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Petitioner: Haji HASHMATULLAH AND 9 OTHERS VS Respondent: KARACHI MUNICIPAL CORPORATION JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Haleem, Ghulam Rasool K. Shaikh Title:Haji HASHMATULLAH AND 9 OTHERS vs KARACHI MUNICIPAL CORPORATION
JUDGMENT
Reported As: PLD 1971 Karachi 514 Result: Petition allowed Judgment JUDGMENT GHULAM RASOOL K. SHAIKH, J.--This is a writ petition under Article 98 of the Constitution of the Islamic Republic of Pakistan against the order passed by the Commissioner of Karachi purporting to act under section 111 of the Municipal Administration Ordinance, 1960 and communicated to the Chairman, Karachi Municipal Corporation by letter No, 6(6)/67-LSG dated 31-3-67. The petitioner No, 10 is an association known as Qureshi Market Welfare Association having a large number of members, while the petitioners 1 to 9 are the office-bearers of the Association. There is a plot of land bearing No, 1 sheet No, RB-7, Arambagh Quarters, belonging to the Municipal Corporation. A major portion of this was rented out to the members of the Association by the Municipal Corporation in the year 1948 for the construction of their shops. In pursuance of this lease the Municipal Corporation also demarcated the plot into small portions for the purpose of construction of shops and allotted the same to the members of the Society including the petitioners at a monthly rent of Rs, 5.10 each. After the allotment the petitioners and others constructed their separate and independent shops at their own expenses on the respective portions allotted to them. Since then they were running their business in those shops. This premises constituted a market known as Qureshi Bazar. The petitioners as well as the members paid ground rent in respect of the plots in their possession for the period ending June 1967. It is further alleged in the petition that in September 1963 the Municipal Corporation illegally and arbitrarily enhanced the rent from Rs, 5.10 to R.. 20'00 per month and started demanding the same by way of licence fee. The petitioners challenged this by tiling a civil suit in January 1964 and it is still pending in the Court of Civil Judge, Karachi. This suit was resisted by the Karachi Municipal
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Corporation and written statement was filed. It appears that the Municipal Corporation proposed to lease out the same plot with construction thereon for a sum of Rs, 5 lacs in favour of the Divisional Evacuee Trust Committee respondent No, 3. The petitioners having come to know about it approached the Municipal Corporation by making an application dated 28th June 1960 for grant of lease to their Association for the purpose of constructing multistereyed building for the benefit and use of the petitioners and other members of the Association having their shops in Qureshi Bazar. This application was considered by the Corporation at their meeting held on 12-4.66 and it was resolved to lease out the plot to the Association in consideration of Rs, 5,25,000 by Resolution No, 175. The petitioners, therefore, requested the Municipal Corporation to supply a copy of the Resolution to enable them to arrange the payment but the request was refused by letter dated 14-12-1966 as the approval of the Commissioner respondent Ni. 2 who was the Controlling Authority was awaited although it is contended by the petitioners that no such approval was required under the West Pakistan Municipal Committee Business Rules, 1960. However, on 15-12-66 the Municipal Corporation communicated the said Resolution to the petitioners by their letter No, LC. Misc-443/LS-7/63 dated 15-12-66 directing them to pay Rs, 1,31,2,50 being 25% of the cost for the grant of lease of the plot. In pursuance of this, the entire amount of Rs, 1,31,250 was deposited. After making this payment the petitioners continued to pursue the Municipal Corporation to execute all necessary documents to finalise the lease by virtue of the said Resolution but with no result. However, subsequently the Commissioner, suddenly and without giving an opportunity to the petitioners of being heard quashed the said Resolution in exercise of his powers as Controlling Authority under section 111 of the Municipal Administration Ordinance, 1960 and granted the lease of the said plot to the Divisional Evacuee Trust Committee respondent No, 3 and the Chairman, Evacuee Trust Board respondent No, 4 ,by his order communicated by the Director of Basic Democracies by letter No, 6 (6)/67-LSG dated 31-3-67. The petitioners were accordingly informed by the Municipal Corporation by letter dated 19-4-67. It was contended that the order passed by the Commissioner quashing the Resolution was beyond the scope of section 111 Municipal Administration Ordinance, 1960, as there were no findings that the said Resolution was against public interest or was not in conformity with law. An allegation was made that the Commissioner was influenced by a meeting held for the said purpose and