2017 CLC 244 [Sindh]
2017 C L C 244
[Sindh]
Before Mahmood Ahmed Khan, J
SHELL PAKISTAN LIMITED through duly constituted Attorney----Applicant
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Defence and 2 others----Respondents
C.M.As. 14210, 14430, 14665, 14654 and 14985 in Suit No.1875 of 2015, decided on 3rd June, 2016.
Specific Relief Act (I of 1877)---
----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Lease of land for establishing Petrol/CNG station---Temporary injunction, grant of---Scope---Parties could not have more than what they had bargained---Court of law could not be utilized to acquire a position not bargained for by the parties---Parties having agreed to lease for a period of ten years and thereafter the agreement transformed into a license requiring consent of the lessor for holding on to the possession---No one could give a better title to what he was holding---Plaintiff could not claim any better treatment from the defendant---Plaintiff could avail the option available to him at the terms for which it might be given to anyone else---Plaintiff should be given first option of refusal to acquire the suit property at the terms and conditions as being offered to any other party---High Court directed that plaintiff should pay the outstanding amount up to the date of handing over of the possession as was being paid earlier and option of refusal should be subject to the said payment---Petition for temporary injunction was dismissed in circumstances.
PLD 1971 Kar. 35; PLD 1962 Kar. 663; 2007 YLR 228; PLD 1957 (W.P) Kar. 781; 1995 SCMR 459; 1993 CLC 1606; 2000 SCMR 1305; PLD 1974 SC 134; 1996 CLC 570; 2006 CLD 674; 2003 MLD 9; 1985 CLC 2309; 1984 CLC 3019; 1994 MLD 527; 2010 CLC 354; PLD 1975 SC 37; PLD 1967 Dacca 190; 2010 CLC 1843; 1997 MLD 848; PLD 1966 SC 684; 2014 MLD 1186; PLD 1993 Kar. 700; 1995 MLD 883; 2004 SCMR 113; PLD 1976 SC 785; PLD 1965 SC 671; PLD 1997 SC 3; 2015 MLD 1688; PLD 1964 SC 106; 2002 MLD 1673; 1997 SCMR 1, 2008 CLD 239; PLD 1981 SC 137 and PLD 2001 SC 131 ref.
Saeed Ahmad v. Cantonment Board Malir 2005 CLC 388; Malik Muhammed Majeed v. Government of Pakistan PLD 2002 Lah. 290; Khursheed Bhutto v. Civil Aviation Authority 2001 MLD 1591; Airport Support Services v. Airport Manager Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268; D.G. Pakistan Coast Guards v. Zarina Jamshed 1998 MLD 1879; Saeed Ahmad Malik v. Navel Estate Officer 1989 CLC 1204; Imtiaz Hussain v. Government of Pakistan 1992 CLC 1122 and Government of Sindh v. Muhammed Shafi and others PLD 2015 SC 380 rel.
Salahuddin Ahmed for Plaintiff.
M. Umer Riaz for Defendant No.1.
Sohail H.K. Rana for Defendant No.2.
Syed Haider Imam Rizvi for Defendant No.3.
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ORDER
Dates of hearing: 26th November, 10th, 11th December, 2015 and 14th March, 2016.
MAHMOOD AHMED KHAN, J.--- 1. C.M.A. No.14210/2015 This is an application under Order XXXIX, rules 1 and 2, C.P.C. and praying for restraint of defendants Nos.1 and 2 from interfering with the peaceful possession of the plaintiff from the premises of fuel station bearing Survey No.59/1/A, measuring 0.716 acre (3465.44 square yards), situated opposite Piccadilly Cinema, Quid-e-Azam Square, Malir Cantonment (hereinafter referred to as 'said property') so also from interfering with the operation of the Petrol / CNG station thereon, access of the plaintiff, the licensee's staff and supply tankers thereto, in the suit for declaration, cancellation, permanent injunction and damages filed by Shell Pakistan Limited against (1) Federation of Pakistan (2) Cantonment Board Malir and (3) Jamal A. Ansari.
2.The background of the matter is that the plaintiff is in possession of the subject property through a lease dated 07.11.2005 issued to the predecessor-in-interest of the defendant No.3 namely Furqan Ahmed for establishing of Petrol/CNG station against consideration as agreed therein and now the plaintiff is under threat of dispossession.
