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Petitioner: Messrs AHMED CLIN,IC VS Respondent: GOVERNMENT OF SINDH and others
Court Name: Sindh High Court Judge(s): Shabbir Ahmed, Muhammad Sadiq Leghari Title: Messrs AHMED CLIN,IC vs GOVERNMENT OF SINDH and others Case No.: Constitutional Petition No,D-3228 of 1993 Date of Judgment:2003-01-14 Reported As: 2003 CLC 1196 Result: Petition allowed
JUDGMENT
JUDGMENT ' SHABBIR AHMED, J.--- The questions involved in the above petitions are almost common for slight variation as to the facts. It is therefore, considered proper to deal with together and to dispose them of by this judgment. 1. The petitioners in above petitions have invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan for allowing reliefs:-- (i) Declare that Annexure "D" dated April 21, 1990 has been issued without lawful authority and is of no legal effect and the orders marked ' C ' , ' F-1 ' . (ii) Quash the orders marked C , D , F-1 and 'F-2'. (iii) Prohibit the respondents Nos.1 to 3 from taking any step, action or measure in pursuance of the orders marked 'C', 'D', 'F-1' and 'F-2' including but not limited to cancelling the allotment and/or lease of the plot in favour of the petitioner. (iv) Prohibit the respondents from interfering either directly or indirectly with the possession of the plot by the petitioner. (v) Prohibit the respondents Nos.1 to 3 from taking any other action or passing any other order adverse to the interests of the petitioner in the plot. (vi) Grant such other relief as this Honourable Court deems just and proper in the circumstances of the case. (vii) Grant the costs of the petition. 2. In order to facilitate consideration of questions involved in these petitions it is considered convenient to deal with the Petition No,D-3228 of 1993 and the conclusions arrived on the basis of
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contentions raised on either side will be applied to both cases and it might suffice by way of explaining of factual background to refer the facts which are admitted or not disputed. 'Respondent No,4 in both petitions were allotted Plots No,SNPA 16/E and 16/F (for short-subject plots) on 22-3-1974 by Al-Riaz Cooperative Housing Society, Karachi, subleases were executed on 11-4-1974. Martial Law was declared in the country on 5-7-1977. Martial Law Order 34 was issued by the Martial Law Administrator on 13-10-1977, Martial Law Order 34 is in these words:-- "In pursuance of the proclamation of the fifth day of July, 1977, and in exercise of the powers conferred by Martial Law Order No,3 issued by the Chief Martial Law Administrator, the Martial Law Administrator, Zone 'C' is pleased to make the following Martial Law Order: ' Allotment of the plots which were reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centers, mosques, graveyards, or for such other amenity/community purposes but were subsequently, unauthorizedly or by the political man oeuvres converted into residential or commercial plots and on which no construction has been made are hereby cancelled and the plots so cancelled shall be resumed by the authority in which the plots initially vested and the amounts, if any, paid by the allottees shall be refunded under the normal rules." 'Through an office order, dated 4-12-1977 issued by the respondent No,3, the Amenity Plot No,SNPA- 16/E, measuring about 10156 sq. Yds. Of Blocks 7 and 8, reserved for Girls College in Karachi Cooperative Housing Societies Union Limited was allotted to Al-Riaz Cooperative Housing Society and sub-divided by them into six portions and were allotted to individuals cited therein including the respondents No,4 in both petitions, for commercial/clinic and residential purposes. The petitioner further avers than such allotments were cancelled being offensive of the provision of Martial Law Order No,34 and the plots so allotted were inbuilt except one. Said plots were resumed by the K.E.C.H.S. Union Ltd., subject plots allotted to the respondents No,4, were also cancelled. The cancellation order was confirmed by the Governor of Sindh and Martial Law Administrator, Zone 'C' on 30-9-1979 duly gazette on October 4, 1979. On 21-1-1980 deeds of cancellation, cancelling the subleases in favour of the respondent No,4 were also duly registered by the respondent No,3 with Registrar of Properties. The order of cancellation, confirmation thereof and deed of cancellation were not questioned by the respondent No,4 at any forum. ' On 27-12-1980 Plot No,SNPA 16/E measuring about 1400 sq. Yds. And Plot No,SNPA 16/F measuring about 2000 sq. Yds. Were allotted to the petitioners for consideration by respondent No,3 by allotment order (Annexure A), sub-leases were also executed in their favour by respondent No,3 on March 11, 1981 duly registered with Registrar of Properties for 99 years (Annexure B). Possession was delivered to the petitioners vide