' GULZAR AHMED, J.---By this common judgment, we propose to decide both the above petitions.
Messrs Hashoo Private Limited (hereinafter referred to as "Hashoo") petitioner in C.P. No, D-1302 of 1992 has made the following prayer:-- "(a) declare that the grant of an area of 25 acres of land out of Naclass No,153, Deh Mehran, Tapo Malir, Taluka and District Karachi East, on 99 years lease, to respondent No,5, by respondents Nos.1 to 4, vide Order No, PS/MBR(LU)/509/92 dated 13-2-1992 is illegal, unlawful, arbitrary, mala fide, contrary to law, without lawful authority, ab initio void, against the principles of natural justice and ultra vires of the Articles 2A, 23, 24 and 25 of the Constitution of the Islamic Republic of Pakistan;
(b) declare further that the petitioner is entitled to grant of 10 acres and 36 ghuntas of land out of Naclass No,153, Deh Mehran, Tapo Malir, Taluka and District Karachi East, in lieu of the acquired land which was also situated in the same Deh;
(c) direct the respondents Nos.1 to 4 to grant 10 acres and 36 ghuntas of land out of Naclass No,153 to the petitioner in lieu of the acquired land;
(d) such other relief or reliefs as may be deemed fit and appropriate by the Hon'ble Court under the circumstances of the case may also be awarded and
(e) costs of the petition."
' The Messrs Moderm. Construction Company Private Limited (hereinafter referred to as "Modern") the petitioner in C.P. No, D-2679/ 1993 has made the following prayer:-- "(i) Declare and hold that the Impugned Orders No, PS/ MBR(LU)/901/93, PS/MBR(LU)/902/93 and PS/MBR(LU)/ 901/93 dated 18-7-1993 (Annexures '0', `Q' and 'R' respectively) are without lawful authority and of no legal effect;
(ii) Declare that the petitioner's entitlement to the said Land and ownership thereof is valid and fully effective under the 99 years Lease dated 19:.3-1992 (Annexure 'C' hereto).
(iii) Restrain the respondents acting directly or indirectly from interfering with the possession of the petitioner and/or from taking any adverse or coercive action against the petitioner and/or in relation to the said Land.
(iv) any other, further and/or better relief that this Hon'ble Court may deem just and proper in the facts and circumstances of the case;
(v) Costs."
2. The, Modern is the respondent No,5 in Hashoo petition while Hashoo is respondent No,5 in Modern petition. Hashoo claims that it has land bearing Survey No, 285 measuring 5 acres and 32 ghuntas and in Survey No,284 measuring 5 acres and 4 ghuntas in all measuring 10 acres and 36 ghuntas in Deli Mehran, Taluka and District Karachi East. Vide Notification No, 9(116)/78-DVS/RVB dated 23-3- 1973 issued by the then Commissioner Karachi under sections 9 and 10 of the Land Acquisition Act, 1894 (hereinafter referred as the Act) the land was acquired. Hashoo filed objections to such acquisition. The then Assistant Commissioner and Land Acquisition Collector, Karachi (East) gave his Award dated 10-7-1979 where on the request of Hashoo the Land Acquisition Collector recommended that instead of money compensation land compensation of equivalent government land of 10 acres and 36 ghuntas in Survey No,359 measuring 9 acres 36 ghuntas and 1 acre in Survey No, 358 in Deh Mehran be granted to Hashoo and such recommendation was made by the then Deputy Commissioner, Karachi (East) to the then Commissioner Karachi Division vide letter dated 11-7-1979. As it appears the grant was not made to Hashoo and Hashoo has come to know that an area of 25 acres of land in Naclass No,153, Deh Mehran is available for grant to the Hashoo under section 31(3) of the Act the same has been transferred to Modern denying" the grant of 10 acres and 36 ghuntas out of the said land to the Hashoo who filed this petition with the prayer as noted above.
3. Counter affidavit has been filed by the Modern. There is a unsigned statement dated 1-12-2005 of the Additional Advocate General Sindh filing photo copy of detail report received from the Land Utilization Department, Government of Sindh. The report is dated 1-11-2005 which is signed by the Section Officer-I of the Land Utilization Department, Government of Sindh. To this report counter affidavit has been filed by Hashoo.
