1. ' This application has been moved by the plaintiff under Order XXXIX, Rules 1 and 2 read with sections 94 and 151, C.P.C. Praying, that the defendants be restrained from acting in pursuance to their letter, dated 3-11-1999 or disturbing or interfering with their peaceful possession or cancelling the lease, dated 6-2-1967.
2. ' The suit has been filed by the plaintiffs that, they are the owners and are in possession of a bungalow situate on Plot No,AA-2/A, (Survey No,26), Sunset Boulevard, Phase-II, Defence Housing Authority, Karachi being a plot of unique location, that it is a single identifiable plot, being an island, surrounded by roads all round. The said plot is bounded by, on the North by 40 feet wide South Park Street, on the South by 129' wide Sunsent Boulevard, on the East by 60' wide South Park Avenue and on the West by 40' wide South Park Street. The plaintiffs are in possession since 13-8-1995 upon purchase, through a registered conveyance deed from Mrs. Suraiya Sultan. It is the case of the plaintiff, that the said plot was allotted to one Col. Sultan Muhammad Khan. Sub-lease in Form "A" was granted to Col. Sultan Muhammad Khan, pursuance to the resolution of 27-9-1963. Upon lease in Form "A" dated 12-3-1963 being granted, the said Col. Sultan Muhammad Khan entered, upon the said plot and being given possession, constructed a bungalow thereon. In the sub-lease in Form "A", the plot was shown to measure 2600 square yards and bounded by the same roads aforestated. Subsequently, the said plot of land with construction thereon was gifted by Col. Sultan Muhammad Khan to his wife Mrs. Suraiyya Sultan which transfer was also granted. Upon the transfer in the name of his wife Mrs. Suraiyya Sultan, after completion of the said house constructed by said Col. Sultan Muhammad Khan, Mrs. Suraiyya Sultan applied to the Military Estate Officer (MEO), Karachi, who acts on behalf of the President of Pakistan, for the purposes of granting a lease, to lease out the aforesaid property in her favour. The President of Pakistan through the Military Estate Office, leased out the said property to said Mrs. Suraiyya Sultan wife of late Col. Sultan Muhammad Khan by an indenture of lease in Form "B", which was duly registered at No,132 at pages 152 to 157, Volume 21 of Book No,1 (additional) with the Registrar "T" Division, Karachi on 21- 2-1968. There is a certificate on the record as stated by the plaintiff, that the building was constructed on Plot No,A-2/A, Sunset Boulevard, Pakistan Defence Housing Society, Karachi and the construction was completed on 31-3-1966 and all offences of erection of building without approval were sanctioned by the Cantonment Board and were duly compounded.
3. ' It is the case of the plaintiff, that the said plot of land being A-2/A has been duly defined in the lease granted by the President of Pakistan in favour of said Mrs. Suraiyya Sultan which, clearly stipulates the fact that the said plot is surrounded on all sides by roads aforementioned. The plaintiff states that they continued to sit in the said premises, initially as tenants since October, 1974 and that, the said property was declared by the said Mrs. Suraiyya Sultan to have been possessed and she was entitled to the said plot of land bearing No,A-2/A, Sunset Boulevard, Defence Housing Society and was represented to be 2600 square yards or thereabout. It was stated that they had in their possession, since then the entire property which, in 1995, the plaintiff purchased by a deed of conveyance and that the same representation was made, that, the said plot of land with all construction thereon with the boundary wall in which they continued to sit since 1974 was being purchased as having been duly leased out to the said seller. The site plan approved by the Defence Housing Society, as it was then clearly showed that the Plot bearing No,A-2/A was bounded by roads all around and has been stated to be 2600 square yards. It has been duly signed by the Secretary and Planning Officer of the Society. The approved site plan has not been denied.
4. According to the plaintiff they had purchased the said plot under a bona fide belief that the entire property that was bounded by the roads with a boundary wall constructed since the time the plaintiff was in possession, was 2600 square yards without any objections raised by any authority or department of any kind against the seller and that there was no notice or objection prior to their being in possession, by the Defence Housing Society/Authority, MEO or the Clifton Cantonment Board at any stage whatsoever. It is the case of the plaintiff, that in accordance with the law they proceeded to have the property duly mutated with the Military Estate Office, Karachi and the Clifton Cantonment Board. The property was mutated in their favour. However, when they proceeded to have their names recorded with the Defence Housing Authority, which they call as mutation, they took a view, that the area in occupation is not 2600 square yards but is 3728 square yards and issued a notice, therefore, directing the plaintiff to vacate 1128 square yards which was, according to them in unlawful possession of the plaintiff. The plaintiff states that on the plot of land the construction is raised in such a way that there is no way without actually destroying some or the other construction that the said 1128 sq. Yds. Could be separated. The belief of the plaintiffs was genuine, that once the construction is being raised, there is inspection by the defendant. After the construction there is an inspection. The boundary wall was in existence, there could be no doubt that the measurement on ground could have been different than what had been stated in the two leases. This is especially when the approved site plan showed only one plot of land which was the one being purchased by the plaintiff. If the measurement made by the defendant was incorrect in 1966, thereafter when the sub-lease was executed, when the lease was executed, it was naturally meant to be given to the original owner, and the purchasers being bona tide purchasers of the plot for value, without notice, the act of the defendant is unlawful. In the letter addressed to the plaintiff, directions were given, that, in the event it is not acted upon by 14th September, 1999, the Authority, the defendant shall take appropriate actions. A legal notice was, therefore, sent by the plaintiff to the defendant stating therein all facts and requiring them to withdraw the notice of 7-8-1999 as they were in possession of the said premises lawffilly and had purchased the same under a bona tide belief that the entire property that was shown in the approved site plan as also the area map of the defendant was in lawful possession of the said Mrs. Surraiya Sultan.
