ANWAR ZAHEER JAMALI, J.---The above titled two appeals arising out of consolidated judgment and decree dated 11-12-2000 passed in Suits Nos.1001 of 1997 and 10,2 of 1998, involving similar questions of law and fact, are being disposed of by this common judgment.
2. Relevant facts forming background of this litigation are that on 25-6-1997 respondent No.1 (hereinafter referred as NRL) filed a suit for declaration, injunction and cancellation of lease against the appellant (hereinafter referred as Dr. S.M. Rab) and respondent No.2 (hereinafter referred as KDA) with the following prayers:-- "Wherefore, it is prayed that this Honourable Court may be pleased to pass a decree in favour of the plaintiff and against the defendants in terms of the following:--
(a) declaring that defendant No.1 KDA has acted unla vrfully in granting allotment and lease of subject land road to defendant No.2 and order its cancellation of allot ment and lease;
(b) direct defendant No.1 to give defendant 2 alternate plot of land and after cancellation of lease to transfer the subject land to the plaintiff in lieu of the payment of this land already received by defendant No.1;
(c) declaring that plaintiff is entitled to ask and insist on defendants to keep this land/road open and unocc spied to ensure plaintiff refinery's security and safety;
(d) permanently restrain defendant No.2 from alienating or dealing with the subject land creating any further third party interest therein;
(e) pass appropriate orders and give necessary reliefs tinder Order VII, Rule 7, C.P.0 in the circumstances of the case in the interest of justice; and
(f) award costs of the suit."
3. In the plaint they stated that NRL is a company having majority of shareholding with the Federal Government; it is a major refinery of the country, which has been declared to be "key point I-A installation" from the national security point of view vide decision dated 25-3-1981 taken by the Government of Sindh. A strip of land 437 feet in width runs along southern side of refinery named as road 6000, which separates Sector 7 (refinery) and Sector 16 of the Korangi Industrial Area. As per general trend in the country, lately, through political pressure and manoeuvring various persons succeeded in obtaining allotment of portions of this land/road. Consequently, 45 plots were curved out from this strip of land which were allotted by K.D.A. to various persons. While, ten other plots from another strip/piece of land were allotted to other set of people. Plot No.37, Sector 16 Korangi Industrial Area Karachi (hereinafter referred as the suit plot) which is subject-matter of this litigation, was allotted to Dr. S.M. Rab, who subsequently got it leased from K.D.A. The NRL when learnt about allotment of plots in the strip of 437 feet wide road 6000, took up this issue with K.D.A: and agitated their grievance against such irregular allotments, whereupon NRL was informed about the K.D.A. Governing Body Resolution No.225 dated 7-12-1991 requiring them to pay Rs.2,37,16,740 to K.D.A. as compensation for the allottees of these 45 plots. Further case of NRL is that subsequently as per decision of Governing Body of K.D.A. allotments of all the 45 plots earlier made by the K.D.A. were cancelled and the allottees were accordingly compensated. However, Dr. S.M. Rab got lease deed of suit plot executed from K.D.A. in his favour which fact came to the knowledge of NRL on 29-1-1996 through letter of Deputy Commissioner Karachi (East), and consequently a meeting was held at his office on 13-4-1996 between the NRL and Dr. S.M. Rab. NRL further stated in the plaint that formation of plots from the strip of land (Road 6000) was improper, illegal and contrary to the policy of Government and even Dr. S.M. Rab did not wish to retain the suit plot and only desired adequate compensation, which K.D.A. is morally and legally bound to give him either in the form of allotting him an alternate plot or paying him cash compensation, which they had already received from NRL.
4. In their written statement, K.D.A. challenged the maintainability of the suit on various grounds. In the parawise reply they stated that towards the southern side of leased plot of NRL the total available strip was 432 feet, wherefrom the cross-section of road is of 182 feet width along the southern boundary of NRL, from the remaining area, 192 feet wide area is reserved for railway reservation and 58 feet wide road exists towards Nala on northern side of Korangi Township Sector
16. K.D.A. did not dispute carving of 45 industrial and commercial plots from the above area of 432 feet wide. They also conceded about the execution of registered lease deed of the Suit-plot No.37 in favour of Dr. S.M. Rab with the addition that as per procedure and rules of K.D.A. case of providing alternate plot to Dr. S.M. Rab was in process and it will be finalized on completion of legal formalities, K.D.A. also did not deny receipt of payment of Rs.2,37,16,740 from NRL.
5. Dr. S.M. Rab in his written statement, stated that on 24-1-1991 KDA had allotted him the suit plot; on 19-2-1991 vacant possession was handed over to him; and subsequently on 6-8-1991 registered lease for 99 years in respect of suit plot was executed in his favour. He further stated that NRL has unauthorizedly occupied his suit plot and their suit against him was not maintainable in law as they have no right, interest or legal character over the suit plot owned by him. Dr. S.M. Rab further stated that NRL has paid compensation to all the allottees of 44 other plots as per market value while' they are in possession of his plot since 1995 without any lawful justification and denying to pay him compensation or to settle the matter amicably which shows clear discrimination by them.
