1. ' GULZAR AHMED, J.--- The petitioner has filed this petition with the following prayer:---
(a) That a Writ of Mandamus be issued against the respondents directing them to issue the "A"
2. Lease and "C" Lease in the name of the petitioner of Amenity Plot/property No,AL-2, 14th Land, Phase-VII, D.H.A. Karachi measuring 2000 sq. Yards for "School Purpose" in view of the title documents i,e, Allotment Order issued to the original allottee and transfer order issued in the name of the petitioner by the respondent No,2 on the basis of all the required documents in the interest of justice and equity.
(b) That any other or further relief as may be deemed fit and proper by this Honourable Court under the circumstances of the case be granted.
(c) That cost of the petition may be allowed.
3. ' Mr. S.A. Jalib Chaudhary, the learned counsel for the petitioner contended that petitioner has purchased the plot in question and the respondents are unlawfully depriving the petitioner from grant of lease . On Form-A and lease on Form-C, although the petitioner has paid all the dues in respect of plot in, question to the respondent No,2, the Defence Housing Authority and also completed the construction with approval of respondent No,2.
4. ' Mr. Ashiq Raza, learned D.A.-G. Has contended that the very initial allotment of the plot was illegal as the amenity plot cannot be leased or sold or transferred by the respondent No,2 (D.H.A.) as per clause 10(3) of the lease deed dated 11-11-1975 as the amenity has to be developed by respondent No,2 D.H.A., itself for use of public purposes.
5. ' Mr. Raja Sikandar Khan Yasir, learned counsel for respondent No,2 has contended that all allotments of the plot by respondent No,2 is made to its members who are Officers of the Pakistan Armed Forces and Civil Officers of B.S.17 and above who are paid from Defence Services Estimates and that too by ballot. He further contended that the allottee, from whom the petitioner claims the plot, was not a member of the respondent No,2 and was not entitled to allotment of the plot by the D.H.A. He further contended that plot in question being an amenity plot, cannot be sold nor could be leased without approval of Government of Pakistan. He stated that the agreement for purchasing the plot made by the petitioner is illegal and not enforceable against the respondent No,2 and the petitioner can make claim against the purported seller. In support of his submissions he has relied upon the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCM R 2883, Four Square Enterprises v. Karachi Building Control Authority PLD 2000 Kar. 161, Dr. Zahir Ansari and others v. Karachi Development Authority and others PLD 2000 Karachi 168 and Shafiqur Rehman and others v. Government of Sindh and others PLD 2006 Kar.
6. 10.
7. ' Brief facts of the matter as alleged in the petition are that the respondent No,2 namely Pakistan Defence Housing Authority, Karachi had allotted an amenity plot of 2000 sq. Yards, for School purpose, bearing AL-2, 14th Lane, Phase-VII, D.H.A., Karachi to one Brig. General Abdul Mohsin M.
8. Abdul Aziz, a national of Saudi Arabia, after receiving all the dues and charges and fulfilling the formalities in respect of this plot. It is alleged that through agreement to sell dated 25-2-2000 the petitioner purchased from Brig. General Abdul Mohsin M. Aziz the said amenity plot along with all the required transfer documents. Petitioner filed with the respondent No,2 proper application along with all required documents for transfer of the said amenity plot in his name which was accepted after receiving transfer fee of Rs,8,00,000 transfer letter dated 31-5-2000 was issued to the petitioner who on 21-6-2000 deposited Rs,2,000 towards fee for lease on Form-A. The petitioner applied for grant of lease which was replied by the respondent No,2 through its letter dated 19-12- 2000 stating that petitioner's request for grant of lease has been taken up with the Military Estate Officer, Karachi and when the approval is received from Military Estate Officer, Karachi the petitioner will be informed to submit documents for lease. The petitioner submitted building plan for approval to the respondent No,2. On payment of Rs,5,32,208 as additional development charges for 2nd floor, respondent No,2 through letter dated 24-3-2001 approved the building plan. On approval of building plan and obtaining of demarcation certificate the petitioner started construction and completed the same. The respondent No,2 through letter dated 25-8-2001 amended the title of transfer order dated 31-5-2000 from commercial plot to amenity plot and on the request of petitioner the respondent No,2 also issued N.O.C. For mortgaging of said plot. The petitioner deposited verification and building completion plan fee of Rs,3,000 pursuant to which the respondent No,2 issued approval of completion plan of building through its letter dated 4-1-2006.
