1. ' The plaintiff has filed this suit for declaration and injunction praying inter alia:- "(a)(i) That the order of defendant No,1 as contained in its letter, dated 31-10-1981 showing approval of Governing Body for allotting the land in suit to defendant No,2 are illegal, void and of no legal effect .
(ii) That the plaintiff has a right to get the transfer of the land in suit in his favour completed by defendant No,1 in consequence of the approval already given for transfer of the suit land in his favour.
(b) Direct and order defendant No,1 to finalize transfer of the land in suit in favour of the plaintiff by issuance of all necessary documents of transfer and performing all other necessary incidental and consequential acts as to delivery of possession."
2. ' The facts of the case are that the plaintiff Jawad Akhtar is allottee of Plot No,LA/1-A situated in Block No,21 in K.D.A. Scheme No,16, Karachi, while defendant No,2 is allottee of Plot No, LA/1 in the same Block and Scheme. There is an extra strip of land adjacent to the plot of defendant No,2. It became available for transfer to the public and, therefore, the plaintiff applied to the K.D.A.
3. (defendant No,1) for allotment of that strip (hereinafter referred to as the suit land). It is claimed by the plaintiff that defendant No,1 approved allotment of the suit land in favour of the plaintiff for the purpose of low cost housing project on payment of usual price plus additional price of Rs,20 per sq.
4. Yd.
5. ' It is alleged by the plaintiff that defendant No,2 also applied for the allotment of the suit land in the year 1974 but the K.D.A. Vide letter, dated 18-11-1974 rejected his application. Aggrieved by this action of the K.D.A. Defendant No,2 filed Constitutional Petition being C.P. No,1438 of 1974 alleging that the order of the K.D.A. Contained in their letter, dated 18-11-1974 refusing to allot the suit land to defendant No,2, was without lawful authority. It was also claimed in the Constitutional Petition that defendant No,2 had preferential right to the allotment of the suit land. A direction was also sought against the K.D.A. For allotment of the suit land to defendant No,2. However, on 18th May, 1979 the Constitutional Petition was withdrawn and dismissed as such by this Court. Thereafter, defendant No,2 filed Suit No,483 of 1979 in this Court against defendant No,1 for the same relief which was sought in the aforesaid Constitution Petition. Meanwhile the plaintiff also pressed the K.D.A. To finalize the allotment of the suit land in his favour in pursuance of the decision alleged to have been taken earlier by it in his favour. The request of the plaintiff was not acceded to. However, defendants Nos.1 and 2, in the meantime, filed compromise application in Suit No,483 of 1979 to the effect that the K.D.A. Shall transfer the suit land to defendant No,2 subject to withdrawal of the suit.
6. Consequently, the suit was disposed of and the plaintiff was informed by the K.D.A. By letter, dated 31-10-1981 that its Governing Body has decided to allot the suit land to defendant No,2.
7. ' The plaintiff is aggrieved by the allotment of the suit land to defendant No,2. Hence, he' filed this suit. According to the plaintiff the K.D.A. Has already approved the allotment of this land in his favour, therefore, it could not have revoked this decision and allot the same land to defendant No,2 without affording an opportunity to the plaintiff of being heard. The plaintiff claims to have acquired a vested right in the suit land by virtue of an earlier decision of the K.D.A. In his favour. It is also alleged that the impugned action of the K.D.A. Is mala fide and without jurisdiction and that it was estopped from allotting the suit land to defendant No,2.
8. ' Both the defendants have filed separate written statements contesting the plaintiff's claim. It is alleged by defendant No,1 that the disputed land was neither allotted to the plaintiff nor even approved for allotment to him. It is stated that a draft summary was prepared for orders of the Chief Minister regarding allotment of the land to the plaintiff, but no orders were passed thereon. It appears that the summary was not even laid before the Chief Minister for orders. It is admitted that the suit land was allotted to defendant No,2 in pursuance of the decision of Governing Body of K.D.A. Subject to withdrawal of Suit No,483 of 1979. It is also alleged that the suit land is adjacent to the land of defendant No,2 and as such the latter had a preferential right to its allotment. The same is plea of defendant No,2 in his written statement. They have also taken legal pleas which will be evident from the issues which were framed in the suit. Following are the issues:- "(1) Whether the suit is not maintainable for want of notice under Article 131 of K.D.A. Order 5 of 1957 ?
