P L D 1969 Supreme Court 391 (PLP)

In limine by order, dated the 17th December 1965. It was held that the Karachi Development Authority had discretion to allot or refuse additional land asked for by the Society and that, in any event, the remedy of the Society was to approach the Provincial Government for redress. It was found that no remedy lay under Article 98 of the Constitution. A petition for special leave to appeal, from the order of the High Court, was preferred to this Court in 1966. In the meantime, however, the Central Government issued a letter, dated the 21st of December 1965, to the Provincial Govern?ment requiring that Government to see that the Karachi Development Authority honoured the commitments made by the Central Government in respect of allotment of lands under the Housing Scheme sanctioned by it and to adhere to the terms and conditions of the notification sanctioning the Scheme. In view of this fresh directive from the Central Government to the Provincial Government, the