Dr. S.M. Rab also stated in his written statement that initially on 6-2-1984 he was allotted industrial Plot bearing No.6/13 in Sector 12-D, North Karachi by K.D.A. which was later on found under unauthorized possession and construction, thus, as an alternate plot, suit plot was allotted to him, possession was handed over and registered lease deed was executed in his favour. Dr. S.M. Rab also made reference about his meeting with the officers of NRL regarding payment of compensation as per market value of the plot and denied their allegations that NRL requires area of 432 sq. feet width towards southern side for maintaining safety zone. He further pleaded that registered lease of 99 years in his favour cannot be arbitrarily cancelled and that his plot does not fall within the security zone from the key point installation as alleged by NRL.
6. After filing of his written statement in Suit No.1001 of 1997, on 24-8-1998 Dr. S.M. Rab also filed a separate suit for declaration, possession, mesne profits and damages, being Suit No.1042 of 1998, against NRL and K.D.A. wherein, on the basis of his clear title over the suit plot and its occupation by NRL, he prayed for the following reliefs against them:-- "(1) To declare that the plaintiff is absolute/lawful owner/lessee of Plot No.37, Sector-16, Korangi Industrial Area, Karachi, vide lease deed executed by defendant No.2 on 6-8-1991 in favour of the plaintiff and the title documents of the plaintiffs are legal, proper and subsisting under the law.
(2) To declare the possession of the plaintiffs plot of land by defendant No.1 as illegal, unlawful, mala fide and without lawful authority. And further declare defendant No.1 a trespasser.
(3) To direct defendant No.1 to hand over the vacant and peaceful possession subject-matter of the plot of land to the plaintiff.
(4) To direct the defendant No.1 to pay mesne profit @ Rs.30,000 per month from July, 1995 and continue to pay till the possession of the subject-matter of the plot is handed over to the plaintiff by the defendant No.1 to the plaintiff.
(5) To direct defendant. No.1 in case they want to acquire/purchase the plaintiffs plot of land to follow procedure of law and to pay compensation at the prevailing rate of market value of the property to the plaintiff.
(6) To grant permanent injunction restraining the defendant No.1 from selling, alienating, handing over the physical possession of the subject-matter of the plot to anyone else and further defendant No.2 may be restrained from cancelling the lease of the subject-matter of the plaintiffs plot of land till disposal of the case.
(7) Decree suit in the sum of Rs.10.00 Million on account of damages against defendant No.1.
(8) Any appropriate and further relief this Honourable Court may deem fit and proper under the circumstances of the case.
(9) Cost of the suit."
7. In the other Suit No.1042 of 1998, KDA in their written statement stated similar facts as stated by them in their written statement in Suit No.1001 of 1997, whereby they had confirmed the title of Dr. S.M. Rab over the suit plot and denied the existence of 432 feet wide road 6000 toward the southern side of NRL's leased plot.
8. NRL, in their written statement in Suit No.1042 of 1998, also stated the same set of facts as stated in their plaint in Suit No.1001 of 1997 and disputed the claim of Dr. S.M. Rab over the suit plot on same grounds.
9. On 20th July, 1998, following issues were framed in Suit No.1001 of 1997: "(1) Whether the defendant No.1 has acted unlawfully in granting allotment and lease of subject land/road to defendant No.2---If so, its effect?
(2) Whether the subject land/road is essential for' the security and safety of the plaintiff and should be retained as an open land?
(3) Whether the suit is maintainable under the law?
(4) Whether defendant No.2 is the lawful, owner ( the commercial Industrial Plot No.37 Sector-16 Korangi Industrial Area and if so, its effect?
(5) Whether under the law plaintiff can invoke for cancellation and allotment of plot of defendant No.2 and defendant No.1 is legally bound to provide alternate plot of land to defendant No.2?
(6) What should the decree be?"
10. Later on, vide order dated 11-3-1999, both 1 hr suits were consolidated and following two further issues were framed:--
(1) Whether the plaintiffs are entitled to compensation as prayed in para. 7 of the prayer clause?
(2) Whether the defendant No.1 has illegally trespassed on the property of the plaintiffs and that the plaintiffs are entitled to mesne profits as prayed in clause (4) of the prayer clause?
11. Again, vide order dated 10-3-2000 passed on C.M.A. No.583 of 2000, following additional issue was framed in this suit:-- "Whether the defendant No.2/plaintiff Dr. S. M. Rab is entitled for the possession of the suit-land if so. from whom?"
12. To expedite the process of recording evidence, on 11-3-1999/10-3-2000, Commissioner was appointed for this purpose with the consent of the parties counsel. Before the Commissioner, NRL examined their Management Executive Gohar Zaman, and Assistant Manager Ahmed Jawaid. Dr. S.M. Rab examined himself and K.D.A. examined their employee Syed Muhammad Zubair. All these witnesses were cross-examined by the other side counsel, whereafter arguments of the learned counsel were heard. The learned Single Judge by his impugned judgment answered issues Nos.1, 2 and 3 in the affirmative and on the basis of such findings issue No.4 and additional issues Nos.1 and 2 were also decided against Dr. S. M. Rab. Consequently, Suit No.1042 of 1998 filed by Dr. S.M. Rab was dismissed while Suit No.1001 of 1997 instituted by NRL was decreed in the following terms:--
(i) Action of the K.D.A. in converting the road 6000 on the southern side of the NRL into industrial plots and thereby reducing the width of the wall of 432 to 250 is illegal, void and without any lawful authority.
