Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Dr. Syed TARIQ SOHAIL and others VS Respondent: DEFENCE HOUSING AUTHORITY
Court Name: Sindh High Court Judge(s): Anwar Mansoor Khan Title: Dr. Syed TARIQ SOHAIL and others vs DEFENCE HOUSING AUTHORITY Case No.: Civil Miscellaneous Application No,10970 in Suit No,1830 of 1999 Date of Judgment:2001-04-24 Reported As: 2001 YLR 1193 Result: Application allowed
JUDGMENT
JUDGMENT ' This application has been moved by the plaintiff under Order XXXIX, Rules 1 and 2 read with sections 94 and 151, C.P.C. Praying, that the defendants be restrained from acting in pursuance to their letter, dated 3-11-1999 or disturbing or interfering with their peaceful possession or cancelling the lease, dated 6-2-1967. ' The suit has been filed by the plaintiffs that, they are the owners and are in possession of a bungalow situate on Plot No,AA-2/A, (Survey No,26), Sunset Boulevard, Phase-II, Defence Housing Authority, Karachi being a plot of unique location, that it is a single identifiable plot, being an island, surrounded by roads all round. The said plot is bounded by, on the North by 40 feet wide South Park Street, on the South by 129' wide Sunsent Boulevard, on the East by 60' wide South Park Avenue and on the West by 40' wide South Park Street. The plaintiffs are in possession since 13-8-1995 upon purchase, through a registered conveyance deed from Mrs. Suraiya Sultan. It is the case of the plaintiff, that the said plot was allotted to one Col. Sultan Muhammad Khan. Sub-lease in Form "A" was granted to Col. Sultan Muhammad Khan, pursuance to the resolution of 27-9-1963. Upon lease in Form "A" dated 12-3-1963 being granted, the said Col. Sultan Muhammad Khan entered, upon the said plot and being given possession, constructed a bungalow thereon. In the sub-lease in Form "A", the plot was shown to measure 2600 square yards and bounded by the same roads aforestated. Subsequently, the said plot of land with construction thereon was gifted by Col. Sultan Muhammad Khan to his wife Mrs. Suraiyya Sultan which transfer was also granted. Upon the transfer in the name of his wife Mrs. Suraiyya Sultan, after completion of the said house constructed by said Col. Sultan Muhammad Khan, Mrs. Suraiyya Sultan applied to the Military Estate Officer (MEO), Karachi, who acts on behalf of the President of Pakistan, for the purposes of granting a
---
## Page 2
lease, to lease out the aforesaid property in her favour. The President of Pakistan through the Military Estate Office, leased out the said property to said Mrs. Suraiyya Sultan wife of late Col. Sultan Muhammad Khan by an indenture of lease in Form "B", which was duly registered at No,132 at pages 152 to 157, Volume 21 of Book No,1 (additional) with the Registrar "T" Division, Karachi on 21- 2-1968. There is a certificate on the record as stated by the plaintiff, that the building was constructed on Plot No,A-2/A, Sunset Boulevard, Pakistan Defence Housing Society, Karachi and the construction was completed on 31-3-1966 and all offences of erection of building without approval were sanctioned by the Cantonment Board and were duly compounded. ' It is the case of the plaintiff, that the said plot of land being A-2/A has been duly defined in the lease granted by the President of Pakistan in favour of said Mrs. Suraiyya Sultan which, clearly stipulates the fact that the said plot is surrounded on all sides by roads aforementioned. The plaintiff states that they continued to sit in the said premises, initially as tenants since October, 1974 and that, the said property was declared by the said Mrs. Suraiyya Sultan to have been possessed and she was entitled to the said plot of land bearing No,A-2/A, Sunset Boulevard, Defence Housing Society and was represented to be 2600 square yards or thereabout. It was stated that they had in their possession, since then the entire property which, in 1995, the plaintiff purchased by a deed of conveyance and that the same representation was made, that, the said plot of land with all construction thereon with the boundary wall in which they continued to sit since 1974 was being purchased as having been duly leased out to the said seller. The site plan approved by the Defence Housing Society, as it was then clearly showed that the Plot bearing No,A-2/A was bounded by roads all around and has been stated to be 2600 square yards. It has been duly signed by the Secretary and Planning Officer of the Society. The approved site plan has not been denied. According to the plaintiff they had purchased the said plot under a bona fide belief that the entire property that was bounded by the roads with a boundary wall constructed since the time the plaintiff was in possession, was 2600 square yards without any objections raised by any authority or department of any kind against the seller and that there was no notice or objection prior to their being in possession, by the Defence Housing Society/Authority, MEO or the Clifton Cantonment Board at any stage