JUDGMENT MUHAMMAD MUJIBULLAH SIDDIQUI, J. - Through this petition the following relief is sought:- "(i) to declare the order contained in letter No. KDA/DLM/APC/65, dated 26th April, 1993 of.
Respondent No. 1 and No. SO.Il(KDA)6-424/95, dated 26.4.1995 of respondent No. 2 to be without lawful authority and of no legal effect;
(ii) to restrain the respondents, their subordinates, employees and agents from taking any action in pursuance of the purported cancellation of allotment order of the subject plot bearing No. ST-14, Block-3, K.D.A. Scheme No. 5 (Clifton), Karachi and/or from disturbing the peaceful physical possession and enjoyment thereof by the petitioners in any manner whatsoever and to restrain the said respondents from taking over possession or handing over the same to any other person or third party;"
Briefly stated the petitioner's case is that a plot of land bearing No. ST-14, Block-3, K.D.A. Scheme No. 3, Clifton, Karachi was allotted to petitioner No. 1, vide allotment letter dated 17.3.1976. The petitioner No. 1, had made payment of Rs 2,90,000/- on 6th March, 1975 towards the occupancy value of the plot. On 23.8.1976 lease deed was executed for a period of 99 years. The total area of the plot is 25000 square yards and as per terms of the lease the plot was to be used for commercial-cum- amusement park, It was stipulated in the lease deed that the plot shall not be diverted into other use without previous consent of the Lessor, i.e. K.D.A. A maximum of 15% of the land could be utilized for commercial purposes. On 27.3.1991, the petitioner No.1, approached the then Chief Minister, Sindh seeking permission for use of the entire plot for commercial purposes and relaxation of the term contained in the lease was sought.. After deliberations, the then Chief Minister of Sindh, approved use of the entire specifically on the ground that the plot was not an amenity plot. On 19.4.1992, Petitioner No. 1, was informed by respondent No. 1, that the competent authority has allowed commercialization charges at the rate of Rs. 3,500/- per square yards alleged in the memo, of Petition that, in pursuance of the above letter, the petitioner No. 1, paid a sum of Rs. 20 Million towards commercialization chargers. On 29.5.1995, the representative of petitioner was informed by respondent No. 1, that the allotment of the subject plot has been cancelled on the ground of violation of clauses 6, 8 and 12 of terms and conditions of the allotment. A copy of the order dated .26th April, 1995 in this behalf, was supplied to the petitioner's representative, It is averred in the petition that the cancellation of the allotment has been made under misconception that the subject plot is an amenity plot and the terms and conditions of allotment of amenity plot are applicable thereto, It is further alleged that after lease a right- in rem has accrued in favour of petitioners which could not t be disturbed arbitrarily and unilaterally, It is further submitted that the subject plot is not an amenity plot as per stand taken by the K.D.A.
The cancellation of the allotment has been assailed as illegal and without jurisdiction on the grounds that it is, violative of the principles of natural justice, as no Show- cause-notice was served on the petitioner, It is further alleged that after execution of the lease-deed, the terms contained therein would regulate the relations between the respondent No. 1 and the petitioner and under the terms contained in the- lease, no unilateral cancellation of the allotment is envisaged.
The- respondent No. 1, has filed the parawise comments contending that the subject plot was an, amenity plot and the allotment order was issued under the orders of the then Minister for Housing and Town Planning and Local Government, which is evident from the allotment order itself. It has not been denied that the lease was executed on 23.8.1976 after realizing full occupancy value of the plot measuring 25000 square yards and 15% of the plot was to. Be utilized for commercial purpose, It is admitted that the then Chief Minister of Sindh, approved the use of entire plot for commercial purposes and the approval was recommended vide letter dated 19.4.1992. However, it is contended that the petitioner was required to deposit total commercialization charges at the rate of Rs.
3,500/- per square yards and the first instalment of Rs. 3,71,87,500/- was to be paid by the petitioner before the issuance of commercialization letter and the two instalments of Rs.
3,71,87,500/- had to be deposited within two 'years, but the petitioner - failed to deposit even ; first instalment, It is contended that the petitioner failed to comply with the terms and conditions of the letter dated 19.4.1992 Annexure "C" with the petition, therefore, the allotment of the plot was cancelled vide letter dated 26.4.1995. It is further averred that complicated questions of facts are involved which are required to be proved through the process of evidence only and, therefore, the petitioner has the remedy through civil suit under the ordinary law and the Constitutional jurisdiction of High Court cannot be invoked, It is asserted that the allotment has been rightly cancelled and that the physical possession of the plot has been handed over to respondent No. 3, for development of Bagh-e-Ibne-Qasim and the respondent No. 1 has no. Jurisdiction over the land, after transfer thereof to respondent No. 3.
