Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Before Muhammad Zahoorul Hag and Mamoon Kazi, JJ
NASEEM DEEN-Petitioner
versus
SIND GOVERNMENT THROUGH THE ASSISTANT COMMISSIONER,
SOUTH ZONE, KARACHI AND 2 OTHERS-Respondents
Constitutional Petition No. D-1010 and Civil Miscellaneous Nos. 1753 and 1754 of 1979, decided on I st April, 1986.
(a) Constitution of Pakistan (1973)-
-- Art. 199-Constitutional petition-Mala fide-No particulars of mala fide alleged in the petition-Effect-Plot allocated by Govern ment to Christian community for use as cemetery having been not put to use and abandoned by said community and auctioned by Government subsequently-Plot, when first put to auction not receiving any bidder due to stringent conditions of sale-Concession having been allowed for payment of auction amount, property securing a bid of specified amount-Reasonable basis for allowing concession in respect of payment of price of plot being there, and no particulars of malice having been specified, mala fide, held, was completely non-existent in petition.
(b) Constitution of Pakistan (1973)-
-- Arts. 20(b) & 199-Fundamental rights, violation of-Property allotted for use as Christian cemetery not put to use for said purpose--- Such property being in occupation of unauthorized persons was put to auction by Government-Christian community neither making any protest nor making representation against said auction-No evidence produced to show that said plot was ever used as cemetery or maintained by said community-No authority placed on record in support of fact that an abandoned cemetery was to be necessarily maintained by any Christian Association and that same was regarded as sacred religious institution-Breach of Fundamental Right of every citizen to profess, practise and propagate his religion, held, was not established in absence of evidence in proof thereof.
(c) Constitution of Pakistan (1973)-
--- Arts. 20 & 199 -Laws (Continuance in Force) Order (1 of 1977), Art. 2-Fundamental rights, suspension of-Exercise of constitu tional jurisdiction-In view of Supreme Court pronouncement (P L D 1977 S C 657) wherein Art. 2 of Laws (Continuance in Force) Order, 1977, suspending Fundamental Rights, was declared to be valid, it was not, held, possible for High Court to hold that Funda mental Right No. 20 was in force in 1977 and that there was any breach of a fundamental right-Constitutional jurisdiction could not be exercised in respect of a fundamental right which stood suspended by Laws (Continuance in Force) Order, 1977 at the relevant time.
P L D 1977 S C 657 fol.
(d) Constitution of Pakistan (1973)--
-- Art. 199-Constitutional jurisdiction, exercise of---Efficacy-Claim over open plot-Vendee for consideration constructing major portion of building over same-Effect-Major portion of building having been constructed over open plot claimed by petitioner, constitutional petition, held, had lost its efficacy as there was no open plot in existence at the site--Constitutional petition being devoid of merit was dismissed in circumstances.
U. Naimat Moulvi for Petitioner.
A. A. Fazeel for Respondents.
Date of hearing : 1st April, 1986.
MUHAMMAD ZAHOORUL HAQ, J.-The petitioner claimed to be the founder President of All Pakistan Christian Rehabilitation Associa tion and President of All Pakistan Christian Union, Karachi, and has sought declaration under Article 199 of Constitution to the effect that the sale of plot of land bearing No. 7/3 Bunder Road, Karachi, to respondents Nos. 2 and 3 is unlawful and that. the same be cancelled, perpetual injunction and direction restraining the respondent from implementing the said deal may be issued. The relevant facts are that Plot No. RC. 7/3 Ranchor Lines Quarters, Karachi, measuring 73,181 square yards was the property of the Government and some times in the distant past it was assigned for the purpose of Christians cemetery. The case of the petitioner is that it was abandoned Christian cemetery while the case of the respondent is that there were no grave or tomb in the plot of land but it was occupied by some dwellers and the children used to play thereon. The petitioner has filed a photograph of the said plot of land which shows some debris and stones lying thereon but there is no sign of tomb or grave existing on the said plot. In 1977 the Deputy Commissioner (South) Karachi, had advertised for the sale of this plot of land and on 28-12-1977 after notice published in various newspapers, it was sold to respondent No. 3, for price of Rs. 66,42,900 the sale was confirmed by the Land Utilisation Department of Government of Sind. It was also confirmed by the Governor of Sind as well as by the Martial Law Administrator Zone "C", Karachi.
