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Petitioner: Dr. S.M. RAB VS Respondent: NATIONAL REFINERY LTD.
Court Name: Sindh High Court Judge(s): Anwar Zaheer Jamali, Syed Ali Aslam Jafri Title: Dr. S.M. RAB vs NATIONAL REFINERY LTD. Case No.: High Court Appeals Nos.6 and 10 of 2001 Date of Judgment:2005-02-18 Reported As: PLD 2005 Karachi 478 Result: Order accordingly
JUDGMENT
JUDGMENT ANWAR ZAHEER JAMALI, J.---The above titled two appeals arising out of consolidated judgment and decreed dated 11-12-2000 passed in Suits Nos.1001 of 1997 and 1042 of 1998, involving similar questions of law and fact, are being disposed of by this common judgment. 2. Relevant facts forming background of this litigation are that on 25-6-1997 respondent No,1 (hereinafter referred as NRL) filed a suit for declaration, injunction and cancellation of lease against the appellant (hereinafter referred as Dr. S.M. Rab) and respondent No,2 (hereinafter referred as KDA) with the following prayers. "Wherefore, it is prayed that this Honourable Court may be pleased to pass a decree in favour of the plaintiff and against the defendants in terms of the following; (a) declaring that defendant 1 KDA has acted unlawfully in granting allotment and lease of subject land road to defendant No,2 and order its cancellation of allotment and lease; (b) direct defendant 1 to give defendant 2 alternate plot of land and after cancellation of lease to transfer the subject land to the plaintiff in lieu of the payment of this land already received by defendant No,1; (c) declaring that plaintiff is entitled to ask and insist on defendants to keep this land/road open and unoccupied to ensure plaintiff refinery's security and safety; (d) permanently restrain defendant No,2 from alienating or dealing with the subject land creating any further third party interest therein; (e) pass appropriate orders and give necessary reliefs under Order VII, Rule 7, C.P.0 in the circumstances of the case in the interest of justice; and (f) award costs of the suit."
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3. In the plaint they stated that NRL is a company having majority of shareholding with the Federal Government; it is a major refinery of the country, which has been declared to be "key point I-A installation" from the national security point of view vide decision dated 25-3-1981 taken by the Government of Sindh. A strip of land 437 feet in width runs along southern side of refinery named as road 6000, which separates Sector 7 (refinery) and sector 16 of the Korangi Industrial Area. As per general trend in the country, lately, through political pressure and manoeuvring various persons succeeded in obtaining allotment of portions of this land/road. Consequently, 45 plots were curved out from this strip of land which were allotted by K.D.A. To various persons. While, ten other plots from another strip/piece of land were allotted to other set of people. Plot No,37, Sector 16 Korangi Industrial Area Karachi (hereinafter referred as the suit plot) which is subject-matter of this litigation, was allotted to Dr. S.M. Rab, who subsequently got it leased from K.D.A. The NRL when learnt about allotment of plots in the strip of 437 feet wide road 6000, took up this issue with K.D.A. And agitated their grievance against such irregular allotments, whereupon NRL was informed about the K.D.A. Governing body Resolution No,225 dated 7-12-1991 requiring them to pay Rs,2,37,16,740 to K.D.A. As compensation for the allottees of these 45 plots. Further case of NRL is that subsequently as per decision of Governing Body of K.D.A. Allotments of all the 45 plots earlier made by the K.D.A. Were cancelled and the allottees were accordingly compensated. However, Dr. S.M. Rab got lease deed of suit plot executed from K.D.A. In his favour which fact came to the knowledge of NRL on 29-1-1996 through letter of Deputy Commissioner Karachi (East), and consequently a meeting was held at his office on 13-4-1996 between the NRL and Dr. S.M. Rab. NRL further stated in the plaint that formation of plots from the strip of land (Road 6000) was improper, illegal and contrary to the policy of Government and even Dr. S.M. Rab did not wish to retain the suit plot and only desired adequate compensation, which K.D.A. Is morally and legally bound to give him either in the form of allotting him an alternate plot or paying him cash compensation, which they had already received from NRL. 4. In their written statement, K.D.A. Challenged the maintainability of the suit on various grounds. In the para wise reply they stated that towards the southern side of leased plot of NRL the total available strip was 432 feet, wherefrom the cross-section of road is of 182 feet width along the southern boundary of NRL, from the remaining area, 192 feet wide area is reserved for railway reservation and 58 feet wide road exists towards Nala on northern side of Korangi Township Sector 16. K.D.A. Did not dispute carving of 45 industrial and commercial plots from the above area of 432 feet width. They also conceded about the execution of registered lease deed of the Suit plot No,37 in favour of Dr. S.M. Rab with the addition that as per procedure and rules