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Petitioner: NIZAM AHMED CHAUDHARY through Attorney VS Respondent: DEFENCE OFFICERS HOUSING JUDGMENT
Court Name: Sindh High Court Judge(s): Syed Saeeduddin Nasir Title:NIZAM AHMED CHAUDHARY through Attorney vs DEFENCE OFFICERS HOUSING
JUDGMENT
Reported As: 2018 CLC 1009 Result: Suit decreed. Judgment JUDGMENT SYED SAEEDUDDIN NASIR, J.---The controversy in this suit is with regard to a plot bearing No.75, measuring 2000 square yards, situated at 29th Street, Phase-VI, Defence Housing Authority, Karachi, (hereinafter referred to as the "suit plot"), having acquired by the plaintiff from the defendant in a draw. 2. The case of the plaintiff is that he was an employee of Pakistan Air Force (PAF). Having completed his service, the plaintiff was retired in 1964 as Squadron leader. Being an officer of PAF, the plaintiff participated in a draw of plot being carried out by the defendant and became successful. The defendant by its letter dated 14.07.1970 informed the plaintiff about such success and was asked to deposit Rs.3,700/- towards total charges while the development charges were required to be paid at the time of allotment. Subsequently, the defendant by its letter dated 09.03.1971 allotted the suit plot to the plaintiff. The plaintiff paid the requisite charges to the defendant and applied for registration of A-lease in 2003, but he was informed that the suit plot has been declared as abandoned property in 1975 because the fact that the plaintiff hails from East Pakistan and has ceased to be the citizen of Pakistan after 16.12.1971. He was also informed that the Abandoned Property Board de-notified all the properties, including the suit plot, which come under the defendant DHA and handed over possession of the same to defendant. The plaintiff then approached the defendant and pursued his case that neither he comes within the meaning of "specific person" nor his plot can be declared as abandoned property and despite that fact defendant placed the suit plot in auction list by treating the same as cancelled upon its return from the Abandoned Properties Organization. The plaintiff claimed that he is a Pakistani citizen and
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drawing pension from PAF, and that he also worked in PIA after his retirement from PAF till 1974, but on account of wrong information being conveyed by the defendant to the government, his plot was cancelled and included in the list of abandoned properties, but such information was never conveyed to him. Hence, cancellation of his plot and/or its inclusion in the list of abandoned properties is illegal and unlawful. The plaintiff seeks following relief(s) in the prayer clause of the present suit:- (i)"declare that the plaintiff never ceased to be a citizen of Pakistan and submission of its plot by the defendant to the Abandoned Properties Board was mala fide and contrary to law; (ii)declare that the plaintiff is entitled to the Plot No.75, 29th Street, Phase-6, measuring 2000 square yards and the defendant has no lawful authority to cancel or auction list. (tit) the defendant to handover the plot to the plaintiff and execute necessary lease and documents in his favour and in its failure the Nazir may carry out the order. (iv)the defendant may be restrained permanently from placing the above plot in auction or creating third party interest. (v)any other order or relief to which the plaintiff is entitled to may also be granted". 3.The defendant contested the suit and filed its written statement. The main reason for denying the claim of the plaintiff, as pleaded in the written statement, was that the plaintiff committed default in the payment of dues in respect of the plot allotted to him, therefore, the Society cancelled the plot under clause 54(q) of the Bye-laws of Pakistan Defence Officers Cooperative Housing Society Limited, and as the plaintiff originally belongs to East Pakistan, the cancelled plot was placed in the list of abandoned properties. The defendant further stated that the plaintiff never approached it to justify the default in the payment of dues in respect of the suit plot; on the contrary he was insisting that having Pakistani nationality his plot should not have been placed in the list of abandoned properties. The suit plot was cancelled about 30 years back under the existing rules; hence the claim of the plaintiff is not justified and liable to be declined. 4.The pleadings of the parties led to framing of the following issues by the Court on 26.02.2007:- 1. Whether the defendant gave notice of cancellation of allotment of suit property to plaintiff and whether it was served on him? 2.Whether the defendant had authority in law to cancel the allotment of suit property? 