1. SYED HAIDER ALI PIRZADA, J.---The petitioner through this petition has claimed for the following reliefs:-- "(a)that the letter issued by respondent No.2 bearing No. DL/Cent/398/91 dated 16-10-1991 is illegal, issued with mala fide intention and without any lawful authority as such it has no legal effect in the eye of law and is not binding on the petitioner.
2. (b)that the actions of respondent Nos. 1 and 2 whereby they had cancelled permission/licence and resumed/acquired the building structure raised on Plot No. Prov. "A" RB-2, Ram Bagh Quarters, situated adjacent to K.E.S.C. Union Office, Kutchery Road, Karachi, for use by them as Reception Room/Show Room but they had demolished the same illegally without having any lawful authority as such their actions are nudity in the eye of law, mala fide, void and ultra virus.
(c) that under the circumstances the petitioner is entitled for restoration of possession of plot bearing No. Prov. "A", RB-2, Ram Bagh Quarters, situated adjacent to K.E.S.C. Union Office, Kutchery Road, Karachi.
(d) that the petitioner is entitled to a lease of plot bearing to No. Prov. "A", RB-2, situated adjacent to K.E.S.C. Union Office, Kutchery road, Karachi, for a term of 99 years as per Agreement dated 27-10- 1989 Annexure "P/8" and shall complete construction of a building to be erected thereon within a period of twenty-eight months as provided under Conditions of Construction dated 27-7-89 Annexure "P/2" from the date of restoration of possession and not from the previous date of physical possession given on 6-11-1989 Annexure "P/9".
(e) any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the petition.
(f) Cost of the petition The facts leading to the filing of the above petition are that a plot of land bearing No. Prov. "A" RB-2, Ram Bagh Quarter, near K.E.S.C. Union Office, Kutchery Road, Karachi, admeasuring about 59.41 yards was put in public auction by respondents No.1 and 2 through public notice in local newspaper daily "Jung", Karachi in its issue dated 29-6-1989. The plot in question was auctioned on 29-7-1989. The said plot was sold out to the petitioner who, being the highest bidder of the same, had paid 25% of total bid money on the spot. The petitioner thereafter received a notice issued by respondent No.2, intimating therein that respondent No.1 rejected the petitioner's bid and further he was directed to recollect his 25% bid money deposited by him. On 1-9-1982 the petitioner made a representation to respondent No.1, whereupon the respondent No.1 confirmed the auction in favour of the petitioner which decision of the respondent No. l was intimated to the petitioner by respondent No.2 through letter dated 7-10-1989. The petitioner paid the balance amount of total bid money. The petitioner had entered into an agreement on 27-10-1989 for the purpose of construction of a building on the plot in question. The possession of the said plot was delivered to the petitioner on 6-11-1989. The petitioner had applied for approval of the construction plan, but the same was rejected on 1-2-1992 on the grounds that the entire plot is affected by proposed road widening scheme. The petitioner approached the respondents No.1 and 2 and upon their recommendations made in writing vide their letters dated 21-2-1990, 31-3-1990 and 10-7-1990, the Karachi Building Control Authority approved the proposed plan of building to be raised on the said plot vide letter dated 19-3-1991.
3. It is the further case of the petitioner that prior to the approval of building plan, as pre-condition, the petitioner was required to sign an Agreement which he had signed on 1-11-1990. Prior to the approval of proposed building plan, the Master Plan & Environment Control Department of K.DA.
4. Had accepted the Architectural Concept plan of the proposed building to be raised by the petitioner on the said plot vide their letter dattd 1-12-1990. It is the further case of the petitioner that before starting the construction over the said plot, he once again approached the respondents No.1 and 2 and applied for temporary permission to use the footpath for storing building material in front of the said plot and paid necessary charges. When the petitioner started construction work strictly in accordance with the approved plan, the respondent No.2 served upon him a notice dated 25-4-1991 directing therein to stop construction work immediately as the same was being raised in contravention of terms and conditions for the grant of building plan, which notice was properly replied in writing on 27-4-1991 but even then the respondents No.1 and 2 did not allow him to raise any construction. Under these circumstances, the petitioner was compelled to filed a civil suit in the Court of VIIth Senior Civil Judge, Karachi South against the respondents No.1 and 2 for declaration and permanent injunction. Along with the plaint, an application under Order XXXIX, Rules 1 and 2 read with Section 151, C.P.C. Was filed. The learned Senior Civil Judge passed status quo order after obtaining the undertaking from his counsel that no construction in violation of approved plan will be raised. The respondents Nos.1 and 2 contested the application as well as the main suit by filing counter-affidavit and written statement. The respondents Nos.1 and 2 also filed an application under Order VII, Rule 10, C.P.C. The plaint was ordered to be returned for presentation to the competent Court.