of K.D.A. Case of providing alternate plot to Dr. S.M. Rab was in process and it will be finalized on completion of legal formalities, K.D.A. Also did not deny receipt of payment of Rs,2,37,16,740 from NRL. 5. Dr. S.M. Rab in his written statement, stated that on 24-1-1991 KDA had allotted him the suit plot; on 19-2-1991 vacant possession was handed over to him; and subsequently on 6-8-1991 registered lease for 99 years in respect of suit plot was executed in his favour. He further stated that NRL has unauthorized occupied his suit plot and their suit against him was not maintainable in law as they have no right, interest or legal character over the suit plot owned by him. Dr. S.M. Rab further stated that NRL has paid compensation to all the allottees of 44 other plots as per market value while they are in possession of his plot since 1995 without any lawful justification and denying to pay him compensation or to settle the matter amicably which shows clear discrimination by them. Dr. S.M. Rab also stated in his written statement that initially on 6-2-1984 he was allotted industrial Plot bearing No,6/13 in Sector 12-D, North Karachi by K.D.A. Which was later on found under unauthorized possession and construction, thus, as an alternate plot, suit plot was allotted to him, possession was handed over and registered lease deed was executed in his favour. Dr. S.M. Rab also made reference about his meeting with the officers of NRL regarding payment of compensation as per
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market value of the plot and denied their allegations that NRL requires area of 432 sq. Feet width towards southern side for maintaining safety zone. He further pleaded that registered lease of 99 years in his favour cannot be arbitrarily cancelled and that his plot does not fall within the security zone from the key point installation as alleged by NRL. 6. After filing of his written statement in Suit No, 1001 of 1997, on 24-8-1998 Dr. S.M. Rab also filed a separate suit of declaration, possession, mesne profits and damages, being Suit No,1042 of 1998, against NRL and K.D.A. Wherein, on the basis of his clear title over the suit plot and its occupation by NRL, he prayed for the following reliefs against them. "(1) To declare that the plaintiff is absolute/lawful owner/lessee of Plot No,37, Sector-16, Korangi 'Industrial Area, Karachi, vide lease deed executed by defendant No,2 on 6-8-1991 in favour of the plaintiff and the title documents of the plaintiffs are legal, proper and subsisting under the law. (2) To declare the possession of the plaintiff's plot of land by defendant No,1 as illegal, unlawful, mala fide and without lawful authority. And further declare defendant No,1 a trespasser. . . (3) To direct defendant No,1 to hand over the vacant and peaceful possession subject-matter of the plot of land to the plaintiff. (4) To direct the defendant No,1 to pay mesne profit @ Rs,30,000 per month from July, 1995 and continue to pay till the possession of the subject-matter of the plot is handed over to the plaintiff by the defendant No,1 to the plaintiff. (5) To direct defendant No,1 in case they want to acquire/purchase the plaintiff's plot of land to follow procedure of law and to pay compensation at the prevailing rate of market value of the property to the plaintiff. (6) To grant permanent injunction restraining the defendant No,1 from selling, alienating, handing over the physical possession of the subject-matter of the plot to anyone else and further defendant No,2 may be restrained from cancelling the lease of the subject-matter of the plaintiff's plot of land till disposal of the case. (7) Decree suit in the sum of Rs,10.00 Million on account of damages against defendant No,1. (8) Any appropriate and further relief this Honourable Court may deem fit and proper under the circumstances of the case. (9) Cost of the suit." 7. In the other Suit No,1042 of 1998, KDA in their written statement stated similar facts as stated by them in their written statement in Suit No,1001 of 1997, whereby they had confirmed. The title of Dr. S.M. Rab over the suit plot and denied the existence of 432 feet wide road 6000 toward the southern side of NRL's leased plot. 8. NRL, in their written statement in Suit No,1042 of 1998, also stated the same set of facts as stated in their plaint in Suit No,1001 of 1997 and disputed the claim of Dr. S.M. Rab over the suit plot on same grounds. 9. On 20th July, 1998, following issues were framed in Suit No,1001 of 1997: "(1) Whether the defendant No,1 has acted unlawfully in granting allotment and lease of subject land/road to defendant No,2 if so, its effect? (2) Whether the subject land/road is essential for the security and safety of the plaintiff and should be retained as an open land? (3) Whether the suit is maintainable under the law? (4) Whether defendant No,2 is the lawful owner of the commercial Industrial Plot No,37 Sector-16 Korangi Industrial Area and if so, its effect? (5) Whether under the law plaintiff can invoke for cancellation and allotment of plot of. Defendant No,2 and defendant No,1 is legally bound to provide alternate plot of land to defendant No,2? (6) What should the decree be?"
