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Petitioner: FUNFAIR (PVT.) LIMITED and anothers VS Respondent: KARACHI DEVELOPMENT AUTHORITY JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui, S. A. Sarwana Title:FUNFAIR (PVT.) LIMITED and anothers vs KARACHI DEVELOPMENT AUTHORITY
JUDGMENT
Reported As: PLD 2004 Karachi 170 Result: Petition dismissed Judgment JUDGMENT MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Through this petition the following relief is sought:- (i) To declare the order contained in Letter No,KDA/DLM/APC/65 dated 26th April, 1995 of respondent No,1 and No,SO.II(KDA) 6-424 of 1995 dated 26-4-1995 of respondent No,2 to be without lawful authority and of no legal effect; (ii) to restrain the respondents, their subordinates, employees and agents from taking any action in pursuance of the purported cancellation of allotment order of the subject plot bearing No,ST-14, block-3, KDA Scheme No,5 (Clifton), Karachi andlor from disturbing the peaceful physical possession and enjoyment thereof by the petitioners in any manner whatsoever and to restrain the said respondents from taking over possession or handing over the same to any other person or third party;" Briefly stated the petitioner's case is that a plot of land bearing No,ST-14, Block-3, KDA Scheme No,5, Clifton, Karachi was allotted to petitioner No,1, vide allotment letter dated 17-3-1976. The petitioner No,1, had made payment of Rs,2,90,000 on 6th March, 1975 towards the occupancy value of the plot. On 23-8-1976 lease deed was executed for a period of 99 years. The total area of the plot is 25000 square yards and as per terms of the lease the plot was to be used for commercialcum- amusement park. It was stipulated in the lease deed that the plot shall not be diverted into other use without previous consent of the lessor, i,e, KDA. A maximum of 15% of the land could be utilized for commercial purposes. On 27-3-1991, the petitioner No,1, approached the then Chief Minister, Sindh seeking permission for use of the entire plot for commercial purposes and relaxation of the term contained in the lease was sought. After deliberations, the then Chief Minister of Sindh,
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approved use of the entire plot for commercial purposes specifically on the ground that the plot was not an amenity plot. On 19-4-1992, petitioner No,1, was informed by respondent No,1, that the Competent Authority has allowed commercialization of the entire plot subject to payment of commercialization charges at the rate of Rs,3,500 per square yard. It is alleged in the memo. Of petition that, in pursuance of the above letter, the petitioner No,1, paid a sum of Rs,20 Millions towards commercialization charges. On . 29-5-1995, the representative of petitioner was informed by respondent No,1, that the allotment of the subject plot has been cancelled on the ground of violation of clauses 6, 8 and 12 of terms and conditions of the allotment. A copy of the order dated 26th April, 1985 in this behalf, was supplied to the petitioner's representative. It is averred in the petition that the cancellation of the allotment has been made under misconception that the subject plot is an amenity plot and the terms and conditions of allotment of amenity plot are applicable thereto. It is further alleged that after lease a right in rem has accrued in favour of petitioners which could not be disturbed arbitrarily and unilaterally. It is further submitted that the subject plot is not an amenity plot as per stand taken by the KDA, itself in the comments filed in Constitutional Petition No,1756 of 1992. ' The cancellation of the allotment has been assailed as illegal and without jurisdiction on the grounds that it is violative of the principles of natural justice, as no show-cause-notice was served on the petitioner. It is further alleged that after execution of the lease-deed, the terms contained therein would regulate the relations between the respondent No,1 and the petitioner and under the terms contained in the lease no unilateral cancellation of the allotment is envisaged. The respondent No,1, has filed the parawise comments contending that the subject plot was an amenity plot and the allotment order was issued under the orders of the then Minister for Housing and Town Planning and Local Government, which is evident from the allotment order itself. It has not been denied that the lease was executed on 23-8-1976 after realizing full occupancy value of the plot measuring 25000 square yards and 15% of the plot was to be utilized for commercial purpose. It is admitted that the then Chief Minister of Sindh, approved the use of entire plot for commercial purposes and the approval was recommended vide letter dated 19-4-1992. However, it is contended that the petitioner was required to deposit total commercialization charges at the rate of Rs,3,500 per square yard and the first instalment of Rs,3,71,87,500 was to be paid by the petitioner