Facts of the case out of which this Constitutional petition has arisen are that Bungalows Nos. 59, 59-A and 59-B measuring 2.25 Acres (9105 Sq. Meters) situated at Bank Road, Rawalpindi Cantt. is possessed by the petitioner as an old grant under Governor-General's Order No. 179 dated 12-9- 1936. The petitioner submitted an application on 13-2-1984, seeking permission from the respondents to sub-divide the premises in question into commercial plots. No Objection Certificate as per rules and regulations on the subject was issued by the G.H.Q., which was forwarded to Station Headquarter, Rawalpindi. A copy thereof was endorsed to the respondents Nos.2 and 3. No- Objection Certificate was also issued by respondent No.3 and, hence, the grant of sanction/permission was duly recommended by the said respondents. The price to be paid for the purpose of commercialization was worked out and approved by Q.M.G. at the rate of Rs.871.20 per sq. metre which was the prevalent rate at the time of seeking permission and working out of the commercialization charges. The petitioner was informed about the acceptance of the application filed by the petitioner and was directed to deposit an amount of Rs. 28 lac by way of initial premium in lieu of 1/4th land which had not been surrendered in the A.B.L., Blue Area, Islamabad which money was deposited by the petitioner in the said bank through Pay Order No. 253299/199 dated 15-4-1984, receipt whereof was acknowledged by Q.M.G. --Rawalpindi on 16-4-1984. The case was forwarded to the respondent No.1 for grant of final approval which was granted and the information was duly conveyed to the petitioner. However, before the formal office order could be issued, it appears that some dispute arose with regard to the entitlement of the commercialization price between the Ministry of Defence and the G.H.Q., which dispute was ultimately referred to the Ministry of Finance. Due to pendency of the aforementioned dispute, office order conveying the grant of permission of commercialization was not issued to the petitioner and ultimately on the recommendation of the Ministry of Finance the respondent No.l has passed the following order dated 25-9-1991.
No. 18/156/Lands/84/3711/D-12 ML&C/91 Government of Pakistan, Ministry of Defence, Rawalpindi, the 25th Sept. 1991.
To The Director General Mily Lands and Cantts., Ministry of Defence, Rawalpindi.
Subject: Rawalpindi Cantt Commercial base in respect of Bungalows Nos.59_ 59/A, and 59/B. Bank Road Sir, I am directed to convey sanction of the President to the following measures in Rawalpindi Cantt:-- (i)Resumption of entire area measuring 2.25 acres comprising Survey No. 368 known as Bungalows Nos. 59, 59/A and 59/B situated at the Junction of Bank/Murree and Adamjee Road, Rawalpindi Cantt. at the option of the grantee without payment of any compensation whatsoever and thereby extinguishing old grant rights thereto.
(ii)Segregation of an area measuring 3,738 sq, yds. or 3125.34 sq. metres out of the above said area resumed vide sub-para. (i) above of survey No. 368 thereby decreasing its area from 2.25 acres or 10924 sq. yds. to 7,186 sq. yds. or 6008.21 sq. metres.
(iii)Reclassification under Rule 7 of the C.L.A. Rules, 1937 of the abovesaid area measuring 3738 sq. yds or 3125.24 sq. metres survey No.368 from class B-3 to `C' and placing the same under the management of the Cantt Board, Rawalpindi under section 108 of the Cantt. Act, 1924 for the purpose of parking/Road.
(iv)Sub-division of the remaining area measuring 7,168 sq. yds. or 6,008. 21 sq. metres into 85 plots and creation of separate survey number under rule 3 (2) or (lie C.L.A. Rules 1)37 and allotment thereto survey No3GS/ 1 to 368/8-1 to Plot No.l to 85.
