1. GULZAR AHMED, J.--- The petitioner in this petition claims itself to be a registered Association under the Societies Registration Act, 1860 with an object to establish Hospital, Clinics, Maternity Homes, Dispensaries etc. And is aggrieved by the cancellation of an amenity plot No,ST-3/1 Block No,3 measuring about 3000 sq. Yards in K.D.A. Scheme No,5, Clifton, Karachi. The letter of cancellation, dated 2-8-2003 of the Assistant Director Officer (A.P.C.), City District Government, Karachi is annexed to the petition as annexute 'IV. It seems that this cancellation of petitioner's land was made under the Sindh Urban State land (Cancellation of Allotments Conversion and Exchanges), Ordinance (Sindh ordinance No,III of 2001). Respondents Nos.1 and 4 have filed a joint counter-affidavit to which rejoinder affidavit is filed by the petitioner. In order to properly appreciate the case, we have called for the record of the plot from the respondent No, 1.
2. The petitioner's case is that in furtherance of its aim and objects, it had applied in 1989 for allotment of a suitable plot for the purpose of establishing a hospital in Clifton area and the defunct K.D.A. Being the predecessor of the respondent No,1 (C.D.G.K.) issued allocation of amenity plot along with terms and conditions vide its letter No,ST-3-A/BL-3/SCH.5/APC/89/514, dated 28-6- 1989 in respect of Plot No,ST-3/1, Block-3 measuring about 3000 sq. Yards in K.D.A. Scheme No,5, Clifton, Karachi for establishment of a hospital/medical center and asked for payment of 50% of the occupancy value at the rate of Rs,30 per sq. Yards being the reserved fixed price for amenity plots vide Govt. Of Sindh Notification No,S0-1 (K.D.A:) 14-5576, dated 18-6-1997. The petitioner paid the entire 100% occupancy value vide challan, dated 29-6-1989 whereupon a site plan was issued and physical possession of the plot was also handed over to the petitioner vide possession order, dated 6-7-1989. It is stated that the petitioner prepared a building plan for establishment of a Medical Center comprising basement + ground floor + 6 floors for approval to the K.B.C.A. And deposited scrutiny fee vide challan, dated 18-12-1989 which was approved by the K.B.C.A. Vide its letter, dated 20-12-1989. It is further stated that the petitioner started construction work on the basis of approved building plan and in order to raise funds required overdraft facility from the bank. Consequently K.D.A. Executed a 99 years lease, dated 17-2-1990 in respect of the said plot in favour of the petitioner. The petitioner than applied for permission to mortgage which was granted and the petitioner mortgaged the said plot for availing overdraft facility in the sum of Rs,27,00,000 from Habib Bank Ltd., Central Branch, Karachi and constructed boundary wall and made some other construction. It is further alleged that the petitioner's said plot was cancelled on which the petitioner filed Constitutional Petition No,D-1086/1990 which was disposed of vide order, dated 1-10- 1990 observing that the petitioner's representation be decided by 31-12-1990 and till the disposal of the representation no adverse action be taken against the petitioner in respect of the plot in question. It is alleged that as the representation of the petitioner was not decided in terms of the said Court Order, the petitioner made representation to the Chief Minister Sindh whereupon the plot was restored to the petitioner vide order, dated 5-4-1991, yet again on 29-4-1991 the restoration order, dated 25-4-1991 was withdrawn and the petitioner again filed C.P. No,D-770 of 1991 and while it was pending, the K.D.A. Vide its letter, dated 5-12-1994 restored the said plot to the petitioner whereafter the said C.P. No,D-770 of 1991 was not pressed and withdrawn on 13-12-1994.
3. Mr. Muhammad Mustafa Hussain, learned counsel for the petitioner has contended that the petitioner's cases is of a 99 years lease of an amenity plot whereas Sindh Ordinance, III of 2001 provides for cancellation of only residential, commercial or industrial plots. He has stated that the petitioner's plot cannot be cancelled under this Ordinance and the impugned letter is altogether illegal. In support of his submission he has relied upon the case of Muhammad Alamgir Ahmad v.
4. Multan Development Authority, (2004 CLC 964).
5. On the other hand Mr. Manzoor Ahmad learned counsel appearing for the respondents Nos.1 and 4 has supported the impugned letter and has relied upon unreported judgment, dated 15-2-2005 in Constitutional Petition No,D-1461/1997 Sindh Peoples' Walfare Trust (Reg.) v. The Government of Sindh and others and also unreported judgment, dated 16-3-2005 in Constitutional Petition No,D- 1141 1991 Sobho Mal v. Karachi Development Authority and others.
6. Mr. Anwar Mansoor Khan learned Advocate-General Sindh has contended that the amenity plot is not included in Sindh Ordinance No,III of 2001.
7. We have considered the arguments of the learned counsel and have gone through the record.
8. It appears that the plot in question was allotted to the petitioner by the then Chief Minister of Sindh and not the governing Body of the L.D.A. Under the rules. The respondent No,1 with his counter affidavit has filed a photo copy of the letter addressed by Dr. Riffat Memon to the then Chief Minister Sindh which is as follows:--- "Request for Allotment of ST/Commercial Site for Hospital, in Scheme 5 Clifton, Karachi.
9. Sir, It is highly appreciated that the present Awami Government is keenly interested to provide medical facilities to the people of Pakistan.
10. The Government have created and made available ST Plot for such purpose in various development Schemes under administrative control of K.D.A. Scheme 5 Clifton, Karachi.
11. I am Doctor and intend to get a standard type of hospital built in Clifton area to cater the needs of people in the field of Health services.
