RAJA QURESHI, J. r- Constitutional jurisdiction has been invoked by the petitioner seeking the following reliefs:-
(a) To declare that the petitioner is the exclusive owner having rights of ownership title in respect 'of plot of land hearing No. R-620, Sector No. 15-B, measuring 120 sq. Yards, situated in KDA North Karachi, Township Scheme, Karachi, by virtue of the sale-deed dated 20th April, 1978 duly registered with the Sub-Registrar. Karachi on 4th June, 1978 and mutated in the record of rights and during the subsistence of the said sale-deed, the respondents Nos. 1, 2 and 3 have no lawful power to execute the said plot to respondent No. 4 and transfer to respondents Nos. 5 and 6.
(h) To declare that the deed of. Cancellation dated 15th September, 1991 has been executed without lawful authority and the same has no legal effect whatsoever and accordingly quash the same.
(c) That the Site plan and the acknowledgement of possession order issued by respondents Nos. 1 and 2 during the subsistence of the legal and valid site plan attached to annexure "E" and Acknowledgment of Possession Letter have been issued without lawful authority and have no legal effect whatsoever and accordingly quash the same.
(d) To declare that the order of the respondent No. 3 being competent authority conveyed by the respondents Nos. 1 and 2 vide their letter dated 24th September, 1991 restoring the allotment order of Plot No, R-620 Sector 15-B, measuring 120 sq. Yards in North Karachi to respondent No. 4 is without lawful authority and has no legal effect whatsoever and accordingly quash the said order.
To declare that the transfer of the said plot by respondents Nos. 1 and 2 to Muhammad Aslam Qureshi vide transfer letter dated 19.10.1991 has been issued without lawful authority and the same has no legal effect whatsoever and accordingly quash the same.
To further declare the transfer of the said plot by respondents Nos. 1 and 2 to respondent No. 6 by their letter dated 29th December, 1991 is also without lawful authority and the same has no legal effect whatsoever and, accordingly quash the same.
(g) To grant permanent injunction, restraining the respondents, their servants, their employees, or anybody claiming through them from acting upon the Deed of Cancellation dated 16th September, 1991, site plan dated 6.10.1991, acknowledgment of possession order dated 15.10.1991, orders of respondent No 3 restoring the said plot to respondent No 4 by letter dated 24th September, 1991, letter dated 19.10.1991, transferring the said plot to respondent No. 5 and letter dated 29:10.1991 transferring the said plot of land to respondent No. 6 and giving the same any legal effect in any manner whatsoever."
Briefly the case set up by the petitioner before us is that he is the exclusive owner of the plot bearing No. R-620 which is situated in Sector 15-B, measuring 120 sq. Yards, KDA North Karachi, Township Scheme, Karachi. Such exclusive ownership is canvassed before us to have been derived by virtue of a sale- deed dated 20th April, 1978 executed by one Humaira Nazir wife of Mr. Nazir Hussain. Such sale- deed is stated to have been registered with the Sub-Registrar of Karachi bearing registration No. 5831 at pages 83 to 85 Vol. Additional dated 4.6.1978.
2. It has been contended before us that the plot in question was originally allotted to respondent No. 4 Yaqoob Masih, Jacob, who is working as a Senior Clerk in the Accounts Department at the office of the respondent No. 1 vide allotment order No. 21674 Book 217, dated 24.12.1974. Pursuant to the said order of allotment, possession of the said plot was also stated to have been handed over to ,the respondent No.. 4 which was duly acknowledged on 16,7.1997.
