HAZIQUL KHAIRI, J.- The Karachi Metropolitan Corporation (hereinafter called "Applicants") and the Director Land and Estates, K.M.C, have filed this revision against judgment and decree passed in Civil Appeal No.359/83 by the learned Additional District Judge, Karachi, whereby the judgment and decree passed by the learned XIVth Senior Civil Judge, Karachi in Suit No.452/81 was set aside.
2. Briefly stated, the facts of the case are that the respondent Riaz Qadir Brohi claims to be in possession of Plot No.A-235, measuring 67 square yards, Miranpir, Liyari Quarters, Karachi for many years and his name appears in the record maintained by the Excise and Taxation Department to whom he has been paying property tax. Applicant is also collecting municipal tax from him.
According to the respondent he acquired right of possession from one Haji Ali who acquired all rights in the said plot from one Din Mohammad son of Ghulam Din, who had been in possession of the said plot for 15 years. It is contended that the time of survey of Liyari Quarters for the purpose of leasing out the plots to their occupants, the said plot was shown as regularisable in the plan prepared by the applicant and also appears as such in the revised plan prepared by the applicant.
However, on 23-7-1981 applicant invited objections through a public notice from general public for commercialisation of plots adjoining the respondent's plot and admitted commercialisation of the respondent's plot in violation of their own rules. In view of the police of applicant respondent has got vested rights on the plot for the purpose of lease in his name, as the respondent had been enjoying peaceful possession of the said plot and paying regularly K.M.C, taxes/service charges.
The respondent has alleged the action of applicant as mala fide, void and against the principle of natural justice and has prayed as under :- "i) To declare that the plaintiff is entitled to the lease of the said plot No.235-A and that the action of the defendant in commercialising the said plot is illegal and against the principles of natural justice. ii) Restrain the defendants or any other person or persons working under them from interfering with the possession of the plaintiff over plot No.A-235 situated at Qazi Abdul Aziz Road, Miranpir Lyari Quarters, Karachi. iii) Direct the defendants for leasing out the said plot to the plaintiff and alternatively on their failure to direct the Sub-Registrar or any other person on behalf of the defendants be directed to execute the lease of the said plot in favour of the plaintiff. iv) Any other relief which this Honourable Court deems fit and proper in the circumstances of the case."
3. The applicants in their written statement raised preliminary objections stating that the relief claimed is barred by sections 42 and 56 of Specific Relief Act and the suit is hit by section 108 of Sind Local Government Ordinance, 1979. According to them the respondent is an encroacher on K.M.C, land and mere payment of taxes or service charges does not confer any right of ownership over the encroached plot. It is denied that in the revised lay-out plan the plot in question has been shown as regularisable in favour of the respondent. The plot has now been commercialised as per revised lay-out plan of the area and since the respondent had not submitted any objection at that time he is estopped to agitate at this stage. It is averred that the respondent had no vested right on the plot as he is neither their lessee nor licensee. Besides commercialised plots can only be disposed of by public auction and cannot be leased out to any individual other than by way of general public auction.
4. On the basis of the pleadings the parties the following issues were framed:- "1. Whether the action of the defendant in commercialising the plot of the plaintiff is legal and in accordance with principles of natural justice?
2. Whether the suit premises are regularisable in favour of the plaintiff in accordance with the plan prepared by K.M.C.?
3. Whether the plaintiff has got vested rights on the suit plot for the purpose of lease as per lease policy adopted in respect of Lyari Quarters for leasing out the plots to their occupants?
4. Whether the K.M.C, has leased out other plots in the same locality to their occupants ?
5. What should the decree be ?"
5. The respondent examined himself; whereas K.M.C, had produced one Muneer Akhtar, Assistant Director Lands, K.M.C, in support of their case.
ISSUE NOS. 1 & 2. The contention of Mr. S.M. Muslim Naqvi is that in view of resolution No.2555 dated 1-3-1978, commercialisation of the plot had taken place, where-after, publication in the Daily Jang dated 23.7.1991 took place, requiring filing of objections for commercialisation of the plot. It is thus contended by him that despite publication of notice, no objection was lodged by the respondent - and therefore his claim over the rights in the land is untenable.
It is an admitted position that the land in question is situated in Miranpir, so also it is a fact that the applicant had (sick) the land in this area in favour of other persons. What Mr. M.A.M. Namazi pointed out was that the applicant themselves violated their in rules and failed in their statutory duties. It is also not a case where a commercial plot can be disposed through open auction as alleged. First of all learned counsel for respondent brought to my notice the very resolution No.2555 dated 1-3-1978, the heading whereof reads as follows: "The approval of regularization plan of Liyari and other Katchi Abadis of Karachi Metropolitan Corporation."