whatsoever. It is the case of the plaintiff, that in accordance with the law they proceeded to have the property duly mutated with the Military Estate Office, Karachi and the Clifton Cantonment Board. The property was mutated in their favour. However, when they proceeded to have their names recorded with the Defence Housing Authority, which they call as mutation, they took a view, that the area in occupation is not 2600 square yards but is 3728 square yards and issued a notice, therefore, directing the plaintiff to vacate 1128 square yards which was, according to them in unlawful possession of the plaintiff. The plaintiff states that on the plot of land the construction is raised in such a way that there is no way without actually destroying some or the other construction that the said 1128 sq. Yds. Could be separated. The belief of the plaintiffs was genuine, that once the construction is being raised, there is inspection by the defendant. After the construction there is an inspection. The boundary wall was in existence, there could be no doubt that the measurement on ground could have been different than what had been stated in the two leases. This is especially when the approved site plan showed only one plot of land which was the one being purchased by the plaintiff. If the measurement made by the defendant was incorrect in 1966, thereafter when the sub-lease was executed, when the lease was executed, it was naturally meant to be given to the original owner, and the purchasers being bona tide purchasers of the plot for value, without notice, the act of the defendant is unlawful. In the letter addressed to the plaintiff, directions were given, that, in the event it is not acted upon by 14th September, 1999, the Authority, the defendant shall take appropriate actions. A legal notice was, therefore, sent by the plaintiff to the defendant stating therein all facts and requiring them to withdraw the notice of 7-8-1999 as they were in possession of the said premises lawffilly and had purchased the same under a bona
---
## Page 3
tide belief that the entire property that was shown in the approved site plan as also the area map of the defendant was in lawful possession of the said Mrs. Surraiya Sultan. ' An additional question, during the course of the argument has arisen also, whether the Pakistan Defence Officers Housing Authority was authorized to require the lessees having entered into a lease with the President of Pakistan, to have their names mutated or recorded with them, or whether such mutation called for by the Defence Housing Authority was unlawful. ' Mr. Nazar' Hussain Dhoon 'has presented his case in a different perspective, that, they are only requiring the plaintiff to return the additional piece of land and that if they do so they shall not proceed to cancel the lease, else all actions shall be taken by them in accordance with law, which could also include cancellation and termination of the lease due to unlawful action and authority of the said plaintiff. ' Before I proceed to look into the position whether an injunction can be granted, it is of utmost necessity, that the powers, or authority of the Defence Housing Authority be looked into. The Pakistan Defence Housing Authority was created as an Authority under Presidential Order 7 of 1980. The said Authority was made to replace the Pakistan Defence Officers Housing Society, which was registered under the Cooperative Societies Act, 1925. The Authority, thus, created was to take over the existing Society alongwith all powers functions, assets including the specified area, meaning the land that was acquired by or leased to the Society before the coming in force of the Presidential Order No,7 of 1980. The said Presidential Order No,7 of 1980 in Article 17 caused the dissolution of the Society alongwith all Executive Committees, Clubs, Foundation together with its Board of Governors. Upon dissolution of the said Society the various assets, contracts, leases etc., pending disputes appeals, legal proceedings transfers, allotments etc. Were, therefore, caused to be vested in the Authority thus 'formed. ' The Authority was to be managed by a Governing Body in accordance with Article 5 of the said Order. In Article 5(2), it is provided that there shall be an Executive Board consisting of the Corps Commander posted at Karachi as its President, a serving Naval Officer not below than a rank of Commodore, a serving Air Force Officer not below than a rank of Air-Commodore, a serving Army Officer not below than a rank of Brigadier, the Administrator and co-opted members to be appointed by the Executive Board for a period not exceeding two years at a time without a right of vote. ' The Executive Board has been granted various powers, authorities and functions, in discharging such functions. The Board is required to act on sound principles of development, Town Planning and Housing and are to be guided on the questions of policy by such directions as are given by the Governing Body. In fact, the Governing Body has powers to delegate their powers to the Executive Committee. Article 9 of the said Presidential Order No,7 of 1980 reads as under:-- 9. "Powers, duties and functions of Executive Board.