(v)Leasing out the above said 85 plots to Syed Ali Shah in Schedule X (Modified) of the C.L.A. Rules, 7.937 on payment of premium at Rs.20,797.10 per sq. metre, annual ground rent at paisa 30 per sq. metre and development charges at Rs.120 per sq. metre as mentioned hereunder against each:- Plot SubsidiaryArea inRentPremiumDevelopment No. Svy. No.Sq-Metrecharges 1.368/1.71.06Rs.22 Rs.14,77,842Rs.8,527.20 2.368/ 271.06Rs.24 Rs.14 77,842Rs.8,527.20 3.368/371.06Rs.22 R.s.14,77,842Rs.8,527.20 4.368/471.06Rs.22 Rs.14,77,842Rs.8,527.20 5.368/571.06Rs.22 Rs.14,77,842Rs.8,527.20 6.368/671.06Rs.22 Rs.14,77,842Rs.8.527.20 7.368771.06Rs.122 Rs 14,77,842Rs.8,527.20 8.368/871.06Rs.22 Rs.1.4,77,842Rs.8,527.20 9.368/971.06Rs.22 Rs14,71,842Rs.8,527.20 10.368/1071.06Rs:22. Rs.14,77,842Rs.8,527.20 11.368/1171.06Rs.22Rs.14,77,842Rs.8,527.20 12.368/1271.06Rs.22Rs.14,77,842Rs.8,527.20 13.368/1371.06Rs.22Rs.14,77,842Rs.8,527.20 14.368/1471.06Rs.22Rs.14,77,842Rs.8,527.20 15.368/1571.06Rs.22Rs.14,77,842Rs.8,527.20 16.368/1671.06Rs.22Rs.15,12,781Rs.8,728.80 17.368/1771.06Rs.22Rs.14,77,842Rs.8,527.20 18.368/1871.06Rs.22Rs.14,77,842Rs.8,527.20 19.368/1971.06Rs.22Rs.14,77,842Rs.8,527.20 20.368/2071.06Rs.22Rs.14,77,842Rs.8,527.20 21.368/2153.51Rs.16Rs.11,12,853Rs.6,421.20 22.368/2271.06Rs.22Rs.14,77,842Rs.8,527.20 23.368/2371.06Rs.22Rs.14,77,842Rs.8,527.20 24.368/2471.06Rs.22Rs.14,77,842Rs.8,527.20 25.368/2571.06Rs.22Rs.14,77,842Rs.8,527.20 26.368/2671.06Rs.22Rs.14;77,842Rs.8,527.210 27.368/2771.06Rs:22R s.14,77,842Rs.8,527.20 28.368/2871.06Rs.22Rs.14,77,842Rs.8,527.20 29.368/2971.06Rs.22Rs.14,77,842Rs.8,527.20 30.368/3071.06Rs.22Rs.14,77,842Rs.8,527.20 31.368/3171.06Rs.22Rs.14,77,842Rs.8,527.20 32.368/3271.06Rs.22Rs.1.4,77,842Rs.8,527.20 33.368/3371.06Rs 22Rs.14,77,842Rs.8,527.20 34.368/3471.016Rs.22Rs.14,77,842Rs.8,527.20 35.368/3571.06Rs.22Rs.14,77,842Rs.8,527.20 36.368/3671.06Rs.22Rs.14,77,842Rs.8,527.20 37.368/3771.06Rs.22Rs.14,77,842Rs.8,527.20 38,368/3853.51Rs.16Rs.11,12,853Rs.6,421.20
39. 368/3971.06Rs.22Rs.14,77,842Rs.8,527.20
40. 368/4071.06Rs.22Rs.14,77,842Rs.8,527.20
41. 368/4171.06Rs.22Rs.14,77,842Rs.8,527.20
42. 368/4271.06Rs.22Rs.14,77,842Rs.8,527.20
43. 368/4376.92Rs.23Rs.15,99,713Rs.9,230.40
44. 368/4464.37Rs.20R!s'13,38,709Rs.7,724.40
45. 368/4571.06Rs.22Rs.14,77,842Rs.8,527.20
46. 368/4671.06Rs.22Rs.14,77,842Rs.8,527.20
47. 368/4771.06Rs.22Rs.14,77,842Rs.8,527.20
48. 368/4871.06Rs.22Rs.14,77,842Rs.8,527.20
