AZIZ-UR-REHMAN, J. By means of this 'common judgment', we intend to dispose of the Constitutional Petition No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others] and Constitutional Petition No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others] whereby, the Petitioners therein, have approached this Court for redressal of their grievances. he prayers sought by the Petitioners are reproduced at 'A' and 'B' respectively, as under:- A.C.P. No.D-4560 of 2017:
(a) declare that since the Respondent No.8 did not reject the proposed plan submitted by the Petitioners within 60 days, the presumption, in law is that the proposed plan is deemed to have been approved by the Respondent No.8 and hence the Respondent No.8 is estopped in law by its own conduct and silence to raise any objection whatsoever at a subsequent stage;
(b) declare that since all the actions of Respondents Nos. 3, 4, 6, 8, 10 and 12 in collusion with each other and at the instigation of the Respondents Nos. 13 and 14 are without any notice in writing, the same being against the principle of natural justice, are ab initio illegal, unlawful, mala fide, ultra vires, unconstitutional, without jurisdiction, null and void having no legal effect whatsoever;
(bb) declare that the Impugned Order dated 21-2-2017 passed by the Additional Deputy Commissioner-II, and all orders and actions predicated there upon are mala fide, without jurisdiction and without lawful authority; and to direct the Respondents to restore possession of the Subject Property to the Petitioner;
(c) declare that neither Respondent No.12 nor any other Respondent nor any government officer had/has any authority nor any government officer had/has any authority to dispossess the Petitioners or any person claiming through or under theist: from the said plot without due process of law. Accordingly, this act of dispossession is not only illegal, unlawful, unconstitutional, ultra vires, mala fide and without jurisdiction but also violation of order dated 5.6.2017 of this Hon'ble Court passed in C.P. No. D-3898 of 2017;
(d) restrain the Respondents Nos. 11 and 12, their officers, agents, employees, servants, factors and all persons claiming through or under them for harassing and taking any coercive measures against the Petitioners and their employees in any manners whatsoever;
(e) restrain the Respondents Nos. 13 and 14, their agents, servants, factors and all persons claiming through or under them from handing over possession of the said plot to any third party and from doing any activity upon the said plot in any manners whatsoever;
(f) costs of the petition; and any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case."
B. C.P. No.D-3898 of 2017: i) That, this Honourable Court may be pleased to declare that the subject land viz: measuring 1890 sq. yards., Survey No.596, Deh: Gujro, Tapo: Soongal, Gulshan-e-lqbal Town, Karachi, was restored and repossessed by the petitioner by the orders of Honourable High Court. ii) That, this Honourable Court may be pleased to declare that in existence of orders of Honourable High Court in C.P. No.D-280/ 1997, respondents Nos. 2 to 6 and 9, have no authority to initiate any proceedings in respect of the subject property. iii) That, this Honourable Court may be pleased to declare that any action by respondents Nos. 7 and 10, on directions of respondents Nos. 3 to 6 and 9, shall be illegal, unlawful and ab-initio. iv) That, this Honourable Court may be pleased to direct the respondent Nos. 3 to 6 and 9, not to entertain any proceedings by the respondent No.8, in respect of the subject property. as such the same would amount in violation to the orders of Honourable High Court in C.P. No.D-280/1997. v) That, this Honourable Court may be pleased to declare that as per the record provided in this petition and any comments whatsoever filed by the respondent No.2, the survey No.553, Deh Gujro, Tapo: Soongal, Gulshan-e- Iqbal, was acquired by the respondent No.2, in 1968 and the same is passed and closed transaction and the respondent No.8, has no locus standi to make any reclaim of the said survey No.. or to disturb the survey No.596, which is owned by the petitioner after due process of law on the directions of Honourable High Court in C.P. No.280/1997 vide order dated 15.10.1998. vi) That, this Honourable Court may be pleased to restrain the respondent No.7 to take any coercive action at the subject property without due course of law. vii) That, this Honourable Court may be pleased to restrain the respondent No. 10, his subordinates, senior officials or any person acting on their behalf not to dispossess the petitioner from the subject property viz. measuring 1890 sq. yds.; Survey No. 596, Deh: Gujro, Tapo: Soongal, Gulshan-e-Iqbal Town, Karachi, as such the same would amount to gross violation of the orders of Honourable High Court passed in C.P. No.280/1997. viii) Any other relief, which this Honourable Court may deem fit and proper be awarded".
A. BRIEF FACTS OF C.P. No.D-4560 of 2017:
1. Brief facts giving rise to the filing of C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others] are that; the Respondent No.15, viz. Tariq Ahmed Khan Lodhi son of Abdul Ghani Khan, as averred, in the Memo of Petitioner [In short MoP], purchased certain land measuring 2-11 acres out of Survey No.596, part of Old Survey No.160, situated at Deh Gujro, Tapo Songal, Gulshan-e-Iqbal Town, Karachi by Sale Deed dated 19.11.1979, having registered No.7091, at pages 69 to 67 of Book No.1751 which have been duly signed and executed by the 'vendors' and 'vendee' therein, before the Sub- Registrar 'T' division-IV, Karachi [Annexure 'PR' to the MoP]. The land involved in C.P. No.D-4560 of 2017 and which is subject matter of Memoranda and Sale Agreements including the Supplementary Agreement of Sale [Annexure 'P/9' to the MoP of C.P. No.D-4560 of 2017] is land bearing Survey No.596, measuring 1890 sq. yards, situated at Deh Gujro, Block-7, Main University Road, KDA Scheme No.24, Gulshan-e-Iqbal Town, Karachi [hereinafter referred to as the 'subject property']
2. Later-on, a' Memorandum of Understanding [In short MoU] dated 26.7.2016, was executed between the Respondent No.15 [Tariq Ahmed Khan Lodhi son of Abdul Ghani Khan-Owner], Respondent No.16 [Syed Adeeb Ahmed son of Syed Muhammad Ahmed-Investor], and the two Petitioners namely [1] Sheharyar Waqas Malik son of Waqas Malik and [2]. Salam Masood son of Haji Masood Hussain. In the 'MoU' of 26.07.2016, the parties thereto have been referred to as FIRST Party, SECOND Party and the THIRD Party respectively. As per Memorandum of Understanding the parties thereto as stated, have duly agreed upon the 'terms' and 'conditions' stipulated therein. In implementation of the said 'MoU', the Respondent No.15 [Owner] thereafter, entered into an Agreement of Sale dated 1.8.2016 [Annexure P/3 to the MoP], with the Respondent No.16 [Investor], in respect of the 'subject property'. Respondent No.16, thereafter, has also entered into Agreements of Sale dated 11.8.2016 and 6.9.2016 with the Petitioners in C.P. No.D-4560 of 2617. [Annexures 'P/4' and 'P/5' respectively to the MoP].
3. The Petitioners, in the meanwhile, submitted a 'proposed building plan' in respect of the 'subject property' through the Respondent No.15 [Owner], to the Respondent No.8 viz. Sindh Building Control Authority, through its' Director General, Civic Centre, Karachi [In short SBCA], for construction of Air Raid Shelter (ARS), ground floor, fifteen upper floors and roof plan. Respondent No.8, upon proper 'verification' of all the requisite documents and 'proposed building plan', issued Challan dated 19.9.2016 of Rs.33,23,530/- for payment [Annexure 'P/7' to the MoP], which was duly paid by the Petitioners on 30.9.2016. Upon payment of the said Challan, the Respondent No.8, thereafter issued a letter dated 4.10.2016. [Annexure 'P/8' to the MoP].
Needless to say, Respondent No.8 [SBCA], as per assertions made in the MoP, under law, was/is bound to either approve the 'proposed building plan' or reject the same within a period of 60 days. In case of silence, the 'proposed building plan' as urged by the Petitioners in the Memo of Petition, otherwise, was to be presumed and deemed, as having been duly approved by Respondent No.8 [SBCA]. The Petitioners in view of this legal position, not only constructed a boundary wall, 'site office' on the 'subject property' but also launched their project namely 'Gold Ark Residency', upon the 'subject property'. Besides, the Petitioners simultaneously, also started its' publicity and booking of the said 'subject project'. Later-on, by mutual consent, a 'Supplementary Agreement of Sale' [Annexure 'P/9' to the Moll was also executed on 2-6.2.2017 between the Respondent 15 [Owner-Vendor], Respondent No.16 [Investor-the Vendee No.1] and the Petitioners [The Vendees No.2] in C.P.
No.4560 of 2017 viz-a-viz the 'subject property'.
4. Respondent No.8, in collusion with the Respondents Nos. 3, 4, 6, 10, 12, 13 and 14, sometime, in the month of May, 2017, opted not only to demolish the boundary wall but also the 'site office' of the Petitioners', already raised/ constructed, and that too without any 'show cause notice'. Such act of 'demolish' on the part of Respondents Nos. 3, 4, 6, 10, 12, 13 and 14, as urged by the Petitioners besides, being illegal, unlawful, is mala fide and un-constitutional, thus the same act is liable to be declared as null and void, otherwise, the Petitioners in C.P. No.D-4560 of 2017, shall be seriously prejudiced. The Respondent No.15 [owner-vendor], thus feeling himself 'aggrieved' and 'dissatisfied' inter alia with such act of demolition on the part of the Respondents Nos. 6, 10, 12, 13 and 14, filed Constitutional Petition No.D-3898 of 2017 [Tariq Ahmed Khan v.
Province of Sindh and 9 others], before this Court.
5. As per assertions made in the MoP, all of sudden in the month of July 2017, the Respondent No.12-SHO along with his staff, at the instigation of Respondent No. 13 [Muhammad Abdul Salam son of [late] Abdul Rasheed Khan] and Respondent No.14 [Syed Rehan Hussain Rizvi son of Syed Ali Husnain Rizvi], visited the site and arrested three [3] employees of the Petitioners and also took away container, two motorbikes, cell phones, wallets, vehicles (VIGO), Repeater Gun, bullets etc. and handed over the possession of the 'subject property' to the Respondents Nos.13 and 14. The Petitioners herein, also came to know that FIR No.292/2017 under Section 448/34, P.P.C., has been lodged on 07.05.2017, by the Respondents Nos. 13 and 14, at Police Station Gulshan-e-Iqbal against the Petitioners and their employees. Thereupon, the Petitioners herein and one Azman Siddiqui [alleged accused], moved an application for bail before arrest of the Petitioners and said Azman Siddiqui, before the learned District and Sessions Judge, Karachi-East, i.e. Criminal Bail Before Arrest Application No.1501 of 2017, which was granted by Order dated 03.7.2017. The said order dated 03.07.2017 [Annexure 'P/19' to the MoP], is reproduced here-in-below:-.
"IN THE COURT OF SESSIONS JUDGE KARACHI EAST BEFORE: MR. ABDULLAH CHANNAH Bail Application No.1501/2017
1. Salman Masood son of Haji Masood Hussain
2. Azam Siddiqui son of Haji Masood Hussain
3. Shaharyar Waqas Malik son of Waqas Malik ....Applicants/Accused Versus The State. Respondent.
FIR No.292/2017 under section 448/34, P.P.C.P.S. Gulshan-e-lqbal. 03.07.2017
Applicants/accused above named are present along with their counsel to seek their pre-arrest bail in case arising out of FIR No.292/2017, registered at Police Station, Gulshan-e-Iqbal, Karachi East.
I have heard Mr. S.M. Rahat, the leaned counsel for the applicant/ accused and perused the record.
The learned counsel for the applicant/accused pressed the instant application on the ground of malice, ulterior motive as well as falsification of the facts as narrated in the FIR. Besides this offence for which the applicant/ accused charged with does not come within the ambit of prohibitory clause of section 497(1), Cr. P. C.
In the existing circumstances without touching the merits of the case applicants/accused are admitted on ad- interim pre-arrest bail subject to furnishing surety in the sum of Rs.20,000/- each and P.R. bond in the like amount.
Issue notice to D.P.P. Call for the police papers, The Applicants are directed to join the investigation. Put-off to 10.07.2016 for confirmation or otherwise.
Pronounced in open court, this the 3rd day of July, 2017. Sd/- 03.07.2017 (ABDULLAH CHANNAH)
SESSIONS JUDGE KARACHI EAST"
6. Per Petitioners' version all the actions of Respondents Nos. 3, 4, 6, 8, 10 and 12, since, have been taken in collusion with each other. and apparently, at the instigation of the Respondents Nos.13 and 14, and that too without 'any notice', as such, all the said actions are not only against the 'principle of natural justice', but also void ab-initio, illegal, ultra-vires, and un-constitutional inter alia on the touchstone of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. In view of this position, the said acts of Respondents Nos. 3, 4, 6, 8, 10 and 12, as urged, are not only null and void but the same are also of no legal effect whatsoever.
According to Petitioners' stand, neither Respondent No. 12, nor any of the other Respondents nor any government officials had/have any authority to 'dis-possess' the Petitioners or any other person claiming through or under them from the 'subject property' without following 'due process' of law and affording a 'fair' opportunity of being heard. Indeed, the act of dis-possession taken against the Petitioners by Respondents Nos.
3, 4, 6, 8, 10 and 12, is not only illegal, unlawful but also without jurisdiction. Besides, the same act of 'dis- possession' is also in violation of order dated 5.6.2017, passed in C.P. No.D-3898 of 2017. [Tariq Ahmed Khan v. Province of Sindh and 9 others]. Needless to say, in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], this Court on 11.7.2017, while, issuing notice to the Respondents and learned A.A.G. for 14.7.2017, till then, parties were directed to maintain status-quo. Order dated 11.7.2017, passed in C.P. No.D-4560 of 2017, is reproduced herein-below:- "11.07.2017 Ms. Sarwat Israr, Advocate for petitioner.
1. Urgency granted
2. Exemption granted subject to all just exceptions.
2&4. Notice to the respondents also learned AAG for 14.7.2017. Respondent No.12 SHO Police Station Gulshan-e-Iqbal be present in person as also Respondents Nos. 13 and 14. Till the next date status-quo must be maintained by all the parties in respect of the subject property. On the next date file of C.P. No.D-3898 of 2017 be put up along with this matter. [Underlining is ours].
