Judgment Sheet

 

IN  THE  HIGH  COURT  OF  SINDH  AT  KARACHI

 

Constitutional Petition No. D – 464 of 2005

 

Date

                  Order with signature of Judge

 

 

        Present :

                                                                                Mr. Justice Nadeem Akhtar

                                                                        Mr. Justice Muhammad Iqbal Kalhoro

 

            Petitioner                :  Amir Ali, through Mr. Imran Ahmed Advocate.

 

            Respondent 1 & 3 : City District Government Karachi and

                                                the City Government, (now Karachi Municipal

                                                Corporation), through Syed Sultan Ahmed Advocate.

 

            Respondent No.2  : M/S International Garments, through

                                                Mr. Abdul Khalil Advocate.

 

            Respondent No.4  : Karachi Building Control Authority(now Sindh Building

                                                Control Authority), through Rao Sarfaraz Ahmed

                                                Advocate.

                                     

            Dates of hearing   : 14.10.2014 and 16.10.2014.

 

-----------------------------------

 

 

J U D G M E N T

 

NADEEM AKHTAR, J. – Through this Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the allotment and registered leases in favour of respondent No.2 by the defunct KDA / respondent No.1 in respect of two plots / extra lands each measuring 486.66 sq. yds., hereinafter referred to as ‘the disputed plots,’ situated between the plots of the petitioner and respondent No.2.

 

2.         The relevant facts of the case are that the petitioner is the owner of industrial Plot No.1-D/1, Street 9, Sector 16-B, North Karachi Township, Karachi, with a flour mill constructed thereon, and is running business on his said plot in the name and style of ‘Talha Flour Mill’. Respondent No.2 is the owner of industrial Plot Nos.1-D/4 and 1-D/5, Street 9, Sector 16-B, North Karachi Township, Karachi, and is running his business thereon in the name and style of ‘Al-Murtaza Traders’. There was a strip of open land on the rear side and adjacent to the plots of the petitioner and respondent No.2, which was earmarked for railway line. The disputed plots were situated on the said strip between the plots of the petitioner and respondent No.2. The scheme for laying the railway line was abandoned, whereafter the disputed plots were allotted by KDA / respondent No.1 to respondent No.2 followed by two separate registered leases dated 01.11.1994 in his favour.

 

3.         Mr. Imran Ahmed, learned counsel for the petitioner, contended that since the plots of the petitioner and respondent No.2 were adjacent to the disputed plots, both the parties were on equal footing and had equal right of allotment thereof in their favour ; both the parties had applied to KDA for allotment of the disputed plots, but the same were allotted only to respondent No.2 to the exclusion of the petitioner ;in all fairness, KDA ought to have allotted the disputed plots equally to the petitioner and respondent No.2 ; and, the petitioner had filed a complaint in this behalf before the Provincial Ombudsman, but in the said proceedings, KDA and respondent No.2 never disclosed about allotment of the disputed plots or execution of leases in respect thereof in favour of respondent No.2. He submitted that under the ‘Disposal of Land and Estates Regulations’ of the Karachi Development Authority (‘the KDA Regulations’), KDA was duty-bound to give a prior notice and an opportunity of hearing to the petitioner before disposing of the disputed plots by way of their allotment to respondent No.2. He relied upon regulation 23 of the KDA Regulations in support of this submission. The learned counsel further submitted that the disputed plots were disposed of by KDA in violation of regulation 29 as their allotment was not approved or made by the Allotment Committee constituted under regulation 2(c). He also submitted that the leases in favour of respondent No.2 are void as the same were executed by the Assistant Director Industries of KDA without any sanction by the Allotment Committee. It was urged that KDA has violated the preferential right of the petitioner in respect of the disputed plots, and the acts of KDA and respondent No.2 were discriminatory, collusive, malafide and illegal. In support of his submissions, the learned counsel placed reliance upon an unreported order passed by the Honouable Supreme Court on 04.04.2013 in Civil Appeal No.1161/2006, Babaddin alias Babu and others V/S Muhammad Rahim through his L.Rs. etc., and Mst. Nishat Mushtaq V/S Karachi Development Authority and others, 2004 YLR 1811.

