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High Court Appeal No. 25 of 1985, decided on 24th February, 1987.

---Art. 131--Karachi Development Authority Allotment Regulations, Reglns. 6(d) & 23--Allotment of plot--Natural justice, principles of- Documents brought on record not supporting case of appellant that K. D. A. had ever agreed to transfer or allot suit land to him--Appellant relying on draft summary recommending allotment of suit land to him supposed to be placed before Provincial Minister/Chief Minister- Record, however, not showing that the Chief Minister or concerned Minister passed any orders about allotment of land to appellant--No communication whatsoever from K.D.A. to appellant in regard to suit land and no right of any nature accrued to him--Earlier rejection of respondent's request for allotment of disputed land created no right in appellant in respect thereof--Disputed land being an "extra strip of land" adjacent to plot of respondent, same was rightly allotted to respondent under Regln. 23 of Allotment Regulations of K. D. A. and appellant having acquired no vested right or interest in said lands no prejudice, recognizable in law, was likely to be caused to him--No show-cause notice, held, was required by law to be given to appellant before transfer of disputed land to respondent and by such transfer, therefore, principles of natural justice had not been violated--Decision on question of maintainability of suit for want of notice under Art.131 of K.D.A. Order, 1957 considered not necessary as on merits appellant had been found to have no case.

Ziaduddin Rafi v. Muhammad Khan P L D 1952 Lah. 321; Mumtaz Sultana v. Settlement and Rehabilitation Commissioner P L D 1964 Lah. 338; Nathu v. Allah Ditta A I R 1922 Lah. 287; Kalyampur Lime Works v. State of Bihar A I R 1954 S C 165; 133 K T R 482; Montgomery Flour and General Mills Ltd. v. Director Food Purchases P L D.1957 Lah. 914; John Earnest v: Jogandra Chadra A I R 1935 Cal. 298; Muhammad Latif v . Province of West Pakistan P L D 1970 S C 180; Anwar Fatima v. Aziz Begum 1981 S C 11 R 119; Muhammad Sadiq v. District Food Controller 1982 S C M R 5:311 and 1972 2 Q B 299 not relevant.

Muhammad Sharif for Appellant.

S.H. Kizilbash for Respondent No.1.

Qadir Hussain Sayeed for Respondent No.2.

Dates of hearing: 7th, 13th, 14th. 15th and 16th October, 1986.

--This High Court Appeal has been filed by the appellant/ plaintiff against the judgment, dated 27-11-1984 of a learned Single Judge of this Court whereby suit No. 760'/1981 filed by the appellant has been dismissed. Respondent No. 2 was allotted industrial plot No.1A/1 measuring about 5 Acres in Block No.21 of K . D. A Scheme No.16, Karachi by K . D. A . Adjacent to this plot is plot No.1A / 1-A which was allotted as an industrial plot by K . D. A . to the appellant. Later on, at the request of the appellant, its conversion for residential use was allowed with further permission to sub divide the plot into small residential plots and, according to the K. D. A., the plot was sub-divided into 149 plots and most of these sub-divided plots were leased out to various individuals by the appellant.

Some extra land adjacent to the plots of the appellant and respondent No.2 became available for disposal. Appellant applied for allotment of the entire extra land i.e. adjacent to his plot as well as to the plot of respondent No.2. Respondent No.2 had also applied for allotment of the extra land adjacent to their plot. Request of respondent No.2 was initially rejected by K . D. A .

The following notings were made on 6-11-1974 by the then Director General K . D . A . Abbas Hussain Shah which appear on the K.D.A. files:-

"The following decisions are to be taken immediately.

(1) In order to provide frontage to Mr. Javed Akbar owner of plot No. L-1/1-A Block No. 21 the 20 strip shown in yellow and signed by me should be allotted to him and charged @ Rs.20.

(2) A summary for the Chief Minister should be made out for the adjoining area which has been shown in red and blue requesting that this area should also be allotted to Mr. Akbar at Rs. 23.

(3) I believe the owner of plot No. LA/1 has encroached on the, blue area. This encroachment is to be demolished and removed with immediate effect.

(4) It should be examined if the triangular plot in front of plot No.1A/1 can be carved out as an independent plot".

