' MUHAMMAD SADIQ LEGHARI, J.---The facts of present case are that in June, 1965 Karachi Development Authority (KDA) required from KPT 638 acres and 1590 sq.Yds.. Of land in connection with Khahkeshan Clifton, Scheme-V. The agreed rate of the land was Re.1 per sq.Yd. The land went in the possession of KDA which prepared the layout plan of Scheme V and then allotted/leased out plots to various persons. A plot measuring one acre (4011.11 sq.Yds.) from the area reserved for Public Building was allotted to PICIC/ for construction of its office building. The price fixed was of commercial area. It was at the rate Rs,400 per sq.Yd. On 27-4-1983allotnrient/possession order was issued in transferee's favor and then possession of the plot was physically delivered to them on 15- 8-1983.
2. Under the terms of allotment PICIC had to complete the construction of its office building within two years from the date of the possession order. However, that time was later on extended.
3. On failure to start and complete the construction of office building by PICIC, the allotment was cancelled by KDA in 1991. The cancellation order was challenged by PICIC through Suit No, 384 of 1991 which was later on withdrawn on 21-5-1998 after agreement between PICIC and KDA that two years further time for competing the construction shall be allowed to PICIC after it pays ground rent with effect from 1-7-1995 and non-utilization fund with effect from 1-1-1994. PICIC paid those charges in October, 1998. Obviously, the period of two years commenced' from the date of that payment.
4. Before expiry of the period allowed to PICIC for construction the Additional Director (APC) KDA issued notice to plaintiff's Secretary on December 7, 1999 requiring them to explain the reason as to why the allotment of the 'plot should not be cancelled for not raising any construction upon it. PICIC replied the notice on December 15, 1999 expressing therein that under agreement of October, 1998 inSuit No, 384 of 1991 the period of two years for construction over the plot had to start from 23rd October, 1998 and as such the same had not expired, therefore, the show-cause notice was not warranted.
5. After silence of more than ten months the governing body of KDA vide its resolution, dated 14-9- 2000 cancelled the allotment of plot to PICIC. The relevant extract from the resolution reads as under:-- "It was resolved that the request of Messrs PICIC for allowing the construction of building with the ratio of 1:2 over Plot No, PS-1, Block-6, Scheme-5 be declined and allotment of the said plot be cancelled, due to a policy decision that no building shall be constructed between the road and the water line of boating basin.
' It was further resolved that an alternate plot may be allotted to Messrs PICIC for construction of office building preferably in a comparable area i,e, main road of Clifton of Shara-e-Faisal (between Shaheed-e-Millat Bridge and Nursery) or the area adjacent to Civil Centre".
' It was also resolved that there would be no construction of buildings between the road adjacent to the Boating Basin and the water line in future".
6. Thereafter on 16-9-2000 PICIC filed present suit pleading therein that after the allotment they paid huge amount of Rs,1,04,94,334.25 to KDA towards occupancy value. Ground rent, non- utilization fee and miscellaneous charges and submitted proposed building plans to KBCA for approval. They further pleaded that since they had acquired legal and vested rights in the plot with right to raise construction thereupon the cancellation of allotment without notice to them was without lawful authority. They also alleged the cancellation not be bona fide. The following prayers have been made in the suit:-
(a) Declaration that the plaintiff is owner/lawful allottee of subject Plot bearing No, PB-I. Block-6, Scheme No,5, Clifton, Karachi and is entitled to use the same for construction of its office as a commercial plot with plot ratio of 1:2;
(b) Declaration that the resolution of governing body of defendant, dated 14-9-2000 cancelling allotment of the subject plot is without lawful authority of no legal effect;
(c) Permanent injunction restraining the defendants their subordinates, employees, agents, etc., from 'interfering withplaintiff's possession, enjoyment and use of subject Plot bearing No, PB-I Block-6, Scheme No, 5, Clifton, Karachi:
(d) Cost of the proceedings; and
(e) Any other, additional, appropriate relief as may be considered proper by this Honourable Court."
7. Defendant-KDA filed the written statement defending therein the cancellation of the allotment claiming it to be under a policy decision by the governing body of KDA that no construction shall be constructed between the road and water line of Boating Basin. They also averred in the written statement that governing body had recommended the allotment of an alternate plot for PICIC in comparable area.
8. On the pleadings of the parties following issues were settled:--
(1) Whether any cause of action has accrued to the plaintiff for filing the present suit?
(2) Whether allotment of Plot No, PB-I, Block-6, Scheme No,5 Clifton, Karachi has lawfully been cancelled by the governing body of KDA?
(3) Is the plaintiff entitled to construct its office building on Plot No, PB-I, Block-6, Scheme No, 5, Clifton, Karachi and with plot ratio of 1:2?
(4) What should the decree be?
