1. MUHAMMAD AFZAL ZULLAH, CJ. ---This appeal through leave. Of the Court is directed against the acceptance by the High Court of a Constitutional (Writ) Petition filed by respondent No.l regarding the allotment of a plot by the K.DA.
2. The facts and points noted in the leave grant order are as follows:- "The dispute in this petition for leave relates to a plot of land measuring 1.5 acres in Karachi in Scheme No.XVI of the third respondent. In the events that happened, the third respondent had allotted this plot to the first respondent by a letter of allotment dated 19-2-1966 on the terms and conditions stated in the letter of allotment. As the first respondent complied with the terms and conditions of the letter of allotment, it received possession of the plot allotted to it on 30-4-1973.
3. However, as it had not been given vacant possession of the plot, it protested to the third respondent, and its manager and informed him that there were trespassers on the plot. A long correspondence ensued, which is not relevant to this petition for leave, and it is sufficient to state that the third respondent informed the first respondent that the eviction of the trespassers on the plot allotted to the first respondent had been stayed by an order of the Minister of Local Self Government. Meanwhile, the petitioner had registered itself as a Co-operative Housing Society and applied for the very plot which had already been allotted to the first respondent, therefore, by a letter dated 30-4-1974, the third respondent informed the first respondent that its allotment had been cancelled, but the third respondent has offered to allot another suitable plot to the first respondent.
4. It is not surprising that the first respondent challenged the cancellation of the plot allotted to it, therefore, it filed a writ petition in the Sindh High Court against the petitioner and the other respondents in this petition for leave in which it challenged the validity of the third respondent's order of 30-4-1974. As this writ petition was allowed by a Division Bench of the High Court, the petitioner had filed this petition for leave.
5. Mr. Khalid Ishaque submitted that the petitioner's claim was merely for the enforcement of the contract contained in its letter of allotment, dated 19-2-1966, therefore, learned counsel's further submission was that the first respondent should have filed a suit and the remedy of a constitutional petition was misconceived. In support of this contention, learned counsel relied on judgments reported in Shamshad Ali Khan v. Commissioner, Lahore (1969 SCM R 122) and in Al- Mahmood Industries (Pakistan) Ltd. v. The Trading Corporation of Pakistan Ltd. (1974 SCM R 51) and on a judgment of the Sindh High Court in Mir Rasool Bakhsh Khan Sundrani & Co. v. People's Municipality, Sukkur and 2 others (PLD 1975 Kar. 878). The petition also raises other questions of law, accordingly, we grant leave as prayed."
6. The High Court while dealing with some of the questions raised by the learned counsel for the appellant (in the High Court) observed that the very first paragraph of the letter of allotment stated that the plot in question had been reserved for a "public building". While dealing with the issue; as to whether, the Chief Minister had any power to allot the plot to the appellant it was observed that the Chief Minister or for that matter the Government of Sindh could not order the cancellation of allotment or make alternative allotment. These are the exclusive functions of the K.DA. It was also noticed that factually it was incorrect that the allotment in favour of the respondent was cancelled by the Government of Sindh inasmuch as the record showed that Government was not even aware of the fact that the plot had been allotted to the respondent and that the K.DA. Was confronted with the problem of evicting the eneroachers so as to enable it to deliver the vacant possession to the respondent. The Government of Sindh came into picture when the plot was allotted to the appellant/society by the Chief Minister.
7. The argument of the learned counsel for the K.DA. Before the High Court in this behalf was repelled as follows:- "The K.DA. At best could rely on Article 4(2) of the K.DA. Order under which the Government of Sindh has the power to give to the Governing Body of the K.DA. Policy directions but apart from the fact that it is doubtful whether the Chief Minister was making a policy decision in making the allotment in favour of the society, we are unable to see the policy which was being advanced by allotting a plot to the society without knowing that the plot stood allotted to the petitioner for a public purpose which allotment was very much in subsistence. It may also be noticed that even if the said Article is pressed into service it empowers the Provincial Government to give policy directions to the K.DA. And not that the Chief Minister is empowered to make a direct allotment. We are clearly of the view that for reasons aforesaid the allotment made in favour of the society is of no legal effect".
8. It was also held by the High Court that the respondent's allotment could not be cancelled by the K.DA. Except in accordance with the terms and conditions of the allotment. But admittedly it was not even the case of the K.DA. That there was any breach of terms of allotment made in favour of the respondent. Thus the K.DA. Was bound to act fairly and reasonably and in public interest "and assuming that they were bona fide prevented from removing the encroachers they ought to have given the respondent the same option as was given to the society; namely, take the responsibility of removing the encroachers and shifting them to an alternate site provided by the K.DA." On a question of fact the High Court observed that there was nothing on the record to show that any expense had been incurred by the appellant in removing the encroachers and it was further observed that in any event such considerations were wholly immaterial if the allotment made in its favour was found to be of no legal effect. And lastly, while dealing with the appellant's objection to the maintainability of the respondent's writ petition it was held that the dispute in the present case was not one of enforcement or otherwise of a contractual agreement but that of the compliance of the statutory duties of the K.DA. The reliance in making this distinction was placed on Haji Noor Muhammad v. Karachi Development Authority (PLD 1975 Kar. 373).