3.To what relief, if any, plaintiff is entitled to? 4.What should the decree be? 5.In support of their respective claims, the parties led their evidence. It may be mentioned here to set the record straight that the plaintiff Nizam Ahmed Chaudhry, who filed the instant suit himself on 01-08-2003 expired on 01-07-2009 during the pendency of this suit. The widow of the plaintiff Ms. Nasima Khan executed Special Power of Attorney dated 03.06.2013 in Dhaka, Bangladesh in favour of the Maj. (Retd.) Akber Hameed Lodhi, and thereafter, upon an application under Order XXII, Rule 3, C.P.C. being C.M.A No.8595/13 being made by the said duly constituted attorney of the widow of the plaintiff, this court vide order dated 22-05-2014 brought her on record as the sole surviving legal heir of plaintiff, and amended title of the suit was consequently filed and the instant suit proceeded through her aforesaid attorney, who has filed his affidavit-in-evidence as Attorney of the said legal heir of the plaintiff, who produced Exhibits 4/B to D/1 along with the same. The plaintiff's attorney maintained the same facts in the affidavit-in-evidence as asserted in the plaint. He produced affidavit-in-evidence as Exhibit 4/B, original handwritten deposition is available on the evidence file as Exh.4, he produced special power of attorney as Exh.4/A, photocopy of the NIC and computerized CNIC as Exh.A, photocopy of letter of pension dated 22.05.1972 as Exh.B, photocopy of letter dated 14.07.1970 as Exh.C, photocopy of allotment order dated 09.03.1971 as Exh.D, photocopy of notification dated 29.07.2000 as Exh.E, photocopy of notification dated 03.12.2000 as Exh.F, photocopy of reply of notice dated 07/09.03.1971 as Exh.G, photocopy of letter of
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Administrative Officer dated 13.10.1970 as Exh.H, photocopy of Mosque Fund Payment receipt as Exh.I, photocopy of Payment receipt dated 26.01.1971 and receipt dated 24.07.1968 as Exh.J, photocopy of Form of application for allotment dated 04.07.1968 as Exh.5A, photocopy of changed address as Exh.5B, photocopy of application of the plaintiff as Exh.5C, photocopy of letter/reply dated 13.10.1970 as Exh.5D, photocopy of plaintiff's application as Exh.5E, photocopy of details of dues on 11.02.1973 as Exh.5F, photocopy of cancellation of plot dated 16.03.1973 as Exh.5G, photocopy of Mrs. Barbel Anderson's letter dated 16.02.1973 as Exh.5H, photocopy of affidavit of Nizam A. Chaudhry dated 12.05.1971 as Exh.5I, photocopy of special power of attorney, photocopy of application of the plaintiff as Exh.5J, photocopy of sale agreement dated 26.07.2003 as Exh.5K, photocopy of Payment receipt dated 31.07.2003 as Exh.5L, photocopy of application of Major Akbar H. Lodhi dated 18.07.2008 as Exh.5M, photocopy of letter of DHA dated 22.08.2008 as Exh.5N, photocopy of affidavit-in-evidence of DW Anwar Khan as Exh.D/3, photocopy of letter of authority dated 17.07.2009 as Exh.D/2, photocopy of letter to H.R. Chagla dated 17.12.1995 as Exh.D/4, photocopy of original handwritten deposition of DW-1 Anwar Khan as Exh.D/1, typed copy of plaintiff's and defendant's depositions. 6. The plaintiff's attorney was cross-examined by Mr. Munawar Malik, the learned counsel for the defendant wherein he has stated in response to several questions put to him as under, the evidence is reproduced verbatim as recorded by the learned commissioner for recording evidence: Q: Are you aware of application dated 04.07.1968? Ans: Yes. I know about the application. Original seen and photocopy kept on record as Exh.5. Q: The address on the application is appearing? Ans: Yes. The address of the applicant permanent and present address is written therein. Q: The plaintiff apprised of his change of address? Ans: Yes. The plaintiff submitted his address as appearing in Exh.5-B. Photocopy kept on record. Q: On 08.10.1070, plaintiff wrote a letter to DHA for fresh address? Ans: Yes. Plaintiff did so, photocopy kept on record as Exh.5/G. Q: The defendant has replied to the plaintiff? Ans. Yes. The reply was given by DHA and photocopy of reply kept on record. Q: Is it correct that on 31.12.1970, plaintiff wrote a letter to DHA? Ans: Yes. The plaintiff wrote a letter on that date and produced it as Exh.5E, photocopy kept on record. Q: The statement of dues given to the plaintiff? Ans: Yes. Statement dated 11.03.1973 was given, photocopy kept on record Exh.5F. Q: The plaintiff shifted from Pakistan in 1973? Ans: It is not correct he shifted in 1975. Q: Is it correct that letter dated 16/17.03.1973 for correction was issued? Ans: The letter was not received by the plaintiff, photocopy kept on record as Exh.5G as "C". Q: Since when you know the plaintiff? Ans: I know him since 1995-96 and he was an Air force Service man and he had retired in the year 1964 and joined PIA wherefrom left the PIA in the year 1973 and shifted to Germany and married German lady, her name was Barbel Anderson and settled there, the plot in suit was gifted to her by written document dated 12.05.1971 and produce photocopy as Exh.51 along with letter addressed to DHA as Exh.5H. Q: Is it correct that you preferred an application on 16.07.2008? Ans: I did prefer application to the Lt. Gen. Ahsan Azhar along with applied documents for transfer of the plot but the same was deferred as the litigation was pending in the Court. I produce the photocopy of the application along with annexures 5J, 5K, 5L, and 5N as photocopies. Q: Is it correct by omission and mistake the notification dated 03.10.1975, the plot in suit was
