' FAISAL ARAB, J.---The Government of Sindh carved out plots on a piece of land described by it as Phase 1 of K-28, Trans Lyari, Hawks Bay Road, District West, Karachi and leased them out, for industrial and commercial purposes. Five of such Plots bearing Nos. 30 (5 acres), 28 (2.25 acres), 55 (2 acres), 56 (1 acre) and 57 (1 acre) were allotted by the Board of Revenue, Government of Sindh vide letters No,PS/MBR/(LU)/719/93 dated 10-7-1993, PS/MBR/(LU)/556/96 dated 11-4-1996 and PS/MBR/(LU)/1159/96 dated 24-7-1996 at the rate of 25 per square yard. The allottees of these plots got them bifurcated in various portions and sold them to various persons. The plaintiffs in these suits are the existing owners of the bifurcated portions that were carved out from the above referred five plots. When the plaintiffs started constructing boundary walls and buildings on their respective portions, the defendant No,2 i.e, Trustees of the Port of Karachi, stopped them for doing so on the ground that the land on which the plots in question were carved out by Government of Sindh belong to Karachi Port Trust. This prompted the plaintiffs to file the present Suits.
2. The case of the plaintiff is that the entire area of Phase 1 of K-28, Trans Liyari, Hawks Bay Road, belong to Government of Sindh therefore, the defendant No,2 or its functionaries have no right to question plaintiffs' titled in the disputed plots. The case of the defendant No,2, on the other hand, is that the plots in question were part of the area allocated to Karachi Port Trust under original Notification published in 1887 Bombay Gazette on March 24, 1887 at page 244 and continued to be part of subsequent notifications that were issued from time to time, including the last Notification bearing No, S.R.O. 307(KE/91, Karachi, dated 5-10-1991, therefore, the Government of Sindh was not at all competent to create any proprietary interest on such land. The case of the Province of Sindh is similar to that of the plaintiffs i.e, that the disputed land belongs to Government of Sindh and Karachi Port Trust has nothing to do with it.
3. On 17-9-2001 following issues were jointly proposed by the parties, which were adopted by the Court. They are reproduced as under: -
(1) Whether the suit is not maintainable under the various laws?
(2) Whether no cause of action has accrued to the plaintiff against the Defendants?
(3) Whether the land allotted to the plaintiff by the defendant No,1 was ever owned by Defendant No,1?
(4) Whether the defendant No, 2 rightly damaged the property of the plaintiff?
(5) What should the decree be?
4. Before evidence could be recorded on the above issues, the counsel for the plaintiffs on 17-3- 2008 submitted that the only issue which actually needs determination in all the suits is whether the disputed land belongs to the Karachi Port Trust or the Government of Sindh. On the said date it was also urged by plaintiff's counsel that this sole issue can be decided on the basis of documents alone without recording evidence in the matter, to which counsel for the Province of Sindh as well as Karachi Port Trust agreed. Hence on the basis of joint request, the Court framed following sole issue on 17-3-2008:-- "Whether this land (Phase 1 of K-28 Trans Lyari Hawks Bay Road) belongs, to Karachi Port Trust or the Board of Revenue, Government of Sindh?"
