' SYED ABDUR RAHMAN, J.---This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. Case of the petitioners is that Commercial Plot No, Com.4, Block-2,Clifton, Karachi, measuring 2,133.33 sq.Yds. Was allotted by the respondents K.DA. (Karachi Development Authority) to one Aziz Patel. The K.D.A. Thereafter handed over possession of the plot to him. The occupancy value was determined at Rs,200 per sq.Yd. And a sum of Rs,4,26,666 was paid by him as full and complete occupancy value. On 29-5-1978 Aziz Patel transferred the said plot to Petitioner No,1 by an agreement of sale. Respondent K.DA. Approved the pre-lease transfer and mutated the plot in the name of Petitioner Not on 10-7-1978. K.DA. Then executed Registered Lease Deed of the plot in favour of Petitioner No,1 on 25-3-1979. On 10-11-1983, Petitioner No,1 entered into an Agreement of Sale of the aforesaid plot with Petitioner No,2, Kamran All Pardhan. Since there were no dues whatsoever, Petitioner No,1 applied for Clearance Certificate, but to his utter surprise the respondents came out with an additional demand of Rs,4,27,375 on the pretext that the K.DA. Had enhanced the price from Rs,200 to Rs,400 per sq. Yd. The Petitioners claim that the K.DA. Having once finally fixed and settled the occupancy value, having received the same without any reservation and having transferred the plot finally in that the allotment was made, possession was delivered and Registered Sub-lease was executed, cannot now enhance the occupancy value.
Hence the prayer that the orders and demand of additional occupancy value be declared as null and void and be set aside.
3. The Petition has been contested by the K.DA. It has filed the Counter-Affidavit of Musarrat Iqbal, Assistant Director (Commercial), K.DA. It is alleged therein that "at the time of transfer of the plot on 10-7-1978 in favour of the Petitioner, he had filed an Indemnity Bond before the respondent, stating that the plot may be transferred in his name at his risk and responsibility for which he agreed to abide by all the terms and conditions of allotment made to original allottee. The petitioner had also agreed to pay all dues, prescribed premium and ground rent etc. That may from time to time become payable to K.DA. For the said plot. He had further undertaken to indemnify and keep the K.DA. Secured and harmless from all losses and damages that may be occasioned due to transfer of the said plot, or arising out of any claim or dispute by any person for the plot in question." It is further alleged in the Counter-Affidavit that Petitioner No,1 disposed of the said plot by way of Registered Sale-deed to Kamran Ali on 17-12-1983 and mutation of Kamran Ali was accordingly allowed on 26-7-1984 subject to payment of difference of occupancy value at the rate of Rs, 400 per sq. Yd. In accordance with the Governing Body Resolution No,550, dated 20-12-1975. Photo copy of the Gazette Notification containing the said resolution was produced. Kamran All then disposed of the said plot to M/s. Jason International Ltd. On 6-7-1985 and applied for grant of permission to sub-lease the flats constructed over the said plot to the sub-lessees. The permission was deferred till the decision of this Constitutional petition.
4. The Petition was admitted on 22-1-1988. On 1-2-1988, an application under Order-39, rules 1 and 2, C.P.C. Filed by the Petitioners was granted by the Court and the K.DA. Was directed not to interfere with the sub-leasing of the flats by the Petitioners subject to the condition that for the purposes of such lease at that stage, the plot shall be deemed to have been allotted and transferred @ Rs,400 per sq.Yd. Subject to final result of the petition. The difference of the occupancy value @ Rs,200 per sq. Yd. Was already deposited by the Petitioners in the Court in pursuance of such an order.
5. It would, therefore, appear that the points that would require determination in this petition are:-
(1) Whether the Notification dated 18-6-1977 is applicable to the plot in question? And
(2) Whether after having fixed and finally accepted the occupancy value without any reservation, the respondent/K.DA. Can enhance the same?
6. We have heard Mr. Mohammad Naseem, Advocate for the petitioners and Mr. Sabir Hussain Qazilbash, Advocate for Respondent No,1. It is an admitted position that the plot in question was allotted by the then Chief Minister to Aziz Patel in relaxation of the rules @ Rs,200 per sq. Yd. On 19- 3-1977. Such allotment order is filed as Annexure "A" and is not disputed. It is also admitted that possession of the plot was delivered to Aziz Patel on 27-6-1978 as is evident from Annexure "B". The Agreement of sale by Aziz Patel in favour of Petitioner No,1 coupled with the mutation of the plot by the K.DA. Is also admitted and borne out from Annexures "D" and "E". Similarly Registered Lease Deed was admittedly executed in favour of Petitioner No,1 by the K.DA. On 18-6-1979 and the rate of occupancy value throughout was shown at Rs,200 per sq. Yd. After having executed Registered Lease Deed, the interest in the land was transferred in favour of petitioner No,1. The respondent/K.DA. Had no power thereafter to enhance as it had already allotted the plot to the Petitioner @ Rs,200 per sq.Yd. And received the occupancy value thereof. There can be under the law no cavil to the proposition that the Chief Minister, who enjoys the powers under Section 11 of the Ordinance to relax the provisions could allot the said commercial plot A instead of auctioning it and to reduce its price. At any rate after the Registration of Lease-Deed all the interests in the land and the title passed on to petitioner No, 1 and under the law transferor was left with no option to enhance the price.
