1. ' The facts leading to this Revision Application are that the present applicant had applied for allotment of an industrial plot in North Karachi Industrial Area in the Karachi D.P. Township with the object of setting up a factory to enhance his business in the public interest. The Scheme was flouted by the present respondent under the directions and consent of the Provincial Government for allotting industrial plots of land for the purposes of installing industries/factories and had invited application on the precribed forms to lease the plot for the same. According to the terms and conditions, the value of the plot was fixed at Rs,50 per square yard and 25% of the total value had to be paid initially. Consequently, the applicant was allotted a plot No,I/D/I Sector 16/B measuring 1,000 square yards Industrial Area, North Karachi, hereinafter referred to as the 'Suit plot'.
2. This plot was allotted to the present applicant through a Resolution passed by the governing body by the respondent in July, 1980. Initial payment of 25% of the value of the plot amounting to Rs,12,500 was made on 14-7-1980 while the balance amount of Rs,37,500 was also paid on 18-9- 1980 through the Challans duly authenticated by the respondent. According to the plaintiff's case, he was also handed over the possession of the suit plot by K.DA. officials and was assured that the formal possession letter will be issued subsequently as well as formal Allotment order. The plaintiff after receiving the possession collected the construction material and started raising boundary walls when the representatives of the respondent asked them not to do so and disclosed that some Government officials were interested in the suit plot and were pressing the respondents to allot the suit plot to them at a cheaper rate of Rs,20 per square yard. Subsequently on 16-10-1980 a letter was issued by the respondent to the present applicant whereby his allotment was cancelled.
3. The applicant after serving the respondents with a notice as required under Article 131 of K.DA.
4. Order (5 of 1981) filed the civil suit on 17-7-1981, which was subsequently re-numbered.
5. ' The respondents filed their written statement in the suit wherein they admitted the fact that the suit plot was allotted to the plaintiff by governing body but, however, they denied that actual physical possession was handed over to him. They took the plea in the written statement that the respondents are competent to change any plan in any scheme in the public interest; and that later on the drawing of the suit plot was cancelled by the Town Planning Department of K.DA. They further took the plea that no formal Allotment Order has been issued to the applicant. and, therefore, there was no allotment to the plaintiff in law.
6. ' On these pleadings of the parties, the trial Court settled the following issues:--
(1) Whether Industrial Plot No,1-B-1 measuring 1,000 sq. yards has been allotted to the plaintiff against payment of full occupancy value?
(2) Whether plaintiff was put in possession of the plot by the defendant?
(3) Whether order of withdrawal of allotment vide letter dated 16-10-1980 is illegal, void, mala fide and without jurisdiction?
(4) Whether defendant is not competent to allot, transfer and lease out the plot in dispute to any other person?
(5) What should the decree be?
7. ' The plaintiff examined his Attorney Muhammad Arif Qureshi who produced the Special Power of Attorney, counterfoils of the payment vouchers, challans and terms and conditions of the Allotment Order. He also produced the letter of cancellation and copy of the notice under Article 131 along with copy of application for allotment of suit plot. The applicant also examined Mr. Nasibu Hassan Siddiqui, Advocate, who by the time his evidence was recorded had been appointed as a Civil Judge. On the other hand, the respondents examined their Assistant Director Mr. S. Nazeer Hussain Shah, who during his cross-examination sought time to consult the accounts section of his office and his further cross-examination was reserved but thereafter he failed to appear on several dates and, therefore, the side of the respondents was closed. This witness has produced the minutes of allotments of the Advisory Committee, list of the applicants, who were recommended for allotment in Korangi and North Karachi Township. In his cross-examination he produced a letter of Additional Director Re-Settlement addressed to the Assistant Law Officer K.DA. which is dated 2-10-1984 (Exh.
8. 14). The trial Court then decreed the suit as prayed. Being aggrieved, the present respondents preferred the Civil Appeal before the III Additional District Judge, Karachi (Central) which was allowed and the suit of the applicant was dismissed. The present applicant has, therefore, preferred this Revision Application.
9. ' I have heard the learned counsel for the parties. The learned counsel for the applicant has submitted that in the first instance the judgment of the lower appellate Court is not based on issues but contains only general discussion. He has submitted that the requirement of law is that the appellate Court should consider the case issuewise and gave its own finding but in the present case neither the issues have been discussed by the lower appellate Court nor any specific finding on each issue has been given. He has then submitted that in the present case it is an admitted position that the governing body had made the order of allotment of the suit plot in favour of the present applicant and that the witnesses examined by the applicant show that actual physical possession has also been handed over to the applicant. In these circumstances, it is argued by the learned counsel for the applicant that it is not open to the present respondent to cancel the said allotment. He has further submitted that vested rights were created in the applicant on account of the said allotment and payment of full occupancy price and, therefore, also any interference with his right, title and interest in the suit plot would give him a cause of action to file a suit.
