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Official Citation: 2024 SHC 1086
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-10-21
Parties: Abdul Hameed Tunio vs The Province of Sindh & others
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-10-21, officially reported as 2024 SHC 1086. In this matter between Abdul Hameed Tunio and The Province of Sindh & others, 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.
Case cited as 2024SHC1086
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar, Amjad Ali Sahito Title: Abdul Hameed Tunio vs The Province of Sindh & others Case No.: C. P. No. D- 6359 of 2023 Date of Judgment:2024-10-21 Reported As: 2024 SHC 1086 Result: Petition Disposed of
Judgment
APPEARANCE Salahuddin Panhwar, J. Through the instant petition the Petitioner has prayed for the following reliefs: "a) To declare that act of the respondents No. 1, 2 & 3 for not issuing the regularization/allotment/NOC of the 10 Acres land from N.C No.1 situated in Deh Mowach, Tappo Gabopat (presently Sub-Division Baldia), Main Road along with RCD High Way, Near Inter City Bus Terminal, Karachi is illegal, unlawful, unwarranted and against the principles of the natural justice and Fundamental Rights of a citizen guaranteed by the Constitution of Islamic Republic of Pakistan-1973 in spite of the fact that the duly verified challan No.498 dated 22.03.2022 issued by the Secretary to Government of Sindh Land Utilization Department amounting to Rs.30 Million has been paid by the brother of the petitioner namely Abdul Ghaffar and his partner (then) namely Muhammad Karim. b) To declare that the "Tappo Gabopat" (presently Sub-Division Baldia) and the "Tappo Lal Bakhar" are two different Tappas of the Deh Mowach, as such, the 10 Acres land from N.C No.1 situated in Deh Mowach, Tappo Gabopat (presently Sub-Division Baldia), Main Road along with RCD High Way, Near Inter City Bus Terminal, Karachi of the brother of the petitioner Abdul Ghaffar and his partner (then) Muhammad Karim is situated in the "Tappo Gabopat" (presently Sub- Division Baldia), whereas the 25 Acres land of the respondent No.11 namely Syed Zulfiqar Rizvi is situated in the "Tappo Lal Bakhar". c) To declare that the act of the respondent No.11 Syed Zulfiqar Rizvi to show and claim his 25 Acres land of "Tappo Lal Bakhar" on the land of 10 Acres of "Tappo Gabopat" (presently Sub-
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Division Baldia) in connivance and collusion of the land department is illegal, unlawful, unwarranted and against the law. d) To direct the respondent No. 1, 2 & 3 to issue the regularization/allotment/NOC of the 10 Acres land from N.C No.1 situated in Deh Mowach, Tappo Gabopat, (presently Sub-Division Baldia), Main Road along with RCD High Way, Near Inter City Bus Terminal, Karachi. e) To direct the respondent No.4, 6 & 7 to depute a focal person to execute the lease along with permission of boundary wall of the 10 Acres land from N.C No.1 situated in Deh Mowach, Tappo Gabopat, (presently Sub-Division Baldia), Main Road along with RCD High Way, Near Inter City Bus Terminal, Karachi. f) To direct the respondent No.4, 6 & 7 (DC, AC & Mukhtiarkar concerned) to produce the Original Map of the District West and District Kamari before this Hon' able Court in order to ascertain the correct position and location of the lands and Tappos i.e. "Tappo Gabopat" (presently Sub- Division Baldia) and the "Tappo Lal Bakhar". g) To direct the respondent No.5, 8 & 9 to give protection to the petitioner and his other family members and restrain the respondents and their sub-ordinates not to take any adverse action against the petitioner. h) To restrain the respondents not to harass the petitioner and his brother Abdul Ghaffar and not to deprive them from their lawful possession of the land in question by any way or technique, physically or documentary. i) Any other relief which this Hon' able Court may deem fit and proper under the circumstances of this case". 2. Precisely relevant facts are that the Petitioner has filed this petition under Article 199 of the Constitution of Pakistan, 1973, where he seeks an allotment order to be issued by respondents No.1, 2 and 3 pertaining to a land situated in Na-Class-I, Tapo Gabopat, Deh Mowach, Karachi, admeasuring 12-00 Acres (hereinafter referred to as the said land). 