1. SYED SAEEDUDDIN NASIR, J.---The controversy in this suit is with regard to a plot bearing No.75, measuring 2000 square yards, situated at 29th Street, Phase-VI, Defence Housing Authority, Karachi, (hereinafter referred to as the "suit plot"), having acquired by the plaintiff from the defendant in a draw.
2. The case of the plaintiff is that he was an employee of Pakistan Air Force (PAF). Having completed his service, the plaintiff was retired in 1964 as Squadron leader. Being an officer of PAF, the plaintiff participated in a draw of plot being carried out by the defendant and became successful. The defendant by its letter dated 14.07.1970 informed the plaintiff about such success and was asked to deposit Rs.3,700/- towards total charges while the development charges were required to be paid at the time of allotment. Subsequently, the defendant by its letter dated 09.03.1971 allotted the suit plot to the plaintiff. The plaintiff paid the requisite charges to the defendant and applied for registration of A-lease in 2003, but he was informed that the suit plot has been declared as abandoned property in 1975 because the fact that the plaintiff hails from East Pakistan and has ceased to be the citizen of Pakistan after 16.12.1971. He was also informed that the Abandoned Property Board de-notified all the properties, including the suit plot, which come under the defendant DHA and handed over possession of the same to defendant. The plaintiff then approached the defendant and pursued his case that neither he comes within the meaning of "specific person" nor his plot can be declared as abandoned property and despite that fact defendant placed the suit plot in auction list by treating the same as cancelled upon its return from the Abandoned Properties Organization. The plaintiff claimed that he is a Pakistani citizen and drawing pension from PAF, and that he also worked in PIA after his retirement from PAF till 1974, but on account of wrong information being conveyed by the defendant to the government, his plot was cancelled and included in the list of abandoned properties, but such information was never conveyed to him. Hence, cancellation of his plot and/or its inclusion in the list of abandoned properties is illegal and unlawful. The plaintiff seeks following relief(s) in the prayer clause of the present suit:- (i)"declare that the plaintiff never ceased to be a citizen of Pakistan and submission of its plot by the defendant to the Abandoned Properties Board was mala fide and contrary to law; (ii)declare that the plaintiff is entitled to the Plot No.75, 29th Street, Phase-6, measuring 2000 square yards and the defendant has no lawful authority to cancel or auction list.
(tit) the defendant to handover the plot to the plaintiff and execute necessary lease and documents in his favour and in its failure the Nazir may carry out the order.
2. (iv)the defendant may be restrained permanently from placing the above plot in auction or creating third party interest.
3. (v)any other order or relief to which the plaintiff is entitled to may also be granted".
4. 3.The defendant contested the suit and filed its written statement. The main reason for denying the claim of the plaintiff, as pleaded in the written statement, was that the plaintiff committed default in the payment of dues in respect of the plot allotted to him, therefore, the Society cancelled the plot under clause 54(q) of the Bye-laws of Pakistan Defence Officers Cooperative Housing Society Limited, and as the plaintiff originally belongs to East Pakistan, the cancelled plot was placed in the list of abandoned properties. The defendant further stated that the plaintiff never approached it to justify the default in the payment of dues in respect of the suit plot; on the contrary he was insisting that having Pakistani nationality his plot should not have been placed in the list of abandoned properties. The suit plot was cancelled about 30 years back under the existing rules; hence the claim of the plaintiff is not justified and liable to be declined.
5. 4.The pleadings of the parties led to framing of the following issues by the Court on 26.02.2007:-
1. Whether the defendant gave notice of cancellation of allotment of suit property to plaintiff and whether it was served on him?
6. 2.Whether the defendant had authority in law to cancel the allotment of suit property?
7. 3.To what relief, if any, plaintiff is entitled to?
8. 4.What should the decree be?
9. 5.In support of their respective claims, the parties led their evidence. It may be mentioned here to set the record straight that the plaintiff Nizam Ahmed Chaudhry, who filed the instant suit himself on 01-08-2003 expired on 01-07-2009 during the pendency of this suit. The widow of the plaintiff Ms. Nasima Khan executed Special Power of Attorney dated 03.06.2013 in Dhaka, Bangladesh in favour of the Maj. (Retd.) Akber Hameed Lodhi, and thereafter, upon an application under Order XXII, Rule 3, C.P.C. being C.M.A No.8595/13 being made by the said duly constituted attorney of the widow of the plaintiff, this court vide order dated 22-05-2014 brought her on record as the sole surviving legal heir of plaintiff, and amended title of the suit was consequently filed and the instant suit proceeded through her aforesaid attorney, who has filed his affidavit-in-evidence as Attorney of the said legal heir of the plaintiff, who produced Exhibits 4/B to D/1 along with the same. The plaintiff's attorney maintained the same facts in the affidavit-in-evidence as asserted in the plaint.
