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Petitioner: Ms. TALAT EJAZ VS Respondent: CITY DISTRICT GOVERNMENT through City Nazim and JUDGMENT
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Shaukat Ali Memon Title:Ms. TALAT EJAZ vs CITY DISTRICT GOVERNMENT through City Nazim and
JUDGMENT
Reported As: 2016 YLR 829 Result: Petitions allowed Judgment JUDGMENT SAJJAD ALI SHAH, J.---There are in all 43 petitioners in the above cited 30 petitions and the common fact in all these petitions as stated are that the petitioners were allocated plots of different categories in different blocks of Scheme-36, Gulistan-e-Jauhar by the erstwhile Karachi Development Authority (KDA) whose functions are now being performed by Karachi Metropolitan Corporation (KMC), upon payment of consideration, however, the vacant physical peaceful possession of the plots could not be handed over to them as according to the petitioners these plots were already encroached by the land grabbers, therefore, they have filed these petitions with the common prayer that either the possession of the plots allotted to them be handed over by restoring the whole area to its original position as provided in Master Plan of Scheme-36, Gulistan- e-Jauhar, Karachi or an alternate plot of the same size in the same or similar scheme be provided to them. Following is the gist of the claim of the Petitioners:-- S. No. Petitioners NamePetitions NumberPlot NumberBlock Number 1 Abdul RahimCPD A-64 04 Burney son of3466/ Haji 2010
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Asadullah Burney 2.Ms. Talat CPDC-17 06 Ejaz D/o 1608/ Chaudhry 2005 Ejazuddin w/o . Nadeemuddin 3 Mst. Shahnaz CPDC-19 06 Naseem W/o 1609/ Sh.Naseem 2005 Ahmed Kushtiwala 4 Mirza Ishrat CPDA -116 06 Baig s/o 261/ Mirza 2007 Shaukat Baig 5 Mst. Azra CPDA-55 06 Perveen W/o 1087/ Sharafat Ali 2007 6 Mst. Qamrun CPDA-23 06 Nisa W/o 1442/ Shams Asad 2010 7 Mst. Sultana CPDA-141 06 Safdar W/o 3010/ Ghulam 2011 Safdar Khan 8 Abdul Naeem son of AbdulCPD 3066/A-157 06 Jalil 2011 9 Raut Ahmed CPDA-111 06 Kahara son 3067/ of 2011(A-06) Muhammad Ameen Kahara 10Ahmed CPDC-18 06 Naseeb son of3387/ 2011 Mohibuddin 11S. Mohiuddin CPDC-14 06 Chawala son of 3388/ 2011 Muhammad Din 12Qaiser CPDA-31 06
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Ahmed Saigol son of Mian3519/ 2011 Dost Muhammad Saigol 13(i)Mrs. Rubina CPD8-6I 06 Fasahat w/o 3683/ Fasahat Ali 2011 (Petitioner No.1)
13(ii) Mrs. Shagufta Nasreen w/o Shakeel Ahmed (Petitioner No.2) N-do- A-40 06 13(iii)Mrs. Nabila Azher W/o Azher (Petitioner No.2)-do-A-109 06 13(iv)Mrs. Syeda Tasneem Khusar w/o Salamat All Khan (Petitioner No.3)-do-A-145 06 13(v) Mrs. Zamzam Majid w/o Abdul Majid Khan (Petitioner No.4)-do-A-148 06 13(vi)Mrs. Zarina Younus w/o Azhar All (Petitioner No.5)-do-A-153 06 13(vii)Mr. laved Riaz son of Muhammad Riaz (Petitioner-do-A-177 06
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No.6) 13(viii)Mr. Zaka Ullah Siddique son of Mashallah (Petitioner No.7)-do-8-26 06 13(ix)Mrs. Anjum Sehani w/o Atouf Ahmed and 3 others (Petitioner No.8)-do-A-170 06 I3(x) Mrs. Asma Aftab w/o Aftab Ahmed (Petitioner No.9)-do-A-59 06 13(xi)Syed Muhammad-do-A-85 06
Rashid Ali son of Syed Millat Ali Zaidi (Petitioner No. 11) 13(xii)Maqsood Ahmed Khan son of Mehmood Ahmed Khan (Petitioner No. 12)-do- SA- 406 13(xiii)Javed Ashraf son fo Muhammad Ashraf (Petitioner No. 13)-do- C- 3406 14 Ghanzanfar Masood son of Muhammad IsmailCPD 3989/2011B- 2406 15 Muhammad IdressCPD 148/2012A- 21706
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Aziz Wd/o Muhammad Aziz Jamali (Petitioner No.2) 22Radar AhmedCPD B-82 11 Siddiqui son 4014/ of S.H. 2011 Siddiqui 23Aijaz AhmedCPD A-88 II son of Israr4015/ Ahmed 2011 24Shamim CPD A-26 Ii Ahmed 4016/ Shaikh son of2011 Shaikh Orackzai son of Malik Sawab Gul 16 Mst. Fouzia Naz w/o Kabir AhmedCPD 361/2012A- 6406 17 Abdul Jabbar son of Abdul karimCPD 3048/2012B- 5306 18 Anwar Aziz son of Aziz- ud-DinCPD 1558/2013A- 1506 19 Waseem Khan son of Azmat AliCPD 3473/2013A- 1006 20 Majid Haroon son of Haroon IsmailCPD 2346/2012C- 6707 21(i) Mst. Anjum Ahmed wd/o Mujeeb uddin Ahmed (Petitioner No. 1)CPD 1819/2012B- 11610 21(ii) Mrs.Arjumand-do- B- 11510