The area referred to against item No.l above measured about 680 square yards and this extra land was also allotted to the appellant. There is no dispute between the parties over this extra piece of land measuring 680 square yards -which was transferred to the- appellant. The dispute is about the extra land mentioned against item No.2 in the noting dated 6-11-1974 of the Director-General, K. D. A. The case of the appellant is that this extra land was granted /allotted to the appellant or at-least agreed to be granted/allotted to him but later on without any prior show-cause notice or hearing, an ex parte decision was taken by K. D. A. allotting the disputed piece of land to respondent No.2 The present suit was, therefore, instituted by the appellant claiming the following reliefs:

"(a) (i) That the order of defendant No.1 as contained in its letter dated 31-10-1981 showing approval of Government Body for allotting the land in suit to defendant No.2 are illegal, ' void and of no legal effect.

(ii) That the plaintiff has a right to get the transfer of the land in suit in his favour completed by defendant No.1 in consequence of the approval already given for transfer of the suit land in his favour.

(b) Direct and order defendant No.1 to finalise transfer of the land in suit in favour of the plaintiff by issuance of all necessary documents of transfer and performing all other necessary incidental and consequential acts as to delivery of possession. "

The suit was contested by the respondents. The following issues were settled:-

"(1) Whether the suit is not maintainable for want of notice under Article 131 of K.D.A. Order-5 of 1957

(2) Whether the suit land had been transferred or agreed to be transferred by K . D. A . to the plaintiff

(3) Whether the transfer of the suit land to defendant No.2 by K. D. A . is mala fide and/or otherwise illegal'

(4) To what relief the plaintiff is entitled to

The parties did not lead any oral evidence but relied upon documents which were brought on record. Appellant's reliance was mainly on the documents in the K . D . A . files relating to the plots allotted to the appellant and respondent No.2 and the disputed plot.

By judgment dated 27-11-1984, the suit of the appellant was dismissed by a leaned single Judge of this Court. Being aggrieved this High Court Appeal has been filed we have heard at length the arguments of Mr. Muhammad Sharif earned counsel for the appellant, Mr. S.H. Kizilbash, learned counsel for respondent No.1 . (K . D. A .) , and Mr. Qadir Hussain Sayeed, learned counsel for respondent No.2. Mr. Muhammad Sharif also took us through the entire pleadings and also through all the relevant documents.

2. On issue No.2 that whether the suit land had been transferred or agreed to be transferred by K . D . A . to appellant Javed Akbar, Mr. Muhammad Sharif could not refer to any document showing that the suit land had in fact been transferred to the appellant. It was, however, submitted on behalf of the appellant that there was a proposal by K.D.A. to allot the suit land to the appellant and the land ought to have been allotted to him and that an inference could be drawn from the documents that K . D. A . had in fact agreed to transfer the suit land to the appellant. In this behalf the following submissions were made by Mr. Muhammad Sharif.

(a) Director General, K.D.A. had approved in principle that the land be allotted to the appellant;

(b) Request of respondent No.2 for allotment of this land had earlier been rejected by K.D. A. and respondent No.2 had been informed accordingly;

(c) K.D.A. had done all that which' could be done by them within their powers in connection with grant of land to the appellant and nothing remained to be done by K . D. A . in that behalf;

(d) Transfer to the appellant could not take place because of legal or political reasons and the matter was referred to the then Chief Minister of Sind through a summary;

(e) In 1981, when K. D. A . allotted the land to respondent No.2, K . D. A . had full power to grant this land and in view of its earlier decisions, the land ought to have been transferred to the appellant;

(f) The appellant had applied first for allotment of suit land i.e. on 9-9-1974 whereas respondent No. 2 applied later on 2-10-1974; and

(g) This land was a new plot and as such, according to Regulation No. 6(d) of the Allotment Regulations of K. D.A., which provides for allotment by. ballot or on "first come first served" basis, appellant, in preference to respondent No.2, was entitled to the allotment of this newly created plot.

Mr. Muhammad Sharif, learned counsel for the appellant also relied upon the following reported judgments in connection with his submissions on issue No.2:

(i) Ziauddin Rafi v. Muhammad Khan P L D 1962 Lah. 321;

(ii) Mumtaz Sultana v. Settlement and Rehabilitation Commissioner P L D 1964 Lah. 338; (iii) Nathu v. Allah Ditta A I R 1922 Lah. 287; (iv) Kalyampur Lime Works v. State of Bihar A I R 1954 S C 165 and (v) 123 K.T.R. 482.

3. The documents brought on record do not support the case of appellant that the K . D . A. had agreed to transfer or allot the suit land to the appellant. All the files of K.D.A. relating to the suit land were made available to the appellant during the trial and photostat copies of all the relevant documents were brought on record. The documents on record do not support the case of the appellant that there was any agreement to allot or transfer the suit land to him or that any decision had been taken for transfer of the suit land to the appellant. No letter was issued by K.D.A. to the appellant that they had agreed to allot the land to him or asking him to deposit any amount towards allotment of the suit land. It is also an admitted position that no payment has been made by the appellant to K . D . A . in respect of the suit land. In fact there had never been any' communication from K.D.A. to the appellant in regard to the suit it land. No commitment was made nor any undertaking given by K . D . A . that the land would be allotted to the appellant.