5. Mr. Abid S. Zuberi, learned counsel for the plaintiffs in all the sixteen suits referred to section 3 of the Karachi Port Trust Act, 1886 (K.P.T. Act for short) and argued that the limits of Karachi Port Trust were defined through notification published in official gazette under section 3 of K.P.T. Act and revised through subsequent notifications last of which was issued in 1991. He submitted that the limits of Karachi Port Trust as defined in the notifications issued from time to time never included land of Phase 1 of K-28 Trans Lyari within its limits. He then argued that the Trustees of the Port of Karachi (hereinafter referred to as "the Board") entrusted with the functions to run the affairs of the Karachi Port can acquire immovable properties under sections 25 and 26 of the K.P.T. Act and as the disputed land was never acquired by the Board under the provisions of sections 25 and 26 of K.P.T. Act, therefore, Karachi Port Trust cannot stake any claim to the land in question i.e, Phase 1 of K-28. Mr. Zuberi then submitted that by virtue of section 27 of the K.P.T. Act the properties that stood vested in the Board are also specifically mentioned in Schedule A to the K.P.T. Act and the disputed land is also not listed therein. He submitted that as the land in question does not fall within the limits prescribed in the notifications issued under section 3 of the K.P.T. Act nor it was acquired by the Board under section 25 or 26 nor stood transferred to the Board under section 27 of the Act, it cannot form part of K.P.T. Land. He next contended that a dispute did arise in the past on the question whether area of Phase 1 of K-28 Trans Lyari, Hawks Bay Road falls within the limits of Karachi Port Trust or Government of Sindh which was referred to a Committee that was formed under the direction given by this Court in Constitution Petition No,D-1277/03 and the Committee also came to the conclusion that Phase 1 of K-28 Trans Lyari Falls within the area belonging to the Government of Sindh. Such findings of the Committee, he argued, were never questioned by the Karachi Port Trust in any legal proceedings and therefore K.P.T. Cannot nod' turn around and re- open a resolved controversy.
6. Mr. Kazim Hasan, learned counsel for Karachi Port Trust who appeared in only one of the sixteen connected suits i.e, Suit No, 833 of 2000 argued that the allotment in favour of the predecessor-in- interest of the plaintiff is said to be made in the year 1993 on the basis of a letter issued by the Land Utilization Department, Government of Sindh but the said letter has not been placed on record to establish that the land was actually allotted by Land Utilization Department. He argued that plots are also shown to be leased out for 99 years but the same was done at a throwaway price of Rs,25 per square yard in the year 1993, hence the entire process lacked transparency as the land was worth much more in 1993 than Rs,25 per square yard. He then referred to documents of lease and pointed out that these are signed only by Mukhtiarkar, West, Karachi but the Mukhtiarkar is not a functionary of Land Utilization Department and not competent to make allotments of lands. Mr. Kazim Hasan then submitted that even otherwise lease for 99 years is compulsorily registrable under the Registration Act and as the same was not done, the provisions of section 17 (i) (d) and section 17(2) (viii) of the Registration Act were also violated. Mr. Kazim Hasan further submitted that subsequent Conveyance Deeds that were registered after sub-division of the original plot are also not legally valid documents for the simple reason that original allotment was itself invalid. In support of his contentions that the requirements of Registration Act were not fulfilled. Mr. Kazim Hasan relied upon cases reported in 1973 SCM R 289 at page 295, 1975 SCM R 195, PLD 1983 SC 424 at page 427, 2010 CLC 407 at page 216 and 2010 CLC 849. He next argued that original allotment on the plaintiff's own showing said to be cancelled in 2001 under the Sindh Government Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001 (Ordinance III of 2001), therefore, in addition to the K.P.T.'s case that phase 1 of K-28 falls within K.P.T. Limits; the plaintiff cannot claim legal title even on the basis of disputed allotment as the disputed allotment itself stood annulled under Ordinance III of 2001. He submitted that in the entire proceedings right from 2001 when allotments were cancelled no document was brought on record to show that order of cancellation of plot has been recalled by the Government of Sindh. He further argued that even under the provisions of Ordinance III of 2001, the right to seek regularization is only of the original allottee and not of the subsequent transferees and, therefore, the plaintiff being a transferee only cannot seek regularization under the said Ordinance. He then argued that even if this Court holds that the land does not belong to Karachi Port Trust even then unless Government of Sindh regularizes the allotments, the relief sought in the suit cannot be granted to the plaintiff. Mr. Kazim Hasan further argued that even if plot is regularized, it is to be done at prevalent market rate on which stamp duty is to be calculated and paid along with price differential and then on such basis, all subsequent transfers would require registration fees and stamp duties in order to validate subsequent transfers as well hence after regularization of the plot, stamp duty and registration fee is to be revised not only at the allotment stage but at all-stages of subsequent transfers. Mr. Kazim Hasan also referred to the decision of the honourable Supreme Court in Suo Motu case No, 10/09 at page 32 paragraph 49, page 37 paragraph 46, page 43 paragraph 63. He concluded his argument by submitting that as the plaintiff does not hold a valid title to the suit property as the allotment was made by incompetent authority and that such allotments have also been annulled under Ordinance III of 2001, .Therefore, the relief sought in the suit cannot be granted and the suit may be dismissed.