10. He produced affidavit-in-evidence as Exhibit 4/B, original handwritten deposition is available on the evidence file as Exh.4, he produced special power of attorney as Exh.4/A, photocopy of the NIC and computerized CNIC as Exh.A, photocopy of letter of pension dated 22.05.1972 as Exh.B, photocopy of letter dated 14.07.1970 as Exh.C, photocopy of allotment order dated 09.03.1971 as Exh.D, photocopy of notification dated 29.07.2000 as Exh.E, photocopy of notification dated 03.12.2000 as Exh.F, photocopy of reply of notice dated 07/09.03.1971 as Exh.G, photocopy of letter of Administrative Officer dated 13.10.1970 as Exh.H, photocopy of Mosque Fund Payment receipt as Exh.I, photocopy of Payment receipt dated 26.01.1971 and receipt dated 24.07.1968 as Exh.J, photocopy of Form of application for allotment dated 04.07.1968 as Exh.5A, photocopy of changed address as Exh.5B, photocopy of application of the plaintiff as Exh.5C, photocopy of letter/reply dated 13.10.1970 as Exh.5D, photocopy of plaintiff's application as Exh.5E, photocopy of details of dues on 11.02.1973 as Exh.5F, photocopy of cancellation of plot dated 16.03.1973 as Exh.5G, photocopy of Mrs. Barbel Anderson's letter dated 16.02.1973 as Exh.5H, photocopy of affidavit of Nizam A.
11. Chaudhry dated 12.05.1971 as Exh.5I, photocopy of special power of attorney, photocopy of application of the plaintiff as Exh.5J, photocopy of sale agreement dated 26.07.2003 as Exh.5K, photocopy of Payment receipt dated 31.07.2003 as Exh.5L, photocopy of application of Major Akbar H. Lodhi dated 18.07.2008 as Exh.5M, photocopy of letter of DHA dated 22.08.2008 as Exh.5N, photocopy of affidavit-in-evidence of DW Anwar Khan as Exh.D/3, photocopy of letter of authority dated 17.07.2009 as Exh.D/2, photocopy of letter to H.R. Chagla dated 17.12.1995 as Exh.D/4, photocopy of original handwritten deposition of DW-1 Anwar Khan as Exh.D/1, typed copy of plaintiff's and defendant's depositions.
6. The plaintiff's attorney was cross-examined by Mr. Munawar Malik, the learned counsel for the defendant wherein he has stated in response to several questions put to him as under, the evidence is reproduced verbatim as recorded by the learned commissioner for recording evidence: Q: Are you aware of application dated 04.07.1968?
12. Ans: Yes. I know about the application. Original seen and photocopy kept on record as Exh.5.
13. Q: The address on the application is appearing?
14. Ans: Yes. The address of the applicant permanent and present address is written therein.
15. Q: The plaintiff apprised of his change of address?
16. Ans: Yes. The plaintiff submitted his address as appearing in Exh.5-B. Photocopy kept on record.
17. Q: On 08.10.1070, plaintiff wrote a letter to DHA for fresh address?
18. Ans: Yes. Plaintiff did so, photocopy kept on record as Exh.5/G. Q: The defendant has replied to the plaintiff?
19. Ans. Yes. The reply was given by DHA and photocopy of reply kept on record.
20. Q: Is it correct that on 31.12.1970, plaintiff wrote a letter to DHA?
21. Ans: Yes. The plaintiff wrote a letter on that date and produced it as Exh.5E, photocopy kept on record.
22. Q: The statement of dues given to the plaintiff?
23. Ans: Yes. Statement dated 11.03.1973 was given, photocopy kept on record Exh.5F.
24. Q: The plaintiff shifted from Pakistan in 1973? Ans: It is not correct he shifted in 1975.
25. Q: Is it correct that letter dated 16/17.03.1973 for correction was issued?
26. Ans: The letter was not received by the plaintiff, photocopy kept on record as Exh.5G as "C".
27. Q: Since when you know the plaintiff?
28. Ans: I know him since 1995-96 and he was an Air force Service man and he had retired in the year 1964 and joined PIA wherefrom left the PIA in the year 1973 and shifted to Germany and married German lady, her name was Barbel Anderson and settled there, the plot in suit was gifted to her by written document dated 12.05.1971 and produce photocopy as Exh.51 along with letter addressed to DHA as Exh.5H.
29. Q: Is it correct that you preferred an application on 16.07.2008?
30. Ans: I did prefer application to the Lt. Gen. Ahsan Azhar along with applied documents for transfer of the plot but the same was deferred as the litigation was pending in the Court. I produce the photocopy of the application along with annexures 5J, 5K, 5L, and 5N as photocopies.
31. Q: Is it correct by omission and mistake the notification dated 03.10.1975, the plot in suit was declared as abandoned property?
32. Ans: It is incorrect.
33. Q: Is it correct that plot in suit was already cancelled due to non-payment and default?
34. Ans: It is incorrect, we or plaintiff did ever receive any notice for cancellation nor show cause notice for the alleged default. We came to know about cancellation before filing of the present suit and the reason was disclosed to be non-payment.
35. Q: Is it correct that you did not challenge the said ground of cancellation?
36. Ans: Yes. It is so; the witness voluntarily states that DHA had written a letter to the Air Headquarters Peshawar on the address not given by the plaintiff.
37. Q: You did not file the suit against the DHA for specific performance?
38. Ans: Yes. I did not file suit against the plaintiff.
39. 7.On behalf of defendant, Anwar Khan, Office Superintendent, Town Planning and Building Control Department, filed his affidavit-inevidence as witness of the defendant as Exh.D/3, who produced Exhibits D/1 to D/4. The defendant's witness maintained the same facts as in the affidavit-in- evidence and as asserted in the written statement. He produced affidavit-in-evidence as Exhibit D/3, original handwritten deposition is available as Exh.D/1, he produced photocopy of letter of authority as Exh.D/2, photocopy of letter addressed to H.R. Chagla dated 17.12.1995 as Exh.D/4.