In the re-joinder, it is contended that out of first instalment of Rs.3,71,87,500/- an amount of 2 Crores was deposited and the competent authority had extended the time for payment of remaining amount of first instalment from time to time. On 20.6.1995, the petitioner tendered the balance amount of Rs. 1,71,87,500/- but it was not accepted for the reason that there was a status-quo order passed by the High Court in the present petition, In the comments/counter-affidavit on behalf of the respondent No. 3, it is stated that the subject plot already Stood transferred to the respondent No. 3 being part and parcel of the huge amenity plot known as Bagh-e-Ibne-Qasim, and the physical possession has been handed over to the respondent No. 3.. In the affidavit-in-rejoinder filed on behalf of petitioner It has been denied that the subject plot is or was a part of amenity' site known as Bagh-e-Ibne-Qasim it is further alleged that the original lay out plan of K.D.A. Scheme No. 5, did not show inclusion of the subject plot in the amenity plot known as Bagh-e-Ibne-Qasim.
According to the-petitioner revised lay out plan of K.D.A. Scheme No. 5, dated 12.11.1985 again shows that the subject plot is away from the one earmarked for the development Of Bagh-e-Ibne-Qasim.
It is further alleged that plot of land bearing ST-15, measuring 4897 yards was earmarked as the park in the revised lay out plan of Scheme No. 5. It is further contended that a multi- storyed building project known as Costa Livina, is presently being constructed thereon, It is also alleged that the respondent No. 1, could not include the subject plot in the land originally earmarked as Bagh-e-Ibne-Qasim without modification/change in the-scheme in accordance with the provisions of K.D.A. Order 1957. The handing oyer of the subject plot to Respondent No. 3, is not denied but it is alleged that it is unreasonable and tainted with mala fide, It is further stated that in the area earmarked as Bagh-e-lbne- Qasim, a privately owned amusement park known as Funland, is operating since long, It is maintained that no law. Has been shown under which the subject plot has been transferred to respondent No. 3.
We have heard Mr. Mushtaq A. Memon, learned counsel, for the petitioner, Ms. Rizwana Ismail, learned counsel for the respondent No. 3 and Mr. Abbas AII, learned A.A.G, for the Government of Sindh.
In view of the order proposed to be made presently, the detailed arguments addressed by the learned Advocates are not being narrated and dwelt upon. The curx of the arguments addressed by the learned counsel for the petitioner was that the subject plot was not an amenity plot and consequently, the law> relating to amenity plots is not attracted. His further contention was that the commercialization of the subject plot was already allowed and therefore, the cancellation of allotment was not warranted in law. On the other hand, the main contention of Ms. Rizwana Ismail, learned counsel for the respondent No. 3, was that the subject plot was an amenity plot and consequently it could not be allotted to any individual for any purpose and no authority is vested with any functionary of the Provincial Government, either to allot the subject plot to any individual or to allow the commercial use thereof. She contended that there is a complete bar on the allotment of amenity plots to individuals and under the K.D.A. Order, 1957, all such plots are required to be handed over to the respondent No. 3 for development. She further contended that the allotment of plot to the petitioners by the then Minister for Housing and Town Planning in the year 1976 and permission for commercialization accorded in the year 1992 by the then Chief Minister, (the same person who happened to be Minister for Housing and Town Planning in the year: 1976)?
Was- illegal and void. She urged that a void order shall not confer any right on any beneficiary and the subsequent cancellation of the plot and handing over the same to respondent No. 3, has restored the rule, of law. She submitted that even if there is~some technical lapse in the cancellation of plot, this Court shall not exercise its discretionary jurisdictions in aid of illegality and injustice. The learned A.A.G., has adopted the arguments addressed by Ms. Rizwana Ismail. After conclusion of arguments, the learned A.A.G., was directed to produce the order of the' Chief Minister or the order of the Minister for Housing and Town Planning or the order of the Government permitting commercialization of the entire plot in question in relaxation of the law under Section 15 of the Ordinance VII of 1980.
