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Petitioner: KPT Officers Cooperative Housing Society Limited VS Respondent: Government of Sindh & others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar Title:KPT Officers Cooperative Housing Society Limited vs Government of Sindh
& others Case No.: Suit No.735 of 2001 Date of Judgment:2019-02-12 Reported As: 2019 SHC 48 Result: N/A Judgment Muhammad Ali Mazhar-J. This lawsuit has been brought to entreat permanent injunction against the defend ants from taking any adverse action pursuant to impugned letter dated 21.04.2001 and not to cause any interference and obstruction to the land in possession of the plaintif f and its members/allotees. 2. The transitory facts are that the plaintif f is Cooperative Housing Society , governed under the provisions of Cooperative Societies Act, 1925. The land in question was owned by defendant No.5. On 29.11.1989 and 28.03.1990, the KPT Board sanctioned allotment of land measuring 78 acres and 27 acres in favour of plaintiff for 25 years which is located at Mai Kolachi bypass Express Way across Chinna Creek. The possession of land was handed over to the plaintiff by the Estate Department of defendant No.5 on 09.01.1990 and 20.07.1990. However on actual survey, the land was found to be 130 acres. The defendant No.5 in its meeting held on 01.06.1996 resolved to lease out the land for 99 years in favour of plaintiff for 130 acres. On 22.12.2000 the layout plan was submitted by the plaintiff for approval but suddenly in the month of March 2001 a news report was published showing the apprehension about danger of marine life and ecological environment of Karachi on account of development of land allotted to the plaintiff by defendant No.5. On 21.04.2001 the defendant No.1 sent a DO letter to convey that the Chief Executive during representation made by DHA on 14.04.2001 had desired the cessation of any development work in the area alleging that the said area has significance ecological value with reference to the environment of Karachi city. 3. The defendant No. 2, 3 & 4 filed their written statements and raised a plea that the land in question does not belong to KPT but it is owned by Government of Sindh. They also asserted that the defendant No.5 was never the owner of the land in question. However , in the written statement of the defendant No. 3 & 4 they have admitted that the defendant No.5 since 1887 exercised control over properties falling within the limits of KPT but these properties were never transferred by the Provincial Government to the KPT at any time. The defendant No. 5 in its written
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statement very vocally stated that all the title and interest in the property described in the plaint vests in Federal Government, Karachi Port Trust as mentioned in Schedule "A" read with Section 27, Section 29, 29-A, 33 and 40 of the KPT Act 1886. The subject land lawfully vests in the KPT and the defendant No.1, 2, 3 and 4 have no right, title and interest in the property in question. They supported the case of the plaintiff that the lease for 99 years was rightly granted in favour of the plaintiff with the prior approval and consent of the Federal Government. 4. The record reflects that originally this suit was filed only against six defendants i.e. Government of Sindh, Member Land Utilization, Board of Revenue, Commissioner Karachi, Deputy Commissioner Karachi West, KPT and Government of Pakistan through Ministry of Communication. However from time to time, different applications were filed by different interveners for impleading them as necessary party, therefore, the said applications were allowed infrequently and right now according to last amended title filed in view of the order dated 25.01.2016, twenty four defendants are in arena. The defendant No.7 filed written statement in which they have taken a plea that the land was allotted to the plaintiff in violation of law, destruction of mangroves in the Chinna Creek eastern back water will adversely affect environmental issues. It was further stated that the KPT Trustees and officials have misused their powers while allotting land to the plaintiff. Nobody appeared for defendant No.7 to argue the case neither filed any documents for admission nor denied the plaintiff's documents, rather the order dated 12.11.2008 reflects that their learned counsel filed an application for withdrawal of his vakalatnama which was allowed and the name of counsel was scored off from file cover. 5. On 07.04.2006 the issues filed by the plaintiff were adopted by this court with the directions that list of witnesses be filed within two weeks and documents and commission, if any, be notified within two months with further directions that after filing of the documents by the parties, the matter may be fixed before Additional Registrar for admission and denial of documents. However, on 16.12.2008, one additional issue was also framed as issue No.1 and the earlier framed issues were renumbered as issue No. 2 to 5. The issues settled by this court are as under:- 1. Whether on the pleadings of the parties, the Suit is maintainable in law? 2. Whether the Plaintiff is lessee of Suit land measuring 130 Acres at the Southern Bye-pass (Mai Kolachi Road) across Chinna Creek Back W aters Area, Off MT Khan Road, Karachi? Its effect. 