before the issuance of commercialization letter and the two instalments of Rs,3,71,87,500 had to be deposited within two years, but the petitioner failed to deposit even first instalment. h is contended that the petitioner failed to comply with the terms and conditions of the letter dated 19- 4 1992 Annexure 'C' with the petition, therefore, the allotment of the plot was cancelled vide letter dated 26-4-1995. It is further averred that complicated questions 'of facts are involved which are required to be proved through the process of evidence only and therefore, the petitioner has the remedy through civil suit under the ordinary law and the Constitutional jurisdiction of High Court cannot be invoked. It is asserted that the allotment has been rightly cancelled and that the physical possession of the plot has been handed over to respondent No,3, for development of Bagh-e-Ibne-Qasim and the respondent No,1 has no jurisdiction over the land, after transfer thereof to respondent No,3. In the re-joinder, it is contended that out of first instalment of Rs,3,71,87,500 an amount of 2 Crores was deposited and the. Competent Authority had 'extended the time for payment of remaining amount of first instalment from time to time. On 20-6-1995, the petitioner tendered the balance amount of Rs,1,71,87,500 but it was not accepted for the reason that there was a status quo order passed by the High Court in the present petition. In the comments/counter-affidavit on behalf of the respondent No,3, it is stated that the subject plot already stood transferred to the respondent No,3, being part and parcel of the huge amenity plot known as Bagh-e-Ibne-Qasim, and the physical possession has been handed over to the respondent No,3. In the affidavit-inrejoinder filed
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on behalf of petitioner it has been denied that the subject plot is or was a part of amenity site known as Bagh-e-Ibne-Qasim. It is further alleged that the original layout plan of KDA Scheme No,5, did not show inclusion of the subject plot in the amenity plot known as Baghe-Ibne-Qasim. According to the petitioner revised layout plan of KDA Scheme No,5, dated 12-11-1985 again shows that the subject plot is away from the one earmarked for the development of Bagh-e-lbneQasim. It is further alleged that plot of land bearing ST-15, measuring 4897 yards was earmarked as the park in the revised layout plan of Scheme No,5. It is further contended that a multi storied building project known as Costa Livina, is presently being constructed thereon. It is also alleged that the respondent No,1, could not include the subject plot in the land originally earmarked as Bagh-e- Ibne-Qasim without modification/charge in the scheme in accordance with the provisions of KDA Order, 1957. The handing over of the subject plot to respondent No,3, is not denied but it is alleged that it is unreasonable and tainted with mala fide. It is further stated that in the area earmarked as Bagh-eIbne-Qasim, a privately owned amusement park known as Funland, is operating since long. It is maintained that no law has been shown under which the subject plot has been transferred to respondent No,3. We have heard Mr.Musthaq A.Memon, learned counsel for the petitioner, Ms.Rizwana Ismail, learned counsel for the respondent No,3 and Mr.Abbas Ali, learned A.A.-G. For the Government of Sindh. In view of the order proposed to be made presently, the detailed arguments addressed by the learned advocates are not being narrated and dwelt upon. The crux of the arguments addressed by the learned counsel for the petitioner, was that the subject plot was not an amenity plot and consequently, the law relating to amenity plots is not attracted. His further contention was that the commercialization of the subject plot was already allowed and therefore, the cancellation of allotment was not warranted in law. On the other hand, the main contention of Ms.Rizwana Ismail, learned counsel for the respondent No3, was that the subject plot was an amenity plot as consequently it could not be allotted to any individual for any purpose and no authority is vested with any functionary of the Provincial Government, either to allot the subject plot to any individual or to allow the commercial use thereof. She contended that there is a complete bar on the allotment of amenity plots to individuals and under the KDA Order, 1957, all such plots are required to be handed over to respondent No,3 for development. She further contended that the allotment of" plot to the petitioners by the then Minister for Housing and Town Planning in the year 1976 and permission for commercialization accorded in the year 1992 by the then Chief Minister (the same person who happened to be Minister for Housing and Town Planning in the year 1976) was illegal and void, She urged that a void order shall not confer any right on any beneficiary and the subsequent cancellation of the plot and handing over the same to respondent No,3, has restored the rule of law. She submitted that even if there is some technical lapse in the cancellation of plot, this Court shall not exercise its discretionary jurisdictions in aid of illegality and injustice. The learned A.A.