' AZIZULLAH M. MEMON, J.---Petitioners of this petition made following prayers therein:---
(a) Declare that all the allotments done by respondent No,1 as part of impugned scheme on both sides of Hawksbay Road within Scheme No,42, is illegal and void in view of Ordinance III of 2001.
(b) Declare that the boundaries of Scheme-42, are points D, E, F, G, H, K, L, M, N, P, Q & R as given on the plan bearing drawing No,25/R/366/287 dated 27-2-1983 (Annexure-IV).
(c) Declare that the entire land within the boundaries of Scheme No,42 stands transferred to L.D.A.
(d) Declare that the layout plan given is the only legally notified layout plan for Scheme-42 (Annexure XII).
(e) Declare that since respondent No,1 had transferred all its land in Scheme-42 to K.D.A., it cannot issue duplicated allotments for land that it no longer owns.
(t) Declare that all the layout planning and plotting done by respondent No,1 as part of impugned scheme on both sides of Hawksbay Road, is illegal and void.
(g) Restrain the respondents Nos.1 and 2 to further allot plots of impugned scheme.
(h) Direct respondents Nos.1 and 2 to cancel all allotments made by them in the impugned Scheme.
(i) Direct the respondents Nos.1 and 2 to stop any constructions activity taking place as part of impugned scheme within Scheme No,42.
' Take action against the various concerned officers including respondents Nos.1, 2 and 4 for having violated the law, and perpetuated this fraud on the public.
(k) Grant such other relief as this Hon'ble Court deems just and proper in the circumstances.
' Following order was passed in the petition on 19th May, 2005:--- "This petition has been filed by Shehri in the public interest pertaining to the land lying within the vicinity of Hawksbay area. There are four parties before us i.e, the petitioner, City District Government Karachi, Provincial Government and the interveners.
' The case of the City District Government is that the land claimed by the Provincial Government was in fact notified as KDA Scheme No,42 whereas the Provincial Government stated that the disputed land was not included in that Scheme and it remained with the Provincial Government which is entitled to utilize the same in the way it wants. The Provincial Government also stated that it has already allotted the disputed land to a number of allottees for developing an Industrial Zone.
' The petitioner's case is that the proposed area for Industrial Zone, to be developed by the Provincial Government, firstly does not fall within the powers of the Province of Sindh as this area is coveted by KDA Scheme No,42 and secondly no Industrial Zone can be allowed to be raised there as it would adversely affect the environment within the radiation range of KANUPP as well as that of the Beach.
We have heard this petition for the last many dates and found that number of factual controversies have been raised by all the parties which in fact would require evidence and full- fledged inquiry. Such matters are usually decided through civil suit but looking to the nature and exigency of the matter we are of the opinion that it may be decided by this Court in the Constitutional jurisdiction. However, for that purpose we would like to get the factual controversies examined by the Official Assignee.
' We would therefore appoint the Official Assignee as the Commissioner, who shall carry out the full-fledged inquiry in presence of the representatives of the parties and examine the documents as well as claims pertaining to the disputed land. He will be at liberty to seek assistance from any expert/experts to reach a right conclusion about the claims of each of the parties. He may visit the site physically along with the experts and representatives of the parties as and when deemed necessary by him.
' The Commissioner will hear this case possibly day to day without giving adjournment to any of the party without any reasonable ground for the same. In case any of the party does not appear before him, he will proceed with the matter.
' The petitioner will be represented by Mr. Roland D' Souza and Dr. Raza Gardezi while the City District Government will be represented by Mr. Nandlal, Superintendent Layari Development Project and Director Planning while the Provincial Government will be represented by the Mukhtiarkar/Tapedar concerned or any other officer authorized by the Government. The private respondents will be represented by Mr. Abdul Ghafoor Qureshi, Advocate.
' The first date before the Commissioner is fixed as 21-5-2005 at 2-00 p.m. The Commissioner shall submit report within a period of one month from the receipt of this order. His fee to be borne by the petitioner as well as private parties/interveners equally which will be decided by the Official Assignee with the mutual consent of the petitioner and the private respondents.
' Interim order passed earlier to continue till next date."
' According to the petitioners planning and development of the cities and towns is to be based on certain principles approved by the Honourable Supreme Court of Pakistan and reported in PLD 1994 SC 514, which are to the effect:--- "Goals of modern urban planning. ---The ultimate goals had always been social, even during the period when city plans themselves related only to physical change. They had been and continued to be deeply involved with intermediate economic objectives. The expression of the goals was of course coloured by the culture of the society seeking them. Of increasing weight was the goal of equality of opportunity and the redress of the grievances of disadvantage minorities within this value system the physically oriented urban planning of the first half of the 20th century had evolved a set of environmental objectives that continued to be valid.
(1) the orderly arrangement of parts of the city residential, business, industrial---so that each part could perform its functions with minimum cost and conflict;
(2) an efficient system of circulation within the city and to the outside world, using to the maximum advantage all modes of trans-portation;
(3) the development of each part of the city to optimum standards, in terms of lot size, sunlight, and green space in residential areas, and parking and building in business areas;
(4) the provision of safe, sanitary and comfortable housing in a variety of dwelling types to meet the needs of all families;
(5) the provision of recreation, schools, and other community services of adequate size, location and quality;
(6) the provision of adequate and economical water supply, sewerage utilities, and public services."
