) Act, 1948 is a Central Statute and, therefore, the Provincial Land Revenue Code and the Rules made thereunder stand superseded by it. Articles 106, 110, 218 and 224 of the Constitution of Pakistan of 1956 and Articles 131, 142, 134 and 225 of the Constitution of 1962 validating Central Acts were relied on by him. It was, further, contended that section 62 of the Land Revenue Code speaks of sale and grant of lease and not of the issuing of the permit. Rule 66 of the Land Revenue Rule regarding grant of permit, is, therefore, ultra vires the Code. In any case, the permit having not been signed by the Deputy Commissioner is invalid. Lastly, it was contended by him that rule 3(2) of the Mining Concession Rules, 1960 provides for delegation of authority by Notification published in the official Gazette. The Memorandums produced by Mr. Fazeel have not been published in the official Gazette as no copy of the said Memorandums appear to have been endorsed to the Government Press for Publication. It was further contended that since the power of delegation is not available in the Act, the Central Government could not delegate the said power under the Rules.
16. Mr. Nomani further submitted that the right purportedly granted to the plaintiff under the permit was not available for allocation to the plaintiff, inasmuch as the land was under occupation of defendant No. 1 and the area was not free. The plaintiff did not and, in fact, could not take possession of the land in question as it was already occupied by defendant No. I. The land was also not demarcated at all.
17. Mr. Abdul Ghafoor Mangi, Assistant Advocate-General, who appeared for defendant No. 2 at the last stage of arguments, in 1986, in place of Mr. Abdul Sattar Shaikh, Additional Advocate-General who has been conducting the case since the beginning, submitted that the permit, though invalid, was issued under the Pakistan Mining Rules, 1960. Mr. Mangi further submitted that the Deputy Commissioner, Dadu has granted the alleged permit contrary to the several memos, issued in respect of delegation of powers to issue permits. Moreover, the plaintiff has failed to prove payment of surface fee and royalty inasmuch as no treasury challan has been produced by the plaintiff in respect thereof. The plaintiff has also failed to prove his possession of the said land or its demarcation by any Government Official. The plaintiff has, however, failed to furnish monthly statement to the department concerned in respect of the production and disposal of the material.
He, therefore, submitted that the permit was illegally issued to the plaintiff and, further, due to non- compliance of the terms of the said permit no right was created in favour of the plaintiff.
' It was further submitted by him that the area in question was already in possession of defendant No. 1, much prior to the grant of the alleged permit. It was further submitted by him that the permit was invalid for the reason that under instructions of the Government, a copy of the permit was to be sent to the Bureau of Mineral Resources, Karachi, which has not been done by the Deputy Commissioner. The construction of Super Highway entrusted to defendant No. 1 was public purpose and, therefore, the permit stood revoked in respect of the area in possession of defendant No. 1 and lastly, he submitted that "the permit appears to be an act of manipulation". In fact, according to him, it was "all arranged" between the plaintiff and the Mukhtiyarkar and was a collusive and fraudulent act on the part of the plaintiff and some of the Government officials including Mukhtiyarkar, Kotri.
18. In the alternative, Mr. Mangi submitted that "the plaintiff was entitled to the quantity of 5000 tons only and in excess of that no authority was given to him and the rest of the material rests with the Government, and there is no concern or entitlement of the plaintiff, who will be exonerated from the liability to pay royalty for the material exceeding 5000 tons," in that case.
19. As regards the first limb of the argument of Mr. Fazeel that the alleged permit Exh. 4/2 was issued under Rule 6b of Land Revenue Rules read with sections 62 and 69 of Land Revenue Code 1879, it will be advantageous to quote sections 62 and 69 of the Land Revenue Code, 1879 and Rule 66, which read as under : "Section 62.-It shall be lawful for the Collector, subject to such rules as may from time to time be made by the Provincial Government in this behalf, to require the payment of a price for unalienated land or to sell the same by auction, and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under section 60. The price (if any) paid for such land shall include the price of the Crown right to all trees not specially reserved under the provisions of section 40, and shall be recoverable as an arrears of land revenue."
"Section 69.-The right of the Crown to mines and mineral products in all unalienated land is hereby declared to be expressly reserved : Provided that nothing in this section be deemed to affect any subsisting rights of any occupant of such land in respect of such mines or mineral Products."
"Rule 66.-Disposal of earth, stone, etc., by the Collector.-(I) The Collector may, at his discretion, sell by public auction or otherwise dispose of the right to remove earth, stone, Kankar, sand, Muram, or any other material which is the property of Government for such period and in such quantities and on such terms as he thinks fit."
18.
18. Sections 62 and 69 have been mentioned in Chapter VI, which deals with the grant, usage and relinquishment of unalienated land. Section 60 requires written permission of the officer named in the section before entering upon occupation of the land. Section 61 prescribed penalties for unauthorised occupation of land. Section 62 gives power to the Collector subject to such rules as may from time to time be made by the Provincial Government in this behalf, to require the payment of a price for unalienated or to sell the same by auction, and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under section 60. Section 63 gives power to the Collector to dispose of any alluvial land which vests under any law for the time being in force in the Crown for the purpose of the province, to the occupant (if any) of the bank or share on which such alluvial land has formed, having due regard to the interests of the public revenue. It also provides for the price of the land for disposing of the said land. Section 64 deals with the temporary right to alluvial land of small extent. Section 65 entitles an occupant of land for the purpose of agriculture to < make certain constructions for Bette cultivation of the land.
Permission may, however, be given by the Collector to the occupant if he wishes to use the holding for any other purpose after due enquiry subject to payment of fine in addition to an new assessm ent, which may be leviable under the provisions of section 48. Section 6o provides for penalty for using the land in occupation, without permission. Section 67 is an exception to the provisions of sections 65 and 66 not preventing the granting of the permission aforesaid on such terms or conditions as may be prescribed by the Collector, subject to any rules made in this behalf by the Provincial Government. Section 68 provides that occupant's rights are conditional. Section 69 reserves the right of Crown to mines and mineral products provided that nothing in section 69 shall be deemed to affect any subsisting right of any occupant of such land in respect of such mines or mineral products. Section 70 postulates a case where in occupancy is not transferable. It shall not be transferred, without the previous sanction of the Collector. Section _72 provides for, sale of intestate occupancy or holding, whereas section 73 provides that an' occupancy, unless otherwise provided, shall be deemed as heritable. Section 73-A gives power to the Provincial Government to restrict right of transfer. Sections 74, 76 and 67 deal with the relinquishment of land.
Sections 79-A to 82-A deal with the eviction of an unauthorised occupant of land, forfeiture of occupancy, power of Provincial Government to suspend operation of section 60 or 64 and partition of occupancy.
21. The whole scheme of Chapter VII of the Land Revenue Code, it seems, deals with the power of the Collector for disposal of land for agricultural purposes. He may, however, permit the occupant for using B the land for a purpose other than agriculture. It presupposes an existing occupant at the time of applying for permission to put the land (in occupation) to another use.
22. Now to examine rule 66, it forms part of Chapter IX, which deals with disposal of grazing and minor products of land. Rules 65 and 69 deal with the grazing, whereas rule 66 provides for power to Collector of sale by public auction or otherwise dispose of the right to remove C earth, stone, Kankar, sand, Muram, or any other material which is the property of Government for such period and in such quantities and on such terms as he thinks fit. Provided that such sale or other disposal shall be made subject to previlege conceded by the rules 67 to 70.
23. To appreciate the second limb of Mr. Fazeel's argument, in the alternative, that the permit in question was issued under the Pakistan Mining Concession Rules, 1960, Rule 3(2) whereof speaks of delegation of powers to all Deputy Commissioners to issue permits for excavation of stone etc., reference may be made to Item 41 of the Provincial List, Item No. 15 of the Federal List and Item No. 12 of the Concurrent List of the Islamic Republic of Pakistan, 1956. The Provincial List Item No. 41 relates to regulation of mines and mineral development subject to Federal D List and Concurrent List. Item 15 of the Federal List reserves mineral oil and natural gas only for the Centre, whereas Item 12 of the Concurrent. List provides for Iron, Steel, Coal and mineral products except mineral, Oil and natural Gas. As to the legislative powers reference may be made President's Orders Nos. 2 and 17 of 1959. Article 3(1) of the latter Order preserves the validity of a provincial Law in force immediately before he day on which the said Order came into force i.e. 23rd September, 1969. Sub-Article (2) of Article 3, provided that if any Provincial law or par thereof in force at the time the said Order came into force is by reason of the above Order rendered repugnant to the provision of any law made by the President since Seventh day of October, 1958, it shall, to the extent of the repugnancy, be void. A reference may also be made to President' Order No. 20 of 1959 which included mines, that is to say, all rights in and over Mines (including Salt Rocks) and minerals ; exploration, survey, prosecuting mining development and conservation of all minerals, and such mineral products al Iron Steel, coal ; rents of mines and taxes and royalties and products etc., in Schedule of the said Order of 1959. It seems that the Legislative Powers Order 2 of 1959 extended executive authority of the Central Government to items given in the Schedule, and the President's Order No. 17 of 1959 preserved Provincial laws to the extent stated in its Article 4. President's Order 20 of 1959 included mines in the Schedule to Legislative Powers Order 2 of 1959, which did not invalidate the existing Provincial laws, which were preserved by President's Order No. 17 of 1959, including Chapter VI of the Land Revenue Code. Reference may also be made to the Regulation of Mines and Oilfield and Mineral 'Development (Government Control) Act, 1948 which provides that the Provincial Government may, by notification in the official Gazette make rules to provide for all or any of the matters mentioned in section 21 of the said Act. It is further provided in section 4 that any rule made under th said Act, and any Order made under any such rules shall have effect notwithstanding anything inconsistent therewith contained in any enactment or in any instrument having effect by virtue of an enactment other than the said Act. It is further provided in section 6 that "an appropriate Government, meant in relation to mines of unclear substances oil fields and gasfields, and development of such substances, mineral oil and gas, Central Government and, in relation to the other mines and mineral development, the Provincial Government." In exercise of the powers conferred by section 2 of the said Act of 1948, the Central Government framed the Pakistan Mining Concession Rules, 1949, which seem to have been replaced by the Pakistan Mining' Concession Rules, 1960. Rule 3 (2) thereof provided that 'Central Government may, by notification, in the official Gazette, delegate powers to grant a prosecuting licence or a mining lease to the Provincial Government or the Collector in respect of any mineral o minerals. Accordingly, by memorandum dated 2-7-1960, Deputy Commissioner is said to act as delegatee under the Presidential Order No. 20 of 1959, to issue permits for excavation of stone etc. For 6 months up to a limit of 5000 tons. Later on, another memorandum dated 15-1-1962, in partial modification of memorandum dated 2-7-1960, authorised the Deputy Commissioners to issue permits for one year, but not more than one square mile (640 acres). On 2-3-1963 another memorandum was issued which, in turn, provided that "the procedure to be followed is left to be adopted by the district authorities in the light of local conditions prevailing in each district".
