1996 PLP 333 (CLC)

4. I have heard the learned counsel Mr. Khalilur Rehman for the applicant and Mr. Syed Jamil Ahmad for the respondent. . Learned counsel for the applicant contended that the allotment order does not confer any vested right on the plaintiff. Assailing the findings of the learned Courts below, it was urged by him that the evidence of Additional Director has not been considered by the Courts below and so also Exhs.D/1 and D/2 produced by him. It was next urged by him that North Karachi was surveyed in the year 1973, and therefore, the question of allotment of the said land in the year 1964 was out of question. It was, however, conceded by him that the respondent having been shifted from Jacob Lines Area, was entitled to allotment of an alternate plot, but not the plot in question. It was urged that the .plot in question is a commercial plot and under the KDA. Disposal of Land and Estate Regulations published in the Gazette of West Pakistan of 27‑8‑1965 and so also K.DA.(Disposal of Land) Rules, 1971, ,a commercial plot can be disposed of only in open auction and the plot of land in question allotted to the respondent being in violation of the said regulations and rules was illegal. In this regard he relied upon the case of Abdul Razzak v. K. D A. (1991 CLC 1591). He also referred the case‑law in respect of the submission that the concurrent findings of facts in the circumstances of the case are not immune from the interference in the revisional jurisdiction. The above submission together with the case‑law will be considered at appropriate place. Under the circumstances of the case it would be proper to first consider the pleadings and the evidence on record.

5. In fact the first submission of the learned counsel goes to the root of the matter. The above allotment order does not disclose the plot number and the area allotted to the respondent. ' . The respondent in support of his case apart from examining his attorney Muhammad Saleem Kazi, who produced the documents, examined P.W.2 Nazamuddin Shaikh, an officer of Grade‑III of United Bank Ltd., K.DA. Branch, Karachi, Syed Akbar Taqi, the Sub‑Engineer of the applicant, posted in North Karachi Division, Muhammad Ashraf Jawaid, the Senior Clerk in the Office of Chief Engineer K.DA. and Syed Agha Rizvi, attorney of allottee of Plot No.7/1 in the same sector. The applicant's attorney deposed in consonance with the averments made in the plaint and produced power of attorney as Exh.P/1, Allotment Order dated 22‑1‑1964 as Exh.P/2, Acknowledgment of Possession Order dated 22‑1‑1964, as Exh.P/3, Site Plan of the Plot as Exh.P/4, Receipts relating to payment of ground rent and property tax as Exh.P/5 and P.6 respectively, Certified copy of P.T.I as Exh.P/7, letters dated 21‑3‑1977 and 21‑6‑1978 received from K.M.C., as Exhs.P/8 and P/9, attested copies of Site Plan as Exhs.P/10 and P/11, respondent's letter dated 2‑4‑1990 addressed to the Minister of Housing and Town Planning as Exh.P/12, applicant's notice published in Daily Jang, Karachi of. 20‑4‑1990, Telegraphic Notice dated 2‑5‑1990 as Exh.14. Muhammad Ashraf Javed deposed that in the year 1964 he was posted in Shifting Branch of K.D.A. Exh. P/2 which is allotment order in respect of the plot in dispute, was prepared by him in. the year 1964. It bore his signature of Abdul Wahab Khan who was then Administrative Officer, K.DA. of the said branch. He also disclosed that during those days K.D.A. was utilizing forms and stationery of the Rehabilitation Department under their own seal. On 27‑9‑1990 he was called by the Executive, Engineer North Karachi Division to trace out‑ the record in respect of the plot in dispute. He traced out the record and prepared the list of the plots, which is on record as Exh.P/16. Exhibit P/16 was produced by Syed Akbar Taqi was then posted as Sub Engineer, North Karachi Division of the appellant. Exh.16 is the list of allottees who were allotted plots in Sector 15‑A/1, North Karachi Township. At Serial No‑38 thereof appears the name of the respondent, who is shown to have been issued allotment order No.39/51, in respect of ST‑9/1, Sector 15 A/1 . Muhammad Ashraf Javed in cross‑examination by the learned counsel for the applicant admitted that Exh.P/2, the allotment order, did not show any number of the plot. He voluntarily explained that during those days it was a practice that allotment order used to be prepared by the Shifting Branch and number used to be allotted by the site office. He also stated that the endorsement on the allotment order regarding the delivery of possession of the half portion of Plot No.ST‑9, North Karachi to allottee, was typed by the Steno of the Administrative Officer and he also confirmed that Exh.P/2 bore the signature of Azhar Alam, the then Administrative Officer. Syed Akbar Taqi deposed that Exh.P/30 is the letter of acknowledgement of possession issued by the K.DAs'. office known as North Karachi Division. It bore his signature and that of Assistant Executive Engineer. According to him, the possession of the suit property measuring 1033.33 square yards was handed over to the respondent under the orders of the then Chief Minister. He also confirmed Exh.P/4 to be the site plan of the said plot. According to him, Assistant Executive Engineer was authorised to hand over site plan to the concerned party under his signature. He deposed that Exh.P/15 was a lay out plan approved by the competent Authority and the plot in dispute is marked in the said exhibit. Under the said plan, the suit plot was bifurcated into two portions, renumbered as ST‑9/1 and ST‑9/2 and the respondent was delivered possession of ST‑9/1. He also disclosed that in August 1990 he was called by the Executive Engineer, North Karachi Division to search out the old record of the plots, possession whereof was delivered to allottees. He prepared a list, which was produced by him as Exh.P/16, already referred to hereinabove. In cross‑examination to the learned counsel for the applicant he stated that after issuance of the allotment, it is the function of the Engineering Department to give physical possession of the plot and to issue acknowledgement orders on the basis of allotment orders. Nizamuddin Shaikh, the officer of K.DA. Branch of U.L.B. confirmed that Exh.P/5 is the receipt of payment of 50% of the occupancy value of the plot. It bore his signature. He confirmed that the above amount was received by the bank under Receipt No. 146/42 dated 23‑8‑1978. He also deposed that the amount was accepted on the basis of letter from the officer concerned of KDA. He explained that the payment in respect of the commercial plots was not being received through challan but used to be accepted only on the basis of letter.

