2006 PLP 611 (CLC)

GULZAR AHMED, J.--This suit has been tiled for specific performance, possession and permanent injunction. Defendant No.2 has filed an application under Order VII, rule 11, C.P.C. (C.M.A. No.3770 of 2004) for rejection of the plaint on the ground that plaintiff has no cause of action for the suit. No counter-affidavit to this application has been filed. The facts in brief as alleged in the plaint are that the plaintiff is a General Attorney of Muhammad Iqbal son of Barkat Ali and 49 others in respect of Plots Nos.1 to 50 situated in Saifal Choro Goth, Deh Bhitti Amri, Tapo Gujro, Sector-54-A, Na-Class No.5, Scheme No.33, Karachi having been granted Sanads in respect of land measuring 16 acres under Sindh Goth Abad (Housing Scheme) Ordinance, 1987 (Ordinance IV of 1987) by the Mukhtiarkar, Goth Abad Scheme Karachi and the Additional Deputy Commissioner, Karachi East vide order No.SGAS/155/1993 dated 29-4-1993. It is further alleged that on promulgation of Sindh Government Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001 (Ordinance III of 2001) the Sanads stood cancelled and the plaintiff by letter, dated 26-3-2003 addressed to the defendant No.1 requested for regularization of the land measuring 16 acres after payment of differential value as worked out by the Committee under the Ordinance. It is further alleged that the Committee worked out the loss amount at Rs.80,00,000 in respect of the said 16 acres of land and accordingly the said and was offered to the plaintiff by letter, dated 11-11-2003 wherein defendant No.1 called upon the plaintiff to communicate his acceptance to which the plaintiff gave his acceptance. It is alleged that on such acceptance a contract for regularization of allotment of 16 acres of the said land stood concluded between the parties. There is allegation regarding implication of the provisions of the Ordinance III of 2001 vis-a-vis. The said letter of offer dated 11-11-2003 of the defendant No.1 and then it is alleged that though the Committee has computed the differential value but its challan has not been issued by the defendant No.1 on the plea of a ban imposed by the Government. Then reference is made to Suit No.189 of 2004 of Sindhi Momin Cooperative Housing Society Limited and Constitution Petition No.D-526 of 2003 filed by Muhammad Basheer and 74 others and it is alleged that because of delay in issuance of challan and regularization of the allotment of the land in question in the name of the plaintiffs, the .defendant No.2 has illegally encroached upon the land of the plaintiff while encroaching upon the land of the said Sindhi Momin Cooperative Housing Society. It is alleged that the cause of action arose to the plaintiff on 24-2-2004 when the staff of the defendant No.2 with active connivance of the Revenue Officers and law enforcement agencies illegally and unlawfully trespassed the land of the plaintiff along with the land of Sindhi Momin Cooperative Housing Society and hurriedly constructed a boundary wall around the entire area and continues from day to day thereafter. The suit herein was filed on 19-3-2004 with the following prayer:-- (a) For specific performance of the offer and acceptance maturing into a concluded contract between the plaintiff and the defendant No.1 for issuance of challans for payment of the differential value of Rs.80,00,000 as determined by the Committee formed under Ordinance III of 2001 and regularization of allotment of the land measuring 16-00 acres situated in Saiful Choro Goth,, Deh Bhitti Amri, Tapo Gujro, Sector 54-A, Na-Class No.5, Scheme No.33, Karachi, in the name of the plaintiff (b) For mandatory injunction directing the defendant No.1 to comply with the provisions of Ordinance III of 2001 and pass appropriate orders for issuance of challans for payment of the differential value in respect of suit-land as determined by the Committee and to pass final orders of regularization of the allotment of the land measuring 16-00 acres situated in Saiful Choro Goth, Deh Bhitti Amri, Tapo Gujro, Sector 54-A, Na-Class No.5, Scheme No.33, Karachi, in the name of the plaintiff as offered vide letter No.04-37-02-DS-I/413, dated 11-11-2003. (c) For perpetual injunction restraining the defendant No.2 from interfering in the peaceful enjoyment by the plaintiff of the abovesaid land measuring 16-00 acres situated in Saiful Choro Goth, Deh Bhitti Amri, Tapo Gujro, Sector 54-A, Na-Class No.5, Scheme No.33, Karachi, and from allotment of the sub-divided plots as industrial plots. (d) For damages against the defendant No.2 for wrongful occupation and illegal possession of the suit-land and depriving of the plaintiff of lawful possession of the above said land for construction of their residential houses. (e) Any other relief, which under the circumstances of the case, this Honourable Court may deem fit and proper. (f) Cost of the suit be also awarded to the plaintiff. Mr. Shahnawaz Awan, learned counsel for the defendant No.2 has contended that the alleged ailottees under the Goth Abad Housing Scheme have not been made party in the suit and no contract as is alleged in the plaint was made nor it could have been made. He has stated that there is no application of the Ordinance III of 2001. Mr. Abbas AN, learned A.A.-G. has supported the application and has contended that the plaintiff has no right of his own in the land in question and that the allegation of allotment under the Goth Abad Housing Scheme is altogether untenable and that Annexure "B" to the plaint which is a letter dated 11-11-2003 of the Secretary to the Government of Sindh, Land Utilization Department is altogether illegal. In support of his submission he has relied upon the case of S.M. Shall Ahmed Zaidi v. Malik Hassan Ali Khan 2002 SCMR