9. The petitioner applied for grant of lease on Form-C and receiving no response, petitioner through his Advocate gave legal notice dated 4-10-2006 to respondent No,2. The respondent No,2 through its letter dated 16-11-2006 replied to said legal notice and denied the claim of petitioner for grant of lease on the ground that the amenity plot is not leasable.
10. ' The respondents Nos.1 and 3 have filed their joint parawise comments while respondent No,2 has filed counter affidavit. The petitioner has filed rejoinder affidavit in reply to the parawise comments and the counter affidavit of respondents.
11. ' We have considered the submission made by learned counsel for the parties and have carefully gone through the record.
12. ' It seems that through letter dated 5-12-1988 annexure P/1 to the petition, the respondent No,2 had offered to one Col. Abdul Mohsin M. Aziz of Royal Embassy of Saudi Arabia Office of Military Attache Karachi an amenity plot measuring 2000 sq. Yards in Phase-VII for the sole purpose of opening a school at the cost of Rs,1,600 per Square Yards and sought his acceptance by 31-12-1988 along with 25% of the cost of plot with stipulation that remaining amount shall be paid within six months of the issuance of letter of intimation. Through further letter dated 9-1-1989 Annexure "P/2", the respondent No,2 informed the said Col. That Plot No, AL-2, 14th Lane, Phase-VII, measuring 2000 sq.
13. Yards has been reserved for allotment to him and that the allotment letter will be issued on clearance of 25% of cost of plot and remaining amount of 75% to be paid within three years in installments. It was stated that construction can be started after obtaining allotment letter and after completion of all the documents e.g. Lease, building plan, demarcation etc. And construction was allowed that of ground + one storey only. The payment of 25% was to be made within a month from the date of issuance of this letter. Through letter dated 16-2-1989 Annexure "P/3" said plot was allotted to the said Colonel at the rate of 1600 per sq.Yard. The time for payment of 25% amount was extended upto 28-2-1989 with note that if such payment is not deposited by this time the allotment will ' be cancelled and no further extention will be given. Annexure "P/4" is a statement of account dated 10-10-1995 in respect of plot in question in the name of said Col. And it shows payment of development charges, premium, ground rent, documents, interest total in the sum of Rs,4,063,843. Such payment seems to have been made in September and October 1995. Annexure P/5 is the letter dated 24-3-1997 of the Member (RS&EP) Board of Revenue, Sindh, Karachi which purports to allow acquisition of the said plot for the purpose of school in favour of Brig. General Abdul Mohsin M. Aziz, a national of Saudi Arabia. Annexure "P/6" is agreement to sell dated 25-2- 2000 between Brig. General Abdul Mohsin M. Aziz and the petitioner in respect of plot in question.
14. The special feature of this agreement is that it is not signed by Brig. General Abdul Mohsin M. Aziz but is signed by his nominee/authorized person Major (Retd.) Akhlaq Ahmed Khan son of Mushtaque Ahmed Khan. No document of authority from Brig. General Abdul Mohsin M. Aziz in favour of Major (Retd.) Akhlaq Ahmed Khan has been filed with the petition nor any document of authority is alleged to exist. The total consideration in the agreement was agreed to be Rs,1,30,00,000 out of which only Rs,5,50,000 is shown to have been paid and that too under the receipt signed by Major (Retd.) Akhlaq Ahmad Khan. There is no allegation nor evidence of payment of balance sale consideration of Rs,1,24,50,000. As per agreement, sale was to be completed on 10-4-2000. In the absence of any allegation or evidence to show that the balance payment was made on or before 10-4-2000, the agreement of sale apparently came to an end on 10-4-2000. While in the initial part of the agreement the seller is mentioned to be Brig. General but in the last page of the agreement under the signature of Major the seller is shown as Col. Further though the agreement has been made for a total consideration of Rs,1,30,00,000 but clause 3 of it provides that at the time of final payment and on signing of final sale agreement the official value of said plot shall be considered and written as Rs,30,00,000. It is . Also mentioned in clause 4 of the agreement that seller is not registered in Category "A" with the respondent No,2 and shall be liable to obtain the membership prior to the final payment. Further through handwriting membership of Category "B" number seems to have been inserted in this clause. Copies of transfer affidavit, affidavit of Specimen Signature, undertaking, issuance of cancellation of allotment order, mutation/ transfer letter and intimation with regard to disposal of the property by foreign national apparently, are signed by one and the same person but the last document of intimation with regard to disposal of property by foreign national has been signed by initial