(2) Whether the suit land had been transferred or agreed to be transferred by K.D.A. To the plaintiff ?
(3) Whether the transfer of the suit land to defendant No,2 by K.D.A. Is mala fide and/or otherwise illegal ?
(4) To what relief the plaintiff is entitled for ?"
9. ' The parties have not led any oral evidence in this case, but have relied on documents. In support of his claim the plaintiff has produced copy of draft summary prepared for the Chief Minister as Annexure 'B', plan showing position of Plots LA/A and LA/1-A and the suit land as Annexure 'A', copy of the application under Order XXIII, Rule 1 C.P.C. Made in Suit No,483 of 1979 as Annexure 'D', copy of letter of K.D.A., dated 18-11-1974 addressed to the defendant No,2 as Annexure and copy of letter, dated 13-10-1981 of defendant No,1 addressed to defendant No,2 saying that the Governing Body of the K.D.A. Was pleased to accord approval of allotment of the suit land to defendant No,2. Besides the above documents the plaintiff has also file photostat copies of some documents obtained from the relevant file of K.D.A., which were made available to the parties on the order of the Court. One of these documents is a note of Director-General, K.D.A.; dated 6-11-1974 to the following effect:- "The following decisions are to be taken immediately:
(1) In order to provide front age to Mr. Jawed Akbar, owner of Plot No, LA-1/1-A Block-21 the 201 strip shown in yellow and signed by me should be allotted to him and charged @ Rs,20.
(2) A summary for the Chief Minister should be made out for the adjoining area which has been shown in red and blue, requesting that this area should also be allotted to Mr. Akbar @ Rs,23.
(3) I believe the owner of Plot No, LA/1 has encroached on the blue area. This encroachment is to be demolished and removed with immediate effect.
(4) It should be examined if the triangular plot in front of Plot No, LA/1 can be carved out as an independent Plot.
10. (Sd.)
11. (ABBAS HUSSAIN SHAH)
12. DIRECTOR-GENERAL, K.D.A.
13. ' Member Technical 6-11-1974."
14. ' Another document wich according to the plaintiff is the basis of the suit is copy of draft summary which was prepared for the Chief Minister and is also alleged to have been obtained from the record of the K.D.A. This drafft summary which is undated is reproduced hereunder for a proper understanding of the plaintiff's case: - DRAFT SUMMARY SUBJECT: ALLOTMENT OF ADDITIONAL LAND MEASURING APPROXIMATELY 5960 SQ.YDS. TO MR. JAWAD AKBAR ALLOTTEE OF PLOT No,LA-1/1/-A, BLOCK NO.2, SCHEME NO.16, (FED. 'B' AREA)
15. "Recently, the Chief Minister had pleased to order for conversion of the Industrial Plot No,LA/1/1-A, Block No,21, measuring about 4 Acres, Scheme No,16 (Fed. 'B' Area) into residential area on payment of conversion charges at Rs,20 per sq. Yd. On the request of its aliottee, Mr. Javed Akbar.
(2) Now, Mr. Javed Akbar has requested for allotment of additional measuring about 5,850 sq.Yds.
16. Lying vacant adjacent to his aforesaid plot . It shall get access . To the main road which will improve the proposed residential lay out of the area.
(3) It is proposed that the additional land measuring about 5,950 sq. Yds. Lying vacant adjacent to the plot of Mr. Javed Akbar may be allotted to him at Rs,23 per sq. Yard for residential purposes as his original plot has already been converted into residential area under the orders of the Chief Minister.
(4) Submitted for the perusal and orders of the Minister/Chief Minister.
17. (MAZHER RAFI), SECRETARY ' MINISTER, H.T.P. & I.B. CHIEF MINISTER."
18. ' It is admitted that no decision was taken by the Government on the above summary. It is not even known whether the summary was at all laid before the Chief Minister for orders. The factual position is that till today not final decision has been taken by competent authority of the K.D.A. To allot the disputed land to the plaintiff.
