' This is an appeal against the order, dated 20-12-1969 passed by the Additional Commissioner (Judicial) Karachi whereby he partly accepted the petitioner's appeal and reduced the penalty from Rs, 1,000. To Rs, 500.
2. The facts of the case are that the Collector Karachi vide his order dated 12-6-1967 forfeited Plot No, 417-GRE of the appellant for breach of terms and conditions of the lease as the appellant was alleged to have raised unauthorised construction over the plot. The appellant preferred an appeal to the Additional Commissioner, Karachi, who vide his order dated 28-6-1966 remanded the case to the Collector for passing fresh orders after giving due opportunity to the appellant as no show- cause notice was issued to him when the first order was passed by the Collector.
' The Collector, Karachi vide his order dated 3rd September, 1969, directed the appellant to pay Rs, 1,000 as additional Malkana for restoration of the plot as provided in Memo No, R-2750-F, dated 16- 9-1941, issued by the Revenue Commissioner for Sind and Order. No, F. 3(168)/57-Rev: dated 8th April, 1958, issued by the Chief Commissioner of Karachi. Appellant preferred an appeal to the Additional Commissioner, Karachi, who, vide his order dated 20-12-1969 reduced the additional Malkana to Rs, 500 from 1,000.
3. I heard the parties on 16-2-1971 and 8-4-1971. The main points urged by the counsel for the appellant are as follows:-
(i) The Collector, Karachi, had forfeited the plot of the appellant vide his order dated 12-6-1967 without giving him any show-cause notice. The order was communicated to the appellant on 9-2- 1968 and he filed an appeal against it. The order was set aside on the ground that show-cause notices had not been served on the appellant.
(ii) Again the Collector vide his order dated 3-9-69 imposed penalty to the extent of Rs, 1,000 on him but without issuing a show-cause notice and without offering him any opportunity of being heard as required by rules/orders/judicial decisions on the point.
(iii) There was simply one foot wall to protect the plantations, which was erected in 1943 and had been removed before the penal action. The wall was not structure amounting to infringement of the conditions of the lease.
4. The representative of the State stated that the appellant had constructed the wall without obtaining sanction of the Collector as required by Condition No, 2 of the grant and that plot was forfeited vide Condition No, 7 of the grant as mentioned in the Sanad. He also stated that additional Malkana was levied in view of instructions contained in Memo. No, R-2750-F, dated 16-9-1941 of the Revenue Commissioner, for Sind and Order No, F-3(168)/57-Rev., dated 8th April, 1955, of the Chief Commissioner, Karachi.
5. I have considered the arguments put forth by the parties, Condition No, 2 of the Sanad governing grant of the plot to the appellant reads as follows:- "You shall submit to the. Collector and obtain his sanction to a plan and specification of the buildings to be erected before building operations are commenced."
' The pertinent question in this case would be whether the wall constructed by the appellant could be construed as "Building" requiring sanction of the Collector, vide Condition No, 2 of the grant.
6. I have seen the file of the office of the Collector containing lists of the plots including plot of the appellant forfeited on account of violation of the conditions of the grant by the Deputy Commissioner vide his Order No, CTS/ACSO/1263, dated 12-6-1967. The specific violation for which the plot of the appellant was forfeited is not mentioned in the list. The representative of the State stated that plot of appellant was forfeited as he had raised one foot wall unauthorisedly.
7. The counsel for the appellant has argued that the unauthorised structure was only one foot wall meant for protection of flower plants and the representative of the State has not rebutted his statement but argued that even the wall was structure and required sanction of the Collector, vide Condition No, 2 of the grant. I am, afraid, I cannot agree with this interpretation. Only the plan of the building to be constructed over the plot required the sanction of the Collector and such a small platform constructed for protection of flowers plants could not be termed as construction of a building and did not, therefore, require the sanction of the Collector. Consequently there was no violation of Condition No, 2 of the grant in the present case and the forfeiture of the plot by the Deputy Commissioner was not justified.
8. In view of the above, I set aside the order of Deputy Commissioner, Karachi, forfeiting the Plot No, ORE-417 of the appellant. Since the original forfeiture order has been set aside, the question of levy of additional Malkana for restoration of the plot to the appellant does not arise and the orders dated 20-12-1969 of the Additional Commissioner, Karachi, and 3-9-1969 of the Collector, Karachi levying additional Malkana against the appellant are also set aside.
9. In the result, the revision petition is accepted.