(ii) That the width of road 6000 on the Southern side of NRL is to remain open up to 432 feet in width from the boundary wall of NRL and none of the parties/persons have any right or title thereto.
(iii) The allotment dated 24-1-1991 and lease deed dated 6-8-1991 executed by K.D.A. in favour of Dr. Rab for Industrial site No.37, Sector-16 Korangi Township Karachi are hereby cancelled being illegal and void ab initio and is to be delivered up.
(iv) The parties to bear their own costs.
13. We have 'heard arguments of learned counsel for the parties at length. Mr. Abul Inam, learned counsel for appellant Dr. S.M. Rab in his arguments summarized the facts of the case as stated in the plaint of Suit No.1042 of 1988 and contended that great injustice has been done to his client as for no fault on his part, despite full payments made by him, since 6-2-1984 he is running pillar to post to get one suitable plot for his genuine need, but in turn he has been dragged into unnecessary litigation. He made reference to the earlier allotment of Plot No.6/13, Sector 12-B, North Karachi, to Dr. S.M. Rab on 6-2-1984, which was later on cancelled due to unauthorized encroachment over it, to show that plot the suit viz. Plot No.37, Sector 16, Korangi, Karachi, was allotted and leased to him in the year 1991 as an alternate plot and no out of way favour was given to him as alleged by NRL. Making specific reference to the conduct of NRL during negotiations for amicable settlement, he submitted that from their conduct it is evident that they have attempted to blow hot and cold in the same breath as on one hand they have pleaded illegal conversion of a strip from road 6000 into 45 industrial plots and on the other hand they themselves have acquired title of all other 44 plots out of these 45 plots, excluding the disputed plot. In this regard learned counsel also made reference to various documents placed on record by KDA through their application under Order XLI, Rule 27 read with section 151, C.P.C., (C.M.A. No.2149/2004) to show execution of registered Sale Deeds in respect of some of these plots in the year 1995 in favour of NRL, copy of order dated 19-11-1995 whereby another suit instituted by NRL in respect of another plot in the same scheme was withdrawn, and site plan of 1971 showing the typical break up of 432 feet wide of road 6000, that from the very beginning 192/200 feet wide strip out of this total area was meant for railway reservation, which was subsequently, with the approval of Governing Body of K.D.A., utilized for carving out 45 plots, including the suit plot owned by Dr. S.M. Rab. To demonstrate the reasonable, fair and bona fide conduct of the appellant Dr. S.M. Rab, learned counsel also made reference to several other documents placed on record by NRL, which show that Dr. S.M. Rah, was willing to accept reasonable compensation by way of negotiation with NRL. In the same context he urged that once registered Lease Deed of the suit plot was executed by K.D.A. in favour of Dr. S.M. Rab on 6-8-1991, thereafter they had no legal or moral authority to either negotiate with NRL for sale/surrender of his plot to them or even to cancel its lease without due process of law.
Making reference to the claim of NRL regarding payment of some substantial amount to K.D.A. for acquiring title of all the 45 plots, Mr. Abul Inam reiterated that Dr. S.M. Rab was not party to any such settlement and after execution of registered Lease Deed of suit plot K.D.A. had also no authority to negotiate or receive any compensation/consideration on his behalf. Dilating upon the impugned judgment learned counsel contended that the learned Single Judge wholly misdirected himself in recording his conclusion about existence of 432 feet wide road 6000 towards southern side of NRL's plot as mere reference to this effect in their registered Lease Deed, which is belied from the copy of site sketch/layout plans of 1971/1978 produced by the K.D.A., was not enough to record such conclusion. In the same context he also referred to para .2 of the written statement filed by K.D.A. in Suit No.1001/1997 to show that such break up of 432 feet wide was clearly given by the K.D.A., which was the concerned authority to confirm the layout plan of the area, including road 6000. He urged that neither it was the case of NRL in their pleadings nor they had locus standi to take up such contradictory plea after obtaining title of 44 plots from the same strip of land for their own use.
14. In the end Mr. Abul Inam also reiterated the claim of Dr. S.M. Rab for restoration of possession of suit plot and awarding of mesne profit since July, 1995 at some reasonable rate. In the light of the above submissions learned counsel contended that the judgment and decree passed by the learned Single Judge are liable to be reversed so that the suit instituted by Dr. S.M. Rab may be decreed as prayed and the other one filed by NRL may be dismissed with costs.
15. Mr. Ainuddin Khan, learned counsel for appellant Dr. S.M. Rab in the other appeal adopted the arguments of Mr. Abul Inam Advocate with the addition that Suit No.1001/1997 instituted by NRL was incompetently instituted by an unauthorized person, thus, it was not maintainable in law and was liable to be dismissed as such without any further proceedings. For this purpose, he made reference to the preliminary objection No.1 to the written statement filed by K.D.A. on the basis of which issue No.3 regarding the maintainability of the suit was also framed. He contended that admittedly NRL is a company registered under the Companies Ordinance 1913, therefore, without due authorization through Board Resolution, the Assistant Manager Mr. Ahmed Javed, who had signed the plaint on behalf of company was not legally competent to sign or verify the plaint on behalf of company. To fortify this plea he made reference to the cases of (1) Khan Iftikhar Hussain Khan of Mamdot v. M/s Ghulam Nabi Corporation Limited Lahore (PLD 1971 SC 550) and (2) Abdul Rahim and 2 others v. M/s United Bank Ltd. of Pakistan (PLD 1997 Karachi 62).