3. Learned counsel for the petitioner contended, that the brother of the petitioner, namely Abdul Ghaffar, and one Muhammad Bakhsh jointly moved an application to the Chief Minister, Sindh, for the allotment of the said land for 99 years for the residential, commercial, and industrial purposes, which was forwarded to Respondent No. 3, the Senior Member Board of Revenue (BoR), and the Member Land Utilization Department(LU), Board of Revenue (BoR); that in pursuance to the directions of the worthy Chief Minister, Sindh, the Deputy Commissioner, West Karachi, was directed to furnish a detailed report regarding the availability of the land, prepare the sketch and furnish the market price of the said land with specific remarks/comments; the concerned Mukhtiarkar furnished a detailed report on 24.02.2012 of the said land, wherein it was mentioned that a report from the concerned Tapedar was called, who reported that the applicant Mr. Abdul Ghaffar S/o Haji Khan Mohammad pointed out a piece of state land measuring 12 Acres from N. C. 01 of Deh Mowach, within the boundary and along with R.C.D. Highway near Inter-City Bus Terminal, and LRP colony, and under possession of Abdul Ghaffar S/o Haji Khan Muhammad and one Muhammad Karim S/o Abdullah is the claimant; the said land was proposed to Pir Syed Asif Ali Shah and is falling in category "A-1" of the Deh Mowach; that the said report was forwarded with the entire record to the Secretary Land Utilization Department; that on 16th August 2012, a meeting of the high-powered scrutiny committee under the chairmanship of Senior Member BoR was held, and the request for the allotment of the said land in favour of Abdul Ghaffar S/o Haji Khan Mohammad and Muhammad Karim S/o Abdullah was considered, and the earlier recommendations of the committee in favour of Pir Syed Asif Ali Shah S/o Pir Qutub Ali Shah were cancelled/withdrawn; that a summary was moved before the Chief Minister Sindh for approval, which was approved, but despite of that, the challan was not issued by the respondent No. 2 for making the payment of rent/lease money to Abdul Ghaffar and Muhammad Karim; thereafter, both Abdul Ghaffar and
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Muhammad Karim submitted written applications dated 05.02.2018, 06.03.2019 and 16.10.2020, through their attorney to respondent No.2 for the issuance of a relevant challan regarding the payment of said land; thereafter a Civil Suit No. 124 of 2021 was filed before the competent Court and thereafter challan No. 498 dated 22.03.2022, was issued by respondent No.2 amounting to Rs. 30 Million, which was duly paid; though huge amount was paid, but Respondents No. 1 to 4, 6 & 7, have failed to issue regularization/allotment/lease in favor of the above named applicants; the said Abdul Ghaffar, being the lawful co-owner of the said land, gifted his 5-00 acres of land to the petitioner by virtue of an oral Gift Deed dated 22.11.2023; and on 21.11.2023, the petitioner visited the said land and found security guards having been deployed; again on 24.11.2023 the petitioner visited the said land and found that the security guards deployed were inviting the general public for purchasing the plots in shape of cutting of 80, 120 & 1000 Sq. Yds., both residential and commercial; that petitioner had also moved a petition for protection, which was disposed by granting protection to him; as one Syed Zulfiqar Rizvi, the Respondent No. 11 is trying to convert his 25 Acres land of Deh Mowach, Tappo Lal Bakhar into the 10 Acres land from N.C No.1 situated in Deh Mowach, Tappo Gabopat (presently Sub-Division Baldia), Main Road along with RCD Highway, Near Inter City Bus Terminal, Karachi in connivance with official respondents. 4. Notices were issued to the respondents, who put their appearance through their counsel. However, comments have not been filed by the Board of Revenue. 5. Heard and perused the record. 6. It is claimed by the petitioner that the challan issued by the Secretary to Government of Sindh, Land Utilization (LU) Department, amounting to Rs. 30 Million, has been accordingly paid by the brother of the petitioner namely Abdul Ghaffar and his the then partner namely Muhammad Karim but still respondent No. 1, 2 & 3, have failed to issue the regularization/allotment/NOC of the subject 10 Acres land from N.C. No.1 situated in Deh Mowach, Tappo Gabopat, (presently Sub-Division Baldia), Main Road along with RCD High Way, Near Inter City Bus Terminal, Karachi. At this juncture, learned AAG and counsel for BoR have contended that the Government of Sindh has approved the Land Grant Policy 2024, which is in filed, whereby any land for commercial purposes is to be auctioned. However, with regard to the establishment of industry and residential purposes, the prerogative is with the worthy Chief Minister of Sindh and in the present case, the petitioner has sought allotment of land for residential and industrial purposes as well. It is pertinent to mention here, that executives cannot grant lands at their discretion without holding an open auction; thus, the policy with regard to residential purposes has no legal value in the eyes of the law and is in gross violation of the basic fundamental rights guaranteed under the Constitution of 1973. The Government has a mandate to reserve/allot the land in order to provide a better atmosphere only to the persons who are living beyond the poverty line, or under the Sindh Gothabad Scheme, Act 1987, or to establish the public amenities and parks, and while framing policy with regard to Cooperative Societies and the Gothabad Scheme, it has to be ensured that there shall not be any violation in any of the housing schemes, which can be granted free of cost and falls within the scope of welfare. 