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Official Citation: Const. P. 2566/2024 (SHC)
Court / Jurisdiction: Sindh High Court
Parties: Const. P. 2566/2024 (D.B.) Masjid-e-Saheem and Others vs PDOHA and Others Sindh High Court, Karachi
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as Const. P. 2566/2024 (SHC). In this matter between Const. P. 2566/2024 (D.B.) Masjid-e-Saheem and Others and PDOHA and Others Sindh High Court, Karachi, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: CITATION: PARTIES: ORDER DATE: BENCH: A.F.R: ------------------------------------------------------------ IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No. D-2566 of 2024 Present: Mr. Justice Muhammad Iqbal Kalhoro Mr. Justice Muhammad Osman Ali Hadi
[ Masjid-e-Saheem & others V. Pakistan Defence Officers Housing Authority & others]
Date of hearing : 20.02.2025 Date of decision : 11.03.2025 Petitioners : Through Khawaja Shams -ul-Islam, Advocate.
Respondent No.1 : Through M/s. Rehan Kiyani & Adil Channa , Advocates.
Respondent No.3 : Through M /s. Hussain Ali Almani & Akbar Suhail, Advocates.
Official Respondent : Through Mr. Muhammad Qasim Khan, D.A.G.
JUDGMENT
Muhammad Osman Ali Hadi, J: The instant Constitutional Petition has been filed pertaining to grievance of the Petitioners due to their claims of alleged conversion / misuse of Plot No . 38/A ( “Plot-A”) and Plot No. P -38 (“Plot-B”), measuring approx. 2 acres, located at Khayaban -E-Rahat, Phase VI, Defence Housing Authority, Karachi – Pakistan, by the Respondents. The succinct facts are as follow:
2. The Petitioner No. 1 is a Mosque, wh o has filed this Constitutional Petition through its managing committee, along with Petitioners No. 2 – 6 claiming to be regular worshippers at Petitioner No. 1. The Petitioners are alleging collusion was committed by the Respondents, resulting in misuse of the Plots A & B.
3. The Petitioner No. 1 was constructed in the year 1991, on land provided by Respondent No. 1 at Plot -M-38, Khayaban -e-Rahat, Karachi (“Plot-M”), located adjacent to Plots A & B. Respondent No. 1 (which includes Respondents No. 1[a ] + [b]) is the licensor / owner of all the mentioned Plots.
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4. Plot-A is an open parking area, which is located between Plots -B & M. The u sage of Plot-A appears to be the primary source of the Petitioners‟ disgruntlement.
5. Respondent No. 1 was esta blished vide Article 4 of Presidential Order No. 7 of 1980 ( “the Order” ). Under powers conferred vide the Order, Respondent No. 1 issued secondary legislation in the form of the Town Planning Rules of 2014, pursuant to which the DHA Karachi Building Control & Town Planning Regulations 2020 ( “the Regulations” ) were promulgated. The 2020 Regulations govern all property aspects under the ownership and control of Respondent No. 1, which include all the Plots relevant / mentioned in this Judgement. The applic ability of the Regulations remains unopposed by all the parties, and the parties hereto are themselves reliant upon the Regulations.
6. Respondent No.3 is a private limited company which has a license given by Respondent No.1 to lease / use amenity plot f or purposes of a “playground” on Plot-B. Respondent No. 3 are a lso responsible for general maintenance of Plot-A (parking area).
7. Arguments were commenced by learned Counsel for the Petitioners, followed by arguments from learned Counsels for Respondent s No.1 & Respondent No. 3. We have heard arguments of the learned Counsels, which are summarized as under:
8. Learned Counsel for the Petitioner states that Plots A & B have been wrongfully given to Respondent No.3. The basic crux of the Petitioners ‟ arguments is that the Respondents are misusing the Plot, which as per the learned Counsel for the Petitioner was allocated for public amenity, and he states that it is now being used as a commercial enterprise. Learned Counsel has attached various site plans in this regard. In support of his first contention, he has submitted various case laws on which he remains reliant.
9. Learned Counsel for the Petitioner next contended that Plot-A, which is a parking area, has been illegally taken over by Respondent No.3 , and states that it is being used as a storage space and is covered with garbage boxes, benches, man-hole covers etc. He contends that this is causing hindrance for people coming to Petitioner No. 1 for prayers.