Appellant had relied heavily on the summary prepared for the then Chief Minister of Sind. It was actually a draft summary and reads as follows:-

"DRAFT SUMMARY

SUBJECT: ALLOTMENT OF ADDITIONAL LAND MEASURING

APPROXIMATELY 5950 SQ.YDS. TO MR.JAVED AKBAR ALLOTTEE

OF PLOT NO.1A-1/1-A BLOCK No.21, SCHEME N0.16 (FED 'B'. AREA).

Recently, the Chief Minister was pleased to order for conversion, of the Industrial Plot No.1A-1/1-A, Block No.21, measuring about 4 Acres Scheme No.16 (Fed. 'B' Area) into residential area on payment of conversion charges at Rs.20 per sq. yd. on the request of its allottee, Mr. Javed Akbar.

2. Now, Mr. Javed Akbar has requested for allotment of additional measuring about 5850 sq. yds. lying vacant adjacent to his aforesaid plot. It shall get access to the main road which will improve the proposed residential lay out of the area.

3. It is proposed that the additional land measuring about 5950 sq. yds. lying vacant adjacent to the plot of Mr. Javed Akbar may be allotted to him at Rs.23 per sq. yds. for residential purpose as his original plot has- already beer, converted into residential area under the orders of the Chief Minister.

4. Submitted for the perusal and orders of the Minister/Chief Minister.

Mazhar Rafi

Secretary.

MINISTER, H.T.P. & I.B

CHIEF MINISTER."

This is only a draft of the summary which was supposed to be placed before the Chief Minister Sind and/or the concerned Provincial Minister. The entire file in which this draft summary appear was available and photostat copies of all the relevant documents in the file including the notings are on record. Admittedly the record does not show that any orders were passed by the Chief Minister or even the concerned Provincial Minister about allotment of the land to the appellant. There is not even the slightest indication on the files of K . D . A . that the aforesaid summary had at all been put up before the Chief Minister or the concerned Provincial Minister. In the circumstances, no right of any nature had accrued to the appellant. The draft summary by itself did not confer any right or interest on the appellant in respect of the suit land.

The noting, dated 6-11-1974 of the Director-General K . D. A . does not show that any decision had been taken by K . D . A . or Director-General K . D. A . for transferring or agreeing to transfer the land to the appellant. As rightly put by Mr. Qadir H. Sayeed, learned counsel for respondent No.2, this noting of Director-General K.D.A., was an inter-departmental memo or suggestion for placing the matter before the Chief Minister. At best, the case of the appellant can be that a decision had been taken or an order had been passed by the Director-General K.D.A. that a summary be put up to the Chief Minister for transfer of the land to the appellant. This decision or order to put up a summary before the Chief Minister did not create any right or interest in favour of the appellant.

Judgment cited by learned counsel for the appellant and reported in P L D 1962 Lah. 321, P L D 1964 Lah. 388, A I ft 1922 Lah. 287, AIR 1954 S C 165 and 123 LTR 482, are not relevant in as much as neither the suit land was at any stage allotted or transferred to the appellant by K . D . A . nor hasp-it been proved that there was any agreement for such allotment or transfer. No right had been conferred upon the appellant in respect of the land. As observed earlier, no payment had been asked for by K.D.A. from the appellant any payment was made by the appellant to the K. D. A . in respect of the suit land. By stating in an inter-departmental memo that should K . D . A allot the suit land to the appellant at a certain rate, no agreement was arrived at for transfer of the land to K . D . A . No offer had been made by K . D. A . to the appellant for his request was accepted. None of the judgments relied upon by Mr. Muhammad Sharif support the contention on behalf of the appellant that on this state of the record the appellant had acquired a right to the transfer of the suit land.

4. We also do not find any substance in the contention of learned counsel for the appellant that the earlier rejection of the request .of respondent No.2 for the transfer of the suit land created any right in the appellant in respect of the suit land.

5. Contention based on Regulation 6(d) of Allotment Regulation of K.D.A. i.e. on first come first served basis has also no merit. Apparently it is Regulation 23 which was attracted to the case in question. Regulation 23 reads as follows:-

--Annexation of extra land may be allowed to the allottee o the adjacent plot on his making application, provided that:

(i) C.T.P. and A.K.D.A. has no objection to it from the Town Planning point of view.

