' The plaintiff instituted the present suit for declaration and permanent injunction against defendants Nos.1 to 4 and 6. Defendant No,5, KPT, is a pro forma defendant.
2. Brief facts of the case are that defendant No,5, Karachi Port Trust, on 8-11-1998, invited tenders for grant of 25 years lease in respect of two separate undeveloped plots of lands alleged to be along Estuary of Lyari River for the purpose of container stacking and storage/warehousing. The plaintiff's bid was the highest but the bids were scrapped. On 13-12-2000, bids were re-invited for the same two plots and this time the bid of the plaintiff was accepted in respect of one plot, bearing Plot No,64, measuring 13 acres (hereinafter referred to as "the plot"), vide Letter No,E/L/EA/I/MP/Plot- 64/488 dated 1-7-2002. The plaintiff was required to make payment of rent and other charges in respect of the plot. The plaintiff deposited a sum of Rs,2,898,150 as surety deposit and Rs,10,000,00 as lease charges and Rs,1,992,970 as advance rent. After demarcation, the physical possession of the Plot was handed over by the defendant No,5 to the plaintiff alongwith the site plan showing the boundaries of the plot. The plaintiff undertook construction work as per the terms and conditions of the lease. At this juncture that the defendants Nos.3 and 4 started objecting to the construction work as well as the possession of the plaintiff on the ground that the plaintiff had no title and is an encroacher on the said plot. The plaintiff approached KPT and other concerned persons/departments. However, as the grievance of the plaintiff could not be redressed, the plaintiff approached this Court through the present suit seeking declaration and permanent injunction.
3. The plaintiff, alongwith the plaint of the suit, filed an application (C.M.A. No,6210 of 2002) under Order XXXIX, Rules 1 and 2 praying therein that during the pendency of the suit, the defendants may be restrained from interfering with the possession, enjoyment and ongoing construction over the said plot.
4. Notices were issued to the defendants, who filed written statements as well as counter-affidavit to the stay application contesting the suit and the application. Defendant No,5 supported the plaintiff.
5. Learned counsel for the plaintiff as well as the counsel for the defendants 1, 2, 4, 5 and 6 advanced their detailed arguments. On an objection raised by the learned counsel for defendants Nos.1 to 4, that the interim relief sought through the C.M.A. Cannot be granted as it would amount to the grant of the main prayer in the suit and disposal of the entire suit, learned counsel for the plaintiff suggested that this suit is based on admitted record, the entire suit may be heard and disposed of at this stage. Accordingly, with the consent of the counsel for the parties. I propose to dispose of the entire suit alongwith the listed applications by this judgment.
6. Learned counsel for the plaintiff argued that the land in dispute belongs to the Federal Government over which the defendants Nos.1 to 4 have no right and does not fall within the authority of Deputy District Officer (DDO). That the power of the DDO is restricted to and the action respect to property or land vested in or managed, maintained or controlled by a Local Government. He contended that KPT is a statutory body and by virtue of section 27 of the K.P.T. Act all properties specified in Schedule A to the said Act, vest in K.P.T. As regards the limits of K.P.T., he relied upon section 3 of the Act and stated that K.P.T. Exercises control over the land in pursuance to the successive notifications. The Federal Government, by the latest Notification dated 5-10-1991, described the limits of K.P.T., that the Port Officer exercises control over the entire limits of the Port falling within the High Water Mark. He contended that as the plot falls within the High Water Mark, therefore, K.P.T. Can, in exercise of its powers, grant lease of the plot. He placed reliance on the case of The State v. Adm. (R) Akbar H. Khan and others SBLR 2001 Karachi 281.
7. The learned counsel for the plaintiff, on the question of ownership of K.P.T. Of the land falling within the limits of Karachi Port, referred to the dispute between the K.P.T. And the Provincial Government in respect of the construction of fish harbour for which, in the Inter-Provincial Conference, it was decided that the K.P.T. Was the owner of the land on which Fish Harbour was built and the Provincial Government of Sindh was directed to make payment to K.P.T. In easy instalments. He submitted that the plaintiff was granted 25 years lease by K.P.T. With the prior approval of the Federal Government and the plaintiff is in possession of the suit plot. Referring to Article 149 of the Constitution, he stated that the directives of the Federal Government are to be implemented by the Provincial Government.
