' FAKHRUDDIN G. EBRAHIM, J.-The Pakistan Medical Association, the petitioner herein, by its letter dated 2-7-1965, addressed to the respondent K. D. A. Requested for allotment of a plot of land for the construction of a hospital and a drug bank. The K. D. A. By its letter dated 1st December, 1965 informed the petitioner that it had been decided to allocate a public Building Site No, S T-1, in Block'
No, 17, admeasuring 1.5 acres in Scheme No, 16, Federal 'B' Area on the usual terms and conditions and the petitioner was asked to intimate the acceptance of the site in question and arrange to pay a sum of Rs, 7,760 equivalent of 25% of the occupancy value of the plot, within 30 days. With this letter the petitioner was forwarded a copy of the terms and conditions with a request to return the same duly signed in token of its acceptance. These terms and conditions read as follows :- "(1) The site shall not be used for any other purpose except for what it has been allotted.
(2) That rate of occupancy value will be Rs, 4 per sq. Yds. And shall be paid in four equal instalments. 1st instalment to be paid on allotment, 2nd inslament on possession, i,e, before possession is handed over, 3rd and 4th instalments in two equal instalments from the date of issue of possession order.
(3) A lease for 99 years shall be granted on payment of full occupancy value and ground rent in advance.
(4) Ground rent at 6 paisas per sq. Yd., per annum shall also be payable from the date of possession.
(5) Building plans shall be subject to approval of C. T. P. & A, K. D. A.
(6) Construction should be completed within two year from the date of issue of possession Order.
(7) The allotment shall be liable to cancellation in case of violation of the terms and conditions on non-payment of dues in time as scuedule of payment in which case 10% of the total occupancy value shall be forfeited.
(8) The time shall be the essence of this agreement."
2. The petitioner accepted the aforesaid terms and conditions and with its letter dated 29th December, 1965 forwarded a cheque for Rs, 7,760 on 19th February, 1966 the petitioner was reminded that they will be required to pay the second instalment before possession of the plot is handed over to them. On 4-5-1971, a formal demand was made by the K. D. A. Calling upon the petitioner to pay the second instalment but it would appear that before that date the petitioner had, vide its cheque dated 13-5-1971 already paid the second instalment. The demand notice addressed by the K. D. A. To the petitioner also stated that plot No, ST-1, Block No, 17, had been demarcated and measured at site and the actual area available at the site was 6.5 acres.
Following the above 30-4.1973, the K. D. A. Forwarded and the petitioner a possession Order in which the plot was described as S T-1/B/1005 in Scheme No, 16, Federal 'B' Area. Under this Order the petitioner was called upon to take possession within 30 days for which purpose they were directed to contact the Executive Engineer Federal 'B' Area, Karachi. It is further mentioned that the balance occupancy value will be payable in two yearly equal instalments at the interval of 12 months on the payment of which a 99 years lease will be granted to the petitioner. The possession Order also stated that a copy of the site plan was enclosed. On 29th May, 1973, the petitioner informed the Executive Enginecr that he had been contacted for taking possession of Plot No, ST-1/B/1005, but on inspection of the site it was found that there were a number of unauthorised encroachments on the plot and it possession could not be taken over. The Executive Engineer was requested to have the plot vacated and arrange hand over its vacant possession to the Association as early as possible. By another letter of the same day, the petitioner asked for a copy of the site plan which was not reclosed as stated in the possession Order. The site plan of the said plot was not delivered to the petitioner until 5th of July, 1973. The petitioner vide their letters dated 27th June, 1973, 29th June, 1913 and 26th July, 1973 and also two telegrams one addressd to the then Minister for Local Self-Government, Mr. Jam Sadiq Ali and the Chairman, K. D. A. Went on pressing for possession.
