' By this order I intend to dispose of application under Order VII, rule 11, C.P.C. (C.M.A. No,9178 of 2001) moved by defendant No,4, application under section 94 read with Order 39, rules 1 and 2, C.P.C.
(C.M.A. 7586 of 2001) moved by the plaintiff and application under Order 39, rule 4, C.P.C. (C.M.A. No, 8032 of 2001) moved by defendant No,4.
2. Brief facts relevant for disposal of the abovesaid applications, as per the contents of the plaint, are that the plaintiffs have been dealing in the wholesale business of fresh fruits and vegetables for more than three decades in the name and style of Jalal Akbar & Sons in K,M.C. Market, University Road, commonly known as Sabzi Mandi which has now been shifted to New Sabzi Mandi Highway, Karachi.
' In the year 1994 defendant No,1 announced a policy for .11otment of plots of different categories in the newly-constructed Fruit tnd Vegetable Market on Super Highway wherein it was provided that t5% of the total area of the land will be earmarked for the existing allottees who should be a licence holder of Market Committee, Karachi continuously for the last three years and should be engaged in wholesale business of fruits and vegetables in the Old Sabzi Mandi.
' It is stated in the plaint that Plot No,2 admeasuring 2200 sq. Yards situated in New Fruit and Vegetable Market, Super Highway earmarked for category of Cold Storage preservation processing products of grading unit was allotted to one Abdul Qadir Pirzada on 2-7-1995 in an open auction on the terms and conditions which, inter alia, required that the construction work should be started within three months. The said Abdul Qadir Pirzada instead of starting the construction within the stipulated time, executed a power of attorney in favour of a third person namely Nazeer Ahmed Waid who again executed a Sub-Power of Attorney in the name of defendant No,4 namely Muzaffar Mahmood. Consequently the allotment was cancelled by defendant N.2, Market Committee, as a result of which the said Abdul Qadir Prizada through his letter dated 16-7-1998 requested defendant No,2 for refund of the amount, deposited by him. He also served a legal notice to his attorney namely Nazir Ahmad Waid for cancellation of power of attorney.
3. That on 3-8-1998 the plaintiffs applied for allotment of the said plots, their request was acceded to by the defendant and the plot was allotted to the plaintiff at a total cost of Rs,16,28,000.
According to the plaintiffs, a sale agreement was also executed between the plaintiff and the Market Committee in respect of the said plot and the possession of the plot was also handed over to the plaintiffs after the deposit of the balance amount by the plaintiffs through challan issued by the Market Committee.
4. It is further stated that the said Abdul Qadir Pirzada through his attorney i,e, defendant. No,4 filed Suit No, 1478 of 1998 in this Court against the Market Committee and their officers for permanent injunction and damages. In the said suit the official defendants took the stand that the plot in question previously allotted to the said Abdul Qadir Pirzada had been cancelled and that the same was allotted to the plaintiff and ultimately the suit was dismissed. The plaintiffs have, therefore, asserted that they have acquired vested right over the suit property.
' It is further alleged that the Market Committee illegally cancelled the allotment of the plaintiffs and again regularized the plot in favour of the said Abdul Qadir Pirzada and his attorney, defendant No,4.
' The plaintiffs have, therefore, prayed for declaration that they are the lawful and legal owner of the suit plot and are entitled to be issued lease in respect thereof and that the cancellation order is illegal and void ab initio, that the defendant No,4, Muzaffar Mehmood has no legal character over the suit plot, further praying for granting injunction' against the defendant etc. ' Alongwith the suit the plaintiffs have filed an application under section 94 read with Order 39, rules 1 and 2, C.P.C. For suspension of the operation of cancellation order and restraining the defendants from dispossessing the plaintiffs from the suit property and demolishing the construction of the plaintiffs.
5. After the institution of the suit, summons was issued to the defendants, in pursuance whereof defendants Nos.1 and 2 have filed written statements. The contents of the written statement filed by defendants Nos.1 and 2 are almost the same. In the written statement following preliminary legal objections have been raised:
(i) That the suit is not maintainable.
(ii) That the suit is barred by law.