4. The facts of the petition of Modern are that it was granted 25 acres of land from Naclass 153, Deli Mehran, Karachi (East) on 99 years lease under section 10(1) of the Colonization of Government Land (Sindh) Act, 1912 read with Condition No,3(2) of the Statement of Conditions dated 12-5-1975 vide letter dated 13-2-1992 of the Secretary to the Government of Sindh, Land Utilization Department. Modern claims that it has paid occupancy value of Rs,6,050,000 upon which lease agreement was executed in favour of the Modern and the balance amount of Rs,6,050,000 was also tendered by Modern and that Modern also received vacant physical possession of the land and after demarcation Modern has raised boundary wall. The Modern received letter dated 18-7- 1993 of the Secretary Government of Sindh, Land Utilization Department wherein it was noted that the Land Utilization Department, Government of Sindh under the orders of the competent authority has been pleased to withdraw/cancel the allotment order dated 13-3-1992 issued in favour of Modern and through another letter dated 18-7-1973 granted 10 acres 36 ghuntas out of the said 25 acres of land to Hashoo in lieu of its acquired land and by another letter also of the same date i,e, 18-7-1993 leased 10 acres of the said land to respondent No, 6 Messrs M.H.Builders upon which the Modern has filed this petition with prayer as noted above.
5. Counter affidavit has been filed by Hashoo to which rejoinder has been filed by the Modern.
Comments signed by the Deputy Secretary, Land Utilization-I Department, Board of Revenue, Sindh dated 2-4-2005 have been filed to which reply has been filed by Modern. Statement dated 1-12- 2005 of the Additional Advocate General Sindh has been filed along with detail report received from Land Utilization Department, Government of Sindh which is a letter dated 1-11-2005 of the Section Officer-I, Government of Sindh, Land Utilization Department. Modern has filed counter affidavit to the Board of Revenue reply dated 2-4-2005 and also filed objections and counter affidavit to the Board of Revenue comments dated 1-11-2005.
6. Mr. Ghulam Abbas Sooinro, learned counsel appearing for Hashoo has contended that there is an award it its favour which entitles, Hashoo to grant of 10.36 acres of land in lieu of its acquired land and the land of 10.36 acres having been allotted to it the same cannot now be denied to Hashoo.
7. On the other hand, Mr. Khalid Anwar, learned counsel appearing for Modern has contended that the Modern was granted lease of 99 years, of which it has also paid the price including the differences of malkano in terms of Ordinance III of 2001 and that the possession of the land was also delivered to Modern who has" also constructed boundary wall and in view of such facts, Modern has acquired right in the land and it could not have been cancelled by the impugned letter dated 18-7-1993, which letter itself is not legal for that it gives no reason for cancelling the allotment nor any opportunity of hearing was provided to the Modern, which is contrary to universal principle of audi alteram partem.
8. Mr. Ahmed Pirzada, learned counsel for Board of Revenue, as regards the case of Hashoo contended that it cannot be granted any land in lieu of acquired land and only money compensation can be paid. He has further contended that in the case of Modern, Ordinance III of 2001 has no application. He further contended that Board of Revenue has filed comments to which he did not agree.
9. Mr. Adnan Karim, learned A.A.G. Stated that Board of Revenue has appointed Mr. Ahmed Pirzada as its counsel and he has nothing more to add.
10. We have considered ,the submission made by counsel and have gone through the record.
11. Admittedly there is an award dated 10-7-1979 of acquisition of land of 10.36 acres of Hashoo and Land Acquisition Collector in the award has given his opinion that the rate of Rs,20 per Sq. Yard is mutually agreed by Acquiring Authority i,e, Military Estates Officer and land owners in the present case is reasonable and thus awarded such rate for the land acquired. He has, however, written his order that Hashoo has not mutually agreed to this rate and has claimed compensation of Rs,1,08,87,200 vide its letter dated 30-6-1979 and in subsequent letter dated 2-7-1979 Hashoo requested for grant of land in lieu of cash compensation and desired that Government land of Survey No, 358/9-36 acres and Survey No, 359/1 acre in Deh Mehran be provided to it in terms of section 31(3) of the Act and recommended to Commissioner Karachi for grant of equivalent Government land measuring 10.36 acres in the above survey numbers with observation that Acquiring Authority i,e, Military Estates Officer, Karachi Circle, Karachi will however be charged for the above Government land measuring 10.36 acres proposed to be given in exchange to Hashoo at the rate of Rs,20 per Sq. Yard.