6. The above evidence produced by the respondent confirms that the allotment order of the aforesaid Plot No.ST/9‑1 was issued by the applicant's office. It was the practice that the number of the plot was not being indicated in the allotment order at the time of its issuance, but a separate endorsement used to be made of the plot number as well as the fact of delivery of the possession and the acknowledgement of the delivery of the possession to the allottee, at the time when the possession used to be handed over to the allottee. It is also proved that the 50% occupancy value of the aforesaid plot was made by the respondent to the applicant. It is also established on the record that the allotments of the plots in the North Karachi were made in the year 1964 and the list of the allottees was prepared by Syed Akbar Taqi on the basis of the record available. The correctness of the list produced by the said witness as Exh.P/16, was not disputed by the applicant. The said list shows the allotment of 145 plots to various persons whose names are mentioned therein, together with the respective numbers of allotment and the plots allotted to them. As already noted above, the name of the respondent is mentioned as S.No.38. In view of the above evidence coming from the employees of the applicant, on the basis of the record maintained by the applicant conclusively establish the allotment of the, plot in dispute to the respondent and particularly issuance of the allotment order Exh.P/2 together with plan and delivery of possession, there is no scope to doubt the authenticity and validity thereof. It may further be pointed out that in the cross‑examination of the witnesses examined by the respondent, no suggestion was made contrary to the evidence deposed to by the witnesses with regard to issuance of the allotment order, endorsement made thereon regarding the delivery of possession or receipt of the 50% of the occupancy value by the K.DA. through bank. However, applicant examined lqbal Ahmad Qureshi, Additional Director Commercial, K.DA., Karachi who deposed that he had gone through the contents of the plaint as well as the documents filed by the respondent with the plaint carefully. He had also gone through the comments of the Department in respect of the plot in dispute. He stated that the planning in respect of the suit plot was carried out in the year 1973 and he produced lay out plan of different sectors of North Karachi. This witness of the applicant when confronted with Exh.P/2, the allotment order, admitted that the said allotment order was issued from the office of the Rehabilitation Commissioner. He further stated that the pro forma of the Rehabilitation Department might have been used by K.DA. staff and admitted that it was signed by K.DA. Officer. He also admitted that the above document shows that possession of the half of Plot No.ST‑9 was delivered to the allottee. He further stated that the number of the plot is not shown in the allotment order. He, however, explained that it was a practice in those days that they used to allot the land subject to availability of the plot. According to him, the record of the suit plot is not available in their office but they came to know about the acknowledgment of possession and site plan when the‑'suit was filed by the respondent. The said witness of the applicant, as is evident from the evidence, has strengthened the case of the respondent with regard to allotment of the said plot and has not in any way rebutted the case as projected by the respondent. What is important is the fact that the applicant even in its written statement has admitted that the plot in dispute was allotted, the possession e thereof was delivered to the respondent and the fifty per cent. of occupancy value thereof was paid by the applicant. In view of the above the contention raised by the learned counsel for the applicant with regard to the validity of the allotment to the respondent is without any substance.