' Further that the then Karachi Development Authority (KDA) issued public notices in daily.
Newspaper "Business Recorder" for framing of a development scheme under Article 37 of Karachi Development Authority Order 5, to be named as KDA Scheme No,42-A, Hawksbay Buleji Housing and Recreational Scheme (Scheme No,42), which was to comprise of approx. 11,450 acres and such plan/map was also prepared dated 27-2-1983 and further that the then Governor of Sindh had directed for transfer of 21,700 acres of land from Board of Revenue Sindh (Respondent No,1) to the KDA for development of the said Scheme No,42; so also the KDA published notices in newspaper Dawn Karachi on 24th June, 3rd June and 8th July, 1984, to invite public objections against the framing of KDA Scheme 42 to comprise of 11,450 acres and then also KDA issued public notices on 24-7-1984 and got it published in the Sindh Government Gazette under Article 12 of KDA Order 5 with specification of 20,900 acres as controlled area, "which also include 300 feet right of way of Mauripur Road (Hawksbay Road) from Circular Railway Intersections at SITE (Gul Bai) up to point `L' of the boundary of Scheme No,42."
' It is further contended by the petitioners that on 12th July, 26th and 2nd August 1984 also, KDA issued another public notice in Sindh Government Gazette specifying a development area of 11,450 acres out of the controlled area of 20,900 acres to be known as KDA Scheme-42 and that the Divisional Commissioner vide his letter dated 10th December 1985, on having received such directions from the Governor of Sindh "confirmed the immediate handing over of the State land of 11,450 acres to KDA for Scheme-42" and further that on 14th December, 1985, respondent No,1 transferred physical possession of such area of the land to KDA for the said Scheme No,42 and then KDA started developing the said scheme since the year 1986, as per the layout plan; and since then about 30,000 residential plots of different sizes stand allotted through public balloting since the year 1988 and layout plan of the allotment and balloting of such plots in the said Scheme No,42 was also prepared/issued. It is further contended by the petitioners that on 7-3-1989 a meeting was held under the chairmanship of the then Chief Secretary, Sindh, wherein he reiterated the Notification of Scheme No,42 under Article 45 of the KDA Order; further that the respondent No,1 held a meeting regarding misuse of the land by means of "Haq Qabza claim in Scheme No,42" on 8th January 1991, on the basis of false certificates issued by the Mukhtiarkar, Karachi West.
' It is further contended by the petitioners that on 1st January 1996, the land control in respect of Scheme No,42 stood transferred/handed over from KDA to Lyari Development Authority, through Sindh Government Gazette Notification of the said date with jurisdiction over the areas "which include Scheme No,42" and that the Lyari Development Authority (LDA) paid an amount of Rs,20 Lacs to the then Deputy Commissioner, Karachi, West, towards "second instalment/part payment for State land of 11,450 acres inside the boundary/jurisdiction of Scheme No,42"; further, the LDA through public notices offered the plots of different sizes in Scheme No,42 for allotment to the general public, which were located in Sector 32 as per the layout plan, but then Scheme No,42 was neglected and there was rise in the encroachment activity over the said land in between 1988 and 1997.
' The petitioners alleged that since the year 1991 and onwards respondent No,1 in eess of its powers and without reference to the existing development at Scheme No,42, started allotting a large areas of land along both sides of Hawkasbay Road to influential persons/ parties at throwaway prices without consent/prior approval of LDA and that the same was done under the Scheme/ name of K- 28, Phase-II Scheme (hereinafter to be referred to as the 'impugned Scheme') and revised layout plan of industrial area out of K-28 TL Quarters, Phase-II, Hawksbay Road, Karachi, and the size of the plots so carved out was different without there being any balloting of such allotment of the plots, as required under Sindh Disposal of Plots Ordinance, 1980.
' It is further assertion of the petitioners that issuance of layout plan of impugned, scheme by respondent No,1 is illegal and in excess of its powers and contrary to the provisions of Karachi Development Authority Order No,5 of 1957, as well as against Act of 1993; further notices regarding the sale/purchase of the plots in the impugned scheme along Hawksbay Road were got published in the daily newspaper Dawn on 12th May, 2nd June and 14th August 2003, respectively, and petitioner No,1 informed the potential buyers not to enter into any transaction as such plots are illegally constituted and so being allotted and, therefore, petitioner No,1 pointed out all such irregularities and illegalities of allotment of the plots to various officers vide letter dated 31st March, 2003 and also press releases were got published by him in the newspapers accordingly and so also the Superintending Engineer, Lyari Development Authority, issued letter dated 10th March, 2003, to the Deputy District Officer, Revenue, Keamari Town, to the effect that the encroachment/illegal construction in Blocks 12 and 14 of Hawksbay Housing Scheme 42 amounted to double allotment, thereby depriving the allottees of their vested rights and that the respondents Nos.1, 2 and 4 illegally promoted encroachment along both sides of Hawksbay Road, as part of the impugned scheme. Hence, the petitioners made above quoted prayers in the petition.