wore Tor' against the name of Brig. General (Retd.) Abdul Mohsin M. Aziz. It is not clear whether the documents of transfer as noted above, are in actual fact signed by Brig. General (Retd.) Abdul Mohsin M. Aziz and whether the said Brig. General personally appeared before the Administrative Officer (Record) of respondent No,2 for verification of signature and checking of documents as required by para.28(g) of Hand Book For Guidance of Members issued by respondent No,2. It is also not clear as to what precise status the allottee had, whether he was Col. Or Brig. General or Brig. General (Retd). The said Col. Or Brig. General or Brig. General (Retd) Abdul Mohsin M. Aziz nor his authorized person namely Major (Retd) Akhlaq Ahmed Khan have been joined as respondent in this petition. The narration of the facts shows that petitioner has obtained transfer of plot, its demarcation, approval of building plan and also seems to have raised construction and got approval of said construction with one additional floor. No document has been filed with the petition by the petitioner nor is there any allegation in the petition to show as to what building plan was submitted by him for approval and as to what construction has been raised by him on the said plot and as to what is the completion plan and for what purpose the building is being used. In the rejoinder affidavit, the petitioner has shown himself to be residing on the said plot meaning that the amenity plot of 2000 sq. Yards is being used by the petitioner for his residential purpose. Everything which we see in the documents only leads to mystery and seems to reflect grave collusion of the officials of respondent No,2 with the petitioner or with the said Major (Retd) Akhlaq Ahmad Khan in whole of the episode of usurping or misappropriating the plot specially meant for amenity.
15. ' At the very outset it may be noted that through lease deed dated 11-11-1975 the Government of Pakistan as Lessor has leased to the respondent No,2 the D.H.A., the Leasee, 1584.34 acres of land for residential plots and 352.08 acres of land for commercial plots and has further leased 1584.35 acres utilized for Municipal services namely, Roads, Parks, Schools, Hospitals, Mosques, Playgrounds and other public amenities etc. And while premium has been charged for residential plots and commercial plots at the rate of 1.25 per sq. Yard but in terms of letter dated 23-8-1975 of Ministry of Defence the lands meant for amenities were exempted from the payment of premium. The land for Municipal services and amenities thus seem to be given to the respondent No,2 free of cost. Copy of such lease is annexed as annexure 'A' with the statement dated 13-3-2008 filed by the Standing Counsel and further it is also relied upon by the petitioner who has filed its copy along with his rejoinder affidavit as Annexure 'G'. Clause 10(3) of the said lease deals with plots reserved for public amenities and it provides as follows:-- "10. After receiving the approval of the Lessor to the layout plan the Lessees shall allot the plots in the manner, namely:
(1) Plots reserved for residential purposes:
(2) Plots reserved for commercial purposes:
(3) Plots reserved for public amenities:
(a) The Lessees shall cause to be erected and completed in and upon the plots reserved for public amenities the buildings the erection of which has been provided for in the scheme referred to in these presents and shall not without the previous consent in writing of the Lessor erect or suffer to be erected on any such plot or part thereof any building other than those required under the scheme. On the due completion of the said buildings, the Lessees shall be entitled to the lease of the said plot on which these buildings stand for a term of 99 years commencing from 23rd August, 1975 and ending on 22nd August, 2074 A.D. On such terms and conditions as may be laid down by the Lessor.
(b) Any plot which is or which may from time to time fall vacant or become in the opinion of the Military Estate Officer available for disposal either due to a default of the Lessees, a sub-lessee or a lessee or by operation of law or otherwise shall be disposed of in accordance with the provisions of sub-clause (a) of this clause."
16. ' The stipulation as contained in clause 10(3)(a) is further fortified by the covenant of the lessees namely the respondent No,2 as appearing in clause 17(d) which is as follows:---
17. And the Lessees do hereby covenant with the Lessor:---
(a) .........................................................
(b) .........................................................
(c) .........................................................
(d) To erect at their/his own cost and finish fit for habitation/use on the premises hereby demised buildings for amenities and dwelling houses together with all necessary out-houses and other appurtenances in accordance with a plan or plans for each allotted plot to be approved in writing by the Cantonment Board under the provisions of the Cantonments Act, 1924.
