1986 PLP 297 (CLC)

IBADAT YAR KHAN, J.‑‑The dispute in this petition relates to a plot measuring about 720 sq. ft. situated in Resham Gali, Hyderabad. The petitioner in this case, who is the owner of House on Plots Nos. D/2199 and D/2200 sets up a claim for the transfer of the plot on the basis of alignment or Mohag right, because the plot is running along the boundary of the land occupied by the house of the petitioner. The respondent No.3 which is a mosque registered under Societies Registration Act bearing Registration No. 1584 situated across the road in the vicinity of the plot has preferred a claim for its transfer for a public purpose namely for extension of facilities provided by the mosque and for a Madresah attached to the mosque. For the last quarter of a century or so the petitioner and the respondent No.3 represented by a Managing Committee have been struggling to acquire the plot and by now, through passage of time the anxiety to have the plot transferred has changed to feeling of acrimony and bitterness. This can be judged not only by the vehemence and zeal shown by the opposing counsels, but also by the fact that although a huge building consisting of shops and Madresah has been completed by the mosque according to the approved plan, the petitioner's enthusiasm and urge to acquire its vacant possession has not cooled down. It would be necessary to give some background of the case before examining the technical merits of the arguments advanced by the learned counsel for the petitioner. As early as 17‑1‑1958 it occurred to the respondent No.3 to acquire the possession of this plot and for this purpose 'Suleman Khan, President of Noor Mosque, Hyderabad moved an application dated 17‑1‑1958 to the Chief Officer, Hyderabad Municipality requesting that "this plot may kindly be leased out to the mosque on nominal payment". The Chief Officer by his letter, dated 24‑1‑1958 made an enquiry whether Noor Mosque had been registered in the Sessions Court and had been declared as 'Waqf property' and whether there was registered Motawalli of the said mosque authorised to apply for the lease and construction etc. To this letter a reply was sent by Haji Abdul Sattar on 25‑5‑1959 stating that "Masjid‑e‑Noor is known as Waqf property vide City Survey No.2201 Sheet No.44 Ward 'D' at Hyderabad and is registered in the Sessions Court and declared Waqf". It was further stated: "Since there was no Mutawalli, hence the application was sent by the people saying prayers regularly through the President of the Managing Committee of the said Masjid. Now I have been appointed as Mutawalli, vide Sessions Judge Waqf letter No. W‑356, dated 8‑1‑1959 and as such I as Mutawalli of the said mosque request you to very kindly look into this and grant allotment of the land on lease with construction of the shops etc." Reminders were sent by the Mutawalli of the mosque from time to time. These reminders were addressed to the Secretary, Local Bodies, Government of Sind, to the Commissioner, Hyderabad Division, to the Administrator People's Municipal Corporation, Hyderabad Sind. Reference may be made to one such reminder, dated 12‑11‑1976 which has been signed by the Office‑holders of different organizations as well as large number of residents of Resham Gali, Hyderabad, who were the Namazis in the mosque. Petitions were made to the Chief Martial Law Administrator and to the Minister, Government of Pakistan and to the different functionaries of the Government of Sind, to the Mayor, Municipal Corporation, Hyderabad from time to time, copies of which have been filed with the counter‑affidavit filed on behalf of the respondent No.3. During this period these requests were examined at different levels and the office notes and memorandas were shuttling from one functionary to another functionary but nothing happened till 14‑1‑1981 when one such application, dated 3‑1‑1981 was forwarded to the Secretary, Government of Sind, Housing and Town Planning Department by the Governor Secretariat for a proper action by the authorities concerned. The Secretary to the Government of Sind by his letter, dated 12‑1‑1981 wrote to the Mayor, of Hyderabad Municipality requesting the latter to forward comments and specific recommendations on the application of the mosque praying for the transfer of the plot in question. By a letter, dated 18‑1‑1981 the Mayor of Hyderabad Municipal Corporation replied to the Secretary, Housing, Town Planning, Local Government which runs as follows:‑ "Subject:‑Sale of Municipal Waste Land to Masjid‑e‑Noor on C.S. No.D/44‑2201 Measuring 869 sq. feet. The Managing Committee of Masjid‑e‑Noor situated on C.S. No. D‑344‑2201‑2202 has applied for this municipal waste land in the year 1958 and regularly trying to get this Municipal waste land for Madersah and extension of mosque etc. etc. The Managing Committee has also sent an application to the Chief Martial Law Administrator on 14‑10‑1978. The land is purely required for religious purpose. Masjid have preference on all others. It is, therefore, recommended that the applied municipal waste land measuring 869 feet as per attached site plan may kindly be considered for sale in the name of Masjid‑e‑Noor @ Re.l per sq. ft. Early approval is requested." On receipt of the recommendations of the Mayor, the Government of Sind by their order, dated 15‑3‑1981 accorded their approval for the transfer of the plot to the mosque for purposes of extension of the mosque and construction of Madresah on 99 years lease at the normal rate of Re. l per sq. ft. The Department of Building Control Management, Hyderabad Development Authority accorded sanction for construction/ regularisation of the building on the said plot and also approved