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Petitioner: SHEHARYAR WAQAS MALIK and another VS Respondent: PROVINCE OF SINDH through JUDGMENT
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman, Syed Hassan Azhar Rizvi Title:SHEHARYAR WAQAS MALIK and another vs PROVINCE OF SINDH through
JUDGMENT
Reported As: 2019 YLR 2623 Result: Order accordingly Judgment JUDGMENT AZIZ-UR-REHMAN, J. By means of this 'common judgment', we intend to dispose of the Constitutional Petition No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others] and Constitutional Petition No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others] whereby, the Petitioners therein, have approached this Court for redressal of their grievances. he prayers sought by the Petitioners are reproduced at 'A' and 'B' respectively, as under:- A.C.P. No.D-4560 of 2017: (a) declare that since the Respondent No.8 did not reject the proposed plan submitted by the Petitioners within 60 days, the presumption, in law is that the proposed plan is deemed to have been approved by the Respondent No.8 and hence the Respondent No.8 is estopped in law by its own conduct and silence to raise any objection whatsoever at a subsequent stage; (b) declare that since all the actions of Respondents Nos. 3, 4, 6, 8, 10 and 12 in collusion with each other and at the instigation of the Respondents Nos. 13 and 14 are without any notice in writing, the same being against the principle of natural justice, are ab initio illegal, unlawful, mala fide, ultra vires, unconstitutional, without jurisdiction, null and void having no legal effect whatsoever; (bb) declare that the Impugned Order dated 21-2-2017 passed by the Additional Deputy Commissioner-II, and all orders and actions predicated there upon are mala fide, without jurisdiction and without lawful authority; and to direct the Respondents to restore possession of the Subject Property to the Petitioner; (c) declare that neither Respondent No.12 nor any other Respondent nor any government officer had/has any authority nor any government officer had/has any authority to dispossess the Petitioners or any person claiming through or under theist: from the said plot without due process of law. Accordingly, this act of dispossession is
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not only illegal, unlawful, unconstitutional, ultra vires, mala fide and without jurisdiction but also violation of order dated 5.6.2017 of this Hon'ble Court passed in C.P. No. D-3898 of 2017; (d) restrain the Respondents Nos. 11 and 12, their officers, agents, employees, servants, factors and all persons claiming through or under them for harassing and taking any coercive measures against the Petitioners and their employees in any manners whatsoever; (e) restrain the Respondents Nos. 13 and 14, their agents, servants, factors and all persons claiming through or under them from handing over possession of the said plot to any third party and from doing any activity upon the said plot in any manners whatsoever; (f) costs of the petition; and any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case." B. C.P. No.D-3898 of 2017: i) That, this Honourable Court may be pleased to declare that the subject land viz: measuring 1890 sq. yards., Survey No.596, Deh: Gujro, Tapo: Soongal, Gulshan-e-lqbal Town, Karachi, was restored and repossessed by the petitioner by the orders of Honourable High Court. ii) That, this Honourable Court may be pleased to declare that in existence of orders of Honourable High Court in C.P. No.D-280/ 1997, respondents Nos. 2 to 6 and 9, have no authority to initiate any proceedings in respect of the subject property. iii) That, this Honourable Court may be pleased to declare that any action by respondents Nos. 7 and 10, on directions of respondents Nos. 3 to 6 and 9, shall be illegal, unlawful and ab-initio. iv) That, this Honourable Court may be pleased to direct the respondent Nos. 3 to 6 and 9, not to entertain any proceedings by the respondent No.8, in respect of the subject property. as such the same would amount in violation to the orders of Honourable High Court in C.P. No.D-280/1997. v) That, this Honourable Court may be pleased