TANVIR BASHIR ANSARI, J.--- This Intra Court Appeal has been preferred against the order dated 20.2.2001 passed by a learned Judge in Chamber of this Court in W.P. No. 707/1996.
2. The facts of the case are that appellant No. 1 held the site of Bungalow No. 18 Survey No. 169 measuring 2.49 acres situate on the Mall Jhelum Cantt. By way of lease in form "B" dated 6.4.1905 (registered on 13.4.1905) under Section 259 Cantonment Code, 1899. The evacuee interest in the said site and the Bungalow thereupon was transferred in favour of S.A. Qureshi the husband of appellant No. 1 through P.T.D. Dated 4.5.1962. These proprietary rights were subsequently transferred to appellant No. 1 through an oral gift made in her favour on 8.11.1962. Land measuring 9085.846 square yards, part of the open compound of the said Bungalow was divided into 13 plots and was gifted by appellant No. .1 in favour of appellants ' Nos. 2 to 6 through oral gift affirmed through affidavit on 22.12.1976.
3. The appellants applied for sub-Division of the site on 9.1.1976 for construction of additional building under condition II of the Cantonment Code Lease herein before mentioned. The appellants through their predecessor-in-interest invoked the provisions of clause V of the letter dated 12.7.1966 in seeking to claim the said permission upon the payment of enhanced rental only without the payment of any premium. The relevant clause V of letter dated 12.7.1966 is reproduced as under:- "The generality of the above power has sometimes led to the presumption that alongwith rent, premium as well can be imposed for giving permission to make additional/alterations or construct additional buildings. This is not correct. The definition of premium as given in Section 105 of the Transfer of Property Act, 1882 is that it is the price for granting a lease. This is also confirmed by pare 171 of the. Government Estates Manual 1958 (Govt. Of East Pakistan) which lays down that premium should be charged only at the initial settlement. Para 173 ibid, also clarifies that no premium should be charged even at the time of renewal."
4. Initially, vide letter dated 25.10.1978 sanction for such sub-Division was given by the Ministry of Defence (M.L. And C. Department) on payment of land rent without any premium. The reason for not charging premium was based on the afore-mentioned letter dated 12.7.1966.
5. It appears from the record that on 31.8.1981 memo. No. 5631/517/Qtg-1-A was issued in respect of the sale Sub-Division of Bungalow 18 the Mall Jhelum Cantt (property in question). It was stated therein that G.H.Q. Has no objection to regularise the Sub-Division of the site of Bungalow No. 18 subject to the conversion of the lease into schedule VIII on the payment of prevalent rates of rent and premium. This decision was conveyed to the predecessor-in-interest of the appellants through letter dated 26.5.1982. It was also emphasised that the proposed sale of plots was still encumbered with the veto of the competent Army Authorities unless it was agreed to take out leases of all the sub-divided plots in Schedule VII of C.L.A. Rules, 1937 on the payment of prevalent rate of rents and premium.
6. The appellants were fully conscious of this position but did not opt to take any further steps in the matter as they were statedly engaged in litigation with third party in respect of the sale of sub- divided plots. The litigation which comprised of suits for specific performance filed by the third party against the appellants was finally decided by the Hon'ble Supreme Court in 1994.
7. The predecessor-in-interest of the appellants communicated his letter dated 20.4.94 to the Military Estate Officer Kharian Cantt. Whereby he expressly agreed to obtain the leasels) for Sub- Division of all the ots as offered by G.H.Q. Vide their letter dated 31.8.81 on payment of annual rent and premium at the usual rate of 20 times of the said rent. S.A. Qureshi predecessor of appellants even cited similar case of. Sub-Division of the vacant compound of another Bungalow bearing No. 24, The Mall Jhelum Cantt. Survey No. 175. Vide letters dated 9.2.1995 and 14.6.1995, the predecessor- in-interest of the appellants requested the information regarding the prevailing rate of rent and premium to be charged for the grant of Sub-Division of the 13 plots in Schedule VIII of C.L.A. Rules, 1937 so that the matter could be finalized. Infact in his letter dated 9.2.1995, Mr. S.A. Qureshi wrote as under:- "I intimated to the M.E.O. Kharian vide my letter dated 25.4.1994 my willingness to convert the existing sanctions dated 25.10.1978 into leases in Schedule VIII of C.L.A. Rules, 1937 for each Sub- divided plots on payment of land rent originally fixed and premium based thereon."
8. After having accepted to convert the lease into a schedule VIII lease upon the payment of rent and premium, the predecessor-in-interest of the appellants completely altered his stand and as he wrote the letter dated 14.6.1995 referred to above, he simultaneously addressed another letter to the GHQ on the same date i.e. 14.6.1995 where, although he again agreed to convert the lease into a schedule VIII lease upon the payment of land rent and premium, he attempted to revert to letter dated 12.7.1966 and claimed Sub-Division without the payment of premium.