49. 368/4971.06Rs.22Rs.14,77,842Rs.8,527.20 50, 368/5071.06Rs.22Rs.14,77,842Rs.8,527.20
51. 368/5171.06Rs.22Rs.14,77,842Rs.8,527.20
52. 368/5271.06Rs.22Rs.14,77,842Rs.8,527.20
53. 368/5371.06Rs.22Rs.14,77,842Rs.8,527.20
54. 368/5471.06Rs.22Rs.14,77,842Rs.8,527.20 55, 368/5571.06Rs.22Rs.14,77,842Rs.8,527.20
56. 368/5671.06Rs.22Rs.14,77,842Rs.8,527.20
57. 368/5771.06Rs.22Rs.14,77,842Rs.8,527.20
58. 368/5871.06Rs.22Rs.14,77,842Rs.8,527.20
59. 368/5971.06Rs.22Rs.14,77,842Rs.8,527.20
60. 368/6071.06Rs.22Rs.14,77,842Rs.8,527.20
61. 368/6171.06Rs.22Rs.14,77,842Rs.8,527.20
62. 368/6271.06Rs.22Rs.14,77,842Rs.8,527.20
63. 368/6371.06Rs.22Rs.14,77,842Rs.8,527:20
64. 368/6471.06Rs.22; Rs.14,77,842Rs.8,527.20
65. 368/6571.06Rs.22Rs.14,77,842Rs.8,527.20
66. 368/6671.06Rs.22Rs.14,77,842Rs.8,527.20
67. 368/6771.06Rs.22Rs.14,77,842Rs.8,527.20
68. 368/6871.06Rs.22Rs.14,77,842Rs.8,527.20
69. 368/6971.06Rs.22Rs.14,77,842Rs.8,527.20
70. 368/7071.06Rs.22Rs.14,77,842Rs.8,527.20
71. 368/7167.72Rs.20Rs.14,08,380Rs.8,126.40
72. 368/7276.08Rs.23Rs.15,82,243Rs.9,129.60
73. 368/7371.06Rs.22Rs.14,77,842Rs.8,527.20
74. 368/7471.06Rs.22Rs.14,77,842Rs.8,527.20
75. 368/7571.06Rs.22Rs.14,77,842Rs.8,527.20
76. 368/7671.06Rs.22Rs.14,77,842Rs.8,527.20
77. 368/7771.06Rs.22Rs.14,77,842Rs.8,527.20
78. 368/7871.06Rs.22Rs.14,77,842Rs.8,527.20
79. 368/7971.06Rs.22Rs.14,77,842Rs.8,527.20
80. 368/8071.06Rs.22Rs.24,77,842Rs.8,527.20
81. 368/8171.06Rs.22Rs.14,77,842Rs.8,527.20
82. 368/8271.06Rs.22Rs.14,77,842Rs.8,527.20
83. 368/8371.06Rs.22Rs.14,77,842Rs.8,527.20
84. 368/8471.06Rs.22Rs.14,77,842Rs.8,527.20
85. 368/8571.06Rs.22Rs.14,77,842Rs.8,527.20 Total:Rs.1,856 Rs.12,49,39,202Rs.7,20,903.60 GrandTotalRent,PremiumandDevelopment Charges: =Rs.12,56,61,967,60 (Rupees twelve crore, fifty-six lac, sixty-one thousand, nine hundred and sixty-seven and paisa sixty only)
2.All the essential formalities will be completed within a period of six months from the date of issue of this letter.
Your obedient servant (Sd.)
(Nazir Ahmad Nasim)
Section Officer, Govt. of Pakistan.
According to the aforementioned order the petitioner has been allowed the lease of 85 plots on payment of Rs.20,797.10 per sq. metre annual ground rent at paisa 30 per sq. metre and development charges at Rs.120 per sq. metre. It has further been directed that the fold grant stands extinguished. Legality and vires of this order has been challenged by the petitioner through this Constitutional petition.