The petitioner had filed alongwith petition a news items which had been published in "Daily News" Karachi, on April 24, 1979, to the effect that the Government had stayed the sale of plot at throw away price. However, from the perusal of the documents which have been placed on record, with affidavit of respondent No. 3, and the comments of respondent No. 1 the position is quite clear that the Governor had never stayed the sale of the said plot but on the contrary every one of the authority had confirmed the sale of the said plot of land.
Not only that the sale was confirmed but the mutation was also effected in favour of the respondent No 3 and the building plan was approved by the K. D. A. and a No-Objection Certificate was also granted by the D. C. (South), Karachi, in respect of the Construction.
The petitioner has stated, that respondents Nos. 2 and 3 had carried out construction work on the said plot, in para. (2) of the petition which was filed on 25-6-1979.
On 9-1-1985, when this petition came up for regular hearing Mr. A. A. Fazeel has taken plea that the petition had become infructuous as tall building has been constructed on the plot. Mr. U. Naimat Moulvi had taken exception to that statement and had offered to withdraw the petition if a certificate to the effect that the building has already been constructed was given by Building Control Authority or any other Architect of repute. On 13-8-1985, the respondent's counsel had produced a certificate issued by Messrs Jaffer Ali Associates in respect of the construction of the building. Mr. Naimat Moulvi had again submitted the position that the work was still in progress. On this basis the Court on 13-8-1985 appointed the Nazir to inspect the stage of the construction and submit the report within three weeks. The Nazir submitted a detailed report on 2-9-1985 which shows that car-parking and 116 godowns have been completed in basement in all respects, and on the ground floor 251 shops were constructed which were open and running. R. C. C. structure of three floors completed in Blocks "A" and "B" and 4th floor structure was in progress. While in respect of Blocks 'C' and D' it was reported that flats upto 5th Floor had been completed in all respects and the flats were occupied. Block "E" had. construction of 3 floors complete with walls and Block F' had the construction of 2 floors complete, while in Block "G" structure of 2 floors is complete without plaster, Columns for 3rd floor raised, and Block H' R. C. C. structure of 2nd floor complete, and Columns for 3rd floor have been raised.
Mr. U. Naimat Moulvi, learned counsel for the petitioner has submitted before us that the action of the authorities in relaxing the condition of payment of the 1/4th price at the time of auction and full payment at the time of giving possession, to the concession of only 1/10th at the time of auction and 1/4th at the time of giving possession was a mala fide act. The learned counsel has also submitted that the fact of allowing mutation of the property without full payment is again a mala fide act. He has further stated sentiment of Christian community has been completely ignored in the matter and that the price obtained was very low. We failed to see how the learned counsel could make these points, as the basis of mala fides. The petition does not contain any particulars of mala fide which had been alleged against the Government of Sind. In fact in para. 4 A of petition, the petitioner complimented the Government of Sind's order of stay of sale and in the next para. the only mala fide action of the Government of Sind, which is assailed, is that they have refused to allow ,the certified copy of the extract from the property. However, no particulars of malice are specified and, therefore, mala fide is completely non-existent in the petition. Be that as it may, the respondents have explained the position that the property was first put to auction on 10th ;October, 1977 but it did not receive any bidder and it was explained to the authorities that the conditions of auction were harsh and if some (concession was allowed in 'the payment of money then there would be better bids. On that basis the Commissioner Karachi had ordered that on 1/10th of the highest bid money may be insisted upon at the time of b. auction and 1/4th of the total price should be insisted upon at the time of giving of possession and the balance of the amount should be taken in 12 monthly instalments plus interest of 12 % per annum. The result of concession was that on 28-12-1977 auction took place and then this property secured a bid of about Rs. 66,00,000 by the respondent No. 3. Therefore, in our view, there was a reasonable basis for allowing the concession in respect of the payment of the price of the plot.