7. In Revenue Case No.4/2016, filed by Respondent No.13 [Abdul Salam Khan son of [late] Khalid Rasheed Khan v. The Director KDA and another], under section 164 of the Land Revenue Act, 1967, it was the case of Respondent No.13, before the Commissioner Karachi Division, Karachi, that the 'subject property' in fact is/was Survey No.553 and belonged to him. The prayer sought in Revenue Case No.4/2016, was for a 'rectification' in the 'lay-out plan' by substituting Survey No.596 with Survey No.553. In the said case, KDA, on the other hand demonstrated that Survey No.553, being claimed by the Respondent No.13, had long ago been acquired under the Land Acquisition Act. The learned Commissioner, nonetheless, upon hearing and perusal of the record, finally dismissed Revenue Case No.4/2016 vide order dated 14-2-2017 [Annexure 'P/20' to the Mon] Being relevant, order dated 14.2.2017, is re-produced here-in-below:-- "IN THE REVENUE COURT OF COMMISSIONER KARACHI DIVISION KARACHI Case No. 04/2016
1. Muhammad Abdul Salam Khan son of Abdul Rasheed Khan (late). R/o.H.No.99/E, Block-II, PECHS, Karachi..........Applicant versus 1.The Director Land KDA.
2.The Additional land Acquisition Cell KDA .............Respondents
1. Applicant Muhammad Abdul Salam
2. The Survey Superintendent Karachi along with record
3. Additional Director Land Acquisition cell KDA Present along with record.
4. Mukhtiarkar Gulshan-e-lqbal, Karachi East, along with Relevant Revenue Record.
The Deputy Commissioner, Karachi East, vide his letter No. DC/ K/E/ Rev. Br/3142/2016 dated 21-11-2016, reported that Kar S.No.553 (2-10 Acres) of Deh Gujro is owned by Muhammad Abdul Salam vide entry Nos.107 and 32 of VF-II of Deh Gujro, but KDA over lapped area out of said S. No. and the record of DC office is salient in respect of land acquisition in favour of KDA, hence he recommended for further proceeding under section 164(3) of the Sindh Land Revenue Act, 1967.
The parties were called heard at length and the record was perused.
The Khatedar Muhammad Abdul Salam mainly contended that he was purchased S.No.553 (2-10 acres) deh Gujhro through , Registered Sale deed bearing No. 5642 dated 25-09-2008 MF Roll No.75556/5405 dated 29.09.2008 after observing all legal formalities and such mutation entries were also affected in record of rights in his favour. The land is free from all encumbrances, but KDA without any payment and acquisition of land overlapped same portion of his land with another persons, hence he prayed to direct concerned authorities to rectify the error in master plan of KDA and removal of illegal encroachments/construction made over his land.
The Additional Director, Land Acquisition Cell, KDA, in his report dated 04-01-2017, has mainly contended that S.No.553 (2-10 acres) was acquired under Land Acquisition Act, 1894 by KDA, and falls within notified area of scheme 24 of KDA. The compensation was accordingly made the claimant of land namely Mr. Tariq Ahmed Khan Lodhi, in respect of land in question. He further contended that presently the matter is also sub judice before the Provincial Ombudsman Sindh. [Underlining is ours].
After hearing the parties and perusing the relevant record and reports produced before the undersigned I come to conclusion that this is purely a matter of land acquisition and claim of compensation which does not come under the ambit of section of 164 (3) of Sindh Land Revenue Act 1967 as well as the matter is also pending before the Hon 'able Provincial Ombudsman Sindh; therefore, the parties may avail their remedies from competent forum according to law. [Underlining is ours].
With the above observations the case is dispose of and announced in the open Court.
Given under my hand and seal of this Court on 14th February 2017.
Sd/- (EJAZ AHMED KHAN)
PAS COMMISSIONER No.CK/Reader/80/2017 dated: 14-02-2017 Copy to:-
1. The Deputy Commissioner Karachi East.
2. The Director Land KDA.
3. The Survey Superintendent Karachi.
4. The Additional Director Land Acquisition KDA.
5. The Mukhtiarkar Gulshan-e-Iqbal, Karachi East."
8. Despite such dismissal of Revenue Case No.4/2016, the Additional Deputy Commissioner-II [Respondent No.3 viz. Muhammad Khan Rind], in his own wisdom rather to say, amazingly, vide order dated 21.2.2017 held that the 'subject property', was not Survey No.596, but Survey No.553 and thus the same belonging to the Respondent No.13. Through the said order dated 21.2.2017, the Deputy Commissioner-II also directed the removal of the Petitioners from the 'subject property. Consequently, on 2.5.2017, the SBCA [Respondent No.8 herein] not only demolished the 'boundary wall' and 'booking office', constructed by the Petitioners on the 'subject property', by the Police but also dis-possessed the Petitioners from the 'subject property' and delivered its' possession to Respondents 13 and 14. Order dated 21.2.2017, passed by Additional Deputy Commissioner- II, exercising powers on behalf of Deputy Commissioner, Karachi-East, being relevant is reproduced as under: - "OFFICE OF THE DEPUTY COMMISSIONER KARACHI EAST No.DC/K/E./Rev.Br/643/2017, Karachi, the dated 21-2-2017 The Director General Sindh Building Control Authority Karachi The Director General Karachi Development Authority Karachi Subject: JUDICIAL ORDER Please find enclosed herewith a photo-stat copy of Judicial Order passed in Case No.04/20261, by the Revenue Court of Commissioner Karachi Division Karachi, vide order No. CK/Reader / 80/2017 dated 14.02.2017, on the application of Mr. Muhammad Abdul Salam Khan son of Abdul Rasheed Khan (Late) v.
Director General KDA and others.
It is to inform that on the request of KDA authority this office refer the matter to the Commissioner Karachi Division Karachi under section 164(3) of Sindh Land Revenue Act, 1967, over the dispute of KDA on Survey No.553, admeasuring 01-10 acres of Deh Gujro, Gulshan-e-Iqbal Karachi East, owned by Mr. Muhammad Abdul Salam Khan vide Entry, Nos.107 and 32, of VF-II, of Deh Gujro in his favour.
It is further informed that on the concealment of facts refer by KDA and SBCA one Tariq Ahmed Khan Lodhi encroached the S. No.553 instead of Survey No.596, which was acquired by the KDA.
In view of the above, I am directed to request you to cancel the layout plan of Mr. Tariq Ahmed Khan Lodhi which approved on the survey number 553 of Deh Gujro instead of Survey No.596, and remove all encroachment including illegal booking office (Gold Ark Residency) and boundary wall from Survey No.553, Deh Gujro, Gulshan-e-Iqbal Karachi East, forthwith under intimation to this office. [Underlining is ours].
(MUHAMMAD KHAN RIND) ADDL: DEPUTY COMMISSIONER-II FOR DEPUTY COMMISSIONER KARACHI EAST Copy to:
1. The Commissioner Karachi Division Karachi
2. The Assistant Commissioner/Mukhtiarkar Gulshan-e-Iqbal Karachi East, with the direction to take necessary action in this regard and report compliance.
3. The P.A to Deputy Commissioner Karachi East
4. Mr. Muhammad Abdul Salam Khan"
9. The Petitioners thus feeling 'aggrieved' and 'dis-satisfied' inter alia on account of such illegal and unlawful acts of Respondents Nos. 3, 4, 6, 8, 10 and 12, which were taken by them ex-facie, in collusion with each other and at the 'instigation' of Respondents Nos. 13 and 14, under the garb of the 'impugned order' dated 21.2.2017 [Annexure 'P/21' to the MoP in C.P. No. D-4560 of 2017] have approached this Court by way of filing the Constitutional Petition No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], with prayers inter alia' for redressal of their grievances and of setting aside, the impugned order dated 21.2.2017. On 11.07.2017 when C.P. No.D-4560 of 2017 came-up before the court than the following order was passed:--
1. For orders on Misc. No.19710/ 2017.
2. For orders on Misc. No.19711/ 2017.
3. For orders on Misc. No.19712/ 2017.
4. For hearing of main case. 11.07.2017.
5.Ms. Sarwat Israr, Advocate for petitioner.
1. Urgency granted.
2. Exemption granted subject to all just exceptions.
3 and 4. Notice to the respondents also learned A.A.G. for 14.7.2017. Respondent No.12 SHO Police Station Gulshan-e-Iqbal be present in person as also Respondents Nos. 13 and 14. Till the next date status-quo must be maintained by all the parties in respect of the subject property. On the next date file of C.P. No.D-3898 of 2017 be put up along with this matter.
B. BRIEF FACTS OF C.P. NO.D-3898 OF 2017:
10. Brief facts leading to the filing of C.P.No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others] are that; the Petitioner was sole owner of certain land, measuring 2.11 acres, in Deh: Gujro, Tapo: Soongal, Gulshan-e-Iqbal Town, Karachi. The land, as averred, in the Memo of Petition [in short MoP], somehow, was unlawfully acquired by the K.D.A's authorities. The Petitioner in C.P. No.D-3898 of 2017 viz. Tariq Ahmed Khan son of Abdul Ghani Khan [Respondent No. 15 in C.P.No.D-4560 of 2017], feeling himself 'aggrieved' and 'dis-satisfied' with such unlawful act of KDA , filed Constitutional Petition No.D-823 of 1989 [Tariq Ahmed Khan v. Karachi Development Authority], before this Court with the prayers as follows:-
(i) It may be declared that the Respondent's motion in taking over the land of the Petitioner and utilizing it in constructing road is illegal and without lawful authority;
(ii) It may be declared that the action of the Respondent in asking for the assessment of the value of the land from the Revenue Authorities is illegal and without lawful authority;
(iii) The Respondent may be directed to grant to the Petitioner alternate land as detailed in Petitioner's letter dated 11.5.1985 Annexure P/11 or alternatively to grant cash compensation to him according to the market value of the land now prevailing to be ascertained by a body jointly agreed to by the Petitioner and the Respondent;
(iv) Cost of the petitioner; and
(v) Any other relief or reliefs which this Hon'ble court under the circumstances of the case may deem fit and proper."
11. The aforesaid Constitutional Petition No.D-823 of 1989 [Tariq Ahmed Khan v. Karachi Development Authority] was subsequently, 'disposed of in favour of the Petitioner by Judgment dated 9.2.1995, passed by the Division bench of this court. The 'operative part' of the said judgment reads as follows:- In view of the above discussion, we are of the view that the provisions of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 have been violated by the Respondents and accordingly their act of taking over the private property of the Petitioner is without lawful authority. In these circumstances, we allow this petition as prayed with costs." [Underlining is ours].
12. That, in consequences of various orders including Judgment dated 09.02.1995, passed by this Honourable High Court in C.P. No. D-823/1997, the petitioner viz. Tariq Ahmed Khan was partly compensated. The Petitioner viz. Tariq Ahmed Khan Lodhi, nevertheless, then claimed to be entitled for an area of 1890 sq. yds.
Later on the Petitioner [Tariq Ahmed Khan Lodhi], opted to file another Petition bearing C.P. No.D-280 of 1997 [Tariq Ahmed Khan v. KDA and Government of Sindh] wherein, by a Judgment dated 15.10.1998 K.D.A's authorities, were directed to restore the 'possession of portion' of the un-utilized land measuring 1890 sq. yds. in Survey No.596 (old Survey No.160), Deh: Gujro, Karachi [hereinafter 'subject land'], to the Petitioner viz. Tariq Ahmed Khan [who is also Respondent No.15 in the connected C. P. No. D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others].
13. In this regard, Director, E&E of K.D.A's authorities' sent a letter dated 18.10.1999 to the Deputy Commissioner Karachi-East, titled as "possession of land measuring 1890 sq. yds. of survey No.596, Deh: Gujro be handed over to Mr. Tariq Ahmed Khan, Lodhi pursuant to orders of this Honourable High Court in Constitution Petition No.280/97 [Tariq Ahmed Khan v. KDA] and governing body, KDA's Resolution No.146 dated 28.09.99. The relevant letter dated 18.10.1999, of Director E&E of KDA and certificate- dated 18.10.1999, issued by KDA, are reproduced herein-below at [a] and [b] respectively, as follows: [a] MOST IMMEDIATE COURT MATTER No.KDA/D(E&E)/99/220 Dated: 18th October, 1999. To, The Deputy Commissioner (East) Karachi SUB: POSSESSION OF LAND MEASURING 1890 SQ. YDS. OF SURVEY NO.596, DEH GUJRO TO MR. TARIQ AHMED KHAN LODHI IN COMPLIANCE WITH THE ORDERS OF THE HON'BLE HIGH COURT IN CONSTITUTION PETITION NO. 280/97 AND GOVERNING BODY, KDA, VIDE RESOLUTION NO.146 DATED 28-9-99.
Copy of the letter bearing No.D (E&E)/217 dated 16-10-99 issued in pursuance of the order of the Hon'ble High Court of Sindh and Governing Body, K.D.A. is forwarded herewith for information and appropriate action. Sd/- Director (E&E) Copy to :-
1. The Director, P& UD., KDA.
2. The Executive Engineer, Gulistan-e-Jauhar, Div-I, K.D.A. Sd/- Director (E&E) [b] KARACHI DEVELOPMENT AUTHORITY GULISTAN-E-JAUHAR DIV-II SCHEME NO. 36 No.EE/GJD-II/Sch.36/KDA/99/397 Dated 18.10.1999 CERTIFICATE This is certified that physical possession handed over on 18.10.1999 with reference to the Director (E&E) letter No.KDA/D (E&E)/217 Dated 16.10.1999 to Mr. Tariq Ahmed Khan Lodhi part of survey No.596 measuring 1890 sq. yds. Deh Gujro in Block-7 Scheme-24 as per decision of honourable High Court order No.C-P-D 280/97 dated 15.10.1998 and as decided by the Governing Body K.D.A. vide its Resolution No.146 dated 28.9.99.
Sd/- Asstt. Executive Engineer Gulistan-e-Jauhar Division-II Scheme No. 36 K.D.A.
Sd/- Executive Engineer Gulistan-e-Jauhar Division-II Scheme No. 36 K.D.A.
Sub-Engineer Gulistan-e-Jauhar Div-11 Scheme No. 36 K.D.A.
Taken over physical possession at site by me (Tariq Ahmed Khan Lodhi) owner of land.