40. 8.The defendant's witness was cross-examined by Mr. Akbar Hameed Lodhi, attorney of the plaintiff as well as by the plaintiff's counsel, wherein he has stated in response to several questions put to him as under, the evidence is reproduced verbatim as recorded by the learned commissioner for recording evidence: Q: Had the plaintiff been served with any notice under bye-law No.54 (G) before cancellation of his allotted plot?
41. Ans: Notices for recovery of dues were issued and served to the plaintiff Q: The details given in para-4 of the affidavit-in-evidence were not demanded on the prescribed form as notice?
42. Ans: At the relevant time in the year 1973, the practice was not followed to issue notices on prescribed form.
43. Q: In the year 1973, the notices were being issued on the cyclostyled prescribed form containing the details of the dues etc.?
44. Ans: It is not correct.
45. Q: The plaintiff was not served with the notice on his place of residence and only Air Headquarter address of office mentioned?
46. Ans: At the relevant time, the plaintiff being originated from East Pakistan, therefore, the Peshawar Base maintaining the proper addresses and record was approached.
47. Q: What is done in the office of DHA with undelivered letters from the allottees?
48. Ans: On receiving of undelivered or any letter written to the DHA is tagged and filed in the allottees file or kept on record.
49. Q: Witness confronted with a letter No.P&D/AF-5820 dated 17.12.1995. Do you acknowledge this letter to be originated from the DHA Karachi issued by Abdul Qadoos Khan, Director P and Design?
50. Ans: Yes. It is the reply of the letter and issued from DHA addressed to the H.R. Chagla, photocopy of letter is kept on record as Exh.D/4, original returned.
9. The learned counsel for the plaintiff Mr. Shabbir Ahmed Sheikh while arguing his case has mainly relied upon the contents of the plaint, affidavit-in-evidence filed by the attorney of the plaintiff as PW and the deposition of PW, however, he has inter alia contended that the plaintiff Nizam Ahmed Chaudhry is a citizen of Pakistan and held NIC No.510- 31-115896 issued to him on 10.05.1975 and, after expiry of the same the Govt. of Pakistan, NADRA issued a fresh CNIC bearing No.42201- 6291368-7 to the plaintiff on 09.07.2004, copies of which have been exhibited by the witness of the plaintiff as Exh.A; that the plaintiff served in Pakistan Air Force as Squadron Leader and retired in the year 1964 after which his pension was also transferred to Karachi station in 1972 as he was resident of Karachi; that the plaintiff joined PIA as captain where he worked as captain up to 1974, and then he went to Germany where he married a woman namely Barbel Anderson and resided there for a long period of time, the pension of the plaintiff was transferred vide letter dated 22.03.1972 which is exhibited as "B"; that by virtue of his service as an officer of the rank of Squadron Leader in the Armed Forces of Pakistan the plaintiff participated in the draw of plots announced by the DHA and turned out to be successful in acquiring plot No.75, 29th Street, Phase-VI, measuring 2000 square yards allotted to the plaintiff vide letter dated 14.07.1970, whereby the plaintiff was called upon to pay Rs.3,700/- as the recoverable charges immediately, while development charges were to be paid at the time of allotment; that vide letter dated 09.03.1971 the aforesaid plot of land was allotted to the, plaintiff, wherein it is mentioned that "prior to commencement of construction of the house, it is necessary to get "A" lease registered in allottee's name by clearing all the outstanding dues and by getting building plan approved by the society; that the plaintiff did not raise any construction, therefore, no payment in terms of allotment was required nor did the plaintiff receive any letter or demand from the defendant in respect of any charges, however, the plaintiff made payment to the defendant as required in the letter dated 04.07.1970; that in the month of July, 2003, when the plaintiff visited the office of the defendant and inquired about the formalities for the execution of 'A' lease, he was informed that the plaintiff's plot has been declared as an abandoned property in 1975 and was taken over in control by the Abandoned Properties Organization for the reason that the plaintiff hails from East Pakistan and has ceased to be a citizen of Pakistan after 16.12.1971, however, the plaintiff was further told by the defendant that his plot was with the Administrator Abandoned Properties Organization, but since all the properties belonging to specified persons situated in DHA have been de-notified, therefore, the same have been reverted back by the Abandoned Properties Board to DHA and now the DHA will decide the cases, and in case of absence of any claim from anywhere, the same will be auctioned; that the plaintiff tried to pursue the defendant that neither the plaintiff falls within the meaning of specified person as contemplated by Section 2(f) of the Abandoned Properties (Taking Over and Management) Act, 1975 nor his plot can be declared as abandoned property under the said Act; that the defendant without providing any opportunity for hearing to the plaintiff has treated the plot as cancelled; that the defendant without proper knowledge with regard to the status of the plaintiff, misinformed the Government of Pakistan and illegally caused inclusion of the said plot of the plaintiff in the list of abandoned properties; that