Although the direction was given for producing the relevant' record, to the learned A.A.G., but, the learned counsel for the petitioner through statement dated 15.9.2003, submitted extract from the Departmental Note Sheets containing orders dated 14.10.1991, 9.12.1991, 26.1.1992 and 8.3.1992 passed by the Chief Minister Sindh. The above orders are reproduced below:- "14 in 1991: I am satisfied that applicant have devoted maximum efforts to promote the project which may not prove viable. I, therefore, allow the request of the applicant to convert the plot into commercial land in relaxation of rule 15 and other relevant rules. The percentage and other relevant rules. The percentage 14 Block-3, Schem-5, Clifton, Karachi in the name of M/s. Funfair (Limited) is enhanced from 15% to 75%. Extra charges amounting to Rs. 25.00 lac should be realised from the allottee so that there is no loss to the K.D.A.
Necessary orders/challan' may be issued accordingly.
Sd /- (Jam Sadiq Ali)
MINISTER (HTR)
Please take appropriate necessary action.
Sd/- DIRECTOR GENERAL (K.D.A.)
Please take further n/a.
Sd /- DIM AD PR Sd/- Sd/- Hon'ble C.M. May like to reconsider has earlier decision and order further.
Sd/- Minister (HTP)
29.11.1991.
Chief Minister Further to my orders dated 14.10.1991 the case has been reviewed and the applicant M/s. Funfair Limited is hereby allowed to convert the Plot No. ST-14, Block-3, Scheme No. 5, Clifton, Karachi into a unique Commercial Site worthy of its location. The percentage for commercial use of the said plot be enhanced from 15% to 75%. Extra charges Rs. 765/- (seven hundred and sixty five) per square yards, be realized instead of Rs. 25 lac. The lapsed construction period be also relaxed in the relaxation of Rule 15 and others relevant rules.
Necessary challan be issued accordingly.
Chief Minister, Sindh 9.12.1991 Director General (K.D.A.)
M (HTP) may kindly like to peruse before further action is taken.
Sd/- 10.12.1991 M (HTP) conversion of amenity plot into commercial has to be done under desires he can discuss this case with me.
Sd/- 10.12.1991 Chief Minister 18.1:. Plot No. ST-14, measuring 25000 sq. Yds. In Block-3 of Scheme-5, Clifton is leased out by K.D.A, as Commercial-cum-Amusement Park. As such, it does hot come within the purview of amenity plots like roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks community centers, mosques and graveyards. Therefore, provisions of Article 52-A of K.D.A. Order, 1957 (President's Order No. 5 of 1957) for conversion of amenities, is not applicable to this plot.
19.2. As per allotment/lease condition 15% of the plot is allowed as commercial, It means that 3750 sq. Yds. Is already commercial. Therefore, Commercialization Charges are to be paid for 21250 sq.
Yds. Only by the appellant @ Rs. 3,500/- per sq. Yds., being the commercialisation charges approved by Governing Body of K.D.A, and hot for the whole plot. 25% of the Commercialisation charges shall be. Paid forthwith and the rest in three equal instalments in a period of four years.
20.3. After payment. Of the Commercialisation charges, the entire plot will stand commercialized.
Therefore, plot ratio 1:5 as implied for GC Category Plot in Clifton, shall be permitted for this plot.
21.4. NUF is not be charged and construction period extended for another five years/.e., June, 1997.
22.5. Necessary orders/challans be issued without any further delay under relaxation of Rule 15 and all other relevant rules.
Sd/- CHIEF MINISTER Government of Sindh 26.1.1992 MINISTER HRT & RHE Please take appropriate n/a.
Sd/- 29.1.1992 DIRECTOR GENERAL. (K.D.A)
24. On the eve of his departure for London for medical treatment, Minister HTP had directed that cases involving conversion of land-use should be brought to his notice before any action is taken.
25. The file of Funfair Land was handed over to me yesterday by Mr. Khan Muhammad Mahar, containing the orders of Chief Minister Sindh as well as Minister HTP. As a matter of precaution I rang up the Minister at his London number today at 2.00 p.m. He has desired that before any further action is taken in this matter the file should be shown to Chief Secretary Sindh.
26. The file is accordingly being submitted to the Chief Secretary for instructions for further , action in this matter.
Sd/- (ABU SHAMIM M. ARIFF) Director General K.D.A.
17.2,1992.
1308 17.2.1992.
CHIEF SECRETARY SlNDH
27. The case had been discussed by me with the then C.M. Oh 2/3 and he insisted that, his .Orders be complied with except that K.D.A, may ask the ptr to pay the amount in two instalments spread over the period of two years.
For n/orders.
Sd/- CS 8.3.
28. CHIEF MINISTER.
Earlier orders passed by the Chief Minister Sindh should be complied with (Paras 18 to 22).