to declare that as per the record provided in this petition and any comments whatsoever filed by the respondent No.2, the survey No.553, Deh Gujro, Tapo: Soongal, Gulshan-e- Iqbal, was acquired by the respondent No.2, in 1968 and the same is passed and closed transaction and the respondent No.8, has no locus standi to make any reclaim of the said survey No.. or to disturb the survey No.596, which is owned by the petitioner after due process of law on the directions of Honourable High Court in C.P. No.280/1997 vide order dated 15.10.1998. vi) That, this Honourable Court may be pleased to restrain the respondent No.7 to take any coercive action at the subject property without due course of law. vii) That, this Honourable Court may be pleased to restrain the respondent No. 10, his subordinates, senior officials or any person acting on their behalf not to dispossess the petitioner from the subject property viz. measuring 1890 sq. yds.; Survey No. 596, Deh: Gujro, Tapo: Soongal, Gulshan-e-Iqbal Town, Karachi, as such the same would amount to gross violation of the orders of Honourable High Court passed in C.P. No.280/1997. viii) Any other relief, which this Honourable Court may deem fit and proper be awarded". A. BRIEF FACTS OF C.P. No.D-4560 of 2017: 1. Brief facts giving rise to the filing of C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others] are that; the Respondent No.15, viz. Tariq Ahmed Khan Lodhi son of Abdul Ghani Khan, as averred, in the Memo of Petitioner [In short MoP], purchased certain land measuring 2-11 acres out of Survey No.596, part of Old Survey No.160, situated at Deh Gujro, Tapo Songal, Gulshan-e-Iqbal Town, Karachi by Sale Deed dated 19.11.1979, having registered No.7091, at pages 69 to 67 of Book No.1751 which have been duly signed and executed by the 'vendors' and 'vendee' therein, before the Sub- Registrar 'T' division-IV, Karachi [Annexure 'PR' to the MoP]. The land involved in C.P. No.D-4560 of 2017 and which is subject matter of Memoranda and Sale Agreements including the Supplementary Agreement of Sale [Annexure 'P/9' to the MoP of C.P. No.D-4560 of 2017] is land bearing Survey No.596, measuring 1890 sq. yards, situated at Deh Gujro, Block-7, Main University Road, KDA Scheme No.24, Gulshan-e-Iqbal Town, Karachi [hereinafter referred to as the 'subject property']
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2. Later-on, a' Memorandum of Understanding [In short MoU] dated 26.7.2016, was executed between the Respondent No.15 [Tariq Ahmed Khan Lodhi son of Abdul Ghani Khan-Owner], Respondent No.16 [Syed Adeeb Ahmed son of Syed Muhammad Ahmed-Investor], and the two Petitioners namely [1] Sheharyar Waqas Malik son of Waqas Malik and [2]. Salam Masood son of Haji Masood Hussain. In the 'MoU' of 26.07.2016, the parties thereto have been referred to as FIRST Party, SECOND Party and the THIRD Party respectively. As per Memorandum of Understanding the parties thereto as stated, have duly agreed upon the 'terms' and 'conditions' stipulated therein. In implementation of the said 'MoU', the Respondent No.15 [Owner] thereafter, entered into an Agreement of Sale dated 1.8.2016 [Annexure P/3 to the MoP], with the Respondent No.16 [Investor], in respect of the 'subject property'. Respondent No.16, thereafter, has also entered into Agreements of Sale dated 11.8.2016 and 6.9.2016 with the Petitioners in C.P. No.D-4560 of 2617. [Annexures 'P/4' and 'P/5' respectively to the MoP]. 3. The Petitioners, in the meanwhile, submitted a 'proposed building plan' in respect of the 'subject property' through the Respondent No.15 [Owner], to the Respondent No.8 viz. Sindh Building Control Authority, through its' Director General, Civic Centre, Karachi [In short SBCA], for construction of Air Raid Shelter (ARS), ground floor, fifteen upper floors and roof plan. Respondent No.8, upon proper 'verification' of all the requisite documents and 'proposed building plan', issued Challan dated 19.9.2016 of Rs.33,23,530/- for payment [Annexure 'P/7' to the MoP], which was duly paid by the Petitioners on 30.9.2016. Upon payment of the said Challan, the Respondent No.8, thereafter issued a letter dated 4.10.2016. [Annexure 'P/8' to