' DR. RANA MUHAMMAD SHAMIM, J.---Petitioner Messrs Al-Ghazi Builder through Syed Shah Hussain Inam Ghazi has assailed the impugned order dated 28-2-2007 passed by Sindh Government Land Committee for regularization whereby issuance of challan in respect of differential amount for restoration/release of the land leased out to the petitioner Messrs. Sultanabad Cooperative Housing Society, was declined on the ground that the committee will not take any decision for regularization of allotment on account of pendency of suit bearing No,561 of 2003 filed by Messrs AlGhazi Builders for declaration permanent injunction, damages and mesne profits.
2. Brief facts of the case as narrated in the petition are that in the year 1980 the petitioner Society was awarded lease of land admeasuring 166-30 acres in section 4-B, Deh Songal. Subsequently in the year 1991 another piece of land admeasuring 178 acres was leased out for 99 years by the respondents. The said piece of land admeasuring 178 acres as per form VII comprises of Survey Nos.102, 109, 127, 129, 130, 131, 132 and 144.
3. In the year 1991 petitioner society sold out part of land admeasuring 101-20 Acres out of said 178 Acres to one Messrs Meyari Builders (Pvt.) Ltd., under an agreement to sell dated 22-6-1991. In order to streamline its working the petitioner society executed a General Power of Attorney in favour of Messrs. Meyari Builders on 11-10-1992 to the extent of 109 Acres. Messrs Meyari Builders launched a housing society comprising small plots admeasuring 120 sq. Yards in the name of A-One city and started its works thereon soon after taking possession of the land.
' Due to certain constraints Messrs Meyari. Builders could not complete the said project in time consequently in the year 1998 Messrs Meyari Builders sold out the said land of 109 Acres to Messrs Al-Ghazi Builders vide agreement dated 28-1-1998. Karachi Building Control Authority was informed accordingly as a result thereof KBCA had issued N.O.C. To Messrs AlGhazi Builders to continue and complete the project as per agreement. In sequence thereof Messrs Al-Ghazi Builders paid an amount of Rs . 21,00,000 towards Government dues vide pay order F-0880623004 dated 23-6-1998 drawn on ANZ Grindlays Bank. Receipt of the same was acknowledge by the Mukhtiarkar Karachi West. Messrs Meyari Builders vide its letter dated 27-6-1998 informed the petitioner society about the sale of the subject land to Messrs Al-Ghazi Builders whereafter on 10-8-1998 petitioner society entered into an agreement with Messrs AlGhazi Builders followed by execution of General Power of Attorney in favour of Syed Hassan Imam Ghazi.
4. It is contended by learned counsel for petitioner that after execution of agreement petitioner being owner of subject property insisted for issuance of fresh challan of differential amount but respondent is deliberately avoiding to issue the same, which is contrary to the fundamental rights of the petitioner.
5. With this stand to be owner of disputed property Messrs Al-Ghazi Builders filed a suit for declaration, permanent injunction, damages and mesne profit. These two status of Messrs Al-Ghazi Builders were challenged stating that because of dispute property to Sultanabad Cooperative Society was cancelled in 1996, therefore, petitioner/ plaintiff does not hold any title in the property and it was ordered that:-- "Mr. Ahmed Ali Pirzada learned counsel the defendant No,1 states that though the plaintiff has no right and title to the suit land which was cancelled by the Government in the year 1996 despite the plaintiff is constructing bungalow and selling accordingly though this fact was denied by Mr. Sami, Mr. Ahmed Ali Pirzada states that due to pendency of the suit the Government is not in a position to take any action against the plaintiff. However I do not find any restraint order whereby the defendant No,1 is restrained from taking action in accordance with law. The defendant No,1 may take action in accordance with law notwithstanding pendency of the suit."
6. In spite of above order, Messrs Alghazi Builders approached the respondent for issuance of the challan for payment of 50% balance amount in terms of section 4 of the Ordinance III of 2001 but the respondent had declined issue such challan.
7. Now by this petition it is prayed that the direction may be issued to the respondent for issuance of challan for differential amount as provided under the Ordinance. He submitted that since inception, number of allotments have been made in favour of hundreds of people who have acquired proprietary ownership rights in the subject property, huge amount has been spent over the project and units built thereupon and more than 300 families are involved in the suit property and their lawful rights are being denied because of the acts and omission committed by the respondent. The refusal of issuance of challan by the respondent is not only unlawful and violative of the provisions of Ordinance III of 2001 but also infringement of the fundamental rights of hundred of allottees. The respondents rights of hundred of allottees. The respondents instead of taking action in accordance with law have arbitrarily cancelled the allotment of land to the petitioner society.