' It may be stated here that the applications were filed by the number of interveners with prayers to implead them as respondents, as some of the plots, referred to herein above, are said to have been purchased by them respectively and thereby have acquired vested right, title and interest therein. Vide Order dated 19th April, 2005, such applications were allowed.
' It may be stated here that Official Assignee of this Court was appointed as Commissioner to carry out the full-fledged inquiry in presence of representatives of the parties and to examine the documents as well as claims of different persons pertaining to the disputed land.
' Again, following order was passed on 16-8-2006, "Dispute has arisen with regard to status, boundary overlapping of Scheme No,42 and land in Scheme No,K-28. Parties are disputing status and legality of both the schemes. From the contention of parties, it appears that allotments in Scheme No,K-42 have been made by Defunct KDA (now LDA). It also appears that allotment of industrial, commercial and residential plots were made by Sindh Government in Scheme No,K-28.
The parties are also disputing right to such allotments. There is also dispute in respect of allotment of plots in Scheme No,K-28 for industrial purpose and concern of environmental law is also an issue. Aforementioned scheme itself is in question.
'After hearing all the parties concerned and Officers present in court, by consent it is directed as follows:
(1) Chief Secretary, Government of Sindh shall constitute a Committee headed by him, comprising of Secretary Land Utilization or its nominee and Director General, City District Government or its nominee.
(2) The Chief Secretary shall also ensure participation of technical members from Environmental Protection Agency and Master Plan Town Committee, as well as one representative from SHERI.
(3) The Committee shall examine the following issues and after hearing the participant will decide them.
(i) Determine the entire status, boundary of Scheme No,K-28 and Scheme No,42, in accordance with prescribed law and regulation.
(ii) The allotments of industrial, commercial and residential plots ,shall be examined, in case, allotments of industrial plots have not been made conducive or proper in any area, same should be formalized by relocation and re-allotment to the respective allottees.
(iii) The establishment and/or creation of industrial zone in either of the scheme shall also be determined by the Committee as these schemes are near to coastal area. Reference had to be, to the law relevant to environmental protection.
' Till the above issues are decided by the Committee, the allotments made and the position and status in respect of the impugned schemes shall not be disturbed and the parties shall maintain status quo.
' The Chief Secretary, Government of Sindh, is directed to constitute the Committee within fifteen days from the date of this order and the Committee shall decide the issues framed above, within twelve weeks from the date, of its formation. The Chief Secretary shall also ensure that the status quo is maintained strictly by all the parties including public functionaries.
' The report of Committee should immediately be filed after expiry of above period or earlier and this petition shall be fixed after four months along with the report of the committee."
' The learned Chief Secretary Sindh constituted a committee in pursuance of the said order and report of the committee was also submitted accordingly in this petition, which reads as under: "Report of the Committee ' In pursuance of the orders dated 16-8-2006 of the Honourable High Court of Sindh, Karachi, passed in C.P. No, D-1277/2003 (Annex-A) , Government of Sindh constituted a committee vide Notification No, SO/APLS-II(SGA&C D)- 2(210)2003 dated 21-10-2006 under the Chairmanship of the Chief Secretary Sindh with the following terms of reference:---
(i) To determine the boundary of K-28 & Scheme 42.
(ii) To examine the allotment of Industrial, Commercial and Residential Plots.
(iii) To examine the environmental effects of Industrial Zone near Coastal Area.
2. Subsequently, the Government of Sindh constituted a Sub-Committee under the Chairmanship of Secretary (LU) to facilitate exact recommendation on the issue of boundary, relocation of the Industries from K-28 to another location and to finalize recommendations regarding regularization of Scheme 42 and change of land use in K-28 (Annex-B).
3. The Sub-Committee finalized its recommendations during its meeting held on 20-3-2000 (Annex-C).
4. The Committee constituted under the Chairmanship of the Chief Secretary in its meeting held on 15-5-2007 after going through the recommendations of the Sub- Committee took following decisions:
1. TO DETERMINE THE BOUNDARY OF K-28 & SCHEME 42.
'DECISION:- ' The area in question has been got surveyed through Survey Superintendent Karachi which transpired that the land forming K-28 Trans Layari is quite distinct area from the land comprising of Scheme No,42. There is no overlapping of Boundaries between K-28 and Scheme No,42 (Boundaries defined in appended sketch) (annex. D).
II. TO EXAMINE THE ALLOTMENT OF INDUSTRIAL, COMMERCIAL OR RESIDENTIAL PLOTS.
' DECISOIN.---(A) Notwithstanding the fact that claim of allotments in K-28 is subject to individual case verification by Sindh Land Committee, the ground position in K-28 belt, remains that some industries are physically functioning. It was, however, determined by the Committee that the land falling within the boundaries of K-28 is not conducive to industrial/Godown purposes on account of following reasons:
(a) Sea-shore location.
(b) Environmental repercussions arising out of industrial pollution and wastage dumping in sea.
(c) Dangerous effect to pristine nature beauty of Hawksbay.
(d) Incompatibility with the master plan of the city.
(e) However, this area is feasible for commercial/residential purpose.