5. ' An additional question, during the course of the argument has arisen also, whether the Pakistan Defence Officers Housing Authority was authorized to require the lessees having entered into a lease with the President of Pakistan, to have their names mutated or recorded with them, or whether such mutation called for by the Defence Housing Authority was unlawful.
6. ' Mr. Nazar' Hussain Dhoon 'has presented his case in a different perspective, that, they are only requiring the plaintiff to return the additional piece of land and that if they do so they shall not proceed to cancel the lease, else all actions shall be taken by them in accordance with law, which could also include cancellation and termination of the lease due to unlawful action and authority of the said plaintiff.
7. ' Before I proceed to look into the position whether an injunction can be granted, it is of utmost necessity, that the powers, or authority of the Defence Housing Authority be looked into. The Pakistan Defence Housing Authority was created as an Authority under Presidential Order 7 of 1980.
8. The said Authority was made to replace the Pakistan Defence Officers Housing Society, which was registered under the Cooperative Societies Act, 1925. The Authority, thus, created was to take over the existing Society alongwith all powers functions, assets including the specified area, meaning the land that was acquired by or leased to the Society before the coming in force of the Presidential Order No,7 of 1980. The said Presidential Order No,7 of 1980 in Article 17 caused the dissolution of the Society alongwith all Executive Committees, Clubs, Foundation together with its Board of Governors. Upon dissolution of the said Society the various assets, contracts, leases etc., pending disputes appeals, legal proceedings transfers, allotments etc. Were, therefore, caused to be vested in the Authority thus 'formed.
9. ' The Authority was to be managed by a Governing Body in accordance with Article 5 of the said Order. In Article 5(2), it is provided that there shall be an Executive Board consisting of the Corps Commander posted at Karachi as its President, a serving Naval Officer not below than a rank of Commodore, a serving Air Force Officer not below than a rank of Air-Commodore, a serving Army Officer not below than a rank of Brigadier, the Administrator and co-opted members to be appointed by the Executive Board for a period not exceeding two years at a time without a right of vote.
10. ' The Executive Board has been granted various powers, authorities and functions, in discharging such functions. The Board is required to act on sound principles of development, Town Planning and Housing and are to be guided on the questions of policy by such directions as are given by the Governing Body. In fact, the Governing Body has powers to delegate their powers to the Executive Committee. Article 9 of the said Presidential Order No,7 of 1980 reads as under:--
9. "Powers, duties and functions of Executive Board.---(1) Subject to other provision of this Order, the Executive Board may take such measures and exercise such powers as may be necessary for carrying out the purposes of this Order.
(2) Without prejudice to the generality of the foregoing powers, the Executive Board may--
(ii) acquire any land in accordance with the law for the time being in force in the Province of Sindh;
(ii) undertake any works in pursuance of any scheme or project; ' incur any expenditure; Procure plant, machinery, ' instruments and materials; ' impose and recover, alter, vary or enhance development charges, instalments, cost of apartments, housing units of scheme and projects and transfer fees and other charges; ' enter into and perform all such contracts on behalf of the Authority as it may consider necessary; ' retain, lease, sell, exchange, rent or otherwise dispose of any land vested in the Authority; ' cancel any housing unit in a planned housing project or scheme either in default of payment of instalments called, for or on violation of any terms and conditions for such project or scheme by allottees, transferees or lessees; and
(ix) do all such acts, deeds and things which may be necessary or expedient for the proper planning and development of the specified area.
(3) No master plan, planning or development scheme shall be prepared by any local body or agency for the specified area without prior consultation with, and approval of the Executive Board.
10. Powers of the Executive Board to raise funds. ---The Executive Board may raise funds for the purpose of raising its working capital in such manner as it may think proper, through loans or levy of any charges which may be prescribed by it under the rules."
11. ' The Administrator is the Chief Executive of the Authority as provided in Article 11 of the said Order, which reads as under: "11. Administrator, his duties, functions and powers.- (1) The Administrator shall be the Chief Executive of the Authority and shall exercise all executive powers, delegated or otherwise, in accordance with the policy laid down by the Governing Body and the directions or decisions of the Executive Board subject to the provisions of this Order, the rules and regulations.
(2) The Administrator shall, either by himself or through an officer appointed by the Executive Board in this behalf, carry on the correspondence of the Authority and shall sign, verify, pursue and tile all plaints, written-statements, appeals, affidavits, petitions, applications, Vakalatnamas and such other documents on behalf of the Authority in any Court, Tribunal or authority, in the prosecution or defence of any suit, appeal, petition and proceedings which may be instituted by or against the Authority in or before any Court, Tribunal or Authority."
12. ' From the Presidential Order No,7 of 1980. No details as regards the holdings or otherwise of land has been mentioned except, that the words "specific area" has been defined to mean all lands acquired by or leased to the Society in any Manner before the commencement of this order and includes any land that may be acquired by or leased to the Authority after such commencement.
13. The Executive Committee was, however, by the present Presidential Order No,7 of 1980 authorised as under: "(i) Cancel such allotments which were made or issued in contravention of the bye-laws of the Society or the resolution of the Managing Committee of the Society;
(ii) alter the area of any plot involving duplicate allotments and re-allot the same in such manner as it may consider appropriate; and
(iii) pass such orders in respect of transfer of plots involving duplicate allotments as it may deem fit.
18. Power to cancel allotments, etc.--- (1) The Executive Board may cancel any allotment, transfer, licence or lease in respect of any plot or housing unit in any project or scheme in the specified area if the allottee, transferee, licensee or lessee fails to pay the dues or instalments including development charges in respect of such plot or housing unit, within six months from the date of receipt of the demand in writing or within such extended time as the Executive Board may, in special case, fix and thereupon the plot or the housing unit, with or without construction thereon, shall be resumed by the Authority.