7. In this context, it is necessary to reproduce herewith the relevant provisions provided in the recently introduced Land Grant Policy 2024, however, it is also important for the purpose of understanding, to reproduce herewith the statement of conditions, as provided in the 2024 Land Grant Policy, which is made effective from 6th February, 2024, through gazette notification, issued in exercise of the powers conferred under sub-section (2) of Section 10 of the Colonization and Disposal of Government Lands Act, 1912, by the Government of Sindh, for grant of land for non- agricultural objectives of amenities, residential, commercial, residential-cum-commercial, industrial, flat site, incremental housing, diplomatic, judicial, large-scale investments, healthcare,
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educational, vocational training, charitable and religious purposes in the public interest the statement of conditions for land grant policy 2024, is as follows:- STATEMENT OF CONDITIONS 1. Objective: In compliance of the orders and the principles enunciated by Hon'ble Supreme Court of Pakistan in Suo-Moto Case No. 16 of 2011 and Hon'ble Sindh High Court in C.P. No. S-878 of 2014 and Suit No. 562 of 2014, the process of allotment of land(s) shall be initiated from wide publication to ensure participation of the public at large along with open auction, as prescribed under this Statement of Conditions, for disposal of land to ensure transparency in process, openness in procedure, and value for money by setting base price on the basis of competitive market prices. These leases shall include grant of land for amenities, residential, commercial, residential-cum-commercial, industrial, flat site, incremental housing, diplomatic, judicial, large- scale investments, healthcare, educational, vocational training, charitable and religious purposes in the public interest on lease up to ninety-nine (99) years in the Province of Sindh. 2. This Statement of Conditions is issued subject to the provisions of the Colonization & Disposal of Government Lands Act, 1912 and the Colonization & Disposal of Government Lands (Sindh) Rules, 2024. 8. From the above statement of conditions, it is clarified that, the land grant can only be made through an open auction and wide advertisement, inviting all interested parties to participate in a healthy and transparent bidding process to fetch the maximum market rates/prices. The 2024 policy provides the complete procedure as detailed in Section-10 of the Land Grant Policy 2024, regarding open auction. The provisions of Section-10 of 2024 policy are also reproduced herewith:- 10. PROCEDURE OF OPEN AUCTION. (1) The auction shall be held after wide publicity and advertisement in at least three leading daily newspapers in English, Urdu and Sindhi languages, to be made not less than thirty (30) days before such auction. (2) The auction shall be conducted by the Auction Committee authorized in this behalf by Government in the presence of independent observers. (3) The intending lessee shall bid in person or through a duly authorized agent. (4) The bidders shall deposit 10% of the base-price in advance as Security Deposit as prescribed. Step 1 - Bidding on Base Price (5) The highest bidder of the first bidding day shall provisionally be recorded and announced in open auction and shall be published on the website within twenty four hours of the proceedings. Step 2 - Competitive process for ensuring maximum Market Rates (6) In case of any person who intends to after a higher price not less than twenty percent of highest bid of the first bidding day in step-1, he shall, in next seven days, present an advance pay- draft in the name of Government Treasury of the value offered as above to the Auction Committee, for consideration in final determination of the auction proceedings. (7) Aner the expiry of seven days, the highest bid received through advance pay-drafts of full value as under sub-condition (6) above, the same shall be communicated to the highest bidder of the first bidding day (step-1) for exercising the first right of refusal, on similar terms including 100% advance payment in the form of pay-draft to be deposited in Government : Treasury, within next three days. Step 3- First Right of Refusal and ensuring Competitive Market Rates (8) Aner expiry of next three days of deadline given to the highest bidder of the first bidding day (cumulatively after ten days in total, after the first bidding day), the Auction Committee shall announce the final successful bidder on the basis of the highest price offered in Step-1 or Step-2 as the case may be, and shall also be published on the website: Provided that in the event that no offer is made during Step-2 process, the highest bidder in Step-1 shall be final and he shall be required to deposit 25% of the bid amount within next three days.