(iii) That no cause of action has accrued to the plaintiffs.
' It is averred in the written statements that according to the Government policy duly notified, the plots meant for Cold Storage purposes are to be disposed of/allotted through an open auction. The defendants have denied that any meetings as alleged by the plaintiffs was held but, in fact, merely a summary was floated for cancellation of the suit plot allotted to Abdul Qadir Pirzada in open auction and for allotment of the same to the plaintiff No,1 which was approved by then Minister for Agriculture on 13-10-1998 in violation of rules and regulations and the policy notification dated 4-9- 1994. It is further stated that the plaintiffs had got illegal approval through the then Minister Agriculture without participating in the auction although the plots reserved for Cold Storage were to be allotted only through auction proceedings.
' The defendants have further averred that the Agreement of Sale produced by the plaintiffs has been got executed through manipulation as there is no procedure and practice of execution of sale agreement for sale of such plots. According to them, the sale agreement is void as defendant No,2 had no title in respect of the suit plot at the time when the sale agreement is alleged to have been executed. There is neither any entry of the said sale agreement nor there is any copy available on record of such sale agreement and the entire exercise of allotment of the suit plot to the pia tiff is without lawful authority. The Provisional Allotment Order is also forged and fabricated, so also the Possession Letter as the signatory of the said possession letter has himself disowned his signature on the said possession letter.
' It is further submitted that a Standing Committee i,e, defendant No,3 was constituted on the directions of the learned Ombudsman Sindh, .Karachi to consider the allotments and reallotments of plots in New Sabzi Mandi. According to the records of the defendant No,2, the power of attorney executed by the said Abdul Qadir Pirzada in favour of his attorney namely Nazeer Ahmed Waid still subsists and the same was never cancelled. The defendants Nos.1 and 2 have, therefore, submitted that the suit filed by the plaintiffs is liable to be dismissed.
6. Initially the suit was filed against only defendants Nos.1 to 3. But during the pendency of the suit, defendant No,4 namely Muzaffar Mehmood filed an application under Order I, rule 10, C.P.C. Being C.M.A. No,8707 of 2001 which was allowed vide order dated 27-11-2001.
7. The said defendant No,4 has moved an application listed at Serial No,1 being C.M.A. No,9178 of 2001 under Order VII, rule 11, C.P.C. For rejection of the plaint on the ground that the plaintiffs have no cause of action. Counter-affidavit to the said application was filed by the plaintiffs.
8. Arguments advanced by the learned counsel for the parties have been heard.
9. It was contended by learned counsel for defendant No,4 that according to the notification dated 4-9-1994 issued by the Government of Sindh, Agriculture Department, the plots in the Fruit and Vegetable Market were to be allotted and leased out by way of open auction. Since the suit plot was not disposed of in open auction, the allotment was violative of law. He further contended that since the agreement was not executed in accordance with the provisions contained under section 18, Agricultural Produce Markets Act, 1939, the same was not valid contract. It was next contended that no vested right was created in favour of the plaintiff to maintain the present suit, thus, no cause of action accrued to him to maintain the instant suit. Accordingly the plaint was liable to be rejected. In support of his contention, learned counsel relied upon PLD 1967 Dacca 190 and 1996 MLD 1937.
10. Learned counsel appearing for defendant No,2 contended that the agreement annexed with the plaint was void being violative of the provisions of the Contract Act and the Transfer of Property Act, and urged that the plaint be rejected.
11. Learned A.A.-G. Appearing for defendant No,1 adopted the arguments advanced by the learned counsel for defendant No,2 and submitted that the Market Committee was competent to cancel the allotment as the same was made in violation of law and that the plaintiffs have no cause of action to maintain the suit.
12. Conversely, learned counsel for the plaintiffs contended that consequent upon cancellation of the allotment made in favour of one Abdul Qadir Pirzada, the said plot was allotted to the plaintiffs under the directives of the Minister Agriculture. Consequently upon the allotment; an Agreement dated 19-12-1998 was executed, the requisite amount was paid on 7-6-1999 through challan.