16. On the other hand Mr. Arif Khan, learned counsel for the NRL contended that National Refinery Limited is a project of national importance and from the security point of view it has been declared as key point 1-A installation by the Government of Sindh. Towards its southern side 432 feet wide road 6000 has been shown in their registered lease Deed executed in the year 1983, therefore, subsequent change in the layout plan made by the K.D.A. and carving of 45 industrial plots therefrom is illegal. Learned counsel, however, did not dispute availability of 192 feet wide strip from 432 feet wide of road 6000, which was meant for railway reservation, and acquiring of title of 44 plots by NRL out of total 45 plots carved out of this strip by K.D.A. Further, learned counsel though challenged the maintainability of application under Order XLI, Rule 27, C.P.0 moved by K.D.A. in appeal but he did not dispute authenticity of any of the documents annexed with such application, which confirm that NRL not only acquired title of various plots from the same strip through K.D.A. but they also purchased some other plots in the same area through registered Sale-deeds, directly from the concerned parties. In reply to the plea of negotiations between NRL and Dr. S.M. Rab, which had taken place through mediation of Deputy Commissioner Karachi East, he contended that NRL was pressurized for such negotiations against their wishes. Adding force to his submission regarding the claim of NRL over all the 45 plots, including the suit plot, Mr. Arif Khan contended that as per demand of K.D.A., NFL has paid a sum of Rs.2,37,16,740 towards the total cost of hese plots which was in pursuance of the Resolution of Governing Body of K.D.A. dated 7-12-1991, thus, after such payment the claim of Dr. S.M. Rab over the suit plot is to be exclusively settled by the K.D.A. either by providing him an alternate plot or making adequate payment of compensation to him, but NRL cannot be dragged in such controversy.
17. Reverting back to his plea of existence of 432 feet wide road 6000 towards the southern side of NRL plot learned counsel conceded that though such fact has been mentioned in the registered deed dated 27-6-1983 in favour of NRL but as against it in the site sketch/drawings of road 6000 a strip of 192/200 feet wide is shown as reserved for railway. In the end learned counsel submitted that the impugned judgment and decree passed by the learned Single Judge decreeing Suit No.1001/1997 filed by NRL in the terms specified in the judgment and dismissing other Suit No.1042/1998 instituted by Dr. S.M. Rab is well-reasoned judgment, based on proper appreciation of evidence and other relevant record, thus,. these appeals are liable to be dismissed with costs.
18. We have carefully considered the arguments advanced by the learned counsel and perused the whole material placed on record by the parties.
19. In these appeals the crucial points for determ in, ion seem to be as under:--
(1) Whether Suit No.1001/1997 instituted by NRL was not maintainable in law?
(2) Whether road 6000 having 432 feet wide towards the southern side of the leased plot of NRL consisted of L92 feet wide strip, for railway reservation, even prior to the execution of registered Lease Deed dated 27-6-1983 in favour of NRL?
(3) Whether the suit plot was legally carved out by K.D.A. and after execution of registered Lease Deed in favour of Dr. S.M. Rab, K.D.A. had no authority either to negotiate for transfer of suit plot to NRL or to receive any sale consideration of suit plot on behalf of Dr. S.M.Rab?
(4) Whether Dr. S.M. Rab is entitled for restoration of possession of suit plot and also recovery of compensation/mesne profits, if so, for what period and at what rate?
20. Before we proceed to discuss the case of the parties and record our findings on the above formulated points for determination, it will be appropriate to first decide the fate of application under Order XLI, rule 27 read with section 151, C. P. C. (C. M.A. No. 2149 /2004) moved by K.D.A. on 11- 11-2004. By this application K.D.A. has sought permission to bring on record registered Sale-Deeds dated 13-12-1995 in respect of Plots Nos.85 and 87, Sector 16, Korangi Township, Karachi, executed in favour of NRL: order dated 19-11-1995 in Suit No.402/1993; consent deed regarding acquisition of plot in Sector 16, Korangi Industrial Area Karachi dated 6-12-1999; authorization letter dated 5-12-1995; Notification under the Sindh Ordinance X of 2003; statement on behalf of K.D.A./City District Government dated 6-4-2004; photocopy of cheque in the sum of Rs.2,00,000 dated 30-3-2004 and four layout plans in respect of Sector 16, Korangi Industrial Area, Karachi. This application has not been opposed by appellant Dr. S.M Rab. However, on 24-11-2004 counter-affidavit to this application has been filed on behalf of NRL wherein grant of this application has been mainly opposed on the ground that at this stage this application is misconceived and not maintainable in law because the documents now sought to be produced were available with K.D.A. during the pendency of the suit but the same were not produced deliberately. The genuineness or authenticity of none of these documents has been, however, disputed by NRL. Looking to the facts and circumstances of the case with reference to the crucial controversy regarding the actual width of road 6000 and its layout plan involved in these appeals and respectfully following the ratio of judgments in the case of Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Limited PLD 1966 SC 684 and Zar Wali Shah v. Yousaf Ali Shah 1992 SCMR 1778 we are of the view that it will be in the interest of justice and also in the interest of all the parties concerned that the listed-application be allowed so that documents now placed on record may be taken into consideration by this Court to record just and equitable conclusion in respect of controversy involved in these appeals. C.M.A. No.2149/2004 is therefore, allowed.