as stated above, the plaintiff is a citizen of Pakistan and was issued NIC and the CNIC as aforesaid, therefore, the plaintiff's plot should not have been treated as an abandoned property and if the auction of the same is effected, as such, it shall be a nullity in the eyes of law; that it is also on the record of the defendant that the plaintiff was a tenant in respect of another property bearing No.13-B, First Street, Phase-I, which was sold in 1974 which shows that the plaintiff was present in Pakistan; that the plaintiff's employment with the PIA as its captain is also a matter of government record and in these circumstances it cannot be presumed that after 16.12.1971 the plaintiff ceased to be a citizen of Pakistan; that since the plaintiff was away from Pakistan from 1974 for a long duration, therefore, he could not know about inclusion of his property in the list of abandoned properties without notice to him nor did the defendant informed the plaintiff with regard to such fact nor was it published in the newspaper; that after issuance of de- notification under section 28 of Abandoned Properties (Taking Over and Management) Act, 1975 vide notification dated 29.07.2000, all the properties located in the defendant's area and belonging to it have been released from the abandoned properties pool vide notification dated 03.10.2000 and have been handed over to it for deciding the cases each on their respective merits, however, the plaintiff was never provided any opportunity of being heard as provided to other affected persons whereas in some cases the defendant has accepted the claim and handed over their respective properties to them; that the defendant has received payment in respect of the suit plot from the plaintiff and issued allotment thereof in favour of the plaintiff 30 years back which is still intact, therefore, the defendant cannot cancel or auction the plot without thorough consideration on his claim; that the defendant could only cancel the plot by a resolution passed by the Managing Committee of the society, which is duly convened in accordance with the bye-laws of the society and that also only if there is a violation of terms and conditions of the allotment or where some justified dues have not been paid after being demanded from the allottee whereas in the case of the plaintiff there are no outstanding dues nor any demand has been raised for the same, no illegality in the allotment of plot of the plaintiff in violation of terms and conditions have occasioned, therefore, canceling or auctioning the plot in question is illegal and that is also without any show cause notice to the plaintiff; that the defendant did not comply with the provision contemplated by the Byelaw No.55(G) of Defence Officers Housing Society while allegedly cancelling the plot of the plaintiff, therefore, the alleged cancellation is void ab initio and is of no legal effect. He lastly contends that the Power of Attorney dated 03.06.2013 executed by the widow of the plaintiff in Dhaka is a genuine and valid document and presumption as to authenticity and genuineness of Power of Attorney has been given under the provision of Article 95 of Qanun-e- Shahadat Order, 1984 which contemplates that every document purporting to be a power of attorney and which has been executed before and authenticated by a Notary Public or any Court, Judge, Magistrate or a Council General represented a Federal Government was so executed and authenticated.
51. 10.The learned counsel for the plaintiff in support of his argument has placed reliance on the cases of (1) Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi reported in 2008 SCMR 611 (2) Mrs. Rosh Nak Nawab v. The Administrator Abandoned Properties Organization and 2 others reported in 1989 CLC 800 Karachi and (3) ANZ Grindlays Bank Limited v. Saadi Cement Company Limited and 2 others reported in PLD 2001 Karachi 143.
52. 11.In the first case relied by the learned, counsel for the plaintiff, reported in 2008 SCMR 611 it is held by the Hon'ble Supreme Court that "Mere execution of 'A' Lease in favour of allottee in respect of the plot is not sufficient to create or convey any vested legal right in favour of the petitioner considering that very basis of allotment in favour of the petitioner by the Managing Committee of the dissolved society whose meeting was not held according to bye-laws."
53. 12.In the next case reported in 1989 CLC 800 relied upon by the learned counsel for the plaintiff, in which I myself appeared as the counsel of the petitioner, it was held that "all the abandoned properties shall vest and shall be deemed always to have vested in the federal government on and from the sixteen day of December, 1971 under section 3 of the Abandoned Properties (Taking Over and Management) Act, 1975."
54. 13.In the third case reported in PLD 2001 Karachi 143 relied upon by the learned counsel for the plaintiff, it was held that "under Article 95 of Qanun-e-Shahadat Order, 1984 the Court shall presume that a power of attorney which was so attested and authenticated before a Notary Public as valid and effective." The provision is mandatory and it is opened to the Court to presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfilled. It may further be pointed out that under Article 95 of the Qanun-e-Shahadat Order, 1984 the Court shall take judicial notice, inter alia, of all seals of Notary Public. At the end of his argument, the learned counsel submits that the suit is liable to be decreed as prayed.