338. On the other hand Mr. Khalil-ur-Rehman, learned counsel for the plaintiff has contended that the allottees of the land are mentioned in the irrevocable general power of attorney filed as Annexure "A" with the plaint and that the letter, dated 11-11-2003 is in accordance with law as the Sanads issued under the Goth Abad Housing Scheme to the allottees were cancelled under the Ordinance III of 2001 and the offer of the land to the plaintiff was justifiably made but as challan was not issued, therefore, the plaintiff filed this suit. In support of his submission he has relied upon the case of the Commanding Officer National Logistic Cell v. Raza Enterprises SBLR 2003 Sindh

43. I have considered the arguments of the learned counsel and have gone through the record. It may be noted that the plaintiff's case is that he is an attorney of 50 allottees under the Sindh Goth Abad (Housing Scheme) Ordinance, 1987 (Ordinance IV of 1987) who are named in the irrevocable general power of attorney and on promulgation of Ordinance III of 2001, the allotments of the said allottees were cancelled and subsequently, the plaintiff made a representation to the defendant No.1 who issued the letter, dated 11-11-2003 offering the plaintiff to pay an amount of Rs.80,00 000 as difference in value of the said 16-00 acres of land which offer was accepted by the plaintiff but the challan for its payment has not been issued. In the first place the point that needs to be considered in this case is whether the Ordinance III of 2001 at all has application to the purported land of 16-00 acres alleged to be granted to the allottees under the Ordinance IV of 1987 and consequently the letter dated 11-11-2003 is at all legal document. The general power of attorney shows the allotment of land to the allotees as follows: S.No. Name of Allottees Plot No. Area in Sq. yards 1 Muhammad Iqbal 1 800

