Mohammad Abdur Rehman, J. Through this Petition, maintained under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the Petitioners are seeking a declaration that they are entitled to an alternative plot in an equivalent location and of an equivalent financial value in comparison to two immovable properties bearing Kiosk No. 9, Block 3, Karachi Development Authority Scheme No. 5, Karachi admeasuring 150 square yards (hereinafter referred to as the "First Property") and Kiosk No. 10, Block 3, Karachi Development Authority Scheme No. 5, Karachi admeasuring 150 square yards (hereinafter referred to as the "Second Property").
2 The facts in this Petition are not in dispute. The Karachi Development Authority (hereinafter referred to as the "KDA") by virtue of two separate allotment orders, each dated 23 February 1976, allotted the First Property and the Second Property to one Ms. Naheed Jafery. It is apparent that no Indenture of Lease had been issued in respect of either the First Property or the Second Property in favour of Ms. Naheed Jafery. Two Separate Agreements of Sale were executed by Ms. Naheed Jafery in respect of each of the properties inasmuch as in March 1993, Ms. Naheed Jafery agreed to sell the First Property to the Petitioner No 1 and in April 1993 Ms. Naheed Jafery agreed to sell the Second Property to the Petitioner No. 2. As no Indenture of Lease had been executed or registered in respect of either the First Property or the Second Property by the KDA, mutation orders were issued by the KDA in favour of the Petitioner No. 1 and the Petitioner No. 2 in respect of the First Property and the Second Property respectively.
3. The KDA at some point realised that each of the properties were located within the perimeters of an amenity plot bearing Plot No. 15, Block No. 3, KDA Scheme No. 5, Karachi and which plot was designated as an amenity plot meant for park and which has since been developed as a park under the name of "Bagh-e-Ibne Qasim". It is thus apparent that at the time when Bagh-e-Ibn Qasim was being developed it was discovered that the First Property and the Second Property had been illegally "carved out" of the amenity plot and the allotments of which were cancelled by the KDA.
4. Mr. Muhammad Ali Lakhani, has entered appearance on behalf of the Petitioners and has contended that as the KDA had illegally allotted the Said Property, he should, at the very least, be entitled to claim the market value of the First Property and the Second Property from the KDA on account of the incorrect representations that have been made by the KDA to Ms. Naheed Jafery.
5. Mr. Khurram Ghayas, has entered appearance on behalf of the KDA and while conceding to the contention that each of the properties have been illegally allotted by the KDA has relied on the reported judgement of the Honourable Supreme Court of Pakistan in the case of Province of Sindh through its Chief Secretary and 8 others vs. Syed Kabir Bokhari[1] wherein in respect of Kiosks that had been allotted to some others person, again within the perimeters of the Bagh-e-Ibn Qasim, and wherein a similar plea for an alternative plot of an equivalent value was made by the Petitioners in that Petition, the Honourable Supreme Court of Pakistan declined to direct that an alternative plot should, be provided and instead directed KDA to "refund" the allotment price along with mark up.
6. We have heard Mr. Muhammad Ali Lakhani and Mr. Khurram Ghayas and have perused the record. Admittedly each of the Petitioners have no legal right, title and interest in the Said Property as it was carved out illegally from an amenity plot. That being the case we are of the opinion that the remedy that each of the Petitioners would have had would be as against Ms. Naheed Jafery to maintain a claim for damages for breach of a term as to "good title" as contained in each of the Agreements of Sale.
7. The Petitioners having elected not to sue Ms. Naheed Jafery for the amount paid under the Agreement of Sale is instead, on the basis of having acquired the purported rights to each of the Properties, now seeking to enforce a representation made by the KDA as to "good title" and instead of claiming damages are contending that they should be awarded an alternative plot. While we acknowledge, as admitted by Mr. Khurram Ghayas, that there is no dispute as between the Petitioners and the KDA that the allotment of each of the properties was illegal, that being the case we are clear that the KDA has breached its covenant as to "good title" as contained in the Indenture of lease. We do not see how for a breach of such a representation, a claim, for an alternative plot an be maintained. The remedy that would be available to the Petitioner for the breach of that representation would be to recover the amount that was paid to the KDA for the allotment of each of the Properties along with mark up at the prevalent bank rate as was held by the Honourable Supreme Court of Pakistan in Province of Sindh through Chief Secretary and 8 others vs. Syed KabirBokhari[2] and wherein it was considered that: "5. On perusal of the record, we find that in the revised layout plan of Kehkashan, Scheme 5, Clifton, Karachi made in the year 1972, a copy of which is attached with CMA No. 4472/2011 filed by the counsel for respondent, does not anywhere reflect availability of any land or plots for the purpose of kiosks. There is land showing cross lining in front of which is an open land. In this open land perhaps the petitioner in his own hardwiring has shown to be having the deputed plots of two kiosks. Yet another copy of another revised layout plan of 1975 is attached with the same CMA, which also reflects that the similar position of land, which is shown in the revised plan of 1972 except that there is an insertion of two squares, which are shown to be located outside the cross lining area. The respondent in his letter dated 10.7.2003 addressed to the District Executive Officer, Master Plan Group of Office, CDGK has himself stated that due to error the KDA at the time of making the Master Plan of Kehkashan Clifton Scheme 5 Karachi two kiosks were not included in the master plan and requested for their incorporation in the master plan. This very letter of respondent lend support to the fact that in the master plan of Kehkashan, Scheme 5, Clifton, Karachi there was no existence of any plot for kiosks.