9. Upon refusal of the respondents to accede to such demand, the appellants filed W.P. No. 707/1996 which culminated in the order of the learned Single Judge dated 20.2.2001 whereby it was held that 'the Sub-Division shall be allowed but subject to the payment of land rent with premium at the prescribed rate prevailing during the year 1982.
10. Mr. Riffat Sagheer Qureshi, Advocate in support of this Intra Court Appeal has placed reliance upon the Ministry of Defence letter dated 12.7.1966 to contend that the Sub-Division had to be made only upon the payment of rent and that the premium cannot be charged for the said purpose. He submitted that the definition of premium as given in Section 105 of the Transfer of Property Act, 1882 is that it is the price for granting a lease which should be charged only at the initial settlement.
According to him/premium could not be charged even upon renewal of the lease. He further contended that this position had been acknowledged in the letter dated 25.10.1978 issued by the Ministry of Defence, wherein, after making reference to the earlier quoted Ministry of Defence letter dated 12.7.1966, the sanction for Sub-Division was allowed without the demand for the payment of premium. The subsequent demand of premium would be barred under the principle of promissory estoppel.
11. On the other hand, the learned counsel for the respondent has strongly supported the order passed by the learned Judge in Chamber oh the ground that the appellants have themselves agreed to the payment of rent as well as premium repeatedly and that they cannot be allowed to turn around and place reliance upon a letter dated 12.7.1966 which they had themselves abandoned through their own conduct.
12. Arguments have been eard and record perused.
13. The original rights that were conferred upon the appellant No. 1 were through the Cantonment Code Lease dated 6.4.1905 in form "B" under Section 259 Cantonment Code, 1899. Condition II of the Annexure to form "B" reads as under:- Condition II.-- (1) Building may be erected on the land only in accordance with the Erection of Buildings. Site plan appended to the lease, or where a proposed building alteration or addition is not in accordance with such plan, with the written permission of the authority which sanctioned the application under Chapter XXI of the Cantonment Code, 1899.
(2) Any such permission may be given subject to, any condition which may be agreed upon between such authority and the lessee.
14. A perusal of the said condition would show that any construction proposed to be made upon the site in question was to be with the written permission of the competent authority and that such permission was to be given subject to any condition which may be agreed upon between such authority and the lessee.
15. Vide letter No. 5631/517/Qtg/1-A, dated 31.8.1981 issued by Qmg. Branch, G.H.Q., Rawalpindi it was offered that GHQ have no objection to regularise the Sub-Division of site of Bungalow No. 18, Survey No. 169, Jhelum Cantt and the transfer of sub-divided plots by way of sale after converting the lease into schedule VIII on payment of prevalent rates of rent and premium. This was duly communicated to the predecessor-in-interest of appellant through letter No. J.25/28/16, dated 26.5.1982. The aforesaid offered was made in this letter in clear and unambiguous terms. The matter remained in a suspended position on account of litigation between the appellants on the one hand and the private third parties on the other in respect of the sale of the said plots. After the said litigation concluded finally vide judgment dated 30.3.1994 passed by the Supreme Court of Pakistan, the predecessor-in-interest of the appellants addressed his letter dated 25.4.1994 to the Military Estate Officer Kharina Cantt., wherein, he categorically accepted the offer made in the G.H.Q. Letter dated 31.8.1981 and agreed to the Sub-Division of the plots subject to payment of annual rent as well as premium.
He even cited the similar case of Sub-Division of vacant compound of Bungalow No. 24 the Mall Jhelum Cantt upon identical terms. This acceptance was repeated by the predecessor-in-interest of the appellants vide letter dated 9.2.1995 and 14.6.1995. Even in the letter of 9.2.1995 the willingness given in his earlier letter of 25.4.1994 was reiterated and he again agreed for the conversion of the lease into a lease in schedule VIII on payment of land rent and premium.
16. When the above conduct of the appellants is viewed in the light of condition II of the Cantonment Code Lease reproduced above', it would make it manifest that after accepting, the offer of payment of land rent alongwith premium, this would amount to the condition which is agreed upon between authority and the lessee as contemplated in condition 11(2).
17. This being so we find no force in the submissions made on behalf of the appellants. We also find that the learned Judge in Chamber had passed a well-considered order whereby even the interest of the appellants was safe-guarded when it was held that the Sub-Division was allowed subject to the payment of land rent alongwith premium at the prescribed rate prevailing during the year 1982.
18. The upshot of th above discussion is that there is no force in this Intra Court Appeal which is hereby dismissed. .