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Petitioner: KATHIAWAR COOPERATIVE HOUSING SOCIETY LTD. through Member Managing Committee and another VS Respondent: PROVINCE OF SINDH through Secretary and 3 others
Court Name: Sindh High Court Judge(s): Muhammad Junaid Ghaffar Title:KATHIAWAR COOPERATIVE HOUSING SOCIETY LTD. through Member
Managing Committee and another vs PROVINCE OF SINDH through Secretary and 3 others Case No.: Suit No, 677 of 2015 Date of Judgment:2017-02-08 Reported As: 2018 YLR 560 Result: Order accordingly Judgment ORDER MUHAMMAD JUNAID GHAFFAR, J.---This is a Suit for Declaration, Direction, Cancellation and Injunction and through Application listed at Serial No,1; the plaintiff seeks a restraining order against defendant No,3 from creating any third party interest and not to part with possession ,of the Suit Plot bearing No,SNPA-34, Survey No,34-A, Survey Sheet No,35-P/1, admeasuring 13,822 sq. yds. situated in Kathiawar Cooperative Housing Society, Karachi (Suit Plot), whereas, through Application at Serial No,2, the plaintiffs have prayed for appointment of Plaintiff No,1 (Society) as Receiver of the Suit Plot. Application listed at Serial No,3 has been filed subsequently after filing of the Suit through which the plaintiffs seek suspension of operation of the alleged sale permission dated 5.5.2015 granted by defendant No,6 in respect of the Suit Plot. 2. Precisely, the facts of the case are that plaintiff No,1 is a Cooperative Society registered under Section 10 of the Cooperative Societies Act, 1925 since 25.02.1948 established for the benefit of "Memon Community". Plaintiff No,2 is a Corporate Institution registered under the Cooperative Societies Act, 1925 being a Union and Central Organization of 25 different Cooperative Housing Societies including plaintiff No,1 as its members. It is further stated that plaintiff No,1 had allotted an amenity plot (Suit Plot) to one Mr. A.W. Adamjee vide Allotment Order dated 11.01.1967 specifically for establishment of a Girls High School, General Amenity and other Charitable purposes with terms and conditions to the effect that the Allottee shall not be entitled to assign, transfer, sell, mortgage, lease or let out the Suit Plot to any person without consent of Plaintiff No,l. It is further stated that thereafter the Suit Plot was transferred in the name of defendant No,3 where a School in the name
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of Lady Mariam Adamjee Girls School was established and was being run on the Suit Plot by defendant No,3 on an area of about 15%, out of the total area of the Suit Plot. Thereafter the Plaintiff No,2 executed a 99 years lease in favour of defendant No,3. It is the case of the plaintiffs that since the Allotment of the plot and the subsequent lease, the Defendant No,3 was firstly not able to utilize entire area of the plot as per the allotment terms, and secondly, the School in question was also not being run in a proper and efficient manner, and therefore time and again, the Plaintiff No,1 kept on approaching defendant No,3 in this regard. It is further stated that on 28.03.2013, Defendant No,3 approached Plaintiff No,1 expressing their desire to discuss the future use of the Suit Plot for expansion of educational activities and after several meetings, proposed that School be made Co- educational for boys and girls and they may be allowed to run the School on commercial terms with a special discount and subsidy to the area residents. Such proposal was not acceptable to Plaintiff No,1 and they informed that pursuant to the Allotment Order, the Suit Plot cannot be sold or otherwise used and or transferred in any manner. It is the case of the plaintiffs that subsequently on 20.04.2015 a Public Notice in daily "DAWN" was published, which reflected that defendant No,3 is selling the Suit Plot upon which immediately instant Suit was filed. Thereafter on 20.05.2015, Defendant No,4 filed an Application under Order I, Rule 10, C.P.C. and was joined as a Defendant, whereafter, amended Plaint was also filed. It is the precise case of the Plaintiffs that since Defendant No,3 has violated the terms and conditions of the Allotment Order as well as the Lease, therefore, the Plaintiff No,1 is entitled to resume the plot by cancelling the Allotment and Lease. 