P L D 2003 Karachi 162 (PLP)

(6) Copy of C.P. No. 646 of 1972. (7) Complaint dated 28‑10‑1978 against Karachi Cooperative Housing Society Union Limited, Karachi. (8) Letter of MLA dated 22‑10‑1978. (9) Letter/permission dated 10‑6‑1975 issued by Government of Pakistan, Works and Rehabilitation Division. (10) Letter dated 7‑5‑1981 sent to Municipal Commissioner, KMC, Karachi by Section Officer VI, for Secretary to Government of Sindh. (11) Conveyance deed dated 14‑6‑1975. My findings on the above issue with reasons are as follows:‑‑ ISSUES NOS. 1 AND 2: The suit plot was leased out to the plaintiff under sublease/conveyance deed dated. 14‑6‑1975 para.1 of the same reads as follows:‑‑ "I The 'vendors' above named are seized and possessed of the immovable property bearing open Plot of land No.L‑1, Survey No.S.N.P.A. 72, Survey Sheet No.35, P/1, admeasuring 1,310 sq. yards, situated in Central Commercial Area. Block 3, of the Karachi Cooperative Housing Societies Union Ltd " Defendants have produced lay out plan of the area prepared in 1965 or thereabout showing the plot to be a park. The list of unity plots dated 3‑10‑1961 of the area also includes the said plot, which goes to prove that the Plot No.L1 in Bahadur Yar Jang Cooperative Housing Society ad measuring 1310 sq. yards has been carved out of the amenity plot reserved for park bearing Survey No.SNPA 72, Survey Sheet No.35, out of the entire plot measuring 5427 sq. yards. The above facts are to be examined in the light of relevant MLOs which are reproduced as follows;‑‑ "No.34, [13th October, 1977] All allotments of the plots which were reserved for roads, hospitals, schools, colleges libraries, playgrounds, gardens parks, community centres, mosques, graveyards or for such other pity/community purposes but were subsequently unauthorizedly or by political manoeuvres converted into residential or commercial plots and on which no construction has been made are hereby cancelled and the plots so cancelled shall be resumed by the authority in which the plots initially vested and the amounts, if any, paid by the allottees shall be refunded under the normal rules." No. 89. [18th Julv.1979]. (1) Allotment of amenity plots which have been converted for other purposes, in contravention of the law or rules regulating the conversion or for political considerations from 1st January, 1972 to 4th July, 1977 and on which no construction has been made shall stand cancelled and possession thereof shall be resumed by the authority in which the plots initially vested and the punts, if any, paid by the allottees shall be refunded to them as admissible under the rules: Provided that nothing herein contained shall apply to the conversion of amenity plots in the Housing Schemes, made before coming into force of the Sindh (Amendment of Laws) Act, 1974 or in accordance with the procedure laid down in the said Act. Explanation. ‑‑‑Amenity plots mean the plots reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques; graveyards or for such other public purposes. (2) Any person aggrieved by this order may, within fifteen days of the promulgation thereof prefer an appeal to Government and orders of Government on such appeal shall be final. (3) Government may, in any individual case of hardship, relax the provisions of para.2 on such terms and conditions as tray be determined. " The contention of learned counsel for the plaintiff that the plot in suit was converted to commercial use before the effective date of MLO 34 commencing from 1st July, 1972 on the strength of the lease granted to Bahadur Yar Jang Cooperative Housing Society in the year 1963 has no bearing as neither the said lease is produced nor it has been proved that the said plot was in existence at that time. Front the documents on record it appears that the plot was created at the time of lease and the conversions took place within the period covered under MLO 89 which is reflected from the agreement to sell dated 3‑6‑1975, sublease dated 14‑6‑1975 and the lease deed dated 2‑10‑1974 entered into between Karachi Cooperative Housing Society Union Limited and Bahadur Yar Jang Cooperative Housing Society Limited whereby the said plot was leased out to the Bahadur Yar Lang Society. The plaintiff has not joined the said society as party to the present suit. In view of the document it is proved that the said plot converted from a larger amenity plot reserved for park is covered under the provision of MLOs. 34, 89 and MLO 247 read with section 117(2) of the Sindh Local Government Ordinance, 1979. Preliminary legal objection as to the limitation was taken in the written statement. The; suit plot was taken over and converted into park in 1975 as is reflected froth letter dated 10‑6‑1975 already reproduced above. The suit tiled in 1991 is hit by provision of section 3 of the Limitation Act as is barred by Article 144 of Limitation Act provided for maximum period of 12 years. In view of the above this suit is not maintainable. Further in view of necessary amendment by insertion of Article 270(A) in the Constitution of Islamic Republic of Pakistan the suit is barred, the said amendment is as follows:‑‑ "270‑A. Affirmation of President's Orders, etc.‑‑(1) The Proclamation of the fifth day of July, 1977, All President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984 (P.O. NO. 11 of 1984), under which, in consequence of the result of the referendum held on the nineteenth day of December, 1984, General Muhammad Zia‑ul‑Haq became the President on the day of the first meeting of the [Majlis -e‑Shoora (Parliament)] in joint sitting for the term specified in clause (7) of Article 41, the Revival of the Constitution of 1973, Order, 1985 (P.O. NoA4 of 1985.), the Constitution (Second Amendment; Order, 1985 (P.O. No.24 of 1985), and all, other laws made between the fifth day of July, 1977, and the date on which this Article comes into force are hereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent Authority and, notwithstanding any thing contained in the Constitution, shall not be called in question in any Court on any ground whatsoever: Provided that a President's Order Martial Law Regulation or Martial Law Order made after the thirtieth day of September, 1985, shall be confined only to making such provisions as facilitate, or are incidental to, the revocation of: the proclamation of the fifth day of July, 1977. " Accordingly the Issue No. 1 is decided in negative while Issue No. 2 is answered in affirmative and the plaintiff is entitled to refund of the amount paid under the rules. ISSUE NO.3: It has been recorded in the lease deed that the said plot forms part of Plot No.SNPA‑