8. Mr. Mushtaq Memon submitted that the defendants being public functionaries are required to act within the parameters of authority conferred upon them under the law and they cannot claim any inherent power or jurisdiction and every executive authority has to justify its actions with reference to some contemporary law. He relied on the cases of (i) Haji Ghulam Zamin and another v. A.R. Khondkar and others PLD 1965 Dacca 156; (ii) Haji Ghulam Sabir v. Pan Allotment Committee and another PLD 1967 Dacca 607; (iii) Province of Punjab through its Home Secretary and others v.
Gulzar Hassan and others PLD 1978 Lahore 1298 and (iv) Federation of Pakistan and others v.
Shaukat Ali Mian and others PLD 1999 SC 1026.
9. The learned counsel for the plaintiff, with reference to section 24-A of the General Clauses Act, submitted that public and executive functionaries, are required to act reasonably, judiciously and with justice, equity, fairness and in accordance with spirit of provision under which powers are sought to be exercised. In this behalf he relied on the cases of (i) Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCM R 916; (ii) Independent Newspapers Corporation (Pvt.) Limited and another v. Chairman, Fourth Wage Board and others 1993 SCM R 1533 and (iii)
Mandviwalla Entertainment (Pvt.) Limited and others v. Dy. Commissioner, Karachi South and another 1999 CLC 908.
10. Mr. Izhar Haider Rizvi, Advocate for defendant No,5, K.P.T., adopted the arguments of Mr. Mushtaq Ahmed Memon, counsel for the plaintiff, and supported the grant of lease to the plaintiff.
Additionally, he vehemently argued that the defendants did not raise any objection at the time of publication of the tender in respect of the plot. A perusal of the tender shows that there is no mention of any plot number, it only mentions "Two pieces of K.P.T. Land" along Estuary of River Lyari.
Thus, it is not clear as to which pieces of land are being put to tender by K.P.T. It was only when the work was started on the disputed plot that the defendants realized that a portion of Estuary of Lyari River is being blocked and action was taken by them.
11. Mr. Manzoor Ahmed, learned counsel for the defendants Nos.l, 2 and 3, contended that the land, out of which the plot was carved out, does not belong to K.P.T., it is part of the river bed and Estuary of Lyari River and, therefore, K.P.T. Is not competent to lease out the plot. The learned counsel submitted that if the Estuary of Lyari River is allowed to be blocked, the resultant blockade in the flow of the flood water during the monsoon season will cause havoc to the city, particularly the locality around the area. He stated that it is 'a mala fide attempt to grab the Estuary of Lyari River with the connivance of defendant No,5. Referring to the first tender notice on 8-11-1998, which was subsequently cancelled, and to the subsequent tender notice dated 13-12-2000, followed - by the alleged grant of lease of the plot on 12-7-2002, and, as admitted by the plaintiff in para 8 of the plaint, shows that the ownership of K.P.T. Of the plot was in dispute. As regards the Annexures to the plaint, it is stated that the site plan and the possession handed over by K.P.T. To the plaintiff was illegal and unlawful. He stated that the K.P.T. Was called upon to produce title documents in respect of the plot, which were never produced by K.P.T. It was submitted that annexure J to the plaint was written without authority. He also submitted that Annexure N has no nexus with the property in dispute. It was submitted that the K.P.T. Has no lien or title over the plots as it forms bed of Lyari River. At the Estuary of Lyari River, the point where Lyari River flows into the sea and any blockade at this place will result in catastrophe and any obstacle was required to be removed.
