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Petitioner: Mst. Aysha Begum VS Respondent: Province of Sindh through Secretary Housing and JUDGMENT
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Muhammad Faisal Kamal Alam Title:Mst. Aysha Begum vs Province of Sindh through Secretary Housing and
JUDGMENT
Reported As: 2022 YLR 2219 Result: Petition allowed Judgment JUDGMENT IRFAN SAADAT KHAN, J. The instant petition has been filed with the prayer for restoration of the possession of a residential plot bearing No.B-210 measuring 400 sq. yds, Block-3, Scheme No. 36, Gulistan-e-Jauher Karachi. It is the contention of -the petitioner that the said plot was allotted to her late husband namely M. Omer Arabi, through computer ballot held by KDA in April 1983, by the allotment order No.0743/L&E/N8/473, dated 05.09.1984 and after the demise of her husband on 10.02.1986 the said plot was transferred in her name, vide Mutation Order No.KDA/L&E/NS/87/15 dated 5.1.1987. As per the petitioner due to the illegal acts of the Respondents Nos. 2 to 7 her plot was renumbered as B-209/1 and thereafter allotted to other persons. The petitioner, by way of filing the instant petition has prayed for issuance/ directions by this Court that the action of the Respondents Nos. 2 to 7 (hereinafter referred to as the KDA) may be declared as illegal, without legal and lawful authority, without jurisdiction, having no legal effect, to issue directions for conducting enquiry against the KDA officials for their illegal act, issue directions to the KDA to remove all the encroachments made upon the plot owned by the petitioner, to restrain Respondents Nos.9 to 13 from claiming ownership of the plot to raise any construction thereupon, sell, dispose of and to create any third party interest on the said plot. 2. Briefly stated the facts of the case are that a plot numbered B-210, was originally allotted by way of computer ballot to one M. Omer Arabi son of Ismail Arabi (now deceased; husband of the present petitioner) in the year 1983 vide Allotment Order dated 05.9.1984. M. Omer Arabi expired on 10.2.1986 and thereafter the above referred plot was mutated, by way of inheritance by the KDA, vide Mutation Order No.KDA/ L&E/NS/87/15 dated 05.01.1987, in favour of the petitioner. Thereafter
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the KDA vide letter No.KDA/L&E/NS/89/ 216 dated 14.2.1989 confirmed full payment of the plot in petitioner's favour and thereafter issued a certificate bearing No. KDA/L&E/NS/89/217 dated 14.2.1989 confirming that the plot was originally allotted to M. Omer Arabi and was then transferred in the name of present petitioner. The petitioner applied for handing over possession of the plot to her. The KDA then prepared Site Plan on 21.9.1994, which shows the boundary and description of the said Plot. Thereafter other necessary legal requirements, for example, issuance of Possession Order dated 22.9.1994 and demarcation order dated 15.10.1994 were made by the KDA authorities in favour of the petitioner. It was also confirmed by the KDA that the petitioner has taken over the possession of the plot. Since the petitioner did not have sufficient funds to raise construction upon the said plot and as she remained busy in looking after her children, after the death of her husband, hence she could not visit and look after her plot for quite some time. The petitioner in 2017 visited her plot and found a boundary wall on the plot. When she inquired about it, she came to know that her plot has been renumbered as Plot No.B-209/1, upon which construction was going on. The petitioner then made a number of complaints to the government officials, including KDA, that how construction was being raised on her property and as to how her property has been renumbered as Plot No.B-209/1 by the KDA authorities/officials. She also made requests to the Respondent/department to remove the encroachers from her plot (A number of documents regarding her complaints are available on the record). It may be noted that when the petitioner approached the KDA officials, she was informed since some encroachments were made on her plot hence the whole lane, on which petitioner's plot was located, was renumbered, rearranged and the plots on the lane were marked as Plots Nos.B-209, B-209/1 and 211. The KDA officials also informed the petitioner that the Plot No.B-209/1 has been allotted to some five persons in their joint names (present respondents Nos.9 to 13). The petitioner was not only astonished but was also surprised as to how her plot bearing No.B-210 has been marked, reallocated and renumbered as Plot No.B-209/1. The petitioner then objected to the said reallocation, renumbering done by the KDA behind her back. The KDA officials then offered an alternate plot to her to which she did not agree and then, when she was left with no option, filed the instant petition. 