2. Written statement has been filed by the respondents and most of the facts as alleged in the writ petition have been admitted. However, the respondents have taken the stand that the rate fixed as Rs.20,797.10 per sq. metre instead of Rs.871.20 has been fixed as per policy enunciated in the Government Letter dated 1-8-1989. In the written statement a plea has also been taken that the case of the petitioner having not been finalized prior to the date of issuance of the new policy letter dated 1-8-1989, referred to , above whereby enhanced rate was fixed., the rate fixed in the impugned order is un-exceptionable. With regard to the allegation of discriminatory treatment, it has been alleged that the lesser rate has been applied in those cases which were finalized prior to the date of application of the enhanced rates in the year 1989, therefore, it is not a case of discriminatory treatment meted out to the petitioner. It has been prayed, therefore, the writ petition may be dismissed.
3. Raja Muhammad Anwar, Senior Advocate learned counsel for the petitioner has raised the following contentions: (i)That the cases of the petitioner having been initiated in the year 1984 and finalized in the year 1986 by grant of approval by respondent No.l and the petitioner having deposited the initial premium in the year 1984, the enhanced and revised rate which was enforced in the year 1989 is not applicable to the case of the petitioner inasmuch as under the law, the petitioner is entitled to pay the rate which was prevalent on the date of submission of application and not the one which was enforced subsequently. In support of his contentions, learned counsel has placed reliance on the law declared in the following cases: (1)Sutlej Cotton Mills Ltd., Okara v. Industrial Court, West Pakistan, Lahore and others (PLD 1966 SC 472).
(2) Mian Rafi-ud-Din and six others v. The Chief Settlement and Rehabilitation Commissioner and two others (PLD 1971 SC 252).
(3)Brig. (Retd.) F.N. Ali and another v. The State (PLD 1975 SC (4)The Karachi Development Authority Karachi v. Works Co-operative Housing Society, Karachi and another (1978 SCMR 307).
(5)Works Co-operative Housing Society, Karachi and another v. The Karachi Development Authority (PLD 1978 Karachi 529).
(ii)That the respondents have granted permission of commercialization to other persons regarding properties similarly almost situated in or around the year 1984 at the rate which was prevalent before 1989 but has applied a different rate to the petitioner and in this manner treatment of the petitioner being discriminatory the impugned order is illegal and without a lawful authority.
Reliance in this behalf has been placed on case of Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another (PLD 1990 SC 295) and Government of Pakistan through Secretary Ministry of Religious Affairs, Islamabad and three others v. Zafar Iqbal and 3 others (1992 CLC 219).
(iii)That approval for commercialization at the rate of Rs. 871.20 per sq. metre having been granted by respondent No.l which rate had been worked out by Q.M.G. which is the competent authority and the petitioner having deposited the initial premium under the principle of "promissory estoppel", respondents had no lawful authority to withdraw or alter the previous order and to pass the impugned order which is harsh discriminatory and hence is without a lawful authority. Reliance is placed on case of Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others (PLD 1991 SC 546).
Elaborating his argument, learned counsel has vehemently contended that the facts being admitted, the impugned order on the face of it is illegal and without a lawful authority and therefore, is liable to be declared as such and the petitioner is entitled to the commercialization of his premises at the rate- of Rs.871.20 per sq. metre. .
4. As against the above arguments, addressed by the learned counsel fox the petitioner, Mr. Mansoor Ahmad, learned counsel for the respondents has contended that although most of the facts as alleged by the petitioner in writ petition stand admitted in the written statement comments submitted by the respondents, yet the ultimate order having been passed after 1989, the rate for commercialization of premises in question could not have been fixed as Rs.871.20 per sq. metre inasmuch as at that' time the prevalent rate as fixed in letter Dt: 1-8-89 was Rs.20,797.10 sq. metre, and not Rs.871.20, therefore, there is nothing wrong with the impugned order wherein the prevalent rate is fixed. It has further been contended that the cases where in lesser rate was charged, were finalized prior to 1989 and, therefore, it cannot be said that the petitioner has been treated discximinately..It is, therefore, prayed that the writ petition may be dismissed as having no force.