Copy to:-
1. Chief Engineer, KDA.
2. Superintending Engineer (KCC) KDA.
3. Director (E&E) KDA.
4. Director (TP& UD) KDA.
5. PS to Member (A&L) KDA.
6. Mr. Tariq Ahmed Khan Lodhi
14. It is pertinent to mention herein that during the proceedings of C.P. No. 280/1997, the 'subject property' was occupied by Police Department, which, nevertheless, was vacated on the orders of Honourable High Court passed in C.P. No.D-280/1997 and the possession of 'subject property' was handed over to the petitioner but after 'demarcation' and 'survey' conducted by the Survey Department. The relevant part of order dated 08.08.2012 reads as follows: Mr. Sultan Shah, advocate along with Jamil Ahmed Baloch, Addl: Director (AEC) submits that CDGK is ready and willing to execute all documents and do all acts required to convey the land offered in the above report to the petitioner and deliver its vacant peaceful possession to the petitioner. They submit that demarcation of three plots offered through report shall be carried out/effected within a week from today and the lease shall be executed a week thereafter, in the meanwhile all the relevant documents including letter of possession; sketch; demarcation etc. shall be handed over to the petitioner and so far as the land measuring 1890 sq. yards in Survey No.596 (old survey No.160) Deh Gujro Karachi is concerned the learned counsel for CDGK concedes that the said piece of land reportedly is under occupation of Sindh Police. CDGK shall facilitate the petitioner in re-possessing the land lawfully.
15. The petitioner viz. Tariq Ahmed Khan, thereafter was peacefully enjoying its' subject property. Per petitioner's stand in C.P. No.3898 of 2017, Respondent No.8, namely, Muhammad Abdul Salam Khan, as alleged, is one of the land grabbers and has/had always kept his evil eyes, upon the 'subject property' which in fact is belonging to Petitioner, by abusing the orders of this Court, passed in C.P. No.D-823/1989, C.P. No.D- 280/1997 and order dated 14.02.2017 [Annexure 'P/20' to the MoP in C.P. No.D-4560 of 2017] passed by Commissioner, Karachi, Karachi Division, in Revenue case No.04 of 2016 [Muhammad Abdul Salam Khan v.
Director Land KDA and another]. Being relevant, 'operative part' of Judgment dated 15.10.1998, passed in C.P.
No.D-280 of 1997, by a Division Bench of this Court is reproduced herein below: As regards, the remaining claim of the Petitioner about 6168 sq. yds, it is noted that it includes the area of 1890 sq. yds for which we already ordered to restore it back to the Petitioner. Now, the claim of the Petitioner, regarding remaining area, would be to the extent of 4278 sq. yds. This area is also to be given by the KDA to the Petitioner, as already agreed, within four months from now.
16. That, in consequences of the evil activities of Respondent No.8 viz. Muhammad Abdul Salam Khan, in C.P.
No.D-3898 of 2017, the petitioner did surprise to see a letter issued by the Mukhtiarkar, Gulshan-e-Iqbal, Karachi-East vide No. MUKH/G.I./ 780/2016 dated 25.10.2016, addressed to Additional Deputy Commissioner- II, Karachi-East, making a reference therein, to a report stated to be called from the supervising Tapedar, according to which survey No.553, is available in record and no any record of 'acquisition' and payment of compensation to the Respondent No.8, by the, K.D.A. authorities, is available in his office. Such letter under the 'subject of Notice of Appearance', ex-facie, was not only unjustified but has been issued malafidely, in collaboration of Respondent No.8, to grab the 'subject property' of petitioner viz. Tariq Ahmed Khan, though, such claim of Respondent No.8 Muhammad Abdul Salam besides, contrary to the record of rights maintained by the Revenue Department, is in 'contravention' of orders of this Hon'ble High Court, passed in C.P. No.D- 823/1989 and C.P. No.D-280/1997. It is pertinent to mention herein, that survey No.553, was acquired by the K.D.A's authorities long ago in the year, 1968, therefore, the claim of Respondent No.8, in C. P. No. D-3898 of 2017, was/is entirely false, fake and frivolous. The 'said property' in fact is owned by the K.D.A. authorities and the same was utilized for construction and widening of the university road linked up with Abul Hassan Ispahani Road. Letter No. Mulch/ G.I./ 780/ 2016 dated 25.10.2016 [Annexure 'P/9' to MoP in C.P. No.D-3898 of 2017], of Mukhtiarkar Gulshan-e-lqbal, Karachi, is reproduced herein below:- OFFICE OF THE MUKHTIARKAR GULSHAN-E-IQBAL KARACHI EAST No. Mukh/G.I/ 780 / 2016, Karachi, Dated 25.10.2016 To, The Additional Deputy Commissioner-II Karachi East.
Subject: NOTICE FOR APPEARANCE IN SURVEY NO.553, ADMEASURING 02-10 ACRES DEH GUJRO, GULSHAN-E-IQBAL KARACHI EAST.
Reference: Your office letter No.DC/K/ E/Rev.Br/2773/2016:Karachi dated 19.10.2016 It is submitted that report called from the Supervising Tapedar of the Gulshan-e-Iqbal after visiting the site and verifying the record of this office has reported that Kabuli Survey No.553, Deh Guhjro, area measuring 02-10 acres. As per entry No.62/107 measuring 00-18 Ghuntaas and entry 32 VF-II dated 19.02.2016 measuring 1.32 acres of Deh Guhjro page No. 0029132 Book No.00292, is available in this office record (copy enclosed). There is No any record of acquisition and payment of compensation paid to the owners of Kabuli Survey No.553, Deh Gujhro is available in this office hence KDA have no right in the Survey No.553 Deh Gujhro, Karachi East and title is intact with the owner (Muhammad Abdul Salam Khan).
It is further reported that approximately 2000 Sq. Yards is in possession of Owner of above mentioned land and Petrol Pump has been made at the said site about 1000 Sq. Yards and owner of Survey No.596 cover an area of 1890 Sq. Yards under boundary wall on the said land and remaining area of said survey No. is vancat.
It is submitted that fresh demarcation of survey No. 553 of Deh Gujhro area measuring 02-10 acres from the office of the Survey Superintendent Karachi.
The report is submitted for kind perusal Sd/- Mukhtiarkar Gulshan-e-Iqbal Karachi East 17. The aforesaid letter dated 25.10.2016 [Annexure 'P/9 to MoP in C.P. No.D-3898 of 2017], issued by Mukhtiarkar, Gulshan-e-Iqbal, Karachi-East, in fact, is an active attempt to unlawfully shift the ownership of survey No.553 from KDA's authorities into the name of Respondent No.8, with a view to grab the 'subject land' of the Petitioner i.e. survey No.596 of Deh Gujro, Tapo Soongal, Gulshan-e-Iqbal, Karachi. It is worth to mention herein, that Survey No.553, Deh: Gujro, was duly acquired by the KDA's authorities in the year, 1968 and in this regard a proper gazette [Annexure 'P/ 10' to MoP in C.P. No.D-3898 of 2017], along with handing and taking of the Revenue Survey numbers acquired by the KDA including Survey No.553, was also issued by the KDA's authorities. The aforesaid Report dated 25.10.2016, in fact, is bogus and fabricated. Needless to say, during the course of 'restoration' and repossession of the 'subject property' to the Petitioner, a proper 'demarcation' was also conducted. The Demarcation Report and the detailed map [Annexure 'P/13' and 'P/13A' to the MoP in C.P.
No.D-3898 of 2017], have been duly signed by KDA and Revenue authorities.
18. The Assistant Commissioner it appears without application of mind has erroneously presumed, that the land of petitioner vide Survey No.596, Deh Gujro, overlaps an area of 1890 sq.yds on survey No.553 of Deh Gujro.
The letter of Assistant Commissioner dated 30.01.2017 [Annexure 'P/14' to the MoP in C.P. No.D-3898 of 2017], titled cancellation of forwarding lay out plan survey No. 596 Deh gujro, District East, Karachi' addressed to Additional Deputy Commissioner, Karachi-East, vide letter No . AC /G . I/K E/186/2017 dated 30.1.2017 [Annexure 'P/14' to the MoP in C.P. No. 3898 of 2017] has thus been issued unlawfully. The said letter dated 30.01.2017 of Assistant Commissioner Gulshan-e-Iqbal Karachi-East, reads as follows:- OFFICE OF THE ASSISTANT COMMISSIONER GULSHNA-E-IQBAL KARACHI EAST District Council Building, Near Civic Center, Karachi, (Tel# 021-99231424) No.AC/G.I/K/E/136/ 2017, Dated: 30/01/2017 To The Additional Deputy Commissioner-II, Karachi East, SUBJECT: CANCELLATION OF FOR-WARDING LAYOUT PLAN SURVEY NO. 596 OF DEH GUJRO, DISTRICT EAST KARACHI.
The report in the matter had already been furnished by Mukhtiarkar Gulshan-e-Iqbal Karachi East, Vide his letter No.Mukh/G.1/780/2016, dated 25.10.2016, along with its encloses. After visiting the site by the Mukhtiarkar Gulshan-e-Iqbal Karachi East, reported that owner of survey No.596 of Deh Guiro, overlap art area of 1890 sq square yards illegally under boundary wall on survey No.553 of Deh Gujro, Shown in yellow color. The same is submitted herewith for kind perusal and further necessary action. [Underlining is ours].
Sd/- (Muhammad Arif Kalwar)
ASSISTANT COMMISSIONER GULSHAN-E-IQBAL KARACHI EAST
19. The aforesaid letter dated 30.01.2017 [Annexure P/14' to the MoP in C.P. No.D-3898 of 2017] of Assistant Commissioner, Gulshan-e-Iqbal, Karachi East viz. Mr. Muhammad Arif Kalwar, on the face of it is an active attempt of fabrication and that too in contradiction of 'demarcation report' dated 19.2.2002. [Annexure 'P/13' to the MoP of C.P. No.D-3898 of .2017]. The initiation of such a letter indeed, falls within the category of corrupt practices. It is worth mentioning, that Survey No.553, went into the domain of Karachi Development Authority in 1968. Respondent No.8 viz. Muhammad Abdul Salam Khan, however, in calculated manner with the help of Respondents Nos.4 to 6, somehow, has tampered/altered the record of Deh Gujro lying under the custody of Respondent No.6 i.e. Mukhtiarkar, Gulshan-e-Iqbal, Karachi. The claim of Respondent No.8, ex-facie, is entirely a fake and frivolous claim. Respondent No.8, in no event can claim any right over and regarding Survey No.553 which in fact is owned by KDA authorities and evidently has been used/ utilized for construction and widening the university road linked-up, with Abul Hassan Isphani Road.
20. The Additional Deputy Commissioner-II, Karachi-East, [Muhammad Khan Rind] while, relying upon the said fabricated report of Mukhtiarkar dated 25.10.2016 [Annexure 'P/9' to the MoP of C.P. No.D-3898 of 2017], has erroneously wrote a letter No.DC/K/ E/ Rev. Br/ 322/ 2017 dated 30.1.2017 [Annexure 'P/15' to the MoP of C.P.
No.D-3898 of 2017], to the Director General, Sindh Building Control Authority [In short SBCA] for cancellation of forwarding lay out plan of Survey No.596, Deh Gujro, District Karachi-East regarding the 'subject property' of the petitioner. In consequence thereof, the Petitioners are thus continuously facing hardship. Not only hardship, as stated, but as a result thereof, the staff of Respondent No.7, in C.P. No.D-3898 of 2017, without any 'prior notice', opted to rush at the 'subject property' and sealed the same on 25.4.2017, which action thereafter, was also challenged.
21. Again on 02.5.2017, the staff of Respondent No.7 [Director General SBCA], without giving any opportunity of hearing to the petitioner in C.P. No.3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others] and/or serving any 'compulsory notice' rushed to the 'subject property' and demolished the construction and 'boundary wall' of the 'subject property'. In doing all this illegal acts, the active underhand assistance on the Art of Respondent No.8, was also available to the wrong doers. It is pertinent to mention herein, that the impugned letter dated 30.01.2017 [Annexure 'P/15' to the MoP of C.P. No.D-3898 of 2017] referred to here-in-above, of Mr. Muhammad Khan Rind, the then, Additional Deputy Commissioner, issued on behalf of the Deputy Commissioner, is manifestly, in contradiction with the earlier letter issued by his predecessor dated 20.1.2015 vide No.DC(E)/Rev.Br/52/2015 dated 20.1.2015. [Annexure 'P/16' to MoP in C.P. No.D-3898 of 2017].
22. Being relevant, the aforesaid letter No.DC(E)/Rev.Br/52/2015 dated 20.01.2015, and letter dated 30.01.2017 are reproduced at 'a' and 'b' respectively, herein below: 'a' PH.99231422.
OFFICE OF THE DEPUTY COMMISSIONER KARACHI EAST.
No.D.C (E)/Rev.Br./52/2015, Karachi the dated: 20.01.2015 To, The Director General, Sindh Building Control Authority, Karachi.
Subject: REQUEST FOR FORWARDING THE LAND DOCUMENTS TO SBCA OF SURVEY NO.596 MEASURING 1890 SO. YARDS IN DEH GUJHRO TAPO GUJHRO TALUKA EAST GULSHAN-E-IQBAL BLOCK-7, KARACHI.
Enclosed please find herewith a self-content report furnished by Mukhtiarkar Gulshan-e-lqbal Karachi East, vide his letter No. Mukh (Rev)/G. / K /E/ 14/2015 , dated 17.01.2015, duly forwarded by the Assistant Commissioner Gulshan-e-lqbal, under letter No . AC/G . / K/E/07/20 15 , dated 20.01.2015, on the subject captioned above, whereby applicant has requested/submitted three sets of proposed layout plan for forwarding the same to the Sindh Building Control Authority Karachi. [Underlining is ours] Three sets of proposed layout plan are enclosed for taking further necessary action in the matter as per law policy/ guidelines provided by the Board of Revenue, Government of Sindh Karachi. SD/- DEPUTY COMMISSIONER KARACHI-EAST `b' PH.99231422.
OFFICE OF THE DEPUTY COMMISSIONER KARACHI EAST.
No.D.C/K/E/Rev.Br./ 322 /2017, Karachi the dated: 30.01.2017 SAY NO TO CORRUPTION To, The Director General, Sindh Building Control Authority, Karachi.
Subject: CANCELLATION OF FOR-WARDING LAYOUT PLAN. SURVEY NO.596, OF DEH GUJRO, DISTRICT EAST KARACHI The detailed report of Mukhtiarkar Gulshan-e-lqbal Karachi East, vide his letter No.Mukh/G. 1/780/2016, dated 25.10.2016, duly recommended by the Assistant Commissioner Gulshan-e-lqbal Karachi East, under letter No.AC/G.1/186/ 2017, dated 30.01.2017, along with its enclosures, on the subject captioned above, is submitted herewith for taking further necessary action as per law and policy.