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declared as abandoned property? Ans: It is incorrect. Q: Is it correct that plot in suit was already cancelled due to non-payment and default? Ans: It is incorrect, we or plaintiff did ever receive any notice for cancellation nor show cause notice for the alleged default. We came to know about cancellation before filing of the present suit and the reason was disclosed to be non-payment. Q: Is it correct that you did not challenge the said ground of cancellation? Ans: Yes. It is so; the witness voluntarily states that DHA had written a letter to the Air Headquarters Peshawar on the address not given by the plaintiff. Q: You did not file the suit against the DHA for specific performance? Ans: Yes. I did not file suit against the plaintiff. 7.On behalf of defendant, Anwar Khan, Office Superintendent, Town Planning and Building Control Department, filed his affidavit-inevidence as witness of the defendant as Exh.D/3, who produced Exhibits D/1 to D/4. The defendant's witness maintained the same facts as in the affidavit-in- evidence and as asserted in the written statement. He produced affidavit-in-evidence as Exhibit D/3, original handwritten deposition is available as Exh.D/1, he produced photocopy of letter of authority as Exh.D/2, photocopy of letter addressed to H.R. Chagla dated 17.12.1995 as Exh.D/4. 8.The defendant's witness was cross-examined by Mr. Akbar Hameed Lodhi, attorney of the plaintiff as well as by the plaintiff's counsel, wherein he has stated in response to several questions put to him as under, the evidence is reproduced verbatim as recorded by the learned commissioner for recording evidence: Q: Had the plaintiff been served with any notice under bye-law No.54 (G) before cancellation of his allotted plot? Ans: Notices for recovery of dues were issued and served to the plaintiff Q: The details given in para-4 of the affidavit-in-evidence were not demanded on the prescribed form as notice? Ans: At the relevant time in the year 1973, the practice was not followed to issue notices on prescribed form. Q: In the year 1973, the notices were being issued on the cyclostyled prescribed form containing the details of the dues etc.? Ans: It is not correct. Q: The plaintiff was not served with the notice on his place of residence and only Air Headquarter address of office mentioned? Ans: At the relevant time, the plaintiff being originated from East Pakistan, therefore, the Peshawar Base maintaining the proper addresses and record was approached. Q: What is done in the office of DHA with undelivered letters from the allottees? Ans: On receiving of undelivered or any letter written to the DHA is tagged and filed in the allottees file or kept on record. Q: Witness confronted with a letter No.P&D/AF-5820 dated 17.12.1995. Do you acknowledge this letter to be originated from the DHA Karachi issued by Abdul Qadoos Khan, Director P and Design? Ans: Yes. It is the reply of the letter and issued from DHA addressed to the H.R. Chagla, photocopy of letter is kept on record as Exh.D/4, original returned. 9. The learned counsel for the plaintiff Mr. Shabbir Ahmed Sheikh while arguing his case has mainly relied upon the contents of the plaint, affidavit-in-evidence filed by the attorney of the plaintiff as PW and the deposition of PW, however, he has inter alia contended that the plaintiff Nizam Ahmed Chaudhry is a citizen of Pakistan and held NIC No.510- 31-115896 issued to him on 10.05.1975 and, after expiry of the same the Govt. of Pakistan, NADRA issued a fresh CNIC bearing No.42201- 6291368-7 to the plaintiff on 09.07.2004, copies of which have been exhibited by the witness of the
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plaintiff as Exh.A; that the plaintiff served in Pakistan Air Force as Squadron Leader and retired in the year 1964 after which his pension was also transferred to Karachi station in 1972 as he was resident of Karachi; that the plaintiff joined PIA as captain where he worked as captain up to 1974, and then he went to Germany where he married a woman namely Barbel Anderson and resided there for a long period of time, the pension of the plaintiff was transferred vide letter dated 22.03.1972 which is exhibited as "B"; that by virtue of his service as an officer of the rank of Squadron Leader in the Armed Forces of Pakistan the plaintiff participated in the draw of plots announced by the DHA and turned out to be successful in acquiring plot No.75, 29th Street, Phase-VI, measuring 2000 square yards allotted to the plaintiff vide letter dated 14.07.1970, whereby the plaintiff was called upon to pay Rs.3,700/- as the recoverable charges immediately, while development charges were to be paid at the time of allotment; that vide letter dated 09.03.1971 the aforesaid