' DECISION4--(B)
(i) All allotments conversion/ exchanges of State land obtained or granted for residential/ commercial/industrial purpose at rates lower than the market value in violation of law or ban from January 1, 1985, including subsequent transactions in respect thereof are hit by section 3 of the Sindh Government Land (Cancellation of Allotments. Conversions and Exchanges) Ordinance, 2000.
(ii) Only allotments for residential purpose in K-28 Trans Lyari may be allowed to be taken up for decision by the Lands Committee.
(iii) Those allotments where warehouses are built and stand verified may also be taken with Sindh Lands Committee.
(iv) The existing Industrial units may be given an opportunity to convert the land usage to residential or godowns/warehousing only subject to such regularization by the Sindh Lands Committee.
(v) The existing Industrial units may be given an opportunity to convert the land usage to residential or godowns/warehousing only subject to such regularization by the Sindh Lands Committee.
III TO DETERMINE THE ENVIRONMENTAL EFFECTS OF INDUSTRIAL ZONE NEAR COASTAL AREA.
'DECISION:-- ' The Committee agreed that Industrial Zone near Coastal area is detrimental to environment. After effects of Industrial Pollution may bring adverse effect on environment. It is recommended that industrial zone should not be established in K-28. Moreover, in the Master Plan of the City, there is no provision of establishment of Industrial Zone in K-28.
(Sd.)
Chief Secretary Sindh"
' So also learned Official Assignee of this Court visited the disputed site, heard the parties in pursuance of the above quoted order and submitted his report dated 1st November, 2005, which reads as under: "5. That in pursuance of the orders of the Hon'ble Court, I have heard the parties, their advocates and have perused documents, master plan, sketches, maps of the concerned KDA Scheme 42, Scheme No,K-28 and maps of Deh Lal Bakhar and Deh Mouch. I also visited physically sites of Scheme KDA 42 and Scheme K-28 in presence of officers of KDA, Land Utilization, petitioners, interveners and Survey Settlement Officers.
6. To start with, as per version of Shehri, Government of Sindh had reserved land 20900 acres for KDA Scheme 42 vide Gazette of Sindh dated 12-7-1984 which is declared as controlled area. An area of 11450 has been shown for development, taken out from area of 20900 acres. The boundaries of an area 11450 acres has also been mentioned in the Gazette of Sindh dated 12-7- 1984. Further it is contended that possession of the land 11450 has been delivered to KDA by the Government of Sindh. The Government of Sindh or Land Utilization did not object to advertisements or allotments of plots to public, made by the KDA. The KDA has paid Rs,2.00 Crores to the Government of Sindh (Land Utilization).
7. A perusal of Gazette of Sindh dated 12-7-1984 shows that in fact regarding Scheme 42, no such notification was issued by the Government of Sindh, but it was got published by the KDA in the Gazette of Sindh Scheme 42 appears to have been prepared by the KDA and they got it published in the Gazette. There is no mention about any Malkana (price) if any paid to Govemment by the KDA, no mention that at what rate the KDA has got such huge area of land measuring 20900 acres, spread over, on 2 Dehs i.e, Deh Lai Bakhar and Deh Mouch. It is interesting to note that very claim of the KDA regarding payment of Rs,2.00 Crores as Malkana (price) of the land on the very face of it appears to be false and incorrect as no such challan of payment of Rs,2.00 Crores has been filed Ijy the KDA. Although KDA is claiming to have taken land 20900 acres from Land Utilization, but no such allotment order has been produced by KDA. At what rate the land has been taken from Land Utilization, the KDA is silent to this effect. KDA has filed 3 letters addressed to the Deputy Commissioner Karachi West, whereby payment of Rs,60.00 lacs through cheques has been shown.
The KDA has filed photo copy of lewer No,DG(LDA)/521(A)_/1995 dated 3-9-1996 addressed by the Director-General, Lyari Development Authority to the Deputy Commissioner West, Karachi, regarding part payment in respect of land of LDA's Hawksbay Scheme No,42. It appears from this letter that a cheque for Rs,20,00,000 was sent to Deputy Commissioner West, Karachi, as a part payment for land pertaining to Hawksbay Housing Scheme-42. There is no mention of the rate of land nor any reference has been made to cost of land 20900 acres or 11450 acres, for which the said cheque for Rs,20 Lacs has been sent to Deputy Commissioner. ^lo area of land has been shown in this letter. In which accountt of the Sindh Government, said is to be credit no mention.
8. Another letter No,DD(Land) LDA/97/880 dated 25-8-1997 filed by the KDA, shows that payment of Rs,20 Lacs has been made to Deputy Commissioner West, Karachi, through cheque, being the 2nd instalment (part payment) for State land (11450 acres) for Hawksbay Housing Scheme-42. This letter is also silent about rate of land, how many instalments were fixed and how much total cost (Malkana) of the land was fixed no mention. Similarly, third letter dated 13-4-1999 has been sent by Deputy Director Land, Lyari Development Authority to Deputy Commissioner West, Karachi, with a cheque for Rs,60 lacs, being 3rd part payment for State Land measuring 11450 acres for Hawksbay Housing Scheme-42. Similarly by this letter does not disclose rate of land total price of the land, so also how many instalements afe still in balance to be paid by KDA.
9. It appears from all the three letters that payment of Rs,10 Million has been made by KDA, but is not clear as to who was particular authority/agency of Government of Sindh, by whom an allotment of 11450 acres of land was made, what rate of land per acre has been fixed, what is the total malkana (price) and in how many instalments of such malkana is payable by KDA no explanation.
10. On the other hand Mr. Rehan Iqbal Baloch, Deputy Secretary, Land Utilization Department and Mr. Ahmed Pirzada Additional Advocate General has denied to have given land measuring 20900 acres to KDA for Scheme-42. According to Rehan Iqbal Baloch only an area of 2700 acres have been given to KDA by the Land Utilization Department, of which no price has been fixed as yet nor any payment has been made up till now. Further no allotment order for 20900 acres land has been issued by Land Utilization Department in favour of KDA. He has also denied to have received Rs,2.00 Crores from KDA. Mr. Pirzada and Mr. Rehan Iqbal Baloch, both have denied that Sindh Government or Land Utilization Department had notified about an area of 20900 acres of land for KDA Scheme 42 vide Sindh Government Gazette.
11. On verification of sketches- maps and plans of the site, at the time of inspection it was found that KDA Scheme 42 is spread over 2 Dehs, namely, Deh Lai Bakhar and Deh Mouch. An area of 2700 acres given by the Land Utilization Department to KDA as per Deh Mouch has been shown in the maps. At the time of inspection very old yellow stones were also noticed, which were indicating the boundary lines of KMC and the land of both Dehs namely, Lai Bakhar and Deh Mouch. Cemented pillars of KPT on the left side of Hawksbay Road were also seen. On both sides of Hawksbay Road, there are factories, industries, godowns and residential plots. Single Pakka carpeted road of ' about 36 feet wide, which appeared to have been recently carpeted leading from Hawksbay Road towards Lai Bakhar Hills was also noticed. This road is in the Scheme 42. Plotting has also been made in Deh Lai Bakhar but no construction work was seen at the site.
12. KDA claims to have taken possession of 11450 acres of land for Scheme 42 under letter No,l9(84)/81/REV(1709), dated 1985 given to them by the Mukhtiarkar Karachi. In this letter there is no mention of rate of land per acre, nor mention of Malkana, no reference of Land Utilization Department. Out of total area, 11450 acres, an^rea of 3985 acres are shown to have been reserved for KMC, KPT, Central Board of Revenue and for authorized villages. This transfer of land 11450 acre is also disputed by the Land Utilization.
13. So far as Scheme .28 is concerned, on verification of maps, plans, and sketches it transpired that its land is not overlapping in any way on the land of Scheme No,42 as claimed by KDA. This land of Scheme K-28 is visible on both sides of HaWksbay Road. In this Scheme K-28, there are factories, godowns, warehouses and residential houses. At the time of inspection s'ome people residing in Scheme K-28 had also gathered around that Official Assignee (Commissioner), they claimed that they are residents of Scheme K-28. They further claimed that land of Scheme K-28 was allotted by the Chief Minister of Sindh in the years for 1991-92, 1993-94, 95 and 1996 for the industrial purposes.
The demarcation of land in between Scheme 42 and Scheme K-28, also appeared to have been made by Survey Superintendent Karachi. There is good number of godowns and warehouses.
14. According to KDA/City Govermnent about 40 thousand plots have been allotted to general public.
15. With above observations, I submit my report as above in compliance of order dated 9-2005 of the Hon'ble Court. The inspection note is also filed along with this report as Annexure 'A'. The Hon'ble Court has not fixed fee of Official Assignee, it is prayed that reasonable fee may kindly be sanctioned subject to administrative approval of the Hon'ble Chief Justice." Comments submitted by the City District Government Karachi are to the effect that Scheme No,42 was notified vide Sindh Government Gazette dated 2nd September 1984 and an area 11,450 acres comprising over Deh Mouch and Deh Lal Bakhar upto high water line was divided by line defgh kimpore(sic), which area was handed over to KDA by officials of Revenue Department on 14-12-1985 (K-28 Trans Lyari was not shown in the plan neither mentioned in handing over/taking over note of such land). They have further asserted that lands of different agencies may be resumed by Board of Revenue Sindh and the same may be handed over to Lyari Development Authority and not to any other private sector where the KDA had spent Crores of rupees on development of the areas. They have further asserted that K-28 Trans Lyari is located at a far away distance from Lyari Development Projects Scheme and further that K-28 Trans Lyari was extended by Board of Revenue in the year 1991 without the notification in Hawksbay Scheme 42, which is spread over 11,450 acres of land and that Board of Revenue overlapped over Lyari Development Projects Plan Sector 14 at road side of main Hawksbay Road (while going from city to seashore) and issued allotment orders to influential persons for commercial and industrial purposes, who (allottees) have raised boundaries around the land and constructed houses inside thereof at Sector No,14 of Scheme 42 and for such reason the development works of Lyari Development Project have been disturbed very badly though 35000 allottees, who secured plots by balloting from KDA and LDP cannot approach to their plots because the said industrial zone in Sector 14 hinders them to reach inside the Scheme No,42 and that LDP has paid 10 million rupees as token money to Board of Revenue in respect of costs of land measuring 11,450 acres and intends to pay remaining costs of land to Board of Revenue after resolving land disputes, which have been created by means of issuance of allotment orders at extraordinary rates of the Lyari Development Projects Land. Thus, it is the ease of the City District Government, Karahci, that K-28 Trans Lyari, which ends at Graks Village as per record of Board of Revenue and time of notification may not be extended at any cost of LDPs notified Scheme No,42. It is further contended by the City District Government Karachi that the possession of the land in question (as per notification) was handed over to the KDA in accordance with the handing over/taking over of the possession memo.