3.It is the case of the plaintiff that at the time of execution of lease agreement the predecessor of defendant No.3 paid an amount of Rs.4.15 million as premium and a sum of Rs.3,465,440/- as one time development charges making the total of Rs.7,615,440/- and further the lessee was required to pay Rs.290,500/- as yearly rent to the defendant No.1. The plaintiff at the time of establishment of the said Petrol Pump confirmed about renewal of lease being of a short term of 10 years and it was confirmed that the lease could be renewed after the said period and even in case of re-auction the plaintiff would be given preference by a letter dated 18.11.2015 of defendant No.2, as such, the plaintiff executed a sub-deed with all the equipment required for a Petrol Pump and plaintiff initially paid a sum of Rs.7.2 million to the defendant No.3 on account of lease premium and was further obliged to pay substantial increased payments towards the monthly rent and at present Rs.150,000/- is being paid regularly by the defendant No.3. The plaintiff acquired the required license in this regard erected all the required installation and with all the ancillary facilities for establishment of Petrol and CNG station injecting an amount of Rs.8.0 million for construction of the building structure and installation of 360 KW PMT and Electric connection against a consideration of Rs.5,368,649/-. It is claimed by the plaintiff that about 40 million was required for setting up the said Petrol Pump and CNG station, which was made under the understating that the lease of the demised premises would be further extended from time to time subject to regular payment. That under intimation to defendants Nos.1 and 2 the original lessee has assigned his rights in favour of defendant No.3 and later on plaintiff granted license to defendant No.3 to act as retailer for the said Petrol Pump. The defendant No.3 required to arrange for renewal of the lease for another period of 10 years on 05.03.2015 showing his willingness. However, on 29.09.2015, the defendant No.2 suddenly issued a notice to defendant No.3 with direction to hand over the possession of the Petrol Pump without any notice to the plaintiff and defendant No.2 has been under threat of being made un-function-able. The plaintiff claims that the actions of defendant No.2 are unlawful, mala fide and the proposed eviction of the plaintiff is designed to benefit certain favorable persons by handing them not only the said premises but also the station construction thereon. The plaintiff claims that defendant No.2 is not authorized to unilaterally eject the plaintiff being a lawful sub-tenant as it is neither owner nor the lessee of the demised premises and the said defendants are estopped under the doctrine of promissory estoppel from ejecting the plaintiff without cause as they expressly assured the plaintiff and its predecessor of continuation of business and establishment of the Petrol/CNG station. The plaintiff claims to be a tenant in respect of demised premises and is entitled to lawful possession until duly ejected in accordance with the applicable rent laws. The plaintiff also claims that reputation of the plaintiff has adversely been affected and claims Rs.20
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million as general damages suffered.
4.The defendants Nos.1 and 2 oppose the application claims that the plaintiff has no legal character/vested right to file the suit against the said defendants as the plaintiff is neither owner of the plot in question nor the lessee of the plot and has no locus standi to file the suit. It is further stated that all the terms and conditions of the lease expired on 09.10.2015, the defendants referred to the lease and specified period therein and denied having any prerogative to change the terms and conditions of the said lease which required the handing over of the peaceful possession to the defendant No.2 acting on behalf of defendant No.1 and also referred to the general public information in the newspaper specifying terms and conditions on the auction by which the plaintiff acquired the premises. It was claimed that the notice has rightly been issued and the defendant No.2 is required to hand over the peaceful possession on expiry of the lease.
5.The defendant No.2 further claimed to be bridge between Federation of Pakistan and the lessee who is claimed to comply with the terms and conditions of the lease as per Schedule-IX (modified) of the CLA Rule, 1937 by the Federal Government and it was claimed that after expiry the defendant No.2 is entitled to resume the possession of the plot by sealing the same. It is further alleged that the defendant No.2 has resolved for re-auction of said plot for 10 years vide CBR No.25 dated 11.09.2015. The said defendant also alleged failure of issuance of notice by the plaintiff under section 273 of the Cantonments Act, 1924 claiming the same to be mandatory and as such, claimed that the suit is barred by law and is not maintainable along with non-existence of cause of action along with there being no relationship between the plaintiff and the said defendants. It is also claimed by the said defendants that the application and accompanying affidavit are baseless, incorrect and denied calling upon the plaintiff's failure to show the sublease as alleged. It is further alleged that plaintiff has earned maximum amount and profit. It is also claimed that in accordance with the lease agreement's clause 12 on expiry of the lease period the structure constructed thereon shall become the property of Cantonment of Malir and the lessee shall not claim any compensation whatsoever on that account. It was further claimed that the main lease in question 'annexure-A' to the plaint was executed on 10.10.2005 and the plaintiff is wrongly claiming the same to be for 17.11.2005 and further clarified that adhesive stamp was affixed on 07.10.2005. It is claimed by the said defendants that a proper price for re-auction requires the acquisition of the possession of the petrol pump, as such, the plaintiff was required to hand over the possession. It was further claimed that the interim orders in the matter have been obtained by misrepresentation and concealment of the facts.
6.The defendant No.3 supported the case of the plaintiff.
7.Learned counsel for the plaintiff claims that the plaintiff had a right of holding over and claims that the plaintiff had acquired his right for the premises as sublease in the matter was executed with the consent of Cantonment Board. In the matter factual controversy is present and evidence is required and reliance has been placed by him on the letter dated 18.11.2005 of the defendant No.2 `annexure-B' of the plaint and it is further contended that the date of sublease is subsequent to the said letter. It is also contended that as the restraining clause does not provide a penalty the same is not liable to be considered. He has made an attempt to distinguish mandatory and directory provision of law and in this regard sought support from section 105 of the Transfer of Property Act and section 52 of Easements Act.