24. It now seems proper to examine the Pakistan Mining Concession Rules, 1960. Rules 3 provides that except with the previous sanction of the Central Government, on licence to prospect for minerals and no lease of mines and minerals shall be granted, otherwise than in accordance with the said Rules. The Central Government may, by notification in the official Gazette, delegate power to grant the same to the Provincial Government or the Collector in respect of any mineral. Rule 7 provides for the manner in which an application for a prospecting licence or mining lease shall be made. Rule 8 requires the maintenance of separate register for the same wherein certain entries, including application fee paid, have also been provided. Rule 9, prescribing the particulars to be stated in the application, provides that the application shall be accompanied by a fee of Rs. 50 for mineral for the first square mile. Rule 10, inter alia, provides that at every angle or corner of each boundary line, the applicant shall fix pegs of substantial material, standing not less than 2 feet above the surface of the ground, and being not less than 3 inches square or 3 inches in diameter. It also provides that the application shall be accompanied by a deposit at such rate or rates as the licensing authority prescribes to meet the cost of survey, of the area. The land applied for shall be surveyed at the expenses of the applicant. Rule 21 provides that if licence or lease is not executed within three months of the communication of the approval of the application by the licensing authority, the right of the applicant to such licence or lease shall b deemed to have lapsed, unless the licensing authority considers that the delay is not attributable to the fault of the applicant. Rule 23 provides that as soon as may be, after the grant, surrender, determination or assignment of any licence or lease ender these Rules, the licensing authority shall publish notice of such grant, surrender, determinative or assignment in the official Gazette stating the name of the licensee or lessee or assigned and the description of the area concerned. Rule 24 provides for term and conditions of licences and leases to be in the form set out in Part I and II respectively of the Second Schedule which also provides that subject to satisfactory compliance with the terms and conditions of the licence, the holder of a licence shall have the right to receive a minin lease in the form set out in Part II of the Second Schedule which may in force on the day previous to that to which the licence was issued. Rule 25 provides that every applicant shall, before the prospecting licence granted, deposit as security in respect of such licence. a sum of Rs. 100 per square mile or part thereof covered by the licence for due compliance with the terms and conditions of the licence. Rule 28 provides that a licence to prospect for minerals, hereinafter called a prospecting licence, shall, subject to the conditions contained in the licence, confer on the license the sole right to mine, quarry,. Bore, dig and search for win, work and carry away any specified mineral or minerals lying or being within, under o throughout the land specified in the licence. Rule 32 requires the licensing authority to maintain a register of prospecting licence granted by hi specifying certain matters to be entered therein. Rule 37 provides for the payment of annual fee whereas rule 38 provides for royalty payable a the rates specified in the Third Schedule. Rule 71 gives powers of distres to the licensing authority for the recovery of royalty or rent payable on account of lease.
Rules 75 to 78 provide for miscellaneous matters.
25.. I think, the several memos. Issued by the then Government of West Pakistan,, photostat copies whereof produced by Mr. Fazeel during the course of arguments, referred to above, require a close examination to appreciate the various pleas raised above by the learned counsel for the parties.
(i) The first Memorandum No. V-21-59(1) issued by the Government of West Pakistan, dated 2nd July, 1960 relates to the delegation of authority in respect of the grant of Mining concession for stone aggregates (Bajri) and ordinary sand. It says that in accordance with the Presi4ential Order No. 20 of 1959, the responsibility for the grant of mining concessions for all Minerals rests with the Central Government. This function is performed by the Bureau of Mineral Resources. The Central Government has now decided that the excavation of stone aggregates (Bajri) and ordinary sand may be allowed on permit to be issued by the Deputy Commissioner and Political Agents of the District in which the excavation is proposed to be carried out. The said Memorandum, therefore, provided as under :- "The Deputy Commissioners and Political Agents have been authorised to issue such permits on the following conditions :-
(1) that the permit will not be issued for more than six months at a time ;
(2) that the quantity will be specified in the permit so issued and will not exceed more than 5000 tons ;
(1) that copies of such permits will be endorsed to the Bureau of Mineral Resources, Karachi;
(2) that the permits will not be issued for any area for which prospecting licences or mining leases have already been granted by the Bureau of Mineral Resources, Karachi ;
(3) that the rate of royalty for stone aggregates (Bajri) and ordinary sand so excavated will be fixed at 5% of the Pit's mouth value subject to a minimum of annas six per cent. On (2, '40 lbs.) and that the royalty will be deposited under Central Head of Account 'XLVI-Miscellaneous receipts arising out of Mines and Oilfield and Mineral Development (Federal Control) Act, 1948, Rents and Royalties, Annual Fees and Acreage Fees:, and a copy of the receipted challan sent to the Bureau of Mineral Resources for record'."
(ii) The second Memorandum No. VIII-2-25/61, dated 15th January, 1962, says that in partial modification of Memorandum, dated 2nd July, 1569, it has been decided that the excavation of stone aggregates (Bajri) and ordinary stone, in area where no sub-surface work is involved. May be allowed on short term permits to be issued on year to year basis by the Deputy Commissioners/District Magistrates/Political Agents of the district concerned subject to the condition that a permit is not granted for more than one square mile (640 acres) or one mile length stretch in a river bed. For this purpose the Deputy Commissioners/District Magistrate/Political Agents are hereby authorised to auction such areas locally every year, accept the highest bid, recover the amount of auction money immediately after the auction is over, deposit the same as lease money ender the Central Head of Account "XLVI-Miscellaneous arising out of Mines Oilfields and Mineral Development (Federal Control) Act. 1948-Rents and Royalties, Annual Fees and Acreage fees" and sent the receipted copy of the treasury challan to the Bureau of Mineral Resources (Petroleum and Mineral Devloement Wing) 6th Floor, P. I. D. C. Home, Kutchery Road, Karachi, for record.
(iii) Another Memorandum No. 1/111-2-25/61, dated July, 1962, relating to the delegation of power in respect of grant of mining concessions for stone aggregates (Bajri) and ordinary sand provided that:- "The question, whether the Deputy Commissioners/District Magistrates Political Agents of the districts concerned may be empowered to extend the period of short term permits granted by them for the excavation of Stone Aggregates, Bajri and Ordinary Stone, has been engaging the attention of the Central Government for some time past. Now, on the basis of directive received from the Bureau of Mineral Resources and in the absence of any regular organization to keep a watch on quantities removed against the short term permits, it has been considered that the renewal of the old permits is not adviseable. However, the Deputy Commissioners, etc. May issue fresh permits for Mine, Stone aggregates and (Bajri), Ordinary Sand and Ordinary Stone to parties seeking renewal of their permits for specific quantities not exceeding 5,000 tons in each case against payment of royalty in advance for the quantities applied for."
(iv) The last Memorandum No. 11.2-2/62, dated 2nd March, 1963, says inter alia that:- "As difficulty is being exprienced in some disticts in following the modified procedure laid down in Government of West Pakistan Circular Memo. No. VIII-2-25/61, dated 15-1-1962, the Provincial Government in the Industries and Commerce Department wish to make it clear that it does not make such difference whether permits for excavating of Bajri or stones are granted on the basis of Circular Memo. -No. V-6-2I /59. (1) dated 2-7-1960 or Circular Memo. No. VIII-2-25/61, dated 15-1- 1962. The procedure to be followed is left to the convenience of the district authorities in the light of local conditions prevailing in each district."
' If, however, the district authorities do not find bidders forthcoming for one square mile or one mile length stretch in a river bed or for a period of one year, such bidders may b e directed to apply direct for regular prospecting licences/mining leases under the Pakistan Mining Concession Rules, 19o0, to the Directorate of Mining Development Government of West Pakistan.
' With regard the refund of royalty paid by the permit holders in case the quantity of minerals quarried in less than that for which royalty has been deposited by them in advance, the Provincial Government in the Industries and Commerce Department are of the view that it is not considered desirable to allow refund of such royalty. The fact however, that royalty deposited in advance is not refundable may be kept in view while fixing the amount of maximum charges.
26. It will also be advantageous to reproduce the permit in question which is the subject-matters of the whole controversy. It is reproduced from Exh. 4/35, which is as under:- "Permit No. R/2900 of 1969.
Dadu, dated, 25-8-1969.
True Copy ' Messrs All & Company 146, Shambonath Road, Sadar, Karachi are hereby permitted to excavate stone aggregate (Bajri) and ordinary stone etc. An area of 800 acres of Deh Sonvelhar as shaded red in the sketch) Taluka Kotri on the following terms and conditions.
' This permit is valid for six month from the date of issues of this order. Terms and conditions
(1) The permit holder will pay surface fee at the rate of Re. 1 per acre.
(2) He will pay royalty at the rate of 5% on the value at the pits mouth subject to a minimum of 37 paisa per ton.
(3) He will credit the amount of fees and royalty into Government treasury towards the principal Head XLVI-Miscellaneous-J-Miscellaneous (J) receipt arising of the mines and oilfields and Mineral Development (Federal Control) Act 1948 and receipt copy of challan submitted to this office.
(4) The area will be demarcated at the site by fixing the boundary pillars having height of not less than 2 feet.
(5) That he should furnish this office with monthly production disposal returns in such a way that they should reach office regularly by first of the succeeding month.
(6) That in case it is found that the area or any part there of was not free and has been granted by in-advance, the grantee will release the same unconditionally as and when required to do so and will have no claim for any compensation.
(7) That in case the area is required by Government for any public purpose the lease will be revoked at any time.
(8) The royalty charges will be determined by the Mukhtiarkar Kotri by deputing a Supervising Tapedar who will lease the calculation on actual measurement of the excavation.
(Sd.)
Illegible. for Deputy Commissioner Dadu.
Copy f. w. Cs. To the Commissioner Hyderabad for information.
' Copy f. w. Cs. To Director of Mineral Development Lahore for information.
' Copy f. w. Cs, to the Deputy Collector Kotri for information and necessary action. He should ensure that the permit holder starts excavation after complying with the above conditions.
' Copy to permits holder with reference to his application dated 27-6-1969.