12. Mr. Abbas Ali, learned A.A.-G., appearing for defendant No,2, contested that the plot "along the Estuary of Lyari River" and stated that the same is part of the Estuary of Lyari River, and, under the law, no part of an estuary can be allotted to any one. He also referred to Article 172 of the Constitution and stated that the land in dispute belongs to the Government of Sindh.
13. In the light of the arguments advanced on the basis of admitted record this suit can be decided on the short but pivotal point as to whether the plot is located within or along the Estuary of Lyari River and whether the plot could be allotted/leased by defendant No,5 to any one.
14. K.P.T. Is empowered to acquire and hold properties, for the properties acquired, by K.P.T., the mechanism is provided in Chapter IV of the K.P.T. Act. It comprises of sections 25 to 28-A and also deals with the general powers of the Board as to property. In addition to these, reference, in this connection, may also be made to the following sections with advantage.
15. Section 18 of the K.P.T. 'Act empowers the Board to lease, sell or otherwise transfer any movable or immovable property which may, for the purposes of this Act, have become vested in, or been acquired by them. Thus, the properties owned by K.P.T. Are divisible in two broad categories; (i) those vested in it and (ii) those acquired by it.
16. In the first category are those properties which are vested in K.P.T. By the Federal Government at the time of promulgation of the K.P.T. Act by virtue of section 27 thereof and Schedule A thereto.
17. Section 27 of the Act, provides that "The property specified in Schedule A shall vest in the Board" i.e. To Board of Trustees of K.P.T. A bare reading of the Schedule reveals that the subject properties comprise of three different classes (i) Immovable properties like lands, harbour works, bungalows, workshops, buildings, quarters, etc. (ii) vessels and boats together with all the fittings, gear and other appurtenances thereof, and (iii) those ,lands, buildings harbour-works, railway-lines, machinery, plant, tools, furniture, vessels and boats, and other property whatsoever not hereinbefore particularly described heretofore in the charge of the Port Officer of Karachi. In this regard specific reference was made to Part III of the Schedule which is relevant for the purpose of the above suit, which reads as under:-- "III. All other lands, buildings, harbour-works, railway-lines, machinery, plant, tools, furniture, vessels and boats, and other property whatsoever not herein-before particularly described heretofore in the charge of the Port Officer Karachi, the Port Engineer, or of the Karachi Harbour Board."
18. It is evident from the above that reference in this Part is to the lands, buildings, etc. Which are "in the charge of Port Officer of Karachi, the Port Engineer, or of the Karachi Harbour Board." Reference to such things as machinery, plant, furniture etc, makes it clear that it relates to such property which, at the time of the promulgation of the K.P.T. Act, was in use of the above mentioned persons i.e. Port Engineer, Port Officer or, the Board, as the case may be. The plot which does not fall within the charge of the Port Officer of Karachi or the Karachi Harbour Board, could not, by any stretch of imagination, be included in such lands. Admittedly, this land was never in use of K.P.T. It is vehemently denied by the contesting defendants that the plot was ever under the use of the K.P.T.
Their sole and consistent plea is that the plot is part of estuary of Lyari River and cannot be leased out to any one by defendant No,5.
19. Thus, it follows from the above discussion that K.P.T. Owns properties of two kinds; (i) those properties acquired by it directly through agreement under section 25 of the Act, or acquired through the proceedings initiated by the Federal Government on behalf of K.P.T. Under the Land Acquisition Act, 1894. In both these eventualities it is incumbent upon K.P.T. To pay the price or, as the case may be, compensation in respect of the property so acquired and (ii) those properties which vest in K.P.T. By virtue of section 27 of the Act as enumerated in Schedule A to the Act which were transferred by the Federal Government to the K.P.T. At the time of promulgation of the K.P.T.
Act.
20. Section 25 of the Act empowers the Board to acquire and hold movable and immovable property whether within or without the limits of the port or city of Karachi. The section reads as under:-- "25. The Board shall, for the purposes of this Act, have power to acquire and hold movable and immovable property whether within or without the limits of the port or city of Karachi."
