' SADIQ HUSSAIN BHATTI, J.--- The plaintiff has filed this suitfor declaration, specific performance, injunction and possession with the following prayer:- "The plaintiff respectfully submits as under:---
(1) To declare the plaintiff lawful owner of the Plot No.KK-47, Block-3, KDA Scheme No.5, (Clifton Kahkashan), Karachi.
(2) To direct the defendant to specifically perform and hand over possession of Plot No.KK-47, Block No.3, KDA Scheme No.5, (Clifton/Kahkashan) Karachi and execute lease deed as per allotment order 8-1-1984 in favour of the plaintiff.
(3) To restrain the defendant from changing the nature of the plot into Park and/or from taking reactionary steps against the plaintiff which may cause harm to the lawful title of the property of the plaintiff.
(4) Any other relief deem fit under circumstances of the case.
2. Brief facts of the case, as gleaned from the plaint, are that in the year 1984 the Karachi Development Authority allotted a Commercial Plot No. KK-47, Block 3, measuring 16.66 Sq Yards, in K.D.A Scheme No.5 (Clifton/Kahkashan) on realization of full payment. The plaintiff made the full payment of Rs.6668 by Challan No.1952 dated 5-12-1982. That during the course of time the Defendant No.1 asked the plaintiff for deposit of Non-utilization fee and the plaintiff deposited the non-utilization fee of Rs.42,858 through challan No.0079457/- dated 30-6-2002. The plaintiff asked the defendant No.1 to hand over the peaceful possession and lease of the plot but the defendant No. 1 failed to act as required under the law. The plaintiff was constrained to write in connection of possession, but the defendant No.1 failed to respond the letter. The plot is allotted by the defendant No.1 against full consideration, and on account of payment of full consideration and acceptance thereof the plaintiff have right of ownership in the plot through allotment order dated 8-1-1984. That in spite of the fact that the plot was allotted by the defendants, by receiving full payment/ consideration of the plot thereafter the non-utilization charges were also received by the defendant, the defendants have denied the peaceful possession of the plot being Plot No.KK47, Block No.3, KDA Scheme No.5, Clifton. The plaintiff learnt that the defendants are bent upon to raise boundary walls and planning to convert the plots into Park, the defendants have no right under the law to deny the lawful rights of the plaintiff, that too, when the defendant No.1, on the one hand, is receiving money and on the other is denying right of property without any lawful reason, without notice or lawful .Excuse, the conduct of the defendant is mala fide both on facts and law. That the defendant No.1 is trying to grab the land under the pretext of park on the same time the adjacent land is put to auction on minimum rate of 15 lacs of a Shop of 14 x 21 Ft. When the plaintiff came to know that the defendants are raising boundary wall and converting the plot along with other plots into park, hence this suit.
3. Summonses were issued to the defendants in response whereto, the defendant No.1 filed its written statement on 20-1-2007. The said written statement was adopted by the defendant No.2 vide statement dated 24-4-2007. Apart from the point of maintainability of the suit, the main ground taken in the written statement by the defendant No.1 was that the plot allotted to the plaintiff was part of a park/amenity plot and, therefore, was not available for commercial purposes.
Therefore, the allotment was ab initio void as amenity plot could not be used for commercial purposes.
4. Learned counsel for the plaintiff submitted that the suit plot was allotted to the plaintiff after receiving full occupancy value and even non-utilization charges were also received, therefore, the defendant No.1 was bound to hand over the possession of the plot to the plaintiff after executing lease. He stated that other shops in the vicinity were auctioned but the plaintiff has been deprived of his right in respect of the suit plot. He argued that the suit plot was duly allotted to the plaintiff and the Authority, being public authority, was bound by the limitations imposed by law. He stated that the defendants have no right under the law to convert the shop into park/amenity plot. He referred to the Karachi Development Authority Order, 1957 (Order 5 of 1957) and stated that the Governing Body was the competent authority to run the affairs of KDA. He further submitted that the Authority was not empowered to acquire private property without the consent of the owner and in case there was need for acquisition of a piece of land, the same should have been acquired after payment of compensation. He stated that the Authority was not supposed to act in arbitrary, discriminatory or capricious manner and should have given opportunity of hearing to the plaintiff before cancellation of the allotment. Finally, he submitted that the Authority was not competent to cancel the allotment of the plot after such a long time. In support of his submissions, the learned counsel relied on the following cases:
(1) Mst. Sakina Bibi and others v. Government of Pakistan and others (PLD 2008 FSC 17),
(2) Shahzad Ali v. City District Government and another (2008 M LD 782),
(3) Haji Noor Muhammad and others v. Karachi Development Authority and others (PLD 1975 Kar.
