1. ' Karachi Development Authority, the applicant in this case, has called in question the judgment passed by the learned IVth Additional District Judge, Karachi, dated 17-3-1985.
2. ' The facts of the case, briefly stated, are that, in August, 1985 the applicant issued a public notification (Exh.26) inviting from members of public, applications for allotment by ballot of residential plots of various sizes in Blocks Nos.7, 8 and 9 in the scheme called K.DA. Scheme No,24, situated at (Gulshan-e-lqbal) Country Club Road, Karachi. In response to the said notification the respondent made an application on the prescribed form dated 29-9-1965 for allotment to him a plot of 1000 sq. yds. in category 'D'. The respondent also deposited the requisite amount of Rs,4,000 with the United Bank Ltd., Karachi, being the first instalment of the occupancy value. The respondent was successful in the ballot held by the applicant on 15-11-1965 and was duly allotted Plot No,D/142/7 in the said scheme. Thereafter, the respondent received a letter dated 22-12-1965, asking him to furnish information to one Mr. Jamil Hyder Shah, Additional Deputy Commissioner, Karachi. The information required through the said letter was sent by the respondent by filling a pro forma on 29-12-1965, however, thereafter, another letter was received by the respondent dated 8- 6-1966 from Assistant Administrative Officer Lands and Estate Department of the applicant calling upon the respondent to appear before the Governing Body of the applicant on 21-6-1966 for verification of some points. Accordingly the respondent appeared before the Governing Body of the applicant on the same date and also furnished proof to the Governing Body that the respondent was independent of his father and that he did not own any house, flat or plot of land in Karachi. The respondent also produced requisite documents in this regard. Thereafter, nothing was heard by the respondent from the Governing Body in respect of the said plot. However, when the respondent served a notice vide letter dated 21-1-1969 upon the applicant calling upon it to issue an allotment order in his favour a reply came from the applicant dated 13-2-1969 informing the respondent that its Governing Body had not approved allotment of the said plot to the respondent. Consequently, the respondent filed Suit No,613 of 1969 for declaration and injunction before the learned IVth Senior Civil Judge, Karachi, seeking declaration that he was entitled to allotment of the said plot and that withholding of approval by the Governing Body in respect of the said plot was arbitrary, unjust, mala fide and illegal and hence without jurisdiction. A mandatory injunction was also sought from the Court to compel the applicant to allot the said plot to the respondent in the said scheme. The respondent also sought a permanent injunction to restrain the applicant from allotting the said plot to any other person, etc. ' The case of the respondent was resisted by the applicant. Although no controversy was raised in regard to the respondent being successful in the said ballot but it was denied that any allotment order in respect of the plot in question had been issued by the applicant in favour of the respondent. According to the applicant, the respondent was not recommended by the Enquiry Officer for allotment of the plot. It was further contended by the applicant that there was no binding contract between the respondent and the applicant and the mere fact that the respondent was successful at the said ballot was not sufficient to create any right in favour of the respondent to claim specific performance against the applicant.
3. ' The learned trial Court on the basis of the aforesaid pleadings framed the following issues in the case:--- ISSUES:
(1) Whether the plaintiff was declared successful in the Ballot on 15th November, 1965, held by the defendant and was allotted Plot No,D/142/7, K.DA. Scheme No,24, Gulshane-e-Iqbal, Karachi by publication.
(2) Whether the defendant were served with legal notice to issue allotment order of the said plot to the plaintiff and subsequently it was refused.
(3) Whether the plaintiff fulfilled all the terms and conditions prescribed by defendant and he was not allotted the said plot without any justification and the act of the defendant is arbitrary, unjustified, illegal and mala fide.
(4) What should be the decree?
4. ' The learned trial Court decided all the issues against the respondent and consequently his suit was dismissed vide judgment of the learned Senior Civil Judge, dated 21-9-1978.
5. The respondent being aggreived by such decision appealed before the learned IVth Additional District Judge, Karachi, who allowed the appeal and set aside the order of the learned trial Court vide his judgment dated 17-3-1985.
6. ' I lave heard Mr. Sabir Hussain Kizilbash, learned counsel for the applicant and Mr. Nasrullah Awan, learned counsel for the respondent.