21. Section 26 of the Act deals with a situation where the Board is unable to acquire any immovable property by agreement. In such a situation the Federal Government has been empowered to invoke to the provisions of Land Acquisition Act, 1894 for acquiring such land for the Board as though the same is needed for a public purposes with the meaning of Land Acquisition Act. Section 26 of the K.P.T. Act reads as under:-- "26. When the Board are unable to acquire, by agreement, any immovable property required for the purposes of this Act the Federal Government may order proceedings to be taken for acquiring the same on behalf of the Board as if such property were land needed for a public purpose within the meaning of the Land Acquisition Act, 1894.
"The amount of compensation awarded and all other charges incurred in the acquisition of any such property shall be forthwith defrayed by the Board, and thereupon the said property shall vest in the Board."
22. In paragraph 9 of counter-affidavit filed by Mukhtiarkar Keamari on behalf of defendant No,2, it is stated that initially land measuring 177 acres was purchased/acquired by K.P.T. From the then Provincial Government and subsequently land measuring 61 acres was acquired by K.P.T. For erecting Mansfield Import Yard and in 1914-15 land measuring 115 acres was acquired by K.P.T.
Between Keamari and China Creek. Such recorded transactions clearly indicate that even K.R.T.
Itself was well aware that all the lands falling within the K.P.T. Limits, unless acquired/purchased by it, are not owned by K.P.T.
23. There is no cavil with the proposition that K.P.T. Can lease, sell or otherwise transfer its properties as section 18 of the K.P.T. Act clearly authorizes K.P.T. To do so. Section 18 of the K.P.T. Act reads as under:-- "18. (i) The Board shall be competent subject to the restrictions contained in subsection (2), to lease, sell or otherwise transfer any movable or immovable property which may, for the purposes of this Act, have become vested in or been acquired by them and so far as is not inconsistent with the provisions and purposes of this Act and subject to the restrictions contained in subsections (3) and (4), to enter into and perform all such contracts as they may consider necessary or expedient in order to carry into effect the said provisions and purposes."
24. It would be seen that the Board has been authorized to lease, sell or otherwise transfer any movable or immovable ' property which is vested in it or has been acquired by it.
25. The plaintiff and defendant No,5 claim that the plot belongs to K.P.T. While the other defendants refute this assertion and State that the plot is a part of Estuary of the Lyari River and, therefore, it belongs to the Sindh Government and it cannot be allotted to any one by virtue of Statement of Condition in Notifications No,KB-1/1/30/ 72/7098 dated 12-5-1975 according to which no lease shall be granted within the prohibited area of Super Highway, National Highway, Roads, Jails, Railway Lines, Port Trust or Sea Shore Limits.
26. The deciding factor requiring consideration is the ownership of the land on which the plot is carved out. If it belongs to K.P.T., then K.P.T. Is entitled to lease it and if it does not belong to K.P.T.
Then the lease granted by the K.P.T. Is illegal and invalid.
27. In respect of proof of ownership of K.P.T. Of the plot, in paragraph 8 of the plaint, it is pleaded that on account of the huge investment involved in development of the land and the anxiety about title of K.P.T., it asked K.P.T. For detailed proof of ownership of the subject land. And, in response to such inquiry, it is stated that the plaintiff was "reassured about K.P.T. Title and was provided copies of Order dated 1-5-2000 passed by this Honourable Court in Suit No,835 of 1997. Reference of the learned Official Assignee of Karachi in H.C.As. Nos.182 and 183 of 2000 alongwith survey report prepared by the Hydrographer of Pakistan Navy alongwith Survey Map prepared by it showing the boundaries of K.P.T. Land with reference to High Water Mark." None of these documents confer any title in respect of the plot on K.P.T. However, it would be advantageous if each and every document mentioned above is examined individually.
