ZIA PERWEZ, J.--- Plaintiff has instituted this suit on 24.8.1991 for possession of plot of land and in the alternative for recovery of Rs.15 millions.
2. Plaintiff claims to have purchased plot No. L/1 ad- measuring 1310 Sq. Yards in consideration of Rs. 1 31,000/- from Bahadur Yar Jang Co-operative Housing Society Limited under registered sale-deed dated I 4.6.1975 (hereinafter referred to as the said plot), NOC for sale of said plot was issued by the Federal Government Works and Rehabilitation Division by letter No. F. 2 (760)/71-75 DEM, dated 10.6.1975. In 1976 plaintiff on inquiry learned about the cancellation of sublease by the Administrator, Karachi Cooperative Housing Society Union vide letter No. 9/50/7- 8/76, dated 15.4.1976 the plot was handed over to the then KMC without prior notice to the plaintiff. The plaintiff made representation to the Commissioner Karachi who referred the matter to the Karachi Cooperative Housing. Society Union Limited vide letter No. TCCHSU/373/79, dated 7.2.1979 whereby it was communicated that the said plot was cancelled by the Government of Sindh and not under the orders of the Administrator. It is pleaded that the appeal preferred by the plaintiff remained undecided except for a vague reply in 1987 pertaining to bifurcation of KMC declining to take any action on the ground that KMC has no control on the said plot.
3. On 26.4.2002 amended title was filed with permission of this Court whereby the City District Government Karachi KMC and Jamshed Town were joined a defendants Nos. 1 and 2 to the suit.
4. The newly added defendants adopted the written statement already filed by the KMC and have refuted the claim of the plaintiff on the ground that the suit was time-barred; that the action was not taken by the KMC but was taken in pursuance of the promulgation of MLO 34 as the plot in suit was carved out illegally from an amenity plot bearing SNPA-72 measuring 5427. Sq. Yards that was reserved for park and unauthorisedly converted into a commercial plot in pursuance of MLO 34, 89 and MLA 247 read with Section 117(2) of the Sindh Local Government Ordinance, 1979.
5. On 6.12.1992 following issues filed on behalf of the plaintiff were adopted:-
(1) Whether the suit is maintainable under MLO 34, 89 and MLO. 247 read with Section 117(2), Sindh Local Government Ordinance, 1979.
(2) Whether the plot in question was reserved for park and the same was illegally allotted to the plaintiff?
(3) Whether plot No. L-1 was illegally divided by KCSHU remaining portion of plot renumber as L-1?
(4) Whether the registered lease- of plot. In question stood cancelled?
(5) Whether Ministry of Works has given the approval of leasing the plot in favour of plaintiff, if so its effects?
(6) To what relief the plaintiff is entitled?
As the entire suit, is based upon the admitted documents, on 23.9.1999 it was ordered with the consent of the learned counsel that no oral evidence was required to be adduced and the case can be decided on the basis of the documents filed by the parties.
6. The plaintiff has filed the following documents:-
(1) Letters dated 17.8.1978, 4.2.1980 and 9.4.198 I written to The Secretary Housing, Town Planning Local Government and Rural Development Department.
(2) 'Letter dated 14.4.1981 of Government of Sindh Hosing, Town Planning, Local Government and Rural Development Department.
(3) Letter dated 21.10.1978 of Director Parks and Recreation, KMC.
(4) Letter dated 7.2.1979 sent to Commissioner Karachi Division by Karachi Co-operative Housing Societies Union Limited.
(5) Agreement to sell dated 4.6.1975.
(6) Conveyance deed dated 14.6.1975.
(7) Undated letter of March, 1991 sent to Mayor Karachi.
(8) Letters sent by the plaintiff to Section Officer, Ministry of Works and Rehabilitation Division, Government of Pakistan Karachi.
(9) Extract from the, minutes of the Managing Committee meeting held on 31st August, 1974.
(10) Undertaking of the plaintiff dated 4.6.1975 sent to Section Officer, Ministry of Works and Rehabilitation Division, Government of Pakistan, Karachi.
(11) Clearance Certificate issued by Government of Pakistan, Works and Rehabilitation Division, Office of the Asstt. Accounts Officer (Housing Societies) dated 3.6.1976.
(12) Paid Challan dated 1975.
(13) Sublease dated 3.10.1974.
(14) Extract of Master Plan issued by KDA.
(15) Payment slip of UBL Receipt dated 23.6.1975.
(16) Provisional receipts of Bahadur Yar -Jung Cooperative Housing Society Limited, Karachi dated 54.1975 and 23.6.1975.
(17) Certificate issued by Karachi Co-operative Housing Societies Union Limited dated 23.6.1975.
(18) Letter dated 4.6.1975 dent to Section Officer, Ministry of Works and Rehabilitation Division, Government of Pakistan, Karachi.
(19) Complaint made by the plaintiff against Karachi Cooperative Housing. Societies Union Ltd., dated 17.8.1978.