9. At this stage it needs to be noticed that the learned counsel for the appellant amongst others complained that while the respondent did complain about the allotment of the plot to the appellant in substitution of the respondent, the latter remained silent when a part of the same plot was allotted to a petroleum company for installing a petrol pump. Although this aspect will not affect the merits of the allotments made in favour of the two main contesting parties in this case yet, what the learned counsel for the appellant emphasized was that the issuance of a writ being in purely discretionary jurisdiction of the High Court, the respondent had on account of the aforementioned conduct disentitled itself to this relief.
10. The above argument, it seems, is based on some misunderstanding. In fact the respondent had also challenged the allotment to the petroleum company and the plea in this behalf was rejected by the High Court on findings of fact that the said allotment neither affected the allotment of disputed plot to the respondent nor its original area was reduced in any way. The findings in this behalf are as follows:- "It was argued that the allotments made in favour of these respondents are of no legal effect for they form part of the land allotted to the petitioner. The argument overlooks the fact that subsequent to the allotment of the plot ST-1, it was demarcated and measured and the possession order which did not vary the total area of the plot, described the plot as ST-1/B-1005 of which the site plan was given to the petitioner. At no time the petitioner raised any objection as regards this site plan and since it is conceded that the areas in possession of the respondents Nos.4, 5 and 6 are outside the limits of the petitioner's plot shown in the site plan the petitioner could have no grievance as regards these areas. The petition, therefore, fails against respondents Nos. 4, 5 and 6."
11. When the actual position was explained to the learned counsel, he did not press the argument any further.
12. On another technical point also the learned counsel invited our attention to the previous proceedings in this appeal and desired that the point of view of the K.DA. In the present dispute be also ascertained. On our asking the learned counsel for the K.DA. While stated the fact that it had not contested the present appeal and the matter had been left to the straight contest between the two allottees, he, however, had the instructions to state that it was an "amenity plot" and that while the allotment in favour of the respondent was valid, the one in favour of the appellant was invalid.
13. Learned counsel also tried to contest that it was not an "amenity plot" but having noticed material to the contrary on the record did not press this question also any further. The same was the position in regard to his argument that under the Colonization of Government Lands Act the Government through the Chief Minister could make direct allotment of the plot in dispute. This argument to us looked extraordinary. When called upon to substantiate the same learned counsel in the beginning thought that it will be possible to do so but later on left it; because, as he rightly said, that perhaps this was not one of the points on which leave to appeal was granted even under the cover of the last sentence in the leave grant order which did visualise some points other than the one noticed for examination. He further explained that indeed he was not aware what points were urged at the time of the leave grant order.
14. The main argument of the learned counsel for the appellant which he emphasized again and again was that the respondent had by its conduct disentitled itself to retain the plot and in any case was not entitled to a discretionary relief in the writ jurisdiction of the High Court. The conduct to which the learned counsel referred was: the alleged inaction of the respondent to take possession of the plot by removing the encroachers; its inaction when the appellant removed the encroachers and built the boundary wall; and, its inaction when the appellant not only prepared the housing scheme regarding the plot in question, but also received advance amounts from the prospective purchasers. On the contrary, in that connection, he tried to highlight the other argument that the appellant/society was a bona fide allottee without notice of the allotment to the society.
15. In so far as the removal of the encroachments and Jhugies is concerned, record shows that the encroachment itself was shady affair and it is not impossible at all that the situation that emerged at the site might have to do something with the ultimate substitution of the all.)ttees. But we would like to confine ourselves to the approach of the High Court in this behalf; namely, that point raised was not one of the terms and conditions of the allotment of the respondent nor a similar offer in that behalf was made to the respondent as was made to the appellant.
16. From the entire facts and record it is impossible to accept the contention that the appellant was not aware of the previous allotment to the respondent. The assertion of the learned counsel is that it was an offer of the Government to the appellant for the allotment of the plot which it accepted and therefore it could not make enquiry about the allotment made to the respondent. As the record itself shows, the appellant was aware of the respondent's allotment and in any case even if it accepted the offer of the Government, it was the duty of the appellant to check the record of the K.D.A.
17. And had it been done; like a diligent party every aspect of the respondent's allotment would have been definitely revealed. Learned counsel had no answer to this feature of the case, except, that the appellant made oral enquiries and was not given any information by the KD.A. This sort of plea, of course, cannot be accepted.
18. As to the, plot in question being an "amenity plot", when the learned counsel realised that it was impossible to plead otherwise, his main argument remained that if the petroleum company could be given a part of it and also if the appellant got its allotment for the purpose of building houses and flats the use of "amenity plot" was changed to other uses. There is a rational method of changing the use of KDA. Plot and the conversion of amenity plot to a "flat site" is much more difficult than imagined by the learned counsel. In fact neither factually nor legally the plot was ever converted as argued.
19. On the specific point, regarding which leave to appeal was granted, learned counsel argued that at best the respondent's remedy was against the K.D.A. And that too in a civil suit for relief other than restoration of the plot and not through a Constitutional (Writ) petition. We do not agree with him. The question here is not only of the restoration of the respondent's allotment but also of the legality and validity of the appellant's allotment. As already observed Government or for that matter the Chief Minister had no power to either annul the respondent's allotment order to make the allotment to the appellant as done in this case. This is besides the points that the appellant could no! At all had been allotted an "amenity plot" for the purpose, for which it obtained the allotment from the Chief Minister. The question involved is of the statutory duty of the KDA. For all these reasons the argument regarding maintainability of the Writ Petition is without any force.
20. After hearing the learned counsel at considerable length we have not been able to find any force in the appellant's case. This appeal thus is dismissed. There shall be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.