SYED HASAN AZHAR RIZVI, J.--Above numbered three Constitutional Petitions, involving similar controversy, were heard together and dismissed vide our short order dated 22-2-2011. Concise relevant facts and reasons thereof read as under:--
2. The petitioner is a company carrying on business of assembling and manufacturing of Suzuki Automatic Vehicles. In order to create foreign investment in Pakistan the petitioner entered into a joint venture agreement dated 6-6-1982 with the respondent No,3. The respondent No,1, Karachi Port Trust, in addition to the schedule 'A' of Properties appended to Karachi Port Trust Act, 1886, developed industrial posts, in which Plots Nos.16, 20 and 21, are situated at West Wharf Industrial Area Karachi and not is the part of the harbour. The Plot No,16 (measuring 17,745 square yards) was allotted for a period of 25 years to Messrs Awami Autos Limited in the year 1975 vide registered Indenture of Lease registered on 8-8-1975, Plot No,20 (measuring 24,081.08 square yards) was given to Messrs Sindh Engineering (Pvt.) Ltd./respondent No,2 and Plot No,21 to Pak Autos, Republic Motors having an option to apply for and obtain a further tenure of 25 years of lease before the present lease expires. The leases of the subject plots were expired on 31-7-1998, 31-3-1998 and 30- 9-1998 respectively. The petitioners requested the respondent No,1 to grant lease for a further period of 25 years. The petitioners further applied for the transfer of the plots in their names and for bifurcation of Plot No,16 into two plots measuring 9,525 sq. yards and 8,220 sq. yards. The respondent No,1 vide its letter dated 4-2-1995 available at, Page 313 intimated the petitioners that Plots Nos.16 and 20 West Wharf were allotted to Messrs Sindh Engineering Private Ltd. but it was learnt that these have been transferred to petitioners after privatization, as the flatter cannot took place without permission of the KPT Board in accordance with terms of lease the KPT Board in its discretion may grant the permission on such rate of rent as is applicable under the orders of the Board. I is further intimated by the respondent No,1 to the petitioners that the case will be processed for transfer on payment of minimum of Rs,1 million in advance which will be adjusted under the orders of the Board once final decision of transfer to the petitioner is conveyed. The respondent No,2 vide its letter dated 23-2-1998 approached the respondent No,1 for bifurcation of Plot No,16 in the light of the lease deed and KPT Rules. On 8-1-1998 the petitioners addressed a letter to the General Manager Civil Works of the respondent No,1/KPT available at Page 321 of the file intimated that the lease of the subject plot is due to expire on 31-7-1998 and requested for the renewal the period of lease for the Plots Nos.16 and 21 for further 25 years and had enclosed pay-orders of Rs, 4,000 i,e, Rs,2,000 each for said Plots as required for the renewal of lease. Hence these petitions have been filed by the present petitioners on 25-6-1998 more or less with the following prayers:-- "(a) to declare that the actions of the respondent No,1 are illegal, without lawful authority, mala fide and unjust;
(b) to grant declaration that the petitioner is liable to be granted the 'lease option' as exercised by the petitioner and in respect of which payments have been made of ground rent, transfer fee and etc. and to direct the respondent No,1 to accept grant of the lease in the manner and until for another tenure of 25 years of the expiry of the present tenure;
(c) to prohibit and restrain the respondent, their officers, men and persons working under them from interfering with the enjoyment of lease and possession by the respondent No,1 until expiry of the present lease on 31-7-1998 and its further extension by another tenure of 25 years in respect of Plot No,16;
(d) to grant costs to the petitioner; and
(e) to grant such other/further/ additional relief or reliefs, direction or directions, command or commands as this Hon'ble Court may deem fit/appropriate in the facts and circumstance of the case."