10. ' As against this, the learned counsel for the respondent/K.DA. has submitted that no allotment was made in favour of the present applicant as no formal Allotment Order has been issued and that actual physical possession was never handed over to the applicant. He has further submitted that the burden to prove the factum of allotment and possession lay heavily on the applicant; and that the applicant has failed to discharge that burden. According to the learned counsel for the respondent, the applicant had no locus standi to file the present suit.
11. ' I have considered the submissions of the learned counsel for the parties. The first question that arises for consideration is whether the suit plot was allotted to the present applicant. In paragraph 5 of the plaint, the applicant has specifically stated that the governing body of the respondent, who is sole authority to make allotments allotted to the plaintiff the suit plot. In paragraph 5 of the written statement, the respondents have stated "the contents as stated in para. 5 of the plaint are admitted".
12. ' In paragraph 6 of the plaint, it is stated by the plaintiff that the balance amount of full occupany value had also been paid which is received by the respondent. This fact is also admitted in the written statement. The two payments, initial 25% and the balance have been paid through authenticated challans issued by the respondent which are prepared and checked by the office of the respondent and, therefore, are quite authenticated. The learned counsel for the respondents has taken the plea that the payment of the entire balance amount on one date was not required in law.~~This contention of the learned counsel cannot be acceptable as they cannot plead their own fraud. Now as stated above, the fact of allotment stands admitted in the written statement and it is also not denied that the governing body of the respondent is the competent authority to make such allotment. In this view of the matter, the applicant was not required to prove this fact as provided in Article 113 of the Qanun-e-Shahadat which reads as under:--~~ "113. Facts admitted need not be proved,---No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings: ' Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
13. ' Even otherwise, as admitted the order of allotment having been passed and the full occupancy value having been received by the respondents, the question of cancellation of plot at that stage without notice to the present applicant does not arise. It may also be observed that after passing of the order of allotment, issuance of a formal allotment order is a mere formality. In the case of Khan Bashir Ahmed Khan v. Government of West Pakistan and another PLD 1959 (W.P.) Lahore 790 it has been held by a learned Single Judge of Lahore High Court that once an order of allotment is passed, a formal order has simply to follow; and that it is not correct to say that as long as a formal order of allotment is not signed and delivered, there is no allotment in favour of an allottee. In the case of Nasira Sultana v. Habib Bank Ltd. and others PLD 1975 Karachi 608 it was held by a learned Single Judge of this Court as under:-- "The aforesaid terms and conditions no doubt entitle the K.DA. to terminate or cancel the allotment but not without cause and only in the event of a default committed by the allottee. The allotment is not a licence simpliciter for the allottee has a right to be put in possession of the plot on payment of second instalment, raise constructions thereon and on payment of the full occupancy value, the K.D.A. was bound to grant a 99 years lease to the allottee."
14. ' Similarly in the case of Haji Noor Muhammad and others v. Karachi Development Authority and 2 others PLD 1975 Kar. 373 a Division Bench of this Court has held as under; "11. Mr. Nasir Khan also faintly attempted to argue that under the terms of the allotment and the allotment regulations of the K.DA. the allottee is a mere licensee until the allottee builds a house and executes a regular lease with the K.DA. This contention has no substance in view of the decision of their Lordships of the Supreme Court in the case of Kamaluddin Ansari v. Director, Excise and Taxation PLD 1915 SC 114, that the allottees of plots in the P.E.C.H. Society were neither licensees nor sub-licensees, though they had been so labelled in the agreements executed between the Governments, the Housing Societies, and the individual owners, for they had real interest in the land allotted to them. The criterion that has been laid down by their Lordships of the Supreme Court in the case of Abdul Bhai v. Muhammad Ahmed Din PLD 1964 SC 107 for distinguishing between a lease and a licence is whether any right in immovable property, itself, i.e. a right in rem, has passed to the person concerned. In this case clearly a right in rem in respect of the plot has passed to the allottee."
15. ' The same principle has also been followed by this Court in Revision Applications Nos.70 and 240 of 1989 decided on 29th September, 1992. Also in the case of Pakistan Medical Association, Karachi v.