12. It is admitted before us that nobody has challenged this award and it has attained finality. It is further apparent from the record that though this award was given but it remained unimolemented until the Hashoo was allotted by the Government of Sindh, 10.36 acres of land in NC-153 Deh Mehran vide letter dated 18-7-1993 in lieu of land acquired from it and by 'cancelling the allotment of 25 acres of land leased to Modern. This was done by letter of Secretary, Government of. Sindh Land Utilization Department pursuant to order/directives of competent authority which was the Chief Minister.
13. It was argued by Mr. Khalid Anwar and so also by Mr. Ahmed Pirzada that section 31(3) of the Land Acquisition Act does not allow land compensation and in this respect Mr. Khalid Anwar also relied upon the judgment of Hon'ble Supreme Court in the case of FAISALABAD DEVELOPMENT AUTHORITY v. WA JAHANGIR NASIR and others (2004 SCMR 1247). Though such legal position as is canvassed by Mr. Khalid Anwar and so also by Mr. Ahmed Pirzada is stark on the face but the difficulty is that award never came to be challenged and has also attained finality and by the above letter dated 18-7-1993 it also seem to have been given effect by allotting the land of 10.36 acres to Hashoo by Land Utilization Department, Government of Sindh. The Government seems to have accepted its obligations to compensate Hashoo not in terms of money compensation but by way of allotting of land of similar size, which was acquired from Hashoo. The fact of making allotment of 10.36 acres of land to Hashoo is admitted in the comments of Deputy Secretary, Land Utilization-I, Board of Revenue Sindh dated 2-4-2005 so also in the comments dated 1-11-2005 of Section Officer-I of Government of Sindh, Land Utilization Department. In both the comments it is not mentioned that the land allotted to Hashoo was cancelled. However, in the comments dated 1- 11-2005 objection has been taken that alternate land cannot be granted in lieu of land acquired.
14. Before we conic to any conclusion in the case of Hashoo, the case of Modern also needs to be considered.
15. In the comments filed by the respondent Board of Revenue the fact of allotment/lease of 99 years of 25 acres of land of Modern vide order dated 13-2-1992 in NC-153, Deh Mehran is not disputed. The fact that Modern has paid the price of said land apparently is also not disputed by the Board of Revenue. Such allotment/lease is admitted to have been cancelled vide letter dated 18-74993 of the Secretary, Government of Sindh, Land Utilization Department which letter is filed by Modern with its petition as annexure '0' and it is as follows:- "No,PS/MBR(LU)/901/93 GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT CAMP AT KARACHI DATED: 18-7-1993 ' To, ' The Deputy Commissioner Karachi East.
' Subject:---ALLOTMENT OF 25-0 ACRE OF STATE LAND IN DEH MEHRAN DISTRICT KARACHI EAS- APPLICATION FROM M/S DIRECTOR MODERN -CONSTRUCTION CO. (PVT.) LTD.
' The Government of Sindh in Land Utilization Department under the order of the competent authority has been pleased to withdraw/cancel the allotment order issued vide Order No,PS/MBR(L,U.)/509/92 dated 13-3-1992 issued in favour of Director, Modern Construction (Pvt.) Ltd.
(2) The order shall take effect if there is no status quo/injunction by any Court of law about the subject matter.
(Sd.)
(Muhammad Sharit)
Secretary to Government of Sindh Land Utilization Department."
16. Perusal of above letter shows that it gives no reason for making the cancellation of allotment/lease nor the order was passed with due process of law that is providing opportunity of hearing by giving show cause notice etc. To Modern. No person is to be deprived of his property without due grocess of law and such is also enshrined in Article 24 of the Constitution as a guaranteed fundamental right. In the case of ASIF IQBAL V. KARACHI METROPOLITAN CORPORATION AND 2 OTHERS (PLD 1994 Karachi 60) a Division Bench of this Court has observed as follows:-- "The right to acquire, hold and dispose of property is a fundamental right guaranteed under Article 24 of the Constitution of the Islamic Republic of Pakistan. The petitioner had acquired a right in the said plot as he became the owner of the leasehold rights. The petitioner was the highest bidder.