(2) When a plot or a housing unit is resumed by the Authority under clause (1), the Authority shall sell it by public auction or otherwise and refund the sale proceeds, after deducing its dues and the expenses incurred on the public auction, to the defaulting allottee transferee, licensee or, as the case may be, lessee."
14. ' In the present case, we need to see how the said Presidential Order 7 of 1980 would be applicable and to what extent. The lease granted by the President of Pakistan through the Military Estate Officer has not been .Denied by the defendants as such it could be read as containing the true and correct facts. It will be important to reproduce certain portion of the admitted lease in Form 'B' which may be crucial for the purposes of determining the rights of the parties. The relevant portions are reproduced as under:- "This lease made the sixth day of February, 1967 between the President of Pakistan (hereinafter referred to as the 'lessor' which expression shall where the context so admits include his successor- in-office and permitted assigns) of the one part and the Pakistan Defence Services Officers Cooperative Housing Society Limited, Karachi, being a Society registered under the Bombay Cooperative Societies Act, 1925 (Bombay Act 7 of 1925) and having its registered office at Karachi (hereinafter called the 'Society' which term shall where the context to admits include his successors, executors, administrators, representatives, and assigns) of the second part.
15. ' And Mst. Surayya Sultan w/o Lt.-Col. Sultan Mehmood (hereinafter called the ' Lessee' which term shall where the context so admits include his heirs, successors, executors, administrators, representatives, and assigns of the third part.
16. ' Whereas by a Deed of Lease dated 31-7-1956 and 19-4-1965 and 19-3-1966 and 3-12-(sic)
17. (hereinafter called the lease executed between the lessor and the Society in the lease described respectively as the lessor and the lessees) the Lessor has granted a lease to the Society to enter upon an area of the land measuring 768.431 acres or thereabout therein described for the purpose of developing it and constructing buildings thereon in the manner and on the t'6rms and conditions therein contained.
18. ' And whereas in pursuance of clause 14(1) of the lease document the Society by a deed, dated 12- 3-1963 (hereinafter called the sub-lease form ' A' granted up to the sub-lease to enter upon a plot of land bearing No,AA-2/A, Sunset Boulevard (Survey No,26) measuring 2600 square yards or thereabout, hereinafter described, for the purpose of constructing a building there in accordance with the terms and conditions contained therein and in the lease which provides that the sub- lessee shall upon the construction of the building and upon payment of certain development charges to the Society be granted a lease by the lessor in respect of the said plot in Form 'B'
19. (annexed to the Lease Deed).
20. ' And whereas the sub-lessee completed the building and complied with the said terms except that not so far paid fully and finally the proportionate development charges because the development or the entire area in respect of which the lease was granted to the Society under the lease is not yet complete.
21. ' And whereas the sub-lessee has made, full payment of premium to the Society @ Re.1.00 per sq.
22. Yard in respect of the plot leased hereunder, receipt whereof the Society hereby acknowledges.
23. ' And whereas, notwithstanding the fact that the full development charges have not been paid by him the sub-lessee has approached the lessor for the grant of a lease of the plot hereinafter described for a period and the lessor has agreed to grant a lease of the same."
24. ' A perusal of the preamble afore-stated will show that a lease was educated between the lessor, namely the President of Pakistan and the Society namely the Pakistan Defence Services Officers Cooperative Housing Society Limited, Karachi (now Pakistan Defence Officers. Housing Authority).
25. The said lessor had by the said lease granted permission to the Society, "to enter upon an area of land measuring 768.431 acres or thereabout for the purposes of developing it and constructing building thereon".
26. ' It is this very land from which the said Plot bearing No,AA-21A Sunset Boulevard was sub-leased by the defendant, the said Society at that time, to the original owners, in Lease Form 'A'. The said sublease in Form 'A' is on record and is also not denied. It is dated 12-3-1963 wherein, the lease was granted by the Society aforementioned of the land that was marked in "RED" in the plan annexed to the lease dated 25-3-1964. The area shown was 2600 sq. Yards. The sublessee namely the husband of seller, Mrs. Surriya Sultan was authorized and permitted to enter upon the said land for the purpose of constructing a building thereon in accordance with the terms and conditions of the said lease. The premium under the said sub-lease was Re.1 per sq. Yard to be paid in eight equal half-yearly instalments. The ground rent was also to be paid at the rate of six paisa per sq. Yard per annum. In addition to the above, the sub-lease of the Society was required to pay all calls which were, the development charges made by the defendant from time to time. It is important to note that the power of the Society/Authority in respect of the plot of land leased in favour of the defendant by the President of Pakistan was to enter upon the plot, develop and construct, which is almost the 'mandate given under lease in Form "A" which is also for the purposes of entering upon and constructing the building on the plot of land. The only right as to the authority was the premium payable, the ground rent and the development charges. There was and is nothing else that was/L payable by the sub-lessee to the Defence Housing Society/Authority, ' Upon comparison of said sub-lease and the lease granted by the President it will be seen that the plot of land allotted to the original owners though was 2600 sq. Yards or thereabout, is the same plot land mentioned in the sub-lessee. Admittedly and as stated in the present lease to the plaintiff, it was granted for construction and upon construction and payment of development charges to the Society, the said plot was to be leased in Form "B". Admittedly, the sub-lessee in Form. "A" had made a full payment of the premium to the Society i.e, at the rate of Re.1 per sq. Yard in respect of the plot leased and the receipt of such amount is admitted. The only amount that remained to be paid was the proportionate amount of development charges as the development had not been made in full.