(ii) Land cannot be used as independent plot or for any other public purpose.

(iii) The applicant agrees to any terms and conditions imposed by the K.D.A".

The suit land, therefore, could be allotted to the allottee of the adjacent plot and the rule about . first come first served could validly be ignored provided the land was extra land adjacent to the land of the proposed transferee. It is an admitted position that the disputed land is an "extra strip of land" adjacent to the plot of respondent No.2. It is not necessary to dilate upon this factual matter except to reproduce here para 4 of the plaint presented by the appellant:

"That adjacent to the plot of defendant No.2 an extra strip of land belonging to defendant No.1 (i.e. K. D. A.) became available for transfer to the public and, therefore, the plaintiff applied to defendant No.1 for grant of same. This extra strip (hereinafter referred to "the suit land") is marked in Blue in the sketch annexed herewith and marked 'A'."

It has never been the case of the appellant that this "extra strip of land" is adjacent the appellant's plot.

6. Then equities are also not in favour of the appellant. From the draft summary it follows that under the direct orders of the then Chief Minister, appellant's industrial plot was converted into a residential plot and an inference can also be drawn from the draft summary that on account of appellant's influential position or contacts with the then Chief Minister, either the Chief Minister himself directed that a summary be put to him for passing orders about allotment of the suit land to the appellant or the appellant persuaded the then Director-General K.D.A. to put up the summary and the appellant represented that he would obtain the orders of the Chief Minister for allotment of the suit land to the appellant. In any case, as noticed earlier, either the summary was never put up to the Chief Minister or if at all it was put up, no orders were passed thereon.

7. On issue No.2, the learned Single Judge s finding is as follows:-

"From the documents produced by the plaintiff, which have been reproduced above, it transpires that no final decision had been taken by competent authority of K . D . A . to allot or transfer -the suit land to the plaintiff. Only a proposal was mooted by the office in this respect. But the very document produced by the plaintiff show that this proposal never go, the approval of the competent authority nor it was finalised. It cannot, therefore, be said that any vested right has accrued to the plaintiff on account of the office proposal contained in the above quoted documents.

For the detailed discussion in the earlier part of this judgment and the view that we have taken, we agree with the aforesaid findings of the learned Singe Judge.

8. On issue No.3 that whether the transfer of the suit land to respondent No.2 by K . D. A is mala fide and/or otherwise illegal, it may be observed that on the question of mala fide, the learned Single Judge, rejected the submissions on behalf of the appellant as follows : -

"The plaintiff has alleged that the act of the K . D . A . in giving away the suit land to defendant No.2 is mala fide. This was an issue of fact on which no evidence has been led by the plaintiff. Nor there is anything in the record to suggest that the Governing Body had any malice or ill-will against the plaintiff so as to reject the plaintiff's request for allotment of the suit land. The Governing Body had never held out any promise at any time to give this land to the plaintiff. At one time the application of the defendant No.2 for annexation of this land was rejected by the K. D. A . in 1974. But this fact did not preclude the K . D . A . from changing their decision and accede to the request of defendant No.2 at the ground that it was in accordance with the Regulations framed by the K.D.A. itself. There is thus no material on record to conclude that the impugned act of the Governing Body of the K.D.A. was actuated by malice or ill-will."

We agree with the learned Single Judge that mala fides have not been established. Actually, before us, learned counsel for the appellant did not advance any arguments on malice or mala fides.

9. In support of the appellant's case that transfer of the suit land by K.D.A. to respondent No.2 is illegal, Mr. Muhammad Sharif, learned counsel for the appellant, submitted that without prior show-cause notice to the appellant, the suit land could not have been transferred to respondent No.2,. Violation of principles of natural justice was alleged. In this context, learned counsel emphasised the following points:

(i) Suit land had been proposed by K.D.A. for transfer to the appellant in 1974;

(ii) Prior to the transfer of the land to respondent No.2 in 1981, the consistent stand of K.D.A. was that the land was not being transferred to respondent No.2;

(iii) Appellant had faced litigation in respect of the suit land in Courts for several years prior to the filing of the suit;.

(iv) Application of appellant for transfer of the suit land has not been rejected by K . D . A .

(v) There were two contesting parties claiming the same land;

(vi) An inquiry was necessary to determine as to who out of the two had a better right for allotment of the suit land.

