1. 1.Miscellaneous Application No 2947 of 1994 MUHAMMAD ASLAM ARAIN, J.---This is an application under section 151, C.P.C. Moved jointly on behalf of the petitioner and the respondents Nos. l and 2 and the prayer made in the application is that this Court may be pleased to determine the price of land or get it determined in any other manner as is deemed just and proper, in the circumstances of the case. Before dealing with this application on merits, it would be relevant to give the facts of case in brief: Land bearing Survey Nos.49 to 69, 72, 81 and 82 situated in Deh Surjani, Tapo Manghopir, Karachi, originally belonged to Pinjrapur Association and the properties of said Association as well as the management thereof was taken over by committee known as Divisional Evacuee Trust Committee (D.E.T.C.). The respondents Nos.4 to 15 applied to the Secretary of D.E.T.C., Karachi for obtaining the lease of the above land. Under letter dated 21-11-1963 an area measuring 314.18 acres of the said Survey numbers was granted on lease to the said respondents Mrs. Laila Saeed Kazim and 11 others for a period of five years, renewable for further period of five years. The terms of lease were subsequently modified and the lease was extended up to 30 years renewable at the option of the lessees, as is evident from letter, dated 9-1-1964. The Secretary of D.E.T.C. Intimated the Mukhtarkar Karachi about the above leases and that Government dues should be recovered from lessees with effect from 1-1-1964. Accordingly, mutation was effected by the Mukhtiarkar in favour of the lessees and the possession of land delivered. The lessees improved the land at huge cost to make it fit for the purpose of agriculture and poultry farms, for which the land was taken on lease.
2. After the retirement of the then Secretary D.E.T.C., his successor, through a letter, dated 15-3-1965, intimated the petitioner that the Evacuee Trust Board hid changed its policy of grant of land for long term leases and that the period of lease would be restricted to ten years. The lease was however extended upto the year 1988 and the land revenue and other charges recovered from lessees. By another letter, the third Secretary D.E.T.C. Issued fresh notices to the lessees intimating that the lease was cancelled and to surrender the land in their possession by 1-1-1969. The reason given for such cancellation was that the previous Secretary, D.E.T.C. Was not authorised to dispose of the land on lease.
3. The lessees filed Suit No.48 of 1969 for declaration, compensation and injunction, which was decreed in their favour, and it was held, "as already discussed above, the Secretary was working on behalf of defendants, being their responsible officer. Therefore, he had power to lease out the land for a period agreed as Exhibits 5/6 and 5/7".
4. Respondents Nos. l and 2 filed appeal against the judgment and decree before the District Judge, Karachi, which was transferred to IIIrd Additional District Judge, Karachi who dismissed the appeal vide judgment, dated 16-10-1982 and affirmed the decree, dated 6-1-1980. The respondents then filed a Civil Revision No.296 of 1982 before this Court against the said concurrent findings which, as stated, is still pending.
5. In the meanwhile the petitioner contacted the respondents and obtained the lease-hold rights, as also the other rights vesting in said lessees, to appear on their behalf in all Courts as an attorney.
6. The petitioner then removed the encroachers from a portion of the land by paying huge compensation and even by filing ejectment proceedings. The petitioner thus acquired a right in the leased area. During this time, M.L.R. 57 was promulgated in order to get rid of the encroachers from the Evacuee Trust Lands. The respondent No.1 was appointed as 'an authority' under Clause 1 of M.L.R. 57 to exercise powers under said Regulation. During the absence of the petitioner from Pakistan, on a reference made by the respondent No.2, the respondent No.1 passed the impugned order, dated 29-1-1985, holding that the land in dispute belongs to Evacuee Trust. The respondent No.1 through the impugned order declared the judgments of the Civil Court as well as of the lst Appellate Court as null and void and also held that the revision pending before this Court shall abate. With regard to the lands covered under the lease, it was directed that the same be disposed of through open auction in similar lots.