6. It is not the case of respondent before us that the disputed plots allotted to the respondent were the plots meant for commercial use and such also does not appear to be the position emerging on examining the two master plans as referred above. The master plan shows that the land having cross lines apparently is meant for amenity land for public use and not a space/land meant for allotment for use in commercial venture. Depiction of two squares in the revised master plan of 1975 is outside the lined area does not appear to be factually correct as has become known from the two reports; one submitted by the Deputy Nazir of High Court of Sindh and the other of Office Incharge of this Court in which the disputed plots are shown to be part and parcel of parking lot of CDGK and not out side it. The land immediately outside the parking lot is a beach, which become submersible by sea water on high tide.
7. All these factors show that the disputed plots allotted to the respondent were carved out from amenity plot land for public use and such allotment being admittedly made for commercial use was directly in conflict with the Article 52-A of the KDA Order, 1957 which specifically provided for procedure for seeking of conversion of amenity plot for other use. Admittedly, there is no order whereby use of plot from that of amenity to that of commercial was sanctioned by competent authority in respect of disputed plots....
10. Despite the above discussion, it is clear that it was the KDA who has offered the disputed plots to the respondent who through a bidding process has made the highest offer and on acceptance of such offer has got allotment of disputed plots in his favour. He has also paid whole of occupancy value/price of disputed plots and has obtained their possession, which possession letter represented giving of lease of 99 years of disputed plots on receipt of full occupancy value/price.
The respondent cannot be squarely blamed for illegal conduct of officials of the KDA in making of allotment of amenity plot/land for public use to the respondent. The respondent admittedly has paid substantial amount in the shape of whole occupancy value/price of disputed plots and thus cannot be deprived of his funds so paid by him to the KDA now the CDGK. Although the respondent did not acquire any title to the disputed plots but the fact remains that he did pay for disputed plots and such was done by him on illegal and unlawful conduct of officials of then KDA. The Government and its department are bound to act justly and fairly with the citizens of the country and in case of illegal and unlawful conduct of the government and its officials of department any loss is caused to the citizen of this country, same is appropriately be compensated. This is a fundamental rule and also principle of equity. The learned ASC for the respondent during the course of hearing of this appeal has contended that in case the respondent is found not entitled to the disputed plots of the two kiosks, the respondent be paid compensation at the prevailing market rate of the disputed plots and in this respect has referred to the advertisement published in daily newspaper Dawn dated 16.11.2005 in which offer of public auction of plots by the CDGK on the Clifton Beach for setting up stalls etc on short lease of ten years with a bid price of Rs.15,00,000/- per year. Similar position has been taken by the respondent in his CMA No. 581/2015. We have already noted above that the land, on which the disputed plots were allotted to the respondent, was an amenity plot/land for public use and thus not available for being allotted for commercial exploitation. No lease of 99 years was made in favour of the respondent. The respondent himself did not utilize the two plots for almost 29 years though in possession Although, on the basis of fundamental rules so also principle of equity the respondent is entitled to be compensated but the compensation as is claimed by the respondent is not what in the facts and circumstances of the present case such principle will admit. The offer of plot by public auction by the CDGK in 2005 at the rate of Rs. 15,00,000/- per year never materialized and thus it cannot form basis for granting of compensation., Yet the illegality committed by the officials of KDA in dolling out the disputed plots out of the amenity plot/land for public use cannot give advantage to the respondent so as to enrich himself from such illegality. In all fairless, the respondent can well be compensated by directing refund of the amount received from him as the occupancy value/price of land by the appellant along with interest/markup at the rate of 18% per annum from the date of the receipt of occupancy values/price of land until it is actually refunded Consequently, the appeal is partly allowed by setting aside the impugned judgment with directions to the appellants Government of Sindh/CDGK to refund to the respondent all the amount of occupancy value of disputed plots along with markup at the rate of 18% per annum from the date of occupancy amount received till the amount is actually paid to the respondent."
The Petition must therefore be allowed to that limited extent.
8. For the foregoing reasons, and in terms of the decision of the Honourable Supreme Court of Pakistan reported as Province of Sindh through Chief Secretary and 8 others vs. Syed Kabir Bokhari[3] we hereby direct each of the Petitioners, within a period of one week of the date of this Order, to deposit all the original title documents that are in her custody in respect of the Said Property with the Nazir of this Court and further direct the KDA to deposit with the Nazir of this Court, within a period of one month, an amount equivalent to the allotment charges along with mark up thereon at the prevailing bank rate. On the amount being so deposited with the Nazir, the original title documents should be released into the custody of the KDA and the amount deposited can be received by the Petitioners from the Nazir against proper identification. The Petition is partially allowed in the above terms, with no order as to costs.
1. 2016 SCMR 101.
2. Op cit.
3. Op cit.