3. Learned Counsel for the Plaintiffs has contended that the Suit Plot was allotted to the Predecessor-in-interest of defendant No,3 i,e, A.W. Adamjee as "Gratis" on no profit and no loss basis exclusively on the condition that he would run a Girls High School on the Suit Plot for the benefit of the Community members residing within the Plaintiff No l's Society. Per Learned Counsel till the year 2000 no lease was executed in favour of Defendant No,3, whereas, the management of Defendant No,3 in collusion with the then Management Committee of Plaintiff No,2 got the Lease Deed dated 16.05.2000 executed, of which the Plaintiffs also seeks cancellation through instant Suit. Learned Counsel has contended that in no manner the conditions of the Allotment can be violated and that too without permission of Plaintiff No,1. Learned Counsel has further contended that the School was supposed to be exclusively meant for Girls, whereas, time and again Defendant No,3 has shown its intention to make it a Co-educational School, which again violates the Allotment Conditions and the mandate of Plaintiff No,1 (Society). Learned Counsel has further submitted that through present Sale/Assignment Agreement, the Defendant No,3 is selling the plot to Defendant No,4 on a very low price of Rs,400 Million, whereas, the land is worth much more than this and Defendant No,3 is making profits from an allotment made exclusively for charitable purposes,whichis impermissible. Learned Counsel has referred to various documents on record including the Allotment Order dated 11.1.1967, Lease Deed dated 16.05.2000 and has contended that Defendant No,3 cannot sell the plot to any third party and since admittedly they are unable to run the School in a proficient manner, they are liable to return the plot to Plaintiff No,1 (Society). In support of his contention he has relied upon the cases reported as PLJ 2004 SC 439 (Subedar Manzoor Hussain (deceased) Through LRs, v. Mst. Mehmooda Begum (deceased) through LRs,, 2009 CLC 1199 (Morris Tanvir v. Federation of Pakistan through Secretary Ministry of Defence, Islamabad and 2 others), 2016 SCMR 101, (Province of Sindh through Chief Secretary and 8 others v. Syed Kabir Bokhari) 2015 SCMR 1449 (American International School System v. Mian Muhammad Ramzan and others), 2008 SCMR 611 (Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi), 2010 CLC 1879 (Muhammad Sabir v. Maj. (Red.) Muhammad Khalid Naeem Cheema and others), PLD 2011 Karachi 204 (Muhammad Islam and 5 others v. Messrs Real Builders through Shaikh Muhammad Sadiq and others), 2015 SCMR 1428 (Mehmood Khan and others v. Government of Balochistan and others), PLD 2010 Supreme Court 1058 (Bahadur Yar fang
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Cooperative Housing Society Ltd. v. Feroze Shamsi and others), 2015 YLR 550 (Naseem-ul-Haq through Attorney and another v. Res Aftab Ali Lashari through Guardian ad-litem and 5 others). 4. On the other hand, learned Counsel for Defendant No,3 has contended that in Law, there is no restriction on selling an Amenity Plot and has referred to Chapter 19-2.2.3 of the Karachi Building and Town Planning Regulations, 2002 to explain the various categories of Amenity Plots including for educational purposes. Per learned Counsel there is no restrictive covenant in the lease documents and therefore, the plot in question can be sold or otherwise disposed of, whereas, even the profit making activity is permissible and if such restriction is imposed the same would be in violation of Sections 10 and 11 of the Transfer of Property Act. Per learned Counsel, the plaintiff No,2 is the Lessor of the Suit Plot, which was done somewhere in 2000 and therefore, even otherwise, and without prejudice, no challenge can be entertained in respect of lease at such a belated stage. Learned Counsel has contended that it is settled law that an allotment condition cannot override the recitals of the Lease, whereas, the Lease itself provides taking permission from defendant No,6, which in this matter has already been granted and therefore, the plaintiffs have no case. Learned Counsel has further contended that without prejudice, the arrangement between defendants Nos,3 and 4 is only an assignment, whereby, the defendant No,4 with its expertise of managing Schools will take over the present School and the Suit Plot, and will raise a better and modern School for imparting quality education. Learned Counsel has also referred to sections 17, 49 and 50 of the Registration Act as well as section 54 of the Transfer of Property Act and has contended that after execution of the Lease Deed, the Allotment Order no more exists and it is only the lease document, which is to be interpreted in the present Suit. In support of his contention he has relied upon the cases reported as 2007 YLR 2183 (Lahore Development Authority through Director General and another v. Malik Bashir Ahmed Advocate and 3 others), PLD 1966 West Pakistan Karachi 608 (Ghulam Hussain Meherally v. Mst. Shirin Bai), 2008 CLC 864 (Mrs. Zainab Sohail v. City District Government, Karachi and 2 others), PLD 2004 Karachi 492 (Messrs A.R. Builders (Pvt.) Ltd. v. Faisal Cantonment Board and 4 others), 2001 SCMR 1992 (Din Muhammad and another v. Subedar Muhammad Zaman), PLD 2007 SC 582 (Zulfiqar and others v. Shandat Khan), 2013 MLD 287 (Salman Mujahid v. Federations Pakistan through secretary Defence Rawalpindi and 5 others) and unreported Order dated 02.05.2016 passed by the Hon'ble Supreme Court in Civil Appeal No,85- K/2010 (Morris Tanvir v. Federation of Pakistan through Secretary Ministry of Defence Islamabad and others). 