3. Whether the Defendant No.1 is owner of the Suit Land? 4. Whether the letter dated 21.4.2001 (Annex O to the Plaint) is lawfully issued? Its effect. 5. What should the decree be? 6. After framing additional issue again this court vide order dated 16.12.2008 allowed four weeks' time to file documents for admission and denial before the Additional Registrar. It was further observed in the order that if the documents produced by the parties are admitted by the parties counsel then no oral evidence needs to be recorded and matter may be fixed straightaway for final arguments. The diary of Additional Registrar O.S. dated 03.03.2009 indicates that in compliance of the order dated 16.12.2008 the exercise of admission and denial of the documents was completed. Since the contesting defendants did not deny the documents produced by the plaintiff, hence on 30.03.2009, the learned single judge by consent directed that the matter may be fixed for final arguments as no oral evidence needs to be recorded. 7. The Issue No.1 germane to the maintainability of the suit, the learned counsel for the plaintiff Mr. Mushtaq A. Memon argued that this suit was filed on account of issuance of D.O. letter dated 21.4.2001 by the Chief Secretary Sindh to the Chairman KPT conveying oral directive of the then Chief Executive of Pakistan that no land development work should be carried out in the vicinity of Mai Kolachi Bypass followed by another Memorandum dated 14.5.2001 addressed by the then Chief Secretary Sindh to the Commissioner Karachi Division requiring the later to take up the matter with the President of the plaintiff-society ensuring stoppage of reclamation and development work in the vicinity of Mai Kolachi Bypass. Neither the title over the land was questioned nor had any right of ownership vesting in the Government of Sindh asserted. The directive allegedly issued by the then Chief Executive of Pakistan had no legal sanctity inasmuch as, firstly, it was not based on a contemporary law nor had cited any legal provision as the source of such directive. The plaintiff-society had not reclaimed any land from the sea. In support of his contention, the learned counsel referred to various documents produced by the plaintiff to
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strengthen their title. It was further averred that the documents produced by the plaintiff conclusively show that the subject land which is located much closer to the sea that (a) the land was acquired by Karachi Development Authority for development of Scheme No.5 Clifton, (b) Hijrat Colony land measuring 75 acres and (c) land reclaimed by the Defence Officers Housing Authority for extension of Phase-VIII. The Government of Sindh and KDA, apart from the principle of promissory estoppel, cannot dispute the ownership of KPT over the subject land which is leased out to the plaintiff-society by KPT. He argued that the title of land is not in dispute, therefore the injunction has been prayed as main relief without seeking declaration. Moreover , relief of declaration is to be considered implicit in a suit for possession or injunction. Reference to such proposition was invited through a judgment reported in PLD 2014 SC 380 (Hazratullah & others vs. Rahim Gul & others). The learned counsel further averred that in the absence of any challenge or dispute to the title of plaintif f and or KPT through Memorandum dated 14.5.2001 and correspondence dated 21.4.2001, there was no requirement to pray for declaration. In support of this contention, the learned counsel also referred to following judicial precedents:- PLD 1987 Karachi 676 (Nizar Ali vs. Noorabad Cooperative Housing Society Ltd. & others), 2001 YLR 1767 (Haji Muhammad Hussain & others vs. Muhammad Abbas), 2003 CLC 122 (Faqirullah & others vs. Khadim Hussain), 2005 SCMR 1872 (Sultan Mahmood Shah & others vs. Muhammad Din & others), 2007 SCMR 236 (Aurangzeb & others vs. Muhammad Jaffar & another) and 2014 CLC 945 (Syed Munawar Hussain Shah vs. Syed Nusrat Hussain & others) 8. While addressing issue No.2 and 3, the learned counsel argued that apart from the admitted documents wherein various functionaries of Government of Sindh as well as the Federal Government decision of the Inter Provincial Conference dated 18.11.1978, recognizing the ownership of land of KPT. Section 27 of KPT Act read with Schedule-A to the said Act conclusively shows that the subject land is owned by KPT. The provision of Section 27 of the KPT Act elucidates that property specified in Schedule-A shall vest in the Board. Item No.XXI of the Schedule-A exemplifies the property included in the Schedule as: "land between China Creek embankment and the sea". The map prepared as a result of joint demarcation