373), and
(4) Muhammad Khawaja Hassan v. Karachi Development Authority (1991 CLC 436).
5. On the other hand, the learned counsel appearing for CDGK stated that the suit plot was part and parcel of a park/amenity plot and as such was not available for allotment for commercial purposes. He stated that all plots of "KK" category are of temporary nature as "KK" means Kiosk which are not allotted for permanent periods. He submitted that the above mentioned plots were carved out on the land which meant for amenity purpose and under the rules amenity land cannot be converted/ allotted for other purpose. Therefore, it has been observed that the allotment of the said plot was improper and in violation of the order of the Caretaker/DCO, CDGK dated 2-8-2005, the allotment/transfer of the plots issued by the defunct KDA was cancelled with immediate effect.
He submitted that the allotment of the said plot in favour of the plaintiff was void ab initio and amenity plots could not be converted into commercial plots. He stated that the allotment was duly cancelled and the plaintiff was directed to seek return of his deposited amount. He also stated that the suit is not maintainable in view of sections 42 and 56 of the Specific Relief Act. He prayed for dismissal of the suit.
6. The learned counsel appearing on behalf of the State adopted the arguments advanced by counsel for the defendant No. 1 .
7. On the basis of the pleadings of the parties, the following issues were framed for determination:- -
(1) Whether the plot in question was part and parcel of the amenity plots and was wrongly allotted to the plaintiff?
(2) Whether the Caretaker/DCO, CDGK have lawful authority to cancel the Resolution No.220 dated 7-3-1982 and allotment-cumpossession order of governing Body of KDA, If not its effect?
(3) Whether the Plaintiff is entitled to possession of the plot purchased against the sale consideration No.KK-47, Block-3, KDA Scheme No.5, Clifton, Kahkashan, Karachi?
(4) What should the decree be?
8. I have heard the learned counsel for the parties, have perused the record and the case law cited before me.
9. It may be observed that the defendant No.1 was declared ex parte vide order dated 22-1-2007 but the said order was recalled and the written statement filed on behalf of the said defendant was taken on record vide order dated 16-5-2007. The evidence in the case was recorded through Commissioner who, after recording the evidence, synthesis report in respect of execution of the commission. Such evidence is available in the evidence file.
10. The first issue "whether the plot in question was part and parcel of the amenity plots and was wrongly allotted to the plaintiff'goes to the root of the matter and would decide the ultimate fate of the suit. On behalf of the defendant No.1, one Abdul Qadeer son of Abdul Qadir Solangi, Additional District Officer, CDGK, appeared as witness before the Commissioner on 31-12-2009. In his affidavit- in-evidence he stated that "That I say that the above mentioned plots were carved out on the land which is meant for amenity purpose i.e. For Park and under the law/rules amenity land cannot be allotted/granted or converted for any other purpose."On this issue, the plaintiff, during his cross- examination, stated that "It is not within my knowledge that this plot is part of the park known as "Bagh-Ibne-Qasim" which has been developed and my land has been included in this park." Thus, on the part of the defendant No.1 there is a categorical statement that the suit plot was part of a park/amenity plot while the plaintiff is not sure whether the plot allotted to him formed part of the park/amenity plot. This clearly proves that the plot was a part of the park. It has further come in the evidence of the witness of defendant No.1 that "Moreover, the plot in question of KIOSK category is allotted purely on temporary basis and the allottee cannot raise permanent structure of construction over the said plot... Otherwise the allottee is not entitled for any type of legal right over the said plot. It is further pointed out that the allottee has not been granted any lease so far in respect of the plot in question."During his cross-examination he stated that "It is not correct to suggest that the KDA never declared the plot in suit as an amenity plot.He further stated that "Originally this was an amenity plot meant for the development of parks within specific area."Therefore, throughout it has been the stand of the defendant No.1 that the suit plot was a part of the park known as "Bagh-e-Ibne Qasim" which has not been denied by the plaintiff.