9. Plaintiff adduced evidence by examining their authorized officer Abu Bakar Siddiqui who produced bulk of documents including the master plan of KDA Scheme No, V, challan showing the payment on construction drawings, notice issued on 7-12-1999 to the plaintiff by KDA and reply thereof and plaintiff's letter, dated 8-5-2000 to the governing body of KDA.
10. Defendant-KDA, however, failed to produce any evidence despite opportunity. Lastly their side was closed and the case fixed for arguments.
11. The arguments of the parties counsel were heard and the judgment was reserved. Now I proceed to discuss the issues and record findings in the light of the evidence on record and arguments advanced by the parties counsel.
' First I take up issue. No,2 for the sake of sequence in the discussion.
ISSUE NO.2 ' Before considering the resolution by which the allotment of the plot to the plaintiff was cancellation I would like to mention here certain non-controversial and admitted facts. The parties counsel were in agreement that neither the plot in question is an amenity plot nor the office building is out of the category of public building. The allotment of Plot No, PB-I, Block-VI Scheme V, Clifton Karachi to PICIC (hereinafter referred to as "(The Plot" or plot in question)" payment of its price by them and the delivery of possession of the plot to them on 15-8-1983 with directions to complete the construction of office buildling within two years are also admitted facts. The parties also do not dispute the fact that due to non-construction the allotment in favor of the plaintiff had been cancelled and the latter filed Suit No, 384 of 1991 in this Court which was later on withdrawn after the understanding rather agreement between the parties that the plaintiff shall make payments of non-utilization fee with effect from 1-1-1994 and ground rent from 1-7-1995 and the plaintiff shall complete the construction on the plot within two years from the payment of all the outstanding dues. Also no controversy is between the parties over the payment of the dues on 23- 10-1998. Obviously, the period of two years for construction over the plot commenced from that date and as such it was to expire .On 22-10-2000.
' Despite the above extension of time the defendant, through Additional Director (APC) issued a show-cause notice, dated 7-12-1999 to the plaintiff stating therein that due to non-construction over the plot the allotment thereof had become liable for cancellation under clause 8 of the terms and conditions of the allotment, therefore, they should explain within fifteen days as to why the allotment should not be cancelled. The plaintiff replied the notice on 15-12-1999 taking position that neither the two years period starting from 23-10-1998 had expired nor they had violated the conditions of the allotment.
' The things remained quiet thereafter and lastly the governing body of the defendant by its resolution, dated 14-9-2000, cancelled the allotment of the plot in favor of the plaintiff on the ground that policy decision was taken that no building shall be constructed between the road and the water line of Boating Basin. At the same time it was resolved that an alternate plot be allotted to the plaintiff for the construction of the office building preferably in comparable area i,e, main road of Clifton or Share Faisal or the area adjacent to Civic Centre.
' It is true that the decision had been taken in view of a policy decision that no building shall be constructed between the raod and water line of Boating Basin but nothing has come in evidence to disclose thereasons behind the policy decision and establish its bona fides and justification. The decision against the plaintiff was taken without putting them on notice and explaining or discussing the basis and bona fide of A the policy. Every policy has to be just bona fide and in the public interest. Since the policy is not directly under attack I refrain from recording finding on the above aspects thereof despite the allegation by the plaintiff counsel that the decision was mala fide which, according to him, is proved by the fact that there exists construction of KESC just by the side of the plot in question, and also development of a big area by KPT for raising construction by the side of that KESC installation. However, it can safely be said that the cancellation of plot without notice was in violation of the principles of the natural justice specially when that acquired vested rights on the allotment of the plot in their favor and delivery of possession thereof with right to raise the construction. Thus, the cancellation order was not lawful.
' Issue answered in negative. ISSUE No,1: ' In view of the findings recorded upon the issue No,2 cancellation of the plot by KDA gave cause of action to the plaintiff for the filing of the present suit.
' Issue answered in affirmative. ISSUE No,3.
' As mentioned in the discussion on issue No,2 plot was allotted to the plaintiff and possession thereof handed over to them with right to raise the construction, thus they had right to raise construction upon it. However; the plaintiffs learned counsel himself expressed that according to the terms of the lease the construction of the plaintiff office building can only be raised after approval of the construction plan by KBCA and such decision still awaits.
' In view of the above it is clear that the plaintiff has right to raise construction upon the plot after approval of the construction plan by KBCA.
' Issue answered accordingly. ISSUE No, 4: ' In the light of discussion and decision upon the above issues the cancellation of plot through resolution, dated 14-9-2000 by governing body of KDA without notice to plaintiff is declared without lawful authority and of no legal effect. As regards the prayer for permanent injunction it is also granted against the disturbance of possession,enjoyment and use of the plot by the plaintiff till they are legally entitled to possess and use the same under the allotment in their favor. The suit is decreed to that extent. KDA to suffer the costs.