also shows that the subject land is part of the land owned by KPT. The reference to interlocutory order passed in Suit No.778/1998 by the learned counsel for Government of Sindh is misconceived. Firstly, an interlocutory order does not lay down law; secondly, KPT was not party to Suit No.778/1998 and an interim order passed during the course of litigation, cannot bind a person who is not party thereto; and thirdly , Suit No.778/1998 pertained to the land reclaimed from sea. Likewise, the order passed in the case of Modern Terminal Operator by Justice Zia Pervaiz (as his Lordship then was) is also of no help to the defendants since it was set aside by a Division Bench of this court in High Court Appeal. In the present suit, the subject land has not been reclaimed from sea or any river. The land which was granted on lease to the plaintif f consisted of marshy land where the main sewerage from Karachi was discharged. The subject land or its part was not under the sea and the Sea-Retention Wall had been built much prior to the grant of lease to the plaintif f, therefore, the principle enunciated in Suit No.778/1998 is not applicable to the present Suit. It was further contended that the grant of long term lease for 99 years to it, is proved from the admitted documents filed by the plaintif f which includes resolution of KPT Board dated 2.11.1989, Sanction letter by KPT dated 9.1.1990, KPT Board Resolution dated 28.3.1990 for allotment of additional land, lease deed dated 11.5.1990 (25 years) for 78 acres, lease dated 19.12.1991 (25 years) for additional 27 acres, approval by the Federal Government for 99 years lease favoring plaintif f dated 3.7.1996, Sanction letter for 130 acres of land with possession and for 99 years lease dated 26.8.1996, modification of both lease for extension of tenure to 99 years dated 23.10.1996 and 24.10.1996. Moreover , in acknowledgment of the right of plaintif f-society as lessee, the District Registrar Karachi, through Memorandum dated 13.3.1995 had directed area Sub-Registrar to admit docume nts for registration in relation to the subject land. These documents and admitted position of record proves that plaintif f is lessee of subject land. It may be submitted that approval of Federal Government was mandatorily require d for grant of 99 years lease in terms of provision in Section 18(2) of the KPT Act. 9. With regard to Issue No.4, the learned counsel addressed that perusal of the letter dated 21.4.2001 and memorandum dated 14.5.2001 do not cite any authority for issuance of the order. It is settled principle of law that executive functionaries do not have nor can exercise power unless expressly conferred by some statute. No
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inherent power can be assumed by the public functionaries in the absence of specific provision of law. It is settled that there is no inherent power in the Executive except what has been vested in it by law, and that the law is the source of all power and duty. Reference was invited to a judgment reported in PLD 1965 Dacca 156 (Haji Ghulam Zamin & another vs. A.B. Khondkar & others) and PLD 1967 Dacca 607 (Haji Ghulam Sabir vs. Pan Allotment Committee & another). An oral order has no legal sanctity and cannot be given effect. Reference in this behalf was made to a judgment reported in PLD 1976 Karachi 207 (Majidullah & others vs. National Industrial Relations Commission, Karachi). The arguments advanced by Mr.Mushtaq A.Memon Advocate were adopted by Dr.Farogh Naseem (counsel for plaintiff) and Mr.Abdullah Munshi, learned counsel for the defendant No.5. 10. Mr. Faisal Siddiqui, learned advocate for defendants No. 8 to 10 & 12 to 20 argued that the land in question has been rightly allotted to the plaintif f by the defendant No.5 and the Federal Government. The interests of the defendants No.8 to 20 in the suit land is protected under Section 41 of Transfer of Property Act, 1882. The defendants No.8 to 10 & 12 to 20 are third party purchasers of individual plots in the suit land and they claim title to individual plots in the suit land by virtue of registered conveyance deeds executed in their favour by persons who were sub-lessees of the plaintiff. Moreover, the defendant No.20 claims title to individual plots carved out from the suit land and base the claim upon sub-leases executed by the plaintiff. The defendants No.8 to 10 & 12 to 20 are bona fide purchasers for value, having no knowledge about the dispute over the suit land and have acted in good faith, hence, the interests of the defendants No.8 to 10 & 12 to 20 in the suit land are protected by virtue of Section 41, Transfer of Property Act, 1882. In support of this contention, the learned counsel referred to PLD 2005 Supreme Court 511 (Muhammad Saleem Ullah & others vs. Additional District Judge, Gujranwala & others) and 2002 SCMR 2003 (Muhammad Nawaz Khan vs. Muhammad Khan & others). It was further contended that the protection of Section 41, Transfer of Property Act, 1882, is not limited to the purchaser from the ostensible owner but also extends to subsequent purchasers. He also referred to AIR 1940 Calcutta 565 (Purnendu Nath Tagore vs. Hanut Mull Dogar & others), 96 Ind Cas 199 (Gholam Sidhique Khan & others vs. Jogendra Nath Mitra & another) and AIR 1923 Calcutta 240 (Baidya Nath Dutt vs. Alef Jan Bibi & others). 