21. Now we one by one take up for our consideration the points formulated in this appeal.
POINT NO.1.
(i) Whether Suit No.1001/1997 instituted by NRL was not maintainable in law?
22. In this regard admitted facts emerging from the case record are that NRL is a company registered under the Companies Ordinance and the plaint in Suit No.1001/1997 instituted on their behalf has been signed and verified by Mr. Ahmed Javed son of Abdul Khaliq, Assistant Manager Legal. It has been nowhere mentioned in the plaint that how and in what manner Assistant Manager Legal Mr. Ahmed Javed was legally authorized on behalf of NLR, without a proper Board Resolution for this purpose. However, along with the plaint, a copy of letter dated 20th June, 1997 signed by M. Yousuf Baig, Managing Director NRL has been attached which reads as under: "AUTHORITY Dated 20-6-1997 In my capacity as Managing Director, National Refinery Limited. I, M. Yousuf Beg, hereby authorize Mr. Ahmed Javed, Assistant Manager of Legal Department, National Refinery Limited to represent the Company and to sign plaint, file suit, plead, give evidence, etc. in case National Refinery Limited v. Messrs Karachi Development Authority in respect of Plot No.37 (Dr. S.M. Rab) Sector 16, Korangi Industrial Area Karachi before the Sindh High Court.
M. YOUSUF BEG MANAGING DIRECTOR"
23. In this authority letter again it has been nowhere disclosed/ mentioned that how the Managing Director of NRL could exercise power of delegation of authority on behalf of the Company to Mr. Ahmad Javed, unless he was so empowered by the Articles of Association of the Company or there was some Board Resolution in his favour for this purpose with further power of delegation of powers on behalf of the Company. The legal point as to the consequences of non-conferring o proper authority on behalf of the Company through Board Resolution in favour of a person who had instituted the suit on behalf of company vis-a-vis maintainability of the suit in such situation, when came up for consideration in the case of Khan Iftikhar Hussain Khan (supra), the apex Court observed as under: "On the facts of the present case I am satisfied that due notice of meeting was not given to the deceased appellant and therefore Resolution passed in the meeting of 28th September, 1951 cannot be said to be a valid one. In my opinion, no valid authority was conferred on Mr. Khursheed Mehmood and, therefore, he was not competent to institute the suit. I would, therefore, hold that the learned trial Judge was perfectly justified in dismissing the suit on this ground."
24. In view of the above discussed undisputed facts and the legal position about the mode of conferring authority on behalf of a public limited company we hold that Suit No.1001/1997 instituted on behalf of NRL by its Assistant Manager Legal was not competently instituted and it was thus not maintainable in law.
"POINT NO.2.
(ii) Whether road 6000 having 432 feet wide towards the southern side of the leased plot of NRL consisted of 192 feet wide strip, for railway reservation, even prior to the execution of registered Lease Deed dated 27-6-1983 in favour of NRL?
25. The plea of existence of 432 feet wide road 6000 towards the southern side of the leased plot of NRL has found favour of the learned Single Judge in his impugned judgment. The main reason of recording such finding is the document of registered lease deed (Exh.1/C) dated 27-6-1983 in favour of NRL and site plan of Plots 7-D and 7-B Korangi Industrial Area, attached thereto, which reflects this position towards, southern side of the plot. As against it the case of K.D.A. in their written statement is that the area of 432 ft. wide shown in the registered deed of NRL consisted of 182 ft. wide road adjoining to the boundary of NRL plot, thereafter 192 ft. wide area for railway reservation and 58 ft. wide road towards Nala on the northern side of Korangi Township, Sector 16.Not only the case of appellant Dr. S.M. Rab and respondent K.D.A. is same on this point but this position was also not seriously questioned by NRL as is evident from the contents of para. 2 of their plaint in Suit No.1001/1997 which reads as under:-- "2. A strip of land 437 feet wide runs along southern side of Refinery. It is named Road 6000 and separates Sector 7 (Refinery) and Sector 16 of the Korangi Industrial Area. Master Plan of K.D.A. is attached as Annexure `P-2'. This land marked red in this plan had always been maintained as open land and not allotted or used for any purpose and kept for emergency uses and for security reasons."