72. This amenity plot was reserved for park as shown in the lay out plan of the area, it is covered by MLOs. 34, 89 and 247 which is not disputed and such conversion of amenity plot is contrary to the settled principles of law as held by the Hon'ble Supreme Court in case of Ardeshir Cowasjee and 10 others v. Karachi Buildings Control Authority (KMC) and 4 others (1999 SCMR 2883). In view of the above this issue is answered in affirmative. ISSUE NO.4: In view of my findings on Issues Nos. 1 and 2 above as the said plot is covered under MLOs. 34, 89 and MLA 247 read with section 117(2) of the Sindh Local Government Ordinance, 1979 cancellation is affected by operation of law for which no separate. proceeding or notice is required. Learned counsel for the plaintiff has referred to two documents filed as complaint and appeal dated 17‑8‑1978 and 4‑2‑1980 respectively preferred by the plaintiff, however, on being asked to point out any provision provided for such appeal, learned counsel candidly admitted that neither any provision was referred in the said appeals nor he is in a position to point out any such provision. The actions taken in pursuance of enactments are reflected from the letter of the Director, Park and Restoration dated 21‑10‑1978 which reproduced as follows:‑‑ "To Mr. M.A. Hamid Ali Baksh, Care of Mar. Mahmud‑ul‑Hassan, P.I.I.A., Building, Awan‑e‑Saddar Road, Karachi. Subject: AMENITY PLOT NO.SNPA‑

72. Reference: Your letter No. nil dated nil for the subject noted. above. It is to inform you that the Plot No.SNPA‑72, is an amenity plot meant for developing into a park/playground in the original layout plan of the K. C. H. S. U. Ltd. The Karachi Cooperative Housing Society Union Ltd., vide their Letter No.9150/7‑G/76, dated. 15th April, 1976, addressed to the Hon. Secretary, Bahadur Yar Jang Cooperative Housing Society Ltd. has cancelled the allotment order and possession of the plot was handed over to KMC for developing into a park/playground. This office has developed the site into a park/playground after providing compound wall in the interest of general public. In view of the above it is regret to say that the amenity Plot No. SPNA‑72, cannot be restored in your favour. Director, Parks and Recreation KMC. The above letter goes to show that after the cancellation of the said plot park was developed by the defendant as back as in 1976 when the plaintiff was refused possession of the plot accordingly in view of the above discussion this issue is answered in affirmative. ISSUE NO.5: Permission of the Federal Government is contained in letter dated 10‑6‑1975 which is reproduced as follows:‑‑ Islamabad the 10th June, 1975. To The Chief Officer (Mr. H.N. Mangrico), Karachi Cooperative Housing Society Union Limited, Shaheed‑e‑Millat Road, Karachi‑

5. Subject: Permission for sale/transfer of Commercial Plot No.L‑1 Block No.3 measuring 1310 sq. yards in the area of Bahadur Yar Jang Cooperative Housing Society Limited, Karachi. Dear Sir, With reference to your Letter No.964(7‑G)/75, dated 7‑6‑1975, on the above subject I am directed to convey the approval of Government of Pakistan for the sale/transfer of Commercial Plot No. L‑1, Block No. 3 measuring 1310 sq. yds. in the area of Bahadur Yar Jang Cooperative Housing Society Ltd., Karachi in the name of Mr.M.A. Hamid Ali Baksh.

2. An attested copy of sale‑deed and an undertaking from the purchaser to the effect that he shall abide by the terms and conditions of the lease may kindly be furnished to this Division at an early date." This document does not convey the decision for conversion of the amenity plot into commercial plot. It only appears to be permission on reference made for the lease of a commercial plot in a routine manner as required under terms of lease, which by itself does not constitute a permission for conversion of the land used. In view of the above I am of the view that the permission granted under said letter is not a permission for conversion of amenity plot into a commercial plot and has no bearing and merits no consideration. Accordingly this issue is decided in affirmative only to the extent of permission. However, the effect of such permission to transfer does not amount to permission of conversion of an amenity plot to commercial plot and does not confer any right upon, the plaintiff in view of my findings to the remaining issues already discussed above. ISSUE NO.6. In view of my findings on above issues, the suit is dismissed but with no orders as to cost. Q.M.H./M‑427/K Suit dismissed.