27. A study of the above legislative history, relating to the subject reveable that sections 62 and 69 of the Land Revenue Code do not provide for granting of a permit of the nature in question. Rule 66 of the Land Revenue Rules, however, provides for removal of earth, sand, stone etc. But the provisions of the Act of 1948 and the Pakistan Mining Concession Rules 1960, shall have effect, "notwithstanding anything inconsistent therewith contained in any enactment or in instrument having effect by virtue of an enactment other than the said Act" of 1948. It is noticed that the terms in which the power under rule 66 is expressed are very wide but they must be understood in relation to "notwithstanding clause" of the Act of 1948 read with the Rules of 1960. Rule 66 of the Land Revenue Rules does not lay down any condition whereas the Pakistan Mining Concession Rules, 1960 read with the Memorandums, referred to above, issued thereunder, prescribe certain conditions as to the maximum area of the land, maximum quantity of the stone, the fees to be levied and the royalty to be charged, which being inconsistent with sections 62 and 69 of the Land Revenue Code and rule 66 made thereunder, will prevail.
28. There perhaps, seems to be another distinction. To my mind, if the work is to be executed on the surface, say just for removal, it may be said to be covered by rule 66 of the land Revenue Rules, subject to "notwithstanding clause", but if it involves surface or under-surface work, say, excavation of stone etc., it falls within the ambit of the Concession Rules. This view finds support from a Letter No. D. M. C./Minc: 70(40)/ 54, dated 18-11.1954 issued by the Director Mineral Concessions, Government of Pakistan, a copy whereof was forwarded by the Deputy Secretary to Government of Sind to the Collector for Dadu for information and guidance, under No. 129-23-1/54 Revenue Department, Sind Secretariat, Karachi, dated 6th December, 1954, copy whereof was produced by Mr. Mangi, during the course of arguments (with no objection by Mr. Fazeel) relevant the portion whereof reads as under:- ' Subject: Removal of Bajri of Limestone or Sandstone from the surface.
'Sir, ' I have the honour to state that the question whether the removal of Bajri (whether of Limestone) from the surface falls within the purview of Pakistan Mining Concession Rules, 1949, has been decided that in case where the removal of Bajri from the surface does not involve excavation or sub-surface working, it does not come within the purview of Pakistan Mining Concession Rifles and as such is outside the jurisdiction of the Department of Mining Concession.
(2) The Central Government will, therefore, have no objection to the removal of Bajri from the surface by any person without obtaining a prospecting licence or a mining lease for the same provided that Bajri is now removed from the area which has already been learned out to any person by the Department of Mineral Concessions. This proviso is considered necessary to avoid any dispute between the leasee and any other person who may like to remove from the land.
In the instant case the permit envisages excavation, involving sub-surface work, which exclusively falls within the ambit of Concessions Rules and is beyond purview of rule 66 of the Land Revenue.
29. It is noticed that the definition of 'Mines' or 'Minerals' does not find place in the Regulation of lines and Oilfield and Mineral (Development) Control Act, 1948. The Mining Concession Rules 1960, defies the word 'Mineral' as to "executed Petroleum and Natural Gas". However, the word "Mines" has been defined in section 3( f ) of the Mines Act, 1923 as "Mine" means any excavation where any operation for the purpose/ of searching for or obtaining mineral has been or is being carried on, and includes all works, machinery, tramways and sidings, whether above or below ground, in or adjacent to or belonging to a mine". I have been able to find the definition of 'Mineral' in the Punjab Minor Minerals, Rules, 1933. Rule 2 (1) of the same defines "minerals" as including "all kanker (Calcoreous carbonate of lime), stone marble, china-clay, steatite, boulders, shingle, gravel tori, and Bajri but excludes coal, the ores of metal earth oil, gold and salt and minerals the extraction of which is governed by the Punjab Mining Manual". Assistance may, thus, be had from this definition and after reading the several provisions on the Minin Concession Rules, the four Memorandums and the conditions of the permit it can easily be concluded that the permit in question appears to have been issued under the provisions of the Pakistan Mining Concession Rules, 1960. This in fact is also the case presented initially by the plaintiff vide Exh. 4/19, letter addressed by his counsel to defendant No. 1 stating that has been granted mining permit". Furthermore, it was pleaded by the plaintiff before the L. P. A. Banch the permit was issued under the Mining Concession Rules and in this respect reliance was placed on the three Memorandums, referred to above, (vide order dated 26-10.1975 passed in L. P. A. No. 85 of 1971).
30. The contention of Nomani as to the ultra vires of the provisions of sections 62 and 69 of the Land Revenue Code to the Act of 1948 though, for the reason stated above, is only a ademic, however, holds good as between the Provincial Law and the Central Law, the Central Law will prevail to the extent of inconsistency between the two, as already seen by me above, which is also evident from the provisions of the Act of 1948 and the Rules made thereunder, already referred by me.
31. The plea that rule 66 is ultra vires to sections 66 and 69 of the Land Revenue Code, as the main sections do not provide for the grant of permit, though, again, is of academic interest, has no force, for the reason, namely, when sections 62 and 69 give power to grant lease of land, the granting of permit in respect of the land for removal of sand and stone etc being an inferior purpose in nature, for a temporary period, will be deemed to be included in the main power. Perhaps, the same thing may be said about the power to issue permit for excavating stone etc. Under the Mining Concession Rules read with the said Memorandums.
32. The plea that the permit is invalid, as it has not been signed by the Deputy Commissioner himself, is devoid of any merit inasmuch as the office file produced before L, P. A. Bench and, later on, exhibited in 4/ evidence at the time of trial of the suit, shows that the order granting the permit was passed on the file by the Deputy Commissioner, Dadu under his own signature.
33. It was also contended by Mr. Nomani that the permit has been issued in respect of 800 acres only. The said permit, as such, is invalid. Mr. Fazeel, in reply, submitted that in such a case the doctrine of severality will be applicable and the permit will be deemed to be validly issued in respect of 500 acres only. In this respect he referred to the site-plan annexed to the plaintiff's application which shows that the 800 Acres of land has been divided into two portion; 500 and 300 each divided by the intervening road, then, of course, under construction by defendant No.
1. He, thus, submitted what since the land has been divided into two distinct portions, namely 500 and 300 acres each, the whole grant will not be invalid. He placed his reliance on Halsbury's Laws of England, Third, Edition, Volume 30, page. 223, paragraph 402, which reads under: - "402. Excessive length.-If a lease which otherwise complies with the power in point of form (Bishop of Bangor v Parry (1891) 2 Q B 277 is granted for a term in excess of that authorised, to the period authorised but void as to the excess Alexander (1755), 2 Ves. Sen. 640, at page 644 ; Leach)."
' He also placed his reliance ou Alexander V. Alexander (1). CaMpbell v. Leach (2), referred in the above passage Re Turner Hudson v. Turner (3), and Fazal llahi v. East Indian Railway Company (4).
These cases go to support the contention of Mr. Fazeel. I am, therefore, of the view that the permit granted in respect of 800 Acres cannot be struck down as a whole, on toe ground that it is in excess the power alleged to have been conferred on the Deputy Commissioner. The land being easily apportionable, the permit is to be held, subject to other objections, which I will presently deal with, as valid to the extent of 500 acres of land which is, in fact, the subject-matter of dispute relating to its use by defendant No. 1, as the entire work of excavation has been carried out by defendant No. 1N in that area of 500 Acres only. In support of this view, the provisions of section 227, of the Contract Act, 1872, may also be invoked, which provide that when an agent does more than he is authorised to do, and when the part of what he does, which is within his authority, can be separated from the part which is beyond his authority, so much only of what he does as is within his authority, is binding as between him and his principal,
34. The plea of Mr. Nomani that the delegation of power under rule 3(2) of the Rules of 1960 to the Deputy Commissioner is invalid as the relevant Memorandum has not been published in the official Gazette, seems to carry some weight. The Rules for which the Act of 1948 provides for puolication, also provide, in rule 3(2), for delegation of power by notification, to be published in the official Gazette. Neither Mr. Fazeel nor Mr. Mangi has produced any notification published in official Gazette. Mr. Fazed has also, in reply, not at all adverted to this objection of Mr. Nomani. The Memorandum delegating the power to Deputy Commissioner, therefore, does not appear to have been published in an official Gazette. The permit will thus be held as vitiated against defendant No. 1, so as to impose on it a liability arising out of the same.
35. It is also noticeable that the alleged permit was granted in disregard to the express condition laid down in the Memorandum dated 2-3-1983 that the permit be issued in an area where "no sub- surface work involved". Evidently, the area was in occupation of defendant No. 1 where sub-surface work was going on. In spite of it, the alleged permit was granted.
36. The plea that the permit was fraudulently procured by the plaintiff, forming part of issue No. 1, some of the facts cast a shadow of doubt on the conduct of the Mukhtiarkar, Kotri and the plaintiff, which go to support the contention of Mr. Mangi that the issue of the permit was the result of a collusion between the plaintiff and the Mukhtiarkar. These facts may briefly be stated as under:-
(i) On 12th June, 1969, variation Order No. 27, is passed by defendant No. 2, whereunder, the said defendant undertakes to reimburse
(1) 28 Eng. Rep. Ch. 8 (408) (2) (1931) 27 Eng. Rep. 47
(3) 1931 All E R 782 (4) AIR 1922 All. 324 defendant No. I. Inter alia, for all expenses incurred in obtaining any quarry materials. In that very month, i. e. June, 1969, defendant No. 1 carries out certain visible preliminary works, such as erecting of pilfers, Ramps at Mile 81 and the machinery is also brought there to start the actual excavation of stone. Just after 15 days, i. e. On 27-6-1969, the plaintiff applies for permit for the same land i. e. Mile 81. This land at that time was a desert. There was no approach road to it for the public. The access road in the area was, however, built by defendant No. 1 in October, 1968, which was closed to the public, as deposed by the witness of defendant No. 1.
(ii) Admittedly, the plaintiff has no previous experience. He has no machinery and, probably, no technical personnel to do the job. The question is; why is it that he applies for quarry right at Mile 81 only? Probably because, it is the Mukhtiarkar who is in league with the plaintiff. It is the Mukhtiarkar who knows that defendant No. 1 is to start or has started excavation at Mile 81 and the money may be recovered from them, under the Variation Order No. 27.
(iii) The plaintiff applies for grant of lease for one year, but no application fee, as required by Mining Concession Rules, is paid alongwith it.