3. In their counter-affidavit to these petitions the respondent No,1 have strongly refuted such assertions made in the petitions and prayed that no cause of action under Article 199 of the Constitution has accrued to the petitioner therefore the petitions are liable to be dismissed. Along with the counter-affidavit the respondent No,1 has annexed various letters. On 27-10-1997 the respondent No,2 wrote a letter to the respondent No,1 available at Page 439 along with the counter- affidavit whereby it was stated that the original lease of the Plot No,16 was in the name of Awami Autos Limited, which was later approved for conversion in the nameof Sindh Engineering (Pvt.)
Ltd./respondent No,2 by the Board of KPT. Thereafter by letter dated 4-3-1998 the respondent No,2 requested the respondent No,1 for extension of lease of Plot No,16 for further period of 25 years. The respondent No,2 vide its letter dated 10-4-1999 stated that they are the original bona fide lessee, their head office and CKD Yard are located on the said premises and they requested to expedite the extension of their lease of complete Plot No,16 for further 25 years, hence by the contents of the letter of the respondent No,2 referred to above, the respondent No,2 had withdrawn the offer of transfer of the half portion of Plot No,16 to the petitioner and requested for extension of lease of the plot in their name. On 26-2-1998 the respondent No,1 had returned the pay order of Rs,4,000 dated 5-1-1998 to the petitioners, as the subject plot allotted in the name of Messrs Sindh Engineering (Pvt.) Ltd.
4. Mr. I. H. Zaidi learned counsel for the petitioners, Mr. Kazim Hassan, learned counsel for the respondent No,1 and Mr. Faisal Kamal, learned counsel for the respondents Nos.2 and 3.
5. Mr. I. H. Zaidi learned counsel for the petitioners has argued that there exist a Joint Venture Agreement between the respondent No,2 the petitioner which has been approved by the Federal Government. He further argued that the possession of the plots was given to the petitioners. He has referred to pages Nos.171, 179 and 181 of the memo of petition where the photocopy of the schedule of Plot No,16 has been
6. Mr. Kazim Hassan; learned counsel for the respondent No,1/KPT urged that the petitioner is not even a contracting party, the present petition concerns a contractual relationship and the efforts of the petitioner to obtain relief under constitutional jurisdiction is misconceived. He further objected that the name of the petitioner company has been changed from Pak Suzuki Motor Company Limited to Suzuki Motor Company Ltd. several years ago but the petitioner has filed the present petition under old name to cause confusion. He further argued that disputed questions of fact have been raised in the present petition, as such the constitutional jurisdiction of this Court is not attracted and petition suffers from jurisdictional defects. With regard to the stipulation in the joint venture agreement according to the learned counsel for the respondent No,1 the Plots Nos.16, 20 and 21 in West Wharf Industrial Area shall be made over to the joint venture company was neither discussed with respondent No,1 nor such , stipulation was included in the said agreement with the consent of the respondent No,1 . According to the learned counsel such rights as are held by a licensee can be transferred only if the transfer is permissible and in accordance with the law. Since the respondent No,1 is nova party to the joint venture agreement, therefore the respondent- No,1 is not bound in any manner by stipulation contained therein. It, is submitted by the learned counsel for the respondent No,1 that Plot No,16 West Wharf Industrial Area was granted on licence to Messrs Awami Autos Limited which later on merged into Sindh Engineering (Pvt.) Ltd. on the terms and conditions mentioned in the memorandum of agreement. The respondent No,1 remains the owner of the property in question and there is no compulsion upon respondent No,1 to renew the licence.