5. It is, thereafter, the respondent No.2 started demolishing the building structure raised on the said plot and the petitioner through his counsel received a letter dated 16-10-1991 stating therein that the respondent No.2 had inadvertently auctioned the said plot as subsequently the Director- General of Archaeology and Museum, had raised bitter objections for the auction and further safety of valuable relics of national importance would not be possible, as such there was no other alternative but to remove the structure raised on the said plot and refund the entire bid money and cost of construction. The petitioner had also filed a suit for damages against the respondent No.1 in this Court.
6. Khawaja Rafat Ali, Assistant Director, Land Department of the respondent No.1 filed affidavit. The respondents contended that the petitioner has already filed suit for damages amounting to Rs.46,00,000 which includes the cost of the plot at the market rate, in view of the pendency of the suit, the petition is not maintainable. The case of the respondents, as set out in the counter- affidavit, is that since the Department of Archaeology, Government of Sindh, has taken serious view concerning their security, therefore, it was decided not to allow raising construction on the said plot and as such the petitioner was advised to stop construction forthwith. The respondents further stated that after serving appropriate notices, the said plot was resumed and structures raised were removed. This action had been necessitated in view of the various objections raised by the Director-General of Archaeology and Museums.
7. We have heard Mr. M.S. Qureshi, learned counsel appearing for the petitioner and Mr. Muhammad Yasin Kiyani, Advocate appearing for the respondents. .
8. It is advantageous to reproduce notice/letter dated 16-10-1991 issued by the Assistant Director Land, (Central), K.M.C. It reads as under:--- "You are aware that K.M.C had inadvertently included Plot No. Prov. "A", R.B.-2, Ram Bagh Quarters measuring 59.41 square yards along Compound Wall of Burns Garden, near Main Gate facing to M.R. Kiyani Road in the list of Auction of plots held on 29th July, 1989 at highest bid of Rs.10,100 per square yard. K.M.C. Had also helped in eating the Building Plan approved from the concerned authority.
9. Subsequently the Director-General of Archaeology and Museums, Government of Pakistan raised bitter objections for the above creation and auction of the said plot on ground that the safety of valuable relics of National importance would not be possible.
10. Besides the construction of 3-storeyed building at the site would mar the beautiful look of the Garden and the National Museum which is often visited by the dignitaries of the abroad and in country. On the directives of the Government, the work of beautification and grilling of entire periphery of the Burns Garden the existence of such structures would give an ugly look and as such its retention is undesirable. In view of the objections of the Archaeology and Museum Department on one hand and bitter public criticism on the other, K.M.C. Has no alternative but to remove the structure and would honour its commitments (as stated in the para wise comments in the said suit) in respect of the following:---
(1) To refund the entire Bid Money amounting to Rs.6,06,000.
(2) To make payment of the cost of the construction raised at the Site.
11. The undersigned has accordingly been advised to request you to produce original relevant documents which include original receipt of the payment made and original lease agreement form and to produce the documents regarding cost of the structure raised so that necessary early action for the payment of the said claim, could be made.
12. Prompt action is requested."
13. It is also pertinent to point out that prior to issuance of notice/letter dated 16-10-1991, learned Senior Civil Judge, Karachi South allowed the application under Order VII, Rule 10, C.P.C. On 14-10-1991. The operative portion of the order is in the following lines:--- "Consequently plaint is returned to be presented before the Court having jurisdiction in the matter with no order as to costs."
14. The right to acquire, hold and dispose of property is a fundamental right guaranteed under Article 24 of the Constitution of the Islamic Republic of Pakistan. The petitioner had acquired a right in the said plot as he became the owner of the leasehold rights. The petitioner was the highest bidder.
15. The petitioner made the requisite deposit of the 25% bid money and thereafter balance bid money was deposited. The petitioner was delivered the possession of the said plot in part performance of the agreement. The lease-deed, however, has not been executed. The petitioner has acquired a right in property. This property of the petitioner was taken away by the impugned notice/letter dated 16-10-1991 without any show-cause notice or without providing any opportunity to present his view point and without any proceeding in law. Once bid of the petitioner was accepted and acted upon by delivery of possession of the said plot, a valuable right has accrued to the petitioner.
16. The petitioner has in fact made constructions on the said plot after obtaining sanction of the building plans from the Karachi Building Control Authority and by spending huge amount.