2. Sadiq Hussain 2 1033

3. Gulzareen 1022

4. Suhail Ahmed 4 1372

5. Muhammad Yousuf Rangoonwala 5 1363

6. Sabina Shoaib Rangoonwala 6 1445

6. Waseem 7 1461

8. Shahnaz Mahmood 8 1456

9. Muhammad Hanif 9 1392

10. Sabeen Shoaib 10 1048

11. Haseeb Ahmed 11 1472

12. Abdul Nasir Rangoonwala 12 14)4 --

13. Muhammad Shoaib Rangoonwala 13 1440

14. Ahmed Rangoonwala 14 1488

15. Naseem 15 1435

16. Jamila Bano 16 1073

17. Ameerzada 17 1016

18. Muhammad Zubair - t8 1450

19. Abu Bakar 19 1200

20. Rukhsana Abu Dakar 20 1050

21. Muhammad Saleem 21 1018

22. Muhammad Shoaib 22 1041

23. Raheela Zubair 23 1431

24. Amina Bano 24 1477

25. Rhatija Yousuf 25 1384

26. Dawood Qasim 26 1430 27 Farzana 27 1417

28. Muhammad laved 28 1400

29. Samina Salem 29 1520

30. Muhammad Yaqoob 30 1464

31. Samina 31 1397 32 Bukhsh Salam 32 1500

33. Taib Khan 33 1420

34. Naglima Nabi Ahmed 34 1446

35. Sabha Nabi Ahmed 35 1150

36. Naki Nabi Ahmed 36 1070

37. Rubina Sultan 37 1275

38. Kamran Nabi Ahmed 38 1400

39. Nafees Nabi Ahmed 39 1600

40. Naveed Naki 40 1044

41. Junaid Naki 41 1076

42. Samina Sultan 42 1000

43. Mansoor Ahmed 43 800

44. Rubina Nafees 44 800

45. Nabi Ahmed 45 1200

46. Zamir Ahmed 46 1666

47. Mazhar Hussain 47 1666

48. Mehtab Hussain 48 1666

49. Homan Ahmed 49 1666

50. Mashkoor Ahmed 50 1666 It may be noted that neither these allottees have been joined as plaintiffs in the suit nor the letter of allotment dated 29-4-1993 is attached with the plaint. Copies of the Sanads purported to have been issued to these allottees have also not been filed with the plaint. The Ordinance IV of 1987 in its preamble provides that "whereas it is expedient to make provision for housing facilities to the deserving persons in the rural areas of the Province of Sindh and to provide for matters connected or ancillary thereto". Its subsection (3) of section 1 provides that "It shall apply to all rural areas in the Province except the rural areas as may be excluded by Government, from the operation of this Ordinance, by notification in the official Gazette". Its section 3 provides that "subject to the other provisions of this Ordinance the Collector may on the recommendation of the Allotment Committee all land not exceeding two Ghuntas for construction of a house to a deserving person in which he ordinarily resides free of cost in such manner and such terms and conditions as may be prescribed. Now it is stated that on the promulgation of Ordinance III of 2001 the Sanads of all these allottees were cancelled. The preamble of Ordinance III of 2001 provides that "Whereas it is expedient to provide for cancellation of certain allotments, conversions or exchanges of urban State land obtained or granted for residential, commercial or industrial purposes at rates lower than the market value in violation of law or ban from 1-1-1985 and to provide for matters connected therewith or ancillary thereto". Its section 3 provides that "Notwithstanding anything contained in any law for the time being in force or any agreement or judgment or order of a Court but subject to other provisions of this Ordinance, the allotments, conversions or exchanges of urban State land obtained or granted for residential, commercial or industrial purposes at the rates lower than the market value in violation of law or ban from 1-1-1985 shall stand cancelled". The reading of the provisions of the two Ordinances makes it clear that the Ordinance III of 1987 has its application restricted only to the rural areas of the Province of Sindh while Ordinance 11I of 2001 has its application only to the urban areas of the Province of Sindh. Secondly as noted in section 3 of the Ordinance IV of 1987, the allotment is restricted to two Ghuntas of land and it is to be made free of cost. The land as is alleged to be allotted to each of the above named 50 allottees is much in excess of two Ghuntas of land (two Ghuntas of land is approximately of 220 sq. yds.) section 3 of Ordinance III of 2001 provides that such of the property in the urban area will stand cancelled whose allotment was made at rates lower than market value and in violation of law or ban from 1-1-1985. The land under Ordinance IV of 1987 on the other hand was to be allotted free of cost. Thus, there was no question about the rates or market value. From the above discussion, it is clear that in the first place there is no prima fade evidence of allotment of land to the allottees and even if there be so, the same is altogether contrary to the Ordinance IV of 1987 and there is no application of Ordinance 111 of 2001 to the land under the Ordinance IV of 1987. The whole case. of the plaintiff as per allegation made in the plaint is based upon the letter, dated 11-11-2003 of the Secretary, Land Utilization Department which refers to the plaintiff obtaining general power of attorney from the Sanad holders under Sindh Goth Abad Housing Scheme to whom allotment was made much below market price which was cancelled under Ordinance III of 2001 and pursuant to the provision of Ordinance III of 2001 the Committee has worked out loss amount of Rs.8,000,000 and offered the same land to the plaintiff. The date of decision of the committee is not mentioned nor its copy is filed. As discussed above, the letter, dated 11-11-2003 as it reads('?) is itself contrary to law having no basis to stand on. The relief claimed by the plaintiff in the suit is based upon this letter which the plaintiff has labelled as contract between himself and the defendant No.

1. The alleged contract is nothing but farce and altogether illegal on which no relief can at all be granted. It is not alleged in the plaint as to how plaintiff himself acquired his own interest in the plots from that of allottees. Obviously, through more power of attorney, the plaintiff cannot claim his own interest in the plots in question. Power of attorney itself is not a document of transfer of property nor a document of conveyance nor even an agreement of E selling the property. It is a document of agency in which the donor is the principal while the attorney an agent. The agent himself cannot claim ownership right of his own in the property of his principal merely on the basis of agency document. The plaintiff therefore, cannot maintain the suit in his own name. The result of the above discussion is that the plaintiff has no cause of action to maintain this suit and, therefore, the plaint is liable to be rejected by allowing application under Order VII, rule 11, C.P.C. Above are the reasons for the short order dated 19-1-2006 by which the application under Order VII, rule II, C.P.C. (C.M.A. No.3770 of 2004) was allowed and the plaint was rejected. S.A.K./M-30/K?????????????????????????????????????????????????????????????????????????????????????????????? Plaint rejected.