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10. Later on, vide order dated 11-3-1999, both the suits were consolidated and following two further issues were framed: (1) Whether the plaintiffs are entitled to compensation as prayed in para. 7. Of the prayer clause? (2) Whether the defendant No,1 has illegally trespassed on the property of the plaintiffs and that the plaintiffs are entitled to mesne profits as prayed in clause (4) of the prayer clause? 11 Again, vide order dated 10-3-2000 passed on C.M.A. No,583 of 2000, following additional issue was framed in this suit: "Whether the defendant No,2/plaintiff Dr. S. M. Rab is entitled for the possession of the suit land if so, from whom?" 12. To expedite the process of recording evidence, on 11-3-1999/ 10-3-2000, Commissioner was appointed for this purpose with the consent of the parties' counsel. Before the Commissioner, NRL examined their Management Executive Gohar Zaman, and Assistant Manager Ahmed Jawaid. Dr. S.M. Rab examined himself and K.D.A. Examined their employee Syed Muhammad Zubair. All these witnesses were cross-examined by the other side counsel, where after arguments of the learned counsel were heard. The learned Single Judge by his impugned judgment answered issues Nos.1, 2 and 3 in the affirmative And on the basis of such findings issue No,4 and additional issues Nos.1 and 2 were also decided against Dr. S. M. Rab. Consequently, Suit No,1042 of 1998 filed by Dr. S.'M. Rab was dismissed while Suit No,1001 of 1997 instituted by NRL was decreed in the following terms. (i) Action of the K.D.A. In converting the road 6000 on the southern side of the NRL into industrial plots and thereby reducing the width of the wall of 432 to 250 is illegal, void and Without any lawful authority. (ii) That the width of road 6000 on the Southern side of NRL is to remain open up to 432 feet in width from the boundary wall of NRL and none of the parties/persons have any right or title thereto. (iii) The allotment dated 24-1-1991 and lease deed dated 6-8-1991 executed by K.D.A. In favour of Dr. Rab for Industrial site No,37, Sector-16 Korangi Township Karachi are hereby cancelled being illegal and void ab initio and is to be delivered up. (iv) The parties to bear their own costs. 13. We have heard arguments of learned counsel for the parties at length. Mr. Abul Inam, learned counsel for appellant Dr. S.M. Rab in his arguments summarized the facts of the case as stated in the plaint of Suit No,1042 of 1988 and contended that great injustice has been done to his client as for no fault on his part, despite full payments made by him, since 6-2-1984 he is running pillar to post to get one suitable plot for his genuine need, but in turn he has been dragged into unnecessary litigation. He made reference to the earlier allotment of Plot No,6/13, Sector 12-B, North Karachi, Karachi, to Dr. S.M. Rab on 6-2-1984, which was later on cancelled due to unauthorized encroachment over it, to show that plot the suit viz. Plot No,37, Sector 16, Korangi, Karachi, was allotted and leased to him in the year 1991 as an alternate plot and no out of way favour was given to him as alleged by NRL. Making specific reference to the conduct of NRL during negotiations for amicable settlement, he submitted that from their conduct it is evident that they have attempted to blow hot and cold in the same breath as on one hand they have pleaded illegal conversion of a strip from road 6000 into 45 industrial plots and on the other hand they themselves have acquired title of all other 44 plots out of these 45 plots, excluding the disputed plot. In this regard learned counsel also made reference to various documents placed on record by KDA through their application under Order XLI, Rule 27 read with section 151, C.P.C., (C.M.A. No,2149/2004) to show execution of registered Sale Deeds in respect of some of these plots in the year 1995 in favour of NRL, copy of order dated 19-11-1995 whereby another suit instituted by NRL in respect of another plot in the same scheme was withdrawn, and site plan of 1971 showing the typical break up of 432 feet width of road 6000, that from the very beginning 192/200 feet wide strip out of this total area was