the MoP]. Needless to say, Respondent No.8 [SBCA], as per assertions made in the MoP, under law, was/is bound to either approve the 'proposed building plan' or reject the same within a period of 60 days. In case of silence, the 'proposed building plan' as urged by the Petitioners in the Memo of Petition, otherwise, was to be presumed and deemed, as having been duly approved by Respondent No.8 [SBCA]. The Petitioners in view of this legal position, not only constructed a boundary wall, 'site office' on the 'subject property' but also launched their project namely 'Gold Ark Residency', upon the 'subject property'. Besides, the Petitioners simultaneously, also started its' publicity and booking of the said 'subject project'. Later-on, by mutual consent, a 'Supplementary Agreement of Sale' [Annexure 'P/9' to the Moll was also executed on 2-6.2.2017 between the Respondent 15 [Owner-Vendor], Respondent No.16 [Investor-the Vendee No.1] and the Petitioners [The Vendees No.2] in C.P. No.4560 of 2017 viz-a-viz the 'subject property'. 4. Respondent No.8, in collusion with the Respondents Nos. 3, 4, 6, 10, 12, 13 and 14, sometime, in the month of May, 2017, opted not only to demolish the boundary wall but also the 'site office' of the Petitioners', already raised/ constructed, and that too without any 'show cause notice'. Such act of 'demolish' on the part of Respondents Nos. 3, 4, 6, 10, 12, 13 and 14, as urged by the Petitioners besides, being illegal, unlawful, is mala fide and un-constitutional, thus the same act is liable to be declared as null and void, otherwise, the Petitioners in C.P. No.D-4560 of 2017, shall be seriously prejudiced. The Respondent No.15 [owner-vendor], thus feeling himself 'aggrieved' and 'dissatisfied' inter alia with such act of demolition on the part of the Respondents Nos. 6, 10, 12, 13 and 14, filed Constitutional Petition No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others], before this Court. 5. As per assertions made in the MoP, all of sudden in the month of July 2017, the Respondent No.12-SHO along with his staff, at the instigation of Respondent No. 13 [Muhammad Abdul Salam son of [late] Abdul Rasheed Khan] and Respondent No.14 [Syed Rehan Hussain Rizvi son of Syed Ali Husnain Rizvi], visited the site and arrested three [3] employees of the Petitioners and also took away container, two motorbikes, cell phones, wallets, vehicles (VIGO), Repeater Gun, bullets etc. and handed over the possession of the 'subject property' to the Respondents Nos.13 and 14. The Petitioners herein, also came to know that FIR No.292/2017 under Section 448/34, P.P.C., has been lodged on 07.05.2017, by the Respondents Nos. 13 and 14, at Police Station Gulshan-e-Iqbal against the Petitioners and their employees. Thereupon, the Petitioners herein and one Azman Siddiqui [alleged accused], moved an application for bail before arrest of the Petitioners and said Azman Siddiqui, before the learned District and Sessions Judge, Karachi-East, i.e. Criminal Bail Before Arrest
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Application No.1501 of 2017, which was granted by Order dated 03.7.2017. The said order dated 03.07.2017 [Annexure 'P/19' to the MoP], is reproduced here-in-below:-. "IN THE COURT OF SESSIONS JUDGE KARACHI EAST BEFORE: MR. ABDULLAH CHANNAH Bail Application No.1501/2017 1. Salman Masood son of Haji Masood Hussain 2. Azam Siddiqui son of Haji Masood Hussain 3. Shaharyar Waqas Malik son of Waqas Malik ....Applicants/Accused Versus The State. Respondent. FIR No.292/2017 under section 448/34, P.P.C.P.S. Gulshan-e-lqbal. 