(20) Letter dated 21.4.1981 sent to Mr. Syed Abdul Aziz, Section Officer VI, Housing, Town Planning, Local Govt. And Rural Development Department, Government of Sindh, Karachi:
(21) Letter to Commissioner Karachi dated 2.1.1979.
(22) Letter to Administrator KMC dated 30.11.1978.
(23) Letter dated 14.11.1981 sent to Municipal Commissioner KMC Karachi by Section Officer VI, for Secretary to Government of Sindh.
(24) Letter dated 22.10.1981 sent to The Secretary, Housing, Town Planning and Local Government and Rural Development, Karachi.
(25) Letter dated 8.7.1981 sent to Municipal Commissioner KMC Karachi by Section Officer VI, for Secretary to Government of
(26) Letter dated 24.2.1979 sent to Commissioner, Karachi.
On the other hand the defendants have filed the following documents:-
(1) Lay out plan.
(2) Reply of notice dated 27.2.1979.
(3) Letter dated 28.2.1980 sent to Municipal Commissioner KMC Karachi by Section Officer VI, for Secretary to Government of Slndh.
(4) Letter dated 13.12.1979 sent by Director Parks and Recreation KMC.
(5) Letter dated 18.11.1979 sent to the Commissioner, KMC, Karachi.
(6) Copy of CP No. 646/1972.
(7) Complaint dated 28.10.1978 against Karachi Cooperative Housing Society Union Limited Karachi.
(8) Letter of MLA dated 22.10.1978.
(9) Letter/permission dated 10.6.1975 issued by Government of Pakistan, Works and Rehabilitation Division.
(10) Letter dked 7.5.1981 sent to Municipal Commissioner KMC Karachi by Section Officer Vi, for Secretary to Government of Sindh.
(11) Conveyance deed dated 14.6.1975.
My findings on the above issues with reasons are as follows:- Issues Nos. 1 and 2:- The suit plot was leased out to the plaintiff under sublease/conveyance deed dated 15.6.1975 para 1 of the same reads as follows:-- "I. The "VENDORS" above-named are seized and possessed of the immovable property bearing open plot of land No. L-1, Survey No. S:N.P.A. 72, Survey Sheet No. 35, P/1, ad-measuring 1,310 Sq.
Yards, situated in Central Commercial Area, Block 3, of the Kaachi Co-operative Housing Societies Union Ltd...... Defendants have produced lay out plan of the area prepared in 1965 or thereabout showing the plot to be park. The ILA of amenity plots dated 3.10.1961 of the area also includes the said plot, which goes to prove that the plot No, L I in Bahadur Yar Jang Co-operative Housing Society ad-measuring 1310 Sq. Yards has been carved out of the amenity plot reserved for park bearing Survey No. SNPA 72, Survey Sheet No. 35, out of the entire plot measuring 5427 Sq. Yards.
The above facts are to be examined in the light of relevant MLOs which are reproduced as follows:- "No. 34 [13-th October, 19771 All allotments of the plots which were reserved for roads, hospitals, schools, colleges libraries, playgrounds, gardens, parks, community centres, mosques, graveyards or for such other amenity/community purposes but were subsequently unauthorisedly or by political manoeuvres converted into residential or commercial plots and on which no construction has been made are hereby cancelled and the plots so cancelled shall be resumed by the authority in which the plots initially vested and the amounts, if any, paid by the allottees shall be refunded under the normal rules."
"No. 89 [18th July, 1979] I. Allotment of amenity plots which have been converted for other purposes, in contravention of the law or rules regulating the conversion or for political considerations from 1st January, 1972 to 4th July, 1977 and on which no construction has been made shall stand cancelled and possession thereof shall be resumed by the authority in which the plots initially vested and the amounts, if any.
Paid by the allottees shall be refunded to them a\ admissible under the rules: Provided that nothing herein contained shall apply to the conversion of amenity plots in the Housing Schemes made before coming into force of the Sindh (Amendment of Laws) Act, 1974 of in accordance with the procedure laid down in the said Act.
Explanation.-- Amenity plots mean the plots reserved for road, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques, graveyards or for such other public purposes.
2. Any person aggrieved by this order may within fifteen days of the promulgation thereof prefer an appeal to Government and orders of Government on such appeal shall be final.
3. Government may, in any individual case of hardship, relax the provisions of para. 2 on such terms and conditions as may be determined."
The contention of learned counsel for the plaintiff that the plot in suit was converted to commercial use before the effective date of MLO 34 commencing. From 1st July, 1972 on the strength of the lease granted to Bahadur Yar Jang Cooperative Housing Society in the year 1963 has no bearing as neither the said lease is produced nor it has been proved that the said plot was in existence at that time. From the documents on record it appears that the plot was crated at the time of leave and the conversion took place within the period. Covered under MLO 89 which is reflected from the agreement to sell dated 3.6.1975, sublease dated 14.6.1975 and the lease deed dated 2.10.1974 entered into between Karachi 'Co-operative Housing Society Union Limited and Bahadur Yar Jang Co-operative Housing Society Limited whereby the said plot was leased out to the Bahadur Yar Jang Society. The plaintiff has not joined the said society as party to the present suit. In view of the document it is proved that the said plot converted from a larger amenity plot reserved for park is covered under the provision of MLO 34, 89 and MLO 247 read with Section 117(2) of the Sindh Local Government Ordinance, 1979.