' So also Lyari Development Authority filed its comments to the effect that an area of 11,450 acres of land of Deh Lah Bakhar and Deh Mouch was allotted and possession of the same was also delivered by the Board of Revenue to the then Karachi Development Authority by the then Mukhtiarkar Karachi West in presence of the witnesses and that the KDA planned Scheme No,42 comprising of approximately residential plots of different categories, besides amenity/commercial and other plots allotted to general public through computer balloting and huge amounts of public money was spent on development of Hawksbay Scheme No,42 and that LDA being successor in office of defunct KDA deposited an amount of Rs,10 Million towards the costs/part payment of the costs of the said land of Hawksbay Scheme No,42 to the Revenue Authorities and that final order was pending with the then Chief Minister Sindh on the date of filing of the said comments and that the Govemment of Sindh through the then Governor directed for transfer of 21,700 acres of land for Hawksbay Scheme No,42 to defunct KDA and further that the Board Revenue, Government of Sindh, never objected against the order of the then Governor of Sindh, who directed for notifying establishment of the impugned scheme.
' They have further submitted that K-28 Trans Lyari Scheme, which starts from Mauripur Truck Stand and its extension-I approved in the year 1996 upto Gracks village, which is about 5 Kilometers ahead of the start of Hawksbay and that KDA never objected against the same before the Board of Revenue nor carried out any internal or external developments; further that K-28 Trans Lyari Scheme Extension-II is overlapping the plan 'Sectors 3C, 3C-1, 4, 4A, 4B, 4C, l2, 14 and 14A of Hawksbay Scheme 42, where the balloting was made by the defunct KDA and the residential plots of different categories were allotted to the general public.
' To sum up the facts and circumstances involved in this petition, the same essentially demand holding of detailed inquiry to arrive at the real questions of fact as otherwise, the dispute in between the parties cannot be settled in a befitting manner, it is a settled principle of law that while hearing a Constitutional petition disputed questions of fact can neither be b entertained nor any inquiry can be entered into for the purpose of settlement of the same.
' So also, section 10 of Colonization of Government Lands Act, 1912, reads as under:- "10. Issue of statements of conditions of tenancies . -(1) The Board of Revenue subject to the general approval of the Government, may grant land in colony to any person on conditions as it thinks fit.
(2) The Provincial Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants.
(3) Where such statements of conditions have been issued, the Collector may, subject to the control of Board of Revenue allot land to any person, to be held subject to such statements of conditions issued under subsection (2) of this section, as the Collector may by written order declare to be applicable to the case.
(4) No person shall be deemed to be a tenant or to have any right, or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto. "
The then Karachi Development Authority (through its successor-in-office) have failed to produce any document to say that the Board of Revenue through the Provincial Government had ever executed any written document to grant disputed land in favour of the KDA; if such a grant could possibly be presumed to have been so accorded, then also there is no material on the file of this petition to say as to the terms and conditions of such a grant; so also no. Material is found in this file to say that any consideration/lease money was ever paid by the then KDA to the Board of Revenue/Provincial Government towards grant of the disputed land in favour of the KDA.
' Subsection (4) of section 10, as quoted herein above, mandatorily directs that no person shall be deemed to be a tenant or to have acquired any right, title or interest in the land allotted in his/its favour until such a written order has been passed by the Board of Revenue/Provincial Government and he/it has taken over possession of the land with permission of the Collector; in the absence of the written order for the purpose of grant of the land, it could not be expected that the then KDA could have possibly deposited any amount towards consideration/lease money of the disputed land.
' In this regard, following observations were recorded by a learned Single Judge of this Court in Abdul Rashid Khalid and others v. Province of Sindh and another PLD 1987 Kar. 394:-
6. Mr. Aftab further contended that under section 24 of the Colonization of the Govemment Lands Act, 1912 it was mandatory for the Revenue Officer to give an opportimity to the petitioners to rectify the breaches. Reliance is placed by the learned counsel on the case of'Noor Hussain v. Misri Khan and others 1981 SGMR 112S and Muhammad Yamin and I6 others v. Member (Land Utilization), Board of Revenue, Sindh and others 1981 CLC 1700.