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meant for railway reservation, which was subsequently, with the approval of Governing Body of K.D.A., utilized for carving out 45 plots, including the suit plot owned by Dr. S.M. Rab. To demonstrate the reasonable, fair and bona fide conduct of the appellant Dr. S.M. Rab, learned counsel also made reference to several other documents placed on record by NRL, which show that Dr. S.M. Rab was willing to accept reasonable compensation by way of negotiation with NRL. In the same context he urged that once registered Lease Deed of the suit plot was executed by K.D.A. In favour of Dr. S.M. Rab on 6-8-1991, thereafter they had no legal or moral authority to either negotiate with NRL for sale/surrender of his plot to them or even to cancel its lease without due process of taw. Making reference to the claim of NRL regarding payment of some substantial amount to K.D.A. For acquiring title of all the 45 plots, Mr. Abul Inam reiterated that Dr. S.M. Rab was not party to any such settlement and after execution of registered Lease Deed of suit plot K.D.A. Had also no authority to negotiate or receive any compensation/consideration on his behalf. Dilating upon the impugned judgment learned counsel contended that the learned Single Judge wholly misdirected himself in recording his conclusion about existence of 432 feet wide road 6000 towards southern side of NRL's plot as mere reference to this effect in their registered Lease Deed, which is belied from the copy of site sketch/lay out plans of 1971/1978 produced by the K.D.A., was not enough to record such conclusion. In the same context he also referred to para.2 of the written statement filed by K.D.A. In Suit No,1001/1997 to show that such break up of 432 feet width was clearly given by the K.D.A., which was the concerned authority to confirm the layout plan of the area, including road 6000. He urged that neither it was the case of NRL in their pleadings nor they had locus standi to take up such contradictory plea after obtaining title of 44 plots from the same strip of land for their own use. 14. In the end Mr. Abul Inam also reiterated the claim of Dr. S.M. Rab for restoration of possession of suit plot and awarding of mesne profit since July, 1995 at some reasonable rate. In the light of the above submissions learned counsel contended that the judgment and decree passed by the learned Single Judge are liable to ,be reversed so that the suit instituted by Dr. S.M. Rab may be decreed as prayed and the other one filed by NRL may be dismissed with costs. 15. Mr. Ainuddin Khan, learned counsel for appellant Dr. S.M. Rab in the other appeal adopted the arguments of Mr. Abul Inam Advocate with the addition that Suit No,1001/1997 instituted by NRL was incompetently instituted by an unauthorized person, thus, it was not maintainable in law and was liable to be dismissed as such without any further proceedings. For this purpose, he made reference to the preliminary objection No,1 to the written statement filed by K.D.A. On the basis of which issue No,3 regarding the maintainability of the suit was also framed. He contended that admittedly NRL is a company registered under the Companies Ordinance 1913, therefore, without due authorization through Board Resolution, the Assistant Manager Mr. Ahmed Javed, who had signed the plaint on behalf of company was not legally competent to sign or verify the plaint on behalf of company. To fortify this plea he made reference to the cases of (1) Khan Iftikhar Hussain Khan of Mamdot v. M/s Ghulam Nabi Corporation Limited Lahore (PLD 1971 SC 550) & (2) Abdul Rahim and 2 others v. M/s United Bank Ltd. Of Pakistan (PLD 1997 Karachi 62). 16. On the other hand Mr. Arif Khan, learned counsel for the NRL contended that National Refinery Limited is a project of national importance and from the security point of view it has been declared as key point 1-A installation by the Government of Sindh. Towards its southern side 432 feet wide road 6000 has been shown in their registered lease Deed executed in the year. 1983, therefore, subsequent change in the layout plan made by the K.D.A. And carving of 45 industrial plots therefrom is illegal. Learned counsel, however, did not dispute availability of 192 feet wide strip from 432 feet width of road 6000, which was meant for railway reservation, and acquiring of title of 44 plots by NRL out of total 45 plots carved out of this strip by K.D.A. Further, learned counsel though challenged the maintainability of application under Order XLI, Rule .27, C.P.0 moved by K.D.A. In
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appeal but, he did not dispute authenticity of any of the documents annexed with such application, which confirm that NRL not only acquired title of various plots from the same strip through K.D.A. But they also purchased some other plots in the same area through registered Sale-deeds, directly from the concerned parties. In reply to the plea of negotiations between NRL and Dr. S.M. Rab, which had taken place through mediation of Deputy Commissioner Karachi East, he contended that NRL was pressurized for such negotiations against their wishes. Adding force to his submission regarding the claim of NRL over all the 45 plots, including the suit plot, Mr. Arif Khan contended that as per demand of K.D.A., NRL has paid a sum of Rs,2,37,16,740 towards the total cost of these plots which was in pursuance of the Resolution of Governing Body of K.D.A. Dated 7-12-1991, thus, after such payment the claim of Dr. S.M. Rab over the suit plot is to be exclusively settled by the K.D.A. Either by providing him an alternate plot or making adequate payment of compensation to him, but NRL cannot be dragged in such controversy. 