28. The first document mentioned by the plaintiff in paragraph 8 of the plaint is Order dated 1-5- 2000 in Suit No,835 of 1997. This suit was filed by a private person against interference with the peaceful possession and ownership of Plot No,62. To resolve the dispute, Official Assignee was appointed commissioner to inspect the site and submit his report. The Official Assignee, with the assistance of Naval Hydrographer, prepared his report. The report of the Naval Hydrographer clearly mentioned that Plot No,62 does not fall within the limits of K.P.T. This document does not, in any manner, establish ownership or title of K.P.T. Over the disputed land. On the contrary, the claim of K.P.T. Was declined and its stand was rejected in respect of one of the plot lying in close proximity with the plot which is subject matter for this suit.
29. Similarly, the reference of Official Assignee in H.C.As. Nos.182 and 183 of 2000 was also in respect of plots other than the plot in dispute in this case. This, also does not confer any ownership rights on K.P.T. In respect of the suit plot.
30. Similarly, the report of the Naval Hydrographer was also in respect of Plots Nos.62 and 63 and not in respect of Plot No,64. The maps which were used by the Naval Hydrographer for this purpose were prepared in the year 1926 and the High Water Mark, determined by the Naval Hydrographer is in conformity with the said Maps. It shows that Plots Nos.62 and 63 are on the other side of the High Water Mark and on higher altitude than the plot which is situated below the High Water Mark forming part of the river bed.
31, The plaintiff been asking for proof of ownership of K.P.T. Over the plot and K.P.T. Claimed title on the basis of the documents mentioned above. This statement of the plaintiff indicates that the plaintiff was alio not aware of the title when he entered upon the land. K.P.T. Has also not come forth with the specific document conferring title.
32. In addition to this, in the letter dated 2nd September, 2002, written by the plaintiff to General Manager, K.P.T., (annexure "U" to the plaint) in the subject of the letter the plot has been referred to as "Plot No,64' at the Estuary of River Lyari, Mauripur Road" and in the same manner, the letter dated nil No,E/L/EA1/MP/PLOT-64 of 2001, (Annexure M to the plaint) refers to the plot as "at Estuary of River Lyari, Mauripur Road." This admission on the part of both the plaintiff as well as K.P.T. Also suggests that the plot in dispute is situated at, and not along, the Estuary of River Lyari. It is of utmost importance that the area "Mauripur Road" or "Lyari River" is not mentioned anywhere in the lands earmarked to K.P.T. Vide Annexures W-1 and W-3 with the plaint.
33. On the other hand, learned counsel for the contesting defendants rely on section 50 of the Land Revenue Act, and Article 172 of the Constitution which speak about the ownership of forests, quarries and wastelands and ownership of ownerless property respectively.
34. Section 50 of the Land Revenue Act, which speaks about presumption as to ownership of certain lands reads as under:-- "50.. Presumption as to ownership of forests, quarries and wastelands.---(1) When in any record of rights completed on or before the eighteenth day of November, 1871, in territories where the Punjab Land Revenue Act, 1887 (Punjab Act XVII of 1887), was, with or without modifications, in force immediately before the commencement of this Act, or completed on or before the seventeenth day of July, 1879, in territories where the Bombay Land Revenue Code, 1879, (Bombay Act V of 1879), or the Sindh Land Revenue Code (Sindh Act V of 1879), was so in force, or any unclaimed, unoccupied, deserted or wasteland, or any spontaneous produce or other necessary interest in land belongs to the landowners, it shall be presumed to belong to Government.
2. When in any record of rights completed after the eighteenth day of November, 1871 or the seventeenth day of July, 1879, as the case may be, it is not expressly provided that any forest or quarry or any such land, produce or interest as aforesaid, belongs to Government, it shall be presumed to belong to the. Landowners concerned.
3. The presumption created by subsection (1) may be rebutted by showing:
(a) From the record or report made by the Assessing Officer at the time of assessment.
(b) If the record or report is silent, then from a. Comparison between the assessment of villages of similar character in which there did not exist, any forest or quarry, or any such land, produce or interest, that the forest, quarry, land, produce or interest was taken into account in the assessment of the land revenue.
