' NASIR ASLAM ZAHID, J.---Petitioner is the owner of Plot No.E-11, Block-17, Gulshan-e-Iqbal, Karachi, measuring 1,000 sq. yards. According to the petitioner, he purchased this plot from one Mushtaq Rizvi, the original allottee of this plot from respondent No.1, K.D.A. On the application of the original allottee for transfer in favour of the petitioner, K.DA. allowed the direct transfer and mutated the plot in favour of the petitioner by order dated 23-10-1984. According to the petitioner, at the time of the original planning and ear-marking of the plot, its area was 1206 sq. yards but 222 sq. yards was under encroachment of some persons and that portion was separated from the plot in question reducing its size to 984 sq. yards but later on the plan of the said plot was revised and the area/was increased by 16 sq. yards to make the total area of the plot to 1,000 sq. yards. According to the petitioner, the portion which had been separated from the original earmarked plot on account of encroachment deprived the plot in question of certain advantages including opening to 40' wide road. On acquiring the said plot, therefore, the petitioner applied to the K.DA. for removal of the encroachment and allotment of the' extra land contiguous to the petitioner's 1,000 sq. yards plot by application dated 17-1-1985. It is further averred by the petitioner that encroachment was ultimately removed and the portion contiguous to petitioner's plot became vacant. As there was no response from K.DA. on the application dated 17-1 1985, the petitioner moved a second application dated 10-3-1985. According to the petitioner this application was processed by K.DA. through their Executive Engineer Scheme No.24 who recommended that the extra portion applied for by the petitioner being part of the original Plot No.E-11 may be allotted to the petitioner.
' Respondent No.2, Dr. Mohammad Azam Bhughio, who is the owner of the adjoining Plot No.E-10/1 admeasuring 600 sq. yards also filed an application on 9-3-1985 for the grant of the said extra land. On the said application of the respondent No.2, Executive Engineer Scheme No.24 K.DA. made his comment/ report by letter dated 28-3-1985 addressed to the Deputy Director of the concerned department of the K.DA. which is reproduced here:-- ' OFFICE OF THE EXECUTIVE ENGINEER, ' GULSHAN-E-IQBAL DIVN. SCH:24, K.DA.
' No.EE/Sch-24/E-10/10/1/17/85/693 ' dated: the 28th March, 85 ' The Deputy Director (P.P)
' PD & UD. K.DA., KARACHI ' SUB:--FACTUAL POSITION AT SITE OF EXTRA LAND ADJACENT TO PLOT NO: E-10/1, BLOCK 17, SCHEME NO.24 K.DA.
' Reference: Letter No.KDA/LAND/GUL-85/349 Dated 18-3-1985 of Assistant Director ' With reference to letter referred to above, the site was physically surveyed and a part plan prepared. A copy of which is enclosed herewith. It will be observed that the plan submitted by the allottee of Plot No.E-10/1 alongwith his application (copy enclosed) is contrary to the factual position at the site. A portion of area shown as additional land in the plan submitted by allottee of plan E-10/1 is actually part of which was under encroachment.
' However, the case is forwarded to you for further necessary action at your end to decide the case from planning point of view."
EXECUTIVE ENGINEER SCHEME NO.24, KDA.
Copy to :--The Assistant Director-III, Directorate of Land Management, K.DA. for information.
EXECUTIVE ENGINEER SCHEME NO.24, KDA."
' There was some doubt about the genuineness of this document inasmuch as in the additional affidavit dated 26-5-1991 filed by the Akhtar Jalil, Assistant Executive Engineer of K.DA. It is stated in para 9 that this annexure does not exist on the record of KDA. Respondent No.2 had taken up the plea in his counter-affidavit, also dated 26-5-1991, that the said document relied upon by the petitioner is a fabricated document.
' However, the original record is available today with Mr. S.H. Kizilbash, learned counsel for the K.DA. and Mr. Akhtar Jalil, Assistant Executive Engineer, K.DA., who has sworn the additional affidavit filed on behalf of K.DA., is also present and Mr. Kizalbash admits that the said document is available on the record of K.DA., and on account of some mistake, the averment was made in the additional affidavit by Mr. Akhtar Jalil that the document did not exist on the record of KDA. The Assistant Engineer has expressed his great regrets and tendered an apology for making the said averment in para 9 of his counter-affidavit stating that perhaps at the time when the additional affidavit was sworn he could not find the said document on record and there was never any intention to make a wrong statement. The apology is accepted and the Court does not consider it necessary, in view of the apology, to take any action against Akhtar Jalil.