7. A Tribunal was thereafter constituted under M.L.R. 57 (Amendment) Ordinance, 1989 and the case of the petitioner herein, as also the cases of other applicants of the same nature came for hearing before the Tribunal. One of the cases dealt with by the Tribunal was that of Messrs Lanvin Traders, Karachi v. Deputy Administrator, E.T.P. Karachi. In regard to certain cases, the Tribunal confirmed the transactions, while in respect of others, including the case of petitioner herein and Messrs Lanvin Traders, Karachi, their applications were dismissed. Petitioner sought amendment to the petition so as to challenge the very constitution of Tribunal, its order and to join Federal Government as party. Such amendment was allowed by order, dated 21-11-1990. In the meantime, Messrs Lanvin Traders, Karachi, filed a Constitution petition before this Court but the same was dismissed. Messrs Lanvin Traders, Karachi, then filed Civil Appeal No.580-K of 1990 before the Supreme Court of Pakistan, which was disposed of in the following terms, the judgment being reported in 1993 SCMR at sp.1707:--- "6. Mr. Fazal-e-Hussain Chaudhry, learned counsel for the respondent has contended that the disputed property is a valuable property and it has been sold at a throw away price. Be that as it may, he still makes an offer that if the appellant is prepared to pay the present market price of the property the leasehold rights may be transferred to it on payment of such price. The offer made by the learned counsel for the respondent is fair and just. In the circumstances, we remand the case to the High Court to determine the present market value of the property and if the appellant is prepared to pay that price then after adjustment of the amount already paid by it, the leasehold rights may be transferred to it. However, in case the appellant is not prepared to pay the present market price as determined by the High Court, the respondents would be at liberty to dispose it of according to law. "
8. Another Civil Appeal No.522-K of 1990 (Secretary, Ministry of Religious Affairs & Minorities and 2 others v. Syed Abdul Majeed) was also filed before the Hon'ble Supreme Court of Pakistan which was decided and the judgment is reported as 1993 SCMR 1171. We would also like to reproduce the concluding paragraph of the judgment, which is as under:--- "At this stage the learned counsel for the appellants stated that if the respondent is prepared to pay the present market price of the land the same may be transferred to him. It is a fair and bold concession made by the learned counsel for the appellants, which we expect to be followed by all the learned Advocates, while discharging their duties in Court. Such attitude would help in determining the case in a realistic manner in the shortest possible time. Reference can be made to M/s. Punjab Engineering Co, v. Muhammad Yaqoob PLD 1991 SC 799. We therefore allow the appeal and remand the case to the High Court to decide it on merits. If the transfer is found to be hit by M.L.R. 57, then the transferees in occupation may be allowed to retain lease-hold rights and possession, provided they pay the present market price of the land as determined by the High Court. "
9. Listed application (M.A. 2947 of 1994) is moved in the background of the two decisions of the Hon'ble Supreme Court of Pakistan and it is jointly requested by the petitioner as well as the respondents Nos A and 2 that this petition be disposed of in terms of the rule laid down by the Supreme Court of Pakistan. Further, it is prayed that the price of land be determined or got determined in any other manner as is deemed, just and proper.
10. We have heard the learned counsel for the parties and have perused the two judgments, above referred. Mr. Aminuzzaman, Advocate for the petitioner and Mr. M.G. Dastagir, Advocate for respondents Nos. l and 2 have signed the application and have prayed for passing a consent order. Mr. S. Azizul Hassan Gilani, respondent No.2, (Deputy Administrator (Rural) Evacuee Trust Board Karachi) stated before us that the prevailing market rate of the land which is lying vacant and is not encroached upon, is between Rs.3,00,000 to Rs.5,00,000 per acre, whereas the price of the land which is under encroachment is between Rs.2,00,000 to Rs.3,00,000 per acre. The respondent No.2 also stated before us that instead of referring the matter to any other` agency for the determination of the market value, this Court may take his above statement into consideration and pass an appropriate order, to which he would have no objection. He also stated that at the price determined by this Court, the land in dispute should be transferred to the petitioner if he makes the payment thereof.
11. Mr. S.H. Kizilbash, learned Advocate for the respondent No.3 (K.D.A.) opposed this application on the ground that K.D.A. Is not concerned with the entitlement of petitioner over the land or the fixation of price thereof. Because K.D.A. Had been transferred some area, which it had disposed of, the rights of the K.D.A. Or the auction purchasers may be protected.
12. Dealing with the objection of Mr. S.H. Kizilbash, learned Advocate for the K.D.A., we may observe that the- claim of K.D.A. Was rejected under M.L.R.
57. Learned Advocate had also taken time to file counter-affidavit to this application but till date no such counter-affidavit is filed so as to indicate which land was claimed by K.D.A. His objection orally made cannot be considered.
13. Mr. Rizwan Ahmad Siddiqui, Advocate for the Intervenors (Anjuman Bashindgan Faridi Town) has also opposed this application and has argued that a vast area out of the disputed land is occupied by the members of the Anjuman, who have been agitating for their rights and that the consent order, as prayed in the application, may not be passed.
14. With regard to the objection of the learned counsel for the Intervenors, we may observe that similar applications earlier moved by the intervenors were dismissed by this Court. The Intervenors have also filed Suit No.254 of 1994 for Specific Performance of contract and if the Intervenors have any right, they can agitate through the said suit.
15. In view of the statement given by Mr. M.G. Dastagir, learned Advocate for the respondents Nos. l and 2 and by Mr. Azizul Hassan Gilani (respondent No.2), we dispose of the application in the following terms:---
(a) the price of the land involved in this petition, which is lying vacant, is fixed at Rs.5,00,000 per acre.
(b) The price of land involved in the petition, which is under encroachment but is not lying vacant, is fixed at Rs.3,00,000 per acre.
(c) On payment of the price worked at the above agreed rate, the leasehold rights shall be transferred to the petitioner.
2. Miscellaneous Anylication No. 3995 of 1994 This is an application moved by the Intervenors Anjuman Bashindgan Faridi Town under Order I, Rule 10, C.P.C. For being impleaded as a party to this petition. Two similar applications earlier filed by the Intervenors have already been dismissed by this Court and this petition is not disputed by Mr. E Rizwan Ahmed, Advocate. Learned counsel also admits that a suit is also filed by the Intervenors which is pending before this Court. In view of this position, the application is without merit and is dismissed accordingly.
16. With disposal of the listed' applications, the main petition also stands disposed of with no order as to costs.