7. Mr. Javed Farooq, Advocate, who appeared for the Karachi Port Trust in fifteen of the sixteen connected suits, in addition to adopting the arguments of Mr. Kazim Hasan contended that the notification of 1940 which defined the boundaries. Of Karachi Port Trust include the land of Phase 1 of K-28 Trans Layari, Hawks Bay Road within its boundaries. After referring to a map he explained that land is located between the sea and Mauripur Road and this area under the notification falls within K.P.T. Limits! The map that was shown to this court by Mr. Farooqi clearly indicates that the land in question falls within the boundaries of Karachi Port Trust.
8. In reply, Mr. Abid S. Zuberi contended that the only effect of cancellation under Ordinance III of 2001 is that the plots become regularizable on payment of price differential which is to be determined under the said Ordinance. In support of this contention, Mr. Zuberi relied upon 2003 CLC 719 and 2008 YLR 2053. In reply to Mr. Kazim Hasan's other argument that lease had to be registered, he contended that under section 17(vii) no registration is required as it was a grant. He then referred to section 10(2) of Colonization of Government Lands Act, 1912 and submitted that allotments are made on the basis of statement of conditions which document is not governed by Transfer of Property Act but under the Colonization of Government Land Act, therefore, no registration is required. In support of this contention, he relied upon the case reported in 1997 SCM R 837
9. Learned A.A.G. Also argued that the land belongs to Government of Sindh and not K.P.T.. He submitted that the land stood reclaimed from sea through natural process and the land being ownerless belongs to the Government of Sindh under Article 172 (1) of the Constitution.
10. I shall first proceed to decide the sole issue that was framed on 17-3-2008 in the case i.e, whether the disputed land belongs to Government of Sindh or Karachi Port Trust. The effect of cancellation of allotments under Sindh Urban Estate Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance III of 2001 and its impact on the relief sought in the suits shall be examined after determination of this main issue.
11. The purpose of enacting Karachi Port Trust Act, 1886 was to manage the affairs of Karachi port in an orderly manner through a Board described as "The Trustees of the Port of Karachi". To achieve this objective, the Board was conferred with various powers and duties. These are defined in Part V, sections 29 to 59 of the Karachi Port Trust Act. The powers and duties of the Board relate to the running of Karachi seaport which in turn require control over an area as well as on certain immovable properties. Under section 27 (1) of K.P.T. Act, certain specified immovable properties of the then Karachi Harbour Port were transferred by the then Government of India to the Board and upon such transfer they stood vested in the Board. These immovable properties are listed in Schedule A to the K.P.T. Act. Apart from so acquiring immovable properties, the Board was empowered to acquire immovable properties directly or through the process of acquisition under Land Acquisition Act. Such powers are contained in sections 25 and 26 of the K.P.T. Act. In order to carry out the purposes of the Act, the Board was also empowered under section 18(1) of the Act to lease, sell and transfer immovable properties that vested in it. To deal with immovable properties that vested in the Board, the K.P.T. Act imposes certain restrictions as is evident from the provisions of sections 18 (2) and 27 of the Act. For convenience sake, sections 18(1), 25, 26 and 27 are reproduced hereunder:-
(18) Competency of the Board to lease, sell and transfers.---(1) The Board shall be competent, subject to the restrictions contained in subsection (2) to lease, sell or otherwise transfer any moveable or immovable property which may, for the purposes of this Act, have become vested in, or been acquired by them and so far as is not inconsistent with the provisions and purposes of this Act, and subject to the restrictions contained in subsections (3) and (4), to enter into and perform all such contracts as they may consider necessary or expedient in order to carry into effect the said provisions and purposes.