plot of land was allotted to the, plaintiff, wherein it is mentioned that "prior to commencement of construction of the house, it is necessary to get "A" lease registered in allottee's name by clearing all the outstanding dues and by getting building plan approved by the society; that the plaintiff did not raise any construction, therefore, no payment in terms of allotment was required nor did the plaintiff receive any letter or demand from the defendant in respect of any charges, however, the plaintiff made payment to the defendant as required in the letter dated 04.07.1970; that in the month of July, 2003, when the plaintiff visited the office of the defendant and inquired about the formalities for the execution of 'A' lease, he was informed that the plaintiff's plot has been declared as an abandoned property in 1975 and was taken over in control by the Abandoned Properties Organization for the reason that the plaintiff hails from East Pakistan and has ceased to be a citizen of Pakistan after 16.12.1971, however, the plaintiff was further told by the defendant that his plot was with the Administrator Abandoned Properties Organization, but since all the properties belonging to specified persons situated in DHA have been de-notified, therefore, the same have been reverted back by the Abandoned Properties Board to DHA and now the DHA will decide the cases, and in case of absence of any claim from anywhere, the same will be auctioned; that the plaintiff tried to pursue the defendant that neither the plaintiff falls within the meaning of specified person as contemplated by Section 2(f) of the Abandoned Properties (Taking Over and Management) Act, 1975 nor his plot can be declared as abandoned property under the said Act; that the defendant without providing any opportunity for hearing to the plaintiff has treated the plot as cancelled; that the defendant without proper knowledge with regard to the status of the plaintiff, misinformed the Government of Pakistan and illegally caused inclusion of the said plot of the plaintiff in the list of abandoned properties; that as stated above, the plaintiff is a citizen of Pakistan and was issued NIC and the CNIC as aforesaid, therefore, the plaintiff's plot should not have been treated as an abandoned property and if the auction of the same is effected, as such, it shall be a nullity in the eyes of law; that it is also on the record of the defendant that the plaintiff was a tenant in respect of another property bearing No.13-B, First Street, Phase-I, which was sold in 1974 which shows that the plaintiff was present in Pakistan; that the plaintiff's employment with the PIA as its captain is also a matter of government record and in these circumstances it cannot be presumed that after 16.12.1971 the plaintiff ceased to be a citizen of Pakistan; that since the plaintiff was away from Pakistan from 1974 for a long duration, therefore, he could not know about inclusion of his property in the list of abandoned properties without notice to him nor did the defendant informed the plaintiff with regard to such fact nor was it published in the newspaper; that after issuance of de- notification under section 28 of Abandoned Properties (Taking Over and Management) Act, 1975 vide notification dated 29.07.2000, all the properties located in the defendant's area and belonging to it have been released from the abandoned properties pool vide notification dated 03.10.2000 and have been handed over to it for deciding the cases each on their respective merits, however, the plaintiff was never provided any opportunity of being heard as provided to other affected
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persons whereas in some cases the defendant has accepted the claim and handed over their respective properties to them; that the defendant has received payment in respect of the suit plot from the plaintiff and issued allotment thereof in favour of the plaintiff 30 years back which is still intact, therefore, the defendant cannot cancel or auction the plot without thorough consideration on his claim; that the defendant could only cancel the plot by a resolution passed by the Managing Committee of the society, which is duly convened in accordance with the bye-laws of the society and that also only if there is a violation of terms and conditions of the allotment or where some justified dues have not been paid after being demanded from the allottee whereas in the case of the plaintiff there are no outstanding dues nor any demand has been raised for the same, no illegality in the allotment of plot of the plaintiff in violation of terms and conditions have occasioned, therefore, canceling or auctioning the plot in question is illegal and that is also without any show cause notice to the plaintiff; that the defendant did not comply with the provision contemplated by the Byelaw No.55(G) of Defence Officers Housing Society while allegedly cancelling the plot of the plaintiff, therefore, the alleged cancellation is void ab initio and is of no legal effect. He lastly contends that the Power of Attorney dated 03.06.2013 executed by the widow of the plaintiff in Dhaka is a genuine and valid document and presumption as to authenticity and genuineness of Power of Attorney has been given under the provision of Article 95 of Qanun-e- Shahadat Order, 1984 which contemplates that every document purporting to be a power of attorney and which has been executed before and authenticated by a Notary Public or any Court, Judge, Magistrate or a Council General represented a Federal Government was so executed and authenticated. 