The learned counsel for the plaintiff has relied upon the cases reported at PLD 1971 Karachi page 35, PLD 1962 Karachi page 663, 2007 YLR page 228, PLD 1957 (W.P) Karachi page 781, 1995 SCMR page 459, 1993 CLC page 1606. Interpretation of mandatory and directory nature 2000 SCMR page 1305, PLD 1974 SC page 134, 1996 CLC page 570, 2006 CLD page 674, 2003 MLD page 09, 1985 CLC page 2309, 1984 CLC page 3019, 1994 MLD page 527, PLD 1975 SC page 37 and 2010 CLC page 354.
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8.Learned counsel for the defendant No.2 contends that the suit is not maintainable and that the same is liable to be dismissed as the actions have been taken under The Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965. The learned counsel for the defendant No.1 supports the contentions as advanced by the learned counsel for the defendant No.2.
Learned counsel for the defendant No.2 has placed reliance upon the cases reported as PLD 1967 Dacca page 190, 2010 CLC page 1843, 1997 MLD page 848, PLD page 1966 SC page 684, 2014 MLD page 1186, PLD 1993 Karachi page 700, the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, 1995 MLD page 883, 2004 SCMR page 113 and PLD 1976 SC page 785.
9.Learned counsel for the defendant No.3 supports the contentions of the plaintiff and further argues that possession is not liable to be taken away from the plaintiff have a right arising from letter dated 18-11-2005 (annexure "B" to the plaint page-53) and that in the matter a new petrol pump/C.N.G. station is not available as (a). O.G.R.A. Commercial License of CNG is not transferable (there is a ban imposed on the issuance of new license of C.N.G.) (b). SSG license of CNG) (c). K-Electric connection is not transferable (c) Shell Pakistan Limited cannot hand over all the required N.O.Cs.
Learned counsel for the defendant No.3 has relied upon annexure "B" to the plaint i.e. page-53, paras No.6 and 9 of the counter affidavit, NOC for CNG and cases reported as PLD 1965 SC page 671, PLD 1997 SC page 03, 2015 MLD page 1688, PLD 1964 SC page 106 and 2002 MLD page 1673.
10.Learned counsel for the plaintiff during rebuttal denied any authority of the Central Government on account of the classification of land and further contented that the rent laws are applicable in the matter as such the plaintiff had become a statutory tenant and can be evicted only in accordance with the applicable law.
11.The matter was taken up for re-hearing on 14-3-2016 wherein the learned counsel as were present adopted the earlier arguments, however the learned counsel for defendant No.2 was pleased to make further reliance upon;
Rules 9, 19 and 43 of Cantonment Land Administration Rules, 1937 along with Rules 7, 8, 9 and 10 of Pakistan Cantonment Properties Rules, 1957 and 1997 SCMR page 1, 2008 CLD 239, PLD 1981 SC 137, PLD 2001 SC page 131.
12.Having heard the learned counsel at the conclusion of their arguments they were called upon by me to provide assistance in regard to the basic document wherein the parties have determined their rights i.e. annexure 'A' to the plaint being the document titled "Schedule IX (Modified) of the CLA Rules, 1937, Lease for Petrol Pump/CNG site comprising Survey No.59/1/A opposite Picadilly Cinema Quaid-e-Azam Square Malir Cantonment" the indenture made on 10th of October, 2005. The said document being a registered document and otherwise undisputed by the parties in my humble understating provides for the rights between the parties and the parties are restricted to claim their rights accordingly.
13.To further simplify the understanding the question that was put up was "whether this document is a 'lease' or a 'license'? The reply as came forwarded from the learned counsel for the plaintiff was that the same is definitely a lease as the defining and distinguishing element between a lease and license is the exclusivity of possession which according to him is present therein.
14.The learned counsel for the defendants Nos.1 and 2 though agreed to the contention that exclusivity of possession is a basis of determination for a lease or license declined to take a clear stand in the matter.
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15.In all the forgiven authorities as relied upon by the learned counsel unfortunately the aforementioned primary document i.e. Schedule IX (Modified) of the CLA Rules, 1937 nor the relevant law and its terms have not been discussed as such the same are distinguishable from the present case except for the those discussed herein.
16.While accepting that the exclusivity of possession is one of the primary difference between a lease and a license, to my humble understanding the said document provides an exclusive possession for 10 years only and thereafter the said rights of possession are agreed to be not present as such the said document is a lease for ten years and thereafter, it transforms into a license requiring consent of the lessor for holding on to the possession. The consent of defendant No.1 for continuation of possession as is being relied upon and denied by the contesting parties however do not provide for any element of perpetuity of possession at the past rate agreed, as such is unable to entitle for the plaintiff to continue possession at the quantum of consideration which perhaps is the real controversy which un-fortunately has not been stated.