3. It has been contended on behalf of the petitioner before us that the said plot was transferred by the respondent No. 4 to one Humaira Nazir wife of Nazir Hussain by way of making an .Application before the respondent No. 1 who had in consequence thereof, issued an order of transfer dated 10.9.1977, whereby the plot in question stood transferred in the name of Mst. Humaira Nazir on the same terms and conditions of allotment as were stipulated for the original allottee. Based on the aforementioned transfer, a lease deed was also executed in .Favour of said Mst. Humaira which was duly registered with the Sub-Registrar "T" Division, Karachi, after the clearance of necessary dues by her 4, ' The petitioner has further contended that the respondent No. 1 had issued their no objection certificate dated 31.5.1979 in favour of Mst., Humaira 'authorizing her to sell or transfer the plot in question. Based on such title of Mst. Hurnaira the petitioner is stated to have entered into an agreement of sale whereby Hurnaira Nazir had transferred the said plot in favour of the petitioner by a sale-deed dated 20.4.1978. Such sale-deed was accordingly registered on 4.6.1978. It was in these circumstances that the petitioner claimed herself to be the exclusive owner of the plot in question. The respondent No 1 had further confirmed the mutation in favour of the petitioner with ,.Her lease hold rights over' the said plot which stood accordingly substituted and mutated in the record of the respondent No 1 on such terms and conditions as were held in the case of original allottee.
5. Further submission of the petitioner is that during the subsistence of a legal and valid sale-deed dated 20th April, 1979 being duly registered with the Sub-Registrar in favour of the petitioner and subsequently confirmed and mutated in the records of rights by the respondent No. 1 through their correspondence dated 20.2.1980 the petition was and is an absolute owner of the property.
According to the petitioner the respondent No. 4 thereafter had illegally, maid fide and by mis- using his official position as an account clerk of the respondent No 1 and in collusion with persons working at the office of the respondent No. 1 succeeded in getting the lease deed of the petitioner's predecessor cancelled and had been able to obtain restoration of plot in his own favour. Such restoration of the plot in favour of the respondent No. 4 is pleaded to he illegal before us.
Consequently the transfer of the said plot in favour of the respondent No. 4 and the subsequent transfers in favour to the respondents Nos. 5 anti 6 were stated to be without lawful authority. Such deed of cancellation and subsequent action of transfer of the said plot were stated to be in total disregard of the subsisting rights and title of the petitioner based on a registered sale-deed. The learned counsel for the petitioner contended that the registered lease deed could only he cancelled as per the terms of lease and such power of cancellation of lease deed are available in clauses 2, 3 and 9 of the lease deed. However, as the document stood registered governing the rights and obligations of the parties to the registered document, the same could only be cancelled by a declaration of the Court of competent jurisdiction and not unilaterally by the respondent in terms of condemning the petitioner unheard. For the purposes of ready reference clauses 2, 3 and 9 are reproduced herein in extensor- The Second Party shall, within a period of 3 years from the date of execution of these presents, complete and finish on the site the construction of the rest of the building and structure at his/her own cost in accordance with the plans, design, and estimates as may he laid down or approved from time to time by the First Party (or its nominee, or local body hereinafter called the Corporation in this behalf and shall not without the prior sanction in writing of Corporation make any excavation in the site or erect or suffer to he erected on any part of the site and building or structure or make any additions to constructions in the house, of any nature other than that hereby covenanted to be erected and shall maintain the site, building, structure and the mouse in a ,tit and sanitary condition to the satisfaction of the Corporation.
Provided always that if the building or structure hereby covenanted to he erected is not completed within the said period of 3 years, the lease of the site granted hereunder shall he liable to cancellation.
3. Until the final settlement of all dues including the ground rent and payment of transfer fee at the rate of Rs. 1/- per sq. Yd. In respect of the site. The lessee shall not transfer the site or building or portion of the building thereon to any body.
4. (i) Should the Second Party he in default of any amount payable by him/her under these presents or should he/she commit breach of any term and condition of these presents or neglect to comply with any directions given to him/her by the First Party or by the Corporation or fail to carry out his/her power to obligations under these presents than in that case the First-Party shall have the terminate the lease of the site after clear 30 days registered notice."
On the other hand the learned counsel for the respondents have objected to the very maintainability of the present petition and have contended that disputed questions of facts are involved in the present petition which cannot he permitted to he adjudicated upon in exercise of Constitutional jurisdiction, specially when malt .Fides are also attributed to the respondent which would require evidence to he recorded. It has been further contended that the deed of cancellation of the petitioner's title is legal, valid and based on equity and fair play. In the event the cancellation deed is declared to he illegal, the rights of the respondents are stated to he in jeopardy in terms of deprivation of their properties at the hands of the -petitioner.