11. Mr. Ravi Pinjani, advocate for defendant No. 24 argued that in light of language of Article 172(2) of the Constitution of the Islamic Republic of Pakistan 1973 as it stood on the date of the institution of the suit (i.e. prior to the amendment made to Article 172(2) of the Constitution by the 18t Amendment to the Constitution in April 2010); the reclaimed land forming the suit property belongs to the Federal Government, which has duly leased it to the plaintif f through the defendant No.5. Accordingly , the defendant No.1 cannot lay any claim to it. The defendant No.24 and similarly placed persons must be protected by reason of the doctrines of promissory estoppel and legitimate expectation. He further argued that the question of entitlement as between the Federal Government and the Province was on the date of the institution of the suit. In respect of lands within the continental shelf but beyond the territorial waters, the situation remains unchanged as the Federal Government remains the exclusive owner. He further argued that the Division Bench of this Court in HCA 236/2009 was perhaps not assisted in the best manner to appreciate the effect of Article 172(2) of the Constitution both before and after the 18t Amendment Act 2010. He further averred that the honourable Supreme Court in its order dated 05.05.2015 was pleased to dispose of the petition for leave against the order of the Division Bench (CP No.2191/2013) that the observations made in the judgment dated 3.9.2013 in HCA 236/2009 and the earlier order dated 7.7.2009 on CMA 6159 of 2009 shall be deemed to be tentative in nature for all intents and purposes, therefore at the final disposal of the suit the same shall not prejudice the interest of the litigating parties to these proceedings. 12. Mr. M. Afzal Awan, learned advocate for defendant No.9 to 11 argued that his clients have third party interest in the Plot bearing No. B-119, measuring 600 Sq. Yds. situated at plaintif f's Society against the payment of valuable consideration. The defendant No. 11 purchased the said plot on 28.01.2005 through a Conveyance, which was registered by the Sub-Registrar .h h
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13. Mr.Ziauddin Junejo, learned Assistant Advocate General Sindh argued that the purpose of allotment was to build residential houses for KPT Employees. In the suit No. 778/1998, this court held that reclaimed land vests in Province of Sindh. The grant of land does not confer title and the Land belongs to Province of Sindh as per Constitution of Pakistan and Sindh Land Revenue Act 1967. The then Chief Executive/President General Pervaiz Musharraf stopped the reclamation of the land on Constitutional grounds which order was communicated to the KPT through the Chief Secretary Sindh. The KPT Act only confers easement/license/profit as prendre rights for the performance of KPT's functions within the limits prescribed by Section 3 of the KPT Act. Section 3 of the KPT Act empowers the Federal Government to define and alter the limits of the Port. The object of Section 3 is only with regard to the Administrative control of the area within the limited scope of powers available to KPT under the Act. Under Section 18, KPT can lease, sell or otherwise transfer its properties. It was further added that powers to grant rights to land are vested in Province and exercised through Colonization of Government Land 1912. (Statement of conditions under Section 10 of the colonization of government land 1912). The learned counsel referred to PLD 1978 Lahore 113 (Abdur Rahman Mobashir and others vs. Syed Amir Ali Shah Bokhari and others) & AIR 1961 CAL. 411 (Sanat Kumar vs. Hem Chandra). It was further contended that the registration of the lease deed between the KPT and plaintiff are void. No transfer of property could take place in terms of the Transfer of Property Act and the Registration Act. 14. Mr. G.N. Qureshi, learned advocate for BOR argued that the channel known as China Creek is flowing in between Keamari in the mainland through swampy track, another channel is flowing from Keamari point towards Custom House which was in use for small boats and the channel was very shallow. It was terminated into a narrow creek near the town and from there the boats were pulled up to the shore at High Water. The Napier Mole was constructed in the centre of China Creek divided it into two portions i.e. East Wharf and West Wharf. At the Eastern side of China Creek, a railway line was constructed from Keamari up to main line and due to construction of said railway line and the Napier Mole, the area of China Creek came under the reclamation which was filled by flood tides and silt. The first KPT limits were fixed through notification issued by the order