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Mukhtar Ahmed 25Jan CPD 8-16 11 Muhammad 4017/ son of Abbas2011 Khan 26Syed CPD A-237 11 Muhammad 4018/ Alam Zaidi 2011 son of Syed . Waheed Hussain Zaidi 27Rubina AyazCPD B-102 11 w/o Ayaz 4019/ Irshad 2011 28Karam CPD B-11 11 Ahmed Khan4020/ son of 2011 Muhammad Khan 29Syed CPD 8-I04 ii Mohiuddin 4021/ Ahmed son of2011 Syed Sultan Ahmed 30Mehboob CPD A-13I 11 Hussain son 4039/ of Mehmood2011 Hussain
RESPONSE OF KMC ' The respondent/KMC has not denied the allotment of the plots to the Petitioners, however, as to non-handing over of the vacant physical possession, has taken different pleas. In some case it is pleaded that the entire block is under the encroachment in the shape of hutment and katcha pacca boundaries and no sooner the law and order situation normalize in the city the removal of encroachment and handing over of possession shall take place and in some cases asserted that the possession was handed over to the petitioners and it was for them to safeguard the possession
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and that the writ was incompetent. Notwithstanding, the stance of the respondent/KMC in Constitution Petition No.D-1819/2012 which could be made applicable to all the petitioners claiming possession of plots in Block "6" is reproduced hereunder: - "PARA NO: 11 OF THE PETITION 10. That regarding para 11 of the Memo of petition it is admitted that no physical possession were given to the petitioner due to litigation/Court case i.e. Suit No. 762/1995 which is pending in court. Detail reply is given in paras Nos. 2 and 3 above. Repetition of the same is not necessary. PARA NO: 12 OF THE PETITION 11. That regarding para 12 of the Memo of petition it is submitted that the over all block under encroachment the shape of hutment and Katcha Pacca Boundaries, as soon as the law and order situation normalized in the City the removal of encroachment shall be done and also the encroaches created law and order situation." STANCE OF REVENUE DEPARTMENT The Revenue Department of Government of Sindh though has not filed any response but in consequent to the Order passed in Const. Petition No. D-1608 of 2005 on 15.04.2010 a joint committee comprising by the Deputy Secretary III (LU), Section Officer I (LU), DDO Revenue, Guishan-e-Iqbal Town and Survey Superintendent, Karachi was constituted and its report was submitted on 07.07.2010 wherein it has been stated that in the year 1977 defunct KDA was allotted 2000 acres of land for Scheme-36 by the Government of Sindh and on account of non-payment of the dues by the KDA an area of 30 acres was resumed by the Government of Sindh and allotted to the occupants of Mir Khan Gabol village pursuant to the Judgment and Decree passed in Suit No. 1534 of 1992. It states that in the year 2002 a summary was moved by the City Nazim for re- acquiring 30 acres of land and the Hon'ble Governor of Sindh recommended that the allottees of Mir Khan Gabol Goth should not be dislocated and alternate land should be given to KDA. The summary further says that after the promulgation of Sindh Government Land Cancellation of Allotment Conversion and Exchange Ordinance, 2000, a summary was floated to the then Chief Minister of Sindh and differential amount was fixed receivable from the allottees of Mir Khan Gabol Village, the summary was approved, offer letter was issued in the name of Chutta Khan @ Shafi Gabol, one of the residents of Mir Khan Gabol for the payment of differential amount and consequently he deposited a sum of Rs.39,349,200/- in favour of government on 07.04.2004. It further says that on 19.10.2005 summary was again moved revising the rates as land was sold to the private owners M/s. Roshan Associates and the Hon'ble Chief Minister duly approved the summary on 13.07.2006. It further stated that the allottees of the KDA filed petition bearing No. 1608 of 2005 in which the High Court has passed an order for grant of alternate land. In the recommendation the report asserts that out of 2000 acres of land 30 acres of land was properly resumed by the Government of Sindh and allotted to Mir Khan Gabol Village and that the KDA does not have the