There is also nothing to show that any amendment or revision in the original plan was sought as claimed by the applicant. There is also nothing in the resolution for commercialisation of the plot in question. The obvious object of passing the resolution was to regularise certain localities including Miranpir, where the plot of the respondent is situated. According to him, there is no clause in the resolution referring to revising, amending or commercialising of the locality. It is for this reason that despite court's order dated 21.2.1983, DW Mr. Munir Akhtar failed to produce any revised lay-out plan in respect of the locality. The reasons for non-production of the revised lay out plan was that either it did not exist at all or this suit plot was still shown residential in the revised lay-out plan. Reference was then made by the learned counsel to P/5 being publication of notice appearing in the Daily Jang dated 23.7.1981. It was pointed out that this notice on the face of it is bad in law as it speaks of commercialisation of the plot having already taken place. As to how, when and in what manner commercialisation has taken place no details whatsoever are given therein or brought on record, although D.W. Munir Akhtar in his deposition stated that whatever be the nature of the plot, whether it be residential or commercial, applicant prepares original lay-out plan, amended lay-out plan or revised lay-out plan. However, the applicant despite required to produce revised lay-out plan in respect of the locality has failed to do so and as held in Raja Akhtar Chaudhry vs. Jammu & Kashmir Government PLD 1982 S.C. AJ & K 124, an adverse presumption can be drawn as to the existence of documents. It is also an admitted position that in spite of specific direction given by the Court to the applicant, they have failed to produce relevant papers in respect of regularisation of other plots in the same locality and therefore inference may be drawn against them under section 129(g) of the Qanoon-e-Shahadat.
The applicant did not adopt any procedure for commercialisation of the plot for approval of revised lay-out plan. No notice whatsoever was given to the respondent about the commercialisation of the plot, burden of proof of which lies heavily on the shoulders of the applicant. The applicant has failed to discharge, their burden.
Next comes the question of the respondent claiming lease of the portion of the plot in his possession. It is not disputed by the applicant that the respondent purchased the plot on 23.5.1981 from one Haji Ali together with structures thereon. The applicant has produced declaration deed Ex.P-2, P.T.I issued by Excise & Taxation Department being Ex.P-3, Electricity Bill Ex.P-6. It is also a matter of record that the applicant on the basis of P.T.I (p-3) mutated the property in the name of the respondent vide Ex.P-4. The respondent had also applied to Lyari Lease Office for issuance of lease of plot in dispute in his name. Admittedly plots No.234 and 235 were regularised and leased out by applicant to various persons. Mr. Munir Akhtar, Assistant Director Lands, Lyari Zone, K.M.C., in his deposition has stated that K.M.C, used to auction the vacant plots but it used to regularise plots occupied by occupants of plots namely 234,235,226, 229, 235-A, 235-B which are in one row in the same locality and adjacent to the plot in question. It is also, admitted by him that Lyari, commercial plots were leased out on basis of physical possession. It is also admitted by him that the applicant was issuing lease on the basis of record of Excise & Taxation Department.
Mr. M A.M. Namazi, pointed out that there specific procedure prescribed for regularisation of unauthorised possession of the occupants under section 13 of the Sindh Peoples Local Council's
(Land) Rules, 1975 wjiich runs as follows: RULE (1)- Where a large number of plots are under unauthorised occupation or are held without regular title, or structure are raised thereon in an unplanned manner and without lawful authority the Council may, and if required by the Controlling Authority shall prepare a lay-out plan marking out suitable plots of such size as it may consider best suited to the locality or areas.
RULE (5)- The unauthorised occupation of plots may, subject to conditions prescribed in these rules and on payment occupancy value and development charges in lump sum, be regularised, by granting lease in respect of such plots to the extent and size as may be permitted by the sanctioned lay-out plan.
It was urged that the applicant has admitted the rights of the respondent over the suit plot and under the circumstances, the respondent is entitled to lease of the suit plot in his favour.
I agree with Mr. S.M. Muslim Naqvi, learned counsel for the applicant that there is nothing to show that the respondent has acquired vested right in lease of the portion of plot in his possession, but at the same time bulk of evidence as well as the rules under the Sind Peoples Local Council's
(Land) Rules, 1975 lend support to the respondent's case that even as unauthorised occupant, the respondent has the right to be considered by the applicant for lease in respect thereof subject, however, to rules and conditions prescribed by the applicant thereunder. The applicants admittedly have not considered the respondent's case for lease which may be considered by them subject, however, to the rules and conditions thereunder. With regard to the respondent's prayer for injunction reliance was placed on AIR 1941 Lahore 200, in which it was held that where the Municipal Committee acts in a capricious, 'oppressive, unreasonable, arbitrary or partial manner, a Civil Court can under section 55 of the Specific Relief Act, issue injunction to Municipal Committee even in cases where section 45 of that Act does not apply.
In view of the facts and circumstances of the case particularly keeping in view the admitted position that the applicant had leased out other plots in the same locality to others, I am of the view that the learned Additional District Judge rightly granted injunction to the respondent and hence there is no justification for interference with his order.
In the result, I partly allow the revision but with no order as to costs.