' This suit has been filed by the plaintiff against M.D.A. And Karachi Building Control Authority for declaration and injunction with the following prayers.
(a-i) declaration that the cancellation/ withdrawal of N.O.C./approval granted by the defendant No,1 vide their letter, dated 18-11-1996 is void and inoperative.
(a-ii) declaration that the land in question was freehold agricultural land, which could be used for any purpose including industrial purpose, no conversion deed, is bona fide and proper.
(a-iii) prohibit and restrain the defendants from taking any adverse action against the plaintiffs on the ground/allegation that at the time of purchase it was not agricultural land and/or on ground that evaluation in conveyance was not correct.
(b) prohibit and restrain the defendants from taking any adverse action against the plaintiffs or otherwise interfering with the construction activities by the plaintiff of their factory on survey Nos.79, 82,83 and 117 Deh Khanto. Tapo Landhi, (Shah Latif Town) Scheme No,25-A, District Malir, themselves or through any other agency directly or indirectly in any manner and by any process whatsoever.
(c) Declaration that as the housing scheme alleged to have been floated by the owner Muhammad Zafar Manayar and Mrs. Shahida Manyar, did not survive after the permission lapsed, the same is deemed to be non-existent for all intents and purposes.
(d) Defendants to bear the cost of the suit.
(e) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case to grant.
2. The defendants were served but failed to file written statements so they were debarred from filing the same on 7-10-1999. The defendant No,1 filed written statement after being debarred without seeking any permission from the Court to that effect. This written statement, therefore, was not considered and the matter was fixed in Court for final disposal. The defendant No,1 moved an application under Order IX, rule 7 read with section 151, Civil Procedure Code for recalling the order, dated 22-1-1999. It is to be pointed out that no order was passed on *22-1-1999 and it was passed on 7-10-1999, whereby the defendants were debarred from filing the written statement as observed above.
3. Mr. Muhammad Sharif, learned counsel for the plaintiff submitted that this matter can be decided on the basis of the documents already filed by him alongwith the plaint and the affidavit- in-evidence. He further submitted that in case during the arguments the Court comes to the conclusion that the written statement of the defendant No,1 is necessarily to be taken on record he will have no objection to the same. He contekded that the defendants in their written statement are relying upon the same documents, which has been placed by him with his pleadings.
4. In view of the above, I proceeded to hear the matter for final disposal.
5. According to the facts of the case in i.84 the original owner i,e, Maniars approached the concerned Deputy Commissioner for establishing a Housing Scheme in the name of "Gulshan-e- Ovais Qarni" on the survey numbers which are the subject-matter of the suit. In 1986 vide letter dated 5-2-1986 K.D.A Master Plan and Environmental Control Department addressed to Deputy Commissioner, East, Karachi gave no objection for a Housing Scheme from planning point of view.
It appears that thereafter no action was taken either by the owners of the land .Nor by any of the department for establishing the Housing Scheme Gulshan-e-Ovasi Qarni. In 1991 by a conveyance deed of 18-6-1991 Maniars sold this land to Messrs Gateline Industries (Pvt.) Limited. In the schedule of the properties the subject survey numbers have been shown as undeveloped agricultural land.
Such entries were also made in Form VII which is, dated 19-10-1991. In 1995 by deed of conveyance, dated 19-12-1995 the said Messrs Gateline Industries (Pvt.) Limited sold this property to the present plaintiff. In the last document in the schedule of the property such survey numbers once again have been shown as undeveloped agricultural land. The Mukhtiarkar by his letter, dated 25-9-1995 issued verification where it is stated that the subject survey numbers are entered in favour of Messrs Gateline Industries (Pvt.) Limited. This certificate was issued in pursuance of M.L.R. 115 of 1972.
By letter, dated 19-2-1996 Deputy Commissioner informed the plaintiff with reference to their application, dated 24-1-1996 that the survey numbers have been entered in the name of the plaintiffs and are a free-hold grant and can be used for the construction of industry subject to the approval of the lay-out plan from K.D.A./Building Control Authority. By letter, dated 18-3-1980 the Board of Revenue informed all the Commissioners/Deputy Commissioners that in view of the provisions of Punjab Colonization of Government Lands Act, 1912 an section 184(3) of the West Pakistan Land Revenue Act, 1967 the agricultural lands can be used for any purpose without any additional charge or altered assessme nt. The circular, dated 16-8-1991 issued by Board of Revenue further confirmed this position.
6. The plaintiff applied to the M.D.A. For approval of the plan for establishing industry and paid a sum of Rs,5,75,000 vide Challan No,326,. Dated 16-11-1996 for approval of the lay-out plan. The plaintiff also paid further sum of Rs,2, 58,993 to the M.D.A as outer development charges vide challan No,7, dated 7-6-1997. The plaintiff also paid 91,900 to the M.D.A. As town planing scrutiny fees vide challan No,6, dated 7-6-1997. The plaintiff further paid a sum of Rs,5,49,705 on 20-11-1996 to the Karachi Building Control Authority for the scrutiny of the plan submitted by the plaintiff for approval. By a letter, dated 13-9-1985 the Deputy Director Textiles gave no objection in favour of the plaintiff for establishing an industry on the subject survey numbers. On 26-3-1996 the office of the Executive Engineer Karachi Water and Sewerage Board issued a sanction order for sewrage connections. On 29-9-1996 the Director General Evironment issued a letter of no objection to the plaintiff for establishing the industry subject to the compliance of guidelines mentioned therein.