17.The parties cannot have more than what they had bargained for as the contract between them is the law between them and court of law cannot be utilized to acquire a position not bargained for. The parties having agreed to lease for a period of 10 years and thereafter the license requires only notice of termination as the exclusivity of possession is no longer available, the defendant accept what was never agreed. I am also fortified to this understanding further by the approach made by the plaintiff to the concerned defendant for continuation of lease which can only be made knowing well what lies ahead and the alleged investments made by the plaintiff need no comments being business decisions.
18.As to the plaintiff who is claiming his entitlement through the defendant No.3 under the established law whereby "no one can give a better title to what he is holding" the plaintiff cannot claim any better treatment as such is entitled to the same rights only to their full extent but with the constrains and limitations as present and no more, as it does not bear from the record that the terms of possession were ever changed between the parties.
19.The plaintiff can however avail the option available to him in terms of natural justice to be offered the subject premises at the terms for which it may be given to anyone else, as it is not the case of defendant No.1 that the premises is going to be used for any other purpose, rather the record shows otherwise.
20.The plaintiff under the natural principles of justice is to be given the first option of refusal to acquire the said property at the terms and conditions as is being offered to any other party.
21.The following cases were found source of guidance in the matter;
2005 CLC page 388 - Saeed Ahmad v. Cantonment Board Malir, discussing the requirements Sec.273 (4) of Cantonments Act, 1924 and Notice for filing suit and the Order of dispossession in terms of Sec.5 of the Central Government Lands & Buildings (Recovery of Possession) Ordinance, 1965 being;
i.Enquiry into nature of occupation of a person.
ii.Providing opportunity of being heard to the occupant.
iii.Satisfaction of the Federal Government or the delegated authority that a person is an unauthorized occupant of any land or building of the Federal Government.
iv.Pass an order in writing directing person found to be in unauthorized occupation to vacate the
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land or building.
v.Specify the period within which the building or land is to be vacated.
PLD 2002 Lahore page 290 -- Malik Muhammed Majeed v. Government of Pakistan -- The case discussing the principles of Estoppel and promissory estoppel, Locus poenitantiae and legal right. Conversion of classes of land under Cantonment Rules.
2001 MLD page 1591 -- Khursheed Bhutto v. Civil Aviation Authority -Discussing rights of government owned property and right of hearing.
1998 SCMR page 2268 -- Airport Support Services v. Airport Manager Quaid-e-Azam International Airport, Karachi -- discussing requirement of earlier notice under Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965.
1998 MLD page 1879 - D.G. Pakistan Coast Guards v. Zarina Jamshed discussing Central Government Lands and Buildings (Recovery of Possession) Ordinance 1965, bar of Sec.42 Specific relief act in respect of civil suit, having status of a license at will not a lessee nor becoming a tenant, the substance of the document to be looked into. The element of factual controversy on allegations of mala fide requiring framing of issues and leading of evidence.
1989 CLC 1204 - Saeed Ahmad Malik v. Navel Estate Officer- Bar of Sec 42 for civil suit for declaration of license and license itself as defined under Sec.60 of Easement Act along with its restraint/s. The case involving construction of workshop.
1992 CLC 1122 Imtiaz Hussain v. Government of Pakistan-- discussing the status of subsequent possession holder of an allottee not becoming a tenant on account of status of a licensee.
PLD 2015 SC 380 Government of Sindh v. Muhammed Shafi and others -- discussing lease in perpetuity, language of the lease is to be looked into, nature of lease for 30 years with right to raise construction thereon (BOT) Build, Operate and Transfer.
22.In the circumstances although this application is being dismisses without any orders as to cost on account of first impression, it is held that the plaintiff is entitled to a first refusal for the subject plot as is being offered to anyone else at the same terms and conditions.
23.The plaintiff, however, is required to pay all the outstanding up to the date of handing over of the possession as was being paid earlier in the matter and the option of refusal is also subject to the said payment.
24.This application stands dismissed, parties to bear their own costs.
2 to 4 - CMAs Nos.14430/2015, 14665/2015, 14654/2015 - Applications for contempt of Court: These applications where the orders of this Court have finally been complied with, are liable to be considered after the parties have led their evidence and at present do not invite further proceedings, the same are deferred for considered accordingly.
5 - CMA No.14985/2015 - Application under Order VII, Rule XI, C.P.C.
Irrespective to the fate of the injunction application, the suit of the plaintiff can still be entertained in respect the damages claimed requiring deeper appreciation through evidence.
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This application as such is misconceived at this stage as applicability of Order VII, rule 11, C.P.C. are not attracted to whatever is left in the suit at this stage. The application is dismissed with costs.
There are the reasons for the order announced in the morning.