26. It has been specifically observed by the learned Single Judge in his impugned judgment that despite opportunities afforded to all the parties concerned no authentic document was placed before him to show that how 432 feet road 6000 was reduced in width to 250 feet but before us learned counsel for K.D.A. has placed on record various drawings/lay-out plans of the area to clarify this position. The oldest sketch placed on record is drawing No.TC-8/112 dated 12-3-1971 which shows complete break up of road 6000. It is thus clear that even more than a decade before grant of lease of Plots Nos. 7-D and 7-B to NRL the actual width of the road 6000 was not 432 ft. as now half-heartedly urged on behalf of NRL. It is also significant to mention here that soon after carving of 45 plots from the area otherwise provided for railway reservation. NRL had approached K.D.A. for grant of this area to them, only to avoid security risk. Not only this, but there is sufficient material on record and rather it is an admitted position that except for the suit plot of the appellant Dr.S.M. Rab the ownership of remaining 44 plots has been already acquired by NRL, either through dealing with K.D.A. or by direct negotiations and purchase of plots from the allottees. This fact is sufficient to conclude that it was only on the ground of security risk that, NRL had pursued their matter before the K.D.A. for grant of this area to them and not on the ground that the whole 432 feet wide area was reserved for road purpose only. Such stand of NRL is further exposed from their letter dated July 23, 1996 addressed to Deputy Commissioner Karachi East which reads thus: "July 23. 1996 The Deputy Commissioner, Karachi East, Karachi.
Dear Sir Sub: DISPUTE OF PLOT NO.37, SECTOR 16, INDUSTRIAL AREA KORANGI Kindly refer to your notification dated July 15, 1996 convening a meeting in subject-matter on August 3, 1996.
We wish again to put on record and seek your help because in spite of our repeated reminders and persistent follow up K.D.A. has not yet completed transfer of the acquired plots.
Plot No.37 is one of the 45 plots which were negotiated and transferred to NRL under the K.D.A.
Governing Body Resolution No.225 of 7-12-1991. It was later revealed that the K.D.A. had made a misstatement that all allottees of the 45 Plots (including Plot No.37) had been compensated.
In our previous meeting and correspondence on the subject case, we had submitted that NRL would consider to amicably settle the issue of Plot No.37, after K.D.A. meets the following obligations:--
(1) Confirm that there is no encumbrance or any adverse title on any other plot.
(2) Properly complete allotment of the 44 out of 45 acquired plots in NRL name.
(3) Provide the documents of allotments in NRL name and copies of cancelled allotments in names of previous allottees and a No Dues Certificate for all the plots.
We regret very much to point out that K.D.A. has raised demands of Non-Utilization Fee in respect of Plots 85-94 acquired by NRL under the acquisition proceedings (copy of agreement attached).
K.D.A. should agree not to demand any transfer charges, NUF etc. on subject plots as well as other plots acquired under acquisition proceedings.
The meeting regarding subject plot (37) will be meaningful only when NRL's title on all the acquired plots is documented without further delay and undue demands by K.D.A. are stopped.
We now look forward to your support in expediting action of K.D.A. and confirm our participation in the meeting of August, 3, 1996 with reservations.
Yours faithfully For NATIONAL REFINERY LIMITED (QAZI WAJEEHUDDIN) SECRETARY."
27. Having examined all these aspects of the case we are of the view that the area of 432 feet wide towards the southern side of the leased plot of NRL consisted of road area of 182 feet and 58 feet as well as in between these two roads 192 wide strip for railway reservation, which formed part of road 6000 even at the time of grant of lease in favour of NRL in the year 1983. The findings of the learned Single Judge to the contrary are :hus based on misreading of evidence and not sustainable in law. Point No.2 is accordingly answered in the affirmative.
POINT NO.3.
(iii) Whether the suit plot was legally carved out by K. D.A. and after execution of registered Lease Deed in favour of Dr. S.M. Rab, K.D.A. had no authority either to negotiate for transfer of suit plot to NRL or to receive any sale consideration thereof on behalf of Dr. S.M.Rab?
28. In this regard case of NRL is that due to political pressure, which is common trend in the country, 45 plots were carved out from the southern side area adjoining to their leased plots and Dr. S.M.
Rab was allotted Plot No.37 out of these plots. When this fact came to their knowledge they immediately pursued the matter before the K.D.A. and succeeded to get all these plots cancelled and paid them Rs.2,37,16,740 as compensation. The perusal of other material placed on record reveals that in their letter dated 6th August, 1991 addressed to Director-General K.D.A., NRL had only taken the plea that for safety and security reasons they needed 432 feet wide. coy idor on the southern side of their installations and for this reason alone carving of plots from that area was challenged by them. In their reply to this letter K.D.A. had also taken up the question of cancellation of allotment of such plots in the background of security and safety of NRL and had made reference to the Governing Body Resolution No.225 dated 7-12-1991 for cancellation of these plots. It may be observed that town planning and formation of various schemes by K.D.A. presupposes that such actions must have been taken by them (Government functionaries) in accordance with law, unless contrary is proved. In such circumstances if NRL was questioning the Authority of K.D.A. in making the scheme of carving 45 industrial plots from the open space of 432 sq. feet area towards the southern side of NRL's plots, excluding 182 ft. wide road 6000 then heavy burden was on NRL to prove that how such scheme introduced by K.D.A. was illegal. Admittedly suit Plot No.37 was allotted to the appellant Dr. S. M. Rib on 24-1-1991 in lieu of earlier Plot bearing No.6/13, Sector 12-D, North Karachi, which was allotted to him on 6-2-1984 but could not be finally leased to him due to encroachment. It is also an admitted position that registered lease of suit plot for 99 years was executed in favour of Dr. S.M. Rab on 6-8-1991 and prior to that possession was delivered to him on 19-2-1991. In such circumstances it is quite 'obvious that neither K.D.A. was competent to cancel registered lease of the suit plot by passing Board Resolution No.225 dated 7-12-1991, that too even without affording any opportunity of hearing to the allottee/lessee Dr. S.M. Rab, nor K.D.A. had any authority to negotiate with NRL for grant of compensation in this regard. There is ample material available on case record to show that even after passing of Resolution No.225 dated 7-12-1991 by the Governing Body of K.D.A. respondent NRL had negotiated with several allottees and purchased 'their plots through registered sale-deeds on payment of adequate compensation. It is strange to note that the appellant Dr. S.M. Rab, himself volunteered to settle his dispute with NRL and in this regard, inter alia, made correspondence with the Deputy Commissioner Karachi East but NRL did not agree for any amicable settlement with him as is evident from the contents of Minutes of Meeting dated 13-4-1996 (Exh.1/I), which reads as under:-- MINUTES OF THE MEETING HELD ON 13-4-1996 AT 10 A.M. TO DISCUSS AND RESOLVE THE ISSUE OF INDUSTRIAL PLOT NO.37, SECTOR 16 KORANGI OWNED BY DR. S.M.RAB.