27. ' The position on ground, therefore, is, that there is a lease in favour of defendants granted by the President of Pakistan, which is in the nature of sub-tease "A granted to the husband of the plaintiff by the defendant. It was this lease by which the Authority had the power to enter upon the plot of land and to develop the same. Upon development or prior to that. And on payment of charges of development, premium and rent, the Defence Housing Society/Authority would itself grant similar lease to the allottee. The important aspect to be noted is that the lease in Form ."A" is executed by Defence Housing Authority and that the extent of the lease is nothing beyond the authority they yield from the lease granted by the President of Pakistan to the Society/Authority. Upon conclusion of construction, payment of the premium, rent and development charges, to the defendant, the said plot of land is thereafter directly leased out by the President of Pakistan in favour of the sub- lease shown in Form "A" or such person to whom the sub-lease may have been-transferred. It is, therefore, evident and clear that the Defence Housing Authority having been paid the amounts due under the agreement with them, and the limited lease granted by the Defence Housing Authority in Form "A" having been replaced by the lease in Form "A" granted by the President of Pakistan, the lessee in the subsequent lease shall not be any more bound by the terms of the lease in Form "A".
28. The plot, therefore, that has been leased out, will be in consequence of a contractual obligation between the President of Pakistan and the lessee. In this case the plaintiff. The leased plot, therefore, is out of the domain of the authority No doubt, development charges could he charged and that also could not be unlimited. At the time of grant of lease, the development had not concluded, naturally, at a specified point in. Time such development would have been concluded and all development charges would have been paid as may have been demanded by the authority. Such is not the question at the present state, but it is only to show that the extent of relationship between the lessee of the plot and the Defence Housing Authority is only to the extent of development charges and none other.
29. ' The question, therefore, comes on to the fact that when the lease was granted in the area measuring 2600 sq. Yards could the plaintiff enjoy the benefit Of additional land. Mr. Nazar Hussain Dhoon has candidly accepted the position that he does not and cannot attack the lease granted by the President of Pakistan, but is only seeking return of the additional land. This fact has to be looked in its entire perspective.
30. ' The question that arose whereby the Letter Nos.DHA/A-1303-Planning DTE dated 17-8-1999 and DA/A-1303/BD, dated 3-11-1999 is that the plaintiff had sought mutation of the said leased plot in accordance with Rule 36 of the Guide Book referred. To by Mr. Nazar Hussain Dhoon. The said rule reads as under:-- "Procedure for Mutation of Names in case of Sale/Conveyance Deeds: '
36. When a plot with construction thereon is sold through the medium of Sale/Conveyance Deed, photostat copy of the documents is required to be sent to the Authority with a pay Order of Rs,100.00 (or as prescribed) towards Mutation Fee alongwith a photograph of the 'person/persons in whose name the property is required to be mutated. Mutation of name in the Authority's Records will only be made provided all dues against the plot have been cleared."
31. ' According to Mr. Nazar Hussain Dhoon such is also provided in the Regulations. A copy of the Regulations has also been produced in Court. He has referred to Regulation 9 which reads as under:-- ' Regulation No,9.
39. Plots held by person registered with the Authority can be transferred only to persons registered with the Authority in any one of the aforementioned categories on payment of such transfer tee and other charges prescribed in Schedule ' A' of these Regulations, provided all dues and charges in respect of the said plot have been paid/cleared prior to such application for transfer."
32. ' It is important to note that the said regulation referred to by Mr. Nazar Hussain Dhoon only relates to plots held by person registered with the Authority and upon transfer of the said plots the amount of mutation fee as provided in the Schedule "A" was to be paid. The plot of land. As discussed above is one leased by the President of Pakistan to the Defence Housing Authority for the purpose of development. Upon development and possession to the allottee/sub-lessee that particular plot is transferred back to the President of Pakistan, who grants lease to the said lessee. There is no way that the President of Pakistan can grant lease of a plot of land to an individual unless he has the land. Upon transfer by lease of the property to the person, the plot of land would not be a scheduled plot, as such the Authority and cannot be deemed to have any authority as regards the lease, except for the charging of the development charges. One is amazed at the extent of power being assumed by the Defence Housing Authority. The said Authority does not have any authority over plots leased in Form "B", as they are not the lessors. There is no privity of contract of the said lessee with the Defence Housing Authority (DHA) under the said provisions of law and as also shown in the lease deed itself. The requirement, therefore, of mutating the property is in fact an invalid, unlawful and a motivated exercise by the Defence housing Authority. Mutation cannot be deemed to be a valid direction or requirement in respect of the properties leased in Form "B".
33. ' Reverting to the question of the excess land, some facts need to be looked into. The defendants have filed their written statement alongwith which there are three site plans annexed. I shall first refer to the initial site plan (Annexure "A" to the W.S.) which was granted to the said Col. Sultan Muhammad Khan in respect of the Plot No,2/A. Such a plot was the plot that measured only 2000 sq. Yards and the dimensions, therefore, were clear and vivid. It was a rectangular plot measuring 180 ft. By 100 ft. It was bounded by the 8 ft. Wide lane on the west, 60 ft. South Park Avenue, on the north 60 ft. Wide South Park Avenue on the east and 120 ft. Sunset Boulevard on the south. The site plan also shows a triangular park. It is crucial to note, that subsequently, this was consciously modified, altered and changed. Annexure "B" to the written statement shows the site plan of said plot of land. The changes were brought about in the first plot of land and the said plot of land, therefore, changed dimension whereby instead of it being rectangular became more or less elliptical in shape. The dimensions were given in such a manner that on the South is the opening on Sunset Boulevard the length, therefore, increased from 100 ft. To 120 ft. The depth decreased from 180 ft. To 170 ft. But the maximum width taken in the elliptical plot was 150 ft. Calculating area of a regular rectangular may be simple, that is by multiplying the length and the breadth. However, in a plot of irregular shape calculating an area is very technical and can only be done by a person who knows, understands and has expertise in calculating the area. The said plot of land that has been shown in Annexure "B" has also been shown in Annexure "C" to the written statement, with the only difference that the owner has been renamed as Begum Surraya Sultan in place of Col. Sultan Muhammad Khan. The plaintiff has also filed the same site plan. It is important to note, whilst the measurements have been given in the site plan itself, the area has been shown to be 2600 sq.