5.1 have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Admittedly the premises in question are held by the petitioner as an old grant since 1936. Application for dividing the premises in question into commercial plots was submitted on 13-2-1984. No-Objection Certificate was issued by G.H.Q. as well as by the Cantonment Board, respondents Nos.2 and 3. The price was determined at the prevalent rate of Rs.
871.20 which information was conveyed to the petitioner who deposited the initial premium in lieu of 1/4th of the land not surrendered through pay order dated 15-4-1984 drawn by Allied Bank Limited, Blue Area, Islamabad, receipt whereof was duly acknowledged by Q.M.G., G.H.Q., Rawalpindi. This pay order was drawn on Q.M.G. personal ledger account as desired. This fact is supported by the letter which is Annexure `D' on the paper book and has also been admitted as correct by the respondents in their written statement. It also stands established on the record that the case was referred to the Ministry of Defence and the Secretary, Ministry of Defence had granted the sanction for commercialization and division of the property in question into commercial plots. It is thereafter that some dispute appears to have arisen with regard to the inter se entitlement of the G.H.Q. and the Ministry of Defence with regard to the receipt of the amount of commercialization which appears to have been referred to Ministry of Finance who instead of deciding the matter in issue recommended the respondent No.l to resume the grant in question and to allow the division of the property in question into 80 plots and charge the commercialization price at the rate of Rs.20,797.10 on the basis of which recommendation respondent No.l has passed the impugned order.
6. In case of "Sutlej Cotton Mills Ltd, Okara" referred to supra, where question arose as to whether an appeal, filed from an order of tribunal, where leave to appeal had been granted before commencing day of Constitution of 1962, had abated; as Article 58 of the new Constitution was not retrospective in operation. Their Lordships of the Supreme Court at page 474' of the report held as under:- "The question here is whether the position would be the same if only the petition for special leave is filed before the relevant date. The answer to this question will depend upon whether the appeal by special leave allowed under Article 160 of the late Constitution was in the nature of a right of mere matter of procedure. Article 160 of the late Constitution, in our opinion, was not a mere procedural provision, it gave to a person aggrieved by an order of any Court or Tribunal the right to approach this Court for special leave even in cases where ordinarily no appeal lay. It was a valuable right and not a mere matter of procedure. This right the appellant in this case certainly had vested in him on the day he filed his petition in this court and if the petition was heard on that day the objection now raised would not have been available. Can this right be now denied to him merely because in the ordinary course of business of this Court the petition came up for hearing later? should the proceedings commenced for the enforcement of a right which had already accrued to the appellant before the commencing day be not continued as if the Laws (Continuance in Force)
Order, 1958 had not been repealed even under Article 250 of the new Constitution? In our view a vested right cannot be so taken away for the appellant had a right to have his petition heard on the basis of the law prevailing on the day he filed his petition_ In case of "Works Co-operative Housing Society", Karachi and another (supra), where question arose with regard to the applicability of rates of payment of development charges in a housing scheme, their Lordships have held that the rates prevalent at the commencing date have to be charged and not the higher rates determined subsequently. At pages 534 and 535 of the report it has been held as under:- "We may now deal with the second and the final question with regard to the price of land to be charged from the petitioner-society. According to Mr. Shamsul Haq Memon, the price payable must be determined according to the rates prescribed by the Government of Pakistan in the notification dated 18th July, 1966 appearing in the Gazette of Pakistan, dated 5th August 1966. On the other hand, Mr. Brohi contended that the Society cannot be charged any higher rate than the one prevalent at the time when allotment of the area was made to the petitioner-Society. In this behalf he pointed out that during the relevant period, the rate to be charged was Rs. 8.50 per sq. yard for residential plots of 120-400 sq. yds. and Rs. 10.50 per sq. yds. for plots of 600 sq. yds. and above. There is no controversy as to these rates being prevalent during the relevant period; the question is whether the KDA is entitled to charge the higher rates which were determined subsequently. We feel that in view of the directions given by their Lordships of the Supreme Court that the KDA has to honour the commitments made by the Central and Provincial Governments to the petitioner