(iv) The application was for grant of one year's lease, but it was processed for permit, probably because, for lease, it was to be entertained by the Director, Mineral Resources, Government of West Pakistan and not the Deputy Commissioner, Dadu. No copy of the permit was endorsed to the Bureau of Mineral Resources Karachi.
(v) The application of the plaintiff dated 27-6-1969 addressed to the Deputy Commissioner specifically states the `cantity (sic) to be excavated would be 5,000 tons' but the permit issued to the plaintiff is silent about the quantity, in spite of the fact that the Memorandum, dated 2nd July, 1960, clearly directs that 'the quantity will be specified in the permit so issued and will not exceed more then 5,000 tons'. Although the insertion of above sentence stating 5.000 tons is denied by the plaintiff, but it is in the same handwriting as that of the correction of 1,0 0 (acres) to 800, and both appear to have been initialled by the same person, presumably the plaintiff himself. It is also noticeable that the notice portion contained in the office file (Exh. 4/36) also mention 5,000 tons at more than one places.
(vi) The application is alleged to have been made to the Mukhtiarkar on 27-6-1969. It is retained by him and is received in the office of Deputy Commissioner, as per office note, on 8-8-1969. In fact, the Deputy Commissioner calls for an explanation for the delay in submitting the application to him.
(vii)The plaintiff, after the grant of permit takes no steps under the permit. He does not pay even the surface fee, as required by the permit itself, what to say about the payment of rent/royalty in advance as required by the Memorandum dated 25-5-1962. viii) The Mukhtiarkar, at no point of time, cares to see if the plaintiff has complied with the terms and conditions of the permit-
(ix) As will presently be seen, while examining the other issues-
(a) the land is not surveyed by the Mukhtiarkar, nor the survey fee is deposited by the plaintiff, till 2- 6-1970, say, it was deposited about three months after the expiry of the period of the permit.
(b) There is nothing in the office file to show that the area was demarcated at the site by fixing the boundry pillers as required by the Condition No.
4. Same is the case with the fact of possession. There is nothing to indicate that the possession of the land was ever delivered to the plaintiff.
(x) There is nothing to show on the office file that the plaintiff ever furnished the office of the Mukhtiarkar with monthly production and disposal return as required by Condition No. 5 of the permit. Nor the Mukhtiarkar ever asked for the same.
(xi) The knowledge on the part of the Mukhtiarkar can be assumed that the area in question was not free as it was already in occupation of defendant No. 1 and the permit could not materialize in favour of the plaintiff, for that area i. e. Site at Mile 81.
(xii) As per admission of plaintiff (vide Exh. 4/15), it was in his knowledge that 'the work (of construction of highway) was there (at the time of grant of permit) being carried out near my client's (plaintiff's) land."
(xiii)Knowing it fully well that the plaintiff has not taken any steps under the permit, the Mukhtiarkar issues notice dated 5-1-1970 to the plaintiff demanding a sum of Rs. 11 lacs, as royalty. Not only that, he also mentions in the notice that it is defendant No. 1 who have excavated the land and taken away the stone, as required by them for construction of the Highway.
(xiv)The plaintiff sits on it and does not contest or protest against such a huge amount nor he complains to defendant No. 1 at that very moment.
(xv)The '6 months' period of permit ending on 24-2-1970 is conveniently allowed to pass, so that the defendant No. 1 may, in the meantime, complete excavation and then another notice is issued by the Mukhtiarkar to the plaintiff to pay the royalty within two weeks.
(xvi)By letter dated 3-3-1971 the Mukhtiarkar reconfirms his previous estimate of 30 lacs tons of stone, which the defendant No. 1 had removed to their requirement. Not only that, it is further stated in the said letter that a portion of the same is 'still lying on the site'. He further writes, 'I found that Cogefar Astaldi are selling stone on the site to Mr. Ishaque and others who on inquiry stated that they had purchased the same from Cogefar Astaldi' (defendant No. 1). It appears that all this has been stated by the Mukhtiarkar, probably. With a motive to create evidence for the plaintiff, so as to pressurise defendant No. 1, who being a foreign firm, was, then, about to leave Pakistan, to settle the matter with the plaintiff which may result to the benefit of the Mukhtiarkar as well.
(xvii)The matter for the recovery of the alleged amount of royalty in the sum of Rs. 11 lacs is not processed by the Mukhtiarkar at all.
(xviii)Mr. Mangi stated before me that the Mukhtiarkar, without recourse to the Deputy Commissioner, was not authorised to raise that demand and to carry on that sort of correspondence. No action or steps for the recovery of the same are taken as required by law till today.
(xix)(xviii) The knowledge can be assumed on the part of Mukhtiarkar that the area in question was not only required by Government, but was actually occupied for the fulfilment of the public purpose (xx)i. e. The construction of Super Highway, but still the permit was issued and, therefore, at no time revoked. Condition No. 8 provides for determination of the calculation of actual measurement of the excavation, but no action seems to have been taken in this regard as per office file.
(xviii) The office file (Exh. 4/35) does not contain the alleged measurements, either original or a copy thereof.
(xviii)The original permit was not produced by the plaintiff either before the L. P A. Bench or in the Suit. It is only a certified true copy of a copy of the permit. It, therefore, remains doubtful whether the permit was issued at all to the plaintiff or was it withheld, as suggested by defendant No. 1 in his cross-examination to the plaintiff.
All these facts go to show that the action for entertaining the application, issuing permit and writing a number of letters for payment of royalty SO as to enable the plaintiff to claim the same with costs of stone from P defendant No. I was a result of conspiracy and collusion between the then Mukhtiarkar, Kotri and the plaintiff, to make a wrongful gain area was an "all arranged" affair between them, as submitted by Mr. Mangi.
37. On the question, raised in clause (iv) of para. 4 of the written statement of defendant No. 1, forming second part of issue No. 1 (and also separately numbered as issue No. 2), whether the rights in the land were not available for allocation to the plaintiff, Mr. Nomani referred to para. 6 of the permit (Exhs. 4:35 and 4/2), which reads as under:- "In case it is found that the area or any part thereof was not free and has been granted by inadvertence the grantee will release the same unconditionally as and when required to do so and will have no claim for any compensation."
' Mr. Nomani, thus, submitted that because of the above condition, the plaintiff did not protest against excavation by defendant No. 1 as the lands to the knowledge of the plaintiff himself, was not available for allocation to the plaintiff. As the land was already in occupation of defendant No. 1, it appears, the same was not free for allocation to the plaintiff. The Mukhtiarkar was in the know of it and that is why-Condition No. 6 was perhaps, included in the permit. Finding in affirmative.
38. Mr. Nomani submitted, as to the question, whether in terms of the contract, dated 20th March, 1967 defendant No. 1 had acquired the right to enter upon or to exploit all the quarry rights for the purposes of construction of the Karachi Hyderabad Super Highway for itself as stated in clause (vi) of para. 4 of the written statement of defendant No. 1 and also raised in issue No. 3, that the materials described in the contract, including stone etc. (for constructing road), it was the obligation of the employer.
39. In the Contract Documents of November 15, 1966, Volutne I, under the Conditions of Contract, Part I, page 1, the "constructional plaint" has been defined under paragraph 1(1)(i) as under :- `Constructional plant' means all appliances or things of whatsoever nature required in or about the construction, completion or maintenance of the Works or temporary works but does not include materials or other things intended to form or forming part of permanent or temporary works."
' Reference may also be made to paragraph 1-7 of Volume II of the said Contract Documents.
Whereunder the "Availability of Constriction Materials" has been described in detail. It is provided in sub-paragraph (4) of para. 1.7 in respect of "Sources of Aggregates" (defined in the Glossary as crushed stone processed gravel, shingle', as under :- "Sources of aggregates.-These are located along the alignment ; largely in the form of riversands and gravels and limestone deposits. These are same suppliers working, small gravel deposits near Karachi, but quarries and gravel pits will have to be developed for the highway construction. Much of the land along the alignment is owned by the Government and a nominal royalty is levied for materials removed. There the materials are obtained from private land, there is an additional compensation paid to the owner."
' Reference may further be made to paragraph 4-1.5 under the heading "Borrow" which provides that : "If there is not sufficient excavated material of a suitable quality to complete the embankment, subgrades. Shoulders are backfilling to the required lines and grades, the Contractor shall borrow the necessary additional material. Borrow shall be paid for under the regular, item of 'Unclassified Excavation". The source and acceptability of the borrow material shall be subject to the approval of the Engineer at all times. Acceptability of the borrow will be determined not only by the characteristics of the material itself, but also whether it will be satisfactory in that portion of embankment in which it is to be used. Any soil having a natural in place moisture content in excess of 2 per cent. Water than Optmum Moisture Content, as determined by the A S. T. M. Designation : D 1557 will not be considered as acceptable borrow material unless approved by the Engineer."
40. On the other hand Mr. Fazeel, referring to clauses 4-1.5 and 1-7(4) of the said "Contract Documents" submitted that according to the Contract between defendant No, 1 and the Government, the defendant No, 1 were themselves liable to pay for all borrow pits for aggregate used by them. Mr. Fazeel further submitted that defendants have, in fact, paid to some other private parties in Karachi Area for the aggregate used by them, but have been wrongly denying their liability to the plaintiff on the basis of item No, 73 of their contract.
41. Reading the Contract with its conditions particularly paragraph (4) of clause 1-7, it appears that defendant No, I had the right to enter upon the area and carry out its operation on the Government land with the object of obtaining materials needed for the purpose of constructing the Highway, on payment of nominal royalty (to the Government) and for private land to pay extra compensation to private land owners, and pay for borrow pits outside the highway. Finding accordingly.