Sd/- M. Shah 8.3.1992"
Learned counsel for the respondent No. 3, to whom the copies of statement and documents were supplied filed objections to the effect that, the documents were to be filed by the Additional Advocate-General, and, therefore, the veracity of the documents were required to be confirmed by the learned A.A.G, It was further contended that the conversion allowed by the Chief Minister in relaxation of rules was without any authority and the authenticity of the document cannot be determined in the proceedings under Article 199 of the Constitution and, therefore, the petition is not maintainable, It was further contended that the .Hon'ble Supreme Court has held in number of cases that the Chief Minister has no power to convert an amenity plot into commercial one and consequently the order of Chief Minister is void, It is also submitted that the documents produced by- the petitioner show that the subject plot was part of an amenity area and was carved out at the instance of Mr. Jam Sadiq Ali, the then Minister, Housing and Town Planning/Chief Minister, who had no authority to do so. It is concern on conversion of plot and contacted the Chief Minister, at London, who was on medical leave, which shows manifest collusion of Director-General and Chief Minister.
Subsequently, on 11.10.2003, the learned Additional Advocate-General Sindh, has filed copy of the Note Sheet and summary for the Chief Minister, pertaining to the subject plot. The documents produced by the learned A.A.G, include, certain notes which have not been produced by the learned counsel for the petitioner. These notes contain some very pertinent material and, therefore, they are reproduced below:-- SUMMARY FOR CHIEF MINISTER SlNDH Subject:- REQUEST FROM M/S. FUNFAIR LIMITED FOR CONVERSION OF AMENITY PLOT NO. ST-14, BLOCK-
3. SCHEME NO. 5 (CLIFTON) INTO COMMERCIAL LAND The Secretary to Chief Minister Sindh has sent a photostat copy of letter dated 30.7.1991 alongwith a photostat copy of M/s. Funfair Limited's application bearing the following orders of the Chief Minister Sindh (Annexure "A") and requested to take necessary action in the matter accordingly, so that the orders of the Chief Minister are complied with:- Request allowed as at "A"
2. M/s. Funfair Limited vide their letter dated 27.7.1991 addressed to the Chief Minister Sindh, thereby stating that over a long period of time they have devoted maximum efforts to promote the project and after a substantial loss of money, they have come to the conclusion that the project may not prove viable and may only create a disturbance for the area and requesting to authorize the K.D.A, for conversion of Plot No. ST-14, Block-3, Scheme No. 5 into a commercial land where they propose to develop it into an unique commercial site worthly of its location.
3. In this connection it is submitted that an Amenity Plot No, ST-14, Block No. 3, measuring 6.00 acres of Scheme No. 5 was allocated to M/s. Funfair Limited vide letter No. 230, dated 23.2.1976 under the terms and conditions (Annexure "B") for establishment of Amusement Park. On realization of 25% occupancy value the allotment order issued on 17.3.1976 and after payment of balance 75% occupancy value the possession order was issued on 16.8.1976 with the construction period of 10 years from the date of Possession Order. Physical possession handed over to the allottee on 16.8.1976 by the Executive Engineer concerned. The lease has been registered vide No. 11442, dated 23.8.1976 for 99 years with the following conditions:- "(12) In order to ensure that development of Amusement Park is harmonized in a balanced manner together with all amenities and. Requirements, the Lessee shall be., allowed a maximum of 15% of land to the utilized for commercial purposes. The Lessee shall also be allowed a restaurant to cater the requirements of the public.
The Lessee shall not use the plot or any part thereof or permit the same to be used as a place of theatre or cinematography, unless the plot has been allotted as a Cinema plot."
4. It is also pointed out that the prescribed construction period has expired on 15.89.1986, but the above plot has not been utilized by the allottee for the purpose for which it was allotted. Now after a lapse of five years of the expired period it has been requested to convert the afore-mentioned Amenity Plot into Commercial.
5. The conversion of Amenity Plot into residential/commercial will certainly be objected by the public, as they would be deprived of the facilities, of amusement etc. And therefore, it would not be desirable to allow such conversion. Furthermore it will .Create unbearable strain on the already precarious water-supply situation in the area.
6. Furthermore, a procedure has been prescribed under Article 52-A of the K.D.A. Order, 1957 for conversion of Amenity Plots/Sites into other uses, which reads as follows:--- 52-A (1) The Authority shall, immediately-after any housing scheme in sanctioned by, or altered with approval of Government, submit to the Commissioner the details including the survey numbers, area and location of each plot reserved for roads, hospitals, schools, colleges, libraries play grounds, gardens, parks, community centers, mosques, graveyards or such other purpose and the- Commissioner shall notify such details in the official Gazette.