They also complained that the plot was vacant when allotted to the petitioner but was later occupied by some unauthorised persons with the connivance of the K. D. A. On 9th August, 1973, the Administrative Officer of the K. D. A. Lands and Estates Department addressed a letter to the Executive Engineer with a copy to the petitioner by which he was called upon intimate why physical possession of the plot was not handed over to the allottee through the possession Order had been issued on 5-7-1973 and he was directed to make arrangements for delivery of the possession to the Association at an early date. The petitioner also invited the attention of the Executive Engineer to this letter by its letter dated 24th September, 1973 which was replied to by the Executive Engineer on 25-10-1973. The reply stated that appropriate to authority had already been moved for permission to remove the encroachment from the plot and its physical possession will be handed over to the petitioner as soon as the encroachment is clear (on 23rd October, 1973 the petitioner was informed by the Land Manager of the K. D. A. That it was not possible to clear the encroachment as the encroachers had obtained a Stay Order from the Minister unless the Minister is pleased to vacate this Order. The petitioner went on pressing for possession but on .10th April, 1974 received he impugned letter from the K. D. A. In which it was stated that since the area is encroached and it was not likely to be available in the near future the allotment of the plot may please be considered as cancelled. The letter further stated that the K. D. A. Was prepared to consider a request for an alternate plot. One more letter may be referred to and that is a letter from the Executive Engineer to the Administrative Officer Land and Estate Department, K. D. A. Dated 7-5- 1974 with a copy to the petitioner in which it was stated that though the petitioner was pressing hard for possession of the plot the plot had already been allotted to Al-Shafiq Housing Society, the respondent No, 3 herein and the position may, therefore, be clarified.
3. Before I come to the contentions in support of this petition challenging the cancellation of the allotment made in favour of the petitioner I may refer to the facts relating to the allotment of the plot to respondent No,
3. On or about 22-5-1973, this Society of which S. Qamaruzaman Shah the then P. P. P. Senator was a Director addressed a letter to Mr. Jam Sadiq Ali the then Minister, Local Self-Government requesting for allotment of plot No, ST-1/B in Block 17, for construction of flats for middle class people. The very first paragraph of the letters stated that the plot in question had 11 been reserved for a public building but it was said that this reservation was unnecessary as there were so many other plots in the same block available for this purpose. It was also stated that the area of the plot was insufficient for a public building. The Minister was pleased to order on this letter "Please allot the requested plot". On 19th March, 1973 the Land Manager of the K. D. A. Informed the Society that the Chief Minister had been pleased to allot the aforesaid site for construction of flats at the prescribed rate of Rs, 20 per sq. Yd., provided the Society undertook the responsibility of removing the encroachments and the K. D. A. Will provide alternative site for the rehabilitation of the Jhugl dwellers on the plot. The terms and conditions of allotment of plot as a multistoreyed flat site were communicated to the Society by the K. D. A. On 8th January, 1974. The Society entered upon and took possession of the said site on 5th November, 1974.
4. What is remarkable, however, is that who the allotment of the plot to the Society was under consideration, its allotment made and the possession delivered to the Society the Officers of the K.
D. A. Did not care to point out or blissfully overlooked the fact that the plot in question had already been allotted to the Pakistan Medical Association who had already paid two instalments and had been pressing hard for its possession. During the subsistence of a valid allotment in favour of the petitioner, the Minister for Local Self-Government granted the Society's request to allot the plot, the Chief Minister, Government of Sind made the allotment and the K. D. A. Communicated to the Society the terms and conditions of allotment,
5. The petitioner challenges both the cancellation of his allotment of the plot in its favour as well as allotment made in favour of the Society and in so far as the latter contention is concerned, it does not require much of an argument for its acceptance. The Society seeks to justify the cancellation of the petitioner's allotment and allotment in its favour in these words in its counter-affidavit :- "It is It's submitted that at the time the said plot was allotted to respondent No, 2, the respondent No, 1 was not enquipped with powers of summary eviction of encroachers and in these circumstances, the Government was satisfied that the removal of the encroachers would cause great hardship inasmuch as that the respondent No, 1 would have to resort to legal proceedings for their eviction and for delivering the possession of the plot to the original allottee i,e, the petitioner.
The Government, therefore, in the exercise of its power thought fit to override the decision of respondent No, 1 by alloting the plot in question to the respondent No,
2. I say that the Government is fully competent to take such decision in the light of its policy and in the larger interest of the people.
"It is denied that the allotment Order of the petitioner was wrongly cancelled and that the plot in question was, wrongly allotted to respondent No,
2. It is submitted that the said plot measuring 1-3 acres was allotted to the answering respondent by the Government in bona fide exercise of its lawful powers duly vested in it and after careful consideration of all facts and attending circumstances and not due to any extraneous consideration. I am advised to say that the action taken by the authorities in the matter was perfectly legal and valid and cannot be called in question unless shown to have been taken in excess of their power. I say that the Chief Minister of Sind was fully competent to take action in the matter in the light of the Policy of the Government to provide more housing schemes for shelterless persons in the growing population of the City like Karachi."
