1. ABDUL KADIR SHAIKH, J.-It is unfortunate that the decision of the Supreme Court of Pakistan given in this case as long ago as the 30th May, 1968 has not been implemented so far despite the fact that in the meantime the case on having once again gone to the Supreme Court, another direction regarding the implementation of the decision has been given. The facts briefly stated are that certain employees of the Ministry of Works Government of Pakistan formed a Co-operative Society in the name of Works Co-operative Housing Society (petitioner-Society), and they applied to the Central Government on or about the 31st March, 1959 for allotment of 500 acres of land for distribution among the Members of the Society. On 12th February, 1960, the Central Government addressed a letter to the Karachi Development Authority that the Government had agreed in principle to allot the petitioner-Society 350 acres of land in B-1 area included in Scheme No. 24, which was previously reserved for Police Lines and Headquarters. The relevant portion of this letter reads as follows :- "The land which was previously reserved for Police Lines and Head--quarters was subsequently decided to be utilised for housing purposes and was agreed in principle to allot the same to Works Co-opera--tive Housing Society."
2. On final scheme having been prepared and submitted by the K. D. A., Central Government by letter No. E. 3-A/60-DHS, dated 14th June, 1963 conveyed its approval to the Scheme, subject to certain conditions mentioned in paragraphs 2 and 3 of the letter. In paragraph 2, it was pointed out that the Central Government had already made certain allotments of land to the Institutions mentioned therein, and in paragraph 3 it was stated that the Central Government had made commitments to the Organizations mentioned in that paragraph for allotments of the areas respectively shown against their names and these commitments were to be kept in view and the Organizations were to be "accommodated as far as practicable while implementing the schemes." In so far as the petitioner-Society is concerned, it was specifically mentioned that it was to be accommodated on the land originally reserved for Police Headquarters ie. Blocks 8 and 9.
3. Subsequently Government of West Pakistan which was replaced by the Central Government in regard to the statutory authority in the matter, by virtue of President's Order No. 6 of 1972, accorded sanction to the Scheme, subject to the same conditions and reservations as were specified by the Central Government in the letter dated 14th June, 1963. Later on, however, the K. D. A. Decided, as a matter of Policy, not to allow any land to any Cooperative Society. Petitioner Society called in question this decision before this Court in Petition No. 830 of 1965 which, however, was dismissed in limine. On appeal by the petitioner-Company, the Supreme Court of Pakistan issued a direction to the K. D. A. That they should honour the commitment of Government expressed in the Notification of the Provincial Government dated 9th June, 1964 in respect of the commitments to the appellant Society and not to depart from the direction given in that Notifica--petition so land as it stands intact.
4. When the case came up before this Court on 24th September, 1968 after the judgment was passed by the Supreme Court of Pakistan Mr. Shamsul Haq Memon the Legal Advisor to the K. D. A. Made the statement that "the position of the K. D. A. Was that not only it intends to implement the order of the Supreme Court but has also taken steps in that direction by cancelling all the allotments in respect of the land in question which it had made to private individuals beforehand."
5. The learned counsel however stated that the K. D. A. Had approached the Government with reference to the provisions of the scheme and its financial feasibility for the fixation of the value of the land which was to be given over to the petitioner Society and asked for adjournment for sometime. Their Lordships of the Division Bench who beard the case in the order passed on that day observed "considering that the K. D. A. Has taken concrete steps to hand over possession to the petitioner, we grant three weeks' time to the K. D. A. To formulate its demand with regard to the deposit of money or the giving of the Bank guarantee subject to which possession would be delivered to the Society."
6. Afterwards when the case came up for bearing on 15th October, 1968 the K. D. A. Took a totally different stand on the basis of two Gazette Notifica--tions dated 3-10-1968 and 14-10-1968 issued by the Provincial Government whereby the application of the K. D. A. To allot land to anyone in respect of the commitments made earlier by the Central and the Provincial Governments were done away with. It was urged on the basis of these two Notifications that the K. D. A. Was under no legal duty to allot land to the petitioner--. Society in implementation of the previous commitments made by the two Governments. In the circumstances, the petitioner-Society had to challenge these Notifications and the case once again went up to the Supreme Court of Pakistan. Their Lordships repelled the stand taken by the K. D. A. And sent back the case to the High Court to deal with it under Order XLV, rule 15 read with section 151, C. P. C. It is in these circumstances that the case has come up for disposal before me.