did not pass the order on his personal and careful consideration. It was also pleaded that the respondents 3 and 4 had no lawful power to acquire any immovable property under the scheme framed under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act. The order of the Commissioner was also challenged on the ground of mala fide and fraud on his powers as the same had been passed for the benefit and use of one private company known as Hussain D'Silva and so the respondents 3 and 4 were trying to acquire the plot for the use and benefit of that private party and not in pursuance of any scheme. The aforesaid private company had given wide publicity to the proposed building on the aforesaid plot and several advertisements appeared in the newspapers. The appointment of the Commissioner as Controlling Authority under the Municipal Administration Ordinance, 1960 and the delegation of powers to him was also challenged. It was also asserted that the petitioners were old and bona fide occupants of the aforesaid plot and they had preferential and bona fide right in respect of the said plot and as such the impugned order was arbitrary and the quashment of the Resolution was illegal and without lawful authority. On the basis of these facts stated in the writ petition following declaration was sought: "(a) To declare that the order passed by respondent No, 2 directing the quashment of Resolution No, 175 dated 12-11.66 passed by respondent No, 1 is without lawful authority and has no legal effect whatsoever and accordingly quash the said order and restore the Resolution No, 175 dated 12-11-66
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passed by respondent No, 1. (b) To declare that the transfer of plot of land bearing No, 1 Sheet No: RB 7 Rambagh Quarters, Karachi, to respondents Nos, 3 and 4 by respondent No, 2 is illegal and contrary to law as respondents Nos, 3 and 4 have no lawful power to acquire immovable property under the scheme for the management and disposal of property attachment to charitable and religious purposes framed under section 16-A of Displaced Persons (Compensation and Rehabilitation) Act and as such the impugned order passed by respondent No, 2 directing the transfer of the said plot of land is infructuous and without lawful authority, contrary to law and has no legal effect whatsoever. (c)To direct the respondents, their servants, their employees or anybody claiming through them not to act upon the said order passed by respondent No, 2 and give any legal effect whatsoever. (d)To grant such relief or reliefs as this honourable Court may deem fit in the circumstances of the case." The petition was resisted by all the respondents. Comments were called for from the Municipal. Corporation respondent No, 1 and Commissioner respondent No, 2. The respondent No, 1 denied that the plot was rented out to the members of the Association but it was pleaded that 53 persons were allowed in 1949 to put up cabins on a space of 4' x 10' on the plot in question purely on temporary basis as licensees subject to revocation of licence and removal on 15 days' notice. It was also agreed that the structure put up by the licensees shall vest in the Corporation. It was further stated that after the initial licences had been granted a number of licensees had left and others had unauthorisedly occupied the space and some of them had amalgamated more than one shop together without any permission and approval of the Corporation. Most of the persons in occupation had paid the licence fee at the reduced rate of Rs, 5.52 for the period ending June 1967. It was further stated that the area of this plot was 1121 sq. yards and behind this plot there was a big plot belonging to the Divisional Evacuee Trust Committee which wanted to put up a multi-storeyed building but no suitable building could be constructed unless the disputed land was also acquired by the Committee. As such, a meeting of the Divisional Evacuee Trust Committee was held in the Commissioner's office in November 1965 in which the then Chairman, Karachi Municipal Corporation, agreed to sell the disputed plot to the Divisional Evacuee Trust Committee for a sum of Rs, 5 lacs with a condition that the expenses of the shifting of the shops of Qureshi Bazar would be that of the Divisional Evacuee Trust Committee which in turn accepted the condition. It was added that in fact the negotiation for the purchase of the plot by the Divisional Evacuee Trust Committee was going on since September 1963 which was finally agreed upon by the Chairman in November 1965 in the said meeting held under the chairmanship of the Commissioner, Karachi. In pursuance of this agreement reached at the meeting the matter was placed before the House for the finalisation of the dealin favour of the Divisional Evacuee Trust Committee but the House rejected this proposal and passed Resolution No, 175 to transer the plot to the petitioners' Association. However, the resolution required the approval of the Controlling Authority who was the Commissioner and, therefore, it