17. Reverting back to his plea of existence of 432 feet wide road 6000 towards the southern side of NRL plot learned counsel conceded that though such fact lids been mentioned in the registered deed dated 27-6-1983 in favour of NRL but as against it in the site sketch/drawings of road 6000 a strip of 192/200 feet width is shown as reserved for railway. In the end learned counsel submitted that the impugned judgment and decree passed by the learned Single Judge decreeing Suit No,1001/1997 filed by NRL in the terms specified in the judgment and dismissing other Suit No,1042/1998 instituted by Dr. S.M. Rab, is well-reasoned judgment, based on proper appreciation of evidence and other relevant record, thus, these appeals are liable to be dismissed with costs. 18. We have carefully considered the arguments advanced by the learned counsel and perused the whole material placed on record by the parties. 19. In these appeals the crucial points for determination seem to be as under: (1) Whether Suit No,1001/1997 instituted by NRL was not maintainable in law? (2) Whether road 6000 having 432 feet width towards the southern side of the leased plot of NRL consisted of 192 feet wide strip, for railway reservation, even prior to the execution of registered Lease Deed dated 27-6-1983 in favour of NRL? (3) Whether the suit plot was legally carved out by K.D.A. And after execution of registered Lease Deed in favour of Dr. S.M. Rab, K.D.A. Had no authority either to negotiate for transfer of suit plot to NRL or to receive any sale consideration of suit plot on behalf of Dr. S.M.Rab? (4) Whether Dr. S.M. Rab is entitled for restoration of possession of suit plot and also recovery of compensation/mesne profits, if so, for what period and at what rate? 20. Before we proceed to discuis the case of the parties and record our findings on the above formulated points for determination, it will be appropriate to first decide the fate of application under Order XLI, rule 27 read with section 151, C.P.C. (C.M.A.No,2149/2004) moved by K.D.A. On 11-11- 2004. By this application K.D.A. Has sought permission to bring on record registered Sale-Deeds dated 13-12-1995 in respect of Plots Nos.85 and 87, Sector 16, Korangi Township, Karachi, executed in favour of NRL: order dated 19-11-1995 in Suit No,402/1993; consent deed regarding acquisition of plot in Sector 16, Kdrangi Industrial Area Karachi dated 6-12-1999; authorization letter dated 5-12-1995; Notification under the Sindh Ordinance X of 2003; statement on behalf of K.D.A./City District Government dated 6-4-2004; photocopy of cheque in the sum of Rs,200,000 dated 30-3-2004 and four layout plans in respect of Sector 16, Korangi Industrial Area, Karachi. This application has not been opposed by appellant Dr. S.M. Rab. However, on 24-11-2004 counter-affidavit to this application has been filed on behalf of NRL wherein grant of this application has been mainly opposed on the ground that at this stage this application is misconceived and not maintainable in law because the documents now sought to be produced were available with K.D.A. During the pendency of the suit but the same were not produced deliberately: The genuineness or authenticity of none of these documents has been, however, disputed by NRL. Looking to the facts
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and circumstances of the case with reference to the crucial controversy regarding the actual width of road 6000 and its layout plan involved in these appeals and respectfully following the ratio of judgments in the case of Messrs Muhammad Siddiq Muhammad Umar and another v. The Australasia Bank Limited PLD 1966 SC 684 and Zar Wali Shah v. Yousaf Ali Shah 1992 SCMR 1778 we are of the view that it will be in the interest of justice and also in the interest of all the parties concerned that the listed-application be allowed so that documents now placed on record may be taken into consideration by this Court to record just and equitable conclusion in respect of controversy involved in these appeals. C.M.A. No,2149/2004 is therefore, allowed. 21. Now we one by one take up for our consideration the points formulated in this appeal. POINT NO.1. (i) Whether Suit No,1001/1997 instituted by NRL was not maintainable in law? 22. In this regard admitted facts emerging from the case record are that NRL is a company registered under the Companies Ordinance and the plaint in Suit No,1001/1997 instituted on their behalf has been signed and verified by Mr. Ahmed Javed son of .Abdul Khaliq, Assistant Manager Legal. It has been nowhere mentioned in the plaint that how and in what manner Assistant Manager Legal Mr. Ahmed Javed was legally authorized on behalf of NRL, without a proper Board Resolution for this purpose. However, along with the plaint, a copy of letter dated 20th June,…
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