(25) Power of Board as to property.---The Board shall, for the purposes of this Act, have power to acquire and hold movable and immovable property within or without the limits of the port or city of Karachi.
(26) Procedure to be observed when the Board are unable to acquire, by agreement, any immovable property.---When the Board are unable to acquire, by agreement, any immovable property required for the purposes of this Act, the Federal Government may order proceedings to be taken for acquiring the same on behalf of the Board as if such property were land needed for a public purpose within the meaning of the Land Acquisition Act, 1894 (I of 1894).
The amount of compensation awarded and all other charges incurred in the acquisition of any such property shall be forthwith defrayed by the Board and thereupon the said property shall vest in the Board.
(27) Transfer of Government property to the Board.---(1) The property specified in schedule A shall vest in the Board; ' Provided that-
(i) If any question arises between the Federal Govt. And the Board as to the boundaries of any portion of such property, Govt. May define and demarcate such boundaries, and the decision of Government in respect to such boundaries shall be conclusive.
(ii) Any portion of the land specified in the said schedule which shall be required by the Federal Government for a public purpose may be resumed by the Federal Government, without claim to compensation on the part of the Board, except of buildings or other permanent structure erected thereon.
(2) Nothing in clause (ii) of the proviso of subsection (1) shall apply to land reclaimed from harbour waters, and the Board shall be compensated for any improvements effected by it on any land resumed under that clause.
(3) The railway now under construction between the Bander Station and the Keamari Station may be constructed by Government along the foreshore or on reclaimed land and any other work which the Federal Government may consider necessary in the public interests may be executed by Government in of upon any of the property specified in the said schedule without claim to compensation on the part of the Board except for building or other permanent structures which it shall be necessary to clear away for the purposes of such railway or work.
12. Now except for the above discussed modes of acquisition of immoveable property i.e, through transfers made under section 27(1) at the time of enacting the K.P.T. Act and subsequent acquisition of immovable properties under the provisions of sections 25 and 26 of K.P.T. Act, no immovable property can vest in the Board. Even land reclaimed by the Board at its own cost and expense from harbour waters can be resumed by the Government at any time under the provision of sections 27(1) (ii) and 27(2) of the Act without payment of any compensation to the Board except for a claim for the value of buildings or permanent structures that may have been raised or any improvements made by the Board.
13. Reading sections 18 and 27 of the Act together, it becomes quite evident that certain restrictions have been imposed on the Board even on immovable properties that vest in the Board. This is so because ownership of immovable properties was conferred on the Board, keeping the sole purpose in mind i.e, to enable it to run and manage the affairs of the Karachi Port as defined in the K.P.T. Act and noting more. The K.P.T. Act never intended to create Karachi Port Trust into a land owning body like co-operative societies whose members are granted absolute proprietary interests in the land with the liberty to deal with the same for their own benefit.
14. Now apart from the properties that came to vest in the Board under section 27(1) of the Act or the properties that may have been acquired by the Board under sections 25 and 26 of the K.P.T. Act, the Karachi Port Trust cannot acquire property through any other mode. As regards the geographical limits of the Karachi port notified under section 3 of the K.P.T. Act, these limits are defined only to facilitate port activities within such limits. Last of such notifications was issued on 5-10-1991 vide Notifications No,S.R.O. 307(KE/91 Karachi. As the limits of Karachi Port defined in the notification issued under section 3 of the K.P.T. Act are nothing but the limits within which the Board has to run and manage port activities, therefore, they are merely functional or jurisdictional limits of Karachi Port Trust. These limits cannot in anyway be taken as if all land falling within the defined limits also vests in Karachi Port Trust. Section 3(a) of K.P.T. Act clearly states that limits of the Port are defined for the purpose of the Act and the purpose of the Act is defined in Part V of the K.P.T. Act, i.e, is to run and manage the affairs of the Karachi Port. As the defined limits are functional and jurisdictional limits only, they are also alterable from time to time as is evident from section 3(b) of the Act.
Section 3 of the K.P.T. Act reads as under:-- "Section 3. Power to define and alter limits of Port.--- ' Government may, by notification in the official Gazette-
(a) define the limits of the port for the purpose of this Act, and
(b) from time to time alter such limits.
