Petitioners Haji Muhammad Afzal and 29 others have filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against the Cantonment Board, Sialkot for removing from the field,"... decision of the respondent to dispose of the shops of General Bus Stand.
Sialkot by open auction on 10th February, 1988 and the notice issued thereunder... and the respondents may be directed to hand over the possession of the shops to the petitioners in accordance with the understanding/ commitment which was made at the time of starting the construction of the shops at site which are still allotted in the name of the petitioners and the allotment thereof has not so far been cancelled". Their case is that they were operating their respective kiosks in the premises of General Bus Stand, Sialkot. They had the permission of the respondent-Board to work as above. They are paying the lease money to the Board at the rate of Rs.100 per mensem per kiosk. The respondent-Board raised shops at the site with the understanding and commitment that the shops shall be "given to the petitioners on lease money which is permissible under the law". They have been surprised to learn about a notice appearing in the press to the effect that shops shall be put to auction on 10-2-1988.
2. In addition to controverting the right of the petitioners to maintain this petition under Article 199 of the Constitution the respondent-Board further averred in their written statement that at best the petitioners were licensees under it, they held certain sites on temporary basis and the licences were liable to be terminated at any time without notice, the permission granted them has since been recalled, they have been dispossessed from the site and that although the Board was under no obligation to provide alternative sites to the petitioners yet purely on humanitarian grounds they were accommodated with alternative sites "in the same Bus Stand where the petitioners shifted their Khokhas and are working there".
3. Malik Amjad Pervaiz, Advocate appearing on behalf of the petitioners has raised two-fold argument. According to him, the petitioners were making the payment of lease money to the respondent-Board for the sites where they had placed their kiosks and the provision of alternative sites to them by the Board is tantamount to continuing the relationship which was in existence between the parties prior to the shifting of the kiosks to the present site within the premises of the General Bus Stand. On the preliminary objection raised by the respondent-Board in their written- statement regarding the maintainability of this petition, it was contended that even if they are held to be enjoying the status of licensees yet they are entitled to the issuance of writ/order in the nature of mandamus to the Board, to offer the shops to them as they are "... ready to pay lease money which has been fixed between the petitioners and the respondent alongwith the increase which is permissible under the law".
4. Rana Nasrullah Khan, Advocate for the respondent Board has reiterated the' plea raised on behalf of the respondent-Board that a Constitutional petition is not maintainable. On merits, it is contended that the licences of the petitioners were cancelled by the Board with the result that they are neither entitled to the reliefs as prayed nor to any indulgence in the nature of an offer of sale of the shops being made to them by the Board. He has relied upon sections 114 and 115 of the Cantonments Act (No. II of 1924) to submit that in the absence of any contract in writing between the petitioners and the respondent-Board, the alleged oral agreement to the effect that the said shops shall be given to the petitioners by the Board against the payment of permissible lease money under the law is not binding on the Board.
5. While exercising his right of reply it was submitted by the learned counsel for the petitioners that he has no cavil with the proposition put forward by the learned counsel on behalf of the respondent-Board on the basis of the letter of law contained in sections 114 and 115 ibid. He has, however, relied upon Shaukat Ali v. Commissioner, Lahore Division and others (PLD 1963 (W.P.)
Lahore 127) and Sardar Muhammad Aslam Sial and 3 others v. Government of Pakistan and 3 others (1985 SCM R 9) in support of his plea that the petitioners were entitled to be heard in the matter of cancellation of their licences and as no such opportunity was afforded to them by the respondent-Board, they are entilted to the relief prayed for in the alternative namely to an offer of lease of the shops against the payment of lease money fixed between the parties alongwith the increase which is permissible under the law.