3. Notices thereafter were issued to the respondents, while vide order dated 12.9.2017 passed by this Court the respondents Nos.9 to 13 were restrained from raising any construction on the said plot. 4. Mr. Bauar Alam, Advocate has appeared on behalf of the petitioner and submitted as under:- 5. He stated that the Plot bearing No.B-210 originally belonged to the late husband of the present petitioner. He stated that the said plot was allotted by the KDA through a computer ballot held in 1983 in favour of the late M. Omer Arabi (husband of the petitioner). He stated that the husband of the petitioner expired on 10.2.1986 and thereafter plot was transferred, by way of inheritance, in the name of the petitioner vide possession order dated 22.9.1994 and acknowledgment of the possession order dated 15.10.1994. He stated that since after the demise of the husband of the petitioner the petitioner had to look after her children she could not visit the plot for some time. However, when in the year 2017 she went to the site, she was astonished that construction was going on her plot. However when she enquired from the people engaged in construction who informed her that the plot belongs to one Manzar Masood and others. She thereafter contacted Manzar Masood, who informed her that this is his plot bearing No.B-209/1 upon which he is raising construction. Thereafter dispute arose between the petitioner and the said persons with regard to the ownership/ possession of the plot. Thereafter the petitioner moved a number of complaints/ representations to the government officials including the concerned SHO but when the petitioner realized that it would be a futile exercise then the instant petition was filed and a restraining order was obtained. 6. Mr. Alam, further stated that at no point of time KDA officials have denied that the petitioner is not the owner of the plot No.B-210 but in order to cover up their illegal act have stated that Plots
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Nos.209/1 and B-210 are two different plots. According to the counsel it is in fact the plot No.B-210 which has illegally been termed and marked as Plot No .B-209/1 and thereafter initially allotted to one Mr. Markhani in an illegal manner. He stated that since the very allotment of the plot of the petitioner by rearranging / renumbering was illegal hence all the subsequent events with regard to the sale of the plot No.B-209/1 by Mr. Markhani or the subsequent purchasers was illegal. According to him even if it is assumed that the Respondents Nos.9 to 13 have purchased the plot bearing No.B-209/1, after fulfilling the legal and codal formalities, but since the very rearranging / renumbering of the plot of the petitioner bearing No.B-210 was illegal hence the entire chain of events through which the Plot No.B-209/1 was allotted to Mr. Markhani and then sold out to other persons was illegal and has to be declared as a void or sham transaction by the KDA officials done with the connivance of Mr. Markhani, or on the instructions of their superiors with mala fide intention. According to him the KDA officials had no authority / jurisdiction to allot the plot belonging to the petitioner bearing No.B-210 by rearranging / renumbering it as Plot No.B-209/1. He therefore vehemently stated that this action of the KDA officials may be declared as null and void. 7. Learned counsel next invited our attention to various letters issued by the KDA from time to time and stated that from all these letters it is evident that a serious prejudice has been caused to the petitioner by the illegal action of the KDA authorities by rearranging / renumbering the whole lane and thereafter allotting the plot belonging to the petitioner to Mr. Markhani, on whatever reason. He stated that the petitioner's claim is that possession of her plot bearing. No.B-210 may be handed over to her as she has proved that she is the owner of the said plot which has illegally been allotted by terming it as Plot No.B-209/1 to others. 8. The learned counsel next stated that the offer of the KDA with regard to alternate plot appears to be a mockery with the petitioner as why should the petitioner accept alternate plot when she is the owner of Plot No.B-210. He stated that the offer of alternate plot, if any, may be given to the Respondents Nos.9 to 13 and heavy cost may be imposed upon the KDA officials in this regard. He stated that since the respondents have already filed a Suit bearing No.1757/2017 against the KDA officials hence they may be directed to adopt the legal procedure as available to them under the law but the possession of the plot belonging to the petitioner has to be given to her. 9. He next invited our attention to the counter affidavit filed by the KDA officials, which according to him supports his view rather than that of the Respondents Nos. 9 to 13. He also invited our attention to the comprehensive Inquiry Report of the KDA officials which according to him also supports him. In support of his above contention the learned counsel has placed reliance upon the decision given in the case of Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi (2003 SCMR 611), wherein