19. ' It shall also advantageous to reproduce the letter whereby the suit land is claimed to have been allotted to defendant No,2. It is letter, dated 31-10-1981 and runs as under.
20. "KARACHI DEVELOPMENT AUHORITY DIRECTORATE OF LANDS & ESTATES (LAND SECTION-II)
21. ' No,K.D.A./LS-II/16/LA-1/21/81/649 Karachi, the 31st Oct.
22. 1981.
23. ' The Managing Director, ' Messrs National Rubber & Plastic Industries, 9, Cochinwala Market, 2nd Floor, Laxmidas Street, 'Karachi.
24. ' Subject: ALLOTMENT OF EXTRA LAND ADJACENT TO Plot No, ' LA-1, BLOCK No,21, SCHEME No,16, FEDERAL 'B' AREA.
25. ' With reference to your application, dated 19-2-1981 on subject noted above, it is to you that the Governing Body, K.D.A. Has been pleased to accord approval for allotment strip of extra land lying adjacent to Plot No,LA-1, Block No,21, Scheme No,16 subject to withdrawal the case from the Court.
26. ' You are, therefore, requested to withdraw the case from the Court, so that further action may be taken.
27. (Sd.)
28. ' ASSTT. ADMINISTRATIVE OFFICER-II DIRECTORATE OF LANDS & ESTATES."
29. From the documents produced by the plaintiff, which have been reproduced above, it transpires that no final decision had been take by competent authority of the K.D.A. To allot or transfer the suit land to the plaintiff. Only a proposal was mooted by the office in thi A respect. But the very documents produced by the plaintiff show that this proposal never got the approval of the competent authority nor I was finalized. It cannot, therefore, be said that any vested right has accrued to the plaintiff on account of the office proposal contained in the above-quoted documents.
30. ' Mr. Muhammad Sharif learned counsel for the plaintiff has cited a number of decisions in support of his arguments that the K.D.A. Was estopped from granting this land to the defendant No,2, that the K.D.A. Has acted against the principle of natural justice and that the act of the K.D.A. In granting the suit land to defendant No,2 is without jurisdiction. There is no substance in any of these submissions.
31. So far as the question of estoppel is concerned, only a proposal was made by the office of the K.D.A. Of granting the suit land to the plaintiff. No allotment order was issued in pursuance of the proposal. Moreover, that proposal never got materalized. It is not understood how under these circumstances, the competent authority, viz. The Governing Body of the K.D.A. Who had never approved the proposal, is estopped or barred from giving away their land to a person who, according to them, was most suitable and deserving. It is, therefore, not necessary to refer to the decisions relied upon by Mr.. Muhammad Sharif on this point.
32. There is no violation of any principle of natural justice either. Mr. Muhammad Sharif has contended that the land in suit was given to the defendant No,2 without giving him an opportunity of being heard. There is no force in this argument. The plaintiff was not the allottee or transferee of the suit land. He has not produced any document to prove that any vested right has accrued to him in respect of the suit land by virtue of the proposal of the office of the K.D.A. Contained in the various office notes and letters reproduced hereinabove. Had the competent authrority i.e. The Chief Minister/Minister of the Provincial Cabinet before 5th July 1977 and the Governing Body of the K.D.A. After the above date, approved the proposal and in pursuance thereo had issued the formal allotment order in favour of the plaintiff, only then the suit land could not have been given to any other person without giving an opportunity to the plaintiff of being heard. In the above circumstances question of violation of principle of natural justice, does not arise.
33. ' It has next been contended by Mr. Muhammad Sherif that the allotment of the suit land in favour of defendant No,2 was without jurisdiction. It is admitted that the executive authority of the K.D.A.
34. Vested in its Governing Body according to Article 3 the K.D.A. Order 1957. The allotment of the suit land in favour of defendant No,2 was made by the Governing Body. It is not shown as to how the Governing Body had acted without jurisdiction in transferring the land to defendant No,2. On the contrary the allotment Regulations framed by the K.D.A. In exercise of powers under Article 15 proves that the defendant No,2 was the most suitable person for allotment of the suit land and that the Governing Body had in fact no jurisdiction to allot it to the plaintiff because his land was not adjacent to the suit land. The Regulation referred to above were published in West Pakistan Gazette, dated 27-8-1966. The title of the Regulations is "K.D.A. Disposal of Land, Estates Reguations".