7. With regard to the submission of the learned counsel for the applicant that Courts below have not considered the documents produced by its witness, suffice to say that the first document relates to the replanning carried out in the year 1973 and the other document which is drawing of the part plan of the area, was prepared on 19‑10‑1987 and as such they are not relevant in so far as the question of the allotment of the plot in the year 1964 is concerned. The submission of the learned counsel in this regard is therefore overruled.

8. Learned counsel for the applicant contended that though findings of the Court below are concurrent but they are not immune from interference. He relied on 1989 SCMR 34 (Sheikh Muhammad v. Hashmat Sultan) and PLD 1989 Lahore 440 (Wall Muhammad v. Muhammad Ebrahim and others). In the first case their Lordships have observed that every finding of fact is not immune from interference in the revisional jurisdiction. Referring to the concept of jurisdiction and illegality in the context of the observation made in the case of Kanwal Nain v. Fateh Khan and others (PLD 1983 SC 53), it is observed that it would cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that ‑grave injustice results therefrom. Their Lordships found that the two Courts below while deciding controversial question of fact cannot be said to have acted with jurisdiction, because evidence had been misread at more places than one, conclusion drawn were against the pleadings and perverse. In the second case a learned Judge had interfered in the findings of fact in exercise of the revisional jurisdiction having found that they were arrived at without considering the material evidence. In the present case, the learned counsel for the applicant failed to point out any perversity in the findings of the Courts below. From the resume of the ‑pleadings ‑ and the evidence detailed hereinabove, it is evident that no exception can be taken to the concurrent findings, arrived at by the Courts below on assessment thereof. However, grievance with regard to Exhs.D/1 and D/2, may be adverted to. Exh.D/1 is the blue print of the drawing prepared on 28‑12‑1973 in respect of three sectors of North Karachi, including Sector 15‑A/1 and Exh. D/2 is part plan of the said drawing. The said documents produced by the witness of the applicant, do not have any bearing on the allotment made in favour of the respondent, which was made, much before preparation of the aforesaid two documents, but possession was delivered subsequently. The case of Sahib Khan v. Muhammad Panah (PLD 1994 SC 162) also does not advance the case of the learned counsel for the applicant as in the said case it was observed by the Supreme Court that if the material document or material evidence is not considered, the High Court could interfere in revision. Material evidence or material documents, mean such piece of evidence or documents, which would affect the findings returned by the Court or in other words the findings of the Courts would have been different if the documents that have not been considered, had been looked into by the Court. The learned counsel for applicant could not point out as to in what manner the decision of the Courts would have been different if the said two documents had been considered. For considering the effect of the aforesaid. two documents and so also submission of the learned counsel that the North Karachi having been surveyed in the year 1973, the question of allotment of land in the year 1964 was out of question, reference is to be made to the relevant facts of the case and the evidence in some details. It may however be pointed out that neither such plea was taken in the written statement, nor there is any evidence to establish that North Karachi Township was planned first in the year 1973 or that no planting was carried out earlier, though in view of the peculiar facts and circumstances of the case, the said plea is hardly relevant. The fact that the allotment order was issued to the respondent is, not disputed. The said allotment order did not mention plot number. The allotment order was issued when the respondent was uprooted from Jacob Lines. Additional Director Commercial of K.DA. so also the officers of K.DA. examined by the respondent have established that during the period when the said allotment order was issued, it was the prevalent practice that the plot number used to be inserted in allotment order at the time of delivery of possession of the plot and not at the time of issuance of allotment order. This is what, had happened in the instant case. It is also admitted fact that on 15‑3‑1977 possession of half portion of Plot No. ST‑9 was delivered to the respondent, assigning Plot No. ST‑P/1 to the said portion. Such endorsement was admittedly made on Exh. P/2 the allotment order itself. Exh.P/3 is acknowledgment of delivery of possession of the said plot, wherein the then Executive Engineer of the applicant has certified the delivery of possession of the said plot to the respondent. The said documents are not disputed. On the contrary have been admitted by the applicant and have been proved by the officials of the applicant who were examined by the respondent in support of his case and the Additional Director, K.D.A. examined by the applicant did not rebut the evidence to the above effect or documents produced. He in fact did not assail the case set up by the respondent in any manner. The said documents Exhs. D/1 and D/2 were produced rather unceremoniously without stating the purpose thereof and out of the context of the deposition of the said witness. It is now being submitted that these exhibits were produced to show that the North Karachi was surveyed in 1973, but looking at the practice then prevailing which is proved by officials witnesses the point of time of survey is irrelevant in so far as issuance of allotment order is concerned. Such order was issued when the inhabitants of Jacob Lines were being uprooted and dislocated from the said area and they were handed over the allotment orders as an assurance of their rehabilitation. The plot number was inserted in the allotment order as detailed herein above only at the time of delivery of possession in the year 1977, after the planning of the North Karachi Township. Exh. D/1 does not show sub‑devision of Plot No. ST‑9, but it is because of the fact that it was prepared in 1973. Exh. D/2 is part plan showing sub‑division of Plot No. ST‑9 into six plots in the year 1987. The said documents do not advance the case of the applicant in any manner and cannot be said to be material documents. They do not affect the findings of the Courts below. Exh.P/3 is the site plan of St‑9/1 allotted to the respondent. It discloses the dimensions of the plot in question. The witness examined by the applicant did not rebut the authenticity or validity of the said document in his evidence. The learned Judges of both the Courts below considered the evidence and the relevant documents produced by the respondent and on assessment thereof decreed the suit. As Exhs. D/1 and D/2 were not material documents and as observed above do not have any bearing on .the findings given by the Courts below. If certain document is not considered by the Courts below, such omission does not ipso facto justify interference in the concurrent findings in exercise of revisional jurisdiction unless it is demonstrated that the documents or evidence kept out of consideration is material or in other words would have led the E Court to contrary view or affected the decision on any material particulars of the case. It may be pointed out that these documents being copies were not admissible in evidence. These documents were neither mentioned in the written statement nor disclosed at any stage prior to their production in evidence. These two exhibits were, therefore, received in evidence subject to objection. There was no occasion for the learned Judges of the lower Courts to consider the objection, as probably no stress was laid on these documents at the stage of arguments either in the suit or the appeal. For the above reasons and as also the said document being inadmissible, the submission of the learned counsel for the applicant fails.