right or title to interfere in the possession. CLAIM OF INTERVENTION MIS. ROSHAN ASSOCIATES ' The claim of Messrs Roshan Associates as is evident from CMA No. 1144 of 2007 in Const. Petition No. 1609 of 2005 and in CMA No. 239 of 2007 in Const. Petition No. 1608 of 2005 is more or less the same as that of the Revenue Department Government of Sindh. In para-6 of their application in Const. Petition No. 1609 of 2005 it is stated that out of 2000 acres of land which was granted to KDA in the year 1977 in Naclass-32, Deh Safoora on account of non-payment 30 acres of land was resumed and the villagers namely Chutta Khan and others approached the Chief Minister for regularization of their village which was allowed on 06.06.1996. The villagers paid the occupancy value and Sanads were issued in their favour and their names were recorded in the record of Revenue and M/s. Roshan Associates have entered into an agreement with the villagers and purchased the land and are in occupation and possession thereof in part performance of the
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agreement. It was further asserted that the differential amount of Rs.39,349,200/- was paid by M/s. Roshan Associates on behalf of the villagers/vendors and the remaining amount is also being deposited. ' Along with application M/s. Roshan Associates have also annexed a sale agreement and a public notice published in daily "JANG" dated 17.07.2004 which reflects that they have purchased the subject 30 acres of land from M/s. Sikander Bizenjo, Syed Ghazafar Ali Shah, Shafi Muhammad Gabol, Moula Bux and Rajab Ali. Pir Masoom Jan Sarhandi and M/s. Johns Waki International. CLAIM OF INTERVENOR SYED MASOOM JAN SARHANDI ' Syed Masoom Jan Sarhandi has also filed CMA No. 13442 of 2008 in Const. Petition No. D-1608 of 2005 who claims to have purchased the same 30 acres of land vide agreement dated 11.04.1996 from Chutta Khan, Mir Khan Gabol, Muhammad Sikandar, Muhammad Akhter, Moula Bux and Rhjab Ali. He claims that challan of Rs.145,200/- in favour of the occupants of Mir Khan Gabol Goth was issued through their Attorney i.e. The Applicant Pir Masoom Jan Sarhandi and that certain litigation is pending. It was asserted that Government of Sindh has fraudulently issued challan for differential amount in favour of Chutta Khan instead of Pir Masoom Jan Sarhandi. Along with application he has also filed a copy of agreement dated 11.4.1996 and numerous letters written to the Chief Secretary. The agreement reflects that the intervention Pir Masoom Jan Sarhandi along with Muhammad Asghar Bezenjo of the first-party entered into an agreement with (i) Chutta Khan @ Shafi Muhammad, (ii) Mir Khan Gabol, (iii) Muhammad Sikander, (iv) Muhammad Akhtar, (v) Moula Bux Baloch and (vi) Rajab Ali, whereby the second-party asserted to be in possession of 30-00 acres of land in question and agreed to give 15-00 acres to the intervenor Pir Masoom Jan Sarhandi against his services of completing entire documentary formalities and to bear necessary expenses etc. Etc. Even this agreement reflects that at no point of time there was any village on the subject land. STANCE OF KMC ' The stance of KMC is that after the Government of Sindh allotted 2000 acres of land to the Karachi Development Authority (KDA) in the year 1971, the KDA announced a scheme which was duly notified under Article 45 of the KDA Order, 1957 and the same was published in different newspapers prescribing the boundaries of the scheme which was named as "KDA Scheme 36 Gulistan-e-Jauhar Karachi". Thereafter, through open auction the plots were offered to the general public for residential/commercial purposes and ultimately same were allotted against consideration to the general public including the petitioners. The claim of the intervenors to the 30 acres or any other portion of the land has been vehemently denied. It was also vehemently denied that erstwhile KDA, or CDGK or KMC defaulted in payment of price of 30 acres of land, the existence of Mir Khan Gabol Goth was also vehemently denied. It was contended that the Chief Secretary Sindh constituted a committee comprising of Member, LU, District Coordination Officer and EDO (W&S), CDGK, to visit