' Such limits may extend to any part of the navigable approaches to the port, and may include any wharves, tramways, warehouses; sheds and other works made on behalf of the public for convenience of traffic, for safety of vessels of for the improvement, maintenance and good governance of the port, whether within or without high water mark, and subject to any rights of private property therein, any portion of the shore within fifty yards of high water mark."
15. As is evident from the notification, the functional or jurisdictional limits of the Karachi Port Trust as defined under section 3 of the K.P.T. Act, start with a line running from a prescribed point or a pillar on the coastal belt and continuing from one point to another, it ends at a certain described final point. This delineating line runs 50 yards beyond the high-water mark. The high-water mark as defined in section 2(3) of the K.P.T. Act means the highest level to which the sea tide reaches the coast in any season of the year. In other words high-water mark means the shoreline to which tide touches the coast the most in any season. Apart from the line which runs 50 yards above the high- water mark, the limits of the Karachi Port under section 3 of the K.P.T. Act also include wharves, tramways, warehouse, sheds and other works made on behalf of the public for convenience of traffic, for safety of vessels or for the improvement, maintenance and good management of the port, whether within or without high-water mark. Now the coastline never remains permanent. A constant change is taking place in the boundaries between land and sea. The sea at time encroaches upon dry land. At time it also recedes resulting in accretion to land. Thus a portion of land under the sea may stand reclaimed through this natural phenomenon. As it was argued that the disputed land is part of the land which stood reclaimed from sea through natural process, the next question that needs to be examined is as to who becomes owner of such land. This is to be examined in the light of the provisions of Article 172 of the Constitution Article 172 reads as follows:- 172 Ownerless property.---(1) Any property which has no rightful owner shall, if located in a Province, vest in the Government of that Province, and in any other case, in the Federal Government.
(2) All lands, minerals and other things of value within the continental shelf or underlying the ocean {beyond} the territorial waters of Pakistan shall vest in the Federal Government.
(3) Subject to the existing commitments and obligations, mineral oil and natural gas within the Province or the territorial waters adjacent thereto shall vest joint and equally in that Province and the Federal Government.
16. Under Article 172(1) of the Constitution any ownerless property located in a province vests in that province whereas under Article 172(2) of the Constitution all lands within the continental shelf or under the ocean vest in the Federal Government. The real import of Article 172 of the Constitution is that any emergence of dry land, whether it becomes part of the mainland of the province or comes into existence in the form of island, comes under the ownership of the province whereas the land that remains under continental shelf or ocean i.e, immersed under seawater, belongs to Federal Government. Thus where the boundaries of a province touch sea and on account of receding coast line a piece of land adds to the mainland or an island emerges then in both the situations it belong to the province and vests in the provincial government of that province for the simple reason that such land or island is no more under continental shelf or ocean floor. While incorporating Article 172(2) of the Constitution what the framers of Constitution intended was that the land that remains immersed under sea water, be it continental shelf or under the deep ocean, its ownership be vested in the Federal Government, whereas dry land, reclaimed through receding sea should belong to the province. Therefore, the reclaimed land being no more under continental shelf or deep ocean water cannot be interpreted to be land as described under Article 172(2) of the Constitution, as such reclaimed land is no more part of continental shelf or ocean floor. In order for a land to fall within the provisions of Article 172(2) of the Constitution it has to be such land which remains within the continental shelf or under the ocean. Therefore, any land on account of reclamation becomes dry land cannot be defined as a land within the continental shelf or underlying the ocean and hence it is not definable under Article 172(2) of the Constitution but is definable under Article 172(1) of the Constitution. Similarly, whenever coastal land or an island is encroached upon by sea and comes under continental shelf or under ocean water, it vests in the Federal Government in terms of Article 172(2) of the Constitution. While incorporating Article 172 of the Constitution, it was never intended by its framers that apart from the existing boundaries of the province, any land reclaimed from the sea should be given under the ownership of the Federal Government.