Annexure B-2 on 9-2-1981. The petitioners since then have been in possession of the said plots and continue to remain in such possession. In the year 1983, a notice was advertised that the subject plots would by auction by the Assistant Commissioner (East), Karachi due to non-payment of dues by respondent No,4. The petitioners challenged said notice of auction, through C.P. Nos.D-351 of 1983 and 365 of 1983. The petitions were allowed by order dated 4-4-1989 with the observation that the plots had been allotted to the petitioners, the same could not have been put to auction for the recovery of dues from the respondent No,4. ' In the year 1983, the respondent No,4 filed suits Nos.2946 of 1983 and 2987 of 1983 in the IIIrd Senior Civil Judge, Karachi with facts that the respondent No,4 came to know about the cancellation of their allotment in March, 1983, therefore, filed the suits for declaration and cancellation. The petitioners were also joined in above suits. The plaints were rejected by order dated 4-4-1985. Appeals Nos.139 of 1985 and 239 of 1985 were also dismissed by order dated 1-8-1988 by Ian Additional District Judge (East), Karachi. The respondent No,4 came in revision before this Court in Revision Applications Nos.70 of 1989 and 77 of 1989. The revision applications were allowed and the orders of rejection of plaint were set aside and the cases were remanded for trial according to law.
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' During the pendency of the suits, the respondent No,4 also filed an application before respondent No,2 under section 54 of the Cooperative Societies Act. Respondent No,2 made a reference on 6-6- 1993 for determination of the dispute. However, the nominee of the Registrar by order dated 23-9- 1993 in Arbitration Case No,100 of 1993 refused to proceed further in the matter (Annexure N). It is the case of petitioners that the respondent No,4 (husband and wife) are well connected and influential persons. On account of influence and pressure they were able to secure the void order dated 21-4-1990 Annexure D from the respondent No,1 who acted unlawfully, completely without jurisdiction. Based on said order equally void orders were issued by the respondents Nos.2 and 3. The petitioners received letter dated 28-10-1993 informing them that Board of Directors of respondent No,3 resolved in its meeting dated 21-10-1993 to restore the allotments and subleases of respondent No,4 in compliance of order dated 30-4-1990 of the respondent No,1 received through respondent No,2 and the allotments and subleases in respect of the subject plots of the petitioners were cancelled. It is the petitioners' case that all above orders have been passed behind the back of the petitioner and without notice to them. The orders and directives are an attempt to divest the petitioners of their property and to restore it to the respondent No,4 are mala fide, without lawful authority and un-Constitutional finding no other adequate, alternative remedy available in law, hence the petitions with prayer referred to above. 3. The respondents were noticed in these petitions. The respondents Nos.3 and 4 have filed separate counter-affidavit in opposition of the petitions whereas, no comments/counter-affidavits were filed on behalf of the respondents Nos.1 and 2. 4. The case as set out in the counter-affidavit of Abdul Rehman, an Executive Officer of respondent No,3, therein they have admitted the cancellation of allotments and subleases of the subject plots in favour of respondent No,4 under Martial Law Order No,34 and allotments, subleases of the same plots in favour of petitioners. However, they have admitted that allotments in favour of the petitioners, were cancelled by the Board of Directors in their meeting held on 21-10-1993 and subleases were also cancelled on 20-11-1993. The petitioners' representative acknowledged the receipt of the latter 28-10-1993, when he visited the office and was informed that the plots in question has been restored to the respondent No,4. ' It was further admitted by the respondent No,3 that Amenity Plot No, SNPA-16 reserved for Girls College was illegally allotted to Al-Riaz Cooperative Housing Society who further sub-divided and allotted the plots for commercial and residential purpose (other than amenity purposes) such allotments were cancelled vide Annexure G to the petition. The subleases were also subsequently cancelled and plots were allotted to the petitioners. Respondent No,3 in order to comply the order of the Deputy Registrar, Cooperative Societies placed the matter before the Board of Directors for decision. The Board of Directors resolved to restore the allotments of respondent No,4 subject to the condition that the suits pending in the Civil Court will be withdrawn and the allotments and the subleases in the name of petitioners were cancelled. 