17. (e)
18. The reading of these clauses in the lease deed shows that obligation has been squarely rested on the respondent No,2 to cause to be erected and completed on the plot reserved for public amenities the buildings, erection of which has been provided for in the scheme referred to in the lease with consent in writing of the lessor and on due completion of the building, respondent No,2 shall be entitled to a lease of the said plot on which these buildings stand for a term of 99 years commencing from 23-8-1975 and ending on 22-8-2074 on such terms and conditions as may be laid down by lessor. Thus the land meant for amenities as is apparent from the lease was not owned by or leased to the respondent No,2 for it to be allotted or sold- or transferred by the respondent No,2 to any person rather as per the lease a mandatory obligation was cast upon the respondent No,2 to cause to be erected and completed in and upon the plots reserved for public amenities the buildings as provided in the scheme and that too with the previous consent in writing of the lessor and only on completion of the buildings the respondent No,2 will be entitled to grant of 99 years lease. This lease provides for granting of lease on Form-A, lease on Form-B and lease on Form-C. The lease on Form-A as per the covenants of this lease is granted to a bona fide member on the roll of respondent No,2 on grant of which the allottee is permitted to enter upon the plot of land for construction of building. Subsequently on completion of building, as per covenant of this lease the holder of lease on Form-A is granted lease on Form-B for a building which is meant for residential purposes and lease on Form-C for building which is meant for commercial purpose. The amenity plots are not covered in the category of residential plot nor in the category of commercial plot and thus there is no provision in this lease for granting of "A", "B" or "C" lease in respect of amenity plot as the amenity plot is separately provided for Municipal services such as Roads, Parks, Schools, Hospitals, Mosques, Playgrounds as other public amenities which cannot be sold or leased or transferred by respondent No,2 to any one as it has to be constructed by respondent No,2 itself for public purposes and for no other purpose. It also appears from the reading of this lease that even if the respondent No,2 completes the construction on the amenity plot and gets a lease of 99 years as noted above, it neither can sell nor lease or sublease or transfer such amenity plot or the building to any other person as it has to be used for public purposes and not to be confined to the ownership or use of any one person or any one class of persons.
19. ' The joint comments on behalf of respondents 1 and 3 is signed by Military Estate Officer Karachi for himself as well as for respondent No,1 and in sub-paras. (5) and (12) of para.2 of such comments it is mentioned that while respondent No,2 is not competent to grant lease of amenity plot but the respondent No,3 namely the MEO is willing to grant regular lease to the petitioner subject to payment of premium, ground rent and development charges as decided by the Government. In subpara. (1) of para.2 it is averred that respondent No,2 was not empowered to allot any amenity plot because the lease deed, granted by the respondent No,3 on behalf of President of Pakistan, did not contain any stipulation that the respondent No,2 would be authorized/empowered to do so and the act of respondent No,2 of allotting amenity plot is void ab initio and without lawful authority. To the extent of respondent No,2 allotting the amenity plot to Col. Abdul Mohsin M. Aziz and subsequently allowing its transfer to the petitioner making demarcation, approving building plan and building completion plan of the petitioner, the same as per contents of the lease seem to be void ab initio and without lawful authority and in patent and blatant violation of the covenants of the lease made between the Government of Pakistan and respondent No,2 which in no case can be condoned or regularized for the reason that amenity land which as in terms of the lease is meant for utilization for Municipal services such a Roads, Parks, Schools, Hospitals, Mosques, Playgrounds and other amenities etc. Is basically for unhindered free access use and enjoyment of public at large and is not to be confined to the ownership and use of any one person or any one class of persons. The words "Municipal services" are synonymous to the words "Municipal purposes" the latter words are assigned meaning in the Black's Law Dictionary Sixth Edition as follows:--- "Municipal purposes. Public or Government purposes as distinguished from private purposes. It may comprehend all activities essential to the health, morals, protections, and welfare of the municipality."