ZC/S-77/SindhApplication dismissed
[Sindh]
Before Mahmood Ahmed Khan, J
SHELL PAKISTAN LIMITED through duly constituted Attorney----Applicant
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Defence and 2 others----Respondents
C.M.As. 14210, 14430, 14665, 14654 and 14985 in Suit No.1875 of 2015, decided on 3rd June, 2016.
Specific Relief Act (I of 1877)---
----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and permanent injunction---Lease of land for establishing Petrol/CNG station---Temporary injunction, grant of---Scope---Parties could not have more than what they had bargained---Court of law could not be utilized to acquire a position not bargained for by the parties---Parties having agreed to lease for a period of ten years and thereafter the agreement transformed into a license requiring consent of the lessor for holding on to the possession---No one could give a better title to what he was holding---Plaintiff could not claim any better treatment from the defendant---Plaintiff could avail the option available to him at the terms for which it might be given to anyone else---Plaintiff should be given first option of refusal to acquire the suit property at the terms and conditions as being offered to any other party---High Court directed that plaintiff should pay the outstanding amount up to the date of handing over of the possession as was being paid earlier and option of refusal should be subject to the said payment---Petition for temporary injunction was dismissed in circumstances.
PLD 1971 Kar. 35; PLD 1962 Kar. 663; 2007 YLR 228; PLD 1957 (W.P) Kar. 781; 1995 SCMR 459; 1993 CLC 1606; 2000 SCMR 1305; PLD 1974 SC 134; 1996 CLC 570; 2006 CLD 674; 2003 MLD 9; 1985 CLC 2309; 1984 CLC 3019; 1994 MLD 527; 2010 CLC 354; PLD 1975 SC 37; PLD 1967 Dacca 190; 2010 CLC 1843; 1997 MLD 848; PLD 1966 SC 684; 2014 MLD 1186; PLD 1993 Kar. 700; 1995 MLD 883; 2004 SCMR 113; PLD 1976 SC 785; PLD 1965 SC 671; PLD 1997 SC 3; 2015 MLD 1688; PLD 1964 SC 106; 2002 MLD 1673; 1997 SCMR 1, 2008 CLD 239; PLD 1981 SC 137 and PLD 2001 SC 131 ref.
Saeed Ahmad v. Cantonment Board Malir 2005 CLC 388; Malik Muhammed Majeed v. Government of Pakistan PLD 2002 Lah. 290; Khursheed Bhutto v. Civil Aviation Authority 2001 MLD 1591; Airport Support Services v. Airport Manager Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268; D.G. Pakistan Coast Guards v. Zarina Jamshed 1998 MLD 1879; Saeed Ahmad Malik v. Navel Estate Officer 1989 CLC 1204; Imtiaz Hussain v. Government of Pakistan 1992 CLC 1122 and Government of Sindh v. Muhammed Shafi and others PLD 2015 SC 380 rel.
Salahuddin Ahmed for Plaintiff.
M. Umer Riaz for Defendant No.1.
Sohail H.K. Rana for Defendant No.2.
Syed Haider Imam Rizvi for Defendant No.3.
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ORDER
Dates of hearing: 26th November, 10th, 11th December, 2015 and 14th March, 2016.
MAHMOOD AHMED KHAN, J.--- 1. C.M.A. No.14210/2015 This is an application under Order XXXIX, rules 1 and 2, C.P.C. and praying for restraint of defendants Nos.1 and 2 from interfering with the peaceful possession of the plaintiff from the premises of fuel station bearing Survey No.59/1/A, measuring 0.716 acre (3465.44 square yards), situated opposite Piccadilly Cinema, Quid-e-Azam Square, Malir Cantonment (hereinafter referred to as 'said property') so also from interfering with the operation of the Petrol / CNG station thereon, access of the plaintiff, the licensee's staff and supply tankers thereto, in the suit for declaration, cancellation, permanent injunction and damages filed by Shell Pakistan Limited against (1) Federation of Pakistan (2) Cantonment Board Malir and (3) Jamal A. Ansari.
2.The background of the matter is that the plaintiff is in possession of the subject property through a lease dated 07.11.2005 issued to the predecessor-in-interest of the defendant No.3 namely Furqan Ahmed for establishing of Petrol/CNG station against consideration as agreed therein and now the plaintiff is under threat of dispossession.