it was held by the Hon'ble Supreme Court that if a lease was illegal the same would not have any legal effect and create a vested right. According to him since the very allocation of the plot bearing No.B-209/1 to Mr. Markhani was illegal hence even if the Respondents Nos. 9 to 13 have purchased the plot after fulfilling the legal and codal formalities they cannot claim ownership rights on the Plot No.B-210, which belongs to the petitioner and the petitioner is entitled to get the possession of the said plot in accordance with law. The learned counsel stated that why should the petitioner suffer on behalf of illegal acts done by the KDA officials and, as stated above, if the respondents have any grievance, they should agitate their matter against the KDA officials in accordance with law. The learned counsel next relied upon on the decision given in the case of Farkhanda Jabeen, Lab. Assistant, Government High School Thathi Kasguma, District Bhimber and 94 others v. Azad Government of the State of Azad Jammu and Kashmir, through its Chief Secretary having its office at new Secretariat, Muzaffarabad and 57 others (2016 PSC 120) that "illegal orders do not create any vested right". Learned counsel then placed reliance on the decision given in the case of Senate through Chairman v. Shahiq Ahmed Khan (2016 SCMR 460) in support of his argument that illegal notifications / orders are not enforceable
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under the law. Learned counsel next placed reliance on the decision given in the case of Tahir Humayun and others v. High Court of Balochistan through Registrar and others (PLD 2016 Balochistan 56) that illegal acts cannot become legal due to efflux of time and in such cases neither estoppel nor limitation would apply. He next relied on the decision given in the case of Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others (PLD 2010 Karachi 236); that if something is not permissible directly it cannot be done indirectly. He in the end stated that a writ of mandamus may be issued in favour of the petitioner as her fundamental rights, as enshrined under Articles 4, 23 and 24 of the Constitution of the Islamic Republic of Pakistan, 1973, have been violated and this petition may be allowed as prayed. 10. Mr. Zia-ul-Haq Makhdoom, Advocate has appeared on behalf of Respondents Nos. 10 to 13 and submitted that the Respondents are the owners of the plot bearing No.B-209/1, as before purchasing the same, they have fulfilled all the legal requirements and have taken all reasonable care and caution required for a prudent purchaser in this regard. He stated that before purchasing the plot due legal formalities, which included publication in newspapers and obtaining / getting verification from KDA authorities and other relevant and concerned departments, were fulfilled. He submitted that the KDA has endorsed that the documents, on the basis of which the plot No.B- 209/1 was purchased by the said respondents, were genuine and have also endorsed that the transaction of purchase of the plot was in accordance with law. He further stated that the Respondents are the fifth owners of the plot, who have purchased the same after verifying the record from the KDA authorities and therefore cannot be termed to be either usurpers or the persons who have purchased the plot without legal and lawful justification. The learned counsel then pointed out towards the chain through which the respondents have purchased the Plot No.B- 209/1. According to the learned counsel the plot No.B-209/1 originally belonged to one Shamsuddin Markhani (hereinbefore and after referred to as Mr. Markhani) from whom the plot was purchased by one Mst. Almana Fasih, from whom the plot was purchased by one Ch. Khalid Pervez Gondil, from whom the plot, was purchased by one Muhammad Aslam Qureshi and others, and from Mr. Qureshi the plot was purchased by the present Respondents Nos. 9 to 13. He stated that all the above referred purchasers have purchased the plot after fulfilling the legal and codal formalities and hence in his view the petitioner has no locus standi to claim possession / ownership of the plot No.B-209/1. According to him the petitioner may be allotted an alternative plot, as duly endorsed and confirmed by the KDA authorities, but under no circumstances the petitioner can be given the possession of the plot, owned by the Respondents. 11. Mr. Makhdoom, further submitted that at no point of time the respondents have purchased the plot bearing No.B-210, as the respondents claim ownership of the plot bearing No.B-209/1. He stated that in his view these are two different plots and has invited our attention to the site/master plans available at pages 141, 151, 213, 555, 589 to show that the plots Nos.B-209/1 and B-210 are two different plots. He stated that even for arguments sake, if it is assumed that the Plots No.B-209/1 and B-210 are one of the same plots, since the petitioner has not come forward to claim possession of the plot in a timely manner hence the petitioner is only entitled for an alternative plot, as suggested by the KDA authorities. 