had no legal effect without his approval. It was admitted that an amount of Rs, 1,31,250 being 25% of the cost of the grant of lease was accepted by the Municipal Corporation but this was done in expectation of the approval of the resolution of the Corporation by the Controlling Authority but this approval was not granted by the Controlling Authority in the exercise of the powers vested in him by virtue of section 111 of the Municipal Administration Ordinance, 1960. The resolution was quashed by the Controlling Authority with a further direction that the plot in dispute be granted to the Divisional Evacuee Trust Committee and accordingly the petitioners were informed. The Commissioner was fully competent to pass the orders which he had passed and it was binding on the Municipal Corporation. It was further asserted that the petitioners had no vested right to occupy the land on long lease and even if there was any right they could agitate the matter through regular Court proceedings other than
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by invoking the writ jurisdiction. The grant of a valuable Municipal property as contemplated under the resolution in question could not be effective without the approval of the Controlling Authority which was not given. The comments offered by the Commissioner are more or less in line with the comments offered by the Municipal Corporation. It was maintained that the meeting was held presided over by the Commissioner and it was agreed that the plot would be sold to the Divisional Evacuee Trust Committee for an amount of Rs, 5 lacs and the Municipal land could not be leased out for 99 years without the approval of the Controlling Authority. It was further stated that the resolution was passed a representation was made by the Divisional Evacuee Trust Committee and, therefore, the resolution was quashed by virtue of the power vested under section 111 of the Municipal Administration Ordinance, 1960 and this power was exercised bona fide and in accordance, with law and in the best interest of all concerned and keeping in view the earlier commitment made by the Chairman, K. M. C. in this behalf. The Controlling Authority had powers under the law to quash the proceedings of the Corporation and pass an order which may be fit, fair and proper and so the action was taken bona fide in the exercise of those powers. The petitioners had no vested right for the grant of lease for a period of 99 years. Subsequently additional comments were also made by the Commissioner. In these comments it was stated that the petitioners occupied only a portion of the plot and originally some 45 persons were allowed to occupy the space measuring 4' x 10' each on temporary basis as mere licensees and a written agreement was executed with the Municipal Corporation. Since the allotment, the premises changed hands without the sanction and approval of the Corporation and some more space was added to the original space which was allotted. The occupants as allottees were mere licensees and their licences were terminable after 15 days' notice in the sole discretion of the Corporation. The Resolution No, 75 passed by the Municipal Corporation was rescinded and against this the remedy available to the Corporation was to file an appeal as provided by section 111 (2) of the Municipal Corporation Ordinance but no such appeal was preferred by the Corporation. The mere passing of the resolution did not convey any right or title upon the petitioners without approval of the Commissioner which was never granted. Lastly, it was asserted that in fact the licence to occupy the respective sites had not been revoked so far and as such the question of affording opportunity to the affected persons did not arise and despite that steps would be taken in due course to ensure that an alternative accommodation would be provided to the displaced persons when the occasion arises. Again a further clarification was made by the Commissioner with regard to his earlier comments made in para. 8. It was stated that while exercising powers under section 111 of the Municipal Administration Ordinance there was no occasion for the petitioners to be heard and even otherwise the Commissioner could straightaway refuse the sanction under rule 8 of the West Pakistan Municipal Committee (Property) Rules, 1962. So far the Divisional Evacuee Trust Committee is concerned counter-affidavits of Ahmed Idris Qadri who was the legal assistant were filed to resist the petition. It was asserted that the land in dispute was adjacent to the plot belonging to the Divisional Evacuee Trust Committee and, therefore, looking to the location it was necessary to acquire the disputed plot for the development of their own two plots. In this connection a request was made to the Karachi Municipal Corporation in the year 1963 for taking on lease the disputed plot and it was agreed by the Chairman of Municipal Corporation that the plot with structures would be sold and lease for a period of 99 years would be created for an amount of Rs, 5 lacs plus proper ground rent. It was claimed that the Committee was competent to acquire the immovable property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 for the benefit and purposes specified in the scheme framed under section 16-A of the Act. It was further stated that the two plots owned by the Committee had