SD/- (MUHAMMAD KHAN RIND) ADDL: DEPUTY COMMISSIONER-II FOR DEPUTY COMMISSIONER KARACHI EAST Copy to:-
1. The Senior Director Master Plan, Sindh Building Control Authority Karachi.
2 The Assistant Commissioner/Mukhtiarkar Gulshan-e-Iqbal Karachi East.
3. The P.A. to Deputy Commissioner Karachi East.
23. Moreover, the earlier report of Mukhtiarkar dated 17.01.2015 [Annexure 'P/17' to MoP of C.P. No.3898 of 2017], also belies the report dated 25.10.2015, which report, it is needless to say, is not only a fabricated document but the same, somehow, has been managed and issued in a manner to extend favour to the land grabber viz. Mr. Abdul Salam Khan. The said earlier report of Mukhtiarkar Gulshan-e-Iqbal Karachi-East, dated 17.01.2015, being relevant, is reproduced herein:- OFFICE OF THE MUKHTIARKAR GULSHAN-E-IQBAL KARACHI EASTNo. Mukh/G. / 14/2015 dated 17.10.2015 The Assistant Commissioner, Gulshan-e-Iqbal Karachi East.
Subject: REQUEST FOR FOR-WARDING THE LAND DOCUMENTS TO SBCA OF SURVEY NO.596 MEASURING 1890 SQ. YARDS IN DEH GUJHRO TAPO GUJHRO TALUKA EAST GULSHAN-E-IQBAL BLOCK-7, KARACHI.
The application of Tariq Ahmed Khan son of Abdul Ghani Khan has made an application dated on 22.12.14 received through Deputy Commissioner Karachi East vide letter No.DC/K/E/ Rev.Br./1816 dated 30-12-2014 along with layout Plan of land measuring 1890.00 Sq. Yards of Survey No.596 of Deh Gujhro for approval of the same Layout plan.
The Tapedar of the beat, after verifying site has reported that as per entry No.42 dated 30-04-2000 of VF-II of Deh Gujhro the said land measuring 1890-00 Sq. Yards, in favuor of Mr. Tariq Ahmed Khan son of Abdul Ghani Khan. [Underlining is ours] In view of above facts the layout Plan produced by the applicant in five copies is enclosed herewith for approval from the Sindh Building Control Authority Karachi according to the provisions.
The copies of layout plan and VF-II are enclosed herewith. Sd/- Mukhtiarkar Gulshan-e-Iqbal Karachi East.
24. Likewise, the letter/report of Assistant Commissioner, Gulshan-e-Iqbal, Karachi-East, bearing No.AC/GI/K/E/ 136/2017 dated 30.01.2017 [Annexure P/14' to the MoP of C.P. No:D-3898 of 2017], reproduced here-inabove, has also been issued in contravention of the earlier letter dated 20.01.2015 [Annexure 'P/18' to the MoP of C.P. No.3898 of 2017], issued by his office wherein, a reference has been made to the report of Mukhtiarkar bearing No.Mukht/GI/14/2015 dated 12.01.2015 [Annexure 'P/17 to the MoP of C.P. No.D-3898 of 2017]. The letter of Assistant Commissioner, Gulshan-e-lqbal, Karachi-East dated 20.01.2015 [Annexure 'P/18' to the MoP in C.P. No.D-3898-of 2017] and Mukhtiarkar's Report No.Mukht/GI/14/2015 dated 12.01.2015 [Annexure 'P/18' to the MoP in C.P. No.D-3898 of 2017] are reproduced at [a] and [b] respectively, here-in- below:- [a] OFFICE OF THE MUKHTIARKAR- GULSHAN-E-IQBAL, KARACHI EAST No.MUKHT/G.I/14/2015 Dated: 12.01.2015 The Assistant Commissioner, Gulshan-e-Iqbal Karachi East.
Subject: REQUEST FOR FORWARD-ING THE LAND TO SBCA OF SURVEY NO.596 MEASURING 1890 SQ. YARDS IN DEH GUJHRO TAPO GUJHRO TALUKA EAST GULSHAN-EIQBAL, BLOCK-7, KARACHI The application of Tariq Ahmed Khan son of Abdul Ghani Khan has made an application dated 22-12-2014 received through Deputy Commissioner Karachi East vide letter No.DC/K/E/Rev. Br. /1816 dated 30-12-2014 along with layout Plan of land measuring 1890.00 Sq. Yards of Survey No.596 of Deh Gujhro for approval of the same layout Plan.
The Tapedar of the beat, after verifying site has reported that as per entry No.42 dated 03-04-2000 of VF-II of Deh Gujhro the said land measuring 1890 Sq. Yards, in favour of Mr. Tariq Ahmed Khan son of Abdul Ghani Khan. [Underlining is ours].
In view of above facts the layout Plan produced by the applicant in five copies is enclosed herewith for approval from the Sindh Building Control Authority Karachi according to the provisions.
The copies of layout plan and VF-II are enclosed herewith.
Mukhtiarkar Gulshan-e-Iqbal Karachi East.
[b] OFFICE OF THE ASSISTANT COMMISSIONER GULSHAN-E-IQBAL DISTRICT EAST KARACHI No.AC/G.I/K/E/ 07 /2015, Karachi, the dated 20.01.2015.
To, The Deputy Commissioner, Karachi East.
Subject: REQUEST FOR FORWARD-ING THE LAND DOCUMENTS TO SBCA OF SURVEY NO.596 MEASURING 1890 SQ. YARDS IN DEH GUJHRO TAPO GUJHRO TALUKA EAST GULSHAN-E-IQBAL BLOCK-7, KARACHI.
The report in the matter was furnished by Mukhtiarkar Gulshan-e-Iqbal Karachi East, vide his office letter No. Mukh/ G.I/14/2015, dated 12.01.2015, along with its enclosures, on the subject captioned above, the same is submitted herewith for kind perusal and further necessary action, please.
Sd/-20/01/15 ASSISTANT COMMISSIONER GULSHAN-E-IQBAL KARACHI EAST CC.
The Mukhtiarkar Gulshan-e-lqbal Karachi East.
25. Despite above position, on 01.6.2017, at about 2:00 p.m., Respondent No.10, on instructions of Respondent No.8, along with police personals rushed at the 'subject property' viz: land measuring 1890 sq. yds., Survey No.596, Deh Gujro, Tapo: Soongal, Gulshan-e-Iqbal, Karachi, and attempted to dis-possess the Petitioner herein viz. Tariq Ahmed Khan by threatening the Chowkidar/security guards of the petitioner, but on account of timely intervention they, could not succeed to do so. The Respondent No.10 and others while, leaving the 'subject property' issued serious threats of dire consequences to the Petitioner in C.P. No.D-3898 of 2017 viz. Tariq Ahmed Khan.
26. Needless to say, the 'subject property' viz. land measuring 1890 sq. yds., Survey No. 596, Deh Gujro, Tapo: Soongal, Gulshan-e-Iqbal Town, Karachi, which was earlier unlawfully acquired by the K.D.A. which was later on restored and re-possessed to the petitioner in compliance with the orders of this Honourable High Court in C.P.
No. D-823/1989 and C.P. No.D-280/1997. Respondent No.8, nevertheless, in his own wisdom approached to Respondents Nos. 4, 5, 6, 9 and 10, for their help and assistance, in order to grab the 'subject property' viz. land measuring 1890 sq. yds., Survey No.596, Deh Gujro, Tapo: Soongal, Gulshan-e-Iqbal Town, Karachi belonging to the Petitioner. Whereupon, certain coercive letters were issued to the Petitioner by Respondents Nos.4, 5, 6 and 9, in utter violation of orders passed by this Court in the aforesaid mentioned Constitutional Petitions.
27. The Petitioner in C.P. No.D-3898 of 2017 viz. Tariq Ahmed Khan, thus once again apprehending illegal and 'coercive action', by Respondents Nos.7 and 10, under the direction of Respondents Nos.4, 5, 6 and 9 and, at the behest and instigation of private Respondent No.8 [land grabber], opted to approach, this Court by way of filing the Constitutional Petition No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others] 'inter alia', with a prayer that Respondents Nos.7 and 10, be restrained from taking any 'coercive action' under the direction of Respondents Nos.2 to 6 and 9 and at the behest and instigation of Private Respondent No.8 viz. Muhammad Abdul Salam Khan.
28 This Court, on 05.06.2017, while, issuing notice to the Respondents for 15.06.2017 and learned A.A.G., in the meantime, police officers [officials] were directed to act strictly in accordance with law. Being relevant order dated 05.06.2017, passed in C.P. No. D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and others], is reproduced herein below:- "05.06.2017 Mr. Fayyaz Ahmed, Advocate.
1. Urgency granted
2. To be complied within three (03) days.
3. Exemption granted subject to all just exceptions.
4&5. Learned counsel states that previous petition bearing C.P. No.D-823/1989 was disposed with certain instructions. Counsel states that since the respondents Nos. 8 and 10 herein, were not the party in that petition hence petitioner is unable to file contempt application against him and thereafter instant petition has been filed seeking restraining order against the respondents Nos. 8 and 10.
Subject to maintainability of this petition, let pre-admission notice be issued to the respondents as well as AAG for 15.06.2017. In the meantime, police officers are directed to act strictly in accordance with law."
[Underlining is ours].
29. In the aforesaid Petitions i.e. C.P. No. D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others] and C.P. No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others], the Respondents therein, were duly served. In response, the official Respondents and private Respondent No.13 in C.P. No. D-4560 of 2017 [Respondent No. 8 in C.P. No.D-3898 of 2017], opted to file their 'comments'/ 'reply[ies'] and 'counter affidavit[s]', wherein, the adverse 'stand'/' assertions'/ 'averments' made in both the MoP's, were denied/ controverted.
30. Lastly, on 14.02.2019, when above two [2] petitions came-up before us then, we heard Mr. Salahuddin Ahmed along with Messrs Salman Mirza and Muhammad Rizwan, learned counsel for the Petitioners, Ms. Shamin Imran, Advocate, Internee of A.G. Sindh, Mr. Sartaj Malgani along with Mr. Rao Sarfaraz Ahmed, learned counsel for Respondent No.8, M/s. Usman Tufail Shaikh and Khurram Ghayas, Advocates along with Jameel Ahmed Baloch, Additional Director and Asif Ali Memon, Director Land Management and Estate, KDA, learned counsel for Respondent No.10, Mr. Khaleeq Ahmed, learned counsel for Respondent No.13 and Mr. Fayyaz Ahmed, learned counsel for Respondent No.15 in C.P. No.D-4560 of 2017. As far as C.P. No.D-3898 of 2017 is concerned, we heard Mr. Fayyaz Ahmed, learned counsel for the Petitioner, Ms. Shamin Imran, Advocate, Internee of A.G. Sindh, Messrs Usman Tufail Shaikh and Khurram Ghayas, learned counsel for Respondent No.2, Mr. Sartaj Malgani along with Mr. Rao Sarfaraz Ahmed, learned counsel for Respondent No.7 and Mr. Khaleeq Ahmed, learned counsel for Respondent No.8 and also perused the available record before us with their valuable assistance.
31. Mr. Salahuddin Ahmed, learned counsel for the Petitioners in C. P. No.D-4560 of 2017 [Shahryar Waqas Malik and another v. Province of Sindh and 15 others], at the very outset focused the attention of this Court towards 'Clause 10' of the Supplementary Agreement, of Sale Dated 26.02.2017 [Annexure 'P/9' to the MoP in C.P. No.D-4560 of 2017], and submitted that in' terms of 'Clause 10' of the Supplementary Agreement of Sale, dated 26.02.2017, the possession of the 'subject property' has evidently been delivered to Vendee No.2 i.e. Petitioners in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others].
For ready reference, 'Clause 10' of Supplementary Agreement of Sale, dated 26.02.2017 [Annexure 'P/9' to the MoP of C.P. No.D-4560 of 2017], is reproduced herein-in-below:- "10. The Vendor and Vendee No.1 hereby declare that the possession of the said land has already been delivered to the Vendee No.2 in part performance of earlier Agreement of Sale." [Underlining is ours].
32. Mr. Salahuddin Ahmed, learned counsel for the Petitioners in C.P. No.D-4560 of 2017, while referring to 'clause 10' of the Supplementary Agreement of Sale, dated 26.02.2017 argued that the Petitioners' dis- possessing, from the 'subject property' is illegal and unlawful. In this regard reference was made to 'Paras 5 and 6' of the MoP in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], and strenuously contended that the said act of the Petitioners' dispossession by Respondents Nos. 3, 4, 6, 8, 10 and 12, is not only illegal, void, ultra vires but also is against the 'principles of natural justice'. With a view to properly appreciate the case of Petitioners, we would like reproduce herein, paras 5 and 6 of the 'MoP' in C.P. No.D-4560 of 2017, respectively, as under:- "5. The Petitioners submit that since all the actions of Respondents Nos. 3, 4, 6, 8, 10 and 12 in collusion with each other and at the instigation of the Respondents Nos. 13 and 14 are without any notice in writing, the same being against the principle of natural justice, are ab initio illegal, unlawful, mala fide, ultra vires, unconstitutional, without jurisdiction, null and void having no legal effect whatsoever.
6. The Petitioners submit that neither Respondent No.12 nor any other Respondent nor any government officer had/has any authority to dispossess the Petitioners or any person claiming through or under them from the said plot without due process of law. Accordingly, this act of dispossession is not only illegal, unlawful, unconstitutional, ultra vires, mala fide and without jurisdiction but also violation of order dated 5.6.2017 of this Hon'ble court passed in C.P. No.D-3989 of 2017".[Underlining is ours]
33. Mr. Salahuddin Ahmed, learned counsel for the Petitioners in C.P. No.D-4560 of 2017, in order to establish the construction of boundary wall at the 'subject property' viz. land measuring 1890 sq. yds., Survey No.596, Deh Gujro, Tapo: Soongal, Gulshan-e-Iqbal Town, Karachi, by the Petitioners and later on, its 'demolition' by the officials of Respondents Nos. 3, 5, 6, 10 and 12, at the 'instigation' and 'behest' of private Respondent No.13 namely Muhammad Abdul Salam Khan [who is Respondent No.8 in Constitutional Petition No.D-3898 of 2017], attracted the attention of this Court towards' paras 5 and 6 of the 'comments' in reply to the Memo of Petition in C.P. No.D-4560 of 2017 and forceful 1% contended that the boundary wall raised by the Petitioners in C.P.
No.D-4560 of 2017 i.e. at the 'subject property' has been demolished by the official Respondents Nos. 3, 5, 6, 10 and 12, illegally. Per learned counsel for the Petitioners, not only the act of demolish of the Petitioners 'boundary wall', dis-possessing of the Petitioners is illegal but also the impugned order dated 21.2.2017 [Annexure 'P/21' to the MoP of C.P. No.D-4560 of 2017], passed by Additional Deputy Commissioner-II on behalf of Deputy Commissioner Karachi-East, is erroneous and illegal, as such, the same is liable to be set- aside.