The petitioner made the requisite deposit of the 25% bid money and thereafter balance bid money was deposited. The petitioner was delivered the possession of the said plot in part performance of the agreement. The lease-deed, however, has not been executed. The petitioner has acquired a right in property. This property of. The petitioner was taken away by the impugned notice/letter dated 16-10-1991 without any show-cause notice or without providing any opportunity to present his view point and without any proceeding in law. Once bid of the petitioner was accepted and acted upon by delivery of possession of the said plot, a valuable right has accrued to the petitioner.
The petitioner has in fact made constructions on the said plot after obtaining sanction of the building plans from the Karachi Building Control Authority and by spending huge amount."
17. The above order cancelling the land of Modern on its face is also arbitrary, perverse and without reason and also contrary to well enshrined principle of audi alteram partem that no person should be condemned unheard which is to be read in every statute, such an order in law cannot be sustained. Reference is made to the case of HAZARA (HILL TRACT) IMPROVEMENT TRUST THROUGH CHAIRMAN AND OTHERS V. MST. QAISRA ELAHI AND OTHERS (2005 SCMR 678) wherein the Hon'ble Supreme Court has observed as follows: "12 We have heard learned counsel for the parties and gone through the impugned judgment as well as available record carefully. The principle of natural justice enshrined in the maxim "audi alteram partem" is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings. Reference in this behalf may be made to the case of Pakistan International Airlines Corporation and others v. Nasir Jamal Malik and others 2001 SCMR 934. In this judgment it has been held that where adverse action is contemplated to be taken against the person/persons, he/they has/have a right to defend such action, notwithstanding the fact that the statute governing their rights does not contain provision of the principle of natural justice and even in absence thereof it is to be read/considered as a part of such statute in the interest of justice. It is important to note that the principle of natural justice is now made inbuilt part of civil contracts like the one under discussion. This principle originates from Islamic System of Justice as evident from historical episode when "Iblees was scolded for having misled Hazrat Adam (p.b.h.) into disobedience of Allah's command. Almighty Allah called upon Iblees to explain his conduct and after having an explanation from him which was found untenable, he was condemned and punished for all times to come". Thus, it is held that the principle of natural justice has to be applied in all kinds of proceedings. Strictly and departure therefrom would render subsequent actions illegal in the eye of law."
18 Therefore, we declare such an order to be contrary to law without lawful authority and of no legal effect and set aside the same.
19. We are cognizant that by setting aside the order of cancellation of allotment/lease of Modern, it result would be that land of 25 acres in NC-153, Deh Mehran allotted to the Modern will stand restored to it from the date of its allotment i,e, 13-3-1992 and therefore such being the legal position and as also held in case of Moulana Atta-ur-Rehman v. AlHajj Sardar Umar Farooq and others (PLD 2008 SC 663) where the Hon'ble Supreme Court has held as follows:-- "It is well settled that when the basic order is without lawful authority and void ab initio, then the entire superstructure raised thereon falls to the ground automatically as held in Yousuf Ali v.
Muhammad Aslam Zia (PLD 1958 SC 104)."
20. The allotment of 10.36 acres to Hashoo from the land of Modern will also be of no legal effect and similarly' the allotment of land to Messrs M.H. Builders, the respondent No,6 will also be of the same consequence. We may note that despite being called no one appeared from the side of respondent No, 6.
21. Net result of above discussion is that Hashoo is entitled to have the award dated 10-7-1979 of the Land Acquisition Collector enforced in accordance with law but in the light of the finding of the Modern cancellation of allotment and lease of 25 acres of land in NC-153, Deh Mehran having been set aside and such allotment being restored to Modern, 10.36 acres of land to Hashoo will automatically crumble down and ceased to be operative leaving Hashoo to claim implementation of award dated 10-7-1979 given by the Land Acquisition Collector in accordance with law. Both the petitions along with listed application in the above terms stand disposed of.