7. So far as the Notification mentioned above is concerned, the same purports to enhance the reserved price of commercial plots. The term 'reserved price' pre-supposes that such plots were to be auctioned. Since the Chief Minister had relaxed the necessity of auctioning the plot, the question of reserving the price does not arise. Apart from that the Governing Body Resolution No,550, dated the 20th December, 1975, relates to the plots which were to be disposed of by auction and the amount of Rs,400 per sq. Yd. Was a price reserved for the plots that were to be sold under auction, whereas the petitioners was granted the plot by the Chief Minister in exercise of his powers of relaxation of the provisions. The Governing Body Resolution No,550, dated the 20th December, 1975 related to plots which were to be disposed of by auction and the reserve price or occupancy value whereof was raised to Rs,400 per square yard, whereas in the case of plot relating to the Petitioners the price of the plot was fixed as per discretion of the Chief Minister at Rs,200 per sq. Yd. Vide Annex.
"A", dated the 19th March, 1977 from the inception. It may be pointed out that, if the Governing Body Resolution No,550, dated the 20th December, 1975, was intended to apply to the plot in question, its price could not have been shown on 19th March, 1977 at Rs,200 per sq.Yd. The lease of the Plot was issued as late as 25th March, 1979. It was sealed by the Director of Karachi Development Authority on 18th June, 1979, where once again the occupancy value of the plot was shown at Rs,200 per sq.Yd. It is, therefore, quite clear that upto that date it was clear to the K.DA. That the Governing Body Resolution No,550 dated the 20th December, 1975 was not applicable to the petitioners case.
8. The Petitioner has filed rejoinder to the Counter-Affidavit filed on behalf of the respondent by.
Nusrat Iqbal Assistant Director (Commercial), referred to above. In the rejoinder affidavit the attorney of the Petitioner, Muhammad Iqbal Ahmad Khan Afridi, has,reiterated on Oath all the averments made in the plaint. Besides this he has reproduced the extract of the resolution of 21st meeting of Governing Body K.D.A. Held on 16-9-1979. Item No,8 of Resolution No,284 reads as under- "(a and b).--In view of the decision taken by Martial Law Administrator Zone 'C' to accept the orders of allotment passed by Ex-Minister/Chief Minister for implementation, in cases where 50% payment of the occupancy value, has been made and plot numbers allocated on the said up challans, this authority has no choice except to treat the allotments already issued by their Secretariats as valid, though the original orders of the Minister/Chief Minister, are not available on the files.
(c & d).--The categories of larger plots alloted in lieu of smaller plots by Secretariates of Ex- Minister/Chief Minister, may be accepted as fait accompli. The cases of allotments in which challans were issued by Chief Minister Secretariat and vice versa, may be treated as valid.
(e).--In all the cases of allotments, K.D.A. May charge the occupancy value at the enhanced rate if challans had been prepared at the old rate on or after 1st January, 1976. The payment if made at the old rate within the prescribed period which was not more than 14 days, i,e. Upto 15-11976 may be treated as legally correct provided no transfer of plot has been made. In other words enhanced rate may not be charged in such case where transfer has already been effected. However, enhanced rate shall be charged in such case where no transfer has been effected.
(f).--In view of the fact that quite a large number of plots so far allotted by the Secretariat of Ex- Minister/Chief Minister have been transferred and the matter of multiple allotments, if any, has become fait accompli, this authority has no alternative except to ignore them but care may be taken in future to avoid such errors."
' The respondent's counsel Mr. S.H. Qazilbash did not dispute the correctness of the above resolution. From the above resolution it is quite clear that the Governing Body itself had expressed a view contrary to the stand now being taken by the respondent.
9. In the same counter-affidavit the Petitioner's attorney has reproduced the under-mentioned extract of the Legal Advice of Mr. Sabir Hussain Qazilbash, the Advocate and Law Officer of respondents on enhancement of occupancy value which will further confirm this fact:- "We stand committed at the rates on which the allotments were issued and the rates offered would constitute to be a contract and the terms of the contract shall equally be binding upon the parties to the contract agreement. Sd/- 6-114982. Law Officer, Karachi Development Authority, Karachi."