Society, as expressed in Notification dated 9th June 1964, we have got to implement those orders in the Light of the rates and the charges that were prevalent on 9th June, 1964. The precise directions in the judgment of the Supreme Court of Pakistan dated 30-5-196R reads as follows;- `We, therefore, allow this appeal and issue a direction to the KDA that they should honour the commitment of the Government expressed in the notification of the Provincial Government dated 9th June, 1964, in respect of the commitment to the appellant society and not to depart from the direction given in that notification, so long as it' stands intact: The words "so long as it stands" have also been clarified by their Lordships of the Supreme Court in their subsequent judgment dated 30-1-1969. The opinion of the Court was expressed by Mr. Justice Hamoodur Rehman, the Chief Justice of Pakistan in these words:- `in my view the words "so long as it stands" occurring in the last paragraph of the judgment in the appeal means no more than this that since the relevant provisions of the notification dated 9-6- 1964 had not been altered till then the commitment subsisted and the appellant Society was entitled to the allotment. It could never have been the intention of this Court to give to the Provincial Government a right to amend the notification in such a way as to nullify its own judgment. I am, therefore, of the view that the construction sought to be placed by the Development Authority on this portion of the judgment of Court is wholly unjustified and unwarranted. With these observations I would send back the case to the High Court to deal with this under Order LXV, rule 14 read with section 151 of the C.P.C.. The costs of these proceedings in this Court will abide the result of the proceedings in the High Court.'
We have, therefore, no hesitation in reaching the conclusion that the price and other charges payable by the petitioner-Company for the land must be governed by the rates that prevailed on the 9th June 1964."
In case of "Brig. (Retd.) F.B. Ali and another" (supra) at page 542 of the report where question arose as to under what law writ petition is to be decided, their Lordships have held as under:- "Apart from this question also arises as to whether this amended clause at all applies to the cases of the appellants, as the amendment, which received the assent of the President on the 4th May, 1972, has not been given retrospective effect. The amended writ petition was filed in the High Court on the 25th April, 1972 before the Constitutional Amendment came into force. The writ petition had. therefore. to be decided according to the law prevailing on 25 April. 1972, as held by this Court in the case of Sutlej Cotton Mills Ltd.. Okara v. Industrial Court West Pakistan (3)."
In case of "The Karachi Development Authority, Karachi " (supra) where question involved was about the determination of the price for the area allotted to the respondents-Society, it has been held that charging of price at the rates prevailing on the date of actual delivery of possession and not the rate which were prevalent at the time of passing of order of allotment were inconsistent with equity, justice and good conscience when the delivery of possession had been delayed due to the ad of the petitioner. At pages 310 and 311 of the report it has been held as under:-- "As to the price payable, the learned Judges in the High Court after considering circumstances of the case, came to the conclusion that the price and the other charges payable by the Society for the land must be governed by rates prevailing on the 9th June, 1964.th Mr. S.M. War, learned counsel for the authority relied on the first condition in the notification of 9th June, 1964 which provides:- "The scheme shall be
(i) "self-financing the entire cost being recoverable from the allottees."
It was argued that it was implicit in this provision that the price payable was subject to variation depending upon what would be the cost of development at the relevant time. It is, however, not controverted that the actual delivery of the area allotted has been delayed due to shifting positions taken by the authority from time to time which, to say the least, were not tenable and it would be inconsistent with equity, justice and good conscience to saddle the society with the additional burden for the commission and omissions of the authority."
6. Respectfully following the law declared in the aforementioned judgments and keeping in view the admitted facts of this case, I hold that the petitioner was entitled to the grant of division/commercialization of his premises at the rate which was prevailing before 1989 i.e. Rs.871.20 per sq. metre which rate had already been determined by the competent Authority in the year 1984. Issuance of formal office order was delayed by the respondents due to no fault on the part of the petitioner. Charging of the price at an enhanced rate merely for the reasons that the formal order had been passed/issued in the year 1991 due to the lapse on the part of the respondents will not entitle them to charge at an enhanced rate subsequently enforced.