35. Para. 23 of these Regulations is relevant which is reproduced hereunder:- "23. Annexation of Adjacent Land.--Annexation of extra land may be allowed to the allottee of the adjacent plot on his making application, provided that:
(i) C.T.P. And A.K.D.A. Has no objection it from the Town Planning point of view.
(ii) Land cannot be used as independent plot or for any other public purpose.
(iii) The applicant agrees to any terms and conditions imposed by the K.D.A."
36. According to the above para only the allottee of the adjacent plot is entitled to annexation of the extra land which is adjacent to it. In para number two of the plaint it is admitted that it is the plot o the defendant No,2 which is adjacent to the suit land. It is not claimed by the plaintiff that his own plot, viz. No, LA/1-A is adjacent to the suit land. Under the circumstances only defendant No,2 was entitled to annexation of the extra land i.e. The suit land which is adjacent to this Plot No, LA/1. From the very admission of the plaintiff in his plaint, it is proved that the Governing Body of the K.D.A. Had acted according to the said Regulations and as such the impugned act was within its jurisdiction.
37. ' The plaintiff has alleged that the act of the K.D.A. In giving away the suit land to defendant No,2 is male fide. This was an issue of fact on which no evidence has been led by the plaintiff. Nor there is anything on the record to suggest that the Governing Body had any malice or ill-will against the plaintiff so as to reject the plaintiff's request for allotment of the suit land. The Governing Body had never held out any promise at any time to give this land to the plaintiff. At one time the application of the defendant No,2 for annexation of the land was rejected by the K.D.A. In 1974. But this fact did not precluded the K.D.A. From changing their decision and accede to the request to defendant No,2 at a later stage on the ground that it was in accordance with the Regualtions framed by the K.D.A.
38. Itself. There is thus n material on record to conclude that the impugned act of the Governing Body of the K.D.A. Was actuated by malice or ill-will.
39. The suit of the plaintiff must be dismissed for the further reason that it has been filed in contravention of Article 131 of the K.D.A. Order, 1957. This Article is reproduced hereunder:- "131. Notice of suit against Authority, etc.--(1) No suit shall be instituted against the Authority or any member or any person associated with the Authority or against any servant of the Authority or against any person or persons acting under the direction or authority of the Chairman or of any officer or servant of the Authority, in respect of any act purporting to be dope under this Order or the rules or regulations made thereunder until the expiration of one month from the delivery of a written notice at the Authority office or the place of abode of such member, officer, servant or person, stating the cause of action, the name and place of the intending plaintiff, and the nature of the relief sought.
(2) In every such suit the complaint shall contain a statement that such notice has not been delivered."
40. ' The impugned order of the K.D.A. Was passed according to the rules and Regulations framed by the K.D.A. Thus, the suibject-matter of the suit is the act of the Governing Body of the K.D.A.Under th Regulations of 1965. It was, therefore, incumbent upon the plaintiff to have given one month's notice to the K.D.A. As contemplated by Article 131. This Article further requires that the plaint in the suit in respect of any act of the K.D.A. Should also contain statement that such notice has been served.
41. The plaint does not show that notice was given to the K.D.A. By the plaitiff. Nor there is any statement to this effect in the plaint. The suit is, therefore, barred by virtue of Article 131. Reliance has been placed in this connection by Mr. Desti Muhammad Ibrahim, learned counsel for defendant No,1, on the case of Mst. Zainab Hajiani v. Al-Hilal Co-operative Housing Society Ltd. PLD 1978 Kar.
848. The facts of this case were that Mst. Zainab Hajiani had filed suit against the K.E.S.0 and the K.D.A. For declaration that they were not entitled to construct an Electric Sub-station near her house. It was held that the suit was barred for want of notice under Article 131 of the K.D.A. Order, 1957. I am in respectful agreement with the view taken by Z.A Channa, J., in the above case and held that the present suit is also barred for want of the statutory notice.
42. ' For the above reasons, I find no substance in this suit which, is dismissed with costs.