(2) The Authority br the Housing Society may at any time prior to utilization of any plot reserved for the purpose mentioned in sub-section (1), apply to the Commissioner for conversion of such plot to any other purpose.
(3) The Commissioner shall, on receipt of an application under sub-section (2), invite objections from the general public through a notice published in one English and vernacular leading local daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of publication of the notice.
(4) The Commissioner shall, after considering the objections received under sub-section (3) and hearing such, persons as he may consider necessary forward his recommendations alongwith the application and other connected papers to Government for orders."
There is no provision in the .K.D.A, order for grant of any exemption to the above procedure, In addition to the anticipated public criticism in this case, there cannot be any valid justification to hold back the barrage of similar requests which would follow in future regarding other amenity plots in various parts of the city.
7. The case may please be submitted to the Chief Minister for kinder perusal and necessary orders.
Sd/- (ABU SHAMIM M. ARIFF)
Director General, K.D.A.
SECRETARY HTR Sd/- 14.10."
Hon'ble C.M. May like to reconsider his earlier decision and order further.
Sd/- Minister (HTP)
29.11.1991 Chief Minister
91. Further to my orders dated 14.10.1991 the case has been reviewed and the applicant M/s. Funfair Limited is hereby allowed to convert the Plot No. ST-14, Block-3, Scheme No. 5, Clifton, Karachi into all unique Commercial Site worthy of its location. The percentage for commercial use of the said plot be enhanced from 15% to 75%. Extra charges Rs. 765/- (seven hundred and sixty-five) per square yard, be realized instead of Rs. 25 lac. The lapsed construction period be also relaxed in the relaxation of Rule 3 and others relevant rules.
92. Necessary challan be issued accordingly.
Sd/- Chief Minister, Sindh 9.12.1991.
93..................................
Director General (K.D.A.)
M (HTP) may kindly like to peruse before further action is taken.
Sd/- 10.12.1991
94. M. (HTP) Conversion of amenity plot into commercial has to be done under the provisions of Article 52-A of the K.D.A. Order detail of which has' been given in Para-6/7 of the summary. Without following this procedure amenity cannot be converted into commercial, In fact this would be the first case of arbitrary conversion by our Govt, and is bound to invite vehement public criticism.
Furthermore, as per G.B. Decision the commercialization rate for Clifton area is Rs. 3,500/- per square yard. Which again cannot be changed, In view of the above fats .M. May like to review his decision. Since the file had been submitted by me I had directed D.G. KDA to submit the file to me before taking any action. If C.M. desires he can discuss this case with me.
Sd/- 10.12.1991.
Chief Minister
96. (1) Plot No. ST-14, measuring 25,000 Sq. Yrds.. In Block-3 .Of Scheme-5, Clifton is leased out by K.D.A., as Commercial-cum- Amusement Park. As such, it does not come within the purview of Amenity Plots like roads, hospitals,, schools, colleges, libraries, playgrounds, gardens, parks, community centers, mosques and graveyards. Therefore, provisions of Article 52-A of K.D.A. order, 1957 (President's Order No. 5 of 1957) for conversion of amenities, is not applicable to this plot.
97. (2) As per allotment/lease condition 15% of the plot is allowed as commercial, It means that 3750. Sq. Yds. Is already commercial. Therefore, Commercialization charges are to be paid for 21250 Sq. Yds. Only by the appellant @ Rs. 3,500/- per Sq. Yds.; being the Commercialization charges approved by Governing Body of K.D.A, and not for the whole plot. 25% of the Commercialization charges shall be paid forthwith and the rest in three equal instalments in a period of four years.
98. (3) After payment of the Commercialization charges, the entire plot will stand commercialized.
Therefore, Plot Ratio 1:5 as implied- for GC Category Plot in Clifton, shall be permitted for this plot.
99. NUF is not be charged and construction period extended for another five years i.e. June, 1997.
100. (5) Necessary orders/challans be issued without any further delay under relaxation of Rule 15 and all other relevant rules.
Sd/- CHIEF MINISTER , GOVERNMENT OF SINDH 26.1.1992 MINISTER HRT & RHE Please take appropriate n/a.
Sd/- 29.1.1992.
DIRECTOR GENERAL (K.D.A.)
102. (24) On the eve of his departure for London for medical treatment, Minister HTP had directed that cases involving conversion of land-use should be brought to his notice before any action is taken.