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already been leased out to Hussain D'Silva, a private company, for a sum of Rs, 4,28,743.95 permanently subject to enhancement of rent at 7-(1/2)% after the expiry of every 33 years against the total annual income of Rs, 47,291.76 and the disputed plot would also be leased out to Hussain D'Silva company on a very high rent and the income would be utilised for charitable, religious and educational purposes. It was denied that the plot in dispute was to be acquired for the benefit of the company (Hussain D'Silva). The other contentions already raised in the comments offered by the Karachi Municipal Corporation and the Commissioner were repeated. Some documents had been produced and the file of the Controlling Authority (Commissioner) under the Municipal Administration Ordinance, 1960 had been placed before us. In this connection a few more facts may be stated. As is known the Divisional Evacuee Trust Committee owned two plots adjoining the disputed plot and efforts were made by the Committee to acquire that plot. It is said that a scheme was also prepared to raise construction. In November 1965 a meeting was held under the chairmanship of the Commissioner and amongst others, the Chairman of the Municipal Corporation attended the meeting. The Chairman, Municipal Corporation agreed to lease the disputed plot to the Divisional Evacuee Trust Committee. In pursuance of this agreement a resolution was moved in the meeting of the general body of the Municipal Corporation held on 12-11-66 but this proposal was turned down and instead a resolution was passed to lease the plot to the petitioners who, it seems, having learnt about the decision taken at the meeting presided over by the Commissioner and the move to place the proposal before the House made an application on 28th June 1966 for the grant of lease in their favour to raise multi-storeyed building. Since the resolution passed by the Municipal Committee to grant the lease in favour of the petitioner, required the approval of the Controlling Authority, the Chairman, Municipal Corporation acting in pursuance of the resolution moved the Commissioner (Controlling Authority) by letter No, LCF. PSI/LS7/67 dated 1-2-67 to accord the approval. The letter reads as under : "Plot No, 1 R. B. 7, Rambagh Qr., measuring 1121 sq. yds. situated on Bunder Road stands in the name of Karachi Municipality in which the Municipal Employees' Clinic is housed. There also exists Qureshi Bazar Market and a mosque on this plot. Behind this plot, there is a big plot belonging to the Divisonal Evacuee Trust Committee where they want to construct a multi-storeyed building and in order to construct a nice building they decided to acquire the K.M.C.'s above plot. A meeting in this connection was held in the office of the Commissioner, Karachi in November 1965 in which the ex-Chairman told the Committee that the K.M.C. can sell this plot with structure standing thereon provided the Committee agreed to pay Rs, 5 lacs and take the responsibility of shifting the shopkeepers of Qureshi Bazar Market by providing suitable accommodation. The Secretary, Divisional Evacuee Trust Committee, agreed to purchase the plot with structure for Rs, 5,00,000 with the above conditions. The matter for grant of the above plot along with the structure to the Divisional Evacuee Trust Committee for Rs, 5,00,000 was placed before the Corporation through the Finance Sub- Committee for their sanction. The finance Sub-Committee vide their Resolution No, 74 dated 18-10- 66 recommended the office proposal to the Corporation for acceptance but the Corporation in their meeting held on 12-11-66 vide Resolution No, 175 (copyenclosed) resolved as under : {{URDU TEXT}} Accordingly the Qureshi Bazar Association were informed and asked to pay Rs, 1,31,250 being 25% of the cost in case the offer of Rs, 5,45,000 for grant of the above plot is acceptable to them. The Association has agreed to pay Rs, 5,25,000 for grant of the above plot and has deposited Rs, 1,31,250 vide Habib Bank Ack. No, 211 dated 2941-66. It is, therefore, requested that the Commissioner, Karachi may be pleased to accord his approval to