34. Yards, the site plan has been drawn by some Muhammad Sarfraz has been checked by some person whose name is not visible but signature appears and has been verified by the Secretary and Planning Officer. This site plan clearly shows that this plot is nothing but an island surrounded by the roads mentioned in the lease. The site plan that was filed by the defendant also corresponds with the Official Master Plan of the Defence Housing Authority which has been filed alongwith rejoinder as "R/1". It may be noted that in the first site plan, there were two plots, namely the plot allotted to the colonel and the other the park. In the subsequent site plans there is only one plot surrounded by the roads. It is not possible, therefore, that the said plot of land could have been given away without measuring. Whilst redrawing the site plan, measurements would have .Been taken. The subsequent site plan when drawn would have required measurements to have been taken. The entire plot marked in the Master Plan is the same as the plot shown in the site plan. It is one plot surrounded by roads. It is not separate and, therefore, cannot be deemed or otherwise have been missed out. This plot of land was handed over as shown in the site plan in or about 5-2- 1964. Naturally, it could not have been given away without measurement. The measurement as aforesaid was a technical aspect and could not have been merely an error. The lessee would have been given the plot as aforesaid after measurement. The important aspect to be noted is, that in Annexure "A" to the written statement the plot is shown to measure 2000 sq. Yards. There is a park with the said plot with an intervening lane of 8 ft. The Defence Housing Authority has merged this park with the land and has handed over to the same as one complete plot to the said Col. Sultan Mehmood Khan. It is after almost 10 years that there was a change again in the name of Begum Surra' ya Sultan and that the said plot would have been again measured. The area has been shown as approximately 2600 sq. Yards and in the map has been shown to be one plot and as aforesaid surrounded by roads. It is rather odd that now after 1964 that the Defence Housing Authority have realized that that property is not 2600 sq. Yards but in fact is 3728 sq. Yards. It is also important to note that admittedly no actual measurement has been taken by the Defence Housing Authority. The boundary wall was erected by the original owner namely Col. Sultan Mehmood/Begum Surraya with construction thereon and was purchased by the plaintiff. The defendants in para.13 of the written statement have stated as under:-- "13. That the contents of para.13 of the plaint are not correct as narrated and it is further submitted that the documents (sub-lease A, lease B site plan etc.) were issued to the owner for plot measuring 2600 sq. Yards whereas the owner has erected the boundaries by exceeding the given size/dimension to acquire more areas of land measuring 3728 sq. Yards. There was a park adjacent to the subject suit plot and no other residential plots are found in surrounding area, hence the premises was not checked during past decades.
35. ' It is very clear that the provisional dimensions of the said plot were given as 174' on ground, thus, she has encroached and occupied D.H.A. Land. D.H.A. Is willing to mutate/ transfer the said premises provided the extra land under illegal occupation is vacated for payment is made as mentioned in our letters, dated 17th August, 1999 and dated 3rd November, 1999."
36. ' It is admitted by the defendants that the park was adjacent to the subject plot and it has been admitted by the Defence Housing Authority by filing the site plan of 6-2-1964 and the site plan of 4- 12-1975 that the park had been merged in the said land. The measurements were there prior to this in 1964. The measurements were there on 4-12-1975 and are the same as of today. There is an apparent malice behind the actions of the defendants.
37. ' I will now for the purposes of above refer to the various laws that have developed during the course of the various years. Under the Transfer of Property Act, 1882, section 41 reads as under:-- ' Transfer by ostensible owner. ---Where, with the consent, express or implied, of the person interested in immovable property, a person is the ostensible owner of such property and transfer the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
38. ' It is clear that the plaintiffs are purchasers of the said plot for value and that the said plot having purchased for value has been done by a person who is a bona fide purchaser. The position before purchase of a property would be that the purchaser would have seen the documents and the validity thereof and the existing construction. Admittedly, the construction is, at least on the date of the lease which is October, 1967. The plaintiffs had, therefore, even if they had come to know of the excess plot, would have presumed transferor/lessee of the said plot to be the ostensible owner of the said property by consent or express or implied by the persons who may have owned the said property. It is not the case of the defendants that it is the plaintiff had constructed the said boundary wall. They only state that the said additional portion has been encroached upon. If the original purchasers were given possession of the said property by the Authority in 1964 it will be presumed, deemed or otherwise be clear that the property was handed over and, therefore, it cannot be said that the purchaser of the said property had not taken due or reasonable care of the transferor's power to make the transfer. Thus, the purchaser, the plaintiff, would have acted in good faith. Reference may be made to the case of Kanwal Nain and 3 others v. Fateh Khan PLD 1983 SC 53 in which it his been held:-- "Section 41 is a statutory application of the law of estoppel and makes as exception to the rule that a person cannot confer a better title than he has. The principle underlying the provisions of the section is whenever one of the two innocent persons has to suffer the act of a third person, he who has enabled the third person to occasion the loss must sustain it."
39. ' Mulla has pointed out that the foundation of this section is the following passage from the judgment of the Judicial Committee in Ramcoomar v. Macqueen (1872) 11 Been. LR 46, 521 A Sup.
40. 40:-- ' It is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it'.
41. ' The section is a statutory application of the law of estoppel and makes as exception to the rule that a person cannot confer a better title than he has. The principle underlying the provisions of the section is whenever one of the two innocent persons has to suffer by the act of a person he who has enabled the third person to occasion the loss must sustain it.
42. ' As rightly mentioned by the learned Additional District Judge in his judgment, following conditions are necessary for the application of the section namely:--
(i) The transferor is the ostensible owner,
(ii) he is so by the consent, express or implied, of the real owner;
(iii) the transfer is for consideration;
(iv) the transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer."
43. ' It will be seen that the Defence Housing Authority allowed the predecessor to hold the said property without any let or hindrance, or otherwise, and the property that has been purchased is the property shown in the site plan with construction thereon. If Defence Housing Authority had handed over the said property shown in the site plan, a bona fide purchaser for value cannot, therefore, be required to be thrown of the said premises.