5. Similarly, learned Counsel for Defendant No,4 in addition to adopting the arguments of learned Counsel for Defendant No,3, has contended that insofar as the present controversy and the objections raised on behalf of the Plaintiffs are concerned, they are to be determined only on the basis of the Covenants as mentioned in the lease documents. Per Learned Counsel the owner of the land in this case is defendant No,6, whereas, the Plaintiff No,2 is the Licensee of defendant No,6 and Plaintiff No,1 is a Sub-Licensee. Whereas, lease in question has been executed by Plaintiff No,2 and proper permission insofar as assignment arrangement between defendants Nos,3 and 4 is concerned has been given and approved by Defendant No,6. Per Learned Counsel the Allotment Order has no legal value after issuance of lease and it merges into the lease. Learned Counsel has also referred to a Statement made on behalf of Defendant No,4, wherein, they had agreed to give substantial discount and subsidy to the entire students presently studying in the School after taking over, but such offer has not been accepted. He has further submitted that insofar as Defendant No,4 is concerned the Suit Plot will only be used for the purpose of School and not otherwise, and therefore no lease condition is being violated. 6. While exercising his right of rebuttal, the learned Counsel for the Plaintiffs has referred to Section 107 of Transfer of Property Act and has further contended that insofar as the Lease Deed dated 16.05.2000 is concerned, the same as alleged, has been obtained fraudulently and therefore is void
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against which no limitation runs and Plaintiff No,2 in this matter has already prayed for its cancellation. He has further contended that once a document is alleged to be void then even otherwise, no specific plea of its cancellation is required to be made, whereas, an amended plaint has already been filed in this matter. He has further contended that insofar as Defendant No,4 is concerned a Learned Division Bench of this Court through Judgment dated 07.10.2016 passed in C.P. No,D5812/2015 and others has deprecated the concept of establishing branches and franchises of Schools as education, as a whole, has been commercialized, and therefore the purpose of amenity has been defeated. 7. Though various notices were issued to Defendant No,6, Federation of Pakistan and the Office of learned Additional Attorney General/DAG at Karachi, however, only on one date Mr. Saleemuddin A. Patoli, learned Standing Counsel affected appearance but thereafter he also failed to appear and assist the Court. 8. I have heard all the learned Counsel and perused the record. Insofar as the facts, as stated hereinabove are concerned, it appears that initially the plot in question was allotted to Mr. A.W. Adamjee vide Allotment Order dated 11.01.1967. It further appears that thereafter somewhere on 31.10.1971, the plot in question was transferred in the name Adamjee Foundation (Defendant No,3) by Plaintiff No,1 and subsequently, on 16.05.2000, the said plot was leased through Plaintiff No,2 in favour of Defendant No,3. As of now the defendant No,3 is transferring the Suit Plot as well as the School running thereon by way of an Assignment Deed dated 13.4.2015 and for the present purposes, the Plaintiffs are aggrieved by this arrangement between Defendants Nos,3 and 4. It is the Plaintiffs' precise case that this is impermissible in view of the Allotment Order as well as the Lease in question, whereas, the Amenity Plot cannot be sold even otherwise for any profit making activity. To have a better understanding of this case and to resolve the issue at hand, it would be relevant and advantageous to refer to the Conditions mentioned in the Allotment Order dated 11.01.1967 and the Lease Deed dated 16.05.2000. It is also of utmost importance to observe that the entire area in question including the Suit Plot was initially allotted by Defendant No,6 to Plaintiff No,2, which is a Union of more than 25 Cooperative Housing Societies, and such arrangement was made between Plaintiff No,2 and Defendant No,6 through an Agreement dated 14.1.1954, wherein, there are certain conditions, which are also necessary tote considered. They all read as under:- THE KATHIAWAR CO-OPERATIVE HOUSING SOCIETY LTD. Hr. Bank House No,2, 2nd Floor, Habib Square, Bunder Road Karachi, ALLOTMENT ORDER TERMS AND CONDITIONS 1. The plot shall be exclusively for residential purposes. 2. The allotment shall be Cancelled if the allottee failed to pay further installments of Development charges and other sums payable to the Society as and when asked for. 3. No allottee shall be entitled to assign, transfer, sell, mortgage, lease or let the plot or any constructions thereon, to any person without the consent in writing of the Society. (Emphasis supplied) Sub-lease by Plaintiff No,2 in favour of Defendant No,3 Co-operative Housing Societies Union Ltd. KARACHI FORM P.A-I This Sub-Lease made at Karachi the 16th day of May Two thousand BETWEEN the Karachi Co- operative Housing Societies Union Ltd., registered under the Bombay Co-operative Societies Act, 1925 and having its registered office at Shaheed-e-Millat Road, Karachi, hereinafter called the