the site of Mir Khan Gabol Goth and to report the ground position and according to the report, the entire village was lying vacant and there was no sign of village, only 10- 15 jhugies in a scattered manner were in existence at the site, which were in possession of khana badosh families. It has been claimed that KDA has not only planned but developed subject land and allotted the same to the general public which falls within the limits of KDA Scheme No.36 by constructing roads all around, water and sewerage lines have been laid and that the intervenors have neither any possession order nor any title documents. It was asserted that the intervenors by suppressing the facts fraudulently had taken the matter to the regularization committed and obtained challan infact the entire scheme including 30 acres of land was already disposed of by the Government of Sindh through public auction, therefore, the said land was not available for allotment or its regularization. CONTENTION OF MESSRS RASHEED A. AKUND AND AHMED PIRZADA ADVOCATES
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' Messrs Rasheed Akhund and Ahmed Pirzada have jointly contended that since the KDA failed to deposit the occupancy price of 2000 acres of land granted to it within a period of six months as provided in subsection (5) of Section 10 of the Colonization of the Government Lands Act, 1912 therefore, the government has rightly resumed 30 acres of land out of 2000 acres of land which ultimately was allotted to the villagers of Mir Khan Gabol Goath from whom the same was purchased by the Applicant/Intervenor Messrs Roshan Associates. It was next contended by Mr. Rasheed Akhund that KDA under the President's Order V of 1957 had no legal authority or jurisdiction in law to purchase and pay for any land of the province for creation of any scheme. It was next contended that allotment of land by the KDA to the Petitioners after 1995 are null and void pursuant to the Ordinance III of 2000 and therefore, the petitioners had no right to file the instant petition. It was next contended that the Governor had no jurisdiction to issue Notification dated July 1971 for allotment of 2000 acres of land to the KDA as it was within the exclusive domain of the Chief Minister, therefore, the Notification issued by the Government of Sindh in July 1971 is without lawful authority. It was lastly contended that under Section 20 of the General Clauses Act, 1956 the power is vested with the Government of Sindh to issue, add or amend, vary or resnd any notification, therefore, the exclusion of 30 acres of land by the Government of Sindh which was even to Mir Khan Gabol Village by virtue of another notification is valid under the law. CONTENTION OF SYED SULTAN AHMED, LEARNED COUNSEL APPEARING FOR KMC ' Syed Sultan Ahmed, learned counsel appearing for KMC contends that there were no statement or condition on the basis whereof the land was granted to KDA for announcing residential scheme for the Karachiiets, therefore, the question of breach or resuming the land by the Government of Sindh does not arise. Mr. Sultan has further placed on record numerous letters reflecting the payment to the Government of Sindh, however, he pointed out that no documentary evidence has been placed by the Government of Sindh on record to establish any default on the part of KDA for acquiring the land. It was next contended that once the land was auctioned by the KDA to the Karachiiets against consideration then the Government of Sindh had no authority whatsoever to resume the land. Mr. Sultan further referred to Summary of Chief Minister and contended that even the report submitted to the Chief Minister reflects that there was no village at all and the interventions and others with the connivance of officials of Board of Revenue have tried to usurp the land of the allottees. According to the counsel the Judgment and Decree referred to was set aside by moving an application under Section 12(2), C.P.C. And that litigation was also a device to usurp a piece of land duly developed by KDA and auctioned. According to the counsel 404 plots of different categories were chalked out by KDA in Block-6 of Gulistan-e-Jauhar, Scheme-36 and all