10. Counsel for the Petitioner next submitted that Respondent No.3 was given a contract for license of Plot-B, without participating in an open auction,
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in connivance with Respondent No.1. He s tated this to be contrary to the Public Procurement Regulatory Authority Rules ( “PPRA”). Learned Counsel submitted that Petitioner No. 1 approached the Executive Director of Respondent No.1 regarding their concerns, and sought a copy of the agreement between Respondent No.1 and Respondent No.3 , but the same was not supplied to them . He further stated that the parking area (i.e. Plot-A) was to be used by them (i.e. the Petitioners), and this was being disrupted as Respondent No. 1 had given the Plots to Respondent No. 3 . Learned Counsel next contended that Respondent No.3 was incorporated post being awarded a contract, and as per Counsel for the Petitioner s, the same is not permissible.
11. Lastly, the Counsel for the Petitioners concluded his arguments by stating that Respondent No.1 does not have the authority to give out Plot (s) - A & B.
12. In support of his contentions the learned Counsel referred to various documents attached with the Memo of Petition, such as a Commissioner Report dated 05.06.2024 (at Page No.29 Part-II of the File), Site Plan (at Page No.77 Part -II of the File), Pictures (at Page No.1 67-205 Part -I of the File), Statement submitted by the Petitioner dated 31.12.2024 (at Page No.849 of the File) , the License Agreement between Respondent No.1 & Respondent No.3 (at Page Nos.161 -175 of the File) . Learned Counsel further referred to Page No.159 of the File which shows an Expression of Interest (EOI) dated 10.11.2022, which he submits responses / bids were to be received by 25.11.2022, but states that the Respondent No.3 was not compliant within this timeframe.
13. Learned Counsel then relied upon the 202 0 Regulations, particularly under Clauses 1.4.1, 2.75, 6.9.6, 6.12 . He lastly cited Sections 109, 110, 111 & 112 of the Cantonment Act, 1924. He submitted several caselaw in support of his contentions. 1 In conclusion , learned Counsel submitted that for reasons furnished by him, this Petition should be allowed.
14. Next, learned Counsel for Respondent No.1 addressed the Court. He referred to his Para-wise Reply to the Petition, whereby he submitted that all Regulations and proce ss have been duly followed, and that being the lawful owners, there remains no bar for Respondent No.1 to have given Plot -B
1 2022 SCMR 171 + 152; 2022 SCMR 2080; 1999 SCMR 2883; 1997 MLD 299; 1995 SCMR 1584; 1990 MLD 965; 1998 SCMR 392; 2020 SCMR 1474 + 513 + 121; 2010 SCMR 885; 2012 SCMR 6; PLD 2016 SC 808; 2009 CLC 1199.
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under the License Agreement to the Respondent No.3. He further contended that Plot-B always was and still remains an amenity plot. He submitted previously in the year 2009 , it was licensed (through transparent process) to a private concern, namely Mr. Malik Muhammad Rafiq of Zamzama United Football Club (“MMR”) for setting up a recreational area, for football and other sporting activities. A football playing / training and sporting ground / facility was established and being run on Plot -A, until around the year 2021 . In the year 2021, he submits MMR was evicted for non -payment of license fees and other dues . Learned Counsel contended that MMR then filed a Suit (1663/2021) before the Hon‟ble High Court of Sindh (Annexure-D of the PW Reply), from which High Court Appe al No. 382/2022 ensued and remains pending. Counsel submits that throughout previous usage of the Plots by MMR, the current Petitioners never had any objections to MMR operating a football and sporting facility on Plot -B, in the same manner currently being done by Respondent No. 3 . Counsel then stated that Plot -B has always been utilized for sports activity under management o f private persons, against which the Petitioner has never previously complained , and hence doing so at this stage by the Petitioner is for mala fide purposes.
15. Learned Counsel lastly submitted that the said Plot -B has not been converted from an “Ameni ty Plot” and still remains under definition of “Playground”, for which he also referred to 2020 Regulations.