The submission of the petitioner that the sentiment of Christians had been completely ignored by the authority, in this respect, does not seem to have the proper backing from any document. No material has been placed before us in this petitioner to the effect that the Christian community in Karachi had made a protest in respect of either the abandonment of cemetery or it had opposed the proposal of plots disposal made by the Government in 1977. In fact, no protest from any religious body of the Christians has been brought on record in this respect. Nor had any person in office of any religious denomination made any protest in respect of the sale of this plot. The petitioner claimed to be President of two Christian Associations but none of these two associations have g passed any resolution in this respect, or if they had passed any such resolution, at least none has been brought on record. Moreover, no letters to the press were written in the newspapers by any Christian associa tion or religious body against the sale of the plot nor any deputation of the Christians appears to have been any person in authority in this regard. It appears that everyone had reconciled to the position that it was an abandoned plot which was in occupation of unauthorised persons.
Mr. Naimat Moulvi had stated that he had some knowledge that some persons had made protest but the same is not brought in the petition,) and therefore, the mere statement of the learned counsel would not be sufficient to sustain the position of Christians having made any protest in this regard.
The petitioner in para. 2 of the petition has stated that the Old Cemetery of Karachi and specially the one located at Plot No. R. C. 7/3, was looked ,after and maintained by the said association, and this has reference of the petitioner. But this statement again is devoid of any basis, the petitioner has not placed on record before us in proof of his two associations having ever maintained alleged cemetery and having ever spent any money over the maintenance of this alleged cemetery.
In these circumstances it is difficult to come to the conclusion that the said plot of land was actually ever used as a cemetery or it was ever maintained by any Christian association, including the petitioner, as cemetery.
The petitioner had taken up the petition that the action of the respon dent is selling the Christian cemetery was breach of Article 20 of the Constitution of Pakistan which safeguards the Fundamental Right of every citizen to profess, practise and propagate his religion and every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions. The learned counsel had relied upon sub-Article (b) of Article 20 and had stated that the Christian community had right to maintain and manage their cemetery which had been regarded as religious institution. The learned counsel has not placed before us any Christian literature to the effect that an abandoned cemetery is necessarily to be maintained by the Christian community or that the p cemetery is regarded as sacred religious institution and, therefore, we are not in a position to comment upon this position. It was for the petitioner to substantiate that position but the same has not been done.
Moreover, the fundamental rights had been suspended on 5tb of July, 1977, by virtue of the Laws Continuance in Force Order (I) of 1977,E by Chief Martial Law Administrator. Mr. U. Naimat Moulvi, vociferously contended that Fundamental Rights were still available to the petitioner as the same had not been suspended in accordance with the provisions of 1973 Constitution.
We are afraid that this position is hardly open to the petitioner in view of the judgment of Supreme Court in P L D 1977 S C 657 where it has been clearly observed at page 722 as under :---
"(vii) That the provisions contained in clause (3) of Article 2 of the Laws (Continuance in Force) Order, 1977, suspending the right to enforce Fundamental Rights are valid for the reason that the situation prevailing in the country was obviously of such a nature as to amount to an emergency contemplated by clause (1) of Article 232 of the Constitution, and the right to enforce Fundamental Rights could, therefore, be legitimately suspended by an order of the kind t which could have been made under clause (2) of Article 233 of the Constitution."
In view of this clear pronouncement of the Supreme Court in respect of the validity of suspension of the fundamental right it is not possible for us, to hold that Fundamental Right No. 20 was in force in December, 1977 when the sale of this land had taken place in favour of the respondent No. 3. Therefore, there was no question of breach of a fundamental right.
We are also of the view that a major portion of the building having been constructed by the respondent No. 3, this petition has lost its efficacy, as there is no open plot in existence now. The petition is, therefore, dismissed. C. M. As. 1753 and 1754 of 1979 are also dismissed.
A. A. Petition dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer