1986 PLP 191 (MLD)

MAMOON KAZI, J.‑‑The facts of the case are, that by a sale agreement, dated 24th November, 1979, executed between the Government of Sind and Rizwan Co‑operative Housing Society, the Petitioner No.2, the said Society was allotted 20 Acres of land in Sector No.38‑A of Housing Scheme No.33 in 'Taluka District Karachi for the purpose of a residential colony. In the same Scheme, land was also allotted to others including the respondent No.2 who was allotted 14‑05 Acres of land in the same Housing Scheme. Thereafter, a Lay‑Out Plan of the said Scheme was tentatively prepared which was approved by the Deputy Director, Master Plan Department, K . D . A . and countersigned by the representatives of the concerned parties. A copy of such plan has been filed as Annexure 'D; to the petition. In this plan it was clearly mentioned that the allottees of the land had accepted the Lay‑Out Plan as "final draft subject to minor adjustment". This plan was then sent to the Survey Superintendent, Karachi for demarcation on the site. When such demarcation was made by him, it was discovered that according to the plan the allottees including the petitioner Society were getting land in excess of what was allotted to each one of them. The petitioner Society was thus getting 26‑02 Acres of land instead of 20‑00 Acres actually allotted to it. The Survey Superintendent, therefore, made a proper lay‑out and prepared another plan according to which some land originally shown in the first Lay‑Out Plan as that of the petitioner -Society including a 60 feet wide road was included in the area allotted to Messrs Eastern Builders Agencies Ltd., the respondent No.2 in the case. The matter ultimately went before the Deputy Commissioner, East Karachi, the respondent No.1 who vide order, dated 3‑5‑1985 treated the Plan prepared by the Survey Superintendent as final and confirmed and asked the Master Plan Department of the K . D . A . to follow such Plan prepared by the Survey Superintendent. A copy of this order has been filed with the petition as Annexure 'F'. Thereafter, it seems, that the plan was prepared by the Master Plan Department of the K . D . A . which was finally approved by the Board of Revenue, Sind vide Order dated 11‑7‑1985. A photo copy of this order has been filed by the K.D.A., respondent No.4 in the case alongwith its para‑wise comments as Annexure 'BB'. It has also been pointed out by the petitioners that the petitioner Society was taken over by the Sind Co‑operative Housing Authority, respondent No.6 in this petition under the provisions of the Sind Co‑operative Housing Authority Ordinance, 1982, on' 2nd April, 1984. According to the petitioners, however, the period for which the management of the petitioner‑Society was taken over by the said Authority has expired since 2nd April, 1985, therefore the petitioners' had locus standi to file this petition.

2. The comments were called for from the respondents Nos.1 and 4 which have been filed. Pre‑admission notice was also issued to other respondents and the respondent No.2 has contested the petition by filing counter‑affidavit.

3. We have heard the counsel who appeared before us and argued the case on behalf of' the respective parties. Mr. Fazle Ghani Khan the learned counsel .for the petitioner has assailed the order; dated 30‑5‑1985 passed by the Deputy Commissioner, Karachi, Annexure, 'F' to the petition, on the ground that Since the approved plan, Annexure 'D', to the petition had the sanction of the Government of Sind, the Board of Revenue and the Master Plan Department of the K .D . A . , therefore, the Deputy.. Commissioner had no lawful authority to revise the same. The contention of the learned counsel further is, that there was a sixty feet wide road which separated the second petitioner's land from that of Eastern Builders Agencies Limited, the respondent No.2 in the case, but according to the revised plan prepared by the Survey Superintendent, the area allotted to the respondent No.2 now covers the road originally included in the petitioners land according to the first lay‑out plan. The learned counsel has further contended that the revision of the original plan without sanction of the Provincial Government in any case, is of no legal effect. Finally, it was contended in the alternative, that even if the Deputy Commissioner had lawful authority to revise the original 'plan, the same was done with mala fide intention in order to give advantage to the respondent No.2.

4. We do not find force in any of the contentions made by Mr. Fazle Ghani Khan. The Lay‑Out Plan, Annexure 'D' to the petition, shows that it was prepared only tentatively and all the parties concerned had agreed that the same was subject to adjustments later, therefore, the argument that this plan could not be revised is hard to understand. The contention that the sanction of the Provincial Government was necessary for the purpose has not been substantiated by Mr. Fazle Ghani Khan by placing any such material before us. Further, we have perused the order, dated 30‑5‑1985 passed by the Deputy Commissioner, Karachi and find that the same is based on proper reasoning, and has been passed after giving opportunity of hearing to all the parties concerned including the petitioner‑Society and taking all the relevant aspects of the case into consideration.

5. The next argument of Mr. Fazle Ghani Khan that the petitioner -Society could not be deprived of 60 feet wide road also carries little force as admittedly, the allottees of the land in question according to the initial Lay‑Out Plan, were getting land in excess of what was actually allotted to them by the Government. They, therefore, cannot have any legitimate claim over the excess land which was not allotted to them. The petitioner‑Society, therefore, could not be permitted to retain 26‑00 Acres of land instead of 20‑00 Acres actually allotted to it, by the respondent No.1.

6. Lastly, we do not find any mala fides in the preparation of the final plan or demarcation made by the Survey Superintendent or the final approval granted thereto by the Deputy Commissioner, Karachi and the Board of Revenue as the same was done keeping in view the respective claims of the parties over the land in question which could be legitimately advanced by them. We have observed that opportunity of hearing was provided to all the parties concerned who appeared before the Deputy. Commissioner, including the petitioner‑Society. Moreover, the fact that the petitioner was getting land in excess of its original allotment has not been disputed by Mr. Fazle Ghani Khan, the petitioner's counsel but his only grievance seems to be that for the revised demarcation of the land the sanction of the Government was necessary. He has, however, failed to place any material before us in support of such argument. We have further observed that the demarcation of the land has been carried out in a very, fair manner, regard being taken that each one of the allottees gets land according to the actual allotment thereof in their favour including the petitioner‑Society.

7. We, therefore, find no substance in this petition which is dismissed in limine. H . B . T . Petition dismissed.