'In the first case, it was urged by the learned counsel for the petitioner that under section 24 of the Colonization of Government Lands (Punjab) Act, before the land could be resumed it was incumbent on the Collector to examine whether the mistake on the part of the defaulter was rectifiable or not. If the mistake or breach was rectifiable then the Collector was bound to give an opportunity to the defaulter to pay the price. It was held by the Supreme Court that the contention has no merit. The petitioner had himself Eled an appeal against the aforesaid order of the Collector which was accepted by the Commissioner who gave two months time to the petitioner to pay the price. The petitioner in the circumstances was not entitled to raise any grievance against the forfeiture of the land. In the second case, it was held by a Division Bench of this Court that "the learned Member, Board of Revenue has not seriously considered as to whether there was breach of conditions or not. He has failed to consider as to whether in case there was breach of conditions he would impose a penalty or order the resumption of the tenancy. He has also failed to consider in case there was breach as to whether it was capable of rectification or not, and in case it was capable of rectification a written notice should have been ordered requiring the tenant to rectify the breach within reasonable time, which has not been done." The impugned order was, therefore, set aside in the constitutional petition. The Karachi case appears to be of some assistance to the petitioners, but the proviso tosection 24 of Colonization of Government Lands Act, 1912, which is relied on by Mr. Aftab, is subject to the condition that the breach must be capable of rectification.
No argument was advanced by Mr. Aftab that the breach of the conditions was capable of rectification and there was any positive effort on the part of the petitioners to rectify them at any stage. We called upon Mr. Aftab to show if he has made the payment of the price of the land in question to the department concerned or if any such offer has been made by the petitioners to the department. He submitted that he paid the first instalment of Rs,l9,CKK) and odd, at the time of allotment and has not paid any further instalment thereafter. Mr. Syed Riaz Ahmad submits that the petitioners under the terms of the grant were obliged to pay Rs,7,56,226 in eight equal instalments.
The counsel for the parties were in some disagreement as to the number of instalments, which ought to have been paid by In any case, the admitted fact is that not a single penny was paid or tendered by the petitioners after 3-3-1962, when the land was granted to the petitioners. It is also noticed that the petitioners were heard subsequently by the Member, Sindh Board of Revenue and the Chairman, Governor's Inspection Team on their applications, but no effort was made by them to make payment. For the reasons stated above and the other circumstances which will be described presently, we are not impressed by the submission of the leamed counsel.
' Reliance is placed by us on Imam Bux V. The Collector and others 1982 SGMR 149. In that case, the land from the name of the petitioner was resumed on account of his not having complied with the terms of lease, in neither bringing the requisite area under cultivation nor paying the Lagan. It was thus, held by the Supreme Court that the petitioner not cultivating the land for a long period of time and failing to fulfil requisite condition of payment of dues and breach becoming unrectifiable, resumption of land by the Collector required no interference in the Constitutional jurisdiction, in the circumstances of the case. The facts of the said case appear to be somewhat similar to the facts of the present case.
7. As regards the second plea of Mr. Aftab Shaikh that before the disposal of the said land no notice has been given to the grantees as contemplated by condition No,15 of the Notification dated 20-11- 1972, Mr. Riaz Ahmad candidly conceded that the record does not show that any such notice conveying the offer to repurchase the land was sent to the petitioners before making the allotments to the Haris. It is, however, submitted by Mr. Riaz Ahmad that the land resumed by the Government was allotted to 78 Haris in 1976 (I6 Acres to each of the Haris), who are now settled and cultivating the land. We find that there are laches on the part of the petitioners inasmuch as the petitioners neglected to make any representation to any Civil Authorities concerning the land in question, much less the Commissioner of Sindh and the Board of Revenue, who are the appellate and revisional authorities respectively as provided under the Act, and so failed to seek their remedy provided under the Act. The petitioners did however, take the matter to the Martial Law Authorities and that, too, after five years. In any case, the applications submitted by them to the various Martial Law Authorities met with failure. The fact, that it may affect the rights of 78 Haris, who, as stated by Mr. Riaz Ahmad, on the instructions of Revenue Superintendent, Board of Revenue of Sindh, who is present in Court, are settled on the land for the last over a decade cannot be lost sight of Furthermore, they have not been made party to the petition. The fact of re-allotment of lands to 78 Haris in 1976, coupled with the laches on the part of the petitioners, is sufficient to disentitle the petitioners from invoking writ jurisdiction, which is equitable in nature. Furthermore, the petitioners not availing the remedies available to them/under the statute, is also a factor to be considered for not invoking writ jurisdiction in their favour. We, therefore, do not feel inclined to exercise our jurisdiction, in the circumstances of the case, in favour of the petitioners merely for non-compliance of condition No,15 of the said Notification, that is, failing to issue notice to the petitioners before disposal of land to Haris. We are clear in our mind that the writ can be refused if the petitioners are to be blamed for themselves their conduct and for not challenging the order in proper forum and are guilty of laches, even if the subsequent allotment to the Haris is considered to be invalid. Reliance is placed on the case of S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367.
8. During the course of his arguments, Mr. Aftab Ahmad, while reading the petitioners' application dated 24-11-1973, also made his submission about merits of the case, that the petitioners were settled on the land and the land was partly cultivated by them and that their tractor was there on the land, but these facts stand denied by the Barrage Mukhtiarkar. This would, too, disentitle the petitioners to get the relief through this petition as the exercise of Constitutional jurisdiction is refused when the matter involves disputed questions of facts. "
' So also in Muhammad Ramzan v. Member (Colonies), Board of Revenue, Punjab, Lahore and others 2003 YLR 427, following observations were recorded:- "A shop situated in Committee Bazar Toba Tek Singh is in occupation of the petitioner as lessee, who statedly has continuously been paying rent to the Municipality. It is the case of the petitioner that he along with others applied to the Board of Revenue Punjab, Lahore for the conferment of proprietary rights through private treaty, which matter was processed and his case was recommended for the grant of proprietary rights by the officials in the hierarchy. The matter, however, statedly remained pending when the petitioner had to file W.P. No, 13230 of 1996, which was withdrawn on 30-7-1996, "with the option to the petitioners to revert to this Court, in case there is a cause of action". It is now notice dated 25-7-2002 whereby the petitioner has been called upon to pay the price through instalments, (the breakup of which is given in the said notice) which has been challenged through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 173.