12. Mr. Makhdoom next submitted that the instant petition is also hit by latches as the deceased husband of the petitioner was allotted the plot in the year 1984 and after the death of the husband of the petitioner the plot was transferred in her name in the year 1987, whereas it was only as late as in the year 2017 when the petitioner woke up from a slumber and has started making efforts for possession of the plot by giving applications to different government departments and then has filed this petition, which in his view is badly hit by latches. Learned counsel in support of his contention has placed reliance on the decision given in the cases of Syed Asif Majeed and 5
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others v. A.D.C.(C)/asc(L), Lahore and 15 others (2000 SCMR 998) and Muhammad Din v. Abdul Ghani and another (2012 SCMR 1004), 13. The learned counsel next submitted that the utilities bills, PT-1 Form etc. are in favour of the Respondents, hence provision of Sections 42, 54 and 55 of the Specific Relief Act, are fully attracted in the instant matter, therefore, the Respondents are to be considered as the bona fide owners of the plot. The learned counsel next submitted that the Respondents are the ostensible owners of the Plot No.B-209/1 and the petitioner may be directed to approach the KDA for allotment of an alternate plot, if any, but the petitioner cannot claim ownership of the Plot No.B-209/1 which is owned by the respondents Nos.9 to 13. The learned counsel in this regard has placed reliance on the decision given in the case of Inayatullah Khan and others v. Shabir Ahmed Khan (2021 SCMR 686). 14. The learned counsel next submitted that the instant petition is not maintainable as the same involves disputed questions of law and facts hence the petitioner may be directed to approach Civil Court in this regard as according to him if the petitioner is having documents in her favour with regard to the ownership of the plot bearing Plot No.B-210, the respondents also possess proper legal authenticated documents in respect of the plot bearing Plot No.B-209/1 and if there is some factual dispute the same could only be resolved in a Civil suit. He stated that the respondents Nos.10 to 13 have already filed a suit bearing No.1757 of 2017 against the petitioner and the KDA for possession, in which vide order dated 13.7.2017 the parties have been directed to maintain status quo. In support of his contention the learned counsel has placed reliance on the decision given in the case of Ali Gohar v. Province of Sindh and others (2018 CLC 1999) (comprising of a bench in which one of us namely Irfan Saadat Khan, J., was a member). He also relied upon the decision given in the case of Messrs SF Engineering Services through Proprietor v. Federation of Pakistan through Secretary, Water and Power, Islamabad and 4 others (PLD 2014 Sindh 378). He in the end stated that in view of the facts and the case law, the instant petition may be dismissed. 15. Ms. Riffat Bano, Advocate has appeared on behalf of Respondent No.9 and has adopted the arguments of Mr. Zia-ul-Haq Makhdoom, Advocate. Mr. Mehran Khan, A.A.G. has appeared on behalf of Respondents Nos. 1, 8, 16 and 17 and has also adopted the arguments of Mr. Zia-ul-Haq Makhdoom, Advocate. Nobody has appeared on behalf of Respondent No.15 SBCA on the dates of hearing. Mr. Mubarak Ali Shah, Advocate has appeared on behalf of Respondents Nos.2 to 7 and 14 the KDA and has also adopted the arguments of Mr. Zia-ul-Haq Makhdoom, Advocate and has further stated that due to the china cutting and encroachments made in area, the plot of the petitioner was rearranged and renumbered and then the Plot No.B-210 was assigned Plot No.B- 209/1 after fulfilling the legal formalities. He stated that the claim of the Respondents Nos. 9 to 13 with regard to the ownership of the Plot No.B-209/1 is correct. He however, stated that since a prejudice has been caused to the petitioner due to rearrangement and renumbering of the entire lane, the department is ready to offer an alternate plot of equal size to the petitioner. 16. Mr. Alam, learned counsel for the petitioner in his rebuttal stated that the principle of laches and disputed questions of fact and having utilities bills and PT-I Form in favour of the Respondents would not be of any help to the Respondents, as according to him when the petitioner visited the site in 2017 she came to know about the construction is being raised on her plot and thereafter in the same year, that is 2017, she has filed the instant petition, hence the principle of laches is not applicable in the instant matter. Moreover, since the cause of action is a continuous one hence petition is not hit by laches. He next stated that this is not a case of disputed questions of fact as whatever has been argued by him is based upon the undisputed documents available on the record, veracity of which has not been questioned or challenged by the Respondents, therefore, in his view this argument is not available to the Respondents. He further stated that having PT-1 form and bills in one's name is also hot available to the Respondents as it is settled principle of law that