6. We have considered the submissions made before us we find that the impugned deed of cancellation followed by issuance of site plan, acknowledgment of possession having been made by the respondent, the same could have only been done strictly in accordance with the terms and conditions of the lease deed providing for cancellation in the event of any breach having been committed by the initial allottee or its successor-ininterest. Clause 2 of the lease specifically provides a period of three years from the date of its execution for completion of construction on the piece of land and in the event of breach of the condition and upon expiry of the said period of three years lease granted would become liable to cancellation. Such is not the situation available whereby lease could have been cancelled. Clause 3 provides that the said lease cannot he transferred to any body unless final settlement of all dues including the ground rent has been paid by the lessee to the lessor. Such situation is also not available in the present case. Finally clause 9 provides for termination of lease in the event of default of any amount payable and or breach committed' of any terms and conditions of lease, or neglects to comply with any direction given to the lessee who is to carry out such obligation but after a registered notice of 30 days. Such a situation is also not envisaged in the present set of circumstances. Our attention has further been invited to the dictum laid down by the Supreme Court reported in PLD 1975 S.C. p. 624 (Mst. Hamida Begun, Vs. Mst: Murad Begum) and PLD 1975 S.C. 355 (The Majlis-i-Intizamia, Jamia Masjid Vs. The Secretary to Govt. Of Pakistan). This dictum of the Supreme Court clearly lays down cancellation of a registered document to only take place through a declaration of the Court which has not been done.
7. ,We are mindful of the facts whereby it is clear from the provisions and the conditions in the deed that if there has been a valid grant then it cannot he cancelled in the manner in which the respondents Nos. 1 to 3 have purported to do in the present case. The case is thus clearly one in which the petitioner is complaining of a non-performance of a public duty and asking for a direction in terms of performance of a public duty in 'accordance with law coupled with a declaration of acts of the respondents Nos. 1 to 3 to be illegal having not been done as stipulated by law. We further find that jural relation between the petitioner and the respondents Nos. 1, 2 and 3 stood completed with the transfer of lease . Hold rights governed by the terms and conditions of such lease.
8. In the circumstances of the case before us and keeping in view the provisions of Section 39 of the Specific Relief Act (1 of 1877), the instrument of deed in favour of the petitioner in the first instance ought: to have been cancelled through a declaration of the Court before the allotment of the petitioner was cancelled and restored in favour of the respondent No. 1. Such declaration could have only been granted by a Court after exercise of jurisdiction to cancel an instrument. Such exercise of jurisdiction could have taken place if requisites of Section 39 of the Specific Relief Act had been fulfilled i.e. (a) The instrument is void or voidable against the plaintiff, (h) Plaintiff may reasonably apprehended serious injury by the instrument being left outstanding (c) In the circumstances of the case, the Court considers it proper to grant the preventive relief.
9. This brings us to the consideration of the contention of respondents relating to disputed questions of facts. Suffice it to say that we are not entering into such disputed questions of fact,' if any, but we are limiting ourselves to the illegal acts of the respondent by not following the law the way it ought to have been Mowed- in terms of procedure for cancellation of lease deed duly registered: 1.0. Hence we declare the petitioner to be the exclusive owner having full rights of ownership title in respect of plot No. R-620, Sector 15-B measuring 120 Sq. Yards situated in KDA. North Karachi, Township and before we part with these reasons we may observe that the respondent No. 4 has only acquired title after the deed of cancellation of the petitioner lease came to hold the field which has been declared to be illegal by us. Hence whatever consequences have ensued in terms of transfer of title from-the respondent No. 4 to respondent No. 5 and onwards to respondent No. 6, but the initial acquisition of right by the respondent No. 4 has been declared to be illegal, then all subsequent transfers are also illegal.
11. Afore-mentioned are our reasons for the short order announced. By us on 15.4.108 when the petition was allowed.