16. Lastly, learned Counsel for Respondent No.3 appeared in the matter and furnished his submissions. He vehemently controverted the assertions put forth by the Petitioner. His first line of argument was that the Petitioners have no locus standi to file the instant Petition. He submitted that Petitioner No.1 is n either a legal, nor a registered entity, and therefore cannot approach the Court under article 199 of the Constitution . He further submit ted that Petitioners No. 2 to 6 have not provided any evidence of residence near the Playground, and they do not fall under the definition of „aggrieved persons‟, which is sine qua non for invoking the Constitutional Jurisdiction of this Court.
17. Learned Counsel next contended this Petition was also barred under the doctrine of laches. He submitted that the Petitioners themselves have attached a license agreement between Respondent No.1 and MMR (the previous licensee) dated 22.07.2015 (at Page No.57 Annexure P/4 of the Petition), yet the Petitioners never came forth with any complaints nor did they partake in the legal proceedings concerning MMR (the previous licensee), and therefore this Petition has come at a belated stage and suffers from laches.
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Counsel extended his arguments by stating the instant Petition against the current Licensee i.e. Respondent No.3 , is being conducted purely for personal mala fide purposes. Learned Counsel next contend ed that “P layground” has been defined under Regulations 2.78.2 of the 2020 Regulations which includes all structure s for sporting activities and sport s clubs. He submitted that the Counsel for the Petitioners wrongly asserted there has been conversion on Plot-B, for which the Petitioners have not provided a ny basis. Counsel for Respondent No. 3 strongly stated there has been no conversion or misuse of the amenity Plot-B by the m. He distinguished the case law cited by the Counsel for the Petitioners by submitting th at those cases pertain to purely conversion and misuse of amenity plot s, whereas in the instant matter regarding Plots -A & B there has been no such conversion or misuse. He contends that none of the case law cited by the Petitioners is relevant to the current matter.
18. Learned Counsel next state d th at Plot -A is a parking area which has not been licensed to the said Respondent No.3, nor has Respondent No.3 ever claimed over the same. He submits that Respondent No.3 has simply been tasked with maintenance and general cleanliness of the parking area (i.e. Plot-A), and submits the parking area is open for any /all persons to park their vehicles, whether they are visiting the Masjid at Plot-M or going to Plot-B (i.e. the Playground).
19. Counsel for Respondent No. 3 then addressed the arguments put forth by the Petitioners, pertaining to lack of tender and PPRA Rules not being followed (supra.). He refuted the same by stating that Respondent No.3 was awarded the License pursuant to a public Expression of Inte rest issued by Respondent No.1 for Plot-B dated 10.02.2022 (Annexure-A at Page 159, Part- II of the File), after the previous private licensee had defaulted and Respondent No.1 ha d repossessed Plot-B. He stated there were 9 bids put forward of which Respond ent No. 3 was found to be the most suitable, and were hence awarded the License. Counsel also submitted that they are a private limited company under the name of “Cedar (Pvt.) Ltd.”, and after being awarded the contract they fo rmed special purpose vehicle (with consent of Respondent No. 1) which was mentioned as “Cedar (Pvt.) Ltd. (Optimum Sports Pvt. Ltd.)” . Learned Counsel concluded by summing up his (afore- stated) arguments and submitted that the Petitioners have not provided a single piece of legal substantiation in support of their allegations, nor have they approached this Court with clean hands. He submitted that the Petitioner No.1 Mosque was given by Respondent No.1, who still remains owner of the
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entire Property (which includes Plots A & B, as wel l as Plot -M-38). He submitted that the Petitioners have been unable to show any basis or justification for their attempts in trying to take over Plot-A, and are attempting to seize control of Plot -A land, despite not having any legal backing to do so . He reiterated the Respondent No. 3 is only using Plot-B for amenity purposes, and the establishment / operation of football and recreational facilities is positive for society, and in accordance with law. He lastly asserted that Respondent No. 3‟s rights on th e Plot-B / Playground are additionally legally secure under the Easements Act, 1882, for which he placed reliance on section 52. He submitted caselaw in support of all his above contentions. 2
20. We have heard the detailed and exhaustive arguments of the learned Counsels, and have deeply examined the Petition and all documents, as well as the plethora of caselaw referred, after which we opine as follows:
21. The first legal point we address is the maintainability of the instant Petition. The persons approaching this Court on behalf of Petitioner No.1 are admittedly not a registered or legal entity, so the question remains, can they be considered as a „juristic entity‟ in the eyes of the law ? It is a settled proposition that any person approaching a Hig h Court under Article 199 of the Constitution of Pakistan 1973, must be an “aggrieved person” (with the exception of seeking a writ of habeas corpus or quo warranto, both of which are irrelevant for the present purposes) . That a perusal of the Petition (specifically letter dated 12.02.2009 at Page No.45 of the File) shows that it is Respondent No.1 who has given management of Petitioner No.1 to some persons to form a managing committee, to look after and maintain Petitioner No. 1 Masjid. Even letter dated 0 2.11.2022 issued by the said managing committee to Respondent No.1 (Page No.27 of the File) shows that the managing committee still appear to report their details and accounts to Respondent No.1. There also remains no dispute that Plot-M is owned by Respondent No. 1. The Petitioners appear, at best, to look after general upkeep and maintenance of Plot-M, operating with the permission and under the authority of Respondent No. 1.