Allotment order was issued on 29-1-2000. He submits that letter of possession was issued to the plaintiffs on 1-2-2000 and full and final payment was made vide challan dated 2-1-2001. He submitted that the impugned order Annexure"H" dated 8-10-2001 whereby the allotment of the plaintiff was cancelled was tainted with malice, it was passed without hearing the plaintiffs, as such was not sustainable. He further contended that for rejection of the plaint, only the averments made in the plaint are to be considered. Learned counsel in support of his case has placed reliance on (i) 2001 SCMR 953, (ii) 2000 CLC 1535 and (iii) PLD 2001 Lahore 418.
13. I have considered the arguments advanced at the bar and also examined the case-law relied upon by the learned counsel for the parties.
14. In the first instance, I deem it appropriate to discuss the case-law relied upon by the learned counsel for the plaintiff. In the authority referred at Serial No,(i) Honourable Supreme Court was pleased to uphold the judgment passed by the Division Bench of this Court on the ground that the allegations of fraud which were levelled in the plaint could not be resolved without recording evidence, and rejection of plaint was not approved.
' In the citation referred at S.No,(ii) a learned D.B. Of this Court was pleased to uphold the principle of locus poenitentiae, and the cancellation of a plot was declared to be illegal, as the allotment was made to the petitioner by way of balloting in a legal manner in accordance with the bye-laws of the society.
' Authority reported at Serial No,(iii) is in respect of Insurance Act and is absolutely irrelevant. It appears that the learned counsel has referred the same due to inadvertence.
' It must be made clear that both the citations relied upon by the learned counsel do not strengthen the case of the plaintiffs. Precisely speaking, neither any factual controversy is involved in the present suit calling for recording of evidence, nor the plaintiff was allotted the plot in question in a lawful manner.
15. Adverting to the facts of the case, it may be stated that according to the averments made in the plaint, the allotment of the suit plot was initially made in favour of one Abdul Qadir Pirzada on 2-7- 1995 in an open auction. However, said Abdul Qadir Pirzada failed to construct the cold storage for which purpose the plot was allotted. Eventually the allotment in his favour was cancelled vide letter dated 19-10-1998. According to the documents annexed with the plaint, the plaintiff appears to have moved an application before the then Minister for Agriculture, Sindh on 20-8-1998. A note was purported to have been prepared on the application submitted by the plaintiff wherein history of the allotment of the said plot was narrated. According to the submission note, since the original allottee namely Abdul Qadir Pirzada had not been able to construct the cold storage despite lapse of time and issuance of several notices, therefore, it was recommenced that the allotment of Messrs Abdul Qadir Pirzada may be cancelled in the interest of the Market Committee. In para. 5 of the submission note, it was recommended that the request of the plaintiffs, Messrs Iqbal Akbar may be accepted on the prevailing reasonable rate if agreed.
' It is apparent from the above that the said plot was not granted to the plaintiff in an open auction as per notified policy of the Government. The submission note does not contain any reason to show the justification for allotment of the plot to the plaintiff without holding open auction. The perusal of the sale agreement reveals that a Suit bearing No,1478 of 1998 was pending against the Market Committee in respect of the suit plot at the time when the agreement was executed.
However, this fact does not find mention in the submission note placed before the Minister Agriculture. It prima facie shows that the factum of pendency of the suit in respect of the suit plot was deliberately suppressed by the Officer Incharge of the Market Committee. Even otherwise Minister Agriculture had no authority to dispose of the plot in derogation of the rules. It is a basic principle of good governance, that a11 the State transactions, contracts and other acts involving public exchequer must be transparent. Nothing of the sort has been produced on record by the plaintiffs to endorse or substantiate the validity of the action of the allotment taken by the Minister..
Perusal of the documents annexed with the plaint further reveal that on receipt of numerous complaints, a standing committee was formed to scrutinize and thrash out he matters pertaining to the allotment of plots in the Fruit and Vegetable Market. On perusal of 'the minutes of the Standing Committee meeting, held under the Chairmanship of Chief Secretary, Sindh on 10-9-2001 t transpires that it was inter alia decided that the allotment of Mr. Iqbal Rizvi, plaintiff No,1, shall be cancelled and amount be refunded to him.