' As observed, in the said letter dated 28-3-1985, in which the case of the respondent No.2 was not recommended but the stand of petitioner was supported, it is stated as follows:-- "A portion of area shown as additional land in the plan submitted by the allottees of Plot E-10/1 is actually part of Plot No.E-11 and remaining was part of Plot No.E-11 which was under encroachment?
' On coming to know about the application of respondent No.2 for allotment of the said extra land, the petitioner made another application dated 16-3-1985 to K.DA., strongly objecting to the request of the respondent No.2. According to the petitioner, he also called on the Director-General, K.DA. for expediting the disposal of his application for transfer of extra land and he also approached the Commissioner of Karachi, who is Ex Officio Chairman K.DA. alongwith a copy of his application already submitted to the Director-General, K.DA., and the Commissioner, Karachi, made the following endorsement on the copy of the petitioner's application:-- "Please put up both the cases of Dr Azam and of Mr. Soomro before the G.B. for decision."
' According to the petitioner, he then presented the endorsement of the Commissioner to the Director-General, KDA, who then stated that he would personally visit the site before taking any action in the matter, whereupon the petitioner made a request that he may be allowed to be present when the Director-General visits the area and, according to the petitioner, he was assured by the Director-General that a notice will be issued to the petitioner, but according to the petitioner, no notice was issued to him.
' The grievance of the petitioner in this petition is that on 11-6-1985 the Director-General KDA illegally allotted the said extra land measuring 312.62 sq. yards to the respondent No.2. It is further averred by the petitioner that the original area of the Plot No.E-10/1 of the respondent No.2 was 600 sq. yards but this area was surreptitiously increased to 643 sq. yards and then further 312.62 sq. yards was allotted to the respondent by the Director-General KDA increasing the area from original 600 sq. yards to 956.62 sq. yards. The petitioner has challenged the allotment of the extra land to the respondent and has also prayed that the extra land may be allotted to him as it was originally a part of. Plot No.E-11.
2. Respondent No.2 has contested the petition claiming that the extra land has been competently allotted to him, but the case of the respondent No.2 is that the extra land allotted to him is not 312.62 sq. yards but 355 sq. yards.
3. KDA has supported the case of the respondent No.2 pleading that Director-General KDA, was competent to allot the said land to respondent No.2 and the petitioner has not made out any case for interference.
4. Mr. Ghulam Hussain Abbasi, learned counsel for the petitioner, has submitted that Director- General K.DA. had no power to allot any extra land where extra land is in excess of 49% of the area of the plot in respect of which allotment of such extra land is requested. The relevant resolution of the Governing Body of KDA passed in its meeting held on 7-9-1960 and filed with the counter- affidavit of K.DA. is reproduced hereunder:-- "22nd Meeting of Governing Body held on 7th September, 1960.
' ALLOTMENT OF EXTRA LAND TO THE OCCUPANT OF ' PLOT NO. B-114, KHUDADAD COLONY. SCHEME-19.
(ITEM NO.18)
' (Item Note was presented by Director (L.M.) RESOLUTION NO.466 RESOLVED that approval be accorded to the inclusion of extra land measuring 17.78 sq. yards in Plot No. B-114, price to its regularisation in the name of the old occupant Mr. Abdus Salam Baig.
FURTHER RESOLVED that in further allotment of extra land to the allottees of adjacent plots be approved by the following authorities in case no independent plot can be created upon the additional land and the same is not earmarked for any specific purpose/use.
(i) In case the area of the extra land does not exceed 25% of the area of the original plot by the Director (L.M).
' In case the area of the extra land exceeds 25% but does not exceed 49% by Director General, K.DA.
' Cases involving additional land to the tune of 50% or more be referred to the Government as usual.
(Action: Director (L.M) KDA.)