8. On the other hand Mr. Ahmed Pirzada, Addl. A.G., submits that the land in question admeasuring 166-30 Acres was leased out to the petitioner society by the respondent vide land granting order dated 20-3-1980 at the rate of Rs,10 per sq. Yard, the total cost comes to Rs,80,71,280 and out of which the petitioner society had paid an amount of Rs,40,35,640 being 50% of the total cost of land while rest 50% the petitioner society failed to pay on due date. According to condition No,2 of the agreement, any amount payable under this condition if shall not be paid on the due date be recoverable as arrears of land revenue. As per condition 3 of the agreement in the event of default in payment of any amount payable under condition No,9 on due date, the tenancy shall without prejudice to the action under condition 9(2) of the settlement of conditions notified on 22-6-1971, also be liable to cancellation rendering 10% of the total amount so far paid by the tenant forfeited to the Government. The petitioner society has not paid the said amount for the last 20 years. After issuance of show-cause notice and obtaining report from the Deputy Commissioner West Karachi the grant/ allotment of said land was cancelled on 16-8-1999. He further submits that the Land Grant Policy for society is under Societies Registration Act, 1955. The respondents have rightly cancelled the grant/allotment of land to society on 16-8-1999 as 50% payable amount was not paid on due date. According to the record of Government 167 Acres were allotted to the society in the year 1980 and another 171 Acres was granted in the year 1991. After payment of 50 % the society took over the possession of the land. According to section 17(1) of the Ordinance more than 100 acres cannot be granted to the society, on the contrary the society was allotted 167 acres in 1980 and another land consisting 177 acres was allotted in the year 1991. He submits that original allottees cannot transfer the excess property to any private person. The land allotted to the allottees can only be allotted to the members of the society only. Filing of an application for issuance of challan on 5-10-1999 by AlGhazi Builders, which is not a society, has no locus standi and the same has not been filed properly. The land allotted/granted to the society for the benefits of members has been illegally sold to private persons/builder for ulterior motive on high price and the member of the society have been deprived. Price of the subject land is in crores of rupees. He submits that Messrs Al-Ghazi Builders wants to put himself in the shoes of the society and has concealed the fact of another two suits bearing Nos.69 of 2001 and 116 of 2003 filed by Sultanabad Cooperative Housing Society against the respondents and others which are pending adjudication in this Court. The excess land was not only sold in violation of the Ordinance but against section 5 of Colonization of Government Lands (Punjab) Act, 1912 as applicable to Government of Sindh vide Sindh Government Gazette Notification dated 22-6-1971 whereby a committee is constituted consisting of four members. He reiterates that the society has utilized 100 acres only for the members by allotting the plots containing 120 sq. Yards each whereas the excess land has been sold out by the society to Messrs. Meyari Builders who subsequently sold the same to Messrs Al- Ghazi Builders for which they had no locus standi to exchange hands of the lands of the society to private persons allotted to them by the respondent. The respondents have rightly cancelled the land in question under section 10 of the Colonization of Government Lands (Punjab) Act, 1912 as applicable to the respondent, as the AlGhazi Builders and Sultanabad Cooperative Housing Society has failed to pay the remaining 50% price of land for 20 years. He further submits that three suits bearing Nos.69 of 2001, 116 of 2003 and 561 of 2003 filed by Al-Ghazi Builders and Sultanabad Cooperative Housing Society are pending in this Courts and in case any observation is made in this petition, it will have an adverse effect on the pending suits. He further contended that the provisions of Ordinance III of 2001 are not applicable in the case as the Ordinance is only applicable on those who have cleared title and since Al-Ghazi Builders has no title and he has filed suits for declaration, this petition filed through his attorney is not maintainable.
9. In reply to the submissions made by the learned Addl. A.-G. Learned counsel for the petitioner submits that the land, which was allotted in 1980, does not pertain to this petitioner consequently letter dated 16-8-1999 for cancellation of such land has no nexus with the land which is subject matter of this petition. He further contended that the petition is maintainable as Ordinance III of 2001 even deals with the allotment, cancellation and exchange in hands and the provisions of section 1 (2) (4) and sections 3 and 4 are fully applicable. He further submits that in pursuance of order dated 29-5-2006 passed by learned Single Judge of this Court the provisions of section 3 and 4 of the Ordinance III of 2001 are fully applicable and the respondent have to issue the challan for payment of remaining 50% of the land in question.
10. Mr. Faisal Kamal, learned counsel for Sultanabad Cooperative Housing Society has put his appearance on Court notice. It is pointed out by him that the present petition has been filed by the attorney of the Society without the consent of the Society consequently he was directed to file his comments in writing. He submitted that the Society is the owner of big chunk of land including the land mentioned and admitted in paragraph 6 of the petition. He further submits that attorney has not been constituted for entire land of the Society and the attorney has misused the said Power of Attorney and approached this Court with ulterior motives to cause harm to the interest of his principal i.e, petitioner society. The said attorney is not competent to file the present petition about subject land including direction from this Court for issuance of challan for differential amount in terms of provisions of ordinance III of 2001 and transfer the said total amount in the name of the attorney. The attorney wants to usurp the property of the society. He further submits that it is settled proposition of law that attorney cannot act adversely against the interest of the principal.
The present petition has been filed by the attorney to deprive the principal i.e, the petitioner society of its precious and highly valuable property. He further submits that the attorney has failed to discharge his duties/functions under the agreement, dated 22-6-1991 by not depositing the amount to the Board of Revenue of Sindh in connection with the land allotted in the year 1980 as such another agreement dated 10-8-1998 but still he did not deposit the amount and the land allotted in the year 1980 was subsequently cancelled. The petitioner society itself paid the said balance amount in order to comply with the order dated 24-1-2005 passed by learned Single Judge of this Court in Suit No,116/2003. He further clarified that the attorney had not paid the said balance amount either to the respondent or to the petitioner society. He further submits that the petition has been filed for ulterior motives and so also filed a frivolous suit No,561/2003 in this Court to drag the society in frivolous litigation. He submits that the petition is liable to be dismissed.
11. We have carefully examined the contentions raised by the learned counsel and have also perused the material placed before us. From these what we have gathered is that the matter is already subjudice in civil suits bearing No,69/ 2001, 116/2003 and 561/2003 and any observation in this petition may adversely affect those cases. It is a well settled principle of law that when the controversy of disputed facts is already pending, this Court cannot exercise its constitutional jurisdiction. Furthermore, it has been pleaded that the attorney is misusing the power against its principal i.e, Sultanabad Cooperative Housing Society and certain civil litigation are pending adjudication as well. Such disputed question of fact requires detailed inquiry, which in constitutional jurisdiction of this , Court cannot be resolved.
12. In view of the above discussion and in presence of pendency of civil litigation, this petition is not maintainable, and is accordingly dismissed along with listed application.