12. In view of the above facts, it is earnestly requested that I may very kindly be allotted a suitable ST Commercial site for Hospital and Commercial Complex in Schemes. 5 Clifton, Karachi. Kindly allot me one Acre Plot.
13. I am hopeful for favourable consideration of my genuine request in the national interest.
14. Thanking you.
15. Your faithfully, (Sd.)
16. Dr. Mazhar Ali Memon"
17. On this letter the then Chief Minister passed the following order:--- "Process this case and put up when the ban is lifted.
18. (Sd.)
19. Chief Minister Sindh 12-04-1989"
20. It appears that the case was processed and a summary, dated 14-5-1989 was put up to the Chief Minister in which procedure for allotment of amenity plot by Governing Body,of K.D.A. Was mentioned and it was also stated that land for commercial complex are disposed of through public auction after publication in newspapers under Sindh Disposal of Plots Ordinance, 1980 and that commercial plot cannot be allotted to the petitioner. The Chief Minister passed the following order:--- "Which are amenity plots available for charity purposes. The same may be suggested pointed out and suggest any one of such plots according to Ordinance and the rules.
21. (Sd.)
22. Chief Minister of Sindh 16-05-1989"
23. A further summary, dated 31-5-1989 was submitted to the Chief Minister who passed the following order:- "Amenity plot could be utilized for hospital purposes serves the humanity and not for commerce.
24. The plot would be allotted to the applicant for hospital on usual terms and conditions early.
25. (Sd.)
26. Chief Minister of Sindh 09-06-1989"
27. It seems that pursuant to this order of the Chief Minister the K.D.A. Through its letter, dated 28-9- 1989 made allocation of amenity plot being the plot in question to the petitioner. Possession of the plot was also handed over to the petitioner. One of the terms and conditions of the allocation letter was that "A lease for 99 years shall be granted on payment of full occupancy value and ground rent in advance and only on completion of construction of the proposed project according to approved plan by Karachi Building Control Authority." The petitioner through Dr. Mazhar Ali Memon and Dr. Rifat Mazhar addressed a letter to the Chief Minister informing that the petitioner intends to make a 100 bed hospital and the project will cost about Rs,80 million for which the petitioner have approached the Banking Council for financial assistance for which petitioner needs permission for grant of lease for mortgage purpose to the banks. On this application the Chief Minister wrote as follows:--- "The project is already sanctioned for the purpose of lease rule may be relaxed.
28. (Sd.)
29. Chief Minister Sindh 15-02-1990"
30. On this order of the Chief Minister, lease of 99 years, dated 17-2-1990 was executed in favour of the petitioner. The petitioner itself has stated in the memo. Of petition that the amenity plot in question has been mortgaged with Habib Bank Ltd. Central Branch, Karachi and an overdraft facility of Rs,27,00,000 has been obtained.
31. Now on the face of the record, it is established that the amenity plot in question was allotted to the petitioner by the Chief Minister Sindh and not by following the rules and procedures for allotment of amenity plot provided in the K.D.A. Disposal of Land Rules, 1971 under which Governing Body of K.D.A.
32. Is authorized to make final allotment. Admittedly, there is no final allotment of the plot in question to the petitioner by the Governing Body of K.D.A.
33. In the case of Al-Shafeeq Housing Society Hyderabad v. Pakistan Medical Association, Karachi PLD 1992 SC 143 the Honourable Supreme Court of Pakistan has held that the Chief Minister had no power to make allotment order of the land more so the allotment of an amenity plot. In the case of Sindh Peoples Welfare Trust (Reg.) (supra) a Division Bench of this Court was seized of a mater of allotment of an amenity plot by the Chief Minister in which it was observed as follows:--- "7. Mr. Raghib Baqi further drew our attention to Rule, 11 of the Karachi Development Authority (Disposal of Land and Estates) Rules, 1971. This rule relates to disposal of amenity plots including sites for schools and provides that an application is to be made to the K.D.A. In a prescribed form which is to be scrutinized by the Amenity Plots Sub-Committee headed by a member of, the Governing Body. The Sub Committee is required to interview the applicant and satisfy itself inter alias as to actual requirements of land and the recommendation of the concerned heads of departments such as Director of Education etc. The recommendations of the Sub-Committee are required to be put to the Allotment Advisory Committee which is to undertake further scrutiny and refer the matter to the governing body of the Authority for final allotment. Admittedly such procedure was never adopted and the petitioner themselves chose to defy the requirement of Rules by making a direct application to the Chief Minister who had no power in law to effect allotment."
34. Yet again in the case of Sobho Mal (supra) a Division Bench of this Court was seized of a matter where also the plot for residential purpose was allotted on the orders of the Chief Minister Sindh after carving out the same from amenity land meant for K.D.A., Nursery. This Court again reiterated that the Chief Minister has no authority whatsoever to allot plot under different schemes of K.D.A.
35. Looking at the facts and circumstances of the present case in the light of the judgment of the Honourable Supreme Court as noted above and the two judgments of a Division Bench of this Court, we find that in the present case also the allotment of the land in question was made in favour of the petitioner on the orders of the Chief Minister Sindh who in law had no authority to do so.
36. The exercise of jurisdiction under Article 199 of the Constitution is discretionary and it has to be exercised in favour of loosing cause of justice and for good public order. Though it may be said that the cancellation of amenity plot under Sindh Ordinance, III of 2001 cannot be made but as we find that the allotment and consequential lease of 99 years of the amenity plot in favour of the petitioner being itself contrary to law, therefore, we cannot strain ourselves by over-stretching the discretion to perpetuate the illegality. We therefore, find no merit in this petition and the same is dismissed with cost.