 

4.         Mr. Abdul Khalil, learned counsel for respondent No.2 Ghulam Abbas, strongly opposed this petition and the submissions made on behalf of the petitioner. At the very outset, he pointed out that the petitioner has given a wrong description of respondent No.2 in the title of the petition by describing him as the sole proprietor of M/S International Garments. He stated that Plot Nos.1-D/4 and 1-D/5, along with the disputed plots, were purchased by Ghulam Abbas from M/S International Garments through a registered sale deed dated 05.10.1995, and since then he is in possession of the said plots as well as the disputed plots, and is carrying on business thereon in the name and style of ‘Al-Murtaza Traders’. He contended that after abandonment of the scheme of railway line, M/S International Garments applied on 15.02.1994 to KDA for annexation of the disputed plots as the same were lying vacant and were adjacent to their above mentioned two plots. The said application was processed and granted by KDA as per their rules and regulations, whereafter the agreed occupancy value and ground rent were paid by M/S International Garments to KDA and formal leases in respect of the disputed plots were executed and registered on 01.11.1994 in their favour. He further contended that the application for allotment of the disputed plots submitted by M/S International Garments was prior in time as the predecessor-in-interest of the petitioner had applied for allotment of the disputed plots to KDA on 12.04.1995, that is, after about fourteen (14) months of the application made by M/S International Garments and after more than five (05) months of execution of the leases in their favour. The learned counsel submitted that the petitioner became the owner of his plot in the year 2003, and he never applied to KDA for allotment of the disputed plots. He further submitted that the petitioner has no right whatsoever to question the ownership rights in the disputed plots acquired by M/S International Garments, the predecessor-in-interest of respondent No.2, for valuable consideration and through due process of law, which now exclusively vest in respondent No.2, especially when the petitioner has not initiated any proceedings before the competent Court for cancellation of the registered leases which are still subsisting.

 

5.         Syed Sultan Ahmed, learned counsel for respondents 1 and 3, submitted that KDA was not required or obliged, under the KDA Regulations or under any other law, to give any prior notice to the petitioner before allotting the disputed plots to M/S International Garments, or to allot the same to both the parties in equal proportions. He contended that allotment of the disputed plots was made by KDA by following regulation 23(ii) of the KDA Regulations. He emphasized that the disputed plots were allotted and leased out in favour of M/S International Garments much before the making of the application by the predecessor-in-interest of the petitioner. It was urged that in view of the above, there was no violation of any law or regulations by KDA. It was further urged that the leases of the disputed plots were executed on behalf of KDA by the Assistant Director concerned, as only such officers were authorized to execute documents on behalf of KDA. Regarding the cases cited by the learned counsel for the petitioner, Syed Sultan Ahmed Advocate submitted that the same are not relevant as their facts and circumstances and those of the instant case are clearly distinguishable.

 

6.         We have heard the learned counsel for the parties at length, and with their able assistance have also examined the material available on record as well as the law cited at the bar. The plots of the petitioner and respondent No.2 have been fully described in their respective registered lease deeds and in the site plans attached therewith. It is clear from the above that a strip of land on the rear side of their plots was earmarked and was left open for railway line. It is not the case of the petitioner that M/S International Garments were not the allottees of the plots adjacent to the disputed plots. On the contrary, it is an admitted position that the aforesaid strip of land was situated adjacent to the plots of M/S International Garments, and the disputed plots were allotted to them by KDA out of the aforesaid strip of land. Regulation 23(ii) of the KDA Regulations provides that if an extra land cannot be used as an independent plot or for any other public purpose, the same may be allotted by KDA to the allottee of the adjacent plot on his making an application to KDA. Since M/S International Garments were admittedly the owners of the plots adjacent to the disputed plots and they had admittedly applied for allotment to KDA on such ground, we are of the opinion that there was no irregularity or illegality in the allotment of the disputed plots in their favour. We are also of the opinion that if the preamble and regulation 23 of the KDA Regulations are read in juxtaposition, KDA was vested with full powers and authority to allot the disputed plots to M/S International Garments at fixed rate as the preamble provides for disposal of land and / or building thereon vested in or belonging to KDA at fixed rates or by auction or on rental basis and for matters connected therewith.