11. Apart from the above, there is also another important aspect of the case. This suit was filed on 18-11-2005 while the defendant No.1 had issued a show-cause notice dated 2-8-2005 to the plaintiff for cancellation of the plot. Finally, vide letter dated 5-8-2005, allotment of the said plot was cancelled. However, none of these were challenged by the plaintiff. Even if it is assumed for the sake of arguments that the plaintiff was not aware of such show-cause notice or cancellation of the allotment of the said plot at that time, even then the said cancellation was not challenged at any subsequent date when it came to the knowledge of the plaintiff that the allotment of the said plot has been cancelled vide letter dated 5-8-2005. In fact, when the present suit was filed by the plaintiff the allotment already stood cancelled and it was not more allotted in his name.
12. It was also stated by the defendant No.1 that the said allotment in favour of the plaintiff was on temporary basis. This was denied by the plaintiff. However, perusal of the advertisement published by defendant No.1 in the daily "EXPRESS" dated 15-11-2005 copy whereof was produced by the plaintiff during his evidence, shows that the shops/parking lots were offered at the rate of Rs.1,500,000 per year. Further, one of the condition stated in the advertisement itself makes it clear that the period of lease would be 10 years only.
13. In view of the above discussion, I am of the considered view that the suit plot was a part and parcel of the amenity plot and thus it was wrongly allotted to the plaintiff for commercial purposes.
The first issue is answered in the affirmative.
14. So far as question of acquisition of the plot on payment of compensation is concerned, it may be stated that the plot was never leased in favour of the plaintiff. Even otherwise, vide letter dated 5-8-2005 even the allotment in favour of the plaintiff was cancelled in view of the fact that it was wrongly allotted to the plaintiff, as discussed above. Therefore, the plaintiff was not entitled to any compensation on account of acquisition of the suit plot. All that the plaintiff could claim in this regard was the amount deposited by him with the defendant No.
1. In the cancellation letter itself it is mentioned that the plaintiff was directed to apply for refund of the deposited amount. He may pursue his remedy in this regard.
15. In this regard the learned counsel relied on the case of Mst. Sakina Bibi (supra), wherein it was held that the State was not empowered to acquire private property without the consent of the owner and in case there was dire need for acquisition of the private property, then the government was bound to pay its compensation to its owner on market value or to provide him alternate property. This is in respect of a property which is legally owned by a person. In this case the property was not owned by the plaintiff in the sense that it was only allotted in his favour and that allotment, too, was cancelled. In fact, when the present suit was presented in Court, the allotment of the suit property in favour of the plaintiff already stood cancelled. Therefore, there was no question of acquisition of the property and payment of compensation for the same. Even otherwise the property was, as held hereinabove, part and parcel of a park/amenity plot which could not be allotted to the plaintiff for commercial purpose and any such allotment would be void and illegal.
16. In the case of Shahzad All (supra), the petitioner was in possession of the disputed property and the same was mutated in his name in the record of rights. Thus the facts of this case entirely different and are distinguishable.
17. In the case of Haji Noor Muhammad and others (supra), the Authority without giving a fair opportunity to show-cause proceeded to cancel the allotment and the High Court intervened in its constitutional jurisdiction to prevent mala fide action of the Authority. This case is also not applicable as a show-cause notice was issued and thereafter the allotment was cancelled. This cancellation was never challenged by the plaintiff before a competent forum. If the plaintiff was aggrieved that his allotment has been cancelled without any show-cause notice or without providing him an opportunity of hearing, then he should have challenged the same as soon as he came to know about such cancellation. At this juncture, it is too late in the day to challenge the cancellation of the allotment.
18. As Issues Nos.2 and 3 are interconnected, in view of my answer to issue No.1 in the affirmative, since the allotment in favour of the plaintiff has been declared to be illegal and void and it has been held that C the suit plot is part and parcel of a park/amenity plot which could not be allotted/leased for commercial purposes, I answer Issue No.2 in the affirmative and issue No.3 in the negative.
19. In view of the above discussion, I find no merit in this suit which is dismissed.