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Civil Petition for Leave to Appeal No. 397/K of 1985, decided on 16th October, 1985.
(On appeal from the judgment and order of the Sind High Court, dated 3‑9‑1985 in Constitutional Petition No. D/465 of 1985).
‑‑‑Art. 185(3)‑‑Allotment of land‑‑Housing Societies‑‑Lay Out Plan prepared only tentatively and parties concerned agreeing that same was subject to adjustment later on‑‑Plan, held, revisable.
‑‑‑Art. 185(3)‑‑Allotment of land‑‑Housing Societies‑‑Lay Out Plan‑‑No material placed to prove contention that for revision of plan by Deputy Commissioner, sanction of Provincial Government was necessary‑ Contention repelled.
‑‑‑Art. 185(3)‑‑Allotment of land‑‑Housing Societies‑‑Lay Out Plan‑ Deputy Commissioner giving due notice to allottee of land/petitioner to be present before him at specified date for checking and approval of plan and a representative of petitioner appearing and his plan, to extent of land allotted to him, approved by Deputy Commissioner‑‑ Contention of petitioner that orders of Deputy Commissioner with regard to approval of plan were passed without giving him opportunity of hearing, held, without substance‑‑Leave to appeal refused.
Fazale Ghani Khan, Advocate Supreme Court with S. Anwar Ali, Advocate‑on‑Record (absent) for Petitioners.
Ali Ahmad Fazeel, Senior Advocate Supreme Court and Shabbir Ghauri, Advocate‑on‑Record for Respondent No.2.
Date of hearing: 16th October, 1985.
‑By this petition leave is sought to appeal against the judgment and order of the Sind High Court, dated 3‑9‑1985 passed in Constitutional Petition No. D/465 of 1985.
2. Facts relevant for the purpose of this petition are that by sale agreement dated 24th November, 1979 executed between the Government of Sind and Rizwan Cooperative Housing Society petitioner No.2 the latter was allotted 20 Acres of land in Sector No. 38/A of Housing Scheme No. 33 in Taluka and District Karachi for the purpose of a residential colony. In the same Scheme some other land was allotted to others including respondent No. 2 Messrs Eastern Builders Agencies Limited who were allotted 14.05 Acres of land. Thereafter a Lay Out Plan was tentatively prepared and the same was approved by the Deputy Director, Master Plan Department, K.D.A., and it was countersigned by the representatives of the concerned parties. A copy of such Plan has been filed as Annexure 'D' to the petition. In this Plan it was clearly mentioned that the allottees of the land had accepted the Lay Out Plan as 'final draft subject to minor adjustment'. This Plan was then sent to the Survey Superintendent, Karachi, for demarcation on the site. During the demarcation it was discovered that according to the Plan the allottees, including the petitioner Society, were getting land in excess of what was allotted to each one of them. The petitioner Society was thus getting 26.02 Acres of land instead of 20 Acres actually sanctioned and allotted to it. The Survey Superintendent, therefore made a proper lay out and prepared another Plan according to which some land originally shown in the first Lay Out Plan as that of the petitioner Society including a 60 Feet wide road was included in the Area allotted to Messrs Eastern Builders Agencies Limited. This dispute was ultimately referred to the Deputy Commissioner (East) Karachi who, vide order dated 30‑5‑1985 treated the Plan, prepared by the Survey Superintendent, as final; confirmed the same and asked the Master Plan Department of the K.D.A to follow such Plan prepared by the Survey Superintendent. A copy of this order is enclosed as Annexure 'F' with the petition. It seems that the Plan was prepared by the Master Plan Department of the K.D.A was finally approved by the Board of Revenue, Sind, vide order dated 11‑7‑1985.
3. Learned counsel for the petitioners contended that the order Annexure O-11-F was passed by the Board of Revenue on the letter of respondent No.1 dated 10‑7‑1985 without hearing the petitioner during the pendency of writ petition which was patently illegal as the most valuable land of Rizwan was proposed to be taken away for the undue benefit of respondent No.2 and the order passed thereon by the highest Court in the revenue heirarchy of the province, affecting adversely the rights of the petitioners without hearing them, the learned High Court Judges have, therefore, erred in law to have ignored these important aspects of the case; that the Board was sought to be impleaded as party and the petitioner had applied for the amendment of petition but the Hon'ble Judges, without considering the application in this behalf which was fixed for hearing on 3‑9‑1985, wrongly presumed that order of respondent No.8 Board of Revenue, Sind, was legal and valid, although the said respondent has not even seen the impugned order Annexure 'F' of respondent No.l; that a bare perusal of Annexure O‑11‑F will show that respondents No.1 and 4 wanted to make their Plan 'E' and 'F' to be a fait accompli before submitting their reports to the High Court; respondent No. 4 sent a letter to the Board of Revenue on 9‑7‑1985 and respondent No.1 asked for approval on 10‑7‑1985 and obviously respondent No.2 would not have secured such approval of respondent No. 8 without the official help, collusion and manoeuvre of respondents Nos. 1 and 4. This fact is apparent on the face of the record as copy of Annexure O‑11‑F only endorsed to respondent No‑2 the learned High Court Judges, without examining the contents of Annexure O-11-F and its validity were not justified to hold that the order of the Deputy Commissioner (East) and that of the Board of Revenue were legally correct.