3.It is the case of the plaintiff that at the time of execution of lease agreement the predecessor of defendant No.3 paid an amount of Rs.4.15 million as premium and a sum of Rs.3,465,440/- as one time development charges making the total of Rs.7,615,440/- and further the lessee was required to pay Rs.290,500/- as yearly rent to the defendant No.1. The plaintiff at the time of establishment of the said Petrol Pump confirmed about renewal of lease being of a short term of 10 years and it was confirmed that the lease could be renewed after the said period and even in case of re-auction the plaintiff would be given preference by a letter dated 18.11.2015 of defendant No.2, as such, the plaintiff executed a sub-deed with all the equipment required for a Petrol Pump and plaintiff initially paid a sum of Rs.7.2 million to the defendant No.3 on account of lease premium and was further obliged to pay substantial increased payments towards the monthly rent and at present Rs.150,000/- is being paid regularly by the defendant No.3. The plaintiff acquired the required license in this regard erected all the required installation and with all the ancillary facilities for establishment of Petrol and CNG station injecting an amount of Rs.8.0 million for construction of the building structure and installation of 360 KW PMT and Electric connection against a consideration of Rs.5,368,649/-. It is claimed by the plaintiff that about 40 million was required for setting up the said Petrol Pump and CNG station, which was made under the understating that the lease of the demised premises would be further extended from time to time subject to regular payment. That under intimation to defendants Nos.1 and 2 the original lessee has assigned his rights in favour of defendant No.3 and later on plaintiff granted license to defendant No.3 to act as retailer for the said Petrol Pump. The defendant No.3 required to arrange for renewal of the lease for another period of 10 years on 05.03.2015 showing his willingness. However, on 29.09.2015, the defendant No.2 suddenly issued a notice to defendant No.3 with direction to hand over the possession of the Petrol Pump without any notice to the plaintiff and defendant No.2 has been under threat of being made un-function-able. The plaintiff claims that the actions of defendant No.2 are unlawful, mala fide and the proposed eviction of the plaintiff is designed to benefit certain favorable persons by handing them not only the said premises but also the station construction thereon. The plaintiff claims that defendant No.2 is not authorized to unilaterally eject the plaintiff being a lawful sub-tenant as it is neither owner nor the lessee of the demised premises and the said defendants are estopped under the doctrine of promissory estoppel from ejecting the plaintiff without cause as they expressly assured the plaintiff and its predecessor of continuation of business and establishment of the Petrol/CNG station. The plaintiff claims to be a tenant in respect of demised premises and is entitled to lawful possession until duly ejected in accordance with the applicable rent laws. The plaintiff also claims that reputation of the plaintiff has adversely been affected and claims Rs.20
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million as general damages suffered.
4.The defendants Nos.1 and 2 oppose the application claims that the plaintiff has no legal character/vested right to file the suit against the said defendants as the plaintiff is neither owner of the plot in question nor the lessee of the plot and has no locus standi to file the suit. It is further stated that all the terms and conditions of the lease expired on 09.10.2015, the defendants referred to the lease and specified period therein and denied having any prerogative to change the terms and conditions of the said lease which required the handing over of the peaceful possession to the defendant No.2 acting on behalf of defendant No.1 and also referred to the general public information in the newspaper specifying terms and conditions on the auction by which the plaintiff acquired the premises. It was claimed that the notice has rightly been issued and the defendant No.2 is required to hand over the peaceful possession on expiry of the lease.
5.The defendant No.2 further claimed to be bridge between Federation of Pakistan and the lessee who is claimed to comply with the terms and conditions of the lease as per Schedule-IX (modified) of the CLA Rule, 1937 by the Federal Government and it was claimed that after expiry the defendant No.2 is entitled to resume the possession of the plot by sealing the same. It is further alleged that the defendant No.2 has resolved for re-auction of said plot for 10 years vide CBR No.25 dated 11.09.2015. The said defendant also alleged failure of issuance of notice by the plaintiff under section 273 of the Cantonments Act, 1924 claiming the same to be mandatory and as such, claimed that the suit is barred by law and is not maintainable along with non-existence of cause of action along with there being no relationship between the plaintiff and the said defendants. It is also claimed by the said defendants that the application and accompanying affidavit are baseless, incorrect and denied calling upon the plaintiff's failure to show the sublease as alleged. It is further alleged that plaintiff has earned maximum amount and profit. It is also claimed that in accordance with the lease agreement's clause 12 on expiry of the lease period the structure constructed thereon shall become the property of Cantonment of Malir and the lessee shall not claim any compensation whatsoever on that account. It was further claimed that the main lease in question 'annexure-A' to the plaint was executed on 10.10.2005 and the plaintiff is wrongly claiming the same to be for 17.11.2005 and further clarified that adhesive stamp was affixed on 07.10.2005. It is claimed by the said defendants that a proper price for re-auction requires the acquisition of the possession of the petrol pump, as such, the plaintiff was required to hand over the possession. It was further claimed that the interim orders in the matter have been obtained by misrepresentation and concealment of the facts.
6.The defendant No.3 supported the case of the plaintiff.
7.Learned counsel for the plaintiff claims that the plaintiff had a right of holding over and claims that the plaintiff had acquired his right for the premises as sublease in the matter was executed with the consent of Cantonment Board. In the matter factual controversy is present and evidence is required and reliance has been placed by him on the letter dated 18.11.2005 of the defendant No.2 `annexure-B' of the plaint and it is further contended that the date of sublease is subsequent to the said letter. It is also contended that as the restraining clause does not provide a penalty the same is not liable to be considered. He has made an attempt to distinguish mandatory and directory provision of law and in this regard sought support from section 105 of the Transfer of Property Act and section 52 of Easements Act.