16. The plaintiffs claim a right on the basis of Sale Agreement. However, since the plot in question belongs to the Market Committee, section 18 of the A.P.M. Act; 1959 stipulates that every contract entered into by a Market Committee shall be in writing and shall be signed on behalf of the Market Committee by the Chairman or, if, for any reason he is unable to act by the Vice-Chairman and two other members of the committee and shall be sealed with the common seal of the committee.
Admittedly the contract/agreement was not executed in accordance with the provisions contained under subsection (1) of section 18 of A.P.M. Act, having not been signed by the persons named therein, it was not binding on the Market Committee as provided under subsection (2) of section 18 (ibid). In such circumstances, the Competent Authority was empowered to revoke the agreement and cancel the allotment. Merely because the plaintiffs did make payment of certain amount does not confer any right upon him over the property.
17. In order to succeed under the provisions of section 42 of the Specific Relief Act, 1877, a plaintiff must show that he is entitled to any legal gain or to any right to any property individually at the time of initiating the action. There are number of authorities on , this point, however, subject point has been adequately dealt with in the case Burmah Eastern Ltd. v. Hurmah Eastern Employees'
Union and others PLD 1967 Dacca 190.
18. It was held in the case of Mst. Khadija Karim v. Zia-ur-Rehman Khanzada and 7 others reported in PLD 1999 Karachi 223 that the provisions of section 42, Specific Relief Act could not be invoked in respect of the title in immovable property on the basis of agreement as the same could not confer any title in suit property in favour of plaintiff. Consequently the plaint was rejected.
19. It is a settled principle of law that if the order is illegal, then the perpetual right cannot be gained on the basis of such illegal order. This rule was laid down in the case reported in PLD 1992 SC 207 (Engineer-in-Chief through Ministry of Defence, Rawalpindi and another v. Jalaluddin). In the similar circumstances, the Honourable Supreme Court in the case of Abdul Haque Indhar and others v. Province of Sindh and 3 others reported in 2000 SCMR 907 observed that locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. In this case it was held that the Competent Authority had the jurisdiction to rescind the order of, extension of 30 years' lease operating in favour of the petitioners in respect of the forestry land as the said land was allotted by the Chief Minister contrary to the relevant law.
20. It was argued that the fundamental right of audi alteram partem was not followed in the case in hand inasmuch as, before passing the order of cancellation, the plaintiff was not provided an opportunity of hearing. This contention was also elaborately discussed in the case of Abdul Haque Indhar (supra) wherein it was held, "such deeds on the part of the petitioners or the authority who granted the sanction cannot be allowed to exist on the strength of the argument of the learned counsel for the petitioner that actions against the petitioners have been taken in violation of the principles of natural justice".
21. It is now well-settled that the provisions of Order VII, rule 11, C.P.C. Are. Not exhaustive in nature.
For rejection of a plaint, normally the statements made therein or the document on which the suit was based, could be taken recourse to. Provisions of Order VII, rule 11, C.P.C., however, were not exhaustive of the situations in which plaint could be rejected. It was held in the case of Muhammad Akhtar reported in 1981 SCMR 878 that Order VII, rule 11, C.P.C. Is not exhaustive of all the situations in which a plaint can be rejected or a suit can be dismissed summarily. In 1988 SCMR 824 (Nazeer Ahmed and others v. Ghulam Mehdi and others), it was held that upsetting the order of the Court below merely for the reason that the Court was not competent to look outside the averments made in the plaint would amount to merely pressing a technicality.
For the reasons discussed hereinabove, I am of view that in the present suit, the plaint does not disclose a cause of action and the prayers made therein cannot be granted. Consequently, C.M.A.
'178 of 2001 under Order VII, rule 11, C.P.C. Is granted and the plaint in the suit is hereby rejected.
' In view of the above order, the other two listed applications i,e, C.M.A. No,7586 of 2001 and. C.M.A.
No,8032 of 2000 also stand disposed of as having become infructuous.
Plaint rejected.