---(1) Subject to other provision of this Order, the Executive Board may take such measures and exercise such powers as may be necessary for carrying out the purposes of this Order. (2) Without prejudice to the generality of the foregoing powers, the Executive Board may-- (ii) acquire any land in accordance with the law for the time being in force in the Province of Sindh; (ii) undertake any works in pursuance of any scheme or project; ' incur any expenditure; Procure plant, machinery, ' instruments and materials; ' impose and recover, alter, vary or enhance development charges, instalments, cost of apartments, housing units of scheme and projects and transfer fees and other charges; ' enter into and perform all such contracts on behalf of the Authority as it may consider necessary; ' retain, lease, sell, exchange, rent or otherwise dispose of any land vested in the Authority;
---
## Page 4
' cancel any housing unit in a planned housing project or scheme either in default of payment of instalments called, for or on violation of any terms and conditions for such project or scheme by allottees, transferees or lessees; and (ix) do all such acts, deeds and things which may be necessary or expedient for the proper planning and development of the specified area. (3) No master plan, planning or development scheme shall be prepared by any local body or agency for the specified area without prior consultation with, and approval of the Executive Board. 10. Powers of the Executive Board to raise funds. ---The Executive Board may raise funds for the purpose of raising its working capital in such manner as it may think proper, through loans or levy of any charges which may be prescribed by it under the rules." ' The Administrator is the Chief Executive of the Authority as provided in Article 11 of the said Order, which reads as under: "11. Administrator, his duties, functions and powers.- (1) The Administrator shall be the Chief Executive of the Authority and shall exercise all executive powers, delegated or otherwise, in accordance with the policy laid down by the Governing Body and the directions or decisions of the Executive Board subject to the provisions of this Order, the rules and regulations. (2) The Administrator shall, either by himself or through an officer appointed by the Executive Board in this behalf, carry on the correspondence of the Authority and shall sign, verify, pursue and tile all plaints, written-statements, appeals, affidavits, petitions, applications, Vakalatnamas and such other documents on behalf of the Authority in any Court, Tribunal or authority, in the prosecution or defence of any suit, appeal, petition and proceedings which may be instituted by or against the Authority in or before any Court, Tribunal or Authority." ' From the Presidential Order No,7 of 1980. No details as regards the holdings or otherwise of land has been mentioned except, that the words "specific area" has been defined to mean all lands acquired by or leased to the Society in any Manner before the commencement of this order and includes any land that may be acquired by or leased to the Authority after such commencement. The Executive Committee was, however, by the present Presidential Order No,7 of 1980 authorised as under: "(i) Cancel such allotments which were made or issued in contravention of the bye-laws of the Society or the resolution of the Managing Committee of the Society; (ii) alter the area of any plot involving duplicate allotments and re-allot the same in such manner as it may consider appropriate; and (iii) pass such orders in respect of transfer of plots involving duplicate allotments as it may deem fit. 18. Power to cancel allotments, etc.--- (1) The Executive Board may cancel any allotment, transfer, licence or lease in respect of any plot or housing unit in any project or scheme in the specified area if the allottee, transferee, licensee or lessee fails to pay the dues or instalments including development charges in respect of such plot or housing unit, within six months from the date of receipt of the demand in writing or within such extended time as the Executive Board may, in special case, fix and thereupon the plot or the housing unit, with or without construction thereon, shall be resumed by the Authority. (2) When a plot or a housing unit is resumed by the Authority under clause (1), the Authority shall sell it by public auction or otherwise and refund the sale proceeds, after deducing its dues and the expenses incurred on the public auction, to the defaulting allottee transferee, licensee or, as the case may be, lessee." ' In the present case, we need to see how the said Presidential Order 7 of 1980 would be applicable and to what extent. The lease granted by the President of Pakistan through the Military Estate Officer has not been .Denied by the defendants as such it could be read as containing the true and
