' SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the judgment of the learned Judge in chamber of the High Court of Sindh whereby the judgment of the learned Appellate Court was affirmed which had set aside the judgment and decree passed by the learned Trial Court in favour of the petitioner.
2. The petitioner filed a suit alleging that plots of land bearing Nos.923 and 924 with construction thereon situated at Baghdad', Atmaram Road, Lyari Quarters, Karachi, were in his continuous occupation for the last 28 years. His name was duly mutated in the records of the KMC and Excise & Taxation Department._ The Goverment of Sindh had decided to grant permanent leasehold rights to the occupants of the plots of land situated in Lyari Quarters, Karachi, exclusively on the basis of their occupation and possession. In pursuance thereof Respondent No,7 issued demand note for Rs, 901.65 on 22-6-1972 for regularization and also development charges. The petitioner deposited the said amount with the Respondent No,7 on 23-6-1972. Respondent No,7, however, avoided to execute a lease-deed in his favour and all of a sudden on 1-7-1976 Respondent No,7 informed the petitioner that it has decided to issue lease deed in the name of one Chunburi and others as awarded by the lease sub-committee. The petitioner then filed the suit alleging that the order was passed without any notice to him and that it is illegal and without jurisdiction. He prayed for declaration that he is entitled to the grant of lease in his favour and the lease deed executed in favour of respondents Nos.1 to 6 is illegal, obtained by fraud and should be cancelled. Respondents Nos.1 to 6 filed a written statement claiming that they are the owners of property having inherited the same from their father who was the original owner and this question was duly considered by the Special Committee of the KMC for the purposes of grant of regularization of Plots No, 923 and
924. The learned Trial Court decreed the suit filed by the petitioner but in appeal the learned Additional District Judge set aside the same and the suit was dismissed. The petitioner filed revision application which was also dismissed. While dismissing the revision application the learned Judge in Chamber observed as follows:-- "No controversy has been raised before me in regard to the findings arrived at by the learned Courts below that the said predecessor of respondents No,1 to 7 was the original lessee of the said property. In fact the applicant had only claimed regulation of the said property in his name on the ground of his undisturbed possession. No doubt Rule 13 of the Sindh People's Local Council (Land)
Rules, 1975, authorises a Local Council to regularise unauthorised possession of plots after preparing a lay-out plan in that regard etc. But Mr. Moinuddin has not been able to show that respondent No,8 was not empowered in the present case to have extended the lease in favour of the said respondents by virtue of exercise of powers under Section 42 of the Sindh People's Local Council Government Ordinance. No doubt, the learned Appellate Court has not concurred with the findings of the learned Civil Judge by holding that the occupations and possession of the disputed premises was not undisturbed or unchallenged but, in my view, it is not necessary to go into the said question. Since the power of respondent No,8 to act under section 42 is not under challenge, the applicant was not entitled to a decree in his favour on the basis of his mere possession of the property. On the other hand, it has been pointed out that the Lease Committee of Respondent No,8 decided the case purely on merits. Since there is nothing to show that respondent No,8 had acted illegally in the matter, I find no reason to interfere with the judgment of the learned Appellate Court.
This Revision is, therefore, dismissed."
Mr. Rasheed A. Razvi, the learned counsel for the petitioner, contended that the order was passed without any notice to the petitioner and this aspect has not been considered by the learned Single Judge. From the operative part of the judgment it seems that reliance has been placed on Section 42 of the Sindh People's Local Council Government Ordinance which empowers every Council to transfer or regulate any immovable or movable property vested in or acquired by it. It, inter alia, empowers it to enter into contract for transfer by sale, mortgage, lease or otherwise of immovable property or any interest or right thereto subject to the Rules. Section 42, subsection (1) provides that `every Council shall be competent subject to the provisions of this Ordinance or rules to transfer or relegate any movable or immovable property Likewise subsection (4) also confers a power to transfer or lease subject to the rules. Therefore, the power under section 42 is subject to the Rules.
The rules framed are Sindh People's Local Council (Land) Rules, 1975 (PLD 1975 Sindh Statutes 126).
Rule 13 provides procedure for regularization of unauthorised possession of the occupants. It was in pursuance of this rule that respondents No,7 had issued challan for payment of development charges and lease amount. Therefore, section 42 does not confer an unrestricted power to transfer which has been made subject to Rule 13. This aspect of the case does not seem to have been considered. Leave is granted to consider, inter alia, this question. Secuirty Rs,5,000.