are running from pillar to post to get possession of their plots or to seek the relief of an alternate plot. He therefore, contended that the petitions may be allowed directing the agencies to remove encroachment so that the possession could be delivered to the allottees/the rightful owners of the subject plot. ' We have heard the learned counsel for the respective parties at length, perused the record and the relevant law. There is no denial either from the Government of Sindh Land Utilization Department or the interventions that 30 acres of land on which Block-6 of Scheme-36, Gulistan-e-Jauhar was chalked out by KDA was a part and parcel of that 2000 acres of land which admittedly was allocated by the Government of Sindh in the year 1977 to KDA to launch a housing scheme for the Karachi. There is also no denial that KDA on 07.12.1978 through a Gazette notification in respect of Scheme-36 in terms of Article 45 of the KDA Order 5 of 1957 notified the scheme for public information and calling for objections for Scheme-36 and 37 comprising of a total area of 3700 acres by giving entire details of the land on which the scheme was to be laid and that no objection whatsoever was filed. It also appears to be an admitted position that KDA in the year 1980 and 1981 after announcing the scheme allotted the residential and commercial plots through balloting to
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the general public against consideration. The sale price was duly paid to the KDA and after such allocation, the area was duly developed by the KDA by laying down roads, water and sewerage lines etc. It appears that a strategy was evolved to usurp the subject land by filing Civil Suit No. 1543/1992 and an ex parte Judgment and Decree dated 10.7.1994 and 14.7.1994 was obtained on the basis whereof village was approved by the Chief Minister in the year 1996 and Sanads were issued to the. Villagers. It also appears that the judgment and Decree so obtained was A set aside in Civil Appeal No.151/1994 by the Vth Additional District Judge, Karachi East and ultimately plaint of Suit No.1543/1992 was rejected by VII Senior. Civil Judge, Karachi East vide its order dated 08.09.2010. Notwithstanding, on the basis of such decree a summary was moved before Chief Minister on 02.06.1996 by proposing that in view of judgment the request of villagers for regularization of Mir Khan Gabol Goth over an area of 30 acres could be entertained under Section 10(1) of Colonization of Government Lands (Sindh) Act, 1912 @ Rs. 1/- per square yard by resuming land in question in the name of KDA on usual terms and conditions and the Chief Minister approved summary and consequently Sanads were issued in the name of few persons (59 according to intervenor and Board of Revenue). There was nothing in the summary or in report of Deputy Commissioner to show that there was a proper village that too on an area of 30 acres, on the contrary the report clearly stated that there were only few huts. Additionally, it was also not brought to the notice of the Chief Minister that the land which is sought to be resumed has already been auctioned by the KDA to more than 400 people, that too almost 15 years back. On the basis of such summary on 06.06.1996 the Secretary Land Utilization regularized the possession of the nonexistent residents of Mir Khan Gabol Village over an area of 30 acres @ Rs.1/- per square yard. ' It appears that thereafter the Transition Officer of the KDA vide its letter dated 03.06.2002 brought to the notice of City Nazim the entire anomaly with a request to re-agitate the matter with the Government, as such, regularization of the Mir Khan Gabol village would affect more than 179 allottees of the KDA. Under these circumstances, on 13.11.2002 a summary was placed before the Governor of Sindh by the Chairman of the Committee appointed under the Ordinance III of 2001 which inter alia detailed following objections of the Transition Officer of defunct KDA:- "d) The land falling in the Scheme,including the land in question has already been planned and developed by the KDA after incurring huge expenditure in the area. e) The land in question had already been allotted to the