7. The controversy raised by the parties involves resolution of two questions only, first being the extent of land to be allotted to the petitioner-Company and the second being the price to be charged by the K. D. A. According to the petitioner-Company its entitlement covers the whole area which was originally reserved for Police Headquarters i.e. Blocks Nos. 8 and 9, comprising of 350 acres of land, and the price payable by the petitioner must be fixed at the rate determined and chargeable during the relevant period, and not at the newly revised rates. It is urged, on the other hand, on behalf of the K. D. A. That the extent of the area to which the petitioner-Company is entitled to cannot exceed 177 acres which precisely constitute Blocks 8 and 9, , and the price payable must be determined at the rates that prevails today.
8. For the resolution of the first question reliance was sought to be placed, by both the parties, on the maps prepared by the K. D. A. Which show conflicting position in regard to the area covered by Blocks Nos. 8 and 9.
9. Mr. Shamsul Haq Memon, the Legal Adviser of K. D. A. Urged that Plan P. B. 4/24 reflects the correct position as to the area reserved for the petitioner-Company as this document has been mentioned in the Gazette Notification dated 9-6-1964. Mr. A. K. Brohi, the learned counsel for the petitioner seriously challenged the authenticity of this Plan, and he produced a Plan of the K. D. A.
10. (C. W. 2) prepared in 1967 which shows that Blocks Nos. 18 and 19 which, according to Mr. Shamsul Haq Memon are not the part and parcel of Blocks Nos. 8 and 9, are included in Blocks Nos. 8 and 9.
11. Mr. A. K. Brohi contended that no reliance on Plan P. B. 4/24 can be placed, for, the K. D. A. Has obviously been preparing different kinds of Plans in order to defeat the claim of the Petitioner- Company. In this regard, Mr. A. K. Brohi pointed out Plan C. W. 1 prepared on 10-6-1960 in which Blocks bearing Nos. 18 and 19 have been carved out of the area covered by Blocks Nos. 8 and 9. The learned counsel contended that it is obvious that this Plan which is also duly certified by the K. D. A.
12. Is incorrect, for, the position reflected therein does not find place in Plan C. W. 2 which was prepared much later, in the year 1967.
13. Mr. A. K. Brohi also referred to two judgments of the Supreme Court of Pakistan in the present case for the contention that it is no longer open to the K. D. A. To take up the stand that the petitioner- Society is entitled to less than 350 acres of land. He contended that this point had never been raised earlier, and in the circumstances the K. D. A. Cannot now take up a totally new plea in these execution proceedings. We are impressed by this argument. Reference to the Judgment of the Supreme Court of Pakistan dated 30th May, 1968 would show that Leave to Appeal was granted to the petitioner-Company, in the words of their Lordships, to consider the following questions "Leave to appeal was granted to consider the following questions :-
(i) Whether the directions given by the Central Government in their letter No. F. 3-8/60, D H S, dated the 14th June, 1963, to the Provincial Government that their commitment to the petitioner for allotment of 350 acres of Land for its housing scheme in Blocks Nos. 8 and 9 may be kept in view and accommodated as far as practicable, were, under section 13-A of President's Order No. 6 of 1962, binding upon the respondent.
(ii) Whether allotment of land to the petitioner-society had become impracticable to justify refusal to honour the commitment made by the Central Government, and
(iii) Whether a legal duty was cast on the respondent to allot 350 acres of land to the petitioner regarding which the Central Government bad given their approval and, if so, whether that duty could be enforced by the High Court in writ jurisdiction."
14. After referring to the Notification issued by the Central and the Provincial Governments, their Lordships with references to the arguments addressed by Mr. A. K. Brohi, who was also appearing in those proceedings before their Lordships of the Supreme Court, made, the following observations :- "Mr. Brohi also tried to press into service another letter, issued by the Central Government on the 14th June 1963, to the Provincial Govern--ment which conveyed the approval of the Government of Pakistan to the Town Expansion Scheme No. 24, framed by the Karachi Development Authority, at an estimated cost of Rs. 431 lacs, over a period of five years, subject to certain conditions. The letter reiterated the commitments already made by Government for this Scheme and directed that the commitment to the Works Cooperative Housing Society in respect of the land originally reserved for Police Headquarters, i.e. Blocks Nos. 8 and 9, be also kept in view and accommodated, as far as practicable, while implementing the Scheme. It is objected by the learned Advocate-General, on behalf of the Province of West Pakistan, that this letter is of no avail to the appellants, as the statutory power for giving such directions had passed from the Central Government to the Provincial Government, with effect from the 27th of March, 1962, when President's Order No. 6 of 1962 was promulgated.