-G. Has adopted the arguments addressed by Ms.Rizwana Ismail. After conclusion of arguments, the learned A.A.-G. Was directed to produce the order of the Chief Minister or the order of the Minister for Housing and Town Planning or the order of the Government permitting commercialization of the entire plot in question in relaxation of the law under section 15 of the Ordinance VII of 1980. Although the direction was given for producing the relevant record, to the learned A.A.-G. But, the learned counsel for the petitioner through statement dated 15-9-2003, submitted extract from the departmental note sheets containing orders dated 14-10-1991, 9-12-1991, 26-1-1992 and 8-3-1992 passed by the Chief Minister, Sindh. The above orders are reproduced below:-- "14-10-1991
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I am satisfied that applicant has devoted maximum efforts to promote the project which may not prove viable., I therefore allow the request of the applicant to convert the plot into commercial land in relaxation of rule 15 and other relevant rules. The percentage for commercial use of the said plot (ST-14 Block-3, Scheme-5, Clifton, Karachi in the name of Messrs Fun Fair Limited) is enhanced from 15% to 75%. Extra charges amounting to Rs,25.00 lacs should be realised from the allottee so that there is no loss to the KDA. Necessary orders/challan may De issued accordingly. (Sd.) (Jam Sadiq Ali) Minister (HTP) Please take appropriate necessary action. (Sd.) Director-General (KDA) Please take further necessary action. (Sd.) DIM AD AR (Sd.) (Sd.) Hon'ble CM may like to reconsider his earlier decision and order further. (Sd.) Minister (HTP) 29-11-1991. CM Further to my orders dated 14-10-1991 the case has been reviewed and applicant Messrs Fun Fair Limited is hereby allowed to convert the Plot No,ST-14, Block-3, Scheme No,5, Clifton, Karachi into a unique Commercial Site worthy of its location. The percentage for commercial use of the said plot be enhanced from 15% to 75% extra charges Rs,765 (Seven Hundred and sixty-five) per square yard, be realized instead of Rs,25 lacs. The lapsed construction period be also relaxed in the relaxation of rule 15 and other relevant rules. Necessary challan be issued accordingly. Chief Minister, Sindh. 9-12-1991. Director-General (KDA) M(HTP) may kindly like to peruse before further action is taken. (Sd.) 10-12-1991. M(HTP) Conversion of amenity plot into commercial has to be done under desires he can discuss this case with me. (Sd.) 10-12-1991. CM 18.1. Plot No,St-14, measuring 25,000 sq.Yds. In Block-3 of Scheme-5, Clifton is leased out by KDA as Commercial-cumAmusement Park. As such, it does not come within the preview of Amenity Plots like roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques and graveyards. Therefore, provision of Article 52-A of KDA Order, 1957 (President's Order No,5 of 1957) for conversion of amenities, is not applicable to this plot. 19.2. As per allotment/lease condition 15% of the plot is allowed as commercial. It means that 3750 sq. Yds. Is already commercial. Therefore, Commercialisation Charges are to be paid for 21250 sq. Yds. Only by the appellant at Rs,3,500 per sq. Yd., being the Commercialisation Charges approved
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by Governing Body of KDA and not for the whole plot. 25% of the Commercialisation Charges shall be paid forthwith and the rest in three equal instalments in a period of four years. 20.3. After payment of the Commercialisation Charges, the entire plot will stand commercialised. Therefore, Plot Ratio 1:5 as implied for GC Category Plot in Clifton, shall be permitted for this plot. 21.4. NUF is not be charged and construction period extended for another five years i,e,, June, 1997. 22.5. Necessary orders/challans be issued without any further delay under relaxation of Rules 15 and all other relevant rules. (Sd.) Chief Minister, Government of Sindh, 26-1-1992. Minister HTP & PHF ' Please take appropriate necessary action. (Sd.) 29-1-1992. Director-General (KDA)
24. On the eve of this departure for London for medical treatment, Minister HTP had directed that cases involving conversion of land-use should be brought to his notice before any action is taken.
25. The file of Fun Fair Land was handed over to me yesterday by Mr. Khan Muhammad Mahar, containing the orders of Chief Minister, Sindh as well as Minister HTP. As a matter of precaution I rang up the Minister at his London number today at 2-00 p.m. He has desired that before any further action is taken in this matter the file should be shown to Chief Secretary, Sindh.
26. The file is accordingly being submitted to the Chief Secretary for instructions for further action in this matter.
(Sd.).