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"Lessee" **(which term, where the context so admits shall include its successors, executors, administrators, representatives and assigns) of the first part AND Messrs Adamjee Foundation through their authorized Representative Mr. Amin A. Sattar Ghazi, hereinafter called the "Sub- Lessee" (which term where the context so admits, shall include his successors, executors, administrators, representatives, and assigns) of the second part. WHEREAS the Lessee was the 'Licensee' of all plots of land fully set forth and described in the Main. Agreement executed and registered at No, 206 dated 14.1.1954 at pages 120 to 153 of Volume 170 of Book No, 1 Addl, BETWEEN The Governor General of Pakistan and the Lessee and has so far complied with certain terms and conditions of the said Main Agreement entitling him to a Lease of a portion of the plots mentioned as " Public Amenity" in the said Main Agreement. In consideration of the afore-said, the Lessee has obtained a Lease of all the 'Public Amenity' Plots of land in the territorial Division of Karachi Co-operative Housing Union Ltd, Karachi, including plot Bearing Survey Sheet No,35 P/I, Survey Plot No, SNPA-34 measuring 13822 square yards attached with Survey No, 34-A of the Residential Area, Registration District and Sub-District of Karachi, as per dimensions and boundaries shown and delineated in Schedule I here-to annexed TO HOLD the said plots unto the said Lessee for a period of 99 years commencing from 1st January one thousand nine hundred and fifty four subject to the terms and conditions mentioned below AND whereas the Lessee at the meeting of its Board of Directors held on 1954 has resolved to allot the Sublessee the plot bearing No, SNPA34 Survey No, 35P/1 in the layout plan of the entire Public Amenity Area' of the Society measuring 13822 square yards. 1. ............................ 2. ............................ 3. ............................ 4. ............................ 5. The Sub-Lessee shall have the power, subject to the conditions to sub-let, assign or otherwise transfer his rights in the said plot with or without buildings but all such transfers shall, in any case, be subject to the above conditions and to the obligations of observing and fulfilling the same; provided always that the liability of every transfer or under this Sub-Lease shall continue until a written notice of such transfer signed by the transfer and the transferee or their duly constituted agents has been served upon the Lessor and the Lessor's consent to such Sub-Leases, assignment or transfer has been obtained. 6. .................. Sub-Licence by Plaintiff No,2 to Plaintiff No,1 KARACHI CO-OPERATIVE HOUSING SOCITIES UNION LTD. KARACHI FORM-Z Sub-Licence No, 1. THIS INDENTURE made this 9th day of June One thousand and Nine hundred and fifty five..... WHEREAS the Governor-General of Pakistan (hereinafter referred to as the Landlord) has under an Agreement between the Landlord and the Licensee, dated 14.01.54 (hereinafter referred to as the Main Agreement) has authorized the Licensee to enter upon the land shown in the plan attached to the Main Agreement including the parcel of land referred to in the next succeeding paragraph hereinafter for the purpose of developing it and for the construction of buildings, subject to the terms and conditions contained in the Main Agreement. AND WHEREAS the Licensee at a meeting of its Board of Directors held on 26.7.52 has resolved to allot to the Sub-Licencee No,1 the parcel of land bearing Survey Nos,34 and 34-A (Survey Sheet
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No,35P/1) in Layout Plan of the entire area measuring 56 Acres and 4310 Square yards, as per Schedule 'A' attached in Blocks Nos,7 and 8 of the Karachi Co-operative Housing Societies Union's land. AND WHEREAS under the provisions of the Main Agreement the Sub-Licensee No,1 is entitled to an agreement authorizing him to enter upon the said parcel of land for distributing the plots to the bona fide members (hereinafter referred to as Sub-Licensee No,2) and constructing buildings thereon. NOW THIS INDENTURE WITNESSTH AS FOLLOWS: That the Licensee does hereby authorize.... (1) The Sub-Licensee No,1 shall within a period of three months from the date of execution of this Agreement, allot plots of land in the said parcel of land to bona fide members on its rolls (hereinafter called the Sub-Licensee No,2) subject to the terms and conditions of the Main Agreement and of the Agreement to be obtained from the Sub-Licensee No,2 in Form A appended with the Main Agreement. (2) ..................... (3) .................... (4) .................... Main Agreement between Defendant No,6 and Plaintiff No,2 GOVERNMENT OF PAKISTAN MINISTRY OF HEALTH AND WORKS (FOR KARACHI COOPERATIVE HOUSING SOCIETIES UNION LTD.) This Agreement made at Karachi the 14th day of January, 1954 between the Governor General of Pakistan hereinafter called "the Landlord" (which expression shall where the