' SADIQ HUSSAIN BHATTI, J.---The plaintiffs, Messrs Apparels (Pvt.) Limited, have filed the present suit for compensation and damages against CDGK/KMC with the following prayer:- It is therefore, most humbly prayed that this Hon'ble court may be pleased to pass judgment and decree in favour of the plaintiff' directing the defendant to pay compensation/cost of the land Rs.20,000 per sq. Yard (i. e. Market price of the land) in case they want to acquire the land of the plaintiff for widening Korangi Road.
(ii) An injunction restraining the defendant from interfering in the land of the plaintiffs or claiming his land for any purpose without making payntent/compensation to, the plaintzffs.
(iii) Cost of the suit.
(iv) Any other relief(s) this Hon'ble Court deems fit and proper in the circumstances of the case,"
2. Facts of the case, leading to the filing of the present suit, are that the plaintiffs purchased a plot of land bearing Survey No. 67, measuring two acres, situated in Nai Malir, Deh Dih, Taluka and District Karachi East from one Nafeesul Hassan through sale deed dated 2nd March, 1992 (the suit property). The suit property, along with another property owned by the present plaintiffs, was trespassed by KDA under the plea that the same was meant for a KDA park to be known as Bagh- e-Jam Sadiq Ali. The plaintiffs filed Suit No. 606 of 1992 in respect of the suit property which was contested by the then KDA, however, the suit was decreed as prayed in favour of the plaintiffs by Mr. Justice G.H. Malik (as he then was) by judgment dated 19-3-1994. The KDA assailed this judgment by filing High Court Appeals Nos. 103 and 104 of 1994. The said High Court Appeals were dismissed by a Division Bench of this Court vide order dated 15-9-1994 against which the KDA approached the Hor'ble Supreme Court by filing Civil Petition for Leave to Appeal Nos. 383-K/1994 and 384-K/1994, which were also dismissed and the judgment of the learned Single Judge was maintained. The suit property was, thereafter, sub-divided into two plots of one acre each and the newly carved plots were numbered as Plot No. 67/1 and 67/2. Plot No.67/1 was sold by the plaintiff to Messrs Shaikh Amjad Maqbool and Shaikh Mubashir Maqbool (Messrs Shaikh). KDA sent a notice to Messrs Shaikh for acquiring 1800 sq. Yards out of Plot No.67/1 for extension of road 8000. For the reason that there was indemnity clause in the sale agreement between the plaintiff and Messrs Shaikh, therefore, Messrs Shaildi filed Suit bearing No.1283 of 1999 against the plaintiffs for compensation, injunction and damages. The plaintiffs compromised this suit and in terms of the compromise compensated Messrs Shaikh by giving them 1800 sq. Yards land from their other property. The plaintiff had raised a boundary wall around Plot No. 67/2. On November, 10, 2002, KDA staff came to the said plot and demolished the boundary wall without any notice to the plaintiff and fixed its pillars with KDA inscribed on them. Thus, KDA acquired further land measuring 1321 sq.
Yards from Plot No.67/2 for extension of road. The total land taken by KDA for widening of the, road comes to 3121 sq. Yards. Since no amount was paid by KDA as compensation to the plaintiff, therefore, the present suit was filed with the above prayers.
3. In response to the summons issued to the defendant, written statement was filed by CDGK/KMC on 17-12-2003 wherein the averments made in the plaint were denied and it was stated that the suit property falls within the notified boundaries of Korangi Township and that the area is part of Na-Class 24 which duly vests in KDA/CDGK/KMC. It was further averred that the suit property is part of Bagh-e-Jam Sadiq Ali and thus falls in an amenity plot of land. It was also stated that private Survey Nos. 1 to 36, falling in Deh Dih, including Na-Class 24, were duly acquired after fulfilling all the required formalities in this regard. It was further contended that Survey No.67 falls in Deh Drigh Road and not in Deh Dih and it was due to some mistake that the said survey number was shown in Deh Dih. It was stated that no piece of land from Survey No. 67/1, Deh Drigh, Nai Malir, Karachi East was acquired and only encroachment from the road had been removed. It was further stated that the plaintiff illegally constructed the boundary wall within the portion of the land of existing Road No. 8000 (300 ft. Wide) affecting 61 feet width and the length 207 ft. Of main road leading to Korangi Industrial Area. It was finally averred that since no piece of land of the plaintiff was taken or acquired for widening of road 8000, therefore, no question of payment of compensation on market rate to the plaintiff arises.
4. On the basis of the pleadings of the parties, the following proposed issues of the plaintiff were adopted vide order dated 8-4-2004:--
(1) Whether the plaintiffs are the owners of land bearing Survey No.67, measuring 02 acres, situated in Nai Malir, Deh Dih, Taluka and District Karachi East by virtue of Conveyance Deed executed and registered on 2-3-1992?