103. (25) The file of FUN FAIR Land was handed over to me yesterday by Mr. Khan Muhammad Mahar, containing the orders of Chief Minister, Sindh as well as Minister HTP. As a matter of precaution I rang up the Minister at his London number today at 2.00 p.m. He has desired that before any further action is taken in this matter the file should be shown to Chief Secretary Sindh.
104. (26) The file is accordingly being submitted to the Chief Secretary for instructions for further section in this matter.
Sd/-.
(ABU SHAMIM M. ARIFF) Director General, K.D.A.
17.2.1992 A. CHIEF SECRETARY SlNDH Page of my noting below, other half is missing.
Sd/-
105. (27) The case had been discussed by me with the then C.M. On 2/3 and he insisted that his orders be complied with except that K.D.A, may ask the ptr to pay the amount in two instalments spread over the period of two years.
For n/orders.
Sd/- CS 8.3.
(28) Chief Minister.
105. (29) Earlier orders parsed by the Chief Minister Sindh should be complied with (Paras*' 18 to 22).
Sd/- M. Shah 8.3.29."
107. (30) I suggest that payment, of commercialization charges shall be done in two instalments.
First instalment shall be paid before the letter of - commercialization is issued. Second instalment shall be paid within two years of the date of commercialization letter. A bank guarantee for the amount of second instalment is to be given.
Sd /- 26.3.92.
Minister HTP
108. Hon'ble C.M. May like to see above Sd /- 26.3.92 Chief Minister
109. (32) Para. 30 is approved.
Sd/- M.A. Shah
110. Minister HTP
(33) PI. Implement CM's order.
Sd/- 26.3.92 32 CHIEF SECRETARY GOVERNMEN T OF SlNDH
126. The case-file must have been received by me somewhere between 17th and 20th February, 1992. I distinctly remember that after examining the case, I had made certain observations opposing the conversion and submitted the case to the then C.M. for his consideration. (This note is missing as some one had torn away the half page of page 24 containing the note). The then C.M.
Discussed the case with me on 2nd March and desired that his orders be implemented. Hence I brought the case-file and resubmitted the case to the new C.M. On 8.3.1992. (Jam Sahib expired on the night between 4th and 5th). The case file never came back to me as it remained with DG, K.D.A, and the Administrative Department. This note has been added to set the record correct.
127. I have also submitted a summary to C. M. For reconsideration Annexed.
Sd/- (SYED SARDAR AHMED) \ Chief Secretary Dt: 3.6.
SECRETARY. HTP
128. D.G.. KDA Handed over personality to me on 1.9.1992, by Mr. Hameedi, ACS.
Please discuss.
Sd/-
129. Plot No. ST-14, Block 3, Scheme 5, Clifton, admeasuring 25000 sq. Yds. Was leased out to M/s. Fun Fair Ltd. Through , its Company Secretary Mr. Shamsuddin Ibrahim S/o Ibrahim Kasim on 23rd August, 1976 @ Rs. 40/- per sq. Yd. For 'Commercial- cum-Amusement Park' to the extent provided under clause 12 of the deed which reads as under:- "(12) In order to ensure that development of Amusement Park is harmonized in a balanced manner together with all amenities and requirements, the Lessee shall be allowed a maximum of 15% of land to be utilized for Commercial purpose. The Lessee shall also be. Allowed one restaurant to cater to the requirements of the public.
The lessee shall not use the plot or any part thereof or permit the same to be used as a place of theatre or cinematograph, unless the plot has been allotted as a Cinema Plot."
In brief 15% of the total areas was allowed to be commercialized which included construction of a restaurant.
130.
2. On 27th April, 191, the Director of Fun Fair Itd. Requested the Chief Minister to convert the entire plot for commercial purposes on which the them Chief Minister ordered as under:- "Request allowed."
131. This order was communicated by the Secretary to C.M. To DG, KDA, Karachi on 30.7.1991. On 26th August, 1991, the then DG, KDA, submitted a summary to the C.M. Through Secretary, HTP, whereby the submitted that there was no provision for conversion in such a way in the KDA Order or for' grant of any exemption. He also added that this would invoke public criticism. The then C.M.