the site plan of construction. On 29‑3‑1981 the Mayor of Hyderabad Municipal Corporation executed a lease‑deed on behalf of the Hyderabad Municipal Corporation in favour of the Managing Committee of Masjid‑e‑Noor, Hyderabad on terms and conditions specified in this document. By a subsequent order, dated 16‑7‑1981 an additional area of 68 sq. ft. which had inadvertently been left out was also included in this transfer. The efforts of the petitioner for obtaining the Mohag rights in the plot start with his application to the Chief Officer of respondent No.2 when he moved an application, dated 16‑6‑1977. This request was repeated by another letter, dated 26th September, 1978 to the Administrator Hyderabad Municipal Corporation. A reminder was sent to the Administrator by a letter, dated 28‑9‑1978. Application was also sent to the Federal Minister, Local Bodies, Government of Pakistan, Islamabad and Mayor, Hyderabad Municipal Corporation. At one stage the Land Control Committee of respondent No.2 in their meeting on 10‑1‑1981 discussed the question of disposal of the plot and different proposals for its transfer came to be discussed on their respective merits. The majority view was in favour of the petitioner. On 21‑1‑1981 the petitioner relying on the discussions held in the meeting of the Land Control Committee referred to above again moved the Secretary, Local Bodies, Government of Sind for transfer of the plot to the petitioner, highlighting factors in support of his entitlement namely pre‑emption and the Mohag right. Without examining the merits of the claim the Secretary forwarded this application after recording a marginal note on this application, dated 26‑1‑1981 requesting the Mayor, Hyderabad Municipal Corporation for eliciting the view of the council and report. In para. 10 of the petition the petitioner has raised a grievance that these directions were ignored by respondent No.2. Para. 10 is as follows:‑ "

10. That however, respondent No.2 deliberately failed and avoided to place the matter before the COUNCIL contrary to the law as contained in S. 45(5) of the Sind Local Government Ordinance, 1979 and also in disobedience of the directions issued by the Secretary of respondent No.l on 26‑1‑1981 as aforesaid." The respondent No.2 alongwith their counter‑affidavit have filed two documents. The first is a reply by the Mayor, Hyderabad Municipal Corporation to the Secretary, Government of Sind in reply to the query made on 26‑1‑1981. In this letter the Mayor has traced the back ground of the dispute since 30/35 years and besides questioning the entitlement of the petitioner has also referred to the efforts made by the mosque for the transfer of the plot since as early as 1958. As a matter of fact the Mayor in this letter has mentioned that the petitioner does not reside on the plot, that the possession of the house is with Hap Bashir Ahmed and his brother and both of them are supporting `the transfer of plot to the mosque. More important than the above letter is the letter, dated 2‑2‑1981 from the Secretary, Government of Sind to the Mayor, Hyderabad Municipal Corporation. A copy of this letter was also forwarded to the petitioner but he has not made any mention of this letter in this petition. This letter has been brought on record by the Advocate for respondent No.2. It reads as under:‑ "I am directed to enclose herewith a copy of application, dated 21st January, 1981 of Mr. Shabbir Ahmed, on the above subject for further disposal. (2) However, it is pointed out that plots exceeding 360 sq. ft. in area cannot be granted on Mohag right under section 45(5)(ii) of Sind Local Government Ordinance, 1979." It would now be convenient to appreciate the comparative merits of the case of the petitioner as well as respondent No.3. It is a case in which the transfer in favour of mosque has been made on special considerations in departure from the normal practice in terms of subsection (5) of section 45 of the Sind Local Government Ordinance; 1979. It is pertinent to note that the petitioner himself had applied for transfer under these very provisions and his application was dismissed because the case was not covered under this section; the area of the plot being more than the area prescribed in clause (ii) of subsection (5) of section 45 of the Sind Local Government Ordinance, 1979 which prescribes the limit of 45 sq. yds. only. Section 45 pertains to contracts to be entered into between the council and third party. Subsection (1) of section 45 give a general power to the council to enter into a contract. Subsection (2), clause (a) prescribes that the contract should be in writing and in the name of the council. Clause (b) of this subsection requires the Mayor to report to the council regarding these contracts at the meeting of the council. Subsection (3) requires that the contracts should be awarded only after inviting competitive tenders or quotations either without publication or in certain cases by publishing a public notice in a newspaper. The contracts are to be awarded only to the highest bidders, and if a Lower tender or quotation is accepted, the Council or other authority awarding the contract will have to offer explanation for doing so. Subsection (4) is specially applicable for transfer of immovable property where the contemplated transfer is by way of grant, sale, mortgage or lease. In all such cases the transfer should be made only after inviting offers in an open auction. The condition of auction may, however, be dispensed with in certain cases with the approval of the Government. The most important and relevant provision of the Ordinance under which the transfer in the present case has been made in subsection (5) of section