5. The respondent No,4 through counter-affidavit have admitted that on 22-3-1974, Plots Nos. 16-E and 16-F, measuring about 1400 sq. Yds. And 2000 sq. Yds., respectively, were allotted in their favour by the Al-Riaz Cooperative Housing Society on full payment, possession was handed over. On 11-4- 1974, respondent No,3 executed subleases. In the month of March, 1983 it transpired that plot in question had been allotted to somebody else. On inquiry they came to know that on 4-12-1977 the liquidator of respondent No,3 cancelled the plot in question under the provision of Martial Law Order 34. Subleases were also cancelled. Their case was that when they came to know about allotment of the subject plot in favour of the petitioners, after cancellation of their allotments and subleases, which according to them, was illegal and unilateral action, they filed the suits, plaints thereof were rejected, appeal also failed but case was remanded in revision application filed by them by the High Court for adjudication of the matter on merits. Their further case was that due to
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victimization by the respondent No,3 they preferred the appeal before the Government for redressal of their grievance by reviving the lease as well as possession, the Government of Sindh, Department of Cooperation restored the said plot in their favour. The order was not implemented. They have also admitted that on approach the nominee of Registrar also disposed of the Arbitration case vide order dated 23-9-1993. Subsequently the withdrawal applications were moved and the suits were withdrawn by order dated 24-11-1993. They maintained that the respondent No,3 has restored the allotments and subleases in their favour with regard to the subject plot and also executed confirmation of Deed of cancellation dated 20-11-1993 cancelling the subleases of the petitioners. 6. We have heard Miss Sana Minhas, on behalf of the petitioners, Mr. Abbas Ali, learned Additional Advocate-General on behalf of respondent Nos.1 and 2, Mr. Arif Bilal Sherwani, learned counsel for respondent No,3, Mr. Muneer A. Malik argued the matter on behalf of Mr. Farooq H. Naek, learned counsel for the respondent No,4. 7. Mr. Abbas Ali, learned Additional Advocate-General, representing the respondent Nos.1 and 2, submission was that the case be remanded to the respondent No,1 for decision afresh, as according to him, the order dated 21-4-1996 which is the basic order was passed without notice to the petitioners and it is also not a speaking order. 8. Mr. Muhammad Bilal Sherwani, learned counsel for the respondent No,3 contended that the respondent has complied with the order of respondent No,l.Received through respondent No,2. But he was not able to support the action of the respondent No,3, cancelling the subleases through resolution. 9. Before proceeding further, it would be advantageous to mention that Martial Law Order No,34 was reconstituted by Martial Law Order No,89, issued on 18-7-1979 with relevant differences introduced by the same was a conferment of a right of appeal to aggrieved person within 15 days of the promulgation. Martial Law Order No,89 was followed by Martial Law Order No,247 issued on 16-12-1984. The apparent distinction drawn in such Martial Law Order as regards previous promulgations was that here also a period of 15 days was provided from the date of promulgation to prefer an appeal to the Government, with for relaxation in period of limitation in filing such appeal. The order/If the vernment on appeal being made final. Martial Law Order No,89 4) ame form by Martial Law Order 247, is in these words:- ' MARTIAL LAW ORDER MARTIAL LAW ADMINISTRATOR, ZONE 'C' [Gazette or Sindh, Extraordinary, Part I, 18th July, 1979] ' No,89 ' In excercise of the powers conferred on me by Martial Law Order 3 issued by the Chief Martial Law Administrator, I, Lieutenant-General, S.M. Abbasi, Martial Law Administrator, Zone 'C', hereby reconstitute Martial Law Order No,34 as follows, which shall be deemed to have always been so reconstituted:-- (1) Allotment of amenity plots which have been converted for other purposes, in contravention of the law or rules regulating the conversion or for political considerations from 1st January, 1972 to 4th July, 1977 and on which no construction has been made shall stand cancelled and possession thereof shall be resumed by the authority in which the plots initially vested and the amounts, if any, paid by the allottees shall be refunded to them as admissible under the rules: ' Provided that nothing herein contained shall apply to the conversion of amenity plots in the Housing Schemes, made before coming into force of the Sindh (Amendment of Laws) Act, 1974 or in accordance with the procedure laid down in the said Act. Explanation.-- Amenity plots mean the plots reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques, graveyards or for such other public purposes.