However, vide his order, dated 14,10.1991, did not agree with DG, KDA and ordered that the percentage for commercial use of the said plot be enhanced from 15% to 75% on payment of Rs. 25 lacs as conversion charges. The Minister, HTP, marked these papers to DG, KDA for taking appropriate necessary action. On reconsideration, the again, vide his note, dated 29.11.1991, submitted the case to the C.M. For review. The then Chief Minister again vide his orders dated 9.12.1991, ordered that commercial use be enhanced from 15% to 75% on payment of extra charges @Rs. 765/- per sq. Vd. Instead of Rs. 25 lacs. The DG, KDA, vide his note, dated 10.12.1991, submitted the file to the Minister with the following remarks:--- "Minister, HTP may kindly like to peruse before. further action is taken."
132. The Minister again vide his note dated 10.12.1991, requested the then-C.M. That the amenity plot cannot be converted for commercial use. He also added that as per Governing Body decision,- the commercialization rate for Clifton is Rs. 3,500/- per sq. Yd. Which cannot be changed. He, therefore, requested that C.M. To discuss the case with him. The C.M. Vide his order, dated 26.1.1992 (paras 18 to 22), finally decided to charge Rs. 3,500/- per sq. Yd. As Commercialisation Charges to be recovered in four annual instalments. He also ordered that challan be issued without any further delay. The note was marked to Minister. HTP who vide his note, dated 29.1.1992, marked it to DG, KDA for taking appropriate necessary action. Not satisfied with the orders of the then C.M. And the Minister, the DG, KDA, submitted the file to the Chief Secretary for further instructions and action in the matter.
133.
3. The undersigned made certain observations and opposed (as I remember) the- conversion for commercial purposes, but unfortunately the said note is not4 traceable as some one has torn half of the page 24 on which I had made these observations. On receipt of the case file, the then C.M. Called me at his residence and discussed it. He desired that his orders be implemented and the conversion charges be recovered, in two installments. Hence note to this effect was submitted to the C.M. On 8.3.1992 who observed that the orders of the then C.M. As contained in paras 18-22, be implemented; M/s. Fun Fair Ltd., was accordingly advised that first installment amounting to Rs.
3,71,87,500/- be submitted so that letter of commercialization be issued. M/s. Fun Fair Ltd., instead of paying Rs. 3,71,87,500/-, has paid only Rs. 1 Crore. Neither the balance amount has been paid nor the bank guarantee has been furnished by the grantee.
134. 4. , In view of the fact that:-
(i) conversion of amenity plot for commercial purposes cannot be done without inviting objections from the public, and since legal formalities have never been completed, the conversion would be challenged in the Court of law;
(ii) M/s. Funfair Ltd. Had not requested for conversion on proper letter head rather the request was made by one Arif on a plain. Paper who is neither the Secondary nor Director of the said Company;
(iii) the then Chief Minister had ordered conversion of only 75% (15% old + 60% new) vide paras 8 and 13 (note sheet);
(iv) the unauthorized representative of M/s. Funfair Ltd. Has no legal entity;
(v) the conversion has invoked public criticism; and
(vi) the petitioner has failed to pay the balance of Rs. 2,71,87,500/- and could not furnish the bank guarantee of Rs. 3,71,87,500/-.
135. It is submitted that there is enough legal justification to withdraw the letter of intenition issued on 19.4.1992, and direct the original grantee to maintain it as Amusement Park.
Sd/- (SYED SARDAR AHMED) Chief Secretary 3.6.1992 CHIEF MINISTERS In the documents produced by the learned counsel for the petitioner, only two opening lines of para. 94 and last two lines thereof were produced. Entire one page of this paragraph was withheld with, the result that the document produced by the petitioner read as follows:- "Conversion of amenity plot into commercial has to be done under desires he can discus$ this case with me.
Sd/- Minister H.T.P 10.12.1991"
The note sheet produced by the learned A.A.G., reads as follows:- "94. M. (HTP) Conversion of amenity plot' into commercial has to be done under the provisions of Article 52-A of the KDA Order detail of which has been given in para. 6/7 of the summary. Without following this procedure amenity cannot be converted into commercial. In fact this would ,be the first case of arbitrary conversion by our Govt, and is bound to invite vehement public criticism.
Furthermore, as per G.B. Decision the commercialization rate for. Clifton area is Rs. 3,500/- per square yard. Which again cannot be changed, In view of the above facts C.M. May like to review his decision. Since the file had been submitted by me I had directed D.G. KDA to submit the file to me before taking any action. If C.M. Desires he can discuss this case with me.