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Step 4 - Ensuring timely Payments. (9) The bidder whose bid is accepted shall pay the balance of the price within next-sixty days of the acceptance of bid; Provided that the Board of Revenue may in suitable cases extend the period for one time only, which shall not in any case exceed ninety days from the date of acceptance of the bid. Step 5 - Ensuring penalties for defaulters. (10) If the bidder fails to make any payment in accordance with this Statement of Conditions, the security deposit shall be forfeited to Government and the land shall be re-auctioned at the risk of the bidder and all liabilities incurred, and losses, if any, sustained by Government by re-of the land shall he recovered from. the bidder as arrears of land revenue. If any bidder defaults in more than one auction he shall be blacklisted from all future auctions. 9. The scheme of the Land Grant Policy 2024 specifically provides for the framing of a mandatory schedule attached to the statement of conditions, and the assessment of market price, which is pivotal while granting state land, and the assessment of market base price is sought through the District Base Price Committee as provided under Section 8 and 9 of the 2024 policy, which are relevant in this context, in order to fetch the maximum highest possible price to benefit the Government in case of a grant of lease:- "8. SCHEDULE. (1) The Collector may identify and recommend the land to be auctioned to the Land Utilization Department, Board of Revenue which shall be placed in the Schedule of the Statement of the Conditions with the approval of Cabinet Committee: Provided that no disposal of land shall take place without the approval of the Government. (2) Except for the prohibited areas and the land reserved for amenity purpose, the Land Utilization Department, Board of Revenue may also include or exclude any land which is reserved for or being used by any department or organization of the Government, on its relinquishment by the concerned department or organization, for the purpose of disposal of land subject to the rules or regulations of master planning, classification and zoning of that area, No-Objection Certificate of such concerned Department or organization of Government and Sindh Environmental Protection Agency and/or regulations of any other relevant regulatory agency already determined under any law. 9. ASSESSMENT. (1) The District Base Price Assessment Committee shall seek the valuation report for determination of the base-price of the land in the Schedule from two valuators listed under the Pakistan Banks' Association considering following evaluation criteria of market price:- (a) Subject to the provisions of the Act, 2/3rd of open competitive market value of similar category private land in the adjoining areas in immediate vicinity of the land under consideration; (b) Change in price of land during last one year and reflecting the same in terms of percentage ratio into market price considered under clause(a) above; (c) Federal Board of Revenue (FBR) Property Valuation rates for such land(s): Provided that such assessment shall be applicable for a period of 365 days from the date of notification of the base-price till finalization of auction proceedings. On expiry of such period before the finalization of auction proceedings, the base-price shall be re-assessed as prescribed under this Statement of Conditions. (2) The Provincial Base Price Assessment Committee shall consider the proposal of the District Base Price Assessment Committee and place the proposal and its recommendations before the Government for approval. (3) The Government may consider the recommendation so received and grant the approval to the base price for open auction." 10. Moreover, it is pertinent to mention here that, the Cooperative Societies Act, 2020 (Act 2020), specifically provides for the uplifting of the people/public, who are living below the poverty line. This
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court, while hearing M.A. No. 69 of 2022, extensively discussed the concept and wisdom behind the very purpose of establishment of cooperative societies, which is meant and primarily focused on the basic and foundational principles guaranteed under the constitutional mandate governing welfare and wellbeing of the people, especially those living below the poverty line. The cooperative movement traces its origins back to Rochdale Principles of 1844, which have since shaped the cooperative societies worldwide. These core principles include voluntary and open membership, democratic member control, economic participation, autonomy and independence, education and training, cooperation among cooperatives, and the concern for the community. The cooperative societies, as envisioned in the previous legislation, i.e. The Cooperative Societies Act, 1925, and the present legislation (promulgated in 2020, the Sindh Cooperative Societies Act, 2020), were not intended solely for housing schemes. Instead, their primary goal was to support agriculture-based societies and to help the uplifting of the economically disadvantageous communities, particularly those involved in agricultural farming, small-scale production, and credit services. This is clearly outlined in the amicus