14. While controverting the arguments of the plaintiff, the learned counsel for the defendant, Mr. Munawar Malik advocate has mainly relied upon the contents of the written statement filed by the defendant and the legal and factual pleas taken by it therein. However, briefly arguing on behalf of the defendant, the learned counsel has inter alia submitted that when the plaintiff applied for allotment of a plot in Defence Housing Authority vide his application dated 04.07.1968, which is Exh.5 to his affidavit-in-evidence, he mentioned his permanent address as Dacca, East Pakistan; that vide letter dated 07.10.1970 (Exh.5/B) plaintiff personally visited the office of the defendant and intimated about change of his temporary address at Karachi, which was situated quite near to the defendant's office; that vide letter dated 14.07.1970 the defendant informed the plaintiff that pursuant to draw held on 28.06.1970 the suit plot was allotted to him and the plaintiff was asked to clear the dues vide letter dated 17.07.1970 and on 08.10.1970 per Exh.5/C the plaintiff requested for time to clear the dues, however, the plaintiff sent a cheque of Rs.300/- towards mosque fund per Exh.4/J; that vide letter dated 13.10.1970 (Exh.5/D), the plaintiff was given further time to 31.12.1970 as last and final extension and vide letter dated 31.12.1970 (Exh.5/E) the plaintiff again requested for further time to clear the dues and assured to clear all the dues by 21.01.1971; that on 26.01.1971 the plaintiff only paid Rs.3,405.00 Rs.2000/- premium, Rs.200/- mosque fund and Rs.200/- towards ground rent whereas the plaintiff did not pay (i) increased development charges Rs.8,000/- (2) previous balance Rs.1,000/- (iii) ground rent Rs.400/- (iv) documents Rs.10/-, total amount to Rs.9410/-; that on the basis of part payment of dues as aforesaid, the plaintiff was issued allotment order on 09.03.1971 through which the plaintiff was directed to clear all the outstanding dues, however, the plaintiff not only failed to clear the dues but also shifted from Karachi without intimating the defendant about his changed address and vide letter dated 11.03.1973 E(Exh.5/F) the matter was put before the Managing Committee of the society under Clause 54(G) of Societies Byelaws for consideration and orders, upon which the Managing Committee cancelled the allotment of the subject plot and since the plaintiff had shifted from Karachi without any intimation to the defendant letter (Exh.5/G) was sent to his last known address and Air Headquarter Peshawar; that in 1975 about one 124 plots, which were in the names of East Pakistani Serving Officers in the Defence Housing Society record were taken over by the Abandoned Properties Organization and inadvertently the suit plot was also included in the list of the abandoned properties because the list was prepared on the basis of original allotments wherein the address of the plaintiff was mentioned of East. Pakistan; that vide application dated 16.02.1995, Mrs. Barbel Anderson, ex-wife of the plaintiff requested the defendant to mutate the said plot in her name on the basis of affidavit dated 12.05.1971, however mutation was refused for the reason of cancellation of plot mentioned hereinabove. Infact, she had sold the plot to one Mr. Rahim Ali Chagla, who personally appeared on her behalf and requested for mutation; that vide notification dated 9.07.2000 Govt. of Pakistan exempted all the land belonging to Defence Housing Society from operation of the provision of the Abandoned Properties (Taking Over and Management) Act, 1975, this prompted the plaintiff and he approached the defendant after 30 years upon which he was informed that the subject plot was cancelled for non-payment of dues, after which he filed the present suit, and at the same time, the plaintiff sold it to Major (Retd.) Akbar Hameed Lodhi, who obtained from him special power of attorney, sale agreement and payment receipt, all these documents were executed on 31.07.2003 and have already been exhibited through Mr. Lodhi, the attorney of the plaintiff although the plaintiff suppressed this fact of sale from this Court. These documents were sent by Mr. Lodhi to Lt. Gen. Ahsan Azhar Hayat, Commander, 5-Corp and President of Defence Housing Authority through his application dated 16.02.2008 which was forwarded to the Administrator of Defence Housing Authority and the same was replied to Mr. Lodhi on 06.05.2008; that instant suit is hopelessly time barred as it has been filed after 30 years of cancellation; that the suit as framed is not maintainable because the plaintiff has not changed the cancellation on the basis of non-payment of dues although the plaintiff was fully aware of the fact that subject plot was cancelled in 1973 for the non-payment of dues, this fact is mentioned in the prayer clause of the written statement filed by Defence Housing Authority in January, 2004. On 02.08.2005 the plaintiff was permitted to amend his plaint upon which he filed the amended plaint in August, 2005, however, he still did not challenge the cancellation on the basis of non-payment of the dues.
15. I have heard the arguments of the learned counsel for the parties at length, perused the pleadings of the parties carefully, examined the evidence available on the record of the case and the case law relied upon with their able assistance after which my findings on the issues framed in the suit are as under: ISSUE NO.1 Whether the defendant gave notice of cancellation of allotment of suit property to the plaintiff and whether it was served on him?
16. It is the case of the plaintiff that the plaintiff was residing at 13-B, First East Street, Defence Housing Authority, Karachi and the defendant was addressing all the correspondence in respect of the suit plot with the plaintiff on the said address, even in the allotment order dated 09.03.1971 (Exh.D) the address of the plaintiff is mentioned as 13-B, First East Street, Defence Housing Authority, Karachi. The plaintiff vide letter dated 07.10.1970 had also intimated the Defence Housing Society, Karachi, which is exhibited by the plaintiff as Exh.5/B, the aforesaid address with the title "CHANGE of Address", however, the defendant, when allegedly cancelled the suit plot, it sent the notice of cancellation dated 16/17.03.1973 to the previous address of the plaintiff i.e. "Air Headquarter, Personnel Directorate, Peshawar", which is exhibited by the plaintiff as Exh.5/G. In the affidavit-in- evidence, the attorney of the plaintiff has categorically stated in para-11 that it is matter of record of the defendant that the plaintiff was tenant of another property bearing No.13-B, First Street, Phase-I, DHA, Karachi which, was sold in 1974, which fact shows that the plaintiff was residing therein and was very much in Pakistan atl the relevant time. The plaintiff has produced Exh.B, which is letter dated 22.03.1972 from A.T.R. Headquarters Peshawar sent by Assistant Chief of Air Staff (Admn.) at the aforesaid address of the plaintiff, which means that admittedly the plaintiff was residing at the said address till 22.03.1972 and may be beyond that. The photocopy of National Identity Card issued on 10.05.1975, which has been exhibited by the plaintiff as