35. Article 172 of the Constitution reads as under;-- "172. Ownerless property.---(1) Any property which has no rightful owner shall, if located in a Province, vest in the Government of that Province, and in every other case, in the Federal Government.
2. All lands, minerals and other things of value within the continental shelf or underlying the ocean within the territorial waters of Pakistan shall vest in the Federal Government.
' Until the presumption is rebutted, the forest, quarry, land, produce or interest shall be held to belong to Government."
36. The contention of Mr. Mushtaq Memon, learned counsel for the plaintiff, that Land Revenue Act does not apply to the lands of K.P.T. As K.P.T. Is a Federal subject is misconceived as mere declaration of limit, ipso facto, does not mean that all lands falling within the limits of a local authority which is the subject-matter of the Federal Government. Would be excluded from the operation of the Land Revenue Act. For the purpose of exemption of certain lands from the operation of any or all the provisions of the Land Revenue Act, it is mandatory that a Notification be issued by the competent authority granting such exemption. Section 2 of the Land Revenue Act clearly provides that the Act, applies to the whole of West Pakistan except the Tribal area. As no such notification has been produced and the legal effect of limits of K.P.T. Requires to be examined.
37. At the same time, mach emphasis has been laid by Mr. Mushtaq Memon, learned counsel for the plaintiff, on the limits of the Port of Karachi with reference to the High Water Mark, which also requires examination.
38. Section 3 of the K.P.T. Act empowers the Federal Government to define and alter the limits of Port, which reads as under:--
3. Government may, by notification in the official Gazette:
(a) Define the limits of the Port for the purpose of this Act; and
(b) from time to time alter such limits.
' Such limits may extend to any part of the navigable approaches to the Port, and may include any wharves, tramways, warehouses, sheds and other works made on behalf of the public for convenience and good governance of the Port, whether within or without high-water mark, and, subject to any rights of private property therein, any portion of the shore within fifty yards of high- water mark."
39. From a bare perusal of the above quoted section 3 of the Act, it is evident that it provides for declaration of the limits of the Port of Karachi for the purpose of the Act only as it specifically mentions that the limits may extend to any part of the navigable approaches to the Port, and may include any wharves, tramways, warehouses, sheds and other works made on behalf of the public for convenience of traffic for safety of vessels or for the improvement, maintenance and good governance of the Port. Whether within or without high-water mark, and, subject to any rights of private property therein, any portion of the shore within fifty yards of high-water mark. This clearly establishes that the demarcation of the limits of K.P.T. Does not ipso facto mean that K.P.T. Owns all thee property located within the limits. The object of section 3 of the Act is only with regard to the administration of the area within the limited scope of powers available to K.P.T. Under the Act.
40. There is vast difference between the word "limits" and the word "owner". The word "limit" has been defined in Words and Phrases. Volume 25, Permanent Edition, West Publishing Co., 1961, page 483 as "boundary, border, the outer line of a thing, and nothing else, except when used to convey the idea of restraint."
41. In Ballentine's Law Dictionary, Third Edition, page 740, the term "limit" has been defined as "A boundary, a border, the outer line of a thing".
42. In Black's Law Dictionary, Sixth Edition, 1991, at page 926, "limits" has been defined as "A bound; a restriction; a restrain; a circumscription. Boundary, border, or outer line of thing, Extent of power, right or authority conferred".
43. In Chambers 21st Century Dictionary, Revised Edition, Page 792, the word "limit" has been defined as "A point, degree, amount or boundary especially one which cannot, or should not, be passed".
44. In contrast to the work "limit", the word "owner" has been defined in Black's Law Dictionary at page 1105, as "The person in whom is vested the ownership, dominion, or title of property; proprietor".
45. In Ballentine's Law Dictionary, Third Edition, page 906, defines the word "owner" as "One who has complete dominion over particular property. The person in whom the legal or equitable title vests".