The learned counsel for the plaintiff has relied upon the cases reported at PLD 1971 Karachi page 35, PLD 1962 Karachi page 663, 2007 YLR page 228, PLD 1957 (W.P) Karachi page 781, 1995 SCMR page 459, 1993 CLC page 1606. Interpretation of mandatory and directory nature 2000 SCMR page 1305, PLD 1974 SC page 134, 1996 CLC page 570, 2006 CLD page 674, 2003 MLD page 09, 1985 CLC page 2309, 1984 CLC page 3019, 1994 MLD page 527, PLD 1975 SC page 37 and 2010 CLC page 354.
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8.Learned counsel for the defendant No.2 contends that the suit is not maintainable and that the same is liable to be dismissed as the actions have been taken under The Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965. The learned counsel for the defendant No.1 supports the contentions as advanced by the learned counsel for the defendant No.2.
Learned counsel for the defendant No.2 has placed reliance upon the cases reported as PLD 1967 Dacca page 190, 2010 CLC page 1843, 1997 MLD page 848, PLD page 1966 SC page 684, 2014 MLD page 1186, PLD 1993 Karachi page 700, the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965, 1995 MLD page 883, 2004 SCMR page 113 and PLD 1976 SC page 785.
9.Learned counsel for the defendant No.3 supports the contentions of the plaintiff and further argues that possession is not liable to be taken away from the plaintiff have a right arising from letter dated 18-11-2005 (annexure "B" to the plaint page-53) and that in the matter a new petrol pump/C.N.G. station is not available as (a). O.G.R.A. Commercial License of CNG is not transferable (there is a ban imposed on the issuance of new license of C.N.G.) (b). SSG license of CNG) (c). K-Electric connection is not transferable (c) Shell Pakistan Limited cannot hand over all the required N.O.Cs.
Learned counsel for the defendant No.3 has relied upon annexure "B" to the plaint i.e. page-53, paras No.6 and 9 of the counter affidavit, NOC for CNG and cases reported as PLD 1965 SC page 671, PLD 1997 SC page 03, 2015 MLD page 1688, PLD 1964 SC page 106 and 2002 MLD page 1673.
10.Learned counsel for the plaintiff during rebuttal denied any authority of the Central Government on account of the classification of land and further contented that the rent laws are applicable in the matter as such the plaintiff had become a statutory tenant and can be evicted only in accordance with the applicable law.
11.The matter was taken up for re-hearing on 14-3-2016 wherein the learned counsel as were present adopted the earlier arguments, however the learned counsel for defendant No.2 was pleased to make further reliance upon;
Rules 9, 19 and 43 of Cantonment Land Administration Rules, 1937 along with Rules 7, 8, 9 and 10 of Pakistan Cantonment Properties Rules, 1957 and 1997 SCMR page 1, 2008 CLD 239, PLD 1981 SC 137, PLD 2001 SC page 131.
12.Having heard the learned counsel at the conclusion of their arguments they were called upon by me to provide assistance in regard to the basic document wherein the parties have determined their rights i.e. annexure 'A' to the plaint being the document titled "Schedule IX (Modified) of the CLA Rules, 1937, Lease for Petrol Pump/CNG site comprising Survey No.59/1/A opposite Picadilly Cinema Quaid-e-Azam Square Malir Cantonment" the indenture made on 10th of October, 2005. The said document being a registered document and otherwise undisputed by the parties in my humble understating provides for the rights between the parties and the parties are restricted to claim their rights accordingly.
13.To further simplify the understanding the question that was put up was "whether this document is a 'lease' or a 'license'? The reply as came forwarded from the learned counsel for the plaintiff was that the same is definitely a lease as the defining and distinguishing element between a lease and license is the exclusivity of possession which according to him is present therein.
14.The learned counsel for the defendants Nos.1 and 2 though agreed to the contention that exclusivity of possession is a basis of determination for a lease or license declined to take a clear stand in the matter.
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15.In all the forgiven authorities as relied upon by the learned counsel unfortunately the aforementioned primary document i.e. Schedule IX (Modified) of the CLA Rules, 1937 nor the relevant law and its terms have not been discussed as such the same are distinguishable from the present case except for the those discussed herein.
16.While accepting that the exclusivity of possession is one of the primary difference between a lease and a license, to my humble understanding the said document provides an exclusive possession for 10 years only and thereafter the said rights of possession are agreed to be not present as such the said document is a lease for ten years and thereafter, it transforms into a license requiring consent of the lessor for holding on to the possession. The consent of defendant No.1 for continuation of possession as is being relied upon and denied by the contesting parties however do not provide for any element of perpetuity of possession at the past rate agreed, as such is unable to entitle for the plaintiff to continue possession at the quantum of consideration which perhaps is the real controversy which un-fortunately has not been stated.