report, which emphasized, that the purpose behind the establishment of cooperative societies was to empower individuals from low-income groups, providing them access to essential resources like credit financing, agricultural inputs, and housing through collective efforts. Actually, cooperative societies were meant to support various sectors, including consumer cooperatives, producer cooperatives, and marketing cooperatives, thereby creating a sustainable and inclusive economic system. The last and the recent promulgation in this regard, is the Sindh Cooperative Societies Act, 2020, which carries forward the essence of the 1925 Act, further reinforces the idea that these societies must focus on thrift, self- help, and mutual aid, primarily benefiting low-income sma ll farmers, laborers, and individuals with common economic needs, rather than catering to limit itself to the affluent housing schemes. In conclusion, cooperative societies are designed to foster economic empowerment, social equity, and community development by pooling resources and efforts for the common good, with a strong focus on marginalized sectors of society. This understanding is vital to ensure that the cooperative societies serve their original purpose for which they were established, and to contribute to the upliftment of economically vulnerable communities. 11. This Court in C. P. No. D-2604 of 2024, has directed the Chief Secretary Sindh to form a High-Level Committee to ensure implementation of Sindh Cooperative Societies Act, 2020, in letter and spirit. Several orders have been passed, with regard to the provision of the original records, pertaining to the allotment and the conversion of the land use, from the cooperative farming society to an industrial utilization, from the Member Board of Revenue, Master Plan Authority and concerned Deputy Commissioner. While dealing with the matter Senior Member of the Board of Revenue (BoR) was called who undertook to establish guidelines governing the conditions for land grants to housing societies in the light of earlier judgment of this Court handed down last year. The Court observed that the overarching goal of the legislation was to improve the quality of life, enhance business practices and introduce superior methods of production for agriculturists, small farmers, laborers and individuals and the same can be achieved by facilitating the formation and operation of Cooperative Societies, which were designed to serve as a means for the collective economic empowerment and social advancement and the authorities concerned were directed to formulate necessary policy in accordance with these guiding principles. Accordingly, it was ordered that there must be a complete policy regarding residential purposes under the Cooperative Societies Act, to be framed by BoR while the Court had also ordered the Chief Secretary in an identical matter to constitute a high-level committee comprising prominent economists, agriculturists, philanthropists, bankers and members from development sector to implement the 2020 Act, and amend the Rules in view of the Court s order to meet the actual objectives and purposes behind the promulgation of the cooperative law. In the said order it was also directed that Secretary
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cooperative society shall submit report with regard to societies established for marginalized communities like scheduled castes/women, as well as whether the province of Sindh has taken any step to establish any economic society in order to uplift the areas falling within different sectors in the province of Sindh. 12. In any event, the Apex Court in the Suo Moto case No. 14 of 2009 vide order dated 11.9.2009 has also observed that "the petitioner obtained the land grants against all the rules, and against the settled conditions of allotment under the law, existing ban and also rules of business", which shows that this was meant to make it clear that 'grants' were /are made by the 'authority' while departing from rules and procedure, therefore, in same order it was further held that no authority has any power to distribute any public property/asset on nominal consideration which land/asset essentially belong to the people of Pakistan. It would be worthwhile to mention, that the exercise of such power at the whims of the Authority is violative of the provisions of Articles 3, 25 and 31 of the Constitution of 1973. It would be conducive to reproduce the relevant paragraph of the judgment, which reads as under: "No one in authority, whosoever high office such person in authority may be holding, has any power, jurisdiction or discretion to distribute any public property or asset and in these cases extremely valuable lands, on nominal consideration, which land or asset essentially belong to the People of Pakistan. It was patently malafide exercise of power. This Court further ordered that the grants of lands to the petitioner specially in the manner, the same was done are prima facie violative of Article 3 (elimination of exploitation) Article 25 (equality clause) and Article 31 of the Constitution of Islamic Republic of Pakistan which requires the State to endeavour to promote observance of Islamic moral standards and Article 38…
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