34. This contention of Mr. Salahuddin Ahmed, learned counsel for the Petitioners in C.P. No.D-4560 of 2017 needs to be seen in juxtaposition of 'Paras 5 and 6' of the 'comments'/'reply' of Muhammad Abdul Salam Khan to Memo of Petition [In short MoP]. In view of this position, we need it appropriate to reproduce also 'Paras 5 and 6' of Respondent No.13's 'comments' in C.P. No.D-4560 of 2017, [who, is Respondent No.8 in C.P. No.D- 3898 of 2017], herein-under:-
5. That the contents of Para 6 of the alleged facts of the petition admitted to the extent of construction of boundary wall. However, it is submitted that the petitioner without consent, illegally constructed the wall at the land of Answering Respondent therefore, the Answering Respondent approached concerned authorities and got demolished the illegal construction over the land of Respondent No.13. It is necessary to mention here that at the time of demolition of alleged construction the petitioners and their accomplice left the piece of land of the respondent. [Underlining is ours]
6. That the contents of Para 7 of the alleged facts of the petition pertains to the affairs between the petitioner and other Respondent, hence need no comments. [Underlining is ours]. [see para 6 of the MoP in C.P. No.D- 4560 of -2017 reproduced in para 32 hereof]
35. While, concluding his arguments, Mr. Salahuddin Ahmed, learned counsel for the Petitioners in C.P. No.D- 4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], vehemently contended that not only the 'impugned order' dated 21.2.2017 [Annexure 'P/21' to the Amended MoP, filed pursuant to and in compliance with order dated 13.02.2017], is liable to be set-aside but all other actions based/predicted thereupon, are also needed to be declared as null, void and of no legal effect. Further, official Respondents, as urged, by Mr. Salahuddin Ahmed, be directed to not only 'restore possession' of the 'subject property' to Petitioners but the Petitioners be also permitted to again raise/construct the demolished boundary wall, on the 'subject property'.
36. Mr. Fayyaz Ahmed, learned counsel for Respondent No.15 viz. Tariq Ahmed Khan son of Abdul Ghani Khan who is also Petitioner in C.P. No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others], while, adopting the arguments of Mr. Salahuddin Ahmed, learned counsel for the Petitioners in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], further focused the attention of this Court towards' C.P. No.D-823 of 1989 [Tariq Ahmed Khan v. Karachi Development Authority] and submitted that the said C.P., has already been decided in favour of the Petitioner i.e. Tariq Ahmed Khan. From perusal of the Judgment dated 09.02.1995 [Annexure 'P/1' to the MoP of C.P. No.D-3898 of 2017], it reflects that one Mr. Badruddinja Qureshi, the Land Acquisition Officer of KDA, had expressly averred in the 'counter affidavit' filed by him in the said Constitutional Petition bearing No. D-823 of 1989 [Tariq Ahmed Khan v. Karachi Development Authority), that KDA, had constructed a road after a Notification of the Scheme No.24, in the years, 1965-1966 i.e. on the demarcated land, lying vacant. Per Respondent's [KDA'sj version, in the said 'counter affidavit' the acquired land, is belonging to the Petitioner viz. Tariq Ahmed Khan. According to KDA's stand, later-on a 'Resolution' was passed and KDA finally in the year, 1992 paid compensation to the Petitioner viz. Tariq Ahmed Khan Lodhi, by way of a cross cheque of Rs.1,23,213/- [Rupees One Lac, twenty three thousand, two hundred thirteen only].
37. The said 'counter affidavit', filed by the Land Acquisition Officer of KDA namely Mr. Badruddin-ja Qureshi, however, is silent as to whether, any 'Notification', as required under law, viza-viz acquiring land, was ever issued or the position remained otherwise. In the said Constitutional Petition No.D-823 of 1989 [Tariq Ahmed Khan v. Karachi Development Authority], in fact, reliance, instead of Notification, was placed on a Resolution, passed by the Governing Body of KDA [KDA, it is needless to say, is one of the Respondents in the two C.Ps. in hand]. The said Resolution No.138, it appears, was passed on 27.8.1988. According to the said Resolution, the Assistant Commissioner/ Deputy Commissioner concerned, was to assess and intimate the KDA, about the value of the land belonging to the Petitioner viz. Tariq Ahmed Khan Lodhi, i.e. on the basis of value prevailing at the time of the acquisition of the subject land. In the judgment dated 09.02.1995, passed in Constitutional Petition No.D-823 of 1989 [Tariq Ahmed Khan v. Karachi Development Authority], by a Division Bench of this Court, it has been observed that the said Resolution No.138, passed on 27.8.1992 cannot be a substitution for a 'Notification' [s], which under law was/were required to be issued under Sections 4, 6 and 9 of the Land Acquisition Act. Further, the said 'Resolution' since, was passed in the year, 1988, i.e. after taking over the 'subject land', long ago, as such, the illegal and unlawful act [s] committed by KDA, as observed, were not liable to be regularized or legalized by way of passing a Resolution at belated stage. Moreover, KDA, was also found unable to show or place on record any proof/letter written by KDA, to the Deputy Commissioner or Revenue department, viz-a-viz acquiring the land on behalf of KDA's authorities.
38. Per Mr. Fayyaz Ahmed, Advocate, Tariq Ahmed Khan Lodhi, [Petitioner in C.P. No.D-3898 of 2017], is the owner of the land admeasuring 2.11 acres [11000 sq.yds], in Deh Gujro, District Karachi, East, out of new Survey No.596, which evidently was purchased from one Mst. Zaina wife of Taj Muhammad and others by way of a Registered Sale Deed dated 19.11.1979 [Annexure 'P/1' to the MoP in C.P. No.D-4560 of 2017]. The said land/property has also been entered in the name of Petitioner viz. Tariq Ahmed Khan in V.F. No.VII dated 28.11.1979. It appears that KDA, did not utilize the major portion of said land, leaving 1890 sq.yds, as un- utilized. The said unutilized portion of land measuring 1890 sq. yards, was ordered to be returned back to the owner namely, Tariq Ahmed. Khan, as per Judgment dated 15.10.1998, passed by a Division Bench of this Court in C.P. No.D-280 of 1997 [Tariq Ahmed Khan Lodhi v. KDA and another], within a period of three [3] months w.e.f. 15.10.1998.
39. In contra, Mr. Khaleeq Ahmed, Learned counsel for Respondent No.13 viz. Muhammad Abdul Salam Khan in C.P. No.D-4560 of 2017 [Shahryar Waqas Malik and others v. Province of Sindh and others] and Respondent No.8, in C.P. No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others], contended that the Memorandum of Understanding dated 26.07.2016 [In short MoU], and various Agreements of Sale i.e. Agreement of Sale dated 01.08.2016, Agreement of Sale dated 11.08.2016, Agreement of Sale dated 06.09.2016 and Supplementary Agreement of Sale dated 26.02.2017 [Annexures 'P/2', 'P/3', 'P/4', 'P5' and 'P/9' to the MoP of C.P. No.D-1560 of 2017] are irrelevant, as far as, Mr. Muhammad Abdul Salam Khan is concerned. Mr. Khaleeq Ahmed, learned counsel for Muhammad Abdul Salam Khan, nevertheless, contended that the same have been executed by the parties thereto, in violation of order dated 10.10.2016, passed by a single Bench of this Court in Suit No.345 of 2002 [Rauf Hassan Chaudhry v. Mr. Haji Amin Memon and others].
For to understand the true position, we would like to reproduce the said Order dated 10.10.2016, passed by a single Bench of this Court in Suit No.345 of 2002 [Rauf Hassan Chaudhry v. Haji Memon and 3 others], herein below:- '10.10.2016 Mr. Umair Kazi, Advocate for Plaintiff
1. Granted.
2-4) Notices to Defendants through all modes except publication.
The dispute is in respect of Plot No.596, Deh Gujro, University Road, (Gulshan-e-Iqbal), Block-7, Karachi, admeasuring 1890 square yards. According to learned counsel for Plaintiff, the interim injunction was confirmed by the order dated 15.03.2004 on the undertaking of Defendants that they will not create any third party interest in the subject property.
It is contended that the contesting Defendant No.3-Tariq Ahmed Khan Lodhi, who is the owner of the subject property has purportedly sold it to Builders, who are about to announce a project and start booking and thus third party interest will be created, with the object to strangulate the instant proceeding. Therefore, the Plaintiff has moved a contempt application against the said Defendant No.3 and has also moved an application for impleading of (i) Nizami Builders and Developers through Salman Masood, (ii) SWM Corporation through Shehryar Waqas Malik and (ii) Sub-Registrar, Gulshan-e-Iqbal Town, Karachi. As an abundant caution, he has moved a fresh injunction application, seeking restraining orders against the above named entities.
In these circumstances, the Nazir of this Court is appointed as Commissioner to inspect the subject property in order to verify the above factual position. Nazir may take the assistance of City Surveyor in order to specifically identify the subject property and to ensure that the interim injunctive relief passed earlier on 15.03.2004 and in this order is not misused against some other bona fide owners of some other property. Nazir will take photographs of the subject property and may also take assistance of the area Police Station as well.
In this regard, the concerned SSP is directed to assist the Nazir of this Court by issuing necessary directions to the concerned Police Station.
Till the next date of hearing, no third party interest in the form of booking in some proposed multistoreyed building shall be created nor any other activity at the subject property will be carried out, which can interfere in the earlier order of 15.03.2004. If report of the Nazir confirms the above factual position, only then the Defendant No.3 has to show cause that why the action against him should not be taken Under the Contempt of Court Ordinance, 2003.Tentatively fee of the Nazir shall be Rs.20,000/- (Rupees Twenty Thousand only) to be paid by Plaintiff. Keeping in view the urgency, the site inspection should be done on 14.10.2016 and report be submitted before the next date of hearing. Adjourned to 27.10.2016." [Underlining is ours].
40. According to Mr. Khaleeq Ahmed, learned counsel for Respondent No.13 in C.P. No.D-4560 of 2017 and Respondent No.8 in C.P. No.D-3898 of 2017, though the said Respondent viz. Abdul Salam Khan admits the construction of 'boundary wall' by the Petitioners in C.P. No.4560 of .2017, on the 'subject land', but as urged by Mr. Khaleeq Ahmed, it was constructed illegally, as such, on the complaint/ approach of Mr. Muhammad Abdul Salam Khan, the boundary wall raised by the said Petitioners was 'demolished' by the officials Respondents. Mr. Khaleeq Ahmed next contended that before 'demolishing' the 'boundary wall' raised/ constructed at the 'subject land' , ample opportunities were provided to the Petitioners. Per Mr. Khaleeq Ahmed Survey No.596, is far away from the survey No.553, which land, as urged, is belonging to Mr. Muhammad Abdul Salam Khan [who is Respondent No.13 and Respondent No.8 in C.P. No. 4560 of 2017 and C.P. No.D-3898 of 2017 respectively].
Per Mr. Khaleeq Ahmed, the Petitioners in both C.Ps. have no legitimate/vested right over and in respect of the 'subject property'.
41. M. Khaleeq Ahmed, while, defending/ arguing the case on behalf of Respondent No.13 in C.P. No. 4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others] and Respondent No.8 in and C.P. No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others], further contended the answering Respondent viz Muhammad Abdul Salam Khan, has not 'committed any violation' of order dated 05.06.2017, passed in C.P. No.3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 Others], as alleged, by the Petitioners and/or order dated 11.07.2017, passed by this Court C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others]. Mr. Khaleeq Ahmed learned counsel for Muhammad Abdul Salam Khan while, advancing his arguments forcefully contended that both the Petitions in hand, as 'framed' and 'filed', are without any 'cause of action' as no an fundamental right/vested right of the Petitioners in hand, has been infringed/violated, much-less, on the part of Mr. Muhammad Abdul Salam Khan [who is Respondent No.13 in C.P. No.D-4560 of 2017 and Respondent No.8 in C.P. No.3898 of 2017]. Mr. Khaleeq Ahmed, Advocate, while, concluding his arguments, forcefully urged that both the Petitions being devoid of any merits are liable to be dismissed along with the listed applications.
42. Mr. Sartaj Malgani along with Rao Sarfraz Ahmed, learned counsel for Respondent-SBCA, on the other hand submitted that as per 'comments' filed by Syed Saghir Abid Deputy Director [Sch-24] MPD-SBCA, the 'Part Plan' of the plot in question was prepared on 18.10.1999 i.e. pursuant to and in compliance with the Judgment passed by a Division Bench of this Court on 15.10.1998 in C.P. No.D-280 of 1997. [Tariq Ahmed Khan Lodhi v.
KDA and another], and pursuant to passing of a proper Resolution No.148 dated 28.09.1999, by Governing body of KDA. Per said 'comments', the Possession of specified area 1890 sq yards. of survey No. 596, Deh Gujro, has been restored/ handed over to Mr. Tariq Ahmed Khan Lodhi son of Abdul Ghani Khan, and that too, after 'checking' and 'verifying' the 'site plan' by MPD-SBCA. In view of this position, the 'subject property, no doubt, as urged, is belonging to Mr. Tariq Ahmed Khan Lodhi son of Abdul Ghani Khan, who is Respondent No.15 and Petitioner in C.P. No.0-4560 of 2017 and C.P. No.D-3898 of 2017, respectively. In this regard, being relevant, 'Restoration Order' dated 16.10.1999, is reproduced herein-below: KARACHI DEVELOPMENT AUTHORITY DIRECTORATE ESTATE AND ENFORCEMENT NO: KDA/D(E&E)/ 217 Dated: 16.10.1999 RESTORATION ORDER In pursuance of the judgment of the Hon'ble High Court Sindh dated 15.10.1998, in the Constitution Petition No. 280 of 1997 and as accordingly resolved by the Governing Body, KDA vide Resolution No. 146 dated 28.9.1999, and compliance of the orders, of the orders of the Hon'ble High Court, the possession of the specified area of 1890 Sq. yds, of Survey No.596, Deh Gajro is hereby restored in favour of Mr. Tariq Ahmed Khan Lohi son of Abdul Ghani Khan. [Underlining is ours]. Sd/- Director Estate and Enforcement K.D.A. Copy to:--
1. Superintendent Writ Branch, High Court of Sindh.
2. P.S. to Director General, K.D.A.
3. P.S. to Member (A&L), KDA.
4. Chief Engineer, KDA.
5. Director (P&UD), KDA.
6. The Executive Engineer, Gulstan-e-Jauhar Div-IQ, Scho-No.36, KDA to hand-over the physical possession of the land to Mr. Tariq Ahmed Khan Lodhi Khan together with the site plan of the said plot.