10. The learned counsel for the applicant stated that the respondent having been shifted from Jacob Lines area was entitled to allotment of alternate plot but not the plot in question. Learned counsel did not elaborate argument any further to show as to for what reason the respondent was not entitled to the plot in question and what plot or land he was entitled to. The F submission being vague, cannot be entertained, once the entitlement of the respondent has been conceded to. Reverting, in the above background, to the submission of the learned counsel to the effect that under the Regulations of 1965 and Rules of 1971, referred to hereinabove, commercial plot can be disposed of only in open auction, suffice to say that the plot was allotted to the respondent much before the coming into force of the aforesaid Regulations and the Rules and as such they cannot be applied retrospectively. Even otherwise, it is to be noted that such plea was not taken in the written statement, and therefore, the applicant cannot be permitted to raise such plea for the first at the time of hearing of this revision application and that too after acceptance of the allotment order to be valid and having acted upon it‑ Secondly the allotment to the respondent was admittedly made in particular circumstances, in that it was made in lieu of the plot he was evicted from. Thirdly it is not the case of the applicant that the allotment in question was obtained fraudulently or illegally or in collusion with applicant's staff. Fourthly it is a case of past And closed transaction. The allotment was made in 1964 and possession was delivered m 1977 and it was more than thirteen years thereafter that the applicant, during the substance of the allotment order, subdivided the plot and published programme of auction of the said plots, which act on the face of it is legal and unwarranted. Fifthly it may be noted that the case of the respondent is not solitary one. Several other allotments were issued in respect of the commercial plots as disclosed in Exh.

16. It is not shown that any allotment Was celled on that count. The applicant has examined allottee of the plot No.ST/7 which is located near the plot in dispute. The said plot also has not been cancelled. Under the circumstances action in respect of the plot allotted to the respondent is discriminatory. The applicant under the fundamental law of this country is entitled to equal treatment, and the act of the respondent being discriminatory cannot be allowed to prevail.

11. The learned counsel for the applicant urged that the allotment order and possession do not confer any right on the respondent. The respondent, therefore, is not entitled to any protection under the law. He did not refer to any provision or rule of law io support of his submission. He, however, relied on Abdur Razzak's case (supra) wherein a learned Judge of this Court has observed that under Rule 10 Of the KDA. (Disposal of Land) Rules, 1971, the acceptance made in public auction could not be final unless, it is approved by the Governing Body of KD.A. The above authority has no application to the facts, of this case. The learned counsel for the respondent relied on Noor Muhammad and another v. K.DA. and 2 others (PLD 1975 Kar. 373), Kaleemuddin Ansari v. Director, Excise and Taxation (PLD 1971 SC 114) and Abdul Bahi v. Muhammad Akhund Din (PLD 1964 SC 107). The ratio of the rule laid down in the said authorities, that can be applied to the peculiar circumstances of the case, is that the allotment made in favour of the respondent is not a licence or sub‑licence, but it has created real interest in the land allotted to him. The submission of the learned counsel is overruled accordingly. Above are the reasons for the short order dated 17‑3‑1995 whereby the revision application was dismissed with costs. AA./K‑390/K Revision dismissed.