(Abu Shamim M.Ariff), Director-General, KDA 17-2-1992.
1308
17-2-1992.
CHIEF SECRETARY, SINDH
27. The case had been discussed by me with the then CM on 2/3 and he insisted that his orders be complied with except that KDA may ask the petitioner to pay the amount in two instalments spread over the period of two years.
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For necessary orders.
(Sd.) CS
8-3.
28 Chief Minister
Earlier orders passed by the Chief Minister, Sindh should be complied with (Paras. 18 to 22).
(Sd.) M. Shah.
8-3-1992.
Learned counsel for the respondent No,3, to whom the copies of statement and documents were supplied filed objections to the effect that, the documents were to be filed by the Additional Advocate-General, and therefore, the veracity of the documents were required to be confirmed by the learned A.A.-G. It was further contended that the conversion allowed by the Chief Minister in relaxation of rules was without any authority and the authenticity of the document cannot be determined in the proceedings under Article 199 of the Constitution and therefore, the petition is not maintainable. It was further contended that the Hon'ble Supreme Court has held in number of cases that the Chief Minister has no power to convert an amenity piot into commercial one and consequently the order of Chief Minister is void. It is also submitted that the documents produced by the petitioner show that the subject plot was part of an amenity area and was carved out at the instance of Mr.Jam Sadiq Ali, the then Minister, Housing and Town Planning/Chief Minister, who had no authority to do so. It is maintained that the Director-General, KDA felt concern on conversion of plot and contacted the Chief Minister, at London, who was on medical leave, which shows manifest collusion of Director-General and Chief Minister.
Subsequently, on 11-10-2003, the learned Additional Advocate-General Sindh, has filed copy of the Note Sheet and summary for the Chief Minister, pertaining to the subject plot. The documents produced by the learned A.A.-G. Include certain notes which have not been produced by the learned counsel for the petitioner. These notes contain some very pertinent material and therefore, they are reproduced below:--
SUMMARY FOR CHIEF MINISTER SINDH
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Subject: REQUEST FROM MESSRS FUN FAIR LIMITED FOR CONVERSION OF AMENITY PLOT NO ST-14 BLOCK-3, SCHEME NO.5 (CLIFTON) INTO COMMERCIAL LAND
The Secretary to Chief Minister, Sindh has sent a photostat copy of letter dated 30-7-1991 alongwith a photostat copy of Messrs Fun Fair Limited's application bearing the following orders of the Chief Minister, Sindh (Annexure 'A') and requested to take necessary action in the matter accordingly, so that the orders of the Chief Minister are complied with:--
Request allowed as at 'A'.
2. Mess's Fun Fair Limited vide their letter dated 27-7-1991 addressed to the Chief Minister, Sindh, thereby stating that over a long period of time they have devoted maximum efforts to promote the project and after a substantial loss of money, they have come to the conclusion that the project may not prove viable and may only create a disturbance for the area and requesting to authorize the KDA for conversion of Plot No,ST-14, Block 3, Scheme No,5 into a commercial land where they propose to develop it into an unique commercial site worthy of its location.
3. In this connection it is submitted that an Amenity Plot No,ST-14, Block No,3, measuring 6.00 Acres of Scheme No,5 was allocated to Messrs Fun Fair Limited vide Letter No,230, dated 23-2-1976 under the terms and conditions (Annexure 'B') for establishment of Amusement Park. On realization of 25% occupancy value the allotment order issued on 17-3-1976 and after payment of balance 75% occupancy value the possession order was issued on 16-8-1976 with the construction period of 10 years from the date of possession order. Physical possession handed over to the allottee on 16-8- 1976 by the Executive Engineer concerned. The lease has been registered vide No,11442 dated 23-8- 1976 for 99 years with the following conditions:
"(12) In order to ensure that development of Amusement Park is harmonized in a balanced manner together with all amenities and requirements, the lessee shall be allowed a maximum of 15% of land to be utilized for commercial purposes. The lessee shall also be allowed a restaurant to cater the requirements of the public.
The lessee shall not use the plot or any part thereof or permit the same to be used as a place of theatre or cinematograph, unless the plot has been allotted as a cinema plot."
4. It is also pointed out that the prescribed construction period has expired on 15-8-1986, but the above plot has not been utilized by the allottee for the purpose for which it was allotted. Now after a lapse of five years of the expired period it has been requested to convert the aforementioned Amenity Plot into Commercial.