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the PT-1 form and the utilities bills do not confer ownership upon a person. He further stated that Plot No.B-209/1 is a fictitious plot, which has been overlapped/superimposed upon Plot No.B-210 According to the learned counsel since in the Inquiry Report it has been admitted by the KDA officials that the Plot No.B-209/1 has illegally been fitted in t approved layout plan in place of regular plots, the same is required to be cancelled. It is also mentioned in the report that 1 e first right of allotment is of the allottees who acquired the plots by way of computer balloting and not that of Minister Quota, if any. Hence according to him for all practical purposes it is to be admitted that the Plot No.B-210, belonging to the petitioner, has illegally been rearranged / renumbered as Plot No.B-209/1 and a serious prejudice has been caused to the petitioner by the KDA officials which has to be redressed by allowing the present petition. He next submitted that the provisions of sections 42, 54 and 55 of the Specific Relief Act have no bearing whatsoever upon the instant matter. 17. He next stated that if some goods are stolen and subsequently recovered it cannot be assumed that they would become the property of the pc: son from whom these goods are recovered. He stated that since Plot No.B-209/1 is a fictitious plot, hence it is to be considered as if the Respondents Nos.9 to 13 are occupying the stolen property of the petitioner and hence are liable to return the same to her in accordance with law. He finally stated that in view of the above facts, circumstances, submissions and the decisions relied upon by him the instant petition may be allowed with cost by giving specific directions to the KDA officials to cancel all the documents/ allotment orders etc. pertaining to Plot No.B-209/1 and the respondents Nos.9 to 13 may be directed to hand over possession of the plot to the petitioner and to direct the SBCA authorities to cancel the building plan etc. issued by them in respect of the Plot No .B-209/1 . 18. We have heard all the learned counsel at considerable length and have perused the record and the decisions relied upon by them. 19. In order to ascertain present matter in its entirety, we deem it appropriate to discuss the facts of the case in some detail. 20. The controversy mainly revolves around the following issue: Whether the Plots Nos.B-209/1 and B-210 are separate and distinct, plots, owned by the petitioner and the private respondents or these plots are one and the same? 21. In the above paragraphs detailed discussion with regard to the ownership of the plot bearing No B-210, ownership of which has been claimed by the petitioner, has been discussed. We will now dilate upon the ownership of plot bearing No. B-209/1. 22. Record reveals that one Mr. Markhani was allotted Plot No.B-191 in the year 1990 on Minister's Quota, which subsequently was found to be encroached upon due to china cutting, as stated by the Respondent KDA. The KDA authorities then redesigned / renumbered the whole lane of plots starting from No.B-206 and ending at B-219 and thereafter carved out an entirely new Plot No.B- 209/1 upon the instructions of their high-ups. How the said plot was allotted by a Minister to Mr. Markhani in the year 1990 has remained an unsolved mystery. The KDA officials then prepared the documents of the plot bearing No.B-209/1 in favour of Mr. Markhani in the year 1993, as an alternate plot to Plot B-191. 23. In the survey plan available at page-81 of the file, duly signed by Executives of the Respondent KDA, Plots Nos.B-209, B-209/1 and B-211 have been shown whereas in the Site plan, available at page 43, of the file, shows the arrangement of the Plots as B-209, B-210 and B-211. In the map also [available at page 49 of the file] Plots No.B-209, B-210 and 211 can be seen. A clear distinction could be noted in both these documents furnished by the KDA, however it is strange to note that in the map survey furnished by the KDA somehow or the other the Plot No.B-210 had vanished without any plausible justification. After the allotment of the plot bearing No.B-209/1 to Mr. Markhani, in the year
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1993, the said person sold out the same to one Mst. Almana Fasih in the year 2008, who sold out the same to one Ch. Khalid Pervez Gondal in the year. 2009, who sold out the same to one Muhammad Aslam Qureshi and others in the year 2013, who then sold out the same to the Respondents Nos.9 to 13 in the year 2017. The manner in which the Respondents Nos.9 to 13 have purchased the plot seems that legal and codal formalities, as required under the law, were prima facie fulfilled but the questions are: i…
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