44. ' Undoubtedly, the entire plot with construction thereon was purchased by the plaintiff as one complete unit and entity. It is not the allegation that the present plaintiff had encroached upon the land in question. But are in occupation without lawful authority. What the defendants are saying is that the additional land has not been leased out wherefore it shall remain the property of the Defence Housing Authority and which is liable to be returned or the market value thereof as prevalent on the date of purchase by the plaintiff is liable to be paid to the defendants.
45. ' There are numerous questions that arise out of pleadings. The question whether section 20 of Contract Act shall be applicable that, upon discovery of mistake as to the area of the leased plot, the contract entered into would be void. The other question is, whether the defendants shall be estopped now from claiming the said land on account of the loss of the right to exercise locus poenitentiae under section 21 of the General Clauses Act. Even if it is accepted that the land is liable to be paid for by the plaintiff, the question will arise, as to what is the amount that, would be paid.
46. Before I proceed to deal with the aforesaid questions, I would refer to the various, judgments on the points in hand.
47. ' In the case of Muhammad Arshad Jalil v. Pakistan Defence Officers Housing authority PLD 1992 Kar.
48. 304 a dispute had arisen in regards to a plot of land measuring 600 sq. Yards it was allotted to one Mr. M.S. Jalil, the son of the said M.S. Jalil claimed that the plot in question was transferred to him and his .Brother by the father upon the approval from the. Defence Officers Cooperative Housing Society. The complaint was heard, Defence Housing Authority arbitrarily cancelled the allotment and the registered lease deed executed in favour of the father without notice. In that case it was held as under:-- "As the result of above provision of law the Pakistan Defence Officers Cooperative Housing Society Limited, Karachi stood dissolved on the commencement of the said order and Pakistan Defence Officers Housing Authority established under it succeeded the former. Under clause (c) of section 17 of the Order all leases and grants of land made by the defunct Society shall be deemed to be the leases executed and grants of land made by the Authority. Similarly by a separate clause (h) to that section allotments and transfers of plots made by the Society shall also be taken to be those of the authority. Proviso (I) to section 17 of the. Order. Enables the Executive Board to cancel such allotments which were made in contravention of the bye-law of the Society or resolution of its managing committee. Power contained in proviso (I) to section 17 of the Pakistan Defence Officers Housing Authority Order, 1980 does not extend to cancellation of lease and grant of lands deemed to have been executed or granted by the Authority under clause (c) of Article 17 of the Order.
49. ' The order passed by the respondents herein and impugned in this petition for the foregoing reasons is declared to have been passed without any lawful authority, to be of no legal effect and is quashed. The petition is allowed with no order as to costs."
50. ' In another case Mustafa Lakhan, Advocate v. Pakistan Defence Officers Housing Authority 1994 M LD 777, it was the case of the petitioner that as an Advocate he was allotted plot for services rendered by him to the society. The allotment was followed by execution of sub-lease in Form "A".
51. The said plot after reconstitution of the society into authority was cancelled on the basis of Article 17-H of the President's Order No,7 of 1980. In the said judgment, the cancellation was held to be unlawful despite the fact that it was only a lease under Form "A" granted by the Authority.
52. ' In another case.Ziauddin v. Pakistan Defence Housing Authority 1999 CLC 723 (D.B.) the petitioner who was retired civil officer of the Pakistan Army serving in the Pakistan Ordnance Factory Wah sought to impugn a show-cause notice and . Consequential orders of cancellation of a commercial plot. It was prayed by the petitioner that a direction to the D.H.A. Be given to restore the allotment forthwith and prohibit them from cancelling the same or creating any third interest. A discussion of Article 17 and bye-laws of the Society resulted in a finding by the Court that:-- ......Surely the respondent Authority which succeeded the defunct Society by operation of law was not competent to reopen a past and closed transaction by virtue of Article 17 referred to hereinabove, for a vested right had accrued to the petitioner by reason of such allotment in his favour and by making huge investment at the relevant time.
12. Adverting to the accrual of a vested right in favour of the petitioner, reference may be made to observations made by a Full Bench of this Court in Zohra v. Government of Sindh PLD 1996 Kar. 1 expressing the view that a vested right is an immediate or a fixed right to present or future enjoyment and one that is not independent on any event that is uncertain; in other words, a right which is not subject to any contingency. In our view by reason of a valid allotment of commercial plot in dispute in favour of the petitioner, doctrine of promissory estoppel may also be pressed into service which right is available in ' Pakistan against the Government and its functionaries subject to certain limitations. This view was propounded and highlighted in Army Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCM R 1652. It may also be pertinent to note that an authority competent to make order has power to undo it but the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual and principle of locus poenitentiae would be available under the provisions of section 21 of General Clauses Act, 1897."
53. ' The learned Judge stated that, "excessive use of lawful power is itself unlawful" and that, on the basis of discussion it was held that the cancellation of the plot by the authority was declared as illegal, void and without lawful authority. In the aforesaid case it was held that a closed and past transaction could not be reopen.
54. ' In another case Shamim Khan v. Pakistan Defence Officers Housing Authority 1999 YLR 410 it was held after discussion of Article 17 of the P.O. No,7 of 1980 that the authority was primarily required only for the commitment made by the Society and did not have the power to review the same and that, action subsequently by the Executive Board was ultra vires the powers of the Executive Board.
55. It was further held that the petitioner having acted to his detriment and having paid subsequent sums of money the doctrine of promissory estoppel was fully attracted and the respondent had lost locus poenitentiae to recall the allotment.