(2) Whether the High Court in Civil Suits No.605 of 1992 and 606 of 1992, High Court Appeal No. 103 of 1994 and High Court Appeal No. 104/1994 and Supreme Court in Civil Petition for Leave to Appeal No.383-1Q95 and 384-K/95 have held that K.D.A's act on the Plot of the plaintiffs amounts to trespass of plaintiffs land?
(3) Whether the letter of the Assistant Director (U.D) of Defunct K.D.A dated 4-4-1998 declaring that no construction shall be allowed within 40 feet wide service road, along Korangi road 8,000 is illegal?
(4) Whether K.D.A. Has to pay compensation to the plaintiff on the market value of the land i.e. 20,000 per sq. Yard for acquiring their land for the purpose of road widening?
(5) What should the judgment and decree be?
5. The plaintiffs examined Kaiser Rafiq Khan, a Director of the plaintiff-Company, as their witness, who filed Affidavit-in-evidence as Exh. P/2. He produced documents as Exh. P/3 to Exh. P/34. He was also cross-examined by counsel for the defendant. On behalf of the defendant, Mr. Jabbar Mangi son of Shah Dino, Additional District Officer, Korangi was examined. He produced his Affidavitin- Evidence as Exh. D/1 and also produced some other documents as Exh. D/2 and D/3 as well as X-1 to X-10. Thereafter, the matter was fixed for final arguments.
6. I have heard the learned counsel for the parties and have perused the record and my findings on the above issues are as under.
7. Issue No.1: This issue relates to the ownership of Survey No.67, measuring two acres, situated in Nai Malir, Deh Dih, Taluka and District Karachi East. On this regard reference may be made to the Judgment dated 27-4-1994 delivered by a learned Single Judge of this Court in Suits No. 605 and 606 of 1992. Suit No. 605 of 1992 was filed in respect of Survey No. 69, measuring one acre, situated in Nai Malir, Deh Dih, Tappo Ibrahim Hyderi, Karachi while Suit No. 606 of 1992 was in respect of Survey No. 67, measuring two acres, situated in Nai Matir, Deh 01, Karachi i.e. The property which is the subject-matter of this suit. These two suits were disposed of by the above judgment dated 27- 4-1994. Issue No.1 in these two suits was as under:- "Whether the plaintiffs are the owners, and in possession, of the two plots of land in question?"
8. Thus, the issue No.1 in this suit as well as Issue No. 1 in those consolidated suits was the same. The learned Single Judge, after discussing a number of documents produced before and the pleas raised by the respective counsel of the parties, decided the said issue in the following terms:-- "The answer to the first issue, therefore, is that the plaintiffs are owners, in possession, of the two plots of land in question in this suit [these suits]'
8. Feeling aggrieved by the above Judgment in the two suits, KDA tiled High Court Appeals Nos.103 of 1994 and 104 of 1994. A Division Bench of this Court heard the same on 15-9-1994 and dismissed them in limine, The main contention of the learned counsel for the appellant in these two HCAs was that by virtue of Notification dated 3-3-1959, issued under Article 12 of the Karachi Development Authority Order, 1957, the area mentioned therein, including the above survey numbers, was declared to be a controlled area and consequently the land had been placed at the disposal of the appellant/ KDA. It was further argued that the land in question had been transferred and included in Korangi Township by virtue of Notification dated 3-3-1959 and, as such, no allotment could be legally made to any person. The learned. Division Bench observed that these contentions were also raised before the learned Single Judge but othe learned Single Judge was not impressed by the same and the suits were decreed. The learned Division Bench finally held that the findings arrived at by, the learned Single Judge are not open to exception as the language of the Notification does not indicate that ownership rights had been conferred upon the appellants (defendant herein) in respect of the said plots.
10. The KDA, feeling aggrieved by the judgment of the Division Bench dated 15-9-1994 passed in the above two High Court Appeals, approached the Hon'ble apex Court by filing Civil Petitions for Leave to Appeal No. 383-K of 1994 and 384-K of 1994. A Division Bench, headed by the then Hon'ble Chief Justice of Pakistan heard these C.P.L.As. And dismissed the same by refusing to grant leave to appeal vide judgment dated 5-91995. Para 10 of the said judgment reads as under:-- "10. For the facts and reasons stated above, we are of the view that KDA has failed to furnish proof that it is the owner of the disputed plots. In the result, leave is refused and these petitions, which have no merits, are hereby dismissed."
