1989SCMR203 (PLP)

ZAFFAR HUSSAIN MIRZA, J.‑‑Mrs. Nikhat Khan, respondent No. 1 was allotted a plot measuring 1000 sq. yds. bearing No. D‑203, in Block No. 5, Clifton Scheme No. 5, Karachi, under the orders ‑of the Minister In charge as a special case. Respondent No. 1 after about 1 year once again made an application for allotment of another plot to the Minister In charge. Accordingly another plot measuring 600 sq. yds. bearing No. C‑5, in the same Scheme was allotted to her. According to the application forms prescribed by rules of the KDA, an applicant has to correctly disclose certain facts and agree that in case any such statements are found to be incorrect, the allotment is liable to the summary cancellation. It seems that in her subsequent application respondent No. 1 did not disclose the fact in the relevant column that she had already obtained allotment from the KDA of a plot in her name.

2. In the circumstances, when she applied for transfer of the subsequently allotted plot in favour of respondent No. 2, through a sale agreement, it was found that she had obtained double allotment in violation of the rules. Proceedings were accordingly taken and after hearing her plot No. 5, Block No. 9 was cancelled.

3. Respondent No. 1 challenged the order of cancellation through Constitutional petition in the High Court of Sind, which was allowed vide judgment of the Division Bench dated 21st October, 1985, holding that the cancellation of the plot in question was without lawful authority and‑ of no legal effect. Learned Judges of the Division Bench have taken the view that rule 7(2) of the KDA (Disposal of Land) rules 1971, under which action was taken merely provides, inter alias that a person owning a plot at Karachi shall not be eligible to apply for a plot under this rule but there is no provision for cancellation of the plot once allotted by competent authority.

4. By the present petition the KDA seeks leave to appeal from the judgment of the High Court and Mr. Ali Ahmed Fazeel has contended that the rules provide for disposal of the residential plots in the present scheme through public auction, therefore, the allotment of the plot in question was ab initio void. He further submitted that the Minister In charge was not competent to relax the rules which was the power of the Chief Minister to be exercised in extraordinary cases only. He also emphatically contended that the view taken by the Division Bench that there was no power to cancel the allotment, is erroneous because in the application form itself there is a provision for cancellation of allotment if any statement is found to be untrue and in the present case respondent No. 1 in her form had stated that she had not obtained allotment previously. Further, reliance has been placed on appendix to the rules which makes provision for cancellation of allotment.

5. Mr. Khalid Ishaque learned counsel appearing for the caveator/respondents, on the other hand argued that the governing body of the KDA in its meeting held on 16th September, 1979, had taken a decision to accept allotment orders passed by the Minister in which certain conditions regarding payment of occupancy value etc. had been fulfilled, even though the allotment was invalid. Mr. Ali Ahmed Fazeel, however, argued that the resolution was not applicable to the present case and does not save the allotment in question, which is palpably in violation of the rules and regulations.

6. After hearing the learned counsel for the ‑parties, we feel that the contentions raised in support of the petition require consideration. Leave to appeal is accordingly granted. Security for costs Rs. 5,

000. The appeal shall be prepared on the present record but it will be open to the parties to file additional documents, if any. The appeal shall be set down for early hearing. M.Y.H./K‑78/S Leave to appeal granted.