16. Government of Sindh and 5 others 1979 CLC 382 a Division Bench of this Court has held as under; "Coming to the cancellation of the allotment of the petitioner's plot the K.DA. was empowered to do so under the terms and conditions of allotment only in the event of the violation of the terms and conditions and non-payment of its dues in time and admittedly it is not even the K.DA.'s case that the petitioner had committed breach of any terms and conditions of the allotment so as to entitle the K.DA. to cancel the allotment in its favour. Apart from this legal position the officers of the K.DA. were 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 petitioner the same option as was given to the society, namely, take the responsibility of removing the encroachers and shifting them to an alternate side provided by the K.DA. Furthermore the petitioner ought to have been heard before unilateral cancellation of the allotment of the plot in its favour as held by a Division Bench of this Court in the case of Haji Noor Muhammad and another v. K.DA. and others PLD 1975 Kar.
17. 373."
18. ' The case-law referred to above shows that once an allotment has been made by the K.DA. the same can be cancelled by the K.DA. in accordance with the terms and conditions of the allotment only in case there is default in payment of instalments, violation of the terms and conditions of the allotment; and that too after giving due hearing to the allottee. In the present case it is not the case of the respondents that the allottee has defaulted in payment of instalments or that he has violated any terms and conditions of the allotment, rather it is admitted that the full occupancy value has been paid by the allottee. It has also not been shown in evidence by the respondents that any opportunity of being heard was given to the present applicant before cancellation of his allotment. ~~In view of above discussion, I would answer the issues Nos.1 and 3 in favour of the present applicant and would maintain the findings of the trial Court to the effect that the suit plot has been allotted to the applicant against payment of full occupancy value; and that the withdrawal letter issued by the respondent on 16-10-1980 is illegal, void, mala fide and without lawful authority.~~ ' Now I come to Issue No,2, which deals with the possession. The two witnesses examined by the applicant/plaintiff, have fully supported the case of the applicant to the effect that actual physical possession was handed over to the applicant by the K.DA. officials. Of these witnesses one Mr. Nasibul Hassan Siddiqi was at that time a junior partner working in the office of the Advocate for the present applicant and at the time when his evidence was recorded, he has been appointed as Civil Judge. Both these witnesses have been cross-examined but their evidence could not be shattered. ~~Even the defendant's own witness S. Nazeer Hussain Shah in his examination-in-chief has stated in the last line "the plaintiff is in unauthorised possession of the suit plot". This admission shows that actual physical possession is with the applicant and in view of this, there is no reason to disbelieve the plaintiff's witnesses on this point although this witness of the defendant has avoided to appear in the Court for his cross-examination and, therefore, his evidence on other aspects could not be put to test. Accordingly, the findings of the lower appellate Court on this point are also set aside and the findings of the trial Court on Issue No,2 are also maintained.~~ ' As regards Issue No,4 it may be observed that in view of the findings on the above issues, the suit plot would not be available to the respondent for transfer to any third party. The learned counsel for the respondent has vehemently argued that this land has been released to the Government of Sindh for the purposes of construction of a Labour Colony and, therefore, the allotment of the present applicant has been cancelled as the respondent is quite competent to change, recall or cancel any K.D.A. Scheme. The lower appellate Court has also placed reliance on this contention of the respondent and this is the main reason on which the judgment of the lower appellate Court is based. A perusal of the written statement filed by the respondents on 25-11-1981 would show that no such plea has been taken by the present respondent nor any issue has been framed in regard to this plea. It is settled law that no party will be allowed to raise a plea which has not been taken in the plaint or written statement or where no issue has been framed pertaining to such plea. The present respondent, therefore, could not have been allowed to take this plea for the first time at the appellate stage. It may also be observed that the suit was instituted on 17-9-1981 and the written statement was filed on 25-11-1981, whereas the letter from the Additional Director (Re-Settlement)
19. K.DA. was sent to the Assistant Law Officer (V), K.DA. on 2-10-1984. This letter on which the above plea has been taken is written four years after the cancellation of the plot of the applicant. The learned counsel has submitted that this letter shows the reason for cancellation of plot as the same was earmarked for Labour Housing Development under Government funds. This is a correspondence made inter-departmentally in the office of the respondent and no other evidence or letter/order from the Government has been produced to substantiate this contention. In this view of the matter, I do not agree with the contention of the learned counsel for the respondent on this point.
20. ' From the above discussion, I am of the view that the judgment of the lower appellate Court is based on evidence not on record and on the grounds taken by the respondents which in law could not have been urged. Accordingly, I accept this Revision Application, set aside the judgment and decree passed by lower appellate Court and maintain the judgment and decree passed by the trial Court. However, there will be no order as to costs.