7. Ahmed Khan Lodhi to please take-over the physical possession of the above mentioned land from the Executive Engineer, Gulistan-e-Jauhar Div-1, Scheme No.36, KDA.
Sd/- Director Estate and Enforcement K.D.A.
43. Messrs Usman Tufail Shaikh and Khurram Ghayas along with Jameel Ahmed Baloch Additional Director and Asif Ali Memon Director Land Management and Estate, KDA, on the other hand, submitted that, as per record, old Survey No.160, Deh Gujro, was bifurcated from the passing Sui Southern Gas Pipe Line and New Survey Nos. 553 and 596 were resultantly created. According to KDA's stand, the land, belonging to Mr. Tariq Ahmed Khan Lodhi, is Survey No. 596, Old Survey No.160, measuring 2-11 Acres, situated in Deh Gujro, Karachi-East, which, as stated, was affected due to widening of Karachi University Road and compensation was not paid to him. The land owner, viz Mr. Tariq Ahmed Khan Lodhi, thus feeling 'aggrieved', thereafter, had filed C.P. No.D-280 of 1997 [Tariq Ahmed Khan Lodhi v. KDA and another] before this Court.
44. KDA, later on, in compliance with order dated 22.10.2009, passed by this Court in C.P. No.D-280 of 1997 [Tariq Ahmed Khan Lodhi v. KDA and another], compensated the land owner Mr. Tariq Ahmed Khan Lodhi, in lieu of his affected Survey No.596, Deh Gujro, District East Karachi, as Plot Nos. ST-7/1, ST-7/2, ST-4/A/1, block No.1, Scheme-36, Gulistan-e-Jauhar and Survey No.596 [old Survey No.160], Deh Gujro, Scheme-24, Gulshan-e-Iqbal. For ready reference, the 'relevant part' of order dated 22.10.2009, is reproduced herein.
"It is therefore, contended by the learned counsel for the petitioner that this controversy has since been set at rest cannot be reopened by the respondent. Admittedly no exception to the order passed was taken by either of the Respondents. It is stated that, subject land is not claimed by the CDGK, they have no right, title over the subject land. This land belongs to Petitioners situated in Scheme No.24. It may be observed since office of SDPO Gulshan-e-Iqbal has been established. In view of the order already passed as reproduced, it is directed that the Government of Sindh shall compensate the petitioner under the Land Acquisition Act, at the present prevailing market value as determined . under the Land Acquisition Act as deem appropriate but such exercise to be carried out preferably within a period of 12 months but not beyond 18 months as is ordered in respect of the properties mentioned at Sr.2 and 3 above.
It may further be observed that in case of Government of Sindh for any reason fails to acquire the subject land in accordance with Land Acquisition Act as recorded above, it shall restore the possession to the petitioner and shall restore all title recorded in the relevant revenue record. [Underlining is ours].
All pending applications stand disposed of in terms above."
45. Ms. Shamin Imran, Internee of AG Sindh while, defending the concerned official Respondents, submitted that, of course, official Respondents are bound to perform their duties in accordance with law. Per Ms. Shamin Imran, the police officials, are not supposed to interfere in civil disputes, like as the case in hand is, until and unless law and order situation is created, otherwise. Moreover, per Ms. Shamin, the official Respondents i.e. Respondents Nos.3, 4, 6 and 12 in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another 'v. Province of Sindh and 15 others] and Respondents Nos.3, 4, 5, 6 and 10 in C.P. No.D-3898 of 2017 [Tariq Ahmed Khan v.
Province of Sindh and 9 others], have not 'committed' any violation of any restraining order, as alleged, by the Petitioners herein.
46. Head and perused the record.
47. The main grievance of the Petitioners, is in respect of the 'impugned order dated 21.2.2017' [Annexure 'P/21' to the amended MoP in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], passed by Addl. Deputy Commissioner-II Karachi-East whereby, the Director General, Sindh Building Control Authority, [in short SBCA], Karachi and the Director General, Karachi Development Authority, [in short KDA], Karachi, have been directed, not only to cancel the 'Layout Plan' of Mr. Tariq Ahmed Khan Lodhi, Petitioner in C.P. No.D-3898 of 2017 and Respondent No.15 in C.P. No.D-4560 of 2017, which, as stated, has been approved on the Survey No.553 of Deh Gujro instead of Survey No.596, but also to remove all the encroachment including booking office [Gold Ark Residency] and boundary wall from Survey No.553, Deh Gujro, Gulshan-e-Iqbal, Karachi-East forthwith under intimation to the office of Addl. Deputy Commissioner-II, Karachi-East.
48. Along with the 'impugned Order' of 21.02.2017 [Annexure 'P/21' to the amended MoP of C.P. No.4560 of 2017], a Photo-stat copy of a judicial order dated 14.02.2017, [Annexure 'P/20' to the MoP of C.P. No.4560 of 2017], passed by the Commissioner, Karachi Division, Karachi, in Revenue Case No.04 of 2016 [Muhammad Abdul Salam Khan v. The Director KDA and another], has also been endorsed. From perusal of said Order dated 14.02.2017, it reflects that upon hearing of the parties to said Revenue Case No.04 of 2016, the Commissioner, Karachi Division, Karachi, has finally come to the conclusion that the dispute/ matter involved in said Revenue Case No.04 of 2016, is purely a matter of 'land acquisition' and 'claim of compensation', as such, the same does not fall within the ambit of Section 164 [3] of Sindh Land Revenue Act, 1967. Besides, in the said Order dated 14.02.2017, it has also been observed that the matter of same nature is also pending before Provincial Ombudsman, Sindh; as such, while, disposing of the Revenue Case No.04 of 2016, parties thereto were left at liberty to avail/seek their remedies from the competent forum in accordance with law.
49. Notwithstanding the above, the Addl. Deputy Commissioner-II, Karachi while exercising the power of Deputy Commissioner, Karachi-East [Respondent No.3 in C.P. No.D-4560 of 2017 and Respondent No.4 in C.P. No.D- 3898 of 2017], has passed the 'impugned order' dated 21.02.2017 [Annexure 'P/21' to the amended MoP of C.P.
No.D-4560 of 2017]. The said impugned order of 21.02.2017, if seen in juxtaposition of Order dated 14.02.2017, [Annexure 'P/20' to the MoP of C.P. No.4560 of 2017], passed by the Commissioner, Karachi Division, Karachi in Revenue Case No.04 of 2016 [Muhammad Abdul Salam Khan v. The Director KDA and another], then, one can easily reached the conclusion that the 'impugned order' dated 21.02.2017, is not only erroneous, illegal, against the spirit of order dated 14.02.2017 but also has been passed in violation of the 'principle of natural' justice and Article 10-A of Constitution of Islamic Republic of Pakistan, 1973, as no opportunity of hearing has been afforded to the Petitioners i.e. both petitions in hand, before passing the 'impugned order' against them.
50. Evidently while, passing the 'impugned order' dated 21.2.2017 [Annexure 'P/21' to the amended MoP in C.P.
No.D-4560 of 2017], the Addl. Deputy Commissioner-II, Karachi-East, it appears, has not gone through the Order dated 14.02.2017, [Annexure 'P/20' to the MoP of C.P. No.4560 of 2017], passed by the Commissioner, Karachi Division, Karachi, in Revenue Case No.04 of 2016 [Muhammad Abdul Salam Khan v. The Director KDA and the Additional Land Acquisition Cell, KDA], where-under parties thereto, were left at liberty to avail their remedies from the competent forum according to law, otherwise, the 'impugned order' could not have passed. In view of above, we are of the considered opinion that the 'impugned order' dated 21.2.2017, besides, being erroneous, illegal and without jurisdiction has been passed in clear violation of the 'principle of natural justice', as well as, Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. The impugned order dated 21.02.2017 [Annexure 'P/21' to the amended MoP in C.P. No.D-4560 of 2017], as such, is not only liable to be set-aside but possession of the 'subject land' taken in pursuance thereof also needs to be restored to the Petitioners in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others] with permission to re-construct the 'demolished boundary wall' at the 'subject property', by the Petitioners in C.P. No.D-4560 of 2017, however, subject to their own risk and costs.
51. Needless to say, under the provisions of Article 23 of the Constitution of Islamic Republic of Pakistan, 1973, every citizen of Pakistan has a right to 'acquire', 'hold' and 'dispose of' his property, in any part of Pakistan, however, subject to the Constitution of Islamic Republic of Pakistan, 1973 and any reasonable restriction if, imposed by law in the public interest. Moreover, every citizen of Pakistan has also an unfettered right to protect his property as no one can be deprived of his property, save in accordance with law. In this regard reliance, can be placed on the provisions of Articles 23 and 24[1] and [2] of the Constitution of Islamic Republic of Pakistan, 1973. Being relevant, the same are reproduced at [i] and [ii] herein below, respectively;
[i] 23. Provision as to property. Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest.
[ii)
24. Protection of property rights.(1) No person shall be deprived of his property save in accordance with law.
(2). No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3)...
(4)...
52. In the case in hand, since adverse-action has been taken against the Petitioners in C.P. No.D-4560 of 2017 and that too without affording opportunity of hearing to them, as such, on this ground, as well, the Petitioners in C.P. No.D-4560 of 2017 are not only entitled to get back the 'possession' of the 'subject property' i.e. Survey No.596, measuring 1890 sq. yards, situated at Deh Gujro, Block 7, Main University Road, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi but also they deserved to be permitted to again raise the construction of the 'demolished boundary wall' at the 'subject land' as we are of the view that the action of dis-possession of the Petitioners by Respondents Nos. 3, 4, 6 and 12 and demolish the 'boundary wall' raised by the Petitioner in C.P.
No.D-4560 of 2017 is not only illegal but has been taken at the 'instigation' of private Respondents Nos.13 and
14. The impugned order dated 21.2.2017, passed by Addl. Deputy Commissioner-II, Karachi-East besides being without justification, is mala fide and void ab-initio. Needless to say, after incorporation of Article 10-A through 18th amendment in the Constitution of Islamic Republic of Pakistan, 1973, a 'FAIR TRIAL' and 'DUE PROCESS', of course, has now become a fundamental right of every citizen/litigant. In view of this position, now no one can be deprived of its fundamental right of 'fair trial' and 'due process'. Further, in terms of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, no action, detrimental to the life, liberty, body, reputation or property of any person, can be permitted to be taken except in accordance with law. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, in fact, re-enforces the legal position, that a person/litigant, under law, needs to be dealt with in accordance with law and not otherwise. Both Articles 4 and '10-A' of the Constitution of Islamic Republic of Pakistan, 1973, are reproduced respectively, as follows:- "4. (1) to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan.
(2) In, particular-
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. [Underlining is mine].
(b) No person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) No person shall be compelled to do that which the law does not require him to do.
"10-A, Right to fair trial---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
[Underlining is mine].
53. On the above aspect of 'FAIR TRIAL' and 'DUE PROCESS', reliance can be placed on the cases [a].
Shabbir Ahmed v. Kiran Khursheed and 8 others [2012 CLC 1236] and [b]. Babar Hussain Shah and another v.
Mujeeb Ahmed Khan and another [2012 SCMR 1235], wherein, it has been observed as follows:- a. 2012 CLC 1236: "Article 10-A, morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that 'each person shall be accorded certain 'process' if they are deprived of life, liberty or property--- The question then focuses on the nature of the 'process' that is 'due'. The government always has the obligation of providing a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome". Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles. Article 10-A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person." [Emphasis and underlining are mine]. b. 2012 SCMR 1235: "11 ....Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice but after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void."
[Underlining is mine].
54. As far as, the Nazir's Report dated 19.11.2016, submitted by him pursuant to and in compliance with order dated 10.05.2016,' passed by a Single Bench of this Court in Suit No.345 of 2002 [Rauf Hassan Chaudhry v. Mr. Haji Amin Memon and others] is concerned, the same, to the extent of the Petitioners in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], seems irrelevant, as per record, the 'subject property' was in possession of the Petitioners much before their dis-possession. The Nazir's Report dated 19.11.2016 reads as follows:- IN THE HIGH COURT OF SINDH AT KARACHI Suit No.345 of 2002 Rauf Hassan Choudhary ........Plaintiff versus Haji Amin Memon and others..... Defendants.
NAZIR'S ADDITIONAL REPORT
1. With profound respect and in continuation of earlier Nazir report dated 25.10.2016, 1 have the honour to submit that the Hon'ble Court has been pleased to direct the undersigned to carry out inspection of Plot No.596, Deh Gujro, University Road, Karachi admeasuring 1890 square yards in order to verify as to whether Defendant No.3 who is the owner of the subject property has purportedly sold it to builders, who are about to announce a project and start booking, vide order dated 10.10.2016.
2. According to the above order, inspection of the site was to be carried out on 14.10.2016 with the assistance of City Surveyor, but the subject order was received with this office on 14.10.2016 at 12:50 p.m., hence notices were issued to the parties as well as City Surveyor for 17.10.2016, as City Surveyor was not the party in the instant proceedings.
3. However, on 17.10.2016, inspection of the subject property was carried out on the pointation of Mr. Waheed Akhtar, Revenue Surveyor in presence of Mr. Umair Kazi, Advocate for the Plaintiff and such report was placed before the Hon'ble Court vide reference dated 25.10.2016, which has also been taken on record, vide order dated 27.10.2016.
4. It is pertinent to mention here that letter No.4341 dated 01.11.2016 received from Survey Superintendent, Karachi (Marked "A") stating therein that actually the land which was pointed out at the time of inspection was of Survey No.553, Deh Gujro and not of Survey No.596, Deh Gujro. In support whereof copy of Deh Map is also enclosed with the above letter showing both the survey numbers in yellow and green colours. [Underlining is ours]
5. Under these circumstances, this additional report is placed before the Hon'ble Court with request that if approved, inspection of the correct/ exact land may be carried out and parties may be directed to assist the undersigned in this regard, as earlier inspection was carried out either on the pointation of City Surveyor or Advocate for the Plaintiff on incorrect survey number as evident from the letter above mentioned.
6. Submitted for favour of kind perusal and further orders.
Dated 19.11.2016 NAZIR.