11. In view of the above, there is no doubt that the plaintiffs are the owners of the suit property. Since this issue has been decided in favour of the plaintiffs upto the level of the Hon'ble Supreme Court of Pakistan, I have no option but to follow the same. I accordingly answer Issue No.1 in the affirmative by holding that the plaintiffs were the owners of the suit property.
12. Issue No. 2: This issue is with regard to the act of KDA and as to whether the same was held to be trespass in the above proceedings. In the earlier Suits No.605 and 606 of 1992, Issue No. .3 was as under: "3. Whether the defendant No.1 trespassed upon the said plots of land placing thereon a notice board stating that they were required for establishing a park thereon?"
13. This issue was decided by the learned single Judge in the following manner in favour of the plaintiffs:- "ISSUE NO.3. It is an admitted position that KDA had placed its notice board on the plots in question stating that they were required for establishment of Jam Sadiq Ali Park. Such act on its part amounts to trespass on the plaintiffs.' land."
14. This finding was also upheld by a Division Bench of this Court as well as by a Division Bench of the Hon`ble Supreme Court of Pakistan, as stated above. Thus, issue No.2 is also answered in affirmative.
15. Issue No.3: This issue is with regard to the letter dated 4-4-1998, addressed by Assistant Director (U.D), KDA to Controller of Buildings (ET-1), KBCA, whereby no objection was conveyed from planning' point of view for a show room with condition that no construction shall be allowed within 40 feet wide service road along Korangi Road right of way i.e. Korangi Road 8000. The plaintiff has challenged the legality of the condition that no construction shall be allowed within 40 feet wide service road along Korangi Road right of way i.e. Korangi Road 8000. However, this very letter has not been produced during evidence by any party. Therefore, it cannot be ascertained whether the condition was imposed by the said Assistant Director himself or it was imposed under some law/rule and it was only so communicated by him. If the condition was imposed by the said Assistant Director himself then it has no legal basis and is not binding. However, if such restriction has been imposed under some law/rule, then the same is to be strictly adhered to. However, neither this letter has been produced in evidence nor any prayer is made in respect thereof, therefore, with the above observation, I refrain from giving any answer to the issue.
16. It is a trite law that no private land could be utilized for any public purpose without acquiring the same under the relevant law. Reference in this, regard may be made to the Land Acquisition Act, 1894 the main purpose whereof was to provide complete indemnity to owners and not to allow acquisition of land without proper and adequate compensation. Since .I have already held, on the basis of the finding of the Honible Supreme Court in the earlier litigation between the parties, that the plaintiffs are the owners of the suit property, therefore, it is imperative that compensation has to be paid to the plaintiffs if the said land or any portion thereof is to be acquired for any public purpose and there is also no doubt that it should be on the market value. But what is the market value is a moot question. I was surprised to note that the witness of the defendant during his cross- examination stated that the value of the land is Rs.150,000 to Rs.200,000 per sq. Yard. On what basis he has made such statement is not clear. It seems that he was not at all interested in safeguarding the government interest, It is also worthwhile to note that while the plaintiffs claimed compensation at the rate of Rs.20,000 per sq. Yard but perusal of the record shows that the plaintiffs themselves offered Rs.15,000 as compensation to Messrs Shaikh. Therefore, the compensation to be paid to the plaintiffs should be determined under the Land Acquisition Act.
17. From the language of the prayer clause it is not clear whether any portion of the plaintiffs' lad has been acquired for widening of the road. The prayer clause relevant for this purpose is again reproduced below:-- "It therefore, most humbly prayed that this Hon'ble Court may be pleased to pass judgment and decree in favour of the plaintiff directing the defendant to pay compensation/cost of the land @ Rs.20,000 per sq. Yard (i.e. Market price of the land) in case they want to acquire the land of the plaintiff ,for widening Korangi Road." (emphasis supplied).
18. The witness of the defendant stated that "It is correct that 3121 square yards land is being requisitioned for the purpose of broadening the road" However, during cross-examination it was put to the said witness that presently the land is not required for future planning. CDGK/KDA can utilize the this land for further widening the road or for any other purpose. This suggestion was answered in he affirmative by the witness. Thus it seems that the land of the plaintiffs has not been used for widening of the road. Therefore, it is directed that the plaintiffs would be only entitled to compensation in respect of the land actually used in widening of the road. Thus, the area of land of the plaintiffs used in the widening of the road and the rate of compensation both are to be determined first before payment of compensation. Therefore, in case any portion of the land of the plaintiffs is acquired or used for widening of the road, then the plaintiffs would be entitled to receive compensation for the same at the rate to be determined according to law. I answer this issue accordingly.
19. Issue No.5. In view of my above findings, the suit is decreed as prayed subject to above observations.