7. It is an established proposition of law that public functionaries and the statutory bodies while dealing with the subjects have to act justly and fairly in accordance with law and are bound to stand by their commitments as in case of failure of the public functionaries and the statutory authorities to stand by their commitment results in undermining the confidence of the public in the said bodies which is not permissible under the Constitution of Islamic Republic of Pakistan, 1973. In case of Bashir Ahmad Bilour v.M. C., Peshawar and 3 others (PLD 1976 Pesh. 1) when a contract to collect octroi instead of giving to the highest bidder, was given through private negotiations and highest bid was not accepted by the Provincial Government who had 'to grant approval thereof without issuing any notice to the highest bidder their Lordships struck down negotiated contract and held that the action of the statutory body was not only repayment to the law but is also manifestly unjust and designed to undermine public confidence. This judgment was challenged before the Hon'ble Supreme Court of Pakistan and was upheld by their Lordships of the Supreme Court in case of Arsallah Khan v. Bashir Ahmad Balour and 3 others (PLD 1976 SC 581) Similarly in case of "Pakistan through Secretary, Ministry of Commerce and 2 others" (PLD 1991 SC 546) (supra), their Lordships of the Supreme Court of Pakistan have held that principle of promissory estoppel "is applicable to the executive" and "statutory authorities" except in those cases which fall within the exceptions enumerated in the said judgment. At pages 555 to 557 of the referred case it has been held as under:-- "What distinguishes the appeals now before us is that it is not the case of the Government itself that the non-repatriable Investment Scheme was in any manner or to any extent beyond the competence of the Government of Pakistan or against the Laws of the Land. Therefore, the Scheme, the terms thereof and the inducement therein were in accord with law, were in advancement of public policy and had been presented by the competent authority. Inducing thereby Pakistanis, living and 'earning abroad to invest in machine of the req6ired description. By providing that no sanction of any sort would be needed after a No-Objection Certificate had been granted and the practice having been so observed, it cannot be said that in those cases where the "No-Objection Certificate" had been granted any further impediment remained. Making of an application to the Chief Controller of Imports and Exports and getting an import licence from him was a consequential formal step and no discretion as such was involved where bona fide No-Objection Certificate was held by an applicant. The contention of the learned Deputy Attorney-General that the doctrine of promissory estoppel does not extend to legislative, executive or sovereign functions of the State is correct to the extent that it does not indeed extend to legislative and sovereign functions, but executive actions are not excluded from the operation of the doctrine. The learned Deputy Attorney General has basically relied for his contentions on the decision given in Ram Niwas Gupta and others v. State of Haryana through Secretary Local Self ' Government Chandigarh and another AIR 1970 Punjab and Haryana 462 which was approved by the Indian Supreme Court in the case of M/s. At Ram Shiv Kumar and others AIR 1980 SC 1285, but both these decisions were overruled by the Indian Supreme Court itself in Union of India and others v. Godrey Philips Ltd. AIR 1986 SC 806, and the following observations were made in para 12 of the judgment which are relevant:-- "There can therefore be no doubt that the doctrine of promissory estoppel is applicable against the Government in exercise of governmental, public or executive functions and the doctrine of executive necessity or freedom of future executive actions cannot be invoked to defeat the doctrine of promissory estoppel. We must concede that the subsequent decision of this Court in Jit Ram v. State of Haryana (1980) 3 SCR 689. AIR 1980 SC 1285 takes a slightly different view and holds that a doctrine of promissory estoppel is not available against the exercise of executive functions of the State and the State cannot be prevented from exercising its functions under the law. This decision also expresses its disagreement with the observations made in Mod Lal Sugar Mills' case AIR 1979 SC 621 that the doctrine of promissory estoppel cannot be defeated by invoking the defence of executive necessity, suggesting by necessary implication that the doctrine of executive necessity is available to the Government to escape its obligation under the doctrine of promissory estoppel. We find it difficult to understand how a Bench of two Judges in At Ram's case could possibly overturn or disagree with what was said by another Bench of two judges in Mod Lal Sugar Mills' case. If the Bench of two Judges in At Ram's case found themselves unable to agree with law laid down in Moti Lal Sugar Mills' case they could have referred At Ram's case to a larger Bench, but we do not think it was right on their part to express their disagreement with the enunciation of the law by a co-ordinate Bench or the same Court in Mod Lai Sugar Mills".