---
## Page 5
correct facts. It will be important to reproduce certain portion of the admitted lease in Form 'B' which may be crucial for the purposes of determining the rights of the parties. The relevant portions are reproduced as under:- "This lease made the sixth day of February, 1967 between the President of Pakistan (hereinafter referred to as the 'lessor' which expression shall where the context so admits include his successor- in-office and permitted assigns) of the one part and the Pakistan Defence Services Officers Cooperative Housing Society Limited, Karachi, being a Society registered under the Bombay Cooperative Societies Act, 1925 (Bombay Act 7 of 1925) and having its registered office at Karachi (hereinafter called the 'Society' which term shall where the context to admits include his successors, executors, administrators, representatives, and assigns) of the second part. ' And Mst. Surayya Sultan w/o Lt.-Col. Sultan Mehmood (hereinafter called the ' Lessee' which term shall where the context so admits include his heirs, successors, executors, administrators, representatives, and assigns of the third part. ' Whereas by a Deed of Lease dated 31-7-1956 and 19-4-1965 and 19-3-1966 and 3-12-(sic) (hereinafter called the lease executed between the lessor and the Society in the lease described respectively as the lessor and the lessees) the Lessor has granted a lease to the Society to enter upon an area of the land measuring 768.431 acres or thereabout therein described for the purpose of developing it and constructing buildings thereon in the manner and on the t'6rms and conditions therein contained. ' And whereas in pursuance of clause 14(1) of the lease document the Society by a deed, dated 12- 3-1963 (hereinafter called the sub-lease form ' A' granted up to the sub-lease to enter upon a plot of land bearing No,AA-2/A, Sunset Boulevard (Survey No,26) measuring 2600 square yards or thereabout, hereinafter described, for the purpose of constructing a building there in accordance with the terms and conditions contained therein and in the lease which provides that the sub- lessee shall upon the construction of the building and upon payment of certain development charges to the Society be granted a lease by the lessor in respect of the said plot in Form 'B' (annexed to the Lease Deed). ' And whereas the sub-lessee completed the building and complied with the said terms except that not so far paid fully and finally the proportionate development charges because the development or the entire area in respect of which the lease was granted to the Society under the lease is not yet complete. ' And whereas the sub-lessee has made, full payment of premium to the Society @ Re.1.00 per sq. Yard in respect of the plot leased hereunder, receipt whereof the Society hereby acknowledges. ' And whereas, notwithstanding the fact that the full development charges have not been paid by him the sub-lessee has approached the lessor for the grant of a lease of the plot hereinafter described for a period and the lessor has agreed to grant a lease of the same." ' A perusal of the preamble afore-stated will show that a lease was educated between the lessor, namely the President of Pakistan and the Society namely the Pakistan Defence Services Officers Cooperative Housing Society Limited, Karachi (now Pakistan Defence Officers. Housing Authority). The said lessor had by the said lease granted permission to the Society, "to enter upon an area of land measuring 768.431 acres or thereabout for the purposes of developing it and constructing building thereon". ' It is this very land from which the said Plot bearing No,AA-21A Sunset Boulevard was sub-leased by the defendant, the said Society at that time, to the original owners, in Lease Form 'A'. The said sublease in Form 'A' is on record and is also not denied. It is dated 12-3-1963 wherein, the lease was granted by the Society aforementioned of the land that was marked in "RED" in the plan annexed to the lease dated 25-3-1964. The area shown was 2600 sq. Yards. The sublessee namely the husband of seller, Mrs. Surriya Sultan was authorized and permitted to enter upon the said land for
---