7. ' The main contention of Mr. Nasrullah Awan, is that admittedly the Governing Body of the applicant did not recommend the case of the respondent on the ground that he was dependent upon his father who already owned a flat in Karachi. The respondent produced evidence before the Governing Body to show that he was an independent person and owned property and similar evidence was produced by the respondent before the learned trial Court, however, according to the learned counsel, the applicant was fully governed by the said Notification (Exh.26) and no such condition existed in the said notification whereby the applicant's application for allotment could be rejected by the Governing Body. Mr. S.H. Kizilbash, on the other hand, has argued that there was no binding contract between the parties and by the latest directive issued by the Government, no plot comprising of area of more than 600 yds. can be allotted by ballot. Reliance has also been placed by the learned counsel on the case of Abdul Razzak v. Karachi Development Authority 1991 CLC 1591 recently decided by my learned brother, G.H. Malik, J. In this case K.D.A. had disposed of certain commercial plots by a public auction. A dispute arose between the applicant and the plaintiff in the said case and it was held that mere acceptance of bid cannot be final unless approved by the Governing Body of the Karachi Development Autthority. It was further held that advertisement for auction was merely an invitation to bid as distinct from an offer to be bound to sell, consequently although the plaintiff's bid at the auction sale was accepted, but the same was subject to approval by the Governing Body of the Karachi Development Authority and the same was thus not final and did not amount to acceptance of offer which could ripen into a concluded contract.
8. ' It is pertinent to point out that the document upon which both the parties have placed reliance is the said notification embodying conditions in regard to allotment of the plot (Exh.26). According to the clause 6 (iv) of the said notification, Paragraph (b)(i): "Applicant should not own a house/plot of land/or flat situated anywhere within a radius of 20 miles from the General Post Office, Karachi, in his/her name, or in the name of his/her wife/husband, or of any of his/her minor or dependent children."
9. ' Paragraph (b)(ii) further provides that: "Applicant should not have disposed of by sale/gift or any other mode of conveyance a house/plot of land or flat situated within a radius of 20 miles of the General Post Office, Karachi, owned by him/her in his/her own name or in the name of his/her wife/husband or of any of his/her minor or dependent children."
10. Although it is the case of the respondent that his case did not fall within the mischief of either clause (i) or clause (ii) of paragraph (b), but it is not disputed that the allotment of the plot in favour of the respondent was a provisional allotment which was subject to approval by the Governing Body of the applicant. This can also be clearly spelled out from the said Notification (Exh.26) which lays down the conditions of eligibility for allotment of residential plots in pursuance of the said notification. It is therefore clear that after holding of the secret ballot there were still certain conditions which were to be complied with by the respondent. Consequently, it would be erroneous to assume that the mere success of the respondent at the secret ballot had given rise to a concluded contract between the parties. The said notification in fact constituted an invitation to a contract and the provisional allotment of the plot in favour of the respondent was subject to certain other conditions which were to be fulfilled before such allotment could be confirmed.
11. Fulfilment of conditions by the respondent as laid down in the said notification after his success at the secret ballot in fact would have constituted a proposal which was to be accepted by the applicant in order to give rise to a binding contract between the parties. Unless there is a concluded contract between the parties the respondent is not entitled to seek any relief against the applicant. No doubt, the reasons given by the Governing Body of the applicant do not appear to be in consonance with paragraph (b) (i) or (ii) of clause 6(iv) in the said notification but notwithstanding the same, the respondent was not entitled to seek any of the reliefs in the suit against the applicant, as has been pointed out earlier in this judgment. The facts of the case decided by my learned brother G.H. Malik, J. reference to which has been made earlier in this judgment,although are distinguishable, nevertheless the principle enunciated therein is the same.
12. The learned Additional District Judge, appears to have been influenced by the fact that the documents relied upon by the respondent before him had shown that the respondent was independent of his father holding land in his personal name and consequently, the decision taken by the applicant in his case was not justifiable. Although, I agree with the learned Additional District Judge to this extent, but the question is whether the respondent had any vested right on the strength of which he could seek relief in the suit against the applicant. The same as pointed out earlier, cannot be inferred as there was no binding contract yet entered into by the parties.
13. ' In the result, although, this Revision is allowed and the order passed by the IVth Additional District Judge, Karachi is set aside and the judgment passed by the learned trial Court is upheld, but I cannot help observing that K.DA. is a statutory body and therefore, it should not have acted in an arbitrary manner cancelling the preliminary allotment in favour of the respondent on the grounds which do not appear to be in consonance with the conditions embodied in the said Notification (Exh.26). I would, therefore, recommend that the applicant should allot the plot to the respondent if he fulfils the conditions laid down in the said notification and in case it is not possible to allot him the same plot or another plot of same size, the applicant should allot him a suitable plot in another scheme, even if it is not of the same size.