4. We have examined the contentions raised by the learned counsel for the petitioners and find that the Lay Out Plan Annexure 'D' to the petition shows that it was prepared only tentatively and all the parties concerned had agreed that the same was subject to adjustments later, therefore, the argument that this Plan could not be revised is untenable. The contention of the learned counsel that the sanction of the Provincial Government was necessary for the purpose, has not been substantiated by the, learned counsel by placing any such material before us. Therefore, it was rightly held that the order dated. 30‑5‑1985 passed by the Deputy Commissioner (East) Karachi. was passed on proper reasoning and had been passed after giving due opportunity of hearing to the parties concerned including the petitioner Society, and taking all the aspects of the case into consideration. In Annexure 'D' Detailed Lay Out Plan of residential Sector No. 38‑A (Scheme No. 33) was agreed by the representatives of societies in the Sub‑Committee constituted by the Minister for Revenue (Sind).
5. Letter No. L.U.YI/3.20.74.K.K, dated 16‑10‑1980 (Annexure 'D/1') from Deputy Secretary (Land Utilization) I Board of Revenue, Hyderabad reads as follows:
"It has been decided that the Planning completed in Sector 38.A of Scheme No. 33 in respect of Rizwan and Old Ravians Cooperative Housing Societies by K.D.A. be checked /approved by the undersigned. You are, therefore, requested to depute your representatives alongwith the plan of the aforesaid societies to be present on Sunday i.e. 26‑10‑1980 at 10 a.m. in the camp Office Karachi so that the Planning could be approved for taking further action towards delivery of possession of the land. The representatives of the Societies may please be informed to be present alongwith a copy of their plans on the aforesaid time and place. This may be treated as urgent.
Copy forwarded to the Secretary, Rizwan C.H.S. 1129.30 Azizabad, Federal B Area, Karachi. He is advised to be present on Sunday i.e. 26‑10‑1980 at Camp Office Karachi at 10 a.m. with the Plan, when planning in respect of its Society will be approved finally.
Copy forwarded to Honorary Secretary, Old Ravians C.H.S. 111.131 116 Nazimabad, Karachi for information and similar above action.
(Sd.)
Deputy Secretary
Land Utilization I
Sind."
shows that due notice was given to the petitioners to be present at Camp Office, Karachi so that the planning could be approved.
In the order of the Deputy Commissioner (East) Karachi, dated 30‑5‑1985 concluding paragraphs on page 4 read as under:
"On the receipt of the various letters from the K . D. A . the Survey Superintendent, Karachi, the representatives of Messrs Eastern Builders (Agencies) Limited, Messrs Rizwan C.H.S. and Messrs Old Ravians C.H.S. were asked to appear before this Court on 31‑3‑1985. Mr. Abid Raza Secretary Messrs Old Ravians C.H.S. Mr. Taufique from Messrs Eastern Builders and Mr. Azhar Hussain and Mr. Rafique appeared on behalf of Messrs Rizwan C.H.S. They were shown the three layout plans. In the first approved lay out plan, the area in the index of the plan was shown as under:
Messrs Rizwan C.H.S 20.00 Acres
Messrs Old Ravians C.H.S. 20.00 Acres
Messrs Eastern Builders 14.12 Acres
Messrs Abidi Ltd. 10.00 Acres"
Again in the penultimate paragraph of the aforesaid order dated 30‑5‑1985 (page 6) it is mentioned as follows:‑
"On 15‑4‑1985 all the above parties appeared before this Court. Representative of the Rizwan C.H.S. again argued on the same points which was discussed on 31‑3‑1985. The Court ordered the Mukhtiarkar/A.C.S.O to demarcate the land of each society on the site on 17‑4‑1985 at 10 a.m. according to the last final plan..,,.."
It the light of the foregoing we find no substance in this petition which is, consequently, dismissed.
M.Y.H. Leave refused.
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