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Civil Petition for Special Leave to Appeal No. K‑133 of 1969, decided on 19th August 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 21st October 1969, in Petition No. 577 of 1969).

Constitution of Pakistan (1962),

Art. 98‑Writ jurisdiction-- Writ petition against Commissioner's order upholding Municipal Committee's resolution not admitting petitioners' claim to grant of land, such land being contiguous to petitioners'‑Petitioners, held, had no legal right to grant of land‑Petitioners' claim if based on any easement of light and air could be agitated by way of a suit and not through writ petition.

A. Aziz Dastgir, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 19th August 1970.

This is a petition for special leave to appeal from an order of a Division Bench of the High Court of West Pakistan, Karachi Seat, dismissing a petition under Article 98 of the Constitution in limine.

The said petition was filed to challenge an order of the Com missioner of Karachi, whereby an appeal against a resolution passed by the Karachi Municipal Corporation on the 8th of June 1965, granting a plot of land adjacent to the land of the petitioners, being Survey No. R. C. 4/25, in Ranchore Lines, Karachi, was dismissed.

The plot in dispute measured 186 square yards, out of which 53 sq. yds. was delineated in the Municipal plans as alignment land. The balance of 133 sq. yds. was, it appears, at one stage, allotted to the respondent No. 3 at Rs. 100 per sq. yd., but subsequently in the year 1964 on the recommendation of the Chief Officer this allotment was cancelled and the case was put up before the Municipal Corporation for selling the land by public auction in supersession of its former resolution. The Municipal Corporation, however, by its resolution of the 8th of June 1965, decided to sell the said area to respondent No. 3 at Rs.150 per sq. yd.

The main ground on which this resolution was sought to be challenged by the petitioners was that it had been passed without the necessary quorum prescribed under rule 10 (b) of the Model Regulations for the Conduct of Business by Municipal Committees in West Pakistan. The Commissioner, however, dismissed the appeal as being out of time.

The petitioners, therefore, sought to contend before the High Court that the Commissioner should have condoned the delay in the facts and circumstances of this case. The High Court took the view that since the Commissioner had the jurisdiction to condone or not to condone, the High Court could not interfere with the exercise of that discretion when it had been exercised

upon proper grounds. The High Court was also of the view that the petitioners had no legal right to the grant of the land which they could enforce by way of a proceeding under Article 98 of the late Constitution.

The contention regarding the vires of the resolution also found no favour with the High Court, as the High Court took the view that the resolution had been passed in accordance with the West Pakistan Municipal Committees (Property) Rules, 1962, which had since come into force as from the 13th of March 1962. The grant of the land to the respondent No. 3 had also since, it appears, been approved by the Commissioner.

The same arguments have been advanced before us in support of this petition but we are of the view that the petition under Article 98 of the Constitution was clearly not maintainable, as the petitioners had no legal right to the grant of the land which they could assert by way of a petition under the said Article. If they have acquired any right of easement of light and air, their appropriate remedy lies by way of a suit for the establishment of such a right. This petition is, accordingly, dismissed.

Leave refused,

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