7. Preliminary legal objection as to the limitation was taken in the written statement. The suit plot was taken over and converted into park in 1975 as is reflected from letter dated 10.6.1975 already reproduced above. The suit filed in 1991 is hit by provision of Section 3 of the Limitation Act as is barred by Article 144 of Limitation Act .Provided for maximum period of 12 years. In view of the above this suit is not maintainable.
8. Further in view of necessary amendment by insertion of Article 270-A in the Constitution of Islamic Republic of Pakistan the suit is barred, the said amendment is as follows:- "270-A. Affirmation of President's Orders, etc."--(1) The Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Marital Law Orders, including the Referendum Order, 1984 (P.O. No. 11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Zia-ul-Haq became the President on the day of the first meeting of the [Majlis-e-Shoora (Parliament)] in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of Pakistan, 1973, Order, 1985 (P.O. No. 14 of 1975), the Constitution (Second Amendment) Order, 1985 (P.O. No. 24 of 1985), and all other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent authority and, notwithstanding any thing contained in the Constitution, shall not be called in question in any Court on any ground whatsoever: Provided that a President's Order, Mirtal Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provision as facilitate, or are incidental to, the revocation of the proclamation of the fifth day of July, 1977."
Accordingly the issue No. 1 is decided in negative while issue No. 2 is answered in affirmative and the plaintiff is entitled to refund of the amount paid under the rules.
Issue No. 3:- It has been recorded in the lease deed that the said plot forms part of Plot No. SNPA-72. This amenity plot was reserved for park as shown in the lay, out plan of the area, it is covered by MLO 34, 89 and 247 which is not disputed and such conversion of amenity plot is contrary to the settled principles of law as held by the Hon'ble Supreme Court in case of Ardeshir Cowasjee and others v.
Karachi Building Control Authority (KMC) and 4 others (1999 SCM R 2883).
"To Mr. M.A. Humid A.I Baksh, Care Mar, Mahmud-ul-Hassan, P.I.I.A., Building, Awan-e-Saddar Road, Karachi.
Subject: Amenity Plot No. SNPA-72.
Reference: Your letter No. Nil dated nil for the subject noted above.
It is to inform you that the plot No. SNPA-72, is an amenity plot meant for developing into a park /play ground in the original layout plan of the K.C.H.S.U. Ltd.
The Karachi Co-operative Housing Society Union Ltd., vide their letter No. 9150/7-G/76, dated 15th April, 1976, addressed to the Hon'ble Secretary, Bahadur Yar Jang Co-operative Housing Society Ltd.
Has cancelled the allotment order and possession of the plot was handed over to KMC for developing into a park/playground.
This office has developed the site into a park/playground after providing compound wall in the interest of general public.
Director Parks & Recreation KMC.'"
The above letter does to show that after the cancellation of the said plot park was developed by the defendant as back as in 1976 when the plaintiff was refused possession of the plot accordingly in view of the above discussion this issue is answered in affirmative.
Issue No. 5:- Permission of the Federal Government is contained in letter dated 10.6.1975 which is reproduced as follows:- Islamabad, the 10th June, 1995.
To, The Chief Officer, (Mr. H.N. Mangrico, Karachi Coop. Housing Society Union Limited, Shaheed-e-Millat Road, Karachi-5.
Subject:- Permission for sale/transfer of commercial plot No. L-I Block No. 3 measuring 1310 Sq.
Yards in the area of Bahadur Yar Jang Co-operative Housing Society Limited, Karachi.
Dear Sir, With reference to your letter No. 964(7G)/75, dated 7.6.1975, on the above subject I am directed to convey the approval of Government of Pakistan for the sale/transfer of commercial Plot No. L-1, Block No. 3 measuring 1310 Sq. Yads. In the area of Bahadur Yar Jang Co-operative Housing Society Ltd., Karachi in the name of Mr. M.A. Hamid All Bakhsh.
2. An attested copy of sale-deed and an undertaking from the purchaser to the effect that he shall abide by the terms and conditions of the lease may kindly be furnished to this Division at any early date."
9. This document does not convey the decision for conversion- of the amenity plot into commercial plot. It only appears to be permission on reference made for the lease of a commercial plot in a routine manner as required under terms of lease, which by itself does not constitute a permission for conversion of the land used. In view of the above I am of the view that the permission granted under said letter is not a permission for conversion of amenity plot into a commercial plot and has no bearing and merits no consideration. Accordingly this issue is decided in affirmative only to the extent of permission. However, the effect of such permission to transfer does not amount to permission of conversion of an amenity plot to commercial plot and does not confer any right upon the plaintiff in view of my findings to the remaining issues already discussed above.
Issue No. 6:-, .