6. The only question which falls for determination in this case is whether in the facts and circumstances of this case the petitioners are possessed of any right to ask for their induction into the disputed shops? Paragraph No.2 of the writ petition contained an averment on behalf of the petitioners that they had installed their kiosks in the premises of General Bus Stand, Sialkot with the permission of the respondent-Board and that `...they are paying the lease-money at the rate of Rs.100 per month to the respondent for the use and occupation ---of the site which belongs to the respondent'. The reply of the respondent to this paragraph is to the following effect:-- "Para. 2 is admitted to the extent that the petitioners occupied certain sites with the permission of the respondent. The permission has since been recalled and the petitioners have been dispossessed from the site which they occupied earlier on which regular shops had been constructed. Although the respondent was under no obligation to give the petitioners alternative sites yet purely on humanitarian grounds, the respondent provided the petitioners with alternative site in the same Bus Stand where the petitioners shifted their Khokhas and are working there. It is not admitted that the petitioners paid any lease money. The receipt appanded to the writ petition itself by the petitioners,- i.e. Annexure B would show that the respondent charged the petitioner, temporary ground rent only. Further Annexures A and B to the writ petition would show that permission was liable to be terminated at any time without notice which was done long time ago."
The case of the respondent-Board has not been shown to be deficient in any measure whatsoever.
There is no contract in writing between the parties to give rise to any claim for its specific performance before the Civil Courts ofpleanary jurisdiction much less before this Court in these proceedings. Refer The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and others (PLD 1958 SC (Pak.) 437), Abdul Hamid Khan v. Settlement and Rehabilitation Commissioner and 2 others (1975 SCM R 406) and Syed Muhammad v. The Settlement and Rehabilitation Commissioner and others (1976 SCM R 61). The objection to the maintainability of this petition appears to be well-taken.
7, Reverting to the argument raised on behalf of the petitioners on the strength of case of Shaukat Ali (supra), it may be noticed at the very outset that this precedent does not advance the case of the petitioners. It had arisen in relation to the grant of a licence by the authorities under the Slaughter of Kine Rules (Punjab). Para. 8 of the report in the case reads as under: "8. It is clear that in the instant case, the Commissioner under rule (v) could only cancel the licence of this shop and had no jurisdiction beyond that. The Commissioner, therefore, has obviously not applied his mind to the facts of the case before him and the law applicable thereto. The tenor of his order shows him to be under an impression that the grant of the licence wad' for the person and not for the shop and that in the exercise of his revisional jurisdiction he could order a person not to sell beef at a particular place without in any way canceling the licence. This is contrary to the rules reproduced above. I have, therefore, no doubt that the Commissioner under the circumstances failed to exercise the jurisdiction vested in him and his order is no order in the eye of law. There are also other errors patent on the face of the order and the learned Commissioner failed to apply his mind to the scope of the revision petition with which he was dealing. He failed to consider that it was directed against the grant of a licence and instead thought that it was against an order rejecting the prior representation of the respondents, although no such petition was competent "
The order of the Commissioner was quashed by issuing a writ of certiorari and a writ of mandamus was issued to the Commissioner to hear the revision petition filed by the private respondents therein and pass an order in accordance with the provisions of rule(v) of the Slaughter of Kine Rules. Here it is not the case of the petitioners that any licence was issued to them by the respondent-Board under the Cantonments Act, 1924. It is trite law that a bare licence i.e. licence which is not coupled with a grant of interest to the licensee remains revocable at the pleasure of the licensor. See Government of Pakistan through Secretary, Ministry of Commerce and another v.
Zamir Ahmad Khan (PLD 1975 SC 667), MA. Naser v. Chairman, Pakistan Eastern Railways and others (PLD 1965 SC 83), Muhammad Hashim v. Zulfiqar Ali Khan, General Manager, West Pakistan, Road Transport Board and others (PLD 1963 (W.P.) Lahore 418) and Ahmad Din v. Abdullah Bhai and others (PLD 1962 (W.P.) Karachi 663).
8. The admitted position that the petitioners are continuing with operating their respective kiosks on the spot can hardly be equated with the conferment of any right on them to successfully claim their induction into the disputed shops and/or with conferring the requisite locus on them to ask for a writ/order in the nature of prohibition to the respondent-Board by this Court from proceeding with the exercise of its authority/jurisdiction to deal with its property in any manner it likes, under section 108 of the Cantonments Act, 1924.
9. For all that has been said above, the instant petition is found to be sans merit and is hereby dismissed leaving the parties to bear their own costs.