03.07.2017 ORDER Applicants/accused above named are present along with their counsel to seek their pre-arrest bail in case arising out of FIR No.292/2017, registered at Police Station, Gulshan-e-Iqbal, Karachi East. I have heard Mr. S.M. Rahat, the leaned counsel for the applicant/ accused and perused the record. The learned counsel for the applicant/accused pressed the instant application on the ground of malice, ulterior motive as well as falsification of the facts as narrated in the FIR. Besides this offence for which the applicant/ accused charged with does not come within the ambit of prohibitory clause of section 497(1), Cr. P. C. In the existing circumstances without touching the merits of the case applicants/accused are admitted on ad- interim pre-arrest bail subject to furnishing surety in the sum of Rs.20,000/- each and P.R. bond in the like amount. Issue notice to D.P.P. Call for the police papers, The Applicants are directed to join the investigation. Put-off to 10.07.2016 for confirmation or otherwise. Pronounced in open court, this the 3rd day of July, 2017. Sd/- 03.07.2017 (ABDULLAH CHANNAH) SESSIONS JUDGE KARACHI EAST" 6. Per Petitioners' version all the actions of Respondents Nos. 3, 4, 6, 8, 10 and 12, since, have been taken in collusion with each other. and apparently, at the instigation of the Respondents Nos.13 and 14, and that too without 'any notice', as such, all the said actions are not only against the 'principle of natural justice', but also void ab-initio, illegal, ultra-vires, and un-constitutional inter alia on the touchstone of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. In view of this position, the said acts of Respondents Nos. 3, 4, 6, 8, 10 and 12, as urged, are not only null and void but the same are also of no legal effect whatsoever. According to Petitioners' stand, neither Respondent No. 12, nor any of the other Respondents nor any government officials had/have any authority to 'dis-possess' the Petitioners or any other person claiming through or under them from the 'subject property' without following 'due process' of law and affording a 'fair' opportunity of being heard. Indeed, the act of dis-possession taken against the Petitioners by Respondents Nos. 3, 4, 6, 8, 10 and 12, is not only illegal, unlawful but also without jurisdiction. Besides, the same act of 'dis- possession' is also in violation of order dated 5.6.2017, passed in C.P. No.D-3898 of 2017. [Tariq Ahmed Khan v. Province of Sindh and 9 others]. Needless to say, in C.P. No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], this Court on 11.7.2017, while, issuing notice to the Respondents and learned A.A.G. for 14.7.2017, till then, parties were directed to maintain status-quo. Order dated 11.7.2017, passed in C.P. No.D-4560 of 2017, is reproduced herein-below:-
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"11.07.2017 Ms. Sarwat Israr, Advocate for petitioner. 1. Urgency granted 2. Exemption granted subject to all just exceptions. 2&4. Notice to the respondents also learned AAG for 14.7.2017. Respondent No.12 SHO Police Station Gulshan-e-Iqbal be present in person as also Respondents Nos. 13 and 14. Till the next date status-quo must be maintained by all the parties in respect of the subject property. On the next date file of C.P. No.D-3898 of 2017 be put up along with this matter. [Underlining is ours]. 7. In Revenue Case No.4/2016, filed by Respondent No.13 [Abdul Salam Khan son of [late] Khalid Rasheed Khan v. The Director KDA and another], under section 164 of the Land Revenue Act, 1967, it was the case of Respondent No.13, before the Commissioner Karachi Division, Karachi, that the 'subject property' in fact is/was Survey No.553 and belonged to him. The prayer sought in Revenue Case No.4/2016, was for a 'rectification' in the 'lay-out plan' by substituting Survey No.596 with Survey No.553. In the said case, KDA, on the other hand demonstrated that Survey No.553, being claimed by the Respondent No.13, had long ago been acquired under the Land Acquisition Act. The learned Commissioner, nonetheless, upon hearing and perusal of the record, finally dismissed Revenue Case No.4/2016 vide order dated 14-2-2017 [Annexure 'P/20' to the Mon] Being relevant, order dated 14.2.2017, is re-produced here-in-below:-- "IN THE REVENUE COURT OF COMMISSIONER KARACHI DIVISION KARACHI Case No. 04/2016 1. Muhammad Abdul Salam Khan son of Abdul Rasheed Khan (late). R/o.H.No.99/E, Block-II, PECHS, Karachi..........Applicant versus 1.The Director Land KDA. 2.The Additional land Acquisition Cell KDA .............Respondents ORDER 1. Applicant Muhammad Abdul Salam 2. The Survey Superintendent Karachi along with record 3. Additional Director Land Acquisition cell KDA Present along with record. 