Following attended the meeting:
(1) Mr. S. Ali Anwar Shah, Deputy Commissioner, Karachi East. In Chair.
(2) Mr. Akhlaq Ahmed, Director Lands K.D.A.
(3) Mr. Muhammad Azam Leghari, Addl. Director Korangi - K. D.A.
(4) Professor Dr. S.M. Rab, Lessee of the plot.
(5) Mr. ZuhairZafar, General Manager Admn. National Refinery Ltd., Korangi.
(6) Mr. Ahmed Javed, Manager Executive NRL Korangi.
Opening the discussion Mr. S.AIi Anwar Shah, Deputy Commissioner, Karachi East informed the participants of the meeting that issue of ownership of Plot No.37, Sector 16 Korangi Industrial Area is to be resolved amicably through negotiations, instead of allowing any party to file Civil Suit in this regard. He invited the representative of K.D.A. to explain the ownership position of the plot.
Mr. Akhlaq Ahmed briefed regarding the details of the transaction through which 45 plots of Industrial were transferred to National Refinery Ltd. against cash payment at the rate of Rs.200 per Sq. Yard. He also informed that the case of Dr. Rab for grant of alternate plot has also been submitted to the Authorities for approval.
Professor Dr. S.M. Rab showed his unwillingness to accept any alternate plot but he insisted that he is lease holder of plot and is paying non-utilization fee to the K.D.A. regularly. Last payment of the plot is up to 1997. He further stated that K.D.A. is no authority to cancel or transfer the plot of any individual allottee after the execution of lease deed and only the lessee is competent to transfer his property by sale under the law. Mr. Akhlaq Ahmed conceded to the point that after issue of lease deed, K.D.A. is not authorized to deal with such plots.
The representative of National Refinery Ltd. informed the meeting that there are two zones. One zone is called as security zone where gun platforms are to be constructed, while the other zone is called safety zone. In the area of security zone, under the orders of Defence Ministry, NRL had purchased the plots through negotiations from its owners, while in the safety zone K.D.A. came in picture and the dialogue ended on payment of Rs.200 per sq. yard for 45 plots. National Refinery Ltd. is not responsible to make payment to Dr. Rab and it is only K.D.A. who had committed blunder should make payment to the Dr. Saheb.
After detailed deliberations, it was amicably resolved that in order to keep the record right, K.D.A. within a fortnight move to the National Refinery Ltd. intimating their legal flaw of allotting leased plot of Dr. S.M. Rab to NRL with the clear record that the K.D.A. has witth rawn transfer rights of Plot No.37.
The representative of National Refinery Ltd. agreed to this proposal with the condition that K.D.A. should undertake responsibility that no other plot holder from the balance of 44 plots will approach for claim to NRL. He further informed the meeting that NRL is a Government Project, as such before considering the request of Dr. Saheb for compensation permission will be sought from the Ministry of Petroleums giving full details. He assured the members that within a week he will see the Deputy Commissioner Karachi East along with his senior Officer to finalize this issue.
It was also decided that the payment of Rs.200 per sq. yard accepted by the K.D.A. for the plot of Dr. Rab will be deducted from the agreed amount of plot and Dr. Saheb will negotiate with the K.D.A. for the refund of this amount in his favour.
Meeting ended with a vote of thanks to and from the Chair.
DEPUTY COMMISSIONER KARACHI EAST No.DCE/Rev/350/96. Karachi the 16th April, 1996.
Copy forwarded with compliments for information and necessary action:
(1) The Secretary to the H.E. Governor of Sindh.
(2) The Director-General K.D.A., Karachi.
(3) Professor Dr. S.M.Rab.
(4) Director Land Management, K.D.A. Karachi.
(5) The General-Manager (Admn.) National Refinery Ltd. Korangi, Karachi.
DEPUTY COMMISSIONER KARACHI EAST"
29. Further efforts for settlement made by appellant Dr. S.M. Rab for payment of compensation to him are also visible from the order of Federal Ombudsman dated 22-11-1997 (Exh.2/G) whereafter he was not left with any other option but to file suit for possession, compensation and mesne profits .etc.