56. ' In another case, Nasim Najmi v. Pakistan Defence Officers Housing Authority 1996 CLC 1262 a similar position was taken up and it was held that the covenants of C-Lease clearly indicates that only authority vested in law to determine the lease or to resume land is the lessor who is the President of Pakistan or his delegatee in the instant case is Military Estate Officer. It was, therefore, held that "in my view the defendant No,1 is neither authorized nor competent to take any action for determination of C-Lease or resumption of plot as threatened by them vide their letter, dated 27- 4-1993". The said judgment delivered by Rasheed Ahmed Razvi, J. (as he then was) also took into account the various judgments referred above. Injunction was granted in the said case also.
57. ' In my view also the Defence Housing Authority, defendant No,1 herein has no power to open a past and closed transaction of the Society under Article 17(h) (1) and is limited only to allotment cases and does not extend to cases where the allotment A has been converted into lease. If the Defence Housing Authority is permitted to reopen the transaction of the defunct society under the alleged powers contained in Article 18 of the P.O. No,7 of 1980 and/or its bye-laws it would render the proviso Article 17(h) redundant. It is a well-established principle of interpretation that redundancy cannot be attributable to the Legislature. I am supported in this view by the cases of Commissioner of Income-tax, Lahore v. Messrs Sh. Ferozdin Allah Rakha Muhammad Ramzan and another PLD 1980 SC 115 and the case of a Division Bench of this Court being Messrs Kamran Industries v.
58. Collector of Customs (Export) and 4 others PLD 1996 Kar.
59. 68.
60. ' The question that comes up is whether the possession already delivered in accordance with the site plan, keeping in view that the site plan is what is also contained in the master plan and is what has been purchased by the plaintiff from the previous lessee, can the authority lose its right to exercise locus poenitentiae, when, admittedly the property had been in possession of the previous lessor. I have already referred to the judgment of Division Bench of this Court in the case of Shamim Khan v. Pakistan Defence Housing Authority (supra) wherein it was held that the authority looses its rights of locus poenitentiae in specific cases. I am also supported in this view by the case of Muhammad Tufail v. Lahore Development Authority where, upon allotment of land and third parties rights were created, it was held that the principle of locus poenitentiae was not available to the authorities and the power of locus poenitentiae was available only before decisive step was taken.
61. In this case the decisive step was taken in 1964 having handed over the property to the previous owner. In the case of Chairman, Minimum Wage Board, Peshawar v. Fayyaz Khan Khatak 1999 SCM R 1004 it was held that valuable rights having been created the rule of locus poenitentiae could not be reversed in the manner adopted. Similarly in the case of Secretary to Government N.-W.F.P.
62. Zakat/ Social Welfare Department, Peshawar v. Sadullah Khan 1996 SCM R 413 it was held that where the petitioners themselves appointed respondents on temporary posts in violation of law committing irregularity the petitioners cannot be allowed to take advantage/benefit of their lapses in order to terminate the services of the respondents merely because they themselves committed irregularity in violating the procedure. In the present case also even if it is held that the land was in occupation and it continued to be in occupation despite the earlier transfer by way of gift it would at best be deemed to have been land that was given but the area incorrectly mentioned. The lease, therefore, could" not be cancelled in any manner whatsoever and the property purchased by the plaintiff in its entirety could not be reduced. If it is done, it would amount to injuring the 'rights created in favour of the purchaser, in good faith and on the basis of the documents that were given to him and which, was/is admitted by the defendant. It may not be out of place to mention and as aforestated that measuring of this unique piece of land could have been done by an expert and having measured and delivered the property to the previous owner, transferring the same property to the other owner, no objections Were raised by the Defence Housing Authority, the Defence Housing Authority would be estopped, therefore, from denying that a particular state of fact existed from a contrary position that has been taken up. In fact, expertise of Defence Housing Authority having calculated the area of a particular land and having issued a site plan for that area, categorically showing that particular one plot to be 2600 sq. Yds., induced the plaintiff to believe in a particular state of fact and to act now to their prejudice would be unlawful. The position is that. The land that had been purchased with construction thereon is surrounded by roads. It is the same plot both on ground and on the site plan, and shown as 2600 sq. Yds. This is the land that has been shown in the site plan as also in the master plan. In the case of Ahmed Abdul Ghani Textile Mills v. Chairman, Central Board of Revenue 1990 CLC 493 it was held that an erroneous view constantly taken by the departmental authorities over a long period of time, such a practice is protected by the doctrine of promissory estoppel to ensure the continuity by a rule.
63. ' In the Halsbury's Laws of England, Fourth Edition, Volume 16 it has been said that: "There can be no estoppel by convention where, although both parties are labouring under a common mistaken apprehension, it cannot be said that they have acted on the basis of that apprehension (Lolumal & Sons (London) Ltd. v. Lottee Shipping Co. (Pte.) Ltd. The August Leonhardt (1985) Lloyd's Rep 28, CA). Nor can the doctrine be invoked to deny a party the protection of a stature from the terms of which contracting out is not possible (Keen v. Holland (1984) All ER 75, (1984) WLR 251, CA).
64. ' Estoppel by convention is not confined to an agreed assumption as to fact, but may be as to law; and the Court will give effect to the agreed assumption only if it would be unconscionable not to do so. Once a common assumption is revealed to be erroneous, the estoppel will not apply to future dealings (Hiscox v. Outwaite (1991) All ER 124 at 135, (1991) WLR 1321 at 1333, CA)."
65. ' In the case of Secretary to the Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar v. Saadullah (supra) the same view was taken.
66. ' In Corpus Juris Secundum, Volume 31 at page 418 it is said that:- "The doctrine of equitable estoppel is grounded in the principle that no man may take advantage of his own wrong.
67. ' The doctrine of equitable estoppel is grounded in (U.S. Curry v. A.H. Robbins Co. C.A. 7(111), 775 F.2d 212), and it represents the application of (III Chestnut v. Adeli, 4 Dist. 475 N.E. 2d 260, 86 III.