4. Mukhtiarkar Gulshan-e-lqbal, Karachi East, along with Relevant Revenue Record. The Deputy Commissioner, Karachi East, vide his letter No. DC/ K/E/ Rev. Br/3142/2016 dated 21-11-2016, reported that Kar S.No.553 (2-10 Acres) of Deh Gujro is owned by Muhammad Abdul Salam vide entry Nos.107 and 32 of VF-II of Deh Gujro, but KDA over lapped area out of said S. No. and the record of DC office is salient in respect of land acquisition in favour of KDA, hence he recommended for further proceeding under section 164(3) of the Sindh Land Revenue Act, 1967. The parties were called heard at length and the record was perused. The Khatedar Muhammad Abdul Salam mainly contended that he was purchased S.No.553 (2-10 acres) deh Gujhro through , Registered Sale deed bearing No. 5642 dated 25-09-2008 MF Roll No.75556/5405 dated 29.09.2008 after observing all legal formalities and such mutation entries were also affected in record of rights in his favour. The land is free from all encumbrances, but KDA without any payment and acquisition of land overlapped same portion of his land with another persons, hence he prayed to direct concerned authorities to rectify the error in master plan of KDA and removal of illegal encroachments/construction made over his land. The Additional Director, Land Acquisition Cell, KDA, in his report dated 04-01-2017, has mainly contended that S.No.553 (2-10 acres) was acquired under Land Acquisition Act, 1894 by KDA, and falls within notified area of scheme 24 of KDA. The compensation was accordingly made the claimant of land namely Mr. Tariq Ahmed Khan Lodhi, in respect of land in question. He further contended that presently the matter is also sub judice before the Provincial Ombudsman Sindh. [Underlining is ours]. After hearing the parties and perusing the relevant record and reports produced before the undersigned I come to conclusion that this is purely a matter of land acquisition and claim of compensation which does not come
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under the ambit of section of 164 (3) of Sindh Land Revenue Act 1967 as well as the matter is also pending before the Hon 'able Provincial Ombudsman Sindh; therefore, the parties may avail their remedies from competent forum according to law. [Underlining is ours]. With the above observations the case is dispose of and announced in the open Court. Given under my hand and seal of this Court on 14th February 2017. Sd/- (EJAZ AHMED KHAN) PAS COMMISSIONER No.CK/Reader/80/2017 dated: 14-02-2017 Copy to:- 1. The Deputy Commissioner Karachi East. 2. The Director Land KDA. 3. The Survey Superintendent Karachi. 4. The Additional Director Land Acquisition KDA. 5. The Mukhtiarkar Gulshan-e-Iqbal, Karachi East." 8. Despite such dismissal of Revenue Case No.4/2016, the Additional Deputy Commissioner-II [Respondent No.3 viz. Muhammad Khan Rind], in his own wisdom rather to say, amazingly, vide order dated 21.2.2017 held that the 'subject property', was not Survey No.596, but Survey No.553 and thus the same belonging to the Respondent No.13. Through the said order dated 21.2.2017, the Deputy Commissioner-II also directed the removal of the Petitioners from the 'subject property. Consequently, on 2.5.2017, the SBCA [Respondent No.8 herein] not only demolished the 'boundary wall' and 'booking office', constructed by the Petitioners on the 'subject property', by the Police but also dis-possessed the Petitioners from the 'subject property' and delivered its' possession to Respondents 13 and 14. Order dated 21.2.2017, passed by Additional Deputy Commissioner- II, exercising powers on behalf of Deputy Commissioner, Karachi-East, being relevant is reproduced as under: - "OFFICE OF THE DEPUTY COMMISSIONER KARACHI EAST No.DC/K/E./Rev.Br/643/2017, Karachi, the dated 21-2-2017 The Director General Sindh Building Control Authority Karachi The Director General Karachi Development Authority Karachi Subject: JUDICIAL ORDER Please find enclosed herewith a photo-stat copy of Judicial Order passed in Case No.04/20261, by the Revenue Court of Commissioner Karachi Division Karachi, vide order No. CK/Reader / 80/2017 dated 14.02.2017, on the application of Mr. Muhammad Abdul Salam Khan son of Abdul Rasheed