17. Applying the above discussed interpretation of the provisions of Article 172(1) and (2) of the Constitution and section 3 of the K.P.T. Act to the present case, all land reclaimed from sea adds to the boundaries of Sindh Province irrespective of the fact that such addition has taken place within the limits allocated to the Karachi Port Trust. In fact such a situation calls for making changes in the limits of Karachi Port under section 3 of the K.P.T. Act as the boundaries of High-water mark have changed. As discussed earlier the limits of Karachi Port Trust that are defined through notification issued under section 3 of the K.P.T. Act are only functional or jurisdictional limits conferring no title or proprietary interest in favour of Karachi Port Trust but only allows the Board constituted under K.P.T. Act to run and manage the affairs of the Port within such limits. The proprietary interests in any immovable property in favour of the Board are created only under the provisions of section 25, 26 and 27 of the Act. The disputed land admittedly being part of land that stood reclaimed from sea through a natural process and its ownership was never conferred upon the Board under the provisions of sections 25, 26 or 27 of the K.P.T. Act, therefore, Karachi Port Trust cannot stake any claim to it and the same belongs to Government of Sindh. Hence, Phase 1 of K-28 Trans Lyari Quarters, Hawks Bay Road, District West, Karachi is not owned by K.P.T. But is owned by Government of Sindh. The sole issue in all the connected sixteen suits is answered accordingly.
18. The above findings on the sole issue brings this Court to the other aspect of the matter i.e, the effect of cancellation of allotment under Ordinance III of 2001 and its impact of the relief sought in the suits. It has been pointed out that the allotments in favour of predecessor-in-interest of the plaintiffs stand cancelled under Sindh Urban Estate Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001 (Ordinance III of 2001). Nothing was brought On record to demonstrate regularization of the allotments. In view of this legal position i.e, cancellation of allotment under a valid law, no declaration as to the validity of the allotments made in favour of the predecessors-in-interest of the plaintiffs or the legality of the plaintiffs' title can be made by this Court at this stage and this question has to be left to be examined in appropriate proceedings in case such are taken to Court.
19. Furthermore, the controversy in these suits was to be decided on the basis of documents alone, I find Notification bearing No,KB-1/130/72/7096 dated 12-5-1975 published under Sindh Government Gazette on 5-6-1976 which describes certain restrictions on the, grant of land near port area. Mr. Kazim Hasan in his arguments had also pointed out that the competent Authority never made allotment of the disputed plots and it was only Mukhtiarkar who signed lease documents and that too at throwaway price of Rs,25 per square yard. Now that the allotments stand cancelled under Ordinance III of 2001 the points raised by Mr. Kazim Hasan are also left to be decided in proceedings which the plaintiff may initiate for regularization of the cancelled allotments. While deciding the sole issue that was framed with the consent of the parties on 17-3-2008 all these points with regard to transparency and competency of allotments cannot be gone into. It may, however, be observed that the main object and purpose of promulgating Ordinance III of 2001, as is evident from the provisions of section 3 thereof, is that cancellation of allotments or conversion and exchanges of urban State land was potholed by the fact that such allotments or conversions or exchanges were made by competent authority at the rates lower than the market value in violation of any law or ban. Thus Ordinance III of 2001 covers disposition of Government properties by competent authority and not by an authority which was not competent to make allotments. The Land Utilization Department is the only competent authority to allot the lands belonging to Government. In case the allotment has been made solely by Revenue Mukhtiarkar then such allotment suffers from inherent defect, which in my view, cannot be cured by invoking the provisions of Ordinance III of 2001. However, the genuineness or otherwise of the allotments in question are left to be decided in appropriate proceedings for the simple reason that none of the parties adduced evidence on this aspect of the matter. In fact they all asked the Court to decide only one issue which has been decided in this suit.
20. While holding that disputed plots are located on land belonging to Government or Sindh, in view of cancellation of plots under Ordinance HI of 2001, no relief as prayed in the suit can be granted to the plaintiff in the present proceedings. Therefore, this court is left with no other alternate but to dismiss all the sixteen suits.