10. Mr. S.H. Qazilbash, Law Officer of the K.DA. Conceded that the advice alleged to have been tendered by him is correctly reproduced by the Petitioner's attorney. He, however, stated that it was tendered by him as his personal view whereas at the moment he was presenting view taken by his client i,e. Respondents Nos.1 and 2, irrespective of the fact that it is against the advice tendered by him.
11. The Petitioner's attorney in the same rejoinder affidavit has also reproduced the following extract of K.DA's. Resolution No,242 dated 5-5-1983 which shows that it had acted on the above advice and approved the regularisation of allotment in a similar case:- "Resolved that in the light of the legal opinion approval be accorded to regularise the allotment of Flat No,FL-5, Block 5, Scheme 5, Clifton, allotted to M/s. Gul Sattar Builders @ Rs,40 per sq. Yd.
Without changing any difference @ Rs,25 per sq. Yd. As there is no justification, therefore, after lease deed has already been executed and registered indicating the rate of occupancy value @ Rs,40 per square yard."
The correctness of this extract has also not been disputed by the respondents counsel.
12. In the same counter-affidavit it was stated by the Petitioner's attorney which fact has also not been denied by the respondent's counsel, that the Governing Body KDA vide its Resolution No,315 dated 13-9-1984 has appointed a committee comprising of the following persons for the determination of merits for not charging the enhanced rate of occupancy value in respect of the lease plots, which included the disputed plot and submitted its recommendations to the Governing Body, K.DA. For taking a decision:- {{TABLE TEXT}}
(1) Hakim Muhammad Ahsan Member GB, K.DA. Chairman
(2) Mr. Ahmedullah Farooqui Member (A&L) K.DA. Member
(3) Mr. Moinul Arfin, Member (F) K.DA.
(4) Mr. Naeem Ahmad Director MP&EC K.DA.
(5) Mr. Allauddin Sabir Director (LM) K.DA.
' The Committee held its various meetings and considered all the aspects of the case. The report of the Committee is as under:-
(1) ......................
(2) ......................
(3) ......................
(4) ......................
(i) ...................
(iv) No enhanced rates shall be charged on the plots which are duly transferred/mutated from one allottee to the purchaser and/or leased by the K.DA.
(v) Those who have already paid enhanced rates without challenge or debate on its legality or otherwise should be treated as such without any further process i,e. No refund shall be allowed.
(vi) The cases wherein the challans have been issued and payment accepted at old rates on the basis of the orders of the then Minister/any other authority, the amount of loss i,e. The difference between the two rates will have to be written off.
(vii) In all other cases enhanced rate will be charged.
(viii)Categories of plots not notified in the Gazette should be charged at the original rates.
10. We are, therefore, of the clear view that in accordance with section 11 of the Sindh Disposal of Plots Ordinance, 1980, the Chief Minister in exercise of power of relaxation of the provisions of the Ordinance had allotted the plot in question to the predecessor of the Petitioners thereby dispensing with the necessity of auctioning the same. The Chief Minister had also simultaneously fixed the price of the plot @ Rs,200 per sq. Yd. Since the Ordinance had given the power of relaxation to the Chief Minister, therefore, he has also the powers to change the price of the plot even if it is assumed for the sake of argument that there was a price fixed for such plots and the above notification had enhanced the price of the plot. It will not be out of place to mention that the counsel for the respondent has not and cannot contend that the Chief Minister being the Chief Executive did not enjoy unlimited power to fix the price of the plot at a lower or higher stage while allotting unless the same was curbed by any statute. He has also power to grant plot free of cost. It was a different matter that the Chief Minister can be taken to task by the Assembly or by any other constitutional authority for his having done so if his acts were dishonest or mala, fide. It is an elementary principle of law of contracts that once a contract was concluded its c terms cannot unilaterally be changed by any one of the parties to such contract. We have also gone through the indemnity bond Annexure "G-1" referred to by the respondent. We do not find any averment in this bond whereby it can be implied that the Petitioner had agreed to enhance the occupancy value.
On the contrary it mentions that the petitioner had bound himself for payment of dues except the difference of occupancy value, specifically omitting the difference of occupancy value. Registered lease deed was executed in favour of Petitioner in as early as 1979. By executing this registered deed the K.D.A. Transferred ownership right of this plot in favour of petitioner @ Rs,200 per sq. Yd.
We are, therefore, fully satisfied that having fixed from the very inception the price at Rs,200 per sq.
Yd. Having charged the same in full and having finally transferred ownership in D favour of the Petitioners at the above price without making any reservation whatever about the increase of the price, the respondents are now precluded from demanding additional amount as occupancy value or price of the plot in question from the Petitioner.
' These are the reasons for which we had allowed the petition by our short order dated 18-2-1991.