 

7.         It is also an admitted position that the application for allotment of the disputed plots was made by the predecessor-in-interest of the petitioner to KDA for the first time on 12.04.1995. Thus, when M/S International Garments applied on 15.02.1994 to KDA for allotment of the disputed plots, or for that matter when the leases in respect thereof were executed and registered on 01.11.1994 in their favour, no application of the predecessor-in-interest of the petitioner was pending before KDA for allotment of the disputed plots. In fact, the disputed plots were not available for allotment on 12.04.1995 when application for allotment of the disputed plots was made by the predecessor-in-interest of the petitioner, and as such the same could not be allotted to him. Admittedly, the petitioner purchased only Plot No.1-D/1 through a registered conveyance deed dated 30.08.2003 which was registered on 06.09.2003. The said conveyance deed in his favour was completely silent about the application made by his predecessor-in-interest for allotment of the disputed plots. In any event, as the predecessor-in-interest of the petitioner never acquired any vested or other right in the disputed plots, no right in respect thereof could be transferred or conveyed by him in favour of the petitioner. In view of the above, the petitioner is not entitled in law to assert any claim, right or interest in the disputed plots as a matter of right, and he cannot be deemed to be an aggrieved person for invoking the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

 

8.         The contention of the learned counsel for the petitioner that a prior notice and an opportunity of hearing ought to have been given to the petitioner by KDA before allotting the disputed plots to M/S International Garments, is without any basis. The learned counsel was unable to show us any such provision or requirement in the KDA Regulations. Likewise, his contention that the leases executed in favour of M/S International Garments are void as the same were executed by the Assistant Director Industries of KDA without any sanction by the Allotment Committee, is without any force. The petitioner has no locus standi to question the authority of the officer who had executed the leases on behalf of KDA, especially when KDA instead of disputing has all along ratified its said officer’s authority. Reliance by the learned counsel for the petitioner upon regulation 29 is of no help to him as we have already held that the allotment of the disputed plots was made by KDA in accordance with the provisions of the KDA Regulations.

 

9.         In the unreported case of Babaddin alias Babu (supra) relied upon by the learned counsel for the petitioner, commercial leases were executed in respect of an area forming part of road in front of a building. In view of the above reason, the leases were held to be void by a learned Division Bench of this Court, and the judgment was maintained by the Hon’ble Supreme Court. With respect to the learned counsel, the facts of the above case have no relevance with the case in hand.

 

10.       In Mst. Nishat Mushtaq (supra) relied upon by the learned counsel for the petitioner, an application for annexation of extra land was pending, but the same was allotted to some other person on the orders of the Sindh Chief Minister. By following the law laid down by the Honourable Supreme Court of Pakistan in the case of Bachal Khan V/S Fasahat Ali (Civil Appeal No.83-K/1987), it was held by the learned Division Bench of this Court in the cited case of Mst. Nishat Mushtaq (supra) that the impugned allotment was bad in law and was violative of regulation 23 of the KDA Regulations ; and, the allotment / lease and subsequent transfers in pursuance thereof were without lawful authority. The facts of the cited case were completely different as the allotment impugned therein was not made in favour of the allottee of the adjacent plot, but was made in favour of a third party on the orders of the Sindh Chief Minister ; whereas in the instant case, it is an admitted position that M/S International Garments were the allottees of two plots adjacent to the disputed plots, they had applied to KDA for annexation of the disputed plots on this ground, and their said application was prior in time. Thus, the cited case is of no help to the petitioner. On the contrary, the cases of Mst. Nishat Mushtaq (supra) and Bachal Khan (supra) go against the petitioner as in Bachal Khan (supra), the Honourable Supreme Court was pleased to hold that KDA has the discretion to allot extra land upon an application of an allottee whose plot is adjacent to such extra land ; and, an allottee cannot seek allotment through the intervention of the Court.

 

11.       In view of the above discussion, we have no hesitation in concluding that this petition is not maintainable either in law or on facts, and is liable to be dismissed.

 

12.       Foregoing are the reasons of the short order announced by us on 16.10.2014, whereby this petition and the listed application were dismissed with no order as to costs.

 

 

 

 

 

 

___________________

J U D G E

 

 

 

 

 

 

___________________    

J U D G E