## Page 6
the purpose of constructing a building thereon in accordance with the terms and conditions of the said lease. The premium under the said sub-lease was Re.1 per sq. Yard to be paid in eight equal half-yearly instalments. The ground rent was also to be paid at the rate of six paisa per sq. Yard per annum. In addition to the above, the sub-lease of the Society was required to pay all calls which were, the development charges made by the defendant from time to time. It is important to note that the power of the Society/Authority in respect of the plot of land leased in favour of the defendant by the President of Pakistan was to enter upon the plot, develop and construct, which is almost the 'mandate given under lease in Form "A" which is also for the purposes of entering upon and constructing the building on the plot of land. The only right as to the authority was the premium payable, the ground rent and the development charges. There was and is nothing else that was/L payable by the sub-lessee to the Defence Housing Society/Authority, ' Upon comparison of said sub-lease and the lease granted by the President it will be seen that the plot of land allotted to the original owners though was 2600 sq. Yards or thereabout, is the same plot land mentioned in the sub-lessee. Admittedly and as stated in the present lease to the plaintiff, it was granted for construction and upon construction and payment of development charges to the Society, the said plot was to be leased in Form "B". Admittedly, the sub-lessee in Form. "A" had made a full payment of the premium to the Society i.e, at the rate of Re.1 per sq. Yard in respect of the plot leased and the receipt of such amount is admitted. The only amount that remained to be paid was the proportionate amount of development charges as the development had not been made in full. ' The position on ground, therefore, is, that there is a lease in favour of defendants granted by the President of Pakistan, which is in the nature of sub-tease "A granted to the husband of the plaintiff by the defendant. It was this lease by which the Authority had the power to enter upon the plot of land and to develop the same. Upon development or prior to that. And on payment of charges of development, premium and rent, the Defence Housing Society/Authority would itself grant similar lease to the allottee. The important aspect to be noted is that the lease in Form ."A" is executed by Defence Housing Authority and that the extent of the lease is nothing beyond the authority they yield from the lease granted by the President of Pakistan to the Society/Authority. Upon conclusion of construction, payment of the premium, rent and development charges, to the defendant, the said plot of land is thereafter directly leased out by the President of Pakistan in favour of the sub- lease shown in Form "A" or such person to whom the sub-lease may have been-transferred. It is, therefore, evident and clear that the Defence Housing Authority having been paid the amounts due under the agreement with them, and the limited lease granted by the Defence Housing Authority in Form "A" having been replaced by the lease in Form "A" granted by the President of Pakistan, the lessee in the subsequent lease shall not be any more bound by the terms of the lease in Form "A". The plot, therefore, that has been leased out, will be in consequence of a contractual obligation between the President of Pakistan and the lessee. In this case the plaintiff. The leased plot, therefore, is out of the domain of the authority No doubt, development charges could he charged and that also could not be unlimited. At the time of grant of lease, the development had not concluded, naturally, at a specified point in. Time such development would have been concluded and all development charges would have been paid as may have been demanded by the authority. Such is not the question at the present state, but it is only to show that the extent of relationship between the lessee of the plot and the Defence Housing Authority is only to the extent of development charges and none other. ' The question, therefore, comes on to the fact that when the lease was granted in the area measuring 2600 sq. Yards could the plaintiff enjoy the benefit Of additional land. Mr. Nazar Hussain Dhoon has candidly accepted the position that he does not and cannot attack the lease granted
---
## Page 7
by the President of Pakistan, but is only seeking return of the additional land. This fact has to be looked in its entire perspective. ' The question that arose whereby the Letter Nos.DHA/A-1303-Planning DTE dated 17-8-1999 and DA/A-1303/BD, dated 3-11-1999 is that the plaintiff had sought mutation of the said leased plot in accordance with Rule 36 of the Guide Book referred. To by Mr. Nazar Hussain Dhoon. The said rule reads as under:-- "Procedure for Mutation of Names in case of Sale/Conveyance Deeds: ' 36. When a plot with construction thereon is sold through the medium of Sale/Conveyance Deed, photostat copy of the documents is required to be sent to the Authority with a pay Order of Rs,100.00 (or as prescribed) towards Mutation Fee alongwith a photograph of the 'person/persons in whose name the property is required to be mutated. Mutation of name in the Authority's Records will only be made provided all dues against the plot have been cleared." ' According to Mr. Nazar Hussain Dhoon such is also provided in the Regulations. A copy of the Regulations has also been produced in Court. He has referred to Regulation 9 which reads as under:-- ' Regulation No,9. 39. Plots held by person registered with the Authority can be transferred only to persons registered with the Authority in any…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.