30. Learned counsel for NRL Mr. Arif Khan did not dispute that after execution of registered lease of suit plot in favour of Dr. S.M. Rab on 6-8-1991 K.D.A. had become functus officio and they had no jurisdiction either to cancel the lease of his plot, except in due process of law, or to negotiate with NRL for payment of its compensation. He, however, urged that as NRL has paid huge sum of Rs.2,37,16,740 for acquiring title of all these 45 plots, therefore, they cannot be vexed twice by calling upon them to pay any further compensation to Dr. S.M. Rab. Learned counsel further did not dispute genuineness of various registered lease deeds brought on record by K.D.A. along with their application C.M.A. No.2149 of 2004 which show that several other plots in the area were purchased by NRI, from the lessees of K.D.A. for valuable consideration through registered sale-deeds executed in the year 1995. From all as has been discussed hereinabove it is clear that NRL has followed double standard for laying their claim over all the plots carved out from the area towards southern side of their leased plots. In 0,:r view Dr. S.M. Rab is lawful lessee of suit plot and K.D.A. ad no authority either to negotiate on his behalf with N RI, for compensation or to transfer title of suit plot to anyone else. For the foregoing reasons point No.3 is answered in the affirmative.
POINT NO.4.
(iv) Whether Dr. S.M. Rab is entitled for restore on of possession of suit plot and also recover) of compensation/mesne profits, if so, for what peri d and at what rate?
31. As discussed above in detail Dr. S.M. Rab still holds legal and valid title over the suit plot as any settlement between NRL and K.D.A. to which he was not a party, is not binding on him. Learned counsel for the K.D.A. (now City District Government Karachi) has conceded to this legal position while learned counsel for the NRL has also not disputed this position.
We, therefore, feel no hesitation to hold that Dr. Rab, being lawful lessee of suit plot is entitled for restoration of possession of suit plot form NRL, who are admittedly in possession thereof.
32. The next point for consideration is regarding the period for awarding of adequate compensation /mesne profits for the unauthorized occupation of suit plot by NRL. In this regard case of Dr. S.M. Rab is that NRL has unauthorisedly occupied his suit plot admeasuring 1000 sq. yds. since July, 1995. Similar statement on oath made by the plaintiff in his evidence has not been disputed either by the counsel for NRL or K.D.A. NRL has rather conceded to this position but their further case is that since on payment of Rs.2,37,16,740 they have settled their dispute regarding all the 45 plots with K.D.A., therefore, their possession over the suit plot is not unauthorized or illegal.
We find no force in such plea taken by NRL as admittedly on one hand they hold no title documents of suit plot and on the other hand firstly vide letter dated 19-2-1991 K.D.A. has hands 1 over possession of suit plot to Dr. S.M.Rab and thereafter on execution of Lease Deed of suit plot for a period of 99 years in favour of Dr. S.M. Rab vide registered deed dated 6-8-1991 (Exh.2-D). K.D.A. has ceased to have any authority to deal with the suit plot with NRL or any other third party. It is significant to note that before commencement of this litigation Dr. S.M.Rab has afforded sufficient opportunities to NRL for settlement of dispute relating to suit plot in an amicable manner as is, inter alia, evident from the Minutes of Meeting dated 13-4-1996 held at the office of Deputy Commissioner Karachi East (Exh. 1 /I) and the order of Federal Ombudsman dated 22-11-1997 (Exh.2-G).For failure to avail such opportunities NRL has to bless their own stars and none else.
33. Reverting to the quantum of compensation/mesne profits we find that in his pleadings as well as evidence Dr. S.M. Rab has claimed mesne profits at the rate of Rs.30,000 per month from NRL for their unauthorized occupation of suit plot. Though such statement on oath given by Dr. S.M. Rab has remained undisputed in cross-examination and further no evidence has been adduced by NRL or K.D.A. to rebut this position but in the cross-examination of witness Gohar Zaman examined on behalf of NRL learned counsel for Dr. S.M. Rab has himself suggested the rental value of suit plot at Rs.10,000 per month. In our view looking to the locality where the suit plot is situated and considering the fact that it is an open plot in an area which has not yet been fully developed awarding of mesne profits to the appellant Dr. S.M. Rab at the rate of Rs.10,000 per month will be just, equitable and fair. Accordingly, point No.4 is answered in the terms that Dr. S.M. Rab is entitled for restoration of possession of suit plot from the NRL and in addition to it he is also entitled for recovery of mesne profits from NRL at the rate of Rs.10,000 per month from July, 1995 till delivery of vacant possession of suit plot to him.
34. The upshot of above discussion and our findings on various points for determination framed in this appeal is that both these appeals are allowed, the impugned judgment and decree are hereby set aside, Suit No.1001/1997 instituted by NRL is dismissed with costs, and Suit No.1042/1998 instituted by Dr. S.M. Rab is decreed to the extent of prayer clauses (1), (2), (3) and (4). However, prayer clause (4) is allowed in the terms that Dr. S.M. Rab is entitled for mesne profits at the rate of Rs.10,000 per month from July, 1995 till delivery of vacant possession of suit plot to him. Cost of the suit is also allowed throughout.