Exh.A shows the aforesaid address of the plaintiff i.e. 13-B, First East Street, Defence Housing Authority. This evidence of the plaintiff remained unshaken and un-rebutted in the cross-examination by the defendant, therefore, upon perusal of the aforesaid evidence I am of the view that the defendant was very well aware of the aforesaid address of the plaintiff, which was very much on record of the defendant, however, in order to deprive the plaintiff of his plot of land, the defendant deliberately sent the notice of cancellation of the suit plot to the plaintiff's Peshawar address, from where he had retired long ago and the fact of his retirement was also well within the knowledge of the defendant. It is an admitted position that indeed even in the allotment order dated 09.03.1971, the address of the plaintiff is mentioned as 13-B, First East Street, Defence Housing Authority, Karachi, (Exh.D) which was issued by the defendant to the plaintiff at the time of allotment of the suit plot. In view of this, it can rightly be said that it was not fair on the part of the defendant to send the notice of alleged cancellation of the suit plot at an address other than the one mentioned on the allotment order, which is the document issued by the defendant itself, which means that the same was deliberately sent on a wrong address in bad faith. In the cross-examination the defendant's witness while replying to the question that "as to whether the plaintiff was not served with the notice on his place of residence and only Air headquarter 'address of office is mentioned", has admitted the fact that "at the relevant time the plaintiff being originated from East Pakistan, therefore, Peshawar Base maintaining the proper addresses and record was approached." It is pertinent to mention here that in the letter dated 07.03.1971 (Exh.G) forwarding the letter of allotment to the plaintiff, the defendant has mentioned, in the letter dated 13.10.1970 (Exh.H) granting an extension of time to the plaintiff upto 31.12.1970 for the payment of outstanding dues of the plot allotted to him, In the receipt dated 12.10.1970 of mosque fund (Exh.I) and in the receipt of development charges dated 26.01.1971 (Exh.J), the address of the plaintiff is mentio 13-B, First East Street, Defence Housing Authority, Karachi.
55. Moreover, when the Abandoned Properties Organization took over the suit plot considering the same to be the plot of a specified person within the meaning of Section 9 of the Abandoned Properties (Management and Taking Over) Act, 1975, the defendant did not resist the inclusion of the suit plot in the list of abandoned properties on the ground that the same stood cancelled and did not mention anything about the alleged cancellation of the suit plot and on the contrary allowed it to be included in the pool of abandoned properties willingly and without raising any objection, meaning thereby that till such time as the suit plot was taken-over by the Abandoned Properties Organization, the same was being considered to be the plot of the plaintiff by the defendant. Even inclusion of the suit plot in the list of abandoned properties was also mala fide on the part of the defendant inasmuch as the plaintiff was not a specified person within the meaning of section 2(F) of the Abandoned Properties (Taking Over and Management) Act, 1975 for the reason that even after the fall of East Pakistan the plaintiff continued to reside on the address given hereinabove and got the National Identity Card issued to him by the Government of Pakistan on 10.05.1975 which was renewed on 10.07.1999 and was further renewed by issuance of CNIC on 09.07.2004 which are available on the evidence file as Exh.A.
17. For the sake of convenience, the definition of abandoned property as well as a specified person as given under sections 2(a) and 2(f) of the Abandoned Properties (Taking Over and Management) Act, 1975 are reproduced as under: Section 2(a) "Abandoned property" means any property, movable or immovable (including share in industrial units and firms, investments, deposits, policies of insurance and all other interests and rights in or to or arising out of any such property, belonging to a specified person and includes any such property sold or transferred to or placed under the supervision or control of, any other person on or after the sixteenth day of December, 1971, but does not include any ornaments or wearing apparel or an cooking vessels or other household effects in the immediate possession of a specified person, not exceeding a total of rupees one thousand."
56. Section 2(f) "specified person" means a citizen of Pakistan domiciled in the territories which immediacy before the sixteenth day of December, 1971, constituted the province of East Pakistan who has left or leaves or has expressed his desire to be taken out of, or to be allowed to leave, the territories of Pakistan and includes a company registered in the said territories the registered office of which has not been shifted in pursuance of the Companies (Shifting of Registered Office)
57. Ordinance, 1972 (V of 1972)."
58. 18.For the sake of convenience, section 3 of the Abandoned Properties (Taking Over and Management) Act, 1975 is reproduced as under: Section 3 "Vesting of abandoned property in Government--All abandoned property shall vest and shall be deemed always to have vested in the Federal Government on and from the sixteen day of December, 1971."
59. 19.It is stated in the para-11 of the plaint that the plaintiff joined the National Flag Carrier, PIA as Captain, the record of which employment is also a government record, and that the plaintiff served therein till 1974. This averment in the plaint is nowhere rebutted by the defendant in its written statement. Similarly, in the affidavit-in-evidence the plaintiff has again asserted in Para-11 that the record of the defendant shows that the plaintiff was a tenant of a property bearing No.13-B, First Street, Phase-I, DHA, Karachi till 1974, which was sold in the said year, before which the plaintiff was residing therein and serving in PIA as Captain. This fact has also not been rebutted in the affidavit- in-evidence of the defendant nor did the counsel for the defendant cross-examine the plaintiff's witness on that score, therefore, the aforesaid assertions of the plaintiff remained un-rebutted, meaning thereby that the plaintiff was available in Pakistan till 1974. Exh.4/A which is Special Power of Attorney executed by the plaintiff on 31.07.2003 at Karachi in favour of his attorney, who is the same person appointed as attorney later-on by his widow, further confirms that the plaintiff was available in Karachi on the said date, therefore, he does not fall within the definition of a "specified person" as contemplated by section 2(f) of the Abandoned Properties (Management and Taking Over) Act, 1975, and consequently the suit plot could not have been treated as an abandoned property at all and it continued to be allotted to the plaintiff. The inclusion of the suit plot in the list of abandoned properties by the defendant and considering the same as an abandoned property by the Abandoned Properties Organization was mala fide, void, ab initio and of no legal effect.