20. ' Even if the respondents 1 and 3 formulate an opinion in terms of clause 10(3)(b) of the lease that on account of default of respondent No,2 an amenity plot has become available for disposal, the respondents 1 and 3 by the very dint of this sub-clause (b) are required to dispose off said plot in accordance with the provisions of sub-clause (a) and thus the obligation of erecting and completing the building in accordance with the scheme will rest upon the respondents 1 and 3 and respondents 1 and 3 in no circumstances can lease, sub-lease, sell or transfer such plot to any other person rather it will similarly be available and meant for utilization of Municipal services such as Roads, Parks, Schools, Hospitals, Mosques, Playgrounds and other amenities etc. Which will basically be for unhindered free access, use and enjoyment of public at large and is not to be confined to ownership and use of any one person or any one class of persons. The offer of respondents 1 and 3 to lease the amenity plot to the petitioner on receipt of cost of land etc. Is, therefore, in terms of lease itself, not permissible in law. Even otherwise Rule 15 of the Cantonment Lands Administration Rules, 1937 specifically prohibits the sale of the land for any purpose without definite order of the Central Government and Rule 16 allows granting of lease of minimum period of 30 years and maximum period of 90 years through public auction for building sites. The plots meant for Municipal services and amenities as discussed above cannot be leased, sub-leased, sold or transferred to any one person or to any one class of persons for the use and enjoyment rather it has to remain as a Government property for public purposes for unhindered free access use and enjoyment of public at large. In no case the plots meant for Municipal services and amenities can be termed as building sites nor there could be any exceptional case or exceptional reasons for disposal of such land by private agreement or otherwise.
21. ' In view of the above discussion, it is clear that the petitioner has together failed to make out a case for grant of relief prayed for in the petition and therefore, upon hearing the learned counsel for the parties on 7-5-2009, through a short order we have dismissed this petition in limine for which the reasons are noted above.
22. ' Now, it seems from the facts of this case that the officials of respondent No,2 have themselves violated not only the condition of lease on which the amenity land was leased to by allotting it to the Col. Abdul Mohsin M. Aziz but at the same time have violated the very condition on which the allotment is to, be made, its transfer, demarcation, approving building plan and issuing building completion plan.
23. ' As per the Hand Book for Guidance of Members, 1988 issued by the respondent No,2, the said Col. Abdul Mohsin M. Aziz could neither be the .Member in category 'A' nor was a member in category 'A' to entitle him to allotment of plot by the respondent No,2, as he was not an officer of the Pakistan Armed Forces or a Civil Officer of BS-17 or above or was being paid from Defence Services Estimates. As a category `13' member he could have only purchased the plot as foreigner. Though in the letter of allotment the amenity plot was offered by respondent No,2 to the said Col. Abdul Mohsin M. Aziz at the rate of 1600 per sq. Yard but there is no evidence on the record to show that such cost of plot was ever paid by the said col. Apparently, the allotment order though as discussed above, is illegal itself but it also never took effect for the reason that cost of land as provided in the allotment order never came to be paid by the said Col. Within the time specified or thereafter. There is no document of sale and purchase of the said plot between respondent No,2 and the said Col. In accordance with section 54 of the Transfer of Property Act, 1882. The agreement to sell relied upon by the petitioner is no agreement in the eyes of law as no authority has been shown nor any seems to exist in favour of the Major (Retd.) Akhlaq Ahmed Khan to sign the same on behalf of Col. Abdul Mohsin M. Aziz. The transfer documents relied upon by the petitioner are therefore of no consequence being themselves illegal and without authority of law and also seem to be without consideration. Yet again, it is not known whether the transfer documents were at all signed by the said Col. Further the transferring of plot meant for Municipal services and amenities in the name of the petitioner, demarcating and handing over its possession to the petitioner and approving the building plan and granting building completion plan to the petitioner were also illegal and without authority of law more so when in the terms of lease executed between Government of Pakistan and the respondent No,2 the allottee of residential or commercial plot is allowed to enter upon the plot allotted and raise construction after lease on Form-A is issued to him. Thus fraud seems to have been played by the officials of the respondent No,2 in league with the Major (Retd.) Akhlaq Ahmed Khan and the petitioner for usurping and misappropriating valuable Government property and there has to be an accountability of the same. Secretary Defence, Government of Pakistan C is directed to hold an enquiry in the whole affair and to take action against all the officials and persons found responsible in usurping and misappropriating valuable Government property and also to initiate criminal proceedings against such persons. The enquiry be completed and action initiated against such persons within a period of three months and a report in this respect be submitted to the M.I.T. Of this Court.
24. ' Office is directed to send a copy of this judgment to the Secretary Defence, Government of Pakistan, Islamabad for making necessary compliance.