22. After listening to the arguments put forth, and upon a careful perusal of the Petition File, it is abundantly clear that the said managing committee does not hold any legal status and are not registered persons. Even this Court raised the question of maintainability of the Petition on 12.12.2024 , which
2 PLD 2022 Sindh 282; 2018 PLC (CS) 1063; 2011 CLC 368; 2011 PLC 336; 201 PLC 306; 2013 PTD 1582; PLD 164 Lahore 138 ; PLD 2024 SC 235; 2023 SCMR 1442; 2021 CLC 1564; 2016 PLC(CS) 728; 2014 SCMR 1573; 2012 SCMR 280 & 2008 CLC 606; PLD 2020 Isl. 199; PLD 2017 Isl. 115; 2014 CLC 174; 2007 CLC 1398; 2007 MLD 423; 2005 CLC 939; 2002 MLD 1847; 1989 CLC 773.
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remained unaddressed by counsel for the Petitioners. We find that Petitioner No. 1 ‟s managing committee are working under the authorisation of Respondent No. 1, and the Petitioner No. 1 on their own volition, could not invoke the Constitutional Jurisdiction of this Court.
23. In so far as Petitioners No. 2-6 are concerned, there also appear s nothing on record to show their locus standi as aggrieved persons in the said matter. A bare perusal of the Title Page of the Petition illustrates that Petitioners No.4, 5 & 6 are not even residents of Khayaban -e-Rahat, which is the area in which Plots are located.
24. We refer to a similar placed matter of the Anjuman Araian case3 which discussed the matter of dismissal of a writ petition filed by an individual on behalf of Anjuman-i-Araian. The learned Division Bench held they did not have locus standi and were not an aggrieved person, and therefore could not invoke the constitutional jurisdiction of the Court. The relevant paras are reproduced hereunder:
“9. The appellant has failed t o establish any legal right. Doubtless, it has no right in the juristic sense. It has also not been able to show that the sale has resulted "in the loss of some personal benefit" to it. Reliance was placed by the learned counsel on Fazal Din v. Lahore Impr ovement Trurt and Montgomery Flour & General Mills Ltd. v. Director, Food Purchases (P L D 1957 Lab. 914). These authorities are of no avail to him for the reason that by the impugned sale the Anjuman has not suffered any legal wrong, nor have its interests been in any way affected. Even if the sale had not been made in favour of the respondent, the appellant was not entitled to the transfer of the property, nor had the Anjuman a right to lawfully remain in its possession. The Anjuman, in the circumstance, cannot challenge transfer in favour of the respondent. In Imdad Ali Malik v. The Settlement Commissioner etc. (Civil Petition for Special Leave to Appeal No. 172 of 1964) it was held by the Supreme Court: "We declined to hear Mr. Muhammad Bakhsh Meer, who appeared for the petitioner, when he attempted to argue that the house could not, in law, go to the informer. It is clear that the petitioner has no vested right in house, and that he has other wise no locus standi, in these proceedings, to question the di sposal of the house by the Settlement Authorities." In Sardar Muhammad v. Pakistan (1970 Law Notes Lab. 736) the petitioners had constructed the shop over the property and on a notice of ejectment served by the Municipal Committee they challenged the order in writ petition wherein it was held that the petitioners had no right or title to remain on the property and therefore, cannot act in a manner so as to perpetuate unlawful possession. In Masitullah v. Chief Settlement Commissioner (P L D 1965 Lab. 672) it was observed by Anwarul Haq, J. (as he then was, and now the Chief Justice) that
3 PLD 1973 Lahore 500