68. ' Dece. 263 131 III App. 3d 24) the principle of equity that no man may take advantage of his own wrong (U.S. Glus v. Brooklyn Eastern Dist. Terminal, NY, 79 S.Ct. 760, 359 U.S. 231, 3 L.Ed.2d 770) or, as otherwise stated, that equity will not permit one to rely on his own wrongful act, as against those affected by it but who have not participated in it, to support his own asserted legal title or to defeat a remedy which, except for his misconduct, would not be available (U.S. Deitrick v. Greaney Mass, 60 S.Ct. 480, 309 U.S. 190, 84 L.Ed. 694, rehearing denied 60 S.Ct. 611, 309 U.S. 697, 84 L.Ed. 1036)."
69. ' It has further stated in the same volume that:-- "Estoppel by conduct is the estoppel to deny that a particular state of facts exists which arises from the conduct of a person which induces another to believe in the existence of such state of facts and to act thereon to his prejudice."
70. ' The rule laid down is, therefore, that one of the two persons must suffer loss and the loss should fall on the one who is most culpable, who would most easily have avoided its consequences and on whom the greater duty to discover the cause and defect rested, requires a grantor rather than a grantee to suffer loss in case of breach of covenant of warranty or of a covenant for quiet and peaceable possession. In a book titled as "American Jurisprudence, 2nd Edition, Volume 28" it has been stated that, when one of the two innocent persons i.e, persons each guiltless of an intentional moral rong must suffer a loss, it must be borne by that one of them, who by his conduct rendered the injury possible or who could have prevented it. In Halsbury, Laws of England, Volume 16, 4th Edition it has been said that a party cannot take advantage of an error to which he has himself contributed.
71. ' The question of mistake is dealt in section 20 of the Contract Act, 1872 which reads as under:-- "20. Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void."
72. ' At best, if such is a mistake; it could have been a mistake on the part of the defendant and a mistake that could have been avoided if at the relevant time i.e, 1964 when the possession of the land surrounded by road was handed over to the original allottee. It it is even held to be a mistake it could be at best, a mistake in mentioning the area but such factum as to the possession of the area is not a question of fact, which is disputed. Thus, such could not be deemed to be encroachment of property. The mistake has been developed or detected after creation of third party rights. Section 20 of the Contract Act may not apply to the said facts in view of the third party right having been created and under section 41 of the Transfer of Property Act. Otherwise also the lessor in the entire property compounded and gutted by the said roads has entered into a contract by a lease in Form "B" with the President of Pakistan. At best, there could be a contractual obligation with the President of Pakistan, but, the Defence Housing Authority will not figure, as aforestated and thus, shall have no right to resume the land on the ground that the contract is void.
73. Notwithstanding this position also as aforestated, section 41 of the Transfer of Property Act categorically speaks of transfer by an ostensible owner where, the transferee had taken reasonable care to ascertain that the transferor has power to make the transfer has acted in good faith. It is clear that, the documents of title indicate clearly that this particular property is surrounded by the roads and there is no other property. The boundary wall was in respect of the entire property, the shape of which was unique. The plaintiff would have been proper in saying that the measurement taken by a competent authority equipped with the facilities measurement and handing over the same, was the Defence Housing Authority and they having certified that the land in question was 2600 sq. Yds., there could be no reasons to believe otherwise. The plaintiff thus, accepted the same in good faith. No liability, therefore, can be cast on him. Without looking into what- has been stated above, even if it is, at this point in time held that the said land was given under .a wrong presumption and that, it was a mistake of fact the termination of the contract or resumption of land would be impossible to perform. Otherwise also the Executive Committee of the Defence Housing Authority has stated that it has agreed to transfer the said additional land to the plaintiff. Section 20 of the Contract Act, therefore, otherwise also cannot be made applicable.
74. ' Defence Housing Authority, however, is seeking to charge from the plaintiff, market value of the said plot. I am unable to understand under what provisions of law would the Defence Housing Authority get such powers. Under the lease the only amount that the Defence Housing Authority can claim and which is supported by the Presidential Order No,7 of 1980 as also the regulation is the premium on the plot of land and nothing else. The Defence Housing Authority can charge for development work under the head "Development Charges" which is not the cost of the land. The claim by the Executive Committee in the impugned letter is not only malicious, it shows mala fide and is full of irregularities. I am of the view that at best, the Defence Housing Authority could, even if it is subsequently held that such additional land was never handed over to the original allottee/owner, the Defence Housing Authority could claim a premium at the rate prescribed at the time when it was handed/taken over. However, the Defence Housing Authority can claim development charges as they may have incurred in relation to the plot and at the rate that has been approved till the date the development has concluded.
75. 'In the present case for the purpose of determining whether injunction has to be granted, it will be enough to hold, that allowing. The Defence Housing Authority to resume the alleged excess land would amount to intrusion in the property which is in possession and purchased by the plaintiff for value, in good faith.
76. From the above, I am clear in my mind that:--
(a) The Defence Housing Authority has no right in law to cancel leases granted in Form "B" by the President of Pakistan through the Military Estate Officer.
(b) There is no power of the Defence Housing Authority to direct mutation of the plot with the authority.
(c) The Defence Housing Authority has no locus standi in relation to the said leased properties and therefore, any act, deed and thing is done by the authority to curb the rights of the lessees or subsequent purchaser, to resume lease, to cancel lease etc. Including the act of entry into any premises disturbing the construction or otherwise.
77. ' From the above, it is clear that the plaintiffs have a good prima facie case. In the event an injunction is not granted the plaintiff shall suffer irreparable injury and harm. The balance of convenience is in favour of the plaintiff. The application (C.M.A. 10970 of 1999) is allowed as prayed.
78. The defendants are restrained from acting on the letters, dated 17-8-1999 and 3-11-1999 or interfering or disturbing the peaceful possession of the plaintiff or resuming the said land or cancelling the leases/sub-leases pending disposal of the present suit.