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Writ Petition No. 147 of 1957, decided on 20th March 1958.
, S. 48 (2)‑‑ Sanction of Revenue Commissioner does not have effect of an order binding on Municipality.
Held, that sanction of the Revenue‑ Commissioner given under S. 48 (2) of the Sind Municipal Boroughs Act (XVIII of 1925) to a lease is not an order binding on the. Municipality. So far as the sanction was concerned, the Municipality could rescind its decision to grant the lease.
, S. 7‑Counter offer is not acceptance of original offer.
‑Lease granted by Municipality‑Not a fat subject or writ proceedings‑Municipality does not act as a quasi judicial body‑Constitution of Pakistan, Art. 170.
Muhammad Nasim for Petitioner.
Abdul Kadir Shaikh for Respondents 1 & 2.
Hafiz Sultan Ahmed for Respondent 3 and A. A. Fazil for Respondent 5.
--‑ The case of the petitioner is that one Dr. Chimandas was honorary Secretary of a Charitable Institution for the uplift of the Harijan community. In about 1940 he obtained 7 years lease of the property in dispute from the Municipality and when it expired on March 31st 1947, he obtained another lease for one year expiring on 31st March 1948. In June 1946 he applied for a lease of the said land for 99 years. Thereupon by his letter dated February 22nd 1947, the Administrator requested the Revenue Commissioner to sanction the grant of land to the Institution on a lease for 99 years. The Commissioner by letter dated June 14th 1947, gave approval.
The conditions as appear from the Municipality's report dated 27/1/1956 were communicated to Dr. Chimandas, but he migrated to India, and the allegation in the writ petition that he gave no reply, has not been traversed by the respondents. No lease for 99 years was executed. In 1948 the petitioner took the property on lease for one year and it was extended from year to year till 1956, when the Municipality granted the petitioner a lease for 7 years.
Respondent III obtained an‑ allotment order on July 29, 1956 from the Assistant Rehabilitation Commissioner. The petitioner's appeal was granted by Respondent II, the Deputy Rehabilitation Commissioner, but in review the Deputy Rehabilitation Commis sioner passed a stay order, and later rejected the appeal of the petitioner on December 8, 1956. Thereafter the petitioner filed an application under s. 18 of the Administration of Evacuee Property Ordinance before the Assistant Custodian. The application was dismissed, but in appeal the Additional Custodian held that the petitioner's rights of lease were non‑evacuee and that the petitioner was entitled to be restored possession. There after the Administrator of the Municipality purported to cancel the petitioner's lease and to sanction a lease in favour of respondent 111. Finally Respondent III filed a revision petition before the Custodian against the order of the Additional Custodian, and the Custodian reversed the order of the Additional Custodian. The petitioner, therefore, prays that the allotment order in favour of respondent III should be set aside, that the order of the Custodian be set aside and that the order of the Administrator of the Municipality granting a lease to respondent V (sic) should be set aside and respondents I to III should be ordered to restore possession of the property to the petitioner.
The first question which arises is whether there is an error of law apparent on the face of the order of the Custodian. The Custodian agreed with the Additional Custodian that the lease right of the evacuee Dr. Chimandas which vested in the Custodian could not go beyond the last day of March 1948, in so far as those rights were dependent upon the lease which expired on March 31, 1948, but he held that since the Revenue Commissioner sanctioned the grant of 99 years lease in favour of Dr. Chimandas, there could be no doubt that under the law the Municipality was bound to carry out the behest of the Revenue Commissioner who was the local Government then, and that the Municipality could not possibly disobey this order and that therefore Dr. Chimandas had a right to have the lease executed and that this right vested in the Custodian. The learned Custodian recognises the fact that the lease had not in fact been executed. As his judgment stands, the Custodian, with due respect, has fallen into an error patent on the face of the record of considering that the sanction of the Revenue Commissioner amounted to an order binding on the Municipality. S. 48 provides that Municipality shall be competent to lease an immovable property, subject in the case of a lease of immov able property for a term exceeding 7 years, to previous sanction of the Revenue Commissioner, and there can be no doubt that this sanction is what the Administrator applied for in his letter of 28th February 1947, and what the Revenue Commissioner accorded by his letter dated 14th June 1947. Such a sanction is not an order binding on the Municipality, and so far as the sanction is concerned the Municipality, if it wished, could A have rescinded its decision to grant a 99 years' lease to Dr. Chimandas.
The respondents, that is to say the Rehabilitation Authorities, the Custodian and the person now in possession (the Municipality had remained ex parte), contended that s. 53 (a), Transfer of Property Act, applied. The argued that there was a written contract signed by the transferor. The evidence on record touching this point is contained in the Administrator's letter dated the 28th February 1947, the order of the Revenue Commissioner dated the 14th June 1947 and the report of the President of the Municipality to the Deputy Commissioner Hyderabad dated the 27th January 1956. In the letter dated the 28th February 1947, the Administrator states :‑
I enclose copies of documents noted in the margin and request you to accord your sanction to the proposal of giving a free grant of land measuring 4429 sq. ft. as shown in the accompanying sketch on 99 years lease to Rank rishina Ashram. This land was originally granted to Ramkrishina Ashram on 7 years' lease, on the expiry of which early this year the lease was renewed for one year. Now the Ashram authorities applied for the plot to them on permanent lease (for 99 years) .
I therefore recommend that the grant of this plot in favour of Ramkrkhina Ashram be sanctioned for 99 years lease on the following terms and conditions:‑
(1) That the grant shall be on 99 years lease and the Ashram shall pay Re. 1/‑ per annum as rent.
(2) That the Ashram shall pay all survey and sanad feels expenses.