17.The parties cannot have more than what they had bargained for as the contract between them is the law between them and court of law cannot be utilized to acquire a position not bargained for. The parties having agreed to lease for a period of 10 years and thereafter the license requires only notice of termination as the exclusivity of possession is no longer available, the defendant accept what was never agreed. I am also fortified to this understanding further by the approach made by the plaintiff to the concerned defendant for continuation of lease which can only be made knowing well what lies ahead and the alleged investments made by the plaintiff need no comments being business decisions.
18.As to the plaintiff who is claiming his entitlement through the defendant No.3 under the established law whereby "no one can give a better title to what he is holding" the plaintiff cannot claim any better treatment as such is entitled to the same rights only to their full extent but with the constrains and limitations as present and no more, as it does not bear from the record that the terms of possession were ever changed between the parties.
19.The plaintiff can however avail the option available to him in terms of natural justice to be offered the subject premises at the terms for which it may be given to anyone else, as it is not the case of defendant No.1 that the premises is going to be used for any other purpose, rather the record shows otherwise.
20.The plaintiff under the natural principles of justice is to be given the first option of refusal to acquire the said property at the terms and conditions as is being offered to any other party.
21.The following cases were found source of guidance in the matter;
2005 CLC page 388 - Saeed Ahmad v. Cantonment Board Malir, discussing the requirements Sec.273 (4) of Cantonments Act, 1924 and Notice for filing suit and the Order of dispossession in terms of Sec.5 of the Central Government Lands & Buildings (Recovery of Possession) Ordinance, 1965 being;
i.Enquiry into nature of occupation of a person.
ii.Providing opportunity of being heard to the occupant.
iii.Satisfaction of the Federal Government or the delegated authority that a person is an unauthorized occupant of any land or building of the Federal Government.
iv.Pass an order in writing directing person found to be in unauthorized occupation to vacate the
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land or building.
v.Specify the period within which the building or land is to be vacated.
PLD 2002 Lahore page 290 -- Malik Muhammed Majeed v. Government of Pakistan -- The case discussing the principles of Estoppel and promissory estoppel, Locus poenitantiae and legal right. Conversion of classes of land under Cantonment Rules.
2001 MLD page 1591 -- Khursheed Bhutto v. Civil Aviation Authority -Discussing rights of government owned property and right of hearing.
1998 SCMR page 2268 -- Airport Support Services v. Airport Manager Quaid-e-Azam International Airport, Karachi -- discussing requirement of earlier notice under Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965.
1998 MLD page 1879 - D.G. Pakistan Coast Guards v. Zarina Jamshed discussing Central Government Lands and Buildings (Recovery of Possession) Ordinance 1965, bar of Sec.42 Specific relief act in respect of civil suit, having status of a license at will not a lessee nor becoming a tenant, the substance of the document to be looked into. The element of factual controversy on allegations of mala fide requiring framing of issues and leading of evidence.
1989 CLC 1204 - Saeed Ahmad Malik v. Navel Estate Officer- Bar of Sec 42 for civil suit for declaration of license and license itself as defined under Sec.60 of Easement Act along with its restraint/s. The case involving construction of workshop.
1992 CLC 1122 Imtiaz Hussain v. Government of Pakistan-- discussing the status of subsequent possession holder of an allottee not becoming a tenant on account of status of a licensee.
PLD 2015 SC 380 Government of Sindh v. Muhammed Shafi and others -- discussing lease in perpetuity, language of the lease is to be looked into, nature of lease for 30 years with right to raise construction thereon (BOT) Build, Operate and Transfer.
22.In the circumstances although this application is being dismisses without any orders as to cost on account of first impression, it is held that the plaintiff is entitled to a first refusal for the subject plot as is being offered to anyone else at the same terms and conditions.
23.The plaintiff, however, is required to pay all the outstanding up to the date of handing over of the possession as was being paid earlier in the matter and the option of refusal is also subject to the said payment.
24.This application stands dismissed, parties to bear their own costs.
2 to 4 - CMAs Nos.14430/2015, 14665/2015, 14654/2015 - Applications for contempt of Court: These applications where the orders of this Court have finally been complied with, are liable to be considered after the parties have led their evidence and at present do not invite further proceedings, the same are deferred for considered accordingly.
5 - CMA No.14985/2015 - Application under Order VII, Rule XI, C.P.C.
Irrespective to the fate of the injunction application, the suit of the plaintiff can still be entertained in respect the damages claimed requiring deeper appreciation through evidence.
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This application as such is misconceived at this stage as applicability of Order VII, rule 11, C.P.C. are not attracted to whatever is left in the suit at this stage. The application is dismissed with costs.
There are the reasons for the order announced in the morning.
ZC/S-77/SindhApplication dismissed
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