15. Even if this objection be conceded to be valid, the position, in our opinion, remains the same as before, because of the notification issued by the Provincial Government, at pages 41 and 42 of the record. It incorporated similar directives as had been formulated by the Central Government in its earlier letter.
16. Mr. Brohi very rightly pointed out that in the written statement, submitted on behalf of the Karachi Development Authority in the High Court, the position taken was not that it had not been found possible to allot land to the appellant-society. On the contrary, a decision had been taken as a matter of policy not to allow any allotments to any Co-operative Society. In our- opinion, the construction placed by the Karachi Development Authority on the direction contained in this notification with regard to the appellant-society, was erroneous. It did not imply unfettered discretion in the Karachi Development Authority to completely ignore the appellant-society, eve's if it was physically possible to allot the land it had asked for and which had been specifi--cally earmarked for it in the notification. The only way in which the request of the appellant could have been defeated was, if a case had been made out, that due to physical factors beyond the control of the Karachi Development authority, allotment to the appellant-society was no longer possible.
17. This was not the plea raised on behalf of the Authority, in the High Court or before us. The discretion, if any, conferred on the Karachi Development Authority in this respect by the Provincial Government's notification was only confined to the power of refusal of allotment, in case it was found impossible as a physical fact to accom--modate the appellant-Society. The matter of policy stood decided by the directive contained in the notification itself and it was not open to the Karachi Development Authority to depart from the decision of policy underlying the commitment made to the appellant-society by Government.
18. Itwas represented on behalf of the Karachi Development Authority, by the learned Advocate- General that the authority had already allotted parts of the land, earmarked for the appellant- Society, to some private individuals and that out of those allottees, the Urdu College had put up a building in Block No. 9. To the extent the building has been constructed the Karachi Development Authority may no longer be in a position to allot the land under that building to the appellant -- society. But mere allotments on paper to others who had put up no constructions so far, would not involve the Karachi Development Authority in any difficulties, if they honour the commitment made to the appellant-- society. All that may be necessary for the Karachi Development Authority to do, in the case of these other allottees, would be to return their deposits, if any."
19. It will be seen, therefore that their Lordships of the Supreme Court also took notice of the arguments addressed on behalf of the K. D. A. That certain private individuals had been allotted certain area covered all Blocks 8 and 9. Their Lordships repelled this argument and directed that mere allotments on paper to others who have put up no construction so far would not involve the K.
20. D. A. If they honour the commitment made to the petitioner-- Society. This was precisely the argument advanced by Mr. Shamsul Haq, the Legal Adviser before us, and we have no hesitation in repelling this argument as it stands concluded by the judgment given by the Supreme Court of Pakistan. It is further clear from the passage reproduced above that at no time there was any controversy as to the area which was to be allotted to the petitioner-Company. It has been clearly mentioned to be the land A originally reserved for Police Headquarters I.e. Blocks Nos. 8 and 9. In the letter of the Central Government dated 12-2-1960 it is specifically mentioned that the Central Government had agreed in principle to allot the petitioner --society 350 acres of land which was previously reserved for Police Lines and Headquarters. It is also clear from the admitted documents that the petitioner was entitled to the area which was reserved for Police Lines and Headquarters i.e. Blocks Nos. 8 and 9. So far as the area reserved for Police Headquarters is concerned, we have admitted correspondence on record exchanged between the Collector of Karachi, the then Chief Commissioner of Karachi and the Karachi Police. In his letter No. LA/454 dated 4-8-1956 the Collector of Karachi informed the Chief Commissioner of Karachi that the possession of land was handed over to the Deputy Superintendent of Police (Crimes), and the total area for the Police Lines handed over comprised of 350-16 Ghuntas which on measurement, however, worked out to be 349-27 acres only. According to another letter being No. E. C./Bldg. 18887 dated 21-10-1954 the Superintendent of Police, East Division Karachi informed the Inspector-General of Police, Karachi that possession of land measuring 350-16 Ghuntas was handed over to the Assistant Engineer Administration Division, Karachi for New Police Lines. In this connection, we may also point out yet another letter addressed by the Assistant Secretary to the Government of Pakistan to the Chief Commissioner, Karachi referring to the Ministry's Memorandum No. B-1860-LSO/52 dated 29-8- 1953 that the total area of 350 acres was approved for allotment for Karachi Police. There can, therefore, be no manner of doubt that area reserved for the Police Lines and Headquarters comprised of 350-16 Ghuntas, as asserted by the Petitioner-Society. We, therefore, hold that the petitioner-Society is entitled to the area of land to that extent.