17. Rule 8 of the Local Council Land and Sales Rules, 1975 prescribes the conditions of sale of land by public auction of full occupancy value. The conditions of construction are that the building shall be constructed according to approved plan. The detailed plan for entire structure will have to be got approved by Karachi Building Control Authority, K.DA. Condition No.3 is that the plinth level will be 2 feet above the road level on which the building plot abuts. Condition No.5 says that the building to be constructed shall be of only commercial purpose. No godown will be allowed to be constructed.
18. Whereas the Condition No.6 says that any other condition will be the same as applicable by the adjoining plots to the locality. Full covered area, shall be allowed. Whereas the Condition No.7 says that only for floors (ground and 3 floors) will be allowed to be constructed.
19. Mr. Qureshi contended that the respondents are estopped by the doctrine of promissory estoppel and cannot go back. Up all assurances given and actions taken-by them, particularly when the petitioner had acted upon the decision so reached and had started constructing the building in accordance with the approved plan.
20. He further contended that the impugned notice/letter and demolition of the building were illegal as the construction of the said building was not without or contrary to auction or in contravention of any of the, provisions of the Sindh Council Ordinance, 1979, Sindh Building Ordinance, 1979.
21. In 1948, Denning, J. In Robertson v. Minister of Pensions (1949) 1 K.B. 277 laid the foundation to the applicability of promissory estoppel in public law. As Prof. De Smith in his Judicial Review of Administrative Action, fourth Edition at page 103 observed:--- "However, there is a growing body of authority, attributable in large part to the efforts of Lord Denning, to the effect that in some circumstances when public bodies and officers, in their dealings with a citizen, take it upon themselves to assume authority on a matter concerning him, the citizen is entitled to rely on their having the authority that they have asserted if he cannot reasonably be expected to know the limits of that authority; and he should not be required to suffer for his reliance if they lack the necessary authority."
22. It would appear that Denning, J. Evoked two doctrines, (1) that assurances intended to be acted upon and in fact acted upon were binding, and (2) that where a Government department wrongfully assumes authority to perform some legal act, the citizen is entitled to assume that it has the authority, and he dismissed the contention that estoppels do not bind the Crown by saying that the doctrine cannot fetter its future executive action.
23. In the Union of India and others v. M/s. Anglo-Afghan Agencies etc. AIR 1968 SC 718, J.C. Shah, J.
24. Speaking for the Court stated with approval the following observations of Denning, J. In Robertson's case ((1949) 1 K.B. 277): "The Crown cannot escape by saying that estoppels do not bind the Crown, for that doctrine has long been exploded. Nor can the Crown escape by praying in aid the doctrine that the Crown cannot bind itself so as to fetter its future executive action."
25. The above decision was followed in Centuring Spinning & Manufacturing Co. Ltd. v. Ulhas Nagar Municipal Council AIR 1920 SC 1021, M/s. Motilal Padampat Sugar Mills Co. Ltd, v. The State of Uttar Pradesh and others AIR 1979 SC 621, M/s. Jit Ram Shir Kumar and others v. The State of Haryana and another AIR 1980 SC 1285 and The Union of India and others v. Godfrey Philips India Ltd. AIR 1986 SC 806.
26. In our country, the doctrine of promissory estoppel has found acceptance and enforcement in the case of Federation of Pakistan v. Ch. Muhammad Aslam 1986 SCM R 916. In Pakistan v. Salahuddin, PLD 1991 SC 546, Mr. Shafiur Rehman, J. Speaking for the Supreme Court has observed that the doctrine of promissory estoppel is subject to the following limitations, none of which approached in these appeals before us: (1)The doctrine of promissory estoppel cannot be invoked against the legislature or the laws framed by it because the legislature cannot make a representation; (2)Promissory estoppel cannot be invoked for directing the doing of the thing which was against law when the representation was made or the promise held out; (3)No agency or authority can be held bound by a promise, or representation not lawfully extended or given;
(4) The doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and (5)The party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise.
27. The principles laid down in the above decisions are clearly attracted in the facts and circumstances of the present case. In the present case, admittedly the respondent No. 1 sold the said plot in public auction to the petitioner to construct the for-storeyed building. In view of this, the respondents are precluded by the doctrine of promissory estoppel from resuming the said plot.
28. We accordingly allow the Constitution petition and quash the notice. We express no opinion on the rights of the parties under the lease and all other questions argued in this case. They are left open to be decided in the Suit No.1204 of 1991 for damages filed by the petitioner against .The respondents which is still pending adjudication.