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 SCMR 916.
A very appropriate case from the Indian jurisdiction is Union of India v. M/s. Anglo-Afghan Agencies, AIR 1968 SC 718 wherein an export incentive scheme had been notified to the public under the same section 3 of the Imports and Exports (Control) Act, 1947 by the Export Promotion Bureau of the Indian Government. After the party had acted on the inducement, satisfied the required condition, there was an attempt to resile. The relief was granted in that case in terms of the representation as hereunder reflected in para 23- of that judgment; "Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct, it cannot on some undefined and undisclosed ground of necessity or expediency failed to carry out the promise solemnly made by it, nor claim to be the Judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen. We agree with the High Court that the impugned order passed by the Textile Commissioner and confirmed by the Central Government imposing cut in the import entitlement of the respondents should be satisfied and quashed and thar the Textile Commissioner and the joint Chief Controller of Imports and Exports be directed to issue the respondents Import Certificate for the total amount equal to 100 per cent of the f.o.b value of the goods exported by them unless there is some decision which falls within clause 10 of the Scheme in question."
17.The doctrine of promissory estoppel is subject to the following limitations, none of which is attracted 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."
8. From the facts which are almost admitted it stands established that the application of the petitioner for seeking division of the property in question into commercial plots was dealt with granted at the rate of Rs.871.20 per sq. metre during the years 1984 to 1986. Decision was duly conveyed to him. He deposited the amount of initial premium as per demand of the respondents.
Applying the principle of promissory estoppel as laid down in the case of "Arsalla Khan" (PLD 1976 SC 581) (supra) as this case does not fall within any of the exceptions, the respondents are estopped to enhances the rate or to direct the resumption of the property in question and alter or modify the order of commercialization merely because the matter has been pending with them.
Admittedly due to internal dispute, the finalization of the case was delayed which dispute has got no relevancy with regard to the matter in issue and at any rate the petitioner cannot adversely suffer due to delayed disposal of his application. Therefore, I hold that respondents were estopped to pass the impugned order and demand price for commercialization at an enhanced rate.
9. The respondents have not denied that similarly placed plots/property have been allowed to be sub-divided/commercialized during the years when the petitioner had applied for the same at a lesser rate which was prevalent at that time. Delaying the issuance of formal office order reflecting the permission of commercialization does not change the position and status of the petitioner's case which is at par with the cases referred to above which have allowed to be commercialized at lesser rates. As per Article 4 read with Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 . it is the fundamental right 'of the petitioner to be dealt with equally in accordance with law.
Vide the impugned order the petitioner is being allowed commercialization at an exorbitant rate which was not prevalent at the time of filing of the application by the petitioner. If the respondents have failed to finalize the matter, the petitioner cannot suffer, therefore, the impugned order is discriminatory and being violative of the provision of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 is not sustainable in law as held in cases of "Shrin Munir and others" (PLD 1990 SC 295) and "Government of Pakistan through Secretary Ministry of Religious Affairs and 3 others" (1992 CLC 219) (supra).
Resultantly, I accept this writ petition and declare that order dated 25-9-1991 passed by respondent No-1 is illegal and is without a lawful authority and held that petitioner is entitled to the grant of division/commercialization of his premises at the rate of Rs. 871.20 per sq. metre is originally determined by the O-ht-C The parties are left to bear their own costs.