7. Learned counsel for the respondent No,1 has urged that no lease deed was ever executed between the respondent-No,1 and_ the petitioner and respondent No,1 and respondent No,2. The respondent No,2 was only a licensee, however, respondent No,1 had made commitment to the respondent No,2 for .grant of lease up to 31-7-1998 but no lease deed was ever executed. He has referred letters of the respondent 'No,2 dated 10-4-1999 and 4-3-1998 whereby the respondent No,2 approached the respondent No,1 for further extension of 25 years in lease. He further argued that plot was never bifurcated and the petitioner was illegally occupying the plot without having any title and lawful authority. He has also argued That the offer to transfer the subject plot in the name of the petitioner was withdrawn vide letter dated 4-11-1997 by the respondent No,1 and the amount of pay-orders received by the respondent No,1 was returned to the petitioner. With regard to the payment of RS.10,00,000 by the petitioner to the respondent No,1 learned counsel has submitted that since the respondent No,2 withdrew their offer to . transfer the half portion of Plot No,16 to the petitioner, the payment of such amount by the petitioner cannot _entitle the petitioner for the transfer of the said plot. It is further urged by the counsel for the respondent No,1 that the petitioner is not an aggrieved party having no other efficacious remedy and therefore petitioner cannot exercise the constitutional jurisdiction: It is further argued by the learned counsel for the respondent No,1 that petitioner has no privity of contract regarding the subject plot with the respondent No,1/KPT.
8. Mr. Faisal Kamal, learned counsel for the respondents Nos.2 and 3 has argued that petitioner's company has since long shifted to Pak Steel Estates in District Malir and there is no emergent nature that warrants the transfer of property in their name. He has further submitted that question of possession or a title cannot raise in writ jurisdiction. He has also referred paragraphs 6 and 9 of the counter-affidavit filed by the respondent No,1 and submitted that since disputed question of facts have been raised therefore the constitutional petition is not maintainable. Learned counsel has placed reliance upon the case of Federation of Pakistan and 2 others v. Major (Retd.)
Muhammad Sabir Khan (PLD 1991 SC 476).
9. We have carefully considered the arguments advanced by the parties' counsel and perused the material placed on record. It is. an admitted position that a memorandum of agreement dated 6- 6-1985 was executed between the respondent. No,1 and Messrs Awami Autos Limited in respect of Plot No,16 (measuring 17,745 square yards) situated at West Wharf Industrial Area, the period of lease of that plot expired admittedly on 31-7-1998. The petitioner approached the respondent No,1 for extension of lease. Besides the petitioner the respondent No,2 had approached to the respondent No,1 for the extension of the lease and submit that the respondent No,2 withdrew their offer to transfer and had informed the respondent No,1 that they had already withdrawn their offer for transfer of half portion of the Plot No,16 to Pak Suzuki Motors Company vide their letter dated 17- 4-1999 due to their own compulsion. On sale of Pak .Suzuki Motors in 1991 and get their private joint venture cease to exist. It is an admitted position that respondent No,1 allotted Plot No,16 to Messrs Awami Autos Limited which is later on merged in Messrs Sindh Engineering (Pvt.) Limited. No lease deed of the subject plot was ever executed between the respondent No,1 and the petitioner or respondent No,2. The application tiled by the petitioner for bifurcation of the plot was admittedly rejected by the respondent No,1, the pay-orders dated 5-1-1998 for Rs,4,000 was returned to the petitioner as the Plot No,16 was allotted in the name of Messrs Awami . Autos Ltd. which later on merged in Messrs Sindh Engineering (Pvt.) Ltd. It is also an admitted fact that stipulation in the joint venture agreement regarding Plots Nos.16, 20 and 21 in West Wharf Industrial Area was neither discussed with the respondent No,1 nor such stipulation was included in the said agreement with consent of the respondent No,l. The case-law cited by the learned counsel for the respondents Nos.2 and 3 is fully applicable to the case in hand, where the Hon'ble Supreme Court has held that question of title of property and possession thereof could not be resolved except through proper trial. Case involving such questions did not qualify for entertainment in the Constitutional jurisdiction by High Court. Petitioner in his own interest should have been advised to approach the other proper forum. The arguments of the learned counsel for respondents that disputed questions of facts have been raised in the present petition and as such the constitutional jurisdiction of this Court is not attracted is convincing. Since disputed questions of facts are involved in all the three petitions and the question of title of the plots and possession are disputed by the petitioner and respondent No,2, therefore the constitutional jurisdiction is not attracted in the matter.