2.In view of the grievance of the petitioner that an exorbitant and excessive price was being claimed from him, which was unfair, the learned law officer was called upon to seek instructions in the matter. On 18-10-2002 the learned Additional Advocate-General appeared in Court, and filed para- wise comments appended therewith was a joint affidavit executed by the petitioner (at Serial No,2) and others that price was settled by agreement. This document bears the thumb impression against the name of the petitioner. The learned counsel for the petitioner on that date sought an adjournment in order to seek instructions from the petitioner. The petitioner is present in Court today along with his learned counsel. It is contended by the learned counsel that the petitioner Jiever executed any such document nor put his thumb impression as is claimed by the respondents.
3. Whereas the document referred to by the learned Additional Advocate General statedly was executed by the petitioner, its execution is vehemently denied by the petitioner. In view of the conflicting and coimter assertions of the parties about the execution of the document, it has become an extremely a controversial and disputed question of fact, which can only be resolved after thorough probe and enquiry into the matter. Such exercise is beyond the pale of jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973. Remedy for the petitioner for settling such a controversy falling within the factual realm lies elsewhere. It may be observed that as per the stance of the respondents, the petitioner had agreed for the grant of proprietary rights through private treaty and he along with others, agreed to the price in view of the location/ situation of the site and its business worthiness. It thus gave rise to a contractual arrangement between the parties and in any case invocation of writ jurisdiction of this Court is not the remedy that can be resorted to by the petitioner.
' In the circumstances stated above, the petition is dismissed."
' So also in Sharif Haroon v. Province of Sindh through Secretary to the Government of Sindh, Land Utilization Department and another PLD 2003 Karachi 237, a learned Division Bench of this Court recorded the following observations in paras. 15, I6 and 17:-
15. We have heard the learned counsel for the parties and have perused the record. Indeed Mr. Muhammad Ali Saeed appears to be correct in asserting that in view of the mandatory provisions of section 24 of the Colonization of Govemment Lands Act and order of resumption of tenancy on grounds of the tenant breach of the terms of tenancy could not be passed without giving the tenant an opportunity of hearing and if so passed it would be a nullity in law. Nevertheless there appears to be a basic contradiction in his stand inasmuch as he is not prepared to accept that the land continued to remain vested in thd Provincial Government to which the terms of the initial lease would apply but has serted that his title on the basis of an allotment order passed by the KDA. The cmcial question to be determined would be whether title to the land legally came to be vested in the KDA on the basis of which the petitioner's alleged right as a transferee could be asserted.
16. Article 92 of the KDA Order empowers KDA to enter into any agreement with any person for acquisition of land through purchase, lease or exchange and Article 93 enables it with the previous sanction of the Provincial Government to acquire any land under the Land Acquisition Act, 1894. No agreement or provision of law applicable to the acquisition of 2000 acres has been pointed out by any of the parties. At the same time under section 10(4) of the Colonization of Govemment Lands Act no person can be treated as a tenant unless he has taken possession of the land with the permission of the Collector. Admittedly the petitioner was in possession of the land since 1964 and therefore KDA could not be treated as a tenant of the same at any time thereafter. It is therefore clear that KDA neither acquired the land as owner nor could be treated as a tenant of the Government in respect thereof. Even the petitioner himself could not transfer any interest in the land without the written consent of the Commissioner in view of the statutory embargo created by section 19 of the Act.
17. In view of our above finding to the effect that the disputed land vested in the respondent No, 1 (Provincial Govemment) and not respondent No,2 (KDA). The lease in favour of the petitioner could only be terminated after, service of mandatory notice under section 24 of the Colonization of Govemment Lands Act as such we are constrained to declare the impugned order to be without lawful authority and of no legal effect. Nevertheless it cannot be overlooked that the 30 years lease period has already expired and the petitioner admittedly violated the terms of the lease by raising residential buildings on a property lease out for poultry farming and cultivation purpose. Therefore, it must be left open to the respondent No,l to take any appropriate action in accordance with law.
' Thus, the petitioners as well as the Interveners have miserably failed to satisfactorily prove that the disputed land was ever granted in favour of the then Karachi Development Authority by means of execution of such a document, as quoted herein above. So also, no satisfactory proof is found available to say that any consideration amount/lease money for the disputed land was ever paid by the then KDA to the Board of Revenue/Provincial Government.
Thus, the petitioners as well as Interveners have failed to prove any valid right, title or interest in the land involved in this petition and, therefore, this petition is hereby dismissed in limine along with the listed applications and so also the claim of the Interveners/ respondents stands dismissed.