of Governor on 23.03.1887. According to the report published in KPT news bulletin Vol. XIV Nos.10-11 that in the year 1909 reclamation of land was started from the China Creek and 177-00 acres of tidal swamp land was purchased from the Karachi Municipality for further expansion. Then followed the reclamation of 61-00 acres upon which the Mansfield Import Yard was laid out and further 115-00 acres between Keamari and China Creek which enable extension of the railway yards in that area. In support of this contention, the learned counsel referred to Section 37 of Bombay Land Revenue Code 1879, Section 64 of the Land Revenue Code, 1879 and Section 50(1) of the Sindh Land Revenue Act 1967. He also referred to Article 152, 172 and 173(5) of the Constitution. It was further averred that according to the Record of Rights only one entry is available in the Register regarding Queens Quarters where in KMC granted the land measuring 26130 sq. yards to the KPT in lieu of 31787 sq. yards of land taken over from KPT at New Khada. The KPT is presuming that all the land which is in the boundary possession of the KPT is the property of KPT. At the time of separation of Sindh from the Bombay presidency, the Government of India fixed new boundaries and altered the limits of the KPT vide notification dated 02.05.1949 and excluded the entire Dry Land/Resumed Land from the KPT boundary but the KPT has been insisting that, its boundaries are those which were in the year 1875. He further argued that the then Member (Land Utilization), Board of Revenue Sindh pointed out to the Sub-Registrar Clifton, Karachi some violation regarding registration of sale documents in respect of KPT Officers Housing Society but the instructions issued to the Sub-Registrar were withdrawn on 06.11.2003. The KPT Officers Housing Society filed CMA No.6159/2009 for modification of order dated 22.3.2005 and this court on 07.07.2009 modified the said order. Against the order dated 07.07.2009, the Land Utilization Department filed HCA No.236/2009, the learned division bench set aside the impugned order and dismissed the compromise application with the directions to the single Judge to proceed the case in accordance with law. Against this order plaintiff had filed C.P. No.2191/2013 in the Supreme Court of Pakistan. 15. Heard the arguments. Issue No.1 is correlated and concomitant to the maintainability of the suit. Nonetheless, the nomenclature and cataloguing of the lawsuit expresses and articulates a suit for declaration and injunction but in the nutshell and practicality it is a suit for permanent injunction lonesome in which the interim and or final or
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consequential relief is one and same that the defendants be restrained from causing any interference to the possession of land in possession of the plaintif f and its members, situated at South ern bypass, Mai Kolachi across Chinna Creek backwater area, M.T. Khan Road, Karachi in pursuance of impugned letter dated 21.04.2001. These directives were allegedly issued in the backdrop of information that KPT is undertaking land development work in the vicinity of Mai Kolachi bypass. First of all no written directions, if any, issued by the C.E.O. were attached with this letter nor in this letter any claim was lodged by the Chief Secretary which may tantamount to believe that the title of the land in question is in dispute and or the Sindh Government is claiming their title on the land including Board of Revenue. The record insinuates that on 22.03.2005 this court ordered the parties to maintain status quo. However , the order dated 07.07.2009 reminiscences that CMA No.6159/2009 was filed for modification of the order dated 22.03.2005 bearing in mind the minutes dated 18.03.2009. This order further resonates that Sub-Committee was constituted by the Chief Secretary Sindh to work out a via media between Government of Sindh and the plaintif f and Sub-Committee proposal is also reproduced in the said order . It is further reflected from the same order that the Secretary Member (L.U) Board of Revenue had agreed that ban be lifted on the undertaking given by the society on certain conditions. In paragraph No. 9 of the same order it was decided by consent that after securing undertaking, the ban on transfer and mutation shall be lifted to the extent of 130 acres only. Despite consent order , the Member (L.U), Board of Revenue, Chief Secretary Government of Sindh, DCO, CDGK and EDO (Revenue), CDGK filed High Court Appeal No. 236/2009. The learned Division Bench set aside the order and dismissed the compromise application i.e. CMA No.6159/2009. 16. What I perceived and sensed from the tenor and sagacity of the above order that the learned division bench was much concerned and anxious to the mechanism devised by the parties for compromise. Nevertheless, the order dated 07.07.2009 was passed by consent on the basis of minutes of Sub-Committee constituted by the Chief Secretary , the order was…
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