46. From the above judicial definitions of the words "limit" and "owner" it is clear that while the former merely reflects the boundary or border or outer line of a thing and refers to restrictions to crossing of such limit, the latter speaks of the ability to use of the thing by the owner as he pleases.
The authority to sell, transfer, lease or rent is vested in the owner and not in a functionary over all the things falling within his limit.
47. The word "limit" is not synonymous with the word "owner". It merely describes the territorial jurisdiction of a particular functionary to act within certain area. Whether such area is owned by such functionary is a different proposition. It is also worth-mentioning that in certain cases the overlapping limits may also create a buffer zone between two authorities. Various functionaries discharge their duties/functions within the limits of their area but such functionaries do not become owners of the areas under their respective limits. Few examples of the same are: limits of police stations, fire brigade, Courts, Municipal Council limits, etc, where the authorities exercise their powers and carry on their respective functions within the scope of their authority. However, they do not become owner of all those properties locates within their limits.
48. Likewise, declaration of limit of the Port of Karachi does not give any proprietary rights to K.P.T.
To lease, rent or sell all the property within its limits. For such purpose a clear title to such property is necessary by showing that either the same was transferred to K.P.T. By virtue of Schedule A to act or it had been either under section 25 or section 26 of the Act.
49. As regard the Notification, issued under section 27 of the Act, is concerned, any such Notification will be subject to clause (i) to subsection (1) of section 27 of the Act which provides for resolution of a question arising between the Federal Government and the Board as to the boundaries of any portion of such property. The words "such property" clearly indicate that this provision apply only to questions pertaining to property transferred by the Federal Government to K.P.T. By virtue of Schedule A to the Act. It has nothing to do with those properties which are not covered by Schedule A to the Act.
50. The plaintiff or the defendant No,5 has not been able to show that the plot is vested in the Board as per Schedule A to the Act or that the Board had acquired the plot from a competent authority as envisaged under the provisions of sections 25 and 26 of the Act. Reference in this connection to part III of Schedule A to the K.P.T. Act is totally misconceived as it refers to "All other lands, buildings, harbour-works". "which are in charge of the Port Officer of Karachi, the Port Engineer of Karachi or of the Karachi Harbour Board which clearly envisages that such lands, buildings, etc, which are under the use of the said persons, as the list of properties also includes machinery, plant, tools, furniture, vessels and boats. This section does not give wide and unabridged powers to the K.P.T. To claim whatever land it wants.
51. Apart from the above legal position, it is also of immense importance that if a portion of the Estuary of the Lyari River is allowed to be blocked the resulting catastrophe can affect all the adjoining areas as well as other parts of the city as the flood water will be prevented from falling into the sea through the estuary due to blockade and enter the adjoining areas. The loss to life and property cannot be imagined in addition to the loss to infrastructure and amenities in the area.
52. A perusal of Notification dated 5-10-1991, which is the latest in the series of notifications declaring the limits of the Port of Karachi, reveals that the limits of the Port of Karachi starts from Splendid Hotel, Hawksbay and it mentions Manora Breakwater, mainland Gizri. Keamari Groyne Cargo Complex, China Creek Breakwaters. Juna Bunder and West Wharf. The Estuary of Lyari River is nit mentioned in this notification. It has not been stated that these two names were new and did not exist at the time when the said Notification was gazetted.
53. A reference may also be made to the report dated 10-2-2002 prepared by Wasim Ahmed, Assistant Director, Survey of Pakistan, Karachi. The report, which is addressed to the Official Assignee, is reproduced hereinbelow for the sake of convenience:-- "Sub: Suit No,924 of 2002, Modern Terminal Operator v. The City District Government Karachi and others.
' Ref: Your letter No,O.A./117/2002, dated 2-2-2002 received under D.S.C.'s No,2877/11-G-4/Court Case, dated 10-12-2002.
' The matter has been studied in the light of record provided by the Official Assignee through K.P.T.
Representative which consists of following material:--
(i) Boundary schedule of K.P.T. Vide Registered No . M 302, 2 November, 1991.