55. As per letter of Survey Superintendent, Karachi dated 01.11.2016, the land pointed out by Rauf Hassan Chaudhry/Plaintiff in Suit No.343 of 2002 [Rauf Hassan Chaudhry v. Haji Amir and others], to the Nazir of this Court was Survey No.553, Deh Gujro and not the Survey No.596, Deh Gujro, when the 'subject land' measuring 1890 sq.yards is situated. In this regard, the Report of Survey Superintendent, Karachi being relevant is also reproduced herein-below: NO:88/KUYC/431/2016 GOVERNMENT OF SINDH BOARD OF REVENUE SURVEY SUPERINTENDENT KARACHI 99206351 Dated: 01.11.2016 To, The Nazir, Honourable High Court of Sindh Karachi SUBJECT: SUIT NO.345 OF 2002 FILED BY RA UF HASSSAN CHAUDHRY VERSUS HAJI AMIN MEMON AND OTHERS. , Reference: Your office letter dated 14.10.2016.
In compliance of order dated 10.10.2016 passed by the Hon'ble Court of Sindh Karachi in Suit No. 345 of 2002, the site of S.No.596 Deh Gujro was visited by the Field Survey staff of this office on 17.10.2016 in presence of representative of Nazir. Hon. High Court of Sindh and Advocate of Plaintiff. After verifying the Record it has found that the land pointed out by the Advocate of the Plaintiff is S.No.553 Deh Gujro and not S.No.596 Deh Gujro.
[Underlining is ours].
A copy of Deh Map showing the S.No.553 in yellow colour and S.No.596 in green colour is sent herewith as desired.
Sd/- (Muhammad Younis Dahri)
Survey Superintendent Karachi
56. Further, from the record, it reflects that, as per note of Director General of KDA dated 15.9.1998, the said un-utilized land of 1890 sq.yds, was/is a valuable land, as such, then KDA had opted to 'auction' the same. Per KDA's stand, a huge amount i.e. approximately 500 million was spent on the development of Scheme No.24.
KDA, as such, then not only wanted to auction the 'subject property' but also to utilize its' 'sale proceeds' thereafter. The Petitioner/owner namely Tariq Ahmed Khan Lodhi, not only resisted such move but also demanded 'the restoration' of an area of 1890 sq. yards which remained un-utilized by KDA. On account of refusal/reluctance of KDA to return back the 'subject property' measuring 1890 sq.yurds to its' owner viz. Tariq Ahmed Khan, the latter, constrained to file another Constitutional Petition No. D-280 of 1997 [Tariq Ahmed Khan v. Karachi, Development Authority and another], before this Hon'ble Court. The Hon'ble Division Bench of this Court, while, passing judgment dated 09.02.1998, in said Petition bearing No.D-823 of 1989 [Tariq Ahmed Khan v. Karachi Development Authority and another], observed that in all fairness, if some area of land remained un- utilized by KDA, then, it ought to have been returned back to the Petitioner viz. Tariq Ahmed Khan Lodhi, as it was his property. The 'operative part' of Judgment dated 09.02.1998 reads as follows:- "In all fairness, if some area had remained unutilized it should have been returned back to the Petitioner, as it was his property. Enrichment of the acquiring authority at the costs of original owner under the garb of "public purposes" is neither legally nor morally justified. It does not fall within the scope of public purpose. Accordingly, we order that the le over area of 1890 sq. yards be handed over back to the Petitioner within three months from the date of this order.
As regards, the remaining claim of the Petitioner about 6168 sq. yards. it is not noted that it includes the area of 1890 sq. yds. for which we already ordered to restore it back to the Petitioner. Now the claim of the Petitioner, regarding remaining area, would be to the extent of 4278 sq. yds. This area is also to be given by the KDA to the Petitioner as already agreed, within four months from now. [Underlining is ours] In above terms, the Petition is allowed. This listed applications also stand disposed of.
57. In the present case, it appears that Tariq Ahmed Khan Lodhi [Respondent No.15 in C.P. No.D-4560 of 2017 and Petitioners in C.P. No.D-3898 of 2017], had purchased certain land measuring 2-11 acres measuring 2-11 acres in Deh Gujro Tapo Soongal, Gulshan-e-Iqbal Town, Karachi through a registered Sale Deed dated 19.11.1979 [Annexure P/1' to the MoP in C.P. No.D-4560 of 2017]. The said Sale Deed dated 19.11.1979 apart from complying with the provision of Section 54 of the Transfer of Property Act, 1887 [Act No.XVI of 1887], as required, under Section 17 of the Registration Act, 1908 has been duly registered. Being relevant, at this juncture, we would like to refer to and produce herein, the definition of word 'sale' as defined in the Black's Law Dictionary [Seventh Edition] herein below:- "(1) The transfer of property or title for a price.
(2) The agreement by which such a transfer takes place. The four elements are (1) parties competent to contract, (2) mutual assent, (3) a thing capable' of being transferred, and (4) a price in money paid or promised."
The term 'sale' has also been defined in Section 54 of the Transfer of Property Act, 1882 [IV of 1882], which means the transfer of ownership of immovable property for 'price paid' or 'promised'. It is worth to mention, herein that once a document is registered then, it can only be cancelled by another registered document or through a declaration of competent court of law. In view of this position, as well, one cannot be deprived of its' ownership rights, in respect of a land, lawfully owned and/or holding of its' lawful possession except in due course of law. In this regard reliance is placed can be placed on the cases of (i). The Majlis-i-Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore (PLD 1975 SC 355) and (ii) Mrs. Zaibun Nisa through Attorney v. Karachi Development Authority and 5 others (PLD 1998 Kar. 348). The relevant observations/portions therefrom, respectively read as follows:-
[i] PLD 1975 SC 355 "Nothing turns on the fact that the grant in the precedent case was under the Colonization of Lands (Punjab) Act and in the instant case it is made pursuant to the administrative instructions. In either case, the grant is in exercise of the executive authority of the State, though in the precedent case, it is regulated by the 1912 Act, and in the instant case the matter rests entirely in the executive discretion. The validity of the grant not being in question, it cannot be cancelled save as provided in the lease deed itself. Therefore, the appellant in this case properly invoked the writ jurisdiction of the High Courts complaining that after the execution of lease in its favour, the Secretary, Communication Department acted without lawful authority and that he cancelled the lease otherwise than as provided in the terms of the grant, which under the provisions of the Government Grants Act, 1895 (Act XV of 1895) is not permissible. According to section 3 ibid, all grants made by or on behalf of the Government: "shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislative to the contrary notwithstanding."
It is important to point out that revisional order was subsequent to the lease in favour of the appellant.
Accordingly, the revisional order by the Secretary, Communication on 30-7-1973 is plainly nugatory to the above provision and, is, therefore, without lawful authority. On that view of the master; the remedy by way of appeal or revision against the order of allotment under the departmental instructions will avail only as long as the grant remains inchoate. But once the grant became a fait accompli by execution of deed of conveyance as in the instant case, the matter is taken beyond the reach of the appellant or as the case may be the revisional authority which is a creature of mere administrative instruction" .... [Underlining is ours].
(ii). PLD 1998 Kar. 348 "In the circumstances of the case before us and keeping in view the provisions of section 39 of the Specific Relief Act (I of 1877), the instrument of deed in favour of the petitioner in the first instance ought to have been cancelled through a declaration of the Court before the allotment of the petitioner was cancelled and restored in favour of the respondent No.4. Such declaration could have only been granted by a Court after exercise of jurisdiction to cancel an instrument. Such exercise of jurisdiction could have taken place if requisites of section 39 of the Specific Relief Act had been fulfilled i.e. (a) The instrument is void or voidable against the plaintiff, (b) plaintiff may reasonably apprehended serious injury by the instrument being left outstanding. (c) in the circumstances of the case, the Court considers it proper to grant the preventive relief" [Underlining is ours]
58. Moreover, a Division Bench of this Court while, passing Judgment dated 09.02.1995 [Annexure 'A' to the MoP of 3898 of 2017] in Constitutional Petition No.D-823 of 1989 [Tariq Ahmed Khan v. Karachi Development Authority and another], has observed that a 'Resolution' cannot be substituted for a 'Notification' which, under law, needs to be issued under Sections 4, 6 and 9 of Land Acquisition Act. In the Petitioner's Constitutional Petition No.D-823 of 1989, [Tariq Ahmed Khan v. Karachi Development Authority], it is significant to note, a 'Resolution' instead of requisite 'Notification', was passed that too at a very belated stage of taking over the land of the Petitioner. The Division Bench of this Court under such scenario came to the conclusion, that such illegality 'committed' by KDA earlier could not deserve to be regularized or legalized. Besides, it was also held that an acquiring authority, either legally or morally, cannot justify to enrich itself at the cost of owner under the garb of a public purpose. As far as, the re-possession of the 'subject land' and handing over its' relevant documents including letter of possession, sketch, demarcation, etc to the owner viz. Tariq Ahmed Khan Lodhi son of Syed Abdul Ghani Khan is concerned, in this regard, we would like to refer to and reproduce Order dated 08.08.2012, passed by a Division Bench of this Court in C.P. No.D-280 of 1997 [Tariq Ahmed Khan Lodhi v.
KDA and another], herein, as under:-- "1. For orders on compliance report dated 06.7.2012.
2. For hearing of Misc. No. 4719/2010.
08.08.2012 Mr. Raja Sikandar Khan Yasir, advocate for the petitioner.
Mr. S. Sultan Shah, advocate for CDGK along with Jamil A. Baloch, Addl. Director (AEC) Mr. Shafi Muhammad Memon, A.A.G.
CDGK has submitted a report dated 6th July 2012 in terms whereof CDGK in pursuance of order dated 22.10.2009 has offered certain plots to the petitioner in lieu of land acquired by CDGK. The order dated 22.10.2009 is for compensation under the Land Acquisition Act.
Learned counsel for the petitioner submits that the petitioner is agreeable to the offer as contained in the above report, however, till date no much progress has been made towards the implementation of the officer.
Mr. Sultan Shah, advocate along with Jamil Ahmed Baloch, Addl. Director (AEC) submits that CDGK is ready and willing to execute all documents and do all acts required to convey the land offered in the above report to the petitioner and deliver its vacant peaceful possession to the petitioner. They submit that demarcation of three plots offered through report shall be carried out/ effected within a week from today and the lease shall be executed a week thereafter, in the meanwhile all the relevant documents including letter of possession; sketch; demarcation etc. shall be handed over to the petitioner and so far as the land measuring 1890 sq. yards in Survey No.596 (old survey No.160) Deh Gujro Karachi is concerned the learned counsel for CDGK concedes that the said piece of land reportedly is under occupation of Sindh Police. CDGK shall facilitate the petitioner in re-possessing the land lawfully. [Underlining is ours].
The contempt application is disposed of in the foregoing terms with an observation that after compliance of the present order the petitioner shall have no claim against CDGK in respect of the land acquired by CDGK. The A.A.G. present shall also communicate the above order to the Secretary Housing and Town Planning, Government of Sindh to facilitate delivery of possession of the portion of land bearing Survey No. 596, as noted above."
59. Moreover, from perusal of 'Restoration Order' dated 16.10.1999, it is crystal clear that a specified area of 1890 sq. yards of Survey No.596, Deh Gujro, was restored to the owner viz. Tariq Ahmed Khan Lodhi son of Abdul Ghani Khan. The Restoration Order dated 16.10.1999 [Annexure 'P/4' to the MoP in C.P. No.D-3898 of 2017, reads as follows: KARACHI DEVELOPMENT AUTHORITY DIRECTORATE ESTATE AND ENFORCEMENT NO: KDA/D(E&E)/217 Dated: 16.10.1999 RESTORATION ORDER In pursuance of the judgment of the Hon'ble High Court Sindh dated 15.10.1998, in the Constitution Petition No. 280 of 1997 and as accordingly resolved by the Governing Body, KDA vide Resolution No. 146 dated 28.9.1999, and compliance of the orders, of the orders of the Hon'ble High Court, the possession of the specified area of 1890 Sq. yds., of Survey No.596, Deh Ga/ro is hereby restored in favour of Mr. Tariq Ahmed Khan Lodhi son of Abdul Ghani Khan. [Underlining is ours] Sd/- Director Estate and Enforcement K.D.A. Copy to :-
1. Superintendent Writ Branch, High Court of Sindh.
2. P.S. to Director General, K.D.A.
3. P.S. to Member (A&L), KDA.
4. Chief Engineer, KDA.
5. Director (P& UD), KDA.
6. The Executive Engineer, Gulstan-e-Jauhar Div-IQ, Sch0-No.36, KDA to hand-over the physical possession of the land to Mr. Tariq Ahmed Khan Lodhi Khan together with the site plan of the said plot.
7. Ahmed Khan Lodhi to please take-over the physical possession of the above mentioned land from the Executive Engineer, Gulistan-e-Jauhar Div-I, Scheme No.36, KDA.
Sd/- Director Estate and Enforcement K.D.A.
60. Like-wise, the 'possession' of Petitioner in C.P. No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others], is evident from the 'CERTIFICATE' and KDA's Letter Dated 18.10.1999, addressed to the Deputy Commissioner, Karachi-East. Both the said documents speak about the handing over possession of the 'subject property' to the land owner viz. Tariq Ahmed Khan Lodhi son of Abdul Ghani Khan. The said 'Certificate' and 'Letter' dated 18.10.1990 addressed to Deputy Commissioner, Karachi-East both dated 18.10.1999, are reproduced at [a] and [b] respectively, herein-below:- [a] KARACHI DEVELOPMENT AUTHORITY GULISTAN-E-JAUHAR DIV-II SCHEME NO. 36 No. EE/GJ D-II/Sch.36/KDA/99/397 Dated 18.10.1999 CERTIFICATE This is certified that physical possession handed over on 18.10.1999 with reference to the Director (E&E) letter No. KDA/D (E&E)/217 Dated 16.10.1999 to Mr. Tariq Ahmed Khan Lodhi part of survey No.596 measuring 1890 sq. yds. Deh Gujro in Block-7 Scheme-24 as per decision of honourable High Court order No. C-P-D 280/97 dated 15.10.1998 and as decided by the Governing Body K.D.A. vide its Resolution No.146 dated 28.9.99.
Sd/- Asstt. Executive Engineer Gulistan-e-Jauhar Division-II Scheme No. 36 K.D.A.
Sd/- Executive Engineer Gulistan-e-Jauhar Division-II Scheme No. 36 K.D.A.
Sub-Engineer Gulistan-e-Jauhar Div-II Scheme No. 36 K.D.A.
Taken over physical possession at site by me (Tariq Ahmed Khan Lodhi) owner of land.