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(2) Any person aggrieved by this order may, within fifteen days of the promulgation thereof prefer an appeal to Government and orders of Government on such appeal shall be final. (3) Government may in any individual case of hardship, relax the provisions of para.2 on such terms and conditions as may be determined. 10. Learned counsel for the petitioners has raised the following points in support of the petitions:-- (1) That the impugned orders dated 31-4-1990 (Annexure 'D'), 20-10-1993 (Annexure 'C'), letters dated 26-9-1993 (Annexure F/1) and 11-10-1993 (Annexure 'F/2') are illegal, without jurisdiction and without appliCation of mind and are not a speaking orders, effecting the right of the petitioners, passed without notice and without opportunity to the petitioners, which offends the principle of audi alteram partem. (2) The sublease in favour of the petitioners, a registered document cannot be cancelled by resolution. (3) By allotment of the subject plots, registration of subleases in their favour, a vested right has accrued to the petitioners, a decisive step, therefore, the power to cancel the allotments and subleases was not available under the doctrine of locus poenitentiae. 11. Adverting to the first ground, Miss Sana Minhas's contention was that the allotments in favour of the respondent No,4 were cancelled under the provisions of Martial Law Regulation No,34 which was confirmed by the Governor of Sindh/Government of Sindh, gazetted in Gazette dated 4-10- 1979 (Annexure 'H'). The subleases were also cancelled thereafter, the plot was allotted to the petitioners on 27-10-1980 for consideration followed by execution of registered subleases by the respondent No,3 on 11-3-1981 and possession was delivered on 9-2-1981. It was also maintained by her that the petitioners also filed writ petitions before this Court against the sale notice by Assistant Commissioner through Constitution Petitions Nos.D-351 of 1983 and D-365 of 1983, whereby the impugned action was declared to be without lawful authority. The respondent No,4 neither had taken any step against the cancellation of their allotments and sub-leases in respect of subject plots, nor against the auction notice for sale of the plots. The petitioners right in the subject plots was created by allotments, possession followed by execution of subleases. For the first time, in the year 1983, the respondent No,4 filed the suits against the cancellation of their allotments and subleases with regard to subject plots against the respondent No,3 and the petitioners and Al-Riaz Coopeative Housing Society, Karachi. The plaints of the suits were rejected. Appeals filed by them also failed. In revision, the orders of rejection of plaint and the order affirming the rejection order in appeal, were set aside and the cases was remanded back for adjudication on merits. She further contended that the respondent obtained the order dated 21-4-1990 behind the back of petitioners and tried to implement the same, on first attempt they failed as the Registrar's nominee refused to implement the order. On second attempt, the respondent No,3 implemented the order by resolution and cancelled the allotments in favour of the petitioners without notice to the appellant. On these premises, it was contended by Miss Sana Minhas that all the impugned orders were passed behind the back of the petitioners, the same are meritless and also lacks in reasons thus are contrary to the norms of justice and without jurisdiction. In support of her contention, she referred the cases (1) Habib Bank Limited v. Board of Trustees of Abandoned Properties, Cabinet Division, Government of Pakistan 1994 MLD 751 and (2) Sartaj Hussain v. Assistant Administrator, Evacuee Trust Property, Hyderabad and others 1994 MLD 2195. In both cases, it was ruled that an order which does not deal with the merits of the case, passed without affording an opportunity to the petitioners therein and passed without application of mind to the relevant facts and merits of the case, was not a valid order, but contrary to the norms of justice and would be deemed to be without jurisdiction. It was further held that an order, whether it is passed by a Judicial Tribunal or quasi-Judicial Tribunal or even by an executive authority, must indicate that it was passed after affording opportunity of hearing and after considering all the relevant facts and respective claims