general public by KDA through open public ballot. A total of more than 179 plots including 7 number A-type plots (each measuring 240 square yards) and 40 number-C-Type plots (each measuring 600 square yards) were allotted to the public at large. The claim of these allottees and presence of more than five large sized amenity plots in the area are being over looked by the Board of Revenue Sindh in order to allow windfall profit to a selected number of dubious individuals. f) As per record there is no recognized Goth in the name of Mir Khan Gabole Goth and as such allotment of large chunk of 30-00 acres of land (and that too belonging to the KDA) has not only been un-authourited but also illegal and therefore regularization of the same land in their favour as offered by the Land Utilization Department is totally unjust and unlawful. Instead the cancelled land should not be restored in their favour and the same should remain with the City District Government, being part of the said Developed Scheme No.36 Gulistan-e-Jauhar. The complete town planning of the area carried out by KDA will be deformed by this arbitrary decision of the Board of Revenue Sindh." ' However, the Chairman of the Committee appointee under Ordinance III of 2001 made following recommendations to the Governor seeking approval of the village Mir Khan Gabole: 4. The Committee recommends that since KDA and Board of Revenue both are under the Sindh Government, hence it will be proper that the Honourable Governor/Chief Secretary should
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intervene into the matter and bring about a settlement between both these Departments, in such a way that the residents of village Mir Khan Gabole are not dislocated and the Board of Revenue provides suitable alternate land measuring 30-00 acres to KDA, so that their Scheme No.36 is not adversely affected." ' However, before placing the matter before Governor of Sindh, the Chief Secretary had a meeting with the Senior Member, Board of Revenue and DCO Karachi and to our shock and dismay the proposal which was placed before the Governor, inter alia, contained:-- ' The Committee consisting of DCO and Member (L.U) recently has reported that the village as such has disappeopared only few jhugis are there which too perhaps at the behest of land Grabbing Mafia. ' The Committee constituted for reviewing the prices has fixed around 50 lakh per acre which the applicants are ready to pay. ' The Committee has recommended resolution of the issue in a way that the villagers are not dislocated and KDA is given equal land at some other place. ' The legal aspect should also be kept into consideration as the land initially was granted to the villagers as per Civil Suit filed in 1992. ' For orders on the recommendations of Committee as at para 4 are solicited. Governor Sindh Para 4 approved. Sd/- dt:12-12-2002 M. Soomro" We totally failed to understand when it was well within the knowledge of the Government of Sindh that the subject land is a part of 2000 acres of land which was granted to the KDA for a residential scheme and the KDA further after chalking out residential-cum-commercial scheme had auctioned plots and sold the same to more than 179 people then how the land knowingly could be regularized in favour of someone, who is called land grabbing mafia by none other than Chief Secretary. In this context the report of joint committee constituted on the directions of the Chief Secretary reproduced below would reflect that the land which was duly allotted to the petitioner through manipulation was initially regularized as Goth, that too even without lawful authority and then given to the land grabbers:- "A joint Committee consisting of Member(UL), Board of Revenue, Sindh District Coordination Officer, City District Government, Karachi and executive District Officer (Works and Services), City District Government, Karachi was constituted under the orders of theChief Secretary, Government of Sindh, in order to visit the site of Mir Khan Gabole Goth and report the ground position. ' Pursuant to the directions, Committee visited the site on 26.11.2002 at 9.30 a.m. And…
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