In view of the aforesaid submissions, it was contended that suit land could not validly be transferred to respondent No.2 without a prior show-cause notice to the appellant. It was submitted that even if the appellant's right in the suit land had not matured, he held an interest or at least an imperfect right in the suit land or in any case it could be said that the action of K . D. A . to transfer the suit land to respondent No.2 was likely to prejudice the appellant, and as such principle of natural justice were attracted in this case. It was submitted that the principles of natural justice required K.D.A. to act fairly but by taking an ex parte decision to transfer the suit land to respondent No.2 without prior show-cause notice to the appellant., K . D. A. has acted in an arbitrary manner and the action of K . D . A . cannot be termed as fair. It was also submitted the effect of violation of principles of natural justice is that the action or order is rendered a nullity. In support of his submissions on these principles, Mr Muhammad Sharif relied upon the following reported judgments:-

(i) Montgomery Flour and General Mills Limited v. Director Food purchases P L D 1957 Lah. 914.

(ii) John Earnest v. Jogandra Chadra A I R 1935 Cal. 298.

(iii) Muhammad Latif v. Province of West Pakistan P L D 1970 S C 180.

(iv) Anwar Fatima v. Aziz Begum 1981 S C M R 119.

(v) Muhammad Sadiq v. District Food Controller 1982 S C M R 538.

(vi) (1972) 2 Q.B. 299.

10. The proposition advanced on behalf of the appellant on the ground of violation of the principles of natural justice was rejected by the learned Single Judge for the following reasons:-

"There is no violation of any principle of natural justice either. Mr. Muhammad Sharif has contended that the land in suit was given to the defendant No.2 without giving him an opportunity of being heard. There is no force in this argument. The plaintiff was not the allottee or transferee of the suit land. He has not produced any document to prove that any vested right has accrued to him in respect of the suit land by virtue of the proposal of the office of the K.D.A. contained in the various office notes and letters reproduced hereinabove. Had the competent authority i.e. the Chief Minister/ Minister of Provincial Cabinet before 5th July, 1977 and the Governing Body of the K. D.A. after the above date, approved the proposal and in pursuance thereof had issued the formal allotment order in favour of the plaintiff, only then the suit land could not have been given to any other person without giving an opportunity to the plaintiff of being heard. In the above circumstances question of violation of principle of-natural justice does not arise."

11. We have not been persuaded by learned counsel for the appellant to accept his contention that in the instant case respondent No.2 could not be transferred the suit land without a prior show-cause notice and as such the transfer in favour of respondent No.2 is a nullity being in violation of principles of natural justice. It is more or less an accepted position that neither the suit land was granted to the appellant nor was there any agreement between K.D:A. and the appellant for transfer of such land to him. No undertaking or assurance was given by K . D . A . to the appellant that the suit land would be transferred to him. There was no communication by K.D.A. to the appellant to that effect. It was the case of the appellant himself that the suit land is an extra strip of land adjacent to the plot of respondent No.2 (para 4 of the plaint). Under the allotment Regulations of K . D. A . appellant had no right to the transfer of the suit land. On the contrary apparently under Regulation 23, referred earlier, the extra land adjacent to the plot of respondent No.2 could be transferred to them.

Just by making an application for transfer of this extra land, no right, perfect or imperfect, or interest was acquired by the appellant in the land. Preparation of the draft summary for the Chief Minister also did not create any right or interest in the appellant in the suit land. Under the Allotment rules of K.D.A. also he was not entitled to this land. There is no order for transfer of the land to him. There is no agreement by K.D.A. to transfer the land to him either. It follows that by transfer of the suit land to respondent No.2, no prejudice, recognisable in law, was likely to be caused to the appellant. In our view, therefore, it was not required by law that before transfer of the land to respondent prior show-cause notice should have been given to the appellant. By such transfer, principles of natural justice have not been violated. We agree with the learned Single Judge in his finding on issue No.3 against the appellant.

We may observe here that as the appellant had no right perfect or imperfect or interest in the suit land and was also not likely to be prejudiced under the law by the transfer of suit land to respondent No. 2, principles enunciated in the judgment relied upon by Mr. Muhammad Sharif and referred in para 9 of this judgment, are of no help to the appellant.

12. Issue No.1 relates to maintainability of the suit for want of notice under Article 131 of K . D . A . Order 5 of 1957. Learned Single Judge has held that the suit of the appellant is also barred for want of statutory notice. Arguments were addressed before us by all the three learned counsels on this legal issue but we do not consider it necessary to decide this question in this appeal as on merits we have agreed with the learned Single Judge that appellant has no case.

13. High Court Appeal No.25/85 is accordingly dismissed but with no order as to costs.

S.Q./J-7/K Appeal dismissed.

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