42. Regarding demarcation and possession being the fact in issue No, 4, as also raised in clause
(vii) of para. 4 of the written statement of defendant No, 1, the plaintiff in his deposition has asserted that the land in question was demarcated and its possession was taken by him, but he has failed to prove it by producing any evidence whatsoever. On the other hand, defendant No, 1 by the evidence on record seems to be in possession of the area, including the land in question much prior to the grant of the said permit. Defendant No, 2 also does not support the assertion of the plaintiff. The plaintiff does not say in his examination-in-chief a word about the demarcation and possession. In the cross-examination to the counsel for defendant No, 1, he, however, stated that "I had not personally visited the area of operation because it was not necessary for me to do so as my employees used to work there. When first I was granted the permit my staff had gone to the area but when the defendant No, 1 installed their machinery in the area my staff did not go to the area because it was not necessary. My staff did not prevent defendant No, 1 in the area". The plaintiff further stated that had not purchased any machinery for quarrying or crushing the stone, nor any truck for the purpose. I did not change any labour. I know the conditions of the permit. We had installed the boundary pillars to demarcate the area allotted to whose pillers were two feet high. Initially stone were kept at the places which were subsequently substituted with wooden parts. We bad puchased wood from Kotri, but I cannot say from whom the wood were purchased as I had not gone personally to purchase the wood. I cannot say how much amount was paid for the wood. I do not possess any receipt for the payment". As to the demarcation and possession he further stated in the cross-examination "the boundary marks was taken after permit. I do not remember if any document was prepared for handing over possession". As against this the Resident Engineer of defendant while giving evidence deposed that : "Since the month of January 1969, i. e. Since we started tapagraphic survey and taking of samples at mile 81, it would have been possible to infer that we intended to instal, the quarry and the crunching plant just there'. He further deposed-`The terrain at mile 81 was a deposit of calcareous rock. The availability of access existed since October 1968 because we had built the track, but the said track for safety as well as insurance reasons, was exclusively reserved for the Company's vehicles and, therefore, was closed to the public."
43. The plaintiff, in the circumstances, could, probably, have no access to the mile 81. He has failed to produce any one from his staff, or the Government to prove that the area was demarcated. The burden of proof entirely rests on him. His sole word, in the absence of any evidence, oral or documentary, particularly when it pertains to be given by the Government officials, and the office file, on the point, being silent, cannot be believed. The assertion of the plaintiff is nothing but a lie.
My finding, therefore, is in the negative.
44. As regards issue No, 5, it was not pressed by defendant No, 1, but was argued strenuously by Mr. Mangi for defendant No,
2. The plaintiff did not say a word in his examination-in-chief about the payment of any amount to the Government towards any fee or royalty. About the permit fee he has simply stated in the cross-examination that "I cannot say if I paid the permit fee after the expiry of the permit period". However, Mr. Fazeel submitted that the fee of Rs 800 was paid on 2-6-1970. It is, therefore, apparent that the fee has been paid after the expiry of the period of the permit. The Mining Concession Rules, 1960 require the fee to be paid alongwith the application and the Memorandum requires the payment of royalty in advance, the plaintiff under Condition No 3 was required to credit the amount of fee and royalty into the Government Treasury as required under the Act of 1948 and receipt copy of challan to be submitted to the office of Deputy Commissioner which the plaintiff failed to do, as required. Moreover, the Memorandums dated 2nd July, 1960 and 15th January, 1962 mention the rate of the royalty and require the payment to be made in the Government Treasury as to rents, royalties, annual fees and surface fees and the copy of the receipted challan sent to the Buearue of Mineral Resources for record. It is also required by the Memorandum, dated 2nd March, 1963 that the royalty is to be deposited by the permit-holder in advance. The plaintiff, therefore, has failed to prove the payments, as required under the Mining Concession Rules and the Memorandums issued thereunder. It is significant to note that the Deputy Commissioner, Dadu while forwarding a copy of the permit to the Deputy Collector, Kotri for information and necessary action, required him to ensure that the permit holder starts excavation after complying with the conditions stated in the permit". It implies that the right, if any, was to accrue to the plaintiff only on crediting the amount of fee and royalty into the Government Treasury as required by Conditions Nos. 1 and 3 of the permit read with the Roles and the Memorandums. The application fee at the rate as stated in the Rules, was to be paid alongwith the application, which will be entered into the register. No such fee has been stated to be paid at all.
The permit under its condition No, 1 specifically provided that the permit holder will pay surface fee at Re. I per Acre. The compliance of this condition, alongwith some others, was a condition precedent before any excavation could be started by the plaintiff, as per direct issued to the Deputy Collector, Kotri, referred to above. The plaintiff has, failed to comply with the condition of the permit. The person having authority to issue permit has the power to impose conditions in respect of such permit. The permit in question, it is apparent, was subject to certain express conditions. The plaintiff has, on his own showing, failed to comply with the said conditions. The plaintiff, therefore, did not act in accordance with the conditions of the permit, the Memorandum and the provisions of the Mining Concession Rules, and particularly by non-compliance of the conditions laid down in the permit has run the risk of inviting its sanctions. The effect would, therefore, be that the permit will be held as ineffective and of no consequence.
45. As regards clause (xii) of para. 4 of the written statement forming second part of Issue No, 1 as also raised in Issue No, 6, (which was not argued separately, as merged into clause (xii) above), it is specifically stated in the permit that in case the area if required by the Government for any public purpose the lease will be revoked at any time, it is noticed that although the area was already physically engaged in carrying out a public purpose, but the permit was not specifically revoked by defendant No, 2, apparently due to collusion between the Mukhtiarkar and the plaintiff. Finding accordingly.
4A. As regards Issue No, 9, it seems inter-linked with other issues already discussed, It has already been held by me that the plaintiff did not take possession of the land and defendant No, 1 was already in occupation of the land when the plaintiff applied for it and the permit was issued to him.
It is stated in the permit itself that in case it is found that the area or any part thereof was not free and has been granted by inadvertance, the grantee will release the same unconditionally as and when required to do so and will have no claim for any compensation. It is established on record that the land in question at the time of granting the permit, rather some time prior to it, was physically in occupation of defendant No: 1 and the land was not free for a grant on permit or lease whatsoever. This fact was not brought to the notice of the Deputy Commissioner, Dadu by the Mukhtiarkar of Kotri while recommending the plaintiff's application for the grant of licence to him. It appears that the Deputy Commissioner Dadu granted the said permit by inadvertence. However, it was at no time found by defendant No 2 that the land in question was not free and had been granted by inadvertance. The plaintiff was at no point of time required to release the same de facto, probably because of the collusion between the Mukhtiarkar and the plaintiff. Finding accordingly.
47. My conclusion Issue No, 1, for the combined reasons, as discussed above, is that the permit, in effect, rendered itself as invalid and w ineffective. Findings on Issues Nos. 2 to 6 and 9 have already been recorded separately, which also have got bearing on finding of Issue No, 1.
48. Issue No, 7.-In order to establish the alleged quantity of 30 lacs tons of stone excavated by defendant No, 1 from the land covered by the said permit, Mr. Fazeel relied on Exh. 4/3, a letter dated 5-1-1970 issued by the Mukhtiarkar to the plaintiff and Exh. 4/6, a letter dated 3-3-1971, also issued by the Mukhtiarkar to the plaintiff reconfirming the said quantity, further alleging that defendant No, I have removed the stone in their requirement and a portion of the same was still lying on the site. Not only that, but it was further alleged by him that on enquiry he (Mukhtiarkar) found that defendant No, 1 were selling stone on the site to one Mr. Ishaque and others who, on enquiry, stated to him that they had purchased the stone from defendant No,
1. Mr. Fazeel has also placed his reliance on the statement of one Chowkidar Zamir, at page 39 of the file (Exh. 4/36) and measurements alleged to have been received from the Tapedar (Exh. 4/14), besides a number of other letters (Exhs. 4/5 and 5/23). The plaintiff in his evidence has stated that the said measurements (Exh. 4/14) were recorded by the Tapedar and provided to him. It has, however, been stated in evidence on behalf of defendant No, 1 that 30 lacs tons cannot be excavated and were not required even for the entire work. It was also stated. That no stone were sold. However, the witness stated in cross-examination, that he cannot say for certain that after completion of Highway, the stones were not sold. In any case, it was admitted by defendant No, 1 that the total excavated quantity of stone was 1,23,210 tons.
49. The plaintiff's assertion that defendant No, 1 exacavated 30 lacs tons of stone is solely based on the demand of Mukhtiarkar made to him through the several letters referred to above The plaintiff could not and, in fact, has not stated anything from his own knowledge. I am: afraid, the entire evidence produced by the plaintiffs to prove the quantity of 30 lacs tons does not bear any credence, in fact or law. The Tapedar, who has been alleged by the plaintiff to be the author of the measurements and who allegedly provided the said measurements to the plaintiff, was not produced in the evidence and same is the case with the Mukhtiarkar, who was also not produced in evidence.
50. In respect of the alleged measurements, it is significant to note that the Division Bench in L. P. A.
No, 85 of 1971, at different times, while hearing the appeal against the order of a learned Single Judge refusing to grant attachment/injunction against defendant No, 1, passed the following order on 17-5-1972 : "The claim of the appellant is based upon the demand notice issued by the Mukhtiarkar whereby it is stated that 30 lacs tons of stone was quarried whereas it is the case of the respondent that 1,23,210 tons were removed from there. We would like to be certain as to the quantity quarried before we dispose of this application.
' Adjourned to 1st June, 1972, and it is further ordered, that the Assistant Advocate-General should direct the Mukhtiarkar to appear alongwith his measurement book in which he has recorded the measurement and reached the conclusion as to the quantity quarried on the above date."
' On first June, 1972 in pursuance of the notice, issued by the Division Bench, referred to above, Mr. Osman Ghani Rashid, appeared and stated that the concerned Mukhtiarkar has been screened out and it has not been possible to get the measurement book as was required to be produced. He, therefore, requested for time. On 15-8-1972 the statement made by the Assistant Advocate- General was challenged and it was stated that the Mukhtiarkar had not been removed from service. On the contrary, he has been promoted. The L. P. A. Bench was then pleased to direct summons to issue to Mr. Ibrahim Bhatti by name, as he was the Mukhtiarkar at that time, and the present Mukhtiarkar to produce or cause to be produced the measurement book in question on the next date of hearing. On that date, the summons did not appear to have been served. On 28-9- 1972 the learned Assistant Advocate-General stated that he was unable to secure his attendance.
He, however, stated that there was "no documents." On 7-11-1975 the Assistant Advocate-General further stated "no that documents, or, records are with the Government" and so the measurement alleged to have been recorded by the Tapedar and referred to by the Mukhtiarkar in his letters, were not there. The concerned Mukhtiarkar was, however produced before the Court either in L.P.A.
Or in the suit. The measurement (Exh. 4/14) is only a carbon copy. The office file produced by the plaintiff does not contain any measurements at all. The plaint is also silent about the said document. It was neither filed alongwith the plaint nor was included in list of documents to be relied won. The onus to prove the quantity of 30 lacs tons entirely rests on the plaintiff, which he has failed to discharge.
51. Mr. Fazeel has, however, contended that the said document (Exh. 4/14) has been admitted in evidence without any objection by the other side and thus stands proved. Reliance is placed by him on the cases reported as Malik Din and another v. Muhammad Aslam (1) and Gopal Das and another v. Sri Thakurji and others (2).
52. In the first-named case PLD 1969 SC 136 the Hon'ble Supreme Court observed that :- "the objection regarding the defect, if an, in the method of proof of the document, cannot be raised at this stage. For, the document was admitted into evidence, without any objection, in
(1) PLD 1969 S 136 (2) AIR 1943 P C 83 the trial Court. It is now well-settled that an objection, as to the formality of proof, must be taken at the earliest stage qnd if it has not been taken then, it cannot be allowed to be taken at the appellate stage."
53. In the second-named case AIR 1943 P C 83 Mr. Fazeel relied on the following observation :- "where the objection to be taken is not that the document is itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a a Court of appeal and then complaint for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial."
54. It appears that in the Supreme Court case the objection as to the defect in the method of proof of the document was raised at the appellate stage of Second Appeal in the High Court, whereas in the Privy Council case the trial Judge admitted the impugned document and pointed out that on the face of the compromise of 1896 the receipt was declared to have been admitted and accepted together with the two wills of Manki Bahu. No discussion or decision thereupon appears to be recorded in the trial Court because, perhaps, no objection was taken at the trial to the admission in evidence of the receipt.
55. On the other hand, Mr. Nomani placed his reliance on the following observation of Sajjad Ahmad J., appearing at page 191 in the case reported as Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others (1), which reads as under :- "When I say that the document Exh. P. E. Is unproved. I have in mind the mandatory provisions of section 67 of the Evidence Act, which lay down that 'if a document is alleged to be signed or written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting." If the case of the respondent was that the appellant had signed the original of Exh. P. E. Or the certificate appended to it, it must have been proved that it was in the appellant's handwriting, for which no effort whatsoever was. Made. In the case of Bengal Friends & Co. v. Gour Benode Sah & Co., this Court had expressed itself on this point as follows :- `Documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them.'
' I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as 'exhibits' as faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence Act. If instead of the copy Exh. P. E., the
(1) PLD 1973 SC 160 original form 'E' which informed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued that by merely exhibiting it, the document should be taken for granted as bearing the signature of the appellant without proof that in fact it was written and signed by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it,"
56. With all respect, I am inclined to follow the observations quoted hereinabove and also the observations of the Hon'ble Supreme Court in the case Messrs Bengal Friends & Co. Dacca v.
Messrs Gour Benode Shah & Co. (1). There seems to be a distinction between a document, which is a copy of judicial record, and received in evidence without proof of signature and handwriting of the person alleged to have signed and written, and a document which has copy of the document not forming part of judicial record, but taken, on record without an objection by the other side. In the instant case the measurement (Exh, 4/14) is a carbon copy, alleged to have been signed by some Tapedar on 28-12-1969, with a heading as "measurement sheet Deh Taluka Kotri". The said document does not show any other thing. Presumably it pertains to the entire deli. It does not say that it pertains to mile 81 only or that the site at mile 81 falls within the said deh and if so how much part of the deh is covered by mile 81. It does not give any particulars as at whose instance the measurements were taken, when they were taken, and in whose presence were taken and they pertain to whom i,e, who carried out the excavation and the period of excavation. It bears no diary number or any other official number so as to indicate the case and names of the parties concerned with it. Unless the genuineness and authenticity of the documents and its contents, including its authorship and its relationship with the case, by putting the man in the witness box who is alleged to have written and signed the same is produced, the document cannot be relied upon, simply because the document, which a carbon copy, has gone on record without an objection by the otherwise. In the absence of proper proof, as to its signature, it cannot be taken as conclusive proof of the fact in issue as to actual measurement, particularly Z when the surrounding circumstances of the case including its non-production in L. P. A. Cast a shadow of doubt on the authenticity of the document and authorship itself. My finding. Therefore, is that the quantity of stone excavated by defendant No, 1 at Mile 81, as 30 lacs of tons, has not been proved. It is only 1,23,210 tons, as admitted by and on behalf of defendant No, 1, as specified in their letters produced in evidence.
57. Regarding the second part of the issue that defendant No, I was required to take the plaintiff's consent or pay royalty for the excavated stone, my finding is that it was neither required nor possible for the reasons already discussed under Issues Nos. 1 and 2 to 6 and 9 and particularly for want of knowledge on the part of defendant No, 1.
58. Issue No, 8.-This issue relates to the question whether the plaintiff has waived his right? If any, for reason of inaction, laches, delay and acquiesance. Mr. Fazeel submitted that the plaintiff was perusing actively his right against defendant No, 1 ever since he came to know of the unauthorised excavation of stone by them. In his deposition,
(1) PLD 1969 SC 447 the plaintiff stated that although he was aware that defendant No, 1 was quarrying stone in the area licensed to him, but "he did not lodge any objection with the Government". He further deposed, "when defendant No, 1 installed their machinery in the area my staff did not go to the area because it was not necessary" . . . . My staff did not prevent defendant No, 1 from operation in the area". Mr. Nomani, on the other hand, however, relied on section 115 of the Evidence Act, 1872. Mr. Fazeel further submitted that the question of estoppel or the waiver. By the plaintiff does not arise and his right to claim from defendant No, 1 the cost of stone and the amount of royalty is not affected. In support of his submission, he relied on a number of decisions reported as:
(I) Muhammad Hayat v. Ghulam Nabi and others AIR 1931 Lab. 598,
(ii) Fakir Khan and others v. Ismail Khan and others AIR 1933 Lab. 179,
(iii) Nandkishore and others v. Damodar Balaji AIR 1942 Nag. 59,
(iv) Sh. Assudibai Sahijram, Mirpurkhas v. Sh. Haribai w/o Vasudev and others AIR 1943 Sind 177,
(v) Mst. Rahmatan v. Muhammad PLD 1963 (W. P.) Lab. 368,
(vi) Qutnb-ud-din v. Muhammad Siddique PLD 1969 Lab. 418,
(vii) Karachi Municipal Corporation v. Moosa M. Adam and 4 others PLD 1972 Kar. 571,
(viii) Islamic Republic of Pakistan v. Israrul Haq and 23 others PLD 1981 SC 531,
(ix) Treasurer of Charitable Endowments for Pakistan v. Central Board of Revenue, Islamabad and others PLD 1981 Kar. 357, (x Muhammad Munir v. Ahmad Ally Memon and 2 others PLD 1982 Kar. 425,
(xi) Muhammad Saghir Ahmad v. Qurban Ali and others 1983 CLC 2127, and
(xii) Ali Muhammad and 2 others v. Gulfam and another PLD 1983 Kar.
99.
(1) In the first-named case (AIR 1931 Lab. 598) it was observed that "there can be no estoppel except when one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. There is nothing in the present case to establish that this was the intention of the plaintiff. He had the right either to object under Order XXI, rule 58 or rule 100. He chose the latter course and that gave him a right of suit under rule 103. There is no question, therefore, of estoppel". The facts in that case were that the plaintiff was ejected in execution of a decree against another person from part of a certain property but he continued to remain in possession of the other part. However, under Order XXI, Rule 100, C. P. C., he applied to the Court to be restored to possession of the part from which he had been ejected. The application having been dismissed on the ground that he was not in possession on his own account, he filed suit under Order XXI, Rule 103, C. P. C. The trial Court decreed the suit but the learned District Judge, on appeal, dismissed it on the ground that he was estopped from setting up his ownership as he had been present at the time of attachment and at the time of the auction also and knew what was going on. On second appeal to the High Court, the decree in first appeal was set aside and the case was remanded to him for the decision on the other matters arising.
(ii) In the second-named case (AIR 1933 Lah. 179) it was held that in order to sustain the plea of estoppel it must be proved that the defendants, relying on the declaration made by the plaintiffs, were mislead to act to ;heir detriment in such a manner as they would not otherwise have done. In that case the plea of estoppel was not raised in the trial Court nor was it covered by the issues. The District Judge, however, allowed the said plea raised at the appellate stage. The finding was, however, negatived by the High Court as without any substance whatsoever as by the alleged declaration, if taken as a whole, the plaintiffs were not estopped from denying the defendants' right to redeem the land.
(iii) In the third-named case (AIR 1942 Nag. 59) it was held that "In order to create an estoppel, there must be a duty owing by the person estopped to speak or to act which he has failed to perform: Jones Brothers Ltd. v. Wood-house (1923) 2 K B 117: 92 L J K B 638: 199 L T 317: 67 S J 518, were relied on in other words, as pointed out in Baswantapa v. Ranu (`85) 9 Bom. 86, there must be something like wilful misleading of the purchaser by some breach of duty".
(iv) In the fourth-named case, (AIR 1943 Sind 177) it was, inter alias observed that as one of the essential conditions of the proper application of this principle, is the condition that the person to whom the representation has been made and on which he has acted, has, as a result, altered his former position to his prejudice.
(v) In the fifth-named case (PLD 1963 Lah. 368) while interpreting section 115 of the Evidence Act, 1872, it was held that the Principle of Estoppel is applicable only if person has by his declaration, act or omission, intentionally caused or permitted another to believe a thing to be true and to act upon such belief.
(vi) In the sixth-named case (PLD 1969 Lah. 418), again, while interpreting section 115 of the Evidence Act 1872, it was observed that : "It is clear from a plain reading of the section that to estop a person from asserting his right, it is necessary to prove that he had made representation intentionally to another person. Mere silence or failure to object may not amount to intentional representation in every case. Secondly, as pointed out by Monir in Principles and Digest of the Law of Evidence, third Edition at page 909, among ,others, the constituent elements of estoppel are that representation was of a nature which induced the person to whom it was made to alter his position to his detriment and further that the latter has actually altered his position to his detriment on the faith of the representation made. All these elements must co-exist to create estoppel against a person. In the instant case, none of these conditions has been satisfied. Even if Muhammad Siddiq defendant is to be taken at his word, all that he says is that the plaintiff was present and did not object to the attestation of the mutation in favour of the defendants. This falls far short of creating estoppel within the meaning of section 115 against the plaintiff."
(vii) In the seventh-named case (PLD 1972 Kar. 571), Dorab Patel, J., as he then was, observed that "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".
(viii) In the eighth-named case (PLD 1981 SC 531) the Honourable Supreme Court on the applicability of the principle of estoppel observed as under : "There must be representation by a party, and the representation must have led the person pleading estoppel to do something detrimental to his own interests owing to the action of the other party. Apart from this there is the general governing principle of estoppel that there can be no estoppel against the statute. No corporate body or statutory functionary can be bound by estoppel to do something beyond its power and cannot be bound to do something which is regulated by statute in any other way than the statute requires."
(ix) In the case (PLD 1981 Kar. 357), after reviewing a number of cases, certain principles as to estoppel were deduced therefrom.
(x) In the tenth-named case (PLD 1982 Kar. 425), relying on the observation in the case of Haji Muhammad Youns (1), cited as (which reference, on checking, is found to be incorrect) quoted as "If a person has acted to his detriment or altered his position on the basis of any declaration, act or omission of another person, that other person will not be allowed to go back upon it to the detriment of the opposite party". In that case the defendants did not start construction on the representation or any act or omission or commission of the plaintiff and altered his position.
(xi and xii) In the last two judgments, (1983 CLC 2127) and (PLD 1983 Kar. 99) as cited by Mr. Fazeel, which are one and the same, it was observed that "In order to attract the provision of section 115 of the Evidence Act and apply the principle of estoppel it is necessary that it may be established that a representation was made to the other side and on the basis of that representation the other party has altered his position. In these circumstances an estoppel will be created against the person making the representation".
59. In the above cited large number of cases, it was held, in the circumstances of those cases, that there was no estoppel, but the facts and circumstances of these cases, generally speaking, are different and distinguishable from the facts and circumstances of the instant case. In AIR 1931 Lah.
598 the house was auctioned in execution. The plaintiff did not object at that moment, but, later on filed a suit under Order XXI, Rule 103. In AIR 1933 Lah. 179, the mortgaged property was gifted. It was held that, in the circumstances, if the admission is taken as a whole, there was no estoppel against the mortagee. In AIR 1942 Nag. 59, the house was auctioned, though the land was owned by the plaintiff, who did not then object in that circumstance. AIR 1953 Sind 117 was a case of estoppel against statute and similar is the position with PLD 1981 SC 531. In PLD 1981 Kar. 355, there was no evidence of estoppel. In PLD 1969 Lah. 418, it was held that for estoppel representation and change of position was necessary and so it was held in PLD 1972 Kar.
571. The case reported in PLD 1982 Kar. 425 relates to the purchase of building. In both the cases reported in 1983 CLC 2127 and PLD 1983 Kar. 99, it was held that there was no estoppel as there was no representation.
(1) PLD 1956 Kar, 755
60. To examine the doctrine in some detail, it will be convenient to begin with a satisfactory definition of "Estoppel by Representation." According to Spencer Bower and Turnor on "Estoppel by Representation", Third Edition, 1977, page 4 the following definition 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 or 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 including the representee on the faith of such representation to alter his position to his detriment, the represented, in any litigation which may afterwards take place between him and the representee, is estopped, as 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."
61. On the point of "Representation by silence or inaction", which is directly relevant for purpose of the present case, the learned authors, at page 48 of the book, supra, stated as under :- "It is well-established that under certain conditions silence or inaction may constitute a representation, as much as positive language or conduct, for the purpose of an estoppel. The main condition subject to which alone silence or inaction counts as a representation is that a legal (not a more moral or social) duty shall have been owed by the representator to the representee to make the disclosure, or take the steps, the omission of which is relied upon as creating the estoppel. The theory is this. The parties to a transaction are entitled to assume, as against one another, ominia rite esse acta; each of them is entitled to suppose that the other has fully discharged all such obligations (if any) of disclosure or action towards himself as may have been created by the circumstances. If, therefore, he receives from that other no intimation, by languages or conduct, of the existence of any fact which, if existence of any fact which, if existing, it would have been the latter's duty, having regard to the relation between them, the nature of the transaction, or the circumstances of the case, to reveal, he has legitimate ground for believing that no such fact exists, or that there is nothing so abnormal or peculiar in the nature of the transaction, or in the circumstances of the case, as. To give rise to any duty of disclosure, and to shape his course of action on that assumption; in other words, he is entitled to treat the representator's silence or inaction as an implied representation of the non-existence of anything which would impose, or give rise to, such a duty, and, if he alters his position to his detriment on the faith of that representation, the representator is estopped from afterwards setting up the existence of such suppressed or undisclosed fact. The terms, `lying by', 'standing by', 'acquiescence', 'waiver', `lathes', and 'encouragement' are often used, in preference to 'estoppel' for the purpose of enunciating and justifying the rule under discussion:- `lulling to sleep' is another term that appears in the cases-but it is really one and the same doctrine which is the subject of these terminological variants
62. The learned authors further stated at page 51 of the said book as under : "So, also, if a party, having a right to assert his status as a shareholder in a company, or his right to a share in any business or concern, is mute and passive whilst proceeding are being taken by the company, or other persons interested in the business or concern, to forfeit his share or deal with the property as if he had no part or lot therein, and makes no protest or complaint, and takes no step to prevent or defeat such proceedings, this passivity on his part operates either as a representation that he has finally abandoned any claim to such status, right, or interest which he may have ever possessed, or else as an acknowledgment that he never had any such claim at all; in either case, he is precluded from asserting it on any subsequent occasion as against the parties to whose adverse proceedings he raised no objection at the time."
63. Mr. M. Munir, former Chief Justice, Supreme Court of Pakistan in his well-known book on the Principles and Digest of the Law of Evidence has dealt with the subject of representation by omission; an extract from which may be summarised as under :- "Under certain conditions abstention from speech, or from action, may be deemed to constitute a representation as much as positive language or conduct for the purpose of estoppel. The main condition subject to which alone silence or inaction counts as a representation is that a legal (not a mere moral or social) duty shall have been owed by the representator to the representee to make the disclosure, or to take the steps, the omission of which is relied upon as creating the estoppel. The rule is based on the principle expressed in the of quoted expression, that, where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent. Per Thompson, J., in Niven v. Belknap 2 Johns, 357, cited in Begelow, 6th Ed., 650; see also Thomas Barclay v. Syed Hussain Ali Khan (1937) 6 C L J
601. In many cases a man may innocently be silent, but in other cases a man is bound to speak out, and his very silence becomes as expressive as if he had openly consented to what is said or done, and become a party to the transaction. Gheran v. Kunj Behari 9 A. 413, 419 If a period, having a right and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complaint of the act Nidamarthu Balasarya Bheemaraju v.
Changati Mrutvanjayaudu, 1931 M. 354: 131 I C 669; Woodroffe, Ev., 9th Ed.
878.
(Munir's Law of Evidence, Pak. Publishers Limited, Karachi, section 115, pp. 350-52).
64. Estoppel is based on the maxim allegans contraria non est audiendus (a person alleging contradictory facts should not be heard) and is that species of proesumption jurts et de jure, where the fact presumed is taken to be true, not as against all the world, but as against a particular party.
' The doctrine of estoppel is, in fact, an equitable doctrine, a rule of exclusion, which implies that if a person has by act or omission altered his position, he will be estopped and be precluded or debarred from denying it or take a position so as to alter his position to the detriment of the other person, the opposite party.
65. In order to constitute a valid estoppel by representation, the following principles may be deduced from the law cited above:-
(1) That the party sought to be estopped, or same person, for whose representation such party is in law responsible, made a representation.
(ii) Estoppeal must be certain. It should clearly refer to the representation on which it may be found.
(iii) That the case which the party is sought to be estopped from making setting up, or attempting to prove, contradicts in substance his original representation.
(iv) That such original representation was of a nature to induce, and was made with the intention of inducing, the party raising the estoppel to alter his position to his detriment.
(v) That the party raising estoppel actually altered his position to his detriment on the faith of such original representation.
(vi) That the original representation was made to the party setting up the estoppel.
(vii) Estoppel cannot circumvent the law. So, there be no estoppel against the statute. Therefore, if the representation is not in accordance with certain provision of law it shall not operate a estoppel against the party making it.
(viii) Estoppel by itself does not create title, nor it extinguishes the right. It merely operates as an impediment to litigation.
(ix) Estoppel by representation in its application is restricted to the parties.
66. Applying the above principles in so far as applicable to the facts of the present case, it has come on record that defendant. No, 1, had, under a contract with the then Government of West Pakistan for the construction of Karachi-Hydeabad Super Highway, set up its first crushing plant at mile 5 in late 1967. Upto June, 1969 the crushing plant was set up, with different intervals, miles, 5, 27, 43 and 62. In or about June, 1969 the crushing plant was set un at mile 81, being the last crushing site Excavation Unit was installed in or about July, 1969, and the required machinery such as Belt, Conveyors, Vibrating Screnes, Crushers Hopper, Generator and Dumpting vehicles were brought on the site. Site office was established and the staff of defendant No, 1 in sufficient number engaged in the work spread over the area and the excavation was stated. No, one protected or prevented the said defendant against the said operation. It is stated by the plaintiff in his deposition that he had taken possession of the land in question and erected boundry pillars. If this statement, for argument's sake, is taken as correct which, however, is not true, then he must have come to know even before he took the alleged possession and his alleged staff was not able to erect boundry pillers that defendant No, 1 was in possession and the work of excavation was in progress. Even after the receipt of notice of demand of Rs, 11 lacs in January, 1970, the plaintiff kept quiet, probably, because his permit had not expired and to lodge a claim against defendant No, I would have resulted in protesting to the Government by defendant No, 1 which would have entailed cancellation of the permit for a number of reasons, or defendant No, 1 would have taken some other action such as shifting from the site at mile 81. Leaving said every thing as it is, the plaintiff has himself admitted in the deposition that "I knew that defendant No, 1 was quarrying stone in may area. I had not lodged any objection with the Government in this connection." The plaintiff by the wilful omission to protest against the occupation of the land and excavation thereof caused defendant No, 1 to belive that it has the right to excavate stone from the said land without anybody's claim on it. The defendant No, 1 appears to be under a bona fide belief that the land in question was the Government land for all purposes and it was entitled to quarry the same having a valid right to do it within the terms of the contract.
67. The defendant No, 1, in the circumstances, would not have acted in the manner, he did i. e.
Excavated stone at Mile 81. Had he been informed of it, he would have easily shifted to another site, say, Mile 82 or any other site. There was no impediment in its way in doing so. I, therefore, hold that the plaintiff's wilful abstention from making any protest or taking any action during the period of permit is sufficient to constitute it as representation by conduct and it has acted as estoppel against him in terms of section 115 of the Evidence Act 1872.
68. Issues Nos. 11 and /Z.-Issues Nos. 11 and 12 are taken up first. Mr. Nomani relying on the Variation Order No, 27, dated 12th March, 1969 has contended that defendant No, 1 is entitled to full indemnity from defendant No, 2 in respect of any amount that may be found payable by defendant No, 1 to the plaintiff. Mr. Fazeel, in reply, submitted that it is a matter between the two defendants with which the plaintiff has no concern. He however, stated that the correspondence between the two defendant does disclose that defendant No, 1 had been claiming that the royalty if payable, is to be reimbursed by the Government.
69. Mr. Nomani pleaded that in case the amount of royalty or for that matter the cost of stone is paid by defendant No, 1 to the plaintiff, the entire amount is to be reimbursed by defendant No, 2 to defendant No, 1, with an additional amount at the rate of 25 % of the said amount which is to be paid by defendant No, 2 to defendant No, 1, as Condition No, (a) of the Variation Order No, XXVII stipulates that the payment under the said order will be made on the basis of reimbursement or monies paid plus 25 (twenty-five) per cent (provisional rate) which amount shall be deemed to cover all costs including overhead and profits.
70. It is noted curiously that defendant No, 2 has not cared to lead any evidence in the case. He has not even cross-examined the plaintiff or the only witness for defendant No,
1. Even the written statement filed on its behalf, to say the least, is sketchy and slipshod. Not only that Mr. Mangi, counsel for defendant No, 2 also abstained from saying a word about these two issues. It is noticed that the case of defendant No, 1 has been, from the very beginning that in case the said defendant is found liable to pay any amount to the plaintiff, the same is to be reimbursed by defendant No, 2.
In this respect, reference may be made not only to the relevant paragraphs of the written statement of defendant No, 1 but, also to a number of letters addressed by them to the Karachi- Hyderabad Highway Authorities. Exh. 4/23 is a letter from defendant No, I to Highway.
71. Authorities, which specifically states that "In view of that has been stated above, we require, in case of payment for royalties to Messrs Ali and Company, the authorization for the quantities and the rate under Variation Order No, 27 and the reimburse.Nent of the amount under Item 73 13.
0. Q. Of the Conditions of the Contract" reference may also be made to a letter (Exh. 4/25) issued by defendant No, 1 to the plaintiff through his Advocate stating that "we are entitled for the reimbursement under clause 73 of the Conditions of Contract. Any payment to be made by us will only be done after the quantity and rate have been mutually agreed to by the Employer (Highway Authority) and the Consulting Engineer and the reimbuesement of the amount to us has been executed.' In fact, the plaintiff was on being advised, requested by defendant No, 1 to deal directly with the Highway Authorities as per instruction of the Chief Engineer, Hyderabad (Exh. 4/28).
Thereupon, the plaintiff appears to have taken up the matter with the Highway Authorities through his (Exh. 4/30), but there was no response. 1 am, therefore, left with no option but to hold that defendant No, 1 is entitled to the reimbursement of the amount, any, found payable by defendant No, 1 to the plaintiff, with 25% extra as per the Variation Order, dated 12th June, 1969; referred to above. Finding accordingly.
72.
71. Issue No, 10,.-The plaintiff has claimed from defendant No, 1 a total sum of Rs, 56,10,000 out of which Rs, 45,0J,000 is claimed as price of stone, at the rate of Re. 1 and 50 paisa per ton, for 30 lacs of tons. In addition, a sum of Rs, 11,1000 has been claimed from defendant No, 1 as royalty payable by the plaintiff to defendant No, 2 at the rate of Rs, 0.37 paisa per ton as per rate stated in permit.
The plaintiff has also claimed interest at the rate of 9% per annum. In his deposition, the plaintiff has stated that the rate of stone in open market was Rs, 3 or 4 per ton, according to the price lists of two companies (Exhs. 4/32 and 4/33) produced by him. The plaintiff, as stated, has claimed at a lesser rate as the quantity of stone involved in the case was huge. The defendant have not said anything about the said rate. I have already held that the plaintiff has failed to prove the alleged quantity of 30 lacs tons of stone excavated from the land in question. However, on the basis of the admission of defendant No, 1, I have held that the quantity of stone excavated at Mile 81 is 1, 23, 210 tons only. It is also noticeable that the permits, as per Memorandum, is to be read as entitling the plaintiff to excavate 5,000 tons of stone only. In the circumstances, if the permits is at all hold to be valid (which as already held, is not so) the plaintiff may be said to be entitled to excavate 5,000 tons only and to appropriate the said stone to his use or sell the same in the market and pay royalty thereon to defendant No,
2. The plaintiff's entitlement will, therefore, be limited to the said quantity of 5,000 tons only. The plaintiff has, however, failed to prove the cost and rate of stone. It is noticed that the price lists (Exhs. 4/22 and 4/32) have been brought on record, subject to the objection of defendant No,
1. The plaintiff has failed to produce any representative of either of the two companies who are alleged to have issued the said price lists. The price, as quoted in the price lists, which, however, is not established, may be that as prevailing in the city. There is no evidence as to the costs of excavation, cost in the middle of the desert, where there was no aperoach or transport facilities available. As to the roylaty as I have already held that the demand appears to be made by the Mukhtiarkar in collusion with the plaintiff, In fact, it is not even supported by Mr. Mangi, Assistant.
' Advocate-General I may also observe that at one stage of arguments, Mr. Mangi stated that he may advise the Government to withdraw the said demand, provided the plaintiff shows his readiness to withdraw the suit.
72. However, the claim is based on an action in tort. The question, therefore, arises, whether in an action of trespass on land the plaintiff's possession is necessary. It has already been held that the plaintiff has failed to prove his possession. In fact, he has not denied that defendant No, 1 was in possession even before the plaintiff applied for grant of permit. To meet this situation, Mr. Fazeel placed his reliance on the case of Currimbhoy & Co. Ltd. v. L. A. Creet and others (1) and submitted that a stranger who violates the possession of a person cannot discharge the violation by saying that the possession was without title or fees or by showing that it was wrongful, unless he shows that third person was entitled to possession and the stranger had acted under the authority of that third person. This case relates to a coal mine, wherein, on the question of trespass to land, it was held that- "Trespass is a wrong to another's possession ; it is an injury to a possessory right and, therefore, the proper plaintiff in an action for trespass to land is the person who is in actual or constructive possession of the land i,e,, entitled to immediate possession. The gist of the action of trespass must be and is the wrong to the right of the plaintiff's possession. The right to possession is all important in ac action for trespass ; and a mere right of property without a right to possession is not sufficient to support the action. Right to possession is one of the constituent elements of the complete right of property ; and it has been laid down from very old times that a person with a right to possession can always maintain an action of trespass against a wrongdoer. So, also in the case of a person in actual possession, Such a person has against a mere stranger or wrongdoer the same remedies as if he had the right to possession and he can as against the stranger maintain trespass and in general the stranger who violates his possession cannot justify the violation by showing that the possession was without title or even by showing that it was wrongful unless he further proves not only that a third person was entitled to the possession but that he, the stranger, had acted with the authority of the said third person : see Pollock & Write on Possession in the Common Law, pp. 145-
147. The fact of possession in the sense referrei to above, therefore, is p ima facie evidence of title, and is alone sufficient to sustain the plaintiff's case against a mere wrongdoer : see Bullen & Leake, 3rd Edn. Pp. 801-802 ; see also Dicey on Parties, p. 333 et sq."
' I am afraid, the facts of the instant case are distinguishable inasmuch as the plaintiff was not in actual or even constructive possession. Defendant No, 1, on the plaintiff's own showing, was already in possession. The plaintiff's right to possession is under cloud. He has even failed to prove the possessory title for non-compliance of the terms and conditions laid down in the permit itself. On the plaintiff's own showing, he even did not lodge a protest in respect of defendant No, 1 being in possession and he engaged in excavating stone from the land, even after the grant of permit.
73.
73. Mr. Fazeel also placed his reliance on the case of The Midnapur ( 1) AIR 1930 Cal. 113 Zamindary Co. Ltd. v. Ram Kanai Sing Deo and others (1) and submitted the action in trespass can be based on constructive possession. The facts of this case are also distinguishable as it was a case of land and it was observed that the delivery of possession was not necessary for completion of permanent lease under the Transfer of Property Act and hence it was held that a lessee who never got the possession of the land can maintain an action for trespass or for injunction and damages. The instant case is not that of a lease under the Transfer of Property Act, but is that of a permit, which will be governed by the provisions of Mining Concession Rules, 1960 and the Memorandum issued thereunder, read with the conditions laid down in the permit itself. It is apparent on record that the land in question was already in occupation of defendant No I and the said Ian was not a free land to be made available to the plaintiff under the permit.
74. As regards plaintiff's being in constructive possession I may refered to the following passage from Salmond on Jurisprudence (Twelfth Edition, page 292) which reads as :- "Possession consists basically in a relationship between a person and an object within the context of the society in which he lives. It is, therefore, primarily a matter of fact and the differences between legal and non-legal or actual possession result from the need to advance the policy of the taw by regarding this relationship a existing where in fact it does not obtain ; and this in turn may lead to the development of the notion that in law I may have possession of an object as against one person while not having, possession of it as against another."
' Constructive possession, it may be said, is mediate or derivative as against direct or immediate.
As laid down in the case reported as Monendra Noah Bagchi v. Tarak Chandra Sinha and others (2) "by constructive possession` is generally meant possession as distinguished from actual possession, through a tenant or agent. It has also been used in connection with property which is incapable of actual possession and is said to be in the constructive possession of the owner as waste land or lands under water". The doctrine as to constructive possession, may however, be invoked by rightful owner, who in the circumstances of the case, is defendant No, 5 and not the plaintiff It has already been noticed that the plaintiff was, at no time, in actual possession of the land nor he derived constructive possession. Moreover, the question of constructive possession does no arise as the right or title to possession in favour of the plaintiff was not complete inasmuch as the land was required to be demarcated and actual possession to be given and thereafter excavation was to commence on certain conditions which were not fulfilled. In any case, the defendant No, 1 was in prior possession to carry out the purpose of the contract. My finding, on this issue, therefore, is in the negative. Otherwise too, for my findings on issues Nos. 1 to 9 the plaintiff is not entitled to the amount claimed, or any other sum in the suit.
75. Issue No, 13. -The ultimate result is that the suit is dismissed with costs to defendant No, I only.
76. Before parting with the case, I would like to direct the Registrar to send a copy of this judgment to Secretary, Ministry of Law, Government
(1) AIR 1926 Pat. 130 (2) AIR 1932 Cal. 504 of Sind, for onward transmission to the concerned Authority for taking appropriate action against the concerned Mukhtiarkar and Tapedar, Kotri, if in service.