60. 20.Therefore, in view of the above facts, I am of the considered opinion that the defendant knowingly sent the notice of alleged cancellation of allotment of the suit plot at the wrong address of the plaintiff i.e. Air Headquarters (Personnel Directorate), Peshawar, so that the plaintiff should remain unaware of the alleged cancellation of allotment of the suit plot and could not take any steps promptly for the restoration of the same and thereafter the defendant could easily usurp the suit plot. I, therefore, hold that the notice of the alleged cancellation of allotment of the suit plot was never served upon the plaintiff inasmuch as it was never intended to be validly given to the plaintiff. Even otherwise, the notice of cancellation of allotment was also defective in its subject and form for the reasons which are going to be more elaborately discussed under issue No.2. This issue is accordingly answered in negative.
61. ISSUE NO.2 Whether the defendant had authority in law to cancel the allotment of suit property?
62. 21.It is the case of the plaintiff that the defendant was not legally entitled to cancel the suit plot inasmuch as the defendant can cancel the plot only if there is a violation of terms and conditions of the allotment or where some justified dues have not been paid after being demanded from the allottee and that also by a resolution passed by the Managing Committee of the society passed at a meeting convened strictly in accordance with its byelaws, whereas in the case of the plaintiff there are no outstanding dues nor any demand has been raised for the same, no illegality in the allotment of plot of the plaintiff in violation of terms and conditions have occasioned, the cancellation is not pursuant to a resolution passed in the meeting of the Managing Committee convened in accordance with the byelaws, and that is also without any show cause notice to the plaintiff and without affording an opportunity to the plaintiff of being heard. Therefore, canceling or auctioning the plot in question is illegal; that the defendant did not comply with the provisions contemplated by the Byelaw No.54(q) of Defence Officers Housing Society while allegedly cancelling the plot of the plaintiff, therefore, the alleged cancellation is void, ab initio and is of no legal effect.
63. 22.It may be noted that the present Pakistan Defence Officers Housing Authority, Karachi was initially formed on 23.03.1953 as Pakistan Defence Officers Cooperative Housing Society Limited under section 10 of the Cooperative Societies Act of 1925, however, the same was dissolved by the Presidential Order No.7 of 1980, whereby the present authority was established under the Federal Government (Ministry of Defence).
23. The Byelaw No.54(q), of the defunct Pakistan Defence Officers Cooperative Housing Society Karachi, under which the purported exercise of cancellation of the suit plot has been undertaken is for the sake of convenience, reproduced hereunder: The Bye-laws of Pakistan Defence Officers Cooperative Housing Society Limited, Karachi "Power of the Managing Committee - Bye-Law 54: Without prejudice to and not so as to limit or restrict the general powers conferred by the last preceding bye-law and the other powers conferred by the rules and these bye-laws it is hereby expressly declared that the Committee shall have the following powers that is to say, power: (a)...........................................................
64. (b)...........................................................
(q) To cancel any allotment of land and/ or suspend any facilities or services provided by the Society, if the allottee/member fails to pay development charges or any other dues of the Society after due notice." whereas the corresponding provision relating to cancellation of plots present law i.e. Pakistan Defence Officers Housing Authority Order, 1980 is contemplated by Proviso (i) of Article 17(h) and Article 18(i) of the said Order, which is reproduced as under: Pakistan Defence Officers Housing Authority Order, 1980 Proviso of Article 17(h): "Provided that the Executive Board may -
(i) Cancel such allotments which were made or issued in contravention of the Bye-Laws of the Society or the resolution of the Managing Committee of the Society."
65. Article 18(i): Power to cancel allotments, etc--(1) The Executive Board may cancel any allotment, transfer, license or lease in respect of any plot or housing unit in any project or scheme in the specified area if the allottee, transferee, licensee or lessee fails to pay the dues or installments including development charges in respect of such plot or housing unit, within six months from the date of receipt of the demand in writing or within such extended time as the Executive Board may, in special case, fix, and thereupon the plot or the housing unit, with or without construction thereon, shall be resumed by the Authority."
66. 24.Both the aforesaid provisions of past and present byelaws and regulations contemplate that it is only the Managing Committee of the defunct society or the Executive Board of the present authority which is competent under the byelaws to allot or cancel the allotment of plots of land.
67. Even the Executive Board cannot cancel the allotment of a plot, which is made by the Managing Committee by a resolution which is hot in contravention of the byelaws of the society, whereas in the instant case the role of the Managing Committee of the society while cancelling the allotment of the plaintiff's plot is nowhere defined either in the written statement or in the affidavit in evidence or in the cross-examination of the defendant's witness.