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5. The conversion of Amenity Plot into residential/commercial will certainly be objected by the public, as they would be deprived of the facilities of amusement etc. And therefore it would not be desirable to allow such conversion. Furthermore it will create unbearable strain on the already precarious water supply situation in the area.
6. Furthermore a procedure has been prescribed under Article 52-A of the KDA Order, 1957 for conversion of Amenity Plot/Sites into other uses, which reads as follows:--
"52-A. (1) The Authority shall, immediately after any housing scheme is sanctioned by, or altered with approval of, Government, submit to the Commissioner the details including the survey numbers, area and location of each plot reserved for roads, hospitals, schools, colleges, libraries playgrounds, gardens, parks, community centres, mosques, graveyards or such other purpose and the Commissioner shall notify such details in the official Gazette.
(2) The Authority or the Housing Society may at any time prior to utilization or any plot reserved for the purpose mentioned in subsection (1), apply to the Commissioner for conversion of such plot to any other purpose.
(3) The Commissioner shall, on receipt of an application under subsection (2), invite objections from the general public through a notice published in one English and vernecular leading local daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice.
(4) The Commissioner shall, after considering the objections received under subsection (3) and hearing such persons as he may consider necessary forward his recommendations alongwith the application and other connected papers to Government for orders."
There is no provision in the KDA Order for grant of any exemption to the above procedure. In addition to the anticipated public criticism in this case, there cannot be any valid justification to hold back the barrage of similar requests which would follow in future regarding other amenity plots in various parts of the city.
7. The case may please be submitted to the Chief Minister for kind perusal and necessary orders.
(Sd.)
(Abu Shamim M.Ariff), Director-General, KDA.
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Secretary HTP
(Sd.) 14-10."
Hon'ble CM may like to reconsider his earlier decision and order further.
(Sd.)
Minister (HTP),
29-11-1991.
CM
91. Further to my orders dated 14-10-1991 the case has been reviewed and the applicant Messrs Fun Fair, Limited is hereby allowed to convert the Plot No,ST-14, Block-3, Scheme No,5, Clifton, Karachi into all unique Commercial Site worthy of its location. The percentage for commercial use of the said plot be enhanced from 15% to 75% extra charges Rs,765 Seven Hundred and Sixty-Five per square yard, be realized instead of Rs,25 lacs. The lapsed construction period be also relaxed in the relaxation of rule 15 and other relevant rules.
92. Necessary challan be issued accordingly. Chief Minister, Sindh.
9-12-1991.
93. Director-General (KDA) M (HTP) may kindly like to peruse before further action is taken.
(Sd.)
10-12-1991.
94. M. (HTP) Conversion of amenity plot into commercial has to be done under the provision of Article 52-A of the KDA Order detail of which has been given in para.6/7 of the summary. Without following this procedure amenity cannot be converted into commercial. In fact this would be the
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first case of arbitrary conversion by our Government, and is bound to invite vehement public criticism. Furthermore as per G.B. Decision the commercialization rate for Clifton area is Rs,3,500 per square yard. Which again cannot be changed. In view of the above facts C.M. May like to review his decision. Since the tile had been submitted by me I had directed D.G. KDA to submit the file to me before taking any action. If C.M. Desires he can discuss this case with me.
(Sd.)
10-12-1991.
CM.
96.1. Plot No,ST-14, measuring 25.000 sq.Yds. In Block-3 of Scheme-5, Clifton is leased out by KDA as Commercial-cum Amusement Park. As such, it does not come within the purview of amenity plots like roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques and graveyards. Therefore, provision of Article 52-A of KDA Order, 1957 (President's Order No,5 of 1957) for conversion of amenities, is not applicable to this plot.
97.2. As per allotment/lease condition 15% of the plot is allowed as commercial. It means that 3750 sq.Yds. Is already commercial. Therefore, Commercialisation Charges are to be paid for 21250 sq. Yds. Only by the appellant @ Rs,3,500 per sq.Yd., being the Commercilaisation Charges approved by Governing Body of KDA and not for the whole plot. 25% of the Commercialisation Charges shall be paid forthwith and the rest in three equal instalments in a period of four years.
98.3. After payment of the Commercialisation Charges, the entire plot will stand commercialised. Therefore, Plot Ratio 1:5 as implied for GC Category Plot in Clifton, shall be permitted for this…
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