21. We may now deal with the second and the final question with regard to the price of land to be charged from the petitioner Society. According to Mr. Shamsul Haq Memon, the price payable must be determined according to the rates prescribed by the Government of Pakistan in the Notification dated 18th July, 1966 appearing in the Gazette of Pakistan dated 5th August, 1966. On the other hand, Mr. Brohi contended that the Society cannot charge any higher rate than the one prevalent at the time when allotment of the area was made to the petitioner Society. In this behalf, he pointed out that during the relevant period, the rate to be charged was Rs. 8-50 per square yard for residential plots of 120-400 square yards, and Rs. 10-50 per square yard for plots of 600 square yards and above. There is no controversy as to these rates being prevalent during the relevant period ; the question is whether the K. D. A. Is entitled to charge the higher rates which were determined subsequently. We feel that, in view of the directions given by their Lordships of the Supreme Court that the K. D. A. Has to honour the commitments made by the Central and the Provincial Governments to the petitioner Society, as expressed in Notification dated 9th June 1964, we have got to implement those orders in the light of the rates and the charges that were prevalent on 9th June 1964. The precise direction in the judgment of the Supreme Court of Pakistan, dated 30-5-1968 reads as follows :- "We, therefore, allow this appeal and issue a direction to the Karachi Development Authority that they should honour the commitment of the Government expressed in the Notification of the Provincial Govern--ment dated 9th June, 1964, in respect of the commitment to the appellant Society, and not to depart from the direction given in that notification, so long as it stands intact."
22. The words "so long as it stands" have also been clarified by their Lordships of the Supreme Court in their subsequent judgment dated 30-1-1969. The opinion of the Court was expressed by Mr. Justice Hamoodur Rehman, the Chief Justice of Pakistan in these words :- "In my view the words "so long as it stands" occurring in the last paragraph of the judgment in the appeal mean no more than this that since the relevant provisions of the notification dated 9-6-64 had not been altered till then the commitment subsisted and the appellant Society was entitled to the allotment. It could never have been the intention of this Court to give to the Provincial Government a right to amend the notification in such a way as to nullify its own judgment.
23. I am, therefore, of the view that the construction sought to be placed by the Development Authority on this portion of the judgment of Court is wholly unjustified and unwarranted. With these observations I would send back the case to the High Court to deal with it under Order LXV, rule 14 read with section 151 of the Code of Civil Procedure. The costs of these proceedings in this Court will abide the result of the proceedings in the High Court."
24. We have, therefore, no hesitation in reaching the conclusion that the price and the other charges payable by the Petitioner Company for the land must be governed by the rates that prevailed on the 9th June, 1964.
25. At this stage Mr. A. K. Brohi requested for early implementation of the order of the Supreme Court in view of the delay that had occurred uptill today in spite of the petitioner Society having deposited the huge amount of Rs. 34,25,000. Mr. Shamsul Haq Memon pointed out that the K. D. A. Has already handed over about 210 acres to the petitioner-Society and the rest area to which the petitioner is entitled to according to the judgment given today is in possession of many persons who have already been allotted certain portions of the land. The request for the early implementation of the judgment of the Supreme Court is only legitimate,. And we, therefore, direct that the K. D. A. Shall furnish the details of the rest of the area that is required to be handed over to the petitioner- Company in accordance with the order passed by, us to day including the names of the allottees.
26. The case will come up again on 20-8-1974 for further orders.
27. Mr. A. K. Brobi claimed not only costs of these proceedings but also pointed out that the petitioner- Society is entitled to the costs of the proceed--ings before the Supreme Court of Pakistan which culminated in the judgment dated 30th May, 1968. He pointed out from that judgment that the costs of those proceedings are to abide the results of these proceedings, in the High Court. On the well-settled principle that the costs must, normally, follow the results, we see no reason to withhold the claim of the petitioner-Company to the costs of these proceedings. The petitioner, therefore, is entitled to costs of these proceedings as well as the costs of the proceedings before the Supreme Court of Pakistan referred to above.