' From the above Resolution it follows that the power of Director-General KDA to grant extra land to the allottees of the adjacent land is restricted to cases where area of extra land exceeds 25% but does not exceed 49% of the adjacent plot and cases involving extra land in excess of 50% or more are to be referred to the Government.
5. The aforesaid Resolution has been relied upon by KDA and, as observed, it is filed as an annexure to the counter-affidavit of their Assistant Director Tasawwar Hussain. According to Mr. Kizilbash, Director-General KDA was competent to allot the said extra land to respondent No.2 pursuant to the aforesaid Resolution of the Governing Body inasmuch as the extra land allotted to respondent No.2 was less than 49% of the area of the Plot E-10/1 of the respondent No.2. According to Mr. Kizilbash, the original area of the Plot E-10/1 was 600 square yards but later on its area was revised to 643 sq. yards and as such allotment of extra land measuring 312.62 sq. yards was within the competence of the Director-General. However, learned counsel for KDA could not refer to any document from the record available with him as to when and how the original area of the plot of the respondent No.2 was revised from 600 sq. yards to 643 sq. yards. Admittedly, when respondent No.2 made his application dated 10-3-1985 for allotment of extra land, the area of his plot was 600 sq. yards. Respondent No.2 has not taken any plea that he had applied for revision of the area of his plot. Neither in the affidavit filed on behalf of KDA nor in the record available with Mr. S.H.
Kizilbash there is any application of the respondent No.2 for revision of the area of his plot or showing any orders having been passed revising the area of the plot of the respondent No.2.
6. The extra land in dispute being in excess of 300 sq. yards, the same could not have been allotted by Director-General KDA to respondent No.2 as extra land as the area of the plot of the respondent No.2 was 600 sq. yards. Neither the KDA nor respondent No.2 have taken up any plea in their counter-affidavits that the area of the plot of the respondent No.2 was revised from 600 to 643 sq. yards. Then no orders have been shown under which the alleged revision of plot had taken place.
The petitioner's averment in pars 8 of the petition that the respondent No.2 is the owner of Plot No.E- 10/1 measuring 600 sq. yards has not been denied either by KDA or respondent No.2 in their affidavits. In the circumstances, no reliance can be placed on the stand now being taken by the KDA that the area of the plot of respondent No.2 was first revised to 643 and then extra land measuring 312.6 sq. yards was allotted. If at all any such orders had been passed, such orders would have been passed with the ulterior purpose of increasing the area of the plot first to 643 sq. yards so that then extra land measuring 312.62 sq. yards would be less than 49% of 643 sq. yards and as such within the competence of the Director-General KDA. It has been noted that according to respondent No.2, the area of extra land allotted to him is not 312.62 sq yards but 355 sq. yards. If that is so, then even if the area of the plot of respondent No.2 had been revised in a lawful manner to 643 sq. yards, extra land measuring 355 sq. yards would be more than 49% of 643 sq. yards and as such this extra land could not have been allotted by Director-General KDA to respondent No.2 being beyond his powers in view of the aforesaid Resolution of the Governing Body of KDA. In any case, it has never been the case of respondent No.2 that his plot was 643 square yards in area.
7. In the circumstances, we have reached the conclusion that the Director-General KDA was not competent to allot the said extra land to respondent No.2 and as such the allotment of such extra land in favour of the respondent No.2 was illegal. Mr. G.H. Abbasi learned counsel for the petitioner concedes that in spite of grant of petitioner's prayer for cancellation of allotment of extra land in favour of respondent No.2, this Court cannot grant the extra land to the petitioner and it is only the competent authority which can pass such orders.
8. As a result, this constitutional petition is allowed to the extent that the allotment of extra land by order dated 11-6-1985 of Director-General KDA is without lawful authority and of no legal effect. It is also directed that KDA will take over possession of the extra land from respondent No.2 within two weeks from day and will retain its possession till decision by the competent authority is taken for its disposal.
' As there are competing claims of the petitioner and respondent No.2 in respect of the said extra land, it is further directed that the Governing Body of KDA will take a decision in respect of such extra land after giving hearing to the petitioner as well as respondent No.2. Petitioner is also granted costs of this petition as against respondent No.2.