68. 25.Upon careful examination of the evidence available on record, it transpires that the defendant has failed to produce the Minute Book of the meetings of the Managing Committee and the resolution passed therein for the cancellation of the suit plot of the defunct Pakistan Defence Officers Cooperative Housing Society for the year 1973 in order to establish that the meeting of the Managing Committee of the society was legally convened under the byelaws of the society in which the allotment of the plaintiff in respect of the suit plot was allegedly cancelled. There is also no evidence available on the record of the case that prior to the alleged cancellation of the suit plot, a Show-Cause Notice was issued to the plaintiff by the defendant or an opportunity was afforded to the plaintiff of being heard. It is pertinent to mention here that when the suit plot was allotted to the plaintiff at a meeting of the Managing Committee of the society vide letter dated 09.03.1971 (Exh.D), it was only the Managing Committee who was competent under the byelaws of the society to cancel the same, the defendant informed the plaintiff about the allotment of the suit plot in the words that: "I have the honour to inform you that the Managing Committee at its meeting held on 28.06.1970 decided to allotment you plot No. 75, 29th Street measuring 2000 square yards approximately."
69. 26.The Byelaw No.54(q) authorized the Managing Committee of the defunct society to cancel any allotment of land and a specific procedure is laid down under the byelaws for convening the meeting of the Managing Committee. It is now settled law that any act, which has not been approved by the Managing Committee of Defence Officers Housing Society and which is undertaken in the absence of a resolution of its Managing Committee, would lose its validity. The defendant has failed to produce in evidence any valid and proper order of the Managing Committee of the Society whereby the alleged decision to cancel the suit plot was made by it, therefore, the facts and circumstances overwhelmingly lend support to the contention of the learned counsel for the plaintiff that Exh.5/F dated 11.03.1973, which is a handwritten letter recommending cancellation of the suit plot of the plaintiff due to non-payment of certain dues, and Exh.5/G, which is letter dated 16/17.03.1973 informing the plaintiff that his plot has been cancelled, were manipulated, fraudulent, bogus and illegal letters issued by the then Secretary of the society without the mandate of the Managing Committee of the society. It is an admitted position that under Byelaw No.54(q) of the society, the Managing Committee of the society was the only competent authority to cancel the allotment and nobody else. Therefore, Exh.5/G, which is letter dated 16/17.03.1973 informing the plaintiff that his plot has been cancelled is manipulated, fraudulent, bogus and illegal letter issued by the then Secretary of the society without the resolution of the Managing Committee of the society and in contravention of its byelaws. The letter of alleged cancellation does not even mention that the Managing Committee has cancelled the suit plot nor does it mention anything about passing of the resolution by the Managing Committee or that the meeting of the Managing Committee was convened on some specific date for the purpose of cancellation of the suit plot. I am, therefore, of the view that the letter of alleged cancellation of the suit plot has been issued by the defendant without complying with the express provisions contemplated by the aforesaid byelaws of the society and so also without affording an opportunity to the plaintiff of being heard before cancellation of his plot, and as such the same is void, ab initio and is of no legal effect. On this point, I am fortified in my view by whatever is held by the Hon'ble Supreme Court in the case of Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi reported in 2008 SCMR 611, wherein it is held that "any act based on forgery, fraud, and in contravention of the byelaws of the society and resolution of Managing Committee of the society would lose its validity and fall to the ground." In the aforesaid judgment, their Lordships have relied upon the Proviso I of Article 17(h) of the Presidential Order No.7 of 1980 which is reproduced hereinabove.
27. As to the genuineness of the power of attorney dated 03.06.2013 executed by the widow of plaintiff, suffice it to say that the same bearing the authentication of Notary Public or any authority mentioned in Article 95 of Qanun-e-Shahadat Order, 1984 is taken as sufficient evidence of the execution of instrument by the person who appears to be the executant on the face of it. The question involving execution of power of attorney in foreign country and presumption attributed to such power of attorney executed before Notary Public and authenticated by such Notary Public has been elaborately decided in the case of ANZ Grindlays Bank v. Saadl Cement Company Limited supra, wherein it is held that such a power of attorney is valid and duly authenticated document under the provisions of Article 95 of Qanun-e-Shahadat Order, 1984.
28. For the aforesaid reasons, I am of the considered view that the defendant did not exercise its legal authority under the byelaws as aforesaid, while cancelling the allotment of the suit plot belonging to the plaintiff, and therefore, the entire exercise undertaken by the defendant for cancellation of the suit plot of the plaintiff being colourable, illegal, in contravention of the byelaws, void, ab initio and of no legal effect falls to the ground, consequently I hold that the allotment of the plaintiff in respect of the suit plot remained intact and is still intact till today. This issue is accordingly answered in negative.
70. ISSUES NOS.3 and 4 3.To what relief, if any, plaintiff is entitled to?
71. 4.What should the decree be?
29. Since these two issues Nos.3 and 4 are co-related with each other, the same are being answered jointly and collectively.
30. In view of the detailed reasons given hereinabove while addressing issues Nos.1 and 2, I hold that the plaintiff is entitled to all the reliefs claimed in the suit, therefore, I decree the present suit as prayed and direct the defendant to handover the suit plot to the plaintiff and/or the duly constituted attorney of the plaintiff and execute 'A' Lease and all subsequent documents in accordance with the byelaws in favour of the plaintiff or his attorney after recovering the dues in respect of the suit plot from the plaintiff, who shall pay the said dues within a period of two months according to the rates presently prevailing under the regulations/byelaws/rules of the defendant.
72. Suit stands decreed as prayed.