6. To begin with we are unable to see how the Chief Minister or for that matter Government of Sind could order cancellation of an allotment or make an allotment which are the exclusive functions of the K. D. A. Factually it is incorrect that the allotment in favour of the petitioners was cancelled by the Government of Sind inasmuch as the record shows that the Government was not even aware of the fact that the plot had been allotted to the petitioner and that the K. D. A. Was confronted with the problem of evicting the encroachers thereon, to enable the K. D. A. To deliver its vacant possession to the petitioner. The Government of Sind came in the picture only when the plot was allotted to the Society by the Chief Minister. Mr. Qazilbash the learned counsel for the K. D. A. At best could rely on Article 4(2) of the K. D. A. Order under which the Government of Sind has the power to give to the Governing Body of the K. D. A. But apart from the fact that it is doubtful whether the Chief Minister was making a policy decision in making the allotment in favour of the Society we are unable to see the policy which was being advanced by allotting a plot to the Society without knowing that the plot stood allotted to the petitioner for a public purpose which allotment was very much subsistence. It may also be noticed that even the said article is pressed into service it empowers the Provincial Government to give policy directions to the K. D. A. And not that the Chief Minister is empowered to make a direct allotment. We are clearly of the view that for reasons aforesaid the allotment made in favour of the Society is of no legal effect.
7. Coming to the cancellation of the allotment of the petitioner's plot the K. D. A. Was empowered to do so under the terms and conditions of the only in the event of the violation of the terms and conditions and, non-payment of its dues in time and admittedly it is not even the K. D. A.'s case that the petitioner had committed breach of any terms and conditions of the allotment so as to entitle the K. D. A. To cancel the allotment in its favour. Apart from this legal position the Officers of the K. D.
A. Were bound to act fairly and reasonably and in public interest and assuming that they were bona fide prevented from removing the encroachers they ought to have given the petitioner the same option as was given to the society namely, take the responsibility of removing the encroachers and shifting them to an alternate site provided by the K. D. A. Furthermore the petitions ought to have been heard before unilateral cancellation of the allotment of t c plot in its favour as held by a Division Bench of this Court in the case o Haji Noor Muhammad and another v.
K. D. A. And others.
8. Mr. Muhammad Ali Sayeed, the learned counsel for the society, apart from his legal objection to the maintainability of this petition to which we will revert hereafter, was at pains to point out that the society will suffer irreparable loss if this petition is allowed inasmuch as the Society has at a considerable expense removed the encroachers and put up a boundry wall. There is nothing on the record to show that any expense has been incurred by the society in removing the encroachers. In any event these considerations are wholly immaterial, if the allotment made in favour of the Society is found to be no legal effect. The Society's remedy, if any, assuming that they have suffered any loss, may be tither against the K. D. A. Or the Province of Sind.
9. Lastly, Mr. Muhammad Ali Sayeed contended that this was a case of breach of simple agreement between the petitioner and the K. D. A. And hence not susceptible to the exercise of writ jurisdiction. Similar argument was raised in the aforesaid Division Bench decision of this Court (PLD 1975 Kar. 373) which was repelled in these words:- "We are also not impressed with the contention of Mr. Nasir Kha that this was a case of breach of simple agreement and hence not susceptible to exercise of writ jurisdiction. The K. D. A. Is a statutor authority and one of its functions is to prepare housing shemes develop plots and give them to housing societies, individuals and construction companies. It was in compliance with its statutory duties that it had issued the scheme for allotment of plots and it was under that schem that1 Usman Haji Ghani had applied for and obtained a plot. This was thus not a case of simple agreement, but a performance of statutory obligation and function."
' The facts of the above case are very similar to the facts of the present case and for reasons aforesaid with which we are in agreement we hold that the present writ petition is maintainable.
10. This is, however, not the end of the matter for what remains to be decided is the petitioner's contention that it is entitled to claim possession of plot No, ST-1, measuring 1.5 acres which was admittedly the plot allotted to them and it claims that parts of this plot are in possession of respondents Nos 4, 5 and 6 under allotments made by the K. D. A. It was argued that the allotments made in favour of these respondents are of no legal effect for they form part of the land allotted to the petitioner. The argument overlooks the fact that subsequent to the allotment of the Plot ST-1, it was demarcated and measured and the Possession Order which did not vary the total area of the plot, described the plot as ST-1/B-1005, of which the site plan was given to the petitioner. At no time the petitioner raised any objection as regards this site plan and since it is conceded that the areas in possession of the respondents Nos 4, 5 and 6 are outside the limits of the petitioner's plot shown in the site plan the petitioner could have no grievance as regards these areas. The petition, therefore, fails against respondents Nos 4, 5 and 6.
11. The result, therefore, is that this petition is allowed in terms prayed 4 for against respondents Nos 1, 2 and 3 with costs. PLD 1975 Kar. 373