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"according to the provisions of the Act itself, the appellant before us is not entitled to claim the property in dispute under the earmarking scheme. In these circumstances it can hardly be urged that he has a vested right in this property. It has been repeatedly held by this Court as well as by the Supreme Court that if a petitioner has no locus stand i in the matter, the Court is under no obligation, at his instance, to exam ine the entitlement of the respondent." It was further observed: "For the reason given above we are of the view that the appellant Masitullah has no locus standi in the matter of the transfer of the house in dispute. Therefore, it is not necessary for us to examine whether the house has been rightly transferred to the respondent, Major Bashir Ahmad. The result is that the appeal fails and is hereby dismissed." In Zebun Nisa Kureshy v. Chief Settlement and Rehabilitation Commissioner (P L D 1962 Pesh. 186) it was observed: "Before concluding we may mention that Mr. Zafar expressed his intention of bringing what he considers to be the illegal allotment and transfer of the property in dispute in favour of respondent No. 2 to the notice of Enforcement Staff. Th is, however, is no reason why we should help him by giving a finding as to the status of respondent No. 2 when such a finding is unnecessary in deciding the fate of the present petition."
“…….. In Haji Adam v. Settlement and Rehabilitation Commissioner (P L D 1968 Kar. 245) it was held: "Now in the light of these authorities let us examine whether the appellant who was the petitioner in the Court below can be said to be aggrieved party within the meaning of Article 98 of the Constitution. It has already be en noted that he had never applied for the transfer of the shop. He could not have done so being a local. He had not even moved for the sale of the shop by auction because he had given a no objection with regard to the transfer of it In favour of Mukhtarun nisa. That, however, might not by itself be very material. It may further be noted that he was not a party to any of the proceedings with regard to the transfer of the shop by the Settlement authorities. It was only when he was asked to pay rent after the final transfer order to Bahauddin that he moved this Court under Article 98. The sole ground on which he claimed to be an aggrieved party was that if the property was put to public auction he would be able to bid at it. But as observed by the Supreme Court that right is shared by every other citizen of this country. Can it be said that every such person who might have been able to bid if an auction had been held would have a vested right in the matter of the transfer of such a property, and if it was transf erred otherwise than by auction be could claim to have suffered injury and say that he was directly aggrieved. In other words, can it be said that he was legally aggrieved. The answer to that question in our opinion, must be in the negative." In Abdul Hami d v. Settlement and Rehabilitation Commissioner (1971 S C M R 711) it was held: "The mere desire to bid for a property at an auction does not carry a vested right to bring such property to auction." In Doaba Goods Forwarding Agency Ltd. v. Province of Punj ab (1971 S C M R 527) it was held: "the High Court's function under Article 98 of the Constitution of 1962 is not pronounced upon the validity of laws or Notifications, etc., as merely an academic exercise but it is only where a person is aggrieved, that i s to say, adversely affected by such a law that he may invoke the jurisdiction of the High Court and then the High Court would in a concrete case deal with the legal position." In Abdul Qayyum v. Chief Settlement Commissioner (P L D 1968 S C 362) it was he ld: "Another aspect of the case is that Kirpa Ram building having been declared a
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big mansion neither appellant had entitlement to its transfer. This affected their locus standi to challenge the transfer In favour of respondent No. 2" and that "as to the l ocus standi of Ch. Abdul Qayyum 1t has been earlier brought out that he did not file any settlement form for the transfer of the Kirpa Ram building. He had, therefore, no right to challenge the transfer in favour of the respondent No. 2." In Ghulam Mohy -ud-Din v. Government of Pakistan (1971 S C M R 747) it was observed that the appellant "has no entitle ment to the disputed shop and…
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