10.The learned counsel for the plaintiff in support of his argument has placed reliance on the cases of (1) Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi reported in 2008 SCMR 611 (2) Mrs. Rosh Nak Nawab v. The Administrator Abandoned Properties Organization and 2 others reported in 1989 CLC 800 Karachi and (3) ANZ Grindlays Bank Limited v. Saadi Cement Company Limited and 2 others reported in PLD 2001 Karachi 143. 11.In the first case relied by the learned, counsel for the plaintiff, reported in 2008 SCMR 611 it is held by the Hon'ble Supreme Court that "Mere execution of 'A' Lease in favour of allottee in respect of the plot is not sufficient to create or convey any vested legal right in favour of the petitioner considering that very basis of allotment in favour of the petitioner by the Managing Committee of the dissolved society whose meeting was not held according to bye-laws." 12.In the next case reported in 1989 CLC 800 relied upon by the learned counsel for the plaintiff, in which I myself appeared as the counsel of the petitioner, it was held that "all the abandoned properties shall vest and shall be deemed always to have vested in the federal government on and from the sixteen day of December, 1971 under section 3 of the Abandoned Properties (Taking Over and Management) Act, 1975." 13.In the third case reported in PLD 2001 Karachi 143 relied upon by the learned counsel for the plaintiff, it was held that "under Article 95 of Qanun-e-Shahadat Order, 1984 the Court shall presume that a power of attorney which was so attested and authenticated before a Notary Public as valid and effective." The provision is mandatory and it is opened to the Court to presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfilled. It may further be pointed out that under Article 95 of the Qanun-e-Shahadat Order, 1984 the Court shall take judicial notice, inter alia, of all seals of Notary Public. At the end of his argument, the learned counsel submits that the suit is liable to be decreed as prayed. 14. While controverting the arguments of the plaintiff, the learned counsel for the defendant, Mr. Munawar Malik advocate has mainly relied upon the contents of the written statement filed by the defendant and the legal and factual pleas taken by it therein. However, briefly arguing on behalf of the defendant, the learned counsel has inter alia submitted that when the plaintiff applied for
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allotment of a plot in Defence Housing Authority vide his application dated 04.07.1968, which is Exh.5 to his affidavit-in-evidence, he mentioned his permanent address as Dacca, East Pakistan; that vide letter dated 07.10.1970 (Exh.5/B) plaintiff personally visited the office of the defendant and intimated about change of his temporary address at Karachi, which was situated quite near to the defendant's office; that vide letter dated 14.07.1970 the defendant informed the plaintiff that pursuant to draw held on 28.06.1970 the suit plot was allotted to him and the plaintiff was asked to clear the dues vide letter dated 17.07.1970 and on 08.10.1970 per Exh.5/C the plaintiff requested for time to clear the dues, however, the plaintiff sent a cheque of Rs.300/- towards mosque fund per Exh.4/J; that vide letter dated 13.10.1970 (Exh.5/D), the plaintiff was given further time to 31.12.1970 as last and final extension and vide letter dated 31.12.1970 (Exh.5/E) the plaintiff again requested for further time to clear the dues and assured to clear all the dues by 21.01.1971; that on 26.01.1971 the plaintiff only paid Rs.3,405.00 Rs.2000/- premium, Rs.200/- mosque fund and Rs.200/- towards ground rent whereas the plaintiff did not pay (i) increased development charges Rs.8,000/- (2) previous balance Rs.1,000/- (iii) ground rent Rs.400/- (iv) documents Rs.10/-, total amount to Rs.9410/-; that on the basis of part payment of dues as aforesaid, the plaintiff was issued allotment order on 09.03.1971 through which the plaintiff was directed to clear all the outstanding dues, however, the plaintiff not only failed to clear the dues but also shifted from Karachi without intimating the defendant about his changed address and vide letter dated 11.03.1973 E(Exh.5/F) the matter was put before the Managing Committee of the society under Clause 54(G) of Societies Byelaws for consideration and orders, upon which the Managing Committee cancelled the allotment of the…
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