The plaintiffs have complied with the said conditions. By letter, dated 18-11-1996 the M.D.A. Issued a No Objection Certificate for the proposed factory of the plaintiff.
7. The Maniars by their letter, dated 1-4-1990 applied for extension of time to establish the housing scheme "Gulshan-eOvais Qarni", which was allowed by letter, dated 2-5-1990 by the Deputy Controller Designs, Karachi Building Control Authority and time was extended up to. 30-6-1992. It appears that after writing a letter in April, 1990 for extension of time Maniars sold this property to Messrs Gateline Industries (Pvt.) Limited on 18-6-1991 as undeveloped agricultural land.
8 According to the plaintiff they as abundant caution sent the plan for approval to Karachi Building Control Authority. When the matter was still pending with the K.B.C.A. For approval on 23-8-1997.
M.D.A. Withdrew the No Objection, dated 18-11-1996 approving lay-out plan for .Establishment of industry on the ground that the subject survey numbers were to be developed into a Housing Scheme and it cannot be used for industrial purposes. Karachi Building Control Authority accordingly withheld all proceedings for regularization and charging the composition fees.
9. Before 23-8-1997 when the matter was still pending with the Karachi Building Control Authority, the plaintiff within their knowledge developed industry on the disputed survey numbers and started production. From time to time the Karachi Building Control Authority carried out the inspection and the plaintiff also agreed to pay the composition fees. The M.D.A. Defendant No,1 demanded the conversion fee for use of the disputed land for industrial purposes, and therefore, the plaintiff amended the plaint and challenged the said demand of M.D.A. None of the defendants filed the written statement to the amended plaint as well and so the matter came up for final disposal.
10. I heared the counsels for M.D.A. Karachi Building Control Authority and for the plaintiff and found that only point which is decided is whether the disputed survey numbers were to be used only for residential purposes as allowed by the K.D.A. To Maniar in 1986 or it can be used for any other purposes i,e, for industrial purpose etc. All the counsels addressed the Court at length. The sum up is that the disputed survey numbers were owned by Maniars who sought permission from K.D.A.
And also from the Deputy Commissioner, East to establish a housing scheme thereat which permission was granted. It was a private arrangement between the Maniar, K.D.A as well as the Deputy Commissioner. It is not the case either of the M.D.A. Or Karachi Building Control Authority that these survey numbers were notified at any time as residential scheme.
Secondly they had also not shown any Rules and Regulations to the effect that the Maniars after getting the permission to establish the Housing Scheme could have not given up the same without the permission of the aforesaid authorities and that could have not used it for any other purposes.
11. It is further admitted that the Karachi Building Control Authority allowed the extension of time to Maniar for establishing of the housing scheme upto 30-6-1992. In other words if scheme was not to be established up to the extended period the survey numbers were to be treated as agricultural lands, which was their original status. Maniar has chosen not to utilize no objection/permission for establishing the housing project and they have preferred to dispose of this property to Messrs Gateline Industries (Pvt.) Limited who in their turn transferred the same to the plaintiff.
12. With a view to ascertain as to what are surroundings of the vicinity of the disputed survey numbers Official Assignee was appointed to inspect the site. His report is reproduced as under: "That on receipt of the said order (Court order), notice were issued to the parties, when Official Assignee visited aforesaid survey numbers of Deh Khanto. Tapo Landhi, on the pointation of Mr. Muhammad Yakqob representative of plaintiff on 19-11-2000 at about 12-00 noon, in the presence of Mr. Muhammad Sharif, Advocate for plaintiff. Mr. S. Amanullah Agha, Advocate for M.D.A. And Mr. Raja Sikandar Yasir, Advocate for Karachi Building Control Authority. The Novatex Mill is situated on the disputed survey numbers, the area of which appeared to be about 25 to 30 acres.
' The disputed survey numbers (Novatex) is situated on road coming from Export Processing Road, near main Railway line, which is towards south of disputed survey numbers. Across the Railway line there are various mills, mostly textile mills. Towards west of disputed survey numbers, two plots to be lying vacant and thereafter there are large number of Government Wheat go downs. In the backside of disputed survey numbers, there are also mills.
' In the surroundings of the disputed survey numbers, no Housing Scheme was visible. However, near Export Processing Road, there was Katchi Abadi type houses in the name of Zafar Town and on National Highway about 3 kilometers away, there was residential area known as Sindhi Jamat Society. The disputed survey numbers as well as surrounding area originally was agricultural land which now is almost an industrial area."
13. This inspection was carried out in presence of counsels for M.D.A., K.D.A. And plaintiff and all noticed that there is no housing scheme of the K.D.A. Or any other Government agency around the subject survey numbers and according to them it is surrounded by other mills and industries etc.
14. The upshot of the above is that the survey numbers which are subject-matter of the suit have never been used for residential scheme. The letter, dated 23-8-1991 issued by M.D.A. Is, therefore, set aside being illegal and without jurisdiction and the permission, dated 18-11-1996 allowed to the plaintiff is operative. In view of the above Karachi Building Control Authority is directed to act in accordance with law. Suit decreed in terms of the above with no order as to costs.
15. The C.M.A. No,8830 of 2000 is disposed of accordingly because all contentions raised in the written statement, which have been filed with this application have already been discussed above.
Suit declared/