contexts so admits include his successor in office and assigns) of the one part and the Karachi Co-operative Housing Societies Union Limited, Karachi, being a Society registered under the Bombay Cooperative Societies Act, 1925 (VII of 1925). and having its registered office opposite the Karachi District Prison, Karachi-5, hereinafter called "the Licensee" (which expression shall where the contexts so admits include its successors, executors, administrators, representatives and assigns) of the other part. WHEREAS the Landlord has agreed to permit and authorize the Licensee to enter upon the land hereinafter described for the purpose of developing it and constructing buildings thereon, in the manner and on the terms and conditions hereinafter appearing. NOW THIS INDENTURE WITNESSTH that.... 6(a) After receiving the Approval of the Authority to the layout Plan the Licensee shall allot the plots in the manner following, namely:-- 1. Plots reserved for residential purposes:- The Licensee shall allot parcels of land severally to its members Cooperative Housing Societies (each one of whom is hereinafter called sub-Licensee No 1) in the manner approved by its Board of Directors and subject to the terms and conditions contained herein form Z appended hereto (which shall be deemed to be a part of this agreement), and authorize a Sub-Licensee No,1 to enter upon the parcels of land allotted to it for the purpose of making allotments of plots therein to its bona fide members and shall obtain the agreement of a Sub-Licensee No,1 in Form Z and transmit a copy thereof to the Authority. A sub-Licensee No,1 shall allot plots to bona fide members on its roll in the manner approved by its Managing Committee and authorize the individual allottees (each one of whom is hereinafter called Sub-Licensee No,2) to enter upon the plot of land allotted to him for the purpose of constructing building subject to the terms and conditions contained herein and in Form A
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appended hereto (which shall be deemed to be a part of this Agreement). A sub-Licensee No,1 shall obtain the agreement of a Sub-Licensee No,2 in Form A and transmit the same to the Licensee, who shall pass it on to the Authority and thereupon the rights and the liabilities under these presents regarding the construction of buildings on the sites so allotted shall, on and from the date of the execution of the agreement by the Sub-Licensee No,2 in Form A, devolve on sub-Licensee No,2, provided that this shall not in any manner affect the liability of the licensee and a Sub-Licensee No,1 i the matter of the execution of the Scheme. It is hereby further agreed that on the due completion of the buildings in accordance with the terms and conditions contained herein, the Sub-Licensee No,2 shall be entitled to a lease of the plot allotted to him for a period of 99 years in Form 'B' appended hereto AND IT IS HEREBY FURTHER AGREED AND DECLARED that till such lease shall have been granted by the Landlord the Licensee and the Sub-Licensee Nos,1 and 2 shall have no right or interest in the said plots except that of bare of licensees. The Sub-Licensees Nos,1 and 2 shall not, except for the purpose of raising loans for construction of building thereon, from the House Building Finance Corporation or a Co-operative Society or Cooperative Bank, transfer any right or interest in the said area or, as the case may be, without the previous permission in the writing of the Landlord. 2. Plots reserved for commercial purposes: Plots reserved for commercial purposes shall.... 3. Plots reserved for public amenities. (a) The Licensee shall cause to be erected and completed in and upon the plots reserved for public amenities the buildings, the erection of which has been provided for in the scheme referred to in these presents and shall not without the previous consent in writing of the Authority erect or suffer to be erected on any such plot or part thereof any building other than those required under the Scheme. On the due completion of the said buildings, the Licensee or Sub-Licensee No,1 (as the case may be) shall be entitled to the lease of the said plots on which those buildings stand for a term of 99 years on such terms and conditions as may be laid down by the Authority. (b)Any plot which is or which may from time to time fall vacant or becomes in the opinion of the Authority available for disposal either due to a default of the Licensee, a sub-Licensee No,1 or 2 or a Lessee or by operation of law or otherwise shall be disposed of in accordance with the provisions of Sub-clause (a) of this clause. (wherever required, the relevant part has been either highlighted or underlined) 9. Insofar as the condition stipulated in the Allotment Order is concerned it very clearly and specifically provides, that the plot shall be exclusively used for a Girls High School and the Allotment shall be cancelled and the Allottee shall not be entitled to assign, transfer, sell, mortgage, lease or let…
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