45. Clause (ii) of this subsection applies to the cases of individuals and prescribes that the condition of open auction may be dispensed with and small portions of areas not exceeding 40 sq. yds. falling in alignment with the main holding may be transferred to individuals without any public auction at the market price of the land in the area. Similarly clause (i) of subsection (5) permits the transfer of land on negotiation basis to public bodies or even individuals but for a public purpose at such rate as the Council in consultation with the Government may fix. It would be convenient to quote this subsection in extenso:‑ "(5) Notwithstanding anything contained in subsection (4), a council may grant, sell, or lease out land at rates to be fixed in consultation with Government, to‑‑ (i) associations, orgnizations, individuals or any department or institution of the Federal or a Provincial Government for establishing, maintaining or extending educational, religious and charitable institutions or for such other purposes for the benefit of the public, subject to the condition that if the land is not used for the purpose it was granted, the council may after affording such association organization, individual or department or institution, as the case may be, an opportunity to show cause against the proposed action, resume such land alongwith structures, if any, without any compensation; (ii) land‑holders for adding to their holdings, alignments or small plots of not more than forty square yards at the market price likely to be obtained in auction; (iii) holders of lease for twenty years or more after the expiry of the lease, on the same terms and conditions." As stated above, the case of the petitioner was examined in the light of clause (ii) of subsection (5) and his request was rejected because the area of the land involved was more than 40 sq. yds. The case of the mosque was examined under clause (i) of subsection (5) because the mosque and Madresah are treated as religious and educational institution. It was decided that the plot should be transferred to the mosque at concessional rate. Mr. Rehanul Hassan learned counsel for the petitioner having failed to make out a case in favour of the petitioner, then turned to find procedural defect in transfer effected in favour of the respondent mosque. The contention was that under subsection (1) of section 45 it is the Council which is competent to enter into contract. Under subsection (7) of section 45 "no contract executed otherwise than in conformity with the provisions of this Ordinance shall be binding on the council". This section however is followed by section 47 and must be quoted in extenso to appreciate the arguments of the learned counsel. Section 47 is as follows : ‑ "47.‑‑ (1) The executive powers of a council shall extend to the doing of all acts necessary for the due discharge of its functions under this Ordinance. (2) Save as otherwise provided in this Ordinance and the rules, the executive powers of a council shall vest in and be exercised by its Mayor or Chairman, as the case may be, either directly or through any person authorized by him in accordance with the rules. (3) All Acts of a council shall be expressed to be taken in the name of council and be authenticated in the prescribed manner." In our opinion section 47(2) is a complete answer to the objection of the learned counsel. Learned counsel for the petitioner, while addressing us in reply to the arguments of the counsel for respondents, invited our attention to some meeting of the council and a walkout staged by some members in protest against the decision of the Government in favour of the mosque. It would be highly inappropriate if we could our vision by the dust kicked on account of political and sectional differences or controversies. Any such difference should be resolved and settled on the floor of the house and not in Courts. All we have to see is whether the action of the Government communicated by their letter dated 15‑3‑1981 is in accordance with section 45(5)(i) of the Sind Local Government Ordinance, 1979. If so the petitioner fails before us and he should air other grievances or controversies somewhere else. In our view the transfer in favour of the mosque involving pecuniary interest of less than Rs.1,50,000 was even otherwise saved by sub‑rule (2) of rule 3 read with clause 2 of the first Schedule of the Sind Council (Contract) Rules, 1980. In this view of the matter the contention of the learned counsel for the petitioner has no force and must be rejected. In the circumstances no exception can be taken to the actions taken. The decision being strictly in accordance with clause (i) of' subsection (5) of section 45 and also within the limits of powers of the Mayor by virtue of rule 3, sub‑rule (2) read with clause 2 of first Schedule of the Sind Councils (Contract) Rules, 1980, cannot be termed as an action without lawful authority. This petition is, therefore, dismissed without order as to costs. MUHAMMAD ZAHOORUL HAQ, J.‑‑In my view this petition deserves to be dismissed irrespective of the merits of the allotment in favour of respondent No.3. Firstly the petitioner has not been able to show any right in him for grant of land which clearly measures more than 40 square yards. Moreover, the petitioner has allowed the raising of structure by respondent No.3 upto the roof level before 22‑12‑1980 without taking any appropriate steps to get restrained the said constructions being raised in front of his own eyes. These constructions must have been carried on for a long period as they are R.C.C. structures. In these circumstances the petitioner cannot seek any discretionary relief from this Court. M . Y . H . Petition dismissed.