1993 PLP 1061 (MLD)

ISSUES: (1) Whether the plaintiff was declared successful in the Ballot on 15th November, 1965, held by the defendant and was allotted Plot No.D/142/7, K.D.A. Scheme No.24, Gulshane‑e‑Iqbal, Karachi by publication. (2) Whether the defendant were served with legal notice to issue allotment order of the said plot to the plaintiff and subsequently it was refused. (3) Whether the plaintiff fulfilled all the terms and conditions prescribed by defendant and he was not allotted the said plot without any justification and the act of the defendant is arbitrary, unjustified, illegal and mala fide. (4) What should be the decree? The learned trial Court decided all the issues against the respondent and consequently his suit was dismissed vide judgment of the learned Senior Civil Judge, dated 21‑9‑1978. The respondent being aggrieved by such decision appealed before the learned IVth Additional District Judge, Karachi, who allowed the appeal and set aside the order of the learned trial Court vide his judgment dated 17‑3‑1985. I have heard Mr. Sabir Hussain Kizilbash, learned counsel for the applicant and Mr. Nasrullah Awan, learned counsel for the respondent. The main contention of Mr. Nasrullah Awan, is that admittedly the Governing Body of the applicant did not recommend the case of the respondent on the ground that he was dependent upon his father who already owned a flat in Karachi. The respondent produced evidence before the Governing Body to show that he was an independent person and owned property and similar evidence was produced by the respondent before the learned trial Court, however, according to the learned counsel, the applicant was fully governed by the said Notification (Exh.26) and no such condition existed in the said notification whereby the applicant's application for allotment could be rejected by the Governing Body. Mr. S.H. Kizilbash, on the other hand, has argued that there was no binding contract between the parties and by the latest directive issued by the Government, no plot comprising of area of more than 600 yds. can be allotted by ballot. Reliance has also been placed by the learned counsel on the case of Abdul Razzak v. Karachi Development Authority 1991 CLC 1591 recently decided by my learned brother, G.H. Malik, J. In this case K.D.A. had disposed of certain commercial plots by a public auction. A dispute arose between the applicant and the plaintiff in the said case and it was held that mere acceptance of bid cannot be final unless approved by the Governing Body of the Karachi Development Authority. It was further held that advertisement for auction was merely an invitation to bid as distinct from an offer to be bound to sell, consequently although the plaintiff's bid at the auction sale was accepted, but the same was subject to approval by the Governing Body of the Karachi Development Authority and the same was thus not final and did not amount to acceptance of offer which could ripen into a concluded contract. It is pertinent to point out that the document upon which both the parties have placed reliance is the said notification embodying conditions in regard to allotment of the plot (Exh.26). According to the clause 6 (iv) of the said notification, Paragraph (b)(i): "Applicant should not own a house/plot of land/or flat situated anywhere within a radius of 20 miles from the General Post Office, Karachi, in his/her name, or in the name of his/her wife/husband, or of any of his/her minor or dependent children." Paragraph (b)(ii) further provides that: "Applicant should not have disposed of by sale/gift or any other mode of conveyance a house/plot of land or flat situated within a radius of 20 miles of the General Post Office, Karachi, owned by him/her in his/her own name or in the name of his/her wife/husband or of any of his/her minor or dependent children." Although it is the case of the respondent that his case did not fall within the mischief of either clause (i) or clause (ii) of paragraph (b), but it is not disputed that the allotment of the plot, in favour of the respondent was a provisional allotment which was subject to approval by the Governing Body of the applicant. This can also be clearly spelled out from the said Notification (x .25) which lays down the conditions of eligibility for allotment of residential plots in pursuance of the said notification. It is therefore clear that after holding of the secret ballot there were still certain conditions which were to be complied with by the respondent. Consequently, it would be erroneous to assume that the mere success of the respondent at the secret ballot had given p rise to a concluded contract between the parties. The said notification in fact constituted an invitation to a contract and the provisional allotment of the plot in favour of the respondent was subject to certain other conditions which were to be fulfilled before such allotment could be confirmed. Fulfilment of conditions by the respondent as laid down in the said notification after his success at the secret ballot in fad would have constituted a proposal which was to be accepted by the applicant in order to give rise to a binding contract between the parties. Unless there is a concluded contract between the parties the respondent is not entitled to seek any relief against the applicant. No doubt, the reasons given by the Governing Body of the applicant do not appear to be in consonance with paragraph (b) (i) or (ii) of clause 6(iv) in the said notification but notwithstanding the same, the respondent was not entitled to seek any of the reliefs in the suit against the applicant, as has been pointed out earlier in this judgment. The facts of the case decided by my learned brother G.H. Malik, J. reference to which has been` made earlier in this judgment, although are distinguishable, nevertheless the principle enunciated therein is the same. The learned Additional District Judge, appears to have been influenced by the fact that the documents relied upon by the respondent before him had shown that the respondent was independent of his father holding land in his personal name and consequently, the decision taken by the applicant in his case was not justifiable. Although, I agree with the learned Additional District Judge to this extent, but the question is whether the respondent had any vested right on the strength of which he could seek relief in the suit against the applicant. The same as pointed out earlier, cannot be inferred as there was no binding contract yet entered into by the parties. In the result, although, this Revision is allowed and the order passed by the IVth Additional District Judge, Karachi is set aside and the judgment passed by the learned trial Court is upheld, but I cannot help observing that K.D.A. is a statutory body and therefore, it should not have acted in an arbitrary manner cancelling the preliminary allotment in favour of the B respondent on the grounds which do not appear to be in consonance with the conditions embodied in the said Notification (Exh.26). I would, therefore, recommend that the applicant should allot the plot to the respondent if he fulfils the conditions laid down in the said notification and in case it is not ossible to allot him the same plot or another plot of same size, the applicant should allot him a suitable plot in another scheme, even if it is not of the same size. A.A./K‑312/K Order accordingly,