(ii) High Court of Sindh at Karachi Nos.182 and 183 of 2000 (Court Decision).
(iii) Naval Headquarters report issued vide No,NE/Land/14/848, dated 19-12-2000.
(iv) Suit No,924 of 2002.
' According to boundary schedule of K.P.T. (Serial 1, above) the K.P.T. Boundary runs so meters above the High Water Line.
' In Suits Nos.182 and 183 of 2000, the Naval Headquarters was approached through O.A. For marking of H.W.L. Which was delineated/marked by the Naval Headquarters vide their report at Serial (iii) above.
' It is quite evident from the plan annexed to Naval report that the Plot No,64 falls toward sea below H.W.L.
' According to Map Plan submitted by K.P.T. And judgment of 182, 183, the Plots Nos.62 and 63 fall in K.D.A. Limit and hence Plot No,64 falls below H.W.L. Toward sea.
' To have a better knowledge of the physical status of the area, the undersigned visited the site on 4-4-2003 under intimation to City District Government, K.P.T. And the representative of Modern Terminal Operator, Representatives of the parties were present.
' It is mentioned that no documents have been provided which define the bed of the Estuary of the Lyari River. However, if the edge of the bridge is considered then the Plot No,64 is along the bed of the Estuary of the Lyari River.
' Survey of Pakistan, Karachi has carried out this task in National interest, please.
(Sd.)
Wasim Ahmed Asstt. Director OC No,9 Survey of Pakistan."
54. In this report it is stated that "According to Map Plan submitted by K.P.T. And Judgment of 182, 183, the Plots Nos.62 and 63 falls in K.D.A. Limit and hence plot No,64 falls below H.W.L. Toward sea." A finding on the location of Plot No,64 on the basis of the location of Plots Nos.62 and 63, which was decided without any reference to the plot in dispute, is to say the least, vague. The survey report further states that "no documents have been provided which define the bed of the Estuary of the Lyari River. However, if the edge of the bridge is considered then the Plot No,64 is along the bed of the Estuary of the Lyari River." The word "Estuary" according to Chambers 20th Century Dictionary.
New Edition 1983, at page 431(1 defines 'Estuary' as "the wide lower part of a river." This clearly establishes that the .Estuary of a river is wider than the general width of the river. Therefore, the finding that "if the edge of the bridge is considered then the Plot No,64 is along the bed of the Estuary of the Lyari River" is based on surmises and conjecture.
55. Since, in the report submitted by Wasim Ahmed, Assistant Director, Survey of Pakistan, findings are given without reference to the record and also contrary to the recorded position as such it cannot be given any consideration as entire record is already before the Court.
56. There is no cavil' with the proposition advanced by the learned counsel for the plaintiff, that public functionaries are required to act within the parameters of authority conferred upon them under the law and that they cannot claim any inherent power or jurisdiction and every executive authority has to justify its actions with reference to some contemporary law. It is also well-settled that public and executive functionary are required to act reasonably, judiciously and with justice, equity, fairness and in accordance with spirit of provisions under which powers are sought to be exercised.
57. It is the case of the contesting defendants that the Plot is situated in the Estuary of Lyari River and as such it cannot be allotted or leased to anyone and on ground they are contesting the suit as according to them the plot has been illegally occupied by the plaintiff. It cannot, therefore, be Said that they are not acting reasonably, judiciously and with justice, equity, fairness or that they are acting within the parameters of authority conferred upon them under the law. It is not, therefore, necessary to discuss the case law cited by the learned counsel for the plaintiff as there are no two opinions about the law laid down in those cases.
58. The upshot of the above discussion is that the K.P.T. Has not been able to establish from any of the documents available on record that the said plot vested in it by virtue of Schedule A to the Act or, at any time. The plot was in charge of the persons mentioned in part III of Schedule A to the K.P.T.
Act or it was acquired under section 25 or 26 of the Act. Therefore, the plaintiff is not entitled to any of the prayers made in the plaint. The suit is dismissed alongwith the listed application.