(3) That the land shall be utilized for constructing building which shall be used only as a school and recreation ground attached to it for the children of Harijans studying at the school and in no way shall the same be utilized for any other purpose.
(4) That the building shall be constructed and completed within 3 years from the date of sanction of the grant by the Revenue Commissioner for Sind.
(5) & (6) (a condition for re‑entry in case of the breach of the conditions).
The documents noted in the margin were a letter from Dr. Chimandas, the Chief Officer's report of the former Administrator and a further application from Dr. Chimandas expediting the matter and the sketch of the land. The Revenue Commissioner's order is merely " sanctioned".
In the report of the President of the Municipality it was stated :‑
"Subsequently on 3rd June 1946 the said Dr. Chimandas applied to the Municipality for the lease being converted into 99 years' lease ..The Municipality sanctioned the request and submitted it for approval of the Revenue Commis sioner ..The Revenue Commissioner's approval was received." He then set out the various conditions of the grant and continued. That before the Honorary Secretary of the Ashram viz., Dr. Chimandas could comply with the conditions communicated to him and enter into an agreement, the said Honorary Secretary migrated to India and the Ashram ceased to function. Accordingly the sanction of the Municipality and the Revenue Commissioner became inoperative. The land therefore could not be said to have been validly trans ferred to the Ashram on 99 years' lease basis."
In paragraph 4 of the petition it was stated :‑
" The conditions were communicated to Dr. Chimandas. He gave no reply. It appears that he did not pursue the matter further because the scheme of partition of India was announced on June 4, 1947."
This paragraph of the petition was not denied by any of the respondents.
The first question for consideration is whether from these documents and facts stated therein, I should infer that a contract for lease had been concluded between the Municipality and Dr. Chimandas. It is true that Dr. Chimandas had made a proposal, but we do not know the terms of that proposal except that he wished to have a 99 years' lease. So far as the correspondence goes, it appears that the conditions were laid down by the Municipality and that these were communicated to Dr. Chimandas.
Section 7 of the Contract Act states :‑
" In order to convert a proposal into a promise, the acceptance must be absolute and unqualified."
And it appears to me that when the conditions were communicated to Dr. Chimandas, what in fact took place, was the communication of a counter offer, and not the communication of acceptance of his proposal.
Secondly, the only statement in the document, is that the conditions were communicated to Dr. Chimandas. There is nothing in the correspondence to show who signed this communication, and even assuming that such communication amounted to the formation of a contract, yet s. 53 (a) requires that the contract shall be signed by the transferor, which in this case according to s. 48 of the Sind Boroughs Act, 1925, mean the Chief Officer, or if the Administrator was in charge, the Administrator.
Thirdly, Dr. Chimandas was already in possession and some further act beyond possession was necessary. No such act is on record either on his part or on the part of the Custodian.
The Additional Custodian and the Custodian agreed that in the period of a lease is fixed, the Custodian's rights thereon do not extend beyond that period. As the learned Custodian said "what is vested in the Custodian under the law is the right of an evacuee whether it is of a proprietary character or otherwise. If it is a tenancy right or a lease right it must continue for the period for which it is fixed. If the tenancy right is from year to year the Custodian cannot claim any greater privilege than that which is allowed under the law for month to month tenancy. In this case, therefore, normally the lease‑rights of evacuee Dr. Chimandas which vested in the Custodian immediately after the partition could not go beyond the last day of March, 1948 ".
The petitioner than obtained yearly leases from the Municipality from April 194&, until he obtained the lease for 7 years in 1956. The first allotment order on record regarding this land was made in 1955. It purported to be in exercise of power under S. 14 (1) of the Pakistan Rehabilitation Ordinance; 1949. This section authorises the Rehabilitation Authority to allot any evacuee property to any person, but it does not authorise the Rehabilitation Authority to allot non‑evacuee property. (The words " Pak Rehb. Ordinance " in the allotment appear to be a slip and a mistake for " Pakistan Administration of Evacuee Property Ordinance 15 of 1949".
It was argued on behalf of the respondent that the petitioner should have approached the Rehabilitation Commissioner in revision before applying under S. 20 or filing a writ petition. Since S. 20 applies to his case and since the Custodian, and not the Rehabilitation Authorities is the final arbiter whether property is or is not evacuee property, it appears to me that the petitioner was perfectly justified in filing a writ petition under S. 20 of the Ordinance. When, therefore, the Custodian passed an Order upon the revision petition of respondent III holding that the property was evacuee property, the petitioner's only course to have the Custodian's order set aside" was to move this Court by way of writ petition.
Respondent III obtained a lease from the Municipality, and one of the prayers of the petitioner is that this lease should be quashed. It does not appear to me that a lease granted by the Municipality is a fit subject of a writ petition. The Municipality, in granting a lease does not, in my opinion, act as a quasi‑judicial body, nor is there any duty cast upon the Municipality by statute or common law to grant a lease, hence neither certiorari nor mandamus lies, nor is there any question of fundamental rights concerned. The petitioner is at liberty to treat that lease which is inconsistent with his own lease as a nullity. Nor for the purpose of this writ petition can respondent III rely upon his lease to protect his possession, for he entered into possession under an allotment order which, as I have held above, was ultra vires of the Rehabilitation Authorities.
I, therefore, quash the order of the Custodian declaring the property to be evacuee and the order of allotment dated July 29, 1955 passed by respondent I in favour of respondent III and the order dated December 3, 1956, passed by respondent II. I direct that respondents 1, 2 and 3 do restore possession of the property to the petitioner. The petitioner is entitled to receive one set of costs of the petition from respondents 1,2, 3 and 5, jointly or severally.
A.H. Petition accepted.
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