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the Corporation resolution and communicate the same to this office at an early date." The Secretary of the Divisional Evacuee Trust Committee having learnt about the resolution submitted a note dated 30th December 1966 to the Commissioner/Chairman, Divisional Evacuee Trust Committee to the effect that the development scheme of the property bearing Survey No, R.B. 7/2/3 commonly known as Pinjrapur Compound had been prepared and for the implementation of that scheme the disputed plot was essential and the Karachi Municipal Corporation on their move agreed to sell the same to the Divisional Evacuee Trust Committee for Rs, 5 lacs but this decision was altered by the Corporation by the aforesaid resolution. It was further suggested in this submission note that the resolution of the Karachi Municipal Corporation be quashed and the Corporation be directed to adhere to the commitment which had already been made, suggesting further that the existing tenants of the Qureshi Market would be accommodated in the project like other tenants of the Pinjrapur Trust. This submission note and the letter of the Chairman recommending the grant of lease in favour of the petitioners passed through the process of usual notings in the office of the Commissioner. The notings show that the proposal which was placed before the House was in respect of the sale of the plot to the Divisional Evacuee Trust Committee but instead the Corporation decided against it and since the Corporation had backed out from its commitment it would adversely affect the scheme of the Divisional Evacuee Trust Committee for the construction of the multi-storeyed building and the Controlling Authority was invested with certain powers under section 111 (1) of the Municipal Administration Ordinance which was reproduced in the noting, It was also noted that since the Divisional Evacuee Trust Committee was a public office it was presumed that their decision to construct the multi-storeyed building would be for public purpose. Finally the Director, Basic Democracies put up the following note dated 17-2- 67 for the consideration of the Commissioner : "Commissioner may be pleased to see the office note which is self-explanatory. This office agrees with the request of the Secretary, Divisional Evacuee Trust Committee that the plot should be given to the Trust. The Corporation, in a meeting, already stands committed to grant the plot in question to the Trust. The value of the plot was fixed at Rs, 5,00,000 which calculates to Rs, 472 (approximately) per sq. yard which is a fair and reasonable price for the land in that locality. Another reason for the grant of the plot in question to the Trust is that the land in question is adjacent to Pinjrapur Trust Compound whereon a multi-storeyed building has been planned for construction. If the plot in question is not granted to the Trust obviously the construction of the multi-storeyed building would be adversely affected. Under Article 111 of the Municipal Administration Ordinance, the Controlling Authority (Commissioner) is competent to quash the Resolution in question and direct the Karachi Municipal Corporation to grant the plot in question to the Evacuee Trust. Submitted to the Commissioner for his kind orders." The Commissioner made certain queries which were answered and finally the Commissioner approved the recommendation in the following terms on 25-3-67 : "I agree with the proposal of Director, Basic Democracies dated 17-2-67." However, no formal order was drawn for the signature of the Commissioner as . Controlling Authority but instead the Director, Basic Democracies in pursuance of the approval of the Commissioner to his proposal, sent letter No, 6(6)/67-LGS dated 31-3-67 to the Secretary, Divisional Evacuee Trust Committee, which reads as under:- "OFFICE OF THE COMMISSIONER OF KARACHI
No, 6(6)/67-LGS,
Karachi, dated the 31st March 67.
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To The Chairman, Karachi Municipal Corporation, Karachi. Subject--Plot No, 1 R. B. 7 Rambagh Quarters Reference-- Your letter No, L-FP-SI/LS/77/67 dated 1st February, 1967 It is observed that a meeting in connection with the disposal of the plot in question was held before the Com-missioner in November 1965 in which the ex-Chairman told the DETC that the K. M. C. will sell this plot with structures thereon to the DETC, provided the Committee agreed to pay Rs, 5 lacs and take the responsibility of shifting the shopkeepers of Qureshi Bazar by providing them suitable accommodation. The Secretary, DETC agreed to purchase the plot for Rs, 5 lacs with the said condition. Besides the land in question is adjacent to Pinjrapur Trust' Compound whereon a multi- storeyed building has already been planned for construction by West Pakistan Evacuee Property Trust Board, Lahore. If the plot in question is not granted to the Trust, obviously the construction of the multi-storeyed building would be adversely affected. Under the powers conferred upon him under Article 1 l 1 of the Municipal Administration Ordinance, 1969, the Commissioner, Karachi has, therefore, been pleased to quash Resolution No, 175, dated 12th November 1966 passed by the Corporation and to direct that the plot in question should be granted to the Divisional Evacuee Trust Committee, Karachi. You are therefore requested to please take necessary action in the matter.
(Sd.) Ahmed Ullah,
Director, Basic Democracies
for Commissioner, Karachi." This decision was also…
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