Copy to:--
1. Chief Engineer, KDA.
2. Superintending Engineer (KCC) KDA.
3. Director (E&E) KDA.
4. Director (TP& UD) KDA.
5. PS to Member (A&L) KDA.
6. Mr. Tariq Ahmed Khan Lodhi [b] MOST IMMEDIATE COURT MATTER No. KDA/D(E&E)/99/220 Dated: 18th October, 1999.
To, The Deputy Commissioner (East) Karachi SUB: POSSESSION OF LAND MEASURING 1890 SQ. YDS. OF SURVEY NO.596, DEH GUJRO TO MR. TARIQ AHMED KHAN LODHI IN COMPLIANCE WITH THE ORDERS OF THE HON'BLE HIGH COURT IN CONSTITUTION PETITION NO. 280/97 AND GOVERNING BODY, KDA, VIDE RESOLUTION NO.146 DATED 28-9-99.
Copy of the letter bearing No.D (E&E)/217 dated 16-10-99 issued in pursuance of the order of the Hon'ble High Court of Sindh and Governing Body, K.D.A. is forwarded herewith for informa-tion and appropriate action.
Sd/- Director (E&E)
Copy to:--
3. The Director, P& U.D., KDA.
4. The Executive Engineer, Gulistan-e-Jauhar, Div-I, K.D.A.
Sd/- Director (E&E)
61. Moreover, according to KDA's stand the old Survey No.160, Deh Gujro, was bifurcated from the passing of Sui Southern Gas Pipeline and new Survey Nos.553 and 596 were consequently created. Mr. Tariq Khan Lodhi who is Respondent No.15 in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others] and Petitioner in C.P. No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others] was owner of Survey No.596, measuring 2-11 acres, situated in Deh Guujro, Karachi-East, which land, it appears, was effected in the widening of Karachi University Road but no compensation was paid to Tariq Ahmed Khan Lodhi. The said owner thus opted to file another C.P. No.D-280 of 1997 [Tariq Ahmed Khan Lodhi v. KDA and another], before this Court, which C.P. was later on, allowed by a Division Bench of this Court vide Judgment dated 15.10.1998 [Annexure 'P/2' to the MoP of C.P. No.D-3898 of 2017]. Mr. Tariq Ahmed Khan Lodhi was thereafter, compensated in lieu of his effected Survey No.596, Deh Gujro, District East as Plot Nos.ST-7/1, ST-7/2, ST-4/A/1, Block No.1, Scheme No.36, Gulstan-e-Jauhar and Survey No.596, Old Survey No.160, Deh Gujro, Scheme No.24, Gulshan-e-Iqbal.
62. Per KDA's version, Respondent No.13 [Muhamamd Abdul Salam Khan] and Respondent No.14 [Syed Rehan Hussain Rizvi], in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], on the basis of concealment of facts rather to say fraudulently stated that the Survey No.553, Deh Gujro, was owned by the private party who, as alleged, purchased the said land from their legal heirs.
According to KDA's stand, the said Survey No.553, Deh Gujro, Gulshan-eIqbal, Karachi measuring 2-10 acres, fall within the notified boundaries of Scheme No.24, Gulshan-e-Iqbal and such scheme, it is needless to say, has been duly sanctioned by Government of Pakistan, Basic Democracy Social Welfare and Local Government Department vide Order No.SO-1V[LG]KDA/7-16/62 dated 9.6.1964.
63. Being relevant at this juncture, we would like to refer to and reproduce herein, some portions from 'pars 3' of the counter affidavit filed by Addl. Director and Co-ordinator to DG-KDA, viz. Jamil Ahmed son of Muhammad Umer Baloch, in response to Memo of Petition [In short MoP] of C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], herein-'below: [a]. That it is submitted that the old Survey No.160, Deh Gujro, was bifurcated from the passing Sui Southern Gas Pipe Line and created new Survey Nos. 553 and 596 whereas Mr. Tariq Ahmed Khan Lodhi claimed that his land Survey No. 596, of Survey No.160, measuring 2-11 Acres, situated in Deh Gujro, Karachi East, was affected in the widening of Karachi University Road and compensation was not paid to him.
Mr. Tariq Ahmed Khan Lodhi filed C.P. No. D-280 of 1997. In compliance of the Honourable High Court order passed in C. P No. D-280 of 1997, vide order dated 22-10-2009, the land was compensated to Mr. Tariq Ahmed Khan Lodhi, in lieu of his affected Survey No.596, Deh Gujro, District East Karachi as Plot Nos. ST-711, ST-7/2, ST-4/ A/1, block No.1, Scheme-36, Gulistan-e-Jauhar and Survey No.596 old Survey No.160, Deh Gujro, Scheme-24, Gulshan-e-Iqbal. The Respondents Nos.13 and 14 have claimed on the basis of the concealments of facts and fraudulently stated that the Survey No.553 Deh Gujro was owned by the private party who purchased the land from their legal heirs. The survey No.553, Deh 'Gujro, Gulshan-e-Iqbal, Karachi, measuring 2-10 Acres falls within the notified boundaries of the scheme No.24, Gulshan-e-Iqbal, Karachi, duly sanction by the Government of West Pakistan, Basic Democracy Social Welfare and Local Government departments vide order No. SO IV (LG) KDA/7-16/62 Dated 9th June 1964. Based upon the aforementioned concealment of facts, the Respondents Nos. 13 and 14 filed a frivolous complaint before the Honourable Ombudsman Sindh.
However, in the record of the Land Acquisition Cell, KDA, the land claimed by the petitioner was compensated, which is revealed by the compensation statement. [Underlining is ours].
[b]. The acquired Survey No. 553, from which 1890 sq. yards, which was also compensated towards Survey No.596, in compliance of the Hon'ble High Court order in C.P. No.280 of 1997. The site plan was issued to Petitioner. The respondents Nos. 13 and 14 with the connivance of the Revenue Officer fraudulently concealed the facts of the land acquisition proceedings and land in question was mutated in favour of the legal heirs, of the previous owners without consultant from KDA. The Petitioner in his petition stated that he purchased the land from Mr. Tariq Ahmed Khan Lodhi who is absolute owner of the property No. 596 compensated by the KDA in the place of acquired land Survey No. 553 Deh Gujro. [Underlining is ours]
64. In the case in hand Respondent No.13 viz. Muhammad Abdul Salam Khan son of Abdul Rashid Khan [late], not only dispute the 'ownership' of Respondent No.15 namely Tariq Ahmed Khan Lodhi but also the 'location' of survey number where the 'subject land' bearing Survey No.596, measuring 1890 sq. yards, at Deh Gujro, Block- 7, Main University Road, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi, is situated and that too despite judgments passed a Division Bench of this Court in C.P. No.D-823 of 1989 [Tariq Ahmed Khan v. KDA] and C.P.
No.D-280 of 1997 [Tariq Ahmed Khan v. KDA and another]. The said Judgments, as stated, at the bar, have already attained finality. Even otherwise, the controversy regarding 'title' and/or 'survey number, as being disputed by Muhammad Abdul Salam Khan and/or Syed Rehman Hussain Rizvi in these petitions is in respect of the 'subject land' is a factual controversy, which in no event, could not be looked into and/or considered in these Petitions. For resolution of a factual controversy, it is a settled principle of law that constitutional jurisdiction is not an appropriate forum, as it is intended, for providing an expeditious remedy where the impugned action of an executive or other authority can easily be established without recording of evidence.
Moreover, constitutional jurisdiction is meant for enforcing of a vested right and not for establishing such a right being based/involving factual controversy. On this aspect of the matter reliance can be placed on the case of Pakcom Limited and others v. Federation of Pakistan and others [PLD 2011 SC 44], wherein, it was observed as follows:-
48. It hardly needs any elaboration that violation of a contract or failure to abide by the terms and conditions mentioned therein or to honour obligations arising out of an agreement cannot be decided in exercise of Constitutional jurisdiction and such controversies should be resolved by approaching the appropriate forums provided by law. Abdul Rahim v. Town Committee (1985 CLC 2805), Haji Noor Din v. C.C.I. and E (NLR 1978 Civ. Lah. 1114), Ashraf Ali v. Abdul Awal (PLD 1968 Dacca 962), A.F.M Abdul Fateh v. Province of East Pak (PLD 1966 Dacca 178). "The superior Courts should not involve themselves into investigations Of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit.This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent."Ataur Rehman Khan v. Dost. Muhammad (1986 SCMR 598). Muhammad Akhtar v.
President, Cantonment Board, Sialkot Cantt (1981 SCMR 291), Mian Muhammad v. Government of West Pak.
(1968 SCMR 935), Abdur Rashid Bhhiya v. Province of East Pak (PLD 1970 Dacca 633). Zuhra Begum v.
Sajjad Hussain (1971 SCMR 697), Landale and Morgan (Pak) Ltd. v. Chairman, Jute Board Dacca (1970 SCMR 853), Mahboob Alam v. Secretary to Govt. of Pak. (1969 SCMR 217), Umar Daraz v. Muhammad Yousuf (1968 SCMR 880), Saghir Ali v. Mehar Din (1968 SCMR 145), Abdur Rehman Khan v. Deputy Commissioner Jessore (PLD 1968 Dacca 367), Lutfonnessa Ibrahim v. Province of East Pak. (PLD 1969 Dacca 779), Mainuddin Ahmed v. Delimitation Officer (PLD 1965 Dacca 263), Province of East Pakistan v. Kshiti Dhar Ro (PLD 1964 SC 636), Abdur Rab Choudhury v. Registrar of Joint Stock Companies (PLD 1960 Dacca 541), Md.
Nur Hussain v. Province of East Pak (PLD 1960 Dacca 31), Chand Miah v. IT and Sales Tax Officers (PLD 1960 Dacca 523). Parbatipur Industries v: Chief Secretary E. Pak (12 DLR 255). Md. Noor Hussain v. Province of E. Pak. (11 DLR 367), State Life Insurance Corp. of Pak. Tobacco Co. (PLD 1983 SC 280), Md. Ibrahim v.
Province of East Pakistan (15 DLR 703). A civil suit was filed but nobody knows what happened subsequently, what was the prayer made therein and whether it was withdrawn conditionally or unconditionally before invocation of the Constitutional jurisdiction. [Underlining is ours]
65. Moreover, Mr. Muhammad Abdul Slam Khan, who is Respondent No.13 in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others] and Respondent No.8 in C.P. No.D- 3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others], have failed to deny 'para 1' of the Memo of Petition in C.P. No.D-4560 of 2017, wherein, the ownership of Respondent No.15 in C.P. No.D-4560 of 2017 and Petitioner in C.P. No.D-3898 of 2017, with regard to subject land bearing Survey No.596, measuring 1890 sq. yards, situated in Deh Gujro, Block 7, Main University Road, KDA Scheme No.24, Gulshan-e-lqbal, Karachi has been specifically referred to and mentioned. The Respondent No.13 in his 'comments' filed in reply to the Memo of Petition in C.P. No.D-4560 of 2017, has only stated that paras 1 and 2 of MoP in C.P. No.D-4560 of 2017, do not pertain to him. The contents of 'para 2' of the Memo of Petition in C.P. No.D-4560 of 2017, which 'inter alia' speak about execution of Memorandum of Understanding [s], Agreements of Sales between Respondent No.15 in C.P. No. D-4560 of 2017 and the Petitioners in C.P. No.D-3898 of 2017, thus have not been controverted/disputed. Moreover, per 'Para 3' of the Respondent No.13's 'comments' filed in C.P. No.D- 4560 of 2017, 'subject property', as well as, the Sale Agreements, as far as, Respondent No.13 is concerned, are irrelevant. 'Paras 2 and 3' of Respondent No.13's 'comments', for ready reference, are reproduced herein- below: "2. That the contents of paras 1 and 2 of the alleged facts of the petition did not pertain to the Respondent No.13
3. As regards contents of para 3 of the alleged facts of the petition, it is submitted that though the property as well as agreements not pertains to the Answering respondent, however, the same were executed by the concerned parties in violation of the order passed by the competent court of law. As a matter of fact that this Hon'ble Court passed in Suit No.345 of 2002."
66. As far as, the alleged 'violation of Orders' passed Suit No.345 of 2002 [Rauf Hassan Chaudhry v. Mr. Haji Amin Memon and others] by a Single Bench of this Court is/are concerned, it is for Respondent No.13 to establish such violation, if any. All concerned parties to said Suit No.345 of 2002 [Rauf Hassan Chaudhry v. Mr. Haji Amin Memon and others], however, it is needless to say, are bound to obey the restraining order[s], in its' letter and spirit, if it are still operating. It is significant to note that even the complaint filed by Respondent No.8 viz. Muhammad Abdul Salam Khan, before learned Provincial Ombudsman [Mohtasib] Sindh, has now been dismissed as withdrawn.
67. Respondent No.13's stand regarding the 'ownership' and/or 'location' of survey number where, the 'subject land' is situated is not only self-conflicting but also self-destructive which, no doubt, leads to a presumption that Respondent No.13 viz. Muhammad Abdul Salam Khan, has no genuine case. In this regard, reliance can be placed on the case of Dr. Aftab Shah v. Pakistan Employees Cooperative Housing Society Limited and 5 others [2006 CLC 342], wherein it was observed as follows:- "15. When one stand is taken at one point of time and a different stand at another, and both stands do not reconcile with each other, then this act by itself leads to the presumption that such person does not have a genuine cause of action. The conflicting stands amount to destroying ones own cause of action and, therefore, the entire foundation of plaintiffs claim is to be treated as false.[Underlining is mine].
68. For and in view of all the above, we while, setting-aside the 'impugned order' dated 21.02.2017, passed by Addl. Deputy Commissioner-II, Karachi-East, also declare that all actions taken/orders passed pursuant to passing of the 'impugned order' dated 21.02.2017 are mala fide, illegal, without jurisdiction and of no legal effect. We further direct the Respondents Nos. 3, 4, 6, 8, 10 and 12 in C.P. No.D-4560 of 2017 to get the peaceful physical possession of the 'subject land' restored to the Petitioners in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], immediately. Besides, on restoration of 'possession' to the Petitioners in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], the Petitioners therein, are permitted/allowed to construct the demolished boundary wall at the 'subject land' again, however, at their own risk and costs. Further, officials Respondents in both the petitions, are restrained from taking any 'adverse action' [s] against the Petitioners in both the petitions at the behest of the private Respondents in violation of law and without affording proper opportunity of hearing to the Petitioners.
69. Both the above petitions stand "disposed of" in the above terms along with all the pending applications.