Khan (Late) v. Director General KDA and others. It is to inform that on the request of KDA authority this office refer the matter to the Commissioner Karachi Division Karachi under section 164(3) of Sindh Land Revenue Act, 1967, over the dispute of KDA on Survey No.553, admeasuring 01-10 acres of Deh Gujro, Gulshan-e-Iqbal Karachi East, owned by Mr. Muhammad Abdul Salam Khan vide Entry, Nos.107 and 32, of VF-II, of Deh Gujro in his favour. It is further informed that on the concealment of facts refer by KDA and SBCA one Tariq Ahmed Khan Lodhi encroached the S. No.553 instead of Survey No.596, which was acquired by the KDA. In view of the above, I am directed to request you to cancel the layout plan of Mr. Tariq Ahmed Khan Lodhi which approved on the survey number 553 of Deh Gujro instead of Survey No.596, and remove all encroachment including illegal booking office (Gold Ark Residency) and boundary wall from Survey No.553, Deh Gujro, Gulshan-e-Iqbal Karachi East, forthwith under intimation to this office. [Underlining is ours]. (MUHAMMAD KHAN RIND) ADDL: DEPUTY COMMISSIONER-II FOR DEPUTY COMMISSIONER KARACHI EAST Copy to: 1. The Commissioner Karachi Division Karachi
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2. The Assistant Commissioner/Mukhtiarkar Gulshan-e-Iqbal Karachi East, with the direction to take necessary action in this regard and report compliance. 3. The P.A to Deputy Commissioner Karachi East 4. Mr. Muhammad Abdul Salam Khan" 9. The Petitioners thus feeling 'aggrieved' and 'dis-satisfied' inter alia on account of such illegal and unlawful acts of Respondents Nos. 3, 4, 6, 8, 10 and 12, which were taken by them ex-facie, in collusion with each other and at the 'instigation' of Respondents Nos. 13 and 14, under the garb of the 'impugned order' dated 21.2.2017 [Annexure 'P/21' to the MoP in C.P. No. D-4560 of 2017] have approached this Court by way of filing the Constitutional Petition No.D-4560 of 2017 [Sheharyar Waqas Malik and another v. Province of Sindh and 15 others], with prayers inter alia' for redressal of their grievances and of setting aside, the impugned order dated 21.2.2017. On 11.07.2017 when C.P. No.D-4560 of 2017 came-up before the court than the following order was passed:-- 1. For orders on Misc. No.19710/ 2017. 2. For orders on Misc. No.19711/ 2017. 3. For orders on Misc. No.19712/ 2017. 4. For hearing of main case. 11.07.2017. 5.Ms. Sarwat Israr, Advocate for petitioner. 1. Urgency granted. 2. Exemption granted subject to all just exceptions. 3 and 4. Notice to the respondents also learned A.A.G. for 14.7.2017. Respondent No.12 SHO Police Station Gulshan-e-Iqbal be present in person as also Respondents Nos. 13 and 14. Till the next date status-quo must be maintained by all the parties in respect of the subject property. On the next date file of C.P. No.D-3898 of 2017 be put up along with this matter. B. BRIEF FACTS OF C.P. NO.D-3898 OF 2017: 10. Brief facts leading to the filing of C.P.No.D-3898 of 2017 [Tariq Ahmed Khan v. Province of Sindh and 9 others] are that; the Petitioner was sole owner of certain land, measuring 2.11 acres, in Deh: Gujro, Tapo: Soongal, Gulshan-e-Iqbal Town, Karachi. The land, as averred, in the Memo of Petition [in short MoP], somehow, was unlawfully acquired by the K.D.A's authorities. The Petitioner in C.P. No.D-3898 of 2017 viz. Tariq Ahmed Khan son of Abdul Ghani Khan [Respondent No. 15 in C.P.No.D-4560 of 2017], feeling himself 'aggrieved' and 'dis-satisfied' with such unlawful act of KDA , filed Constitutional Petition No.D-823 of 1989 [Tariq Ahmed Khan v. Karachi Development Authority], before this Court with the prayers as follows:- (i) It may be declared that the Respondent's motion in taking over the land of the Petitioner and utilizing it in constructing road is illegal and without lawful authority; (ii) It may be declared that the action of the Respondent in asking for the assessment of the value of the land from the Revenue Authorities is illegal and without lawful authority; (iii) The Respondent may be directed to grant to the Petitioner alternate land as detailed in Petitioner's letter dated…
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