2024 PLP 1215 (SCMR)

Qazi Faez Isa, CJ. This matter was fixed for hearing on 22 April 2024 and it was adjourned to today's date. Learned Advocate-on-Record, Mr. Muhammad Iqbal Chaudhry, representing the respondents has submitted an application for adjournment on the ground that learned ASC for the respondents is indisposed. We note that this appeal has been fixed in Court twenty-eight times, therefore, the said request cannot be entertained, particularly when today's date was fixed in Court in presence of counsel.

2. Mirza Sarfraz, the learned counsel representing the appellant, states that this matter pertains to the illegal allotments of land in the year 1984 which were made pursuant to orders whereby plots of different sizes were allotted to about 350 persons in the land earmarked and designated as a public park, the Bagh-e-Ibn-e-Qasim ('the Park'). The learned counsel and the learned Additional Advocate General state that the Park is adjacent to the seashore and is for the benefit for the citizens of Karachi and for all those who visit Karachi, however, unfortunately, the public interest was disregarded by allotting plots in the Park which could not have been done since the land of the Park was a designated amenity plot. It is further submitted that it was illegal to change the Park's land use to commercial use as was sought to be done in the said allotment orders.

3. The allotment orders were issued by an Additional Director of Karachi Development Authority (KDA) who had fixed the occupancy value of the said plots at four hundred rupees per square yard. The allotment orders stated that when the entire amount has been paid then leases will be executed in favour of the allottees. No lease was executed in favour of the allottees. Learned counsel representing KDA submits that when it was realized that the allotment orders were illegal and had been issued in respect of the Park, and were issued by changing the designated land use to commercial use they were cancelled, after issuance of requisite show cause notices. The cancellation orders also stipulated that when the said allottees surrender all the original documents they would be refunded the amount paid by them.

4. After cancelling the allotment orders KDA took back possession of the plots on 30 August 2005. Only a few of the allottees filed Constitution Petition No. D-1153 of 2005 before the High Court wherein it was prayed that the action of dispossessing the allottees and demolishing their structures be declared to have been without any lawful authority and unconstitutional and had sought that lease deed be executed in their favour. Surprisingly, they did not pray to set aside the cancellation orders. The High Court ordered that the allottees be compensated 'by offering alternate property in their respective favour without any further delay, in order to maintain balance and to do complete justice'. The allottees were granted relief by the High Court which they had not even asked for.

5. Earlier the respondents had filed complaints before the Provincial Ombudsman ('Ombudsman'). The Ombudsman vide decision dated 11 June 2001 had directed KDA to execute leases in favour of the allottees subject to payment of the outstanding dues. But since KDA did not comply with the decision of the Ombudsman the allottees again approached the Ombudsman who passed a restraining order.

6. The learned Mr. Muhammad Iqbal Chaudhry, representing the respondents states that the impugned judgment is well reasoned and does not call for any interference and particularly since it does complete justice. The learned Mr. Chaudhry also relies on the grounds taken by the respondents in the constitutional petition filed in the High Court.

7. The Karachi Development Authority Order, 1957 KDA in its Preamble had specifically mentioned the protection of public amenities like parks, gardens and playgrounds, etc. Learned counsel for the appellant has correctly pointed out that Article 52-A of the Karachi Development Authority Order, 1957, which whilst undergoing changes, does and always did prohibit the conversion of amenity plots and to change their designated use. And amenity plots cannot be changed to commercial use. What was reserved for the public could also not have been converted for private benefit, nor could the Park be used for commercial use. Private use and/or profit cannot negate or undermine public use and benefit.

8. The relief granted by the learned Judges of the High Court was beyond what had been asked for, and it could not have been granted to do complete justice. On the contrary, the relief which was granted was in violation of the Master Plan of the City and the applicable law. Before any lease had been executed by KDA the illegality which had been committed was realized and KDA cancelled the allotment orders, after show cause notices were issued to the allottees. KDA had also not elected to retain/forfeit amounts paid by the allottees rather it had offered to refund the same as stated above.

9. For all the aforesaid reasons, the impugned judgment is not sustainable and accordingly it is set aside and this appeal is allowed. MWA/C-11/SC Appeal allowed.