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of the parties. An arbitrary exercise of jurisdiction in flagrant disregard of law and principles of natural justice, is tantamount to denial of justice. 12. On the other hand, Mr. Muneer A. Malik, representing the learned counsel for the respondent No,4 contention was that no doubt, pursuant to Martial Law Order No,34, the allotments of amenity plots were subject of cancellation but the jurisdictional requirement under Martial Law Order No,34 for such condition are:-- (i) Conversion of amenity purpose to another purpose in contravention of law or rules regulating the conversion or for political considerations; and (ii) Absence of construction on the plot. ' He maintained that the two conditions were to subsist together to bring about automatic cancellation under the successive Martial Law Orders. ' His further submission was that the above conditions are of fact, the availability of which are disputed by respondents. Therefore these questions cannot 'be decided in Constitutional jurisdiction of this Court. This plea could have been forcefully taken, had it been a cause in respect of cancellation under Martial Law Regulation No,34. ' He also pointed out that the respondents have paid full consideration to the society, they were given the possession of the subject plot and subleases were also registered. The Administrator of the Society or the competent authority cancelled the allotment of the respondents under the provisions of Martial Law Order No,34 behind the back of the respondent No,4 and the respondent No,3 executed surrender of lease unilaterally cancelling the subleases and it was an one-sided cancellation. Such question cannot be examined in Constitutional jurisdiction of this Court. He also maintained that pendency of the suit will not be a bar to the respondents to approach the Government for restoration of their right which was withdrawn behind their backs and unilaterally. It was also contended that in fact the cause is regarding entitlement of the subject plots between the two individuals is to be adjudicated through a suit or through a. Proceeding under section 54 of the Cooperative Societies Act and not in Constitutional jurisdiction and to support his contentions, has referred the cases (1) Basanka Lal Bank v. Islamic Republic of Pakistan PLD 1958 SC 187, (2) Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476 and (3) Samit Ali Khan v. Dr. Mrs. Zainab Irshad and 6 others PLD 1997 Karachi 450. ' The facts of Basanka Lal Bank case were that petitioner claimed to be a member of a Shrine Committee filed petition, as such member in respect of Plot No,181 of Mouza Jungle Sitakanda in Sadar (North) Sub-Division in the District of Chittagong. The petitioner claim was that the said plot belongs the deity Chandra Nath and it was alleged that the Telephone and Telegraph Department started construction for establishing a microwave station thereon just on the northern side of the Chandranath Temple. The petitioner in writ prayed for issuance of rule nisi to show cause why they encroached upon the land in question should not be declared without lawful authority and of no legal effect. A further prayer was made for directing the said respondents to vacate the land. The rule nisi was issued as prayed for. The respondent Nos.2 and 3 entered appearance and filed an affidavit in opposition stating that the District Authorities of Chittagong had given the disputed land to them for establishing a microwave station thereon, the Government being the owner of that land. The High Court dismissed the petition on the ground that facts as alleged by the contending parties gave rise to a question of title with regard to the land in dispute. The leave was also refused by the Supreme Court with observations that the question of title should not be gone into in the writ jurisdiction of the High Court under Article 98 of the Constitution and proper remedy of an aggrieved party in a case involving a question of title to property lies in a regular suit in a Civil Court. ' In Federation of Pakistan case, the same view was reiterated that the question of title and question of possession cannot be resolved except through proper trial.
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' In Samit Ali Khan case, the Division Bench of this Court refused to exercise the Constitution jurisdiction as equitable considerations were weighing against the petitioners. 13. On the other hand, Miss Sana Minhas, learned counsel for the petitioners in reply to the, plea against the maintainability of the petitions has canvassed before us that the facts are not disputed. The allotments and the subleases of the respondent No,4 were cancelled under the Martial Law Regulation No,34. The respondent No,4 have not availed the right of appeal as provided under Martial Law Regulation No,89. Nor any step for restoration of the allotments and subleases was taken till the allotments of the subject plots to the petitioners for valuable consideration followed by execution of subleases in their favour. The petitioners in order to protect their right filed petitions before this Court against the auction notice for sale of the disputed plots as a result of attachment treating the same being property of the respondent No,4 and the petitioners got the notice struck down and protected their interest in the property. The respondent No,4 remained silent. For the first time, they filed the suits in the year 1983 when the subject plots were already stood allotted to the petitioners on 27-12-1980. Subleases were executed on 11-3-1981. The respondents in their suits had joined the petitioner as defendant. But surreptitiously without notice to the petitioners, the impugned orders/actions were passed and taken by the respondents Nos.1 and 3 in favour of the respondent No,4 against the…
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