S.d/-"
A perusal of the above-notes shows that the questions requiring consideration cannot be determined in the proceedings under Article 199 of the Constitution. We find force in the contention of Ms. Rizwana Ismail, in this behalf. The facts are so checkered and complicated that it require examination of the entire record pertaining to the allotment and commercialization of the subject plot. First of all it has to be determined whether the subject plot was an amenity plot or not? The documents produced before us contain overwhelming material to infer that it appeared to be an.
Amenity plot. However, for giving a conclusive finding the recording of evidence is necessary and thereafter on sifting of the evidence and scrutiny of the entire record, the point can be determined.
After determination of this disputed question of fact, the other issues emanating therefrom and the law applicable can be considered and decided. Various notings of the Director General, K.D.A., the then Chief Secretary (who happens to be senior Minister in the province at present) and Minister for Housing and Town Planning are indicative of the fact that the things were not done in the ordinary course. If after recording of evidence it is found that the subject plot was an amenity plot then it would require consideration whether a plot measuring 25000 square yards meant for development of a park could be allotted to an individual and commercial use thereof was warranted in law. It is not a case, in which right of one individual is involved, The amenity plot for park is a public property and involves the rights of millions of citizens. The issue is to be considered on much wide plane and in the perspective of a broader horizon, keeping in view the public interest at large, as well as environmental issues. After determination of the status of the plot the question for consideration would be. Whether the State functionaries are also bound by the law of the land or they have free licence to deal with the public properties at their whims ignoring all the norms of public administration and the rule of law.
At this juncture, we would like to consider the contention of Mr. Mushtaque Memon, that the question pertaining to status of the plot already stands-determined by a Division Bench of this Court while deciding C.P, D-1756 of 1992, Haider Ali R. Mulji v. K.D.A. & others. The petitioner in the above petition was a concerned citizen who filed the petition praying that the record of the amenity plot may be directed to be produced and conversion of the amenity plot into commercial one be declared to be of no legal effect and consequently allotment of said plot to Funfair Limited, may be cancelled. A perusal of the judgment in the above petition shows that the record was not produced and on the basis of material made available, the petition was disposed of holding that, "in the facts and circumstances of the present case it is not understood as to what breach the respondents Nos. 1 to' 3 had committed and what rights the petitioner had which he was trying to enforce through this petition." It was further, held that the Government of Sindh, had the right to order the relaxation or removal of restriction for use of the plot. There is another observation in the judgment that "from the perusal of the scheme, it is clear that the plot of land in question was reserved for commercial-cum-amusement plot and had not been earmarked for the purpose of amenity plot, It had been left at the discretion of the authority to divert to other use." The main reasons for the dismissal of petition prevailing with the learned Judges of this Court were expressed as follows:- "In view of the aforesaid facts, we are of-the view that the petitioner's legal right has not. Been infringed and he has no right to file a petition in this Court."
The entire material produced before us contained in the notings was not was not produced in the earlier petition as the petitioner in the earlier petition was not in a position to produce the above record. Thus, the earlier petition was disposed of on the principle contained in the maxim "Secondum allegata et probate" meaning thereby that a' party can succeed according to what was, alleged and proved. Amir Shah v. Ziarat Gul (1998 SCM R, 593). The dispute questions of facts cannot be decided in exercise of the Constitutional jurisdiction under Article 199. Thus, the observations made in the earlier petition while dismissing the same, that the petitioner therein had no right to file the petition cannot be held to be conclusive finding of facts. The observations have been made on the basis of plea taken by the petitioner in the earlier petition and the facts as brought before the Court by the respondents. A perusal of the comments filed by the respondents in the earlier petition clearly shows that blatant mis-statement of facts were made in the comments, distorted versions were given and the real facts were concealed. The reason for such conduct on the part of K.D.A, in the earlier petition; may be the political pressure, as it was alleged in the petition that one Senator of the then ruling party was the owner/Director of Funfair Ltd.
However, we are not in a position to discern the actual, reason for presenting distorted and incorrect facts before the Court in the earlier petition. Be that as it may, the dismissal of earlier petition cannot be treated to be the conclusive finding of facts pertaining to the status of subject plot. The sole effect of the dismissal of earlier petition is that the petitioner therein was debarred from filing any fresh petition on the same set of facts. However, by no stretch of imagination it can have the effect of legalizing the illegalities allegedly committed in the course of allotment and according permission for conversion of an amenity plot into, a commercial plot.
For the foregoing reasons, we are of the considered opinion that the issues involved are beyond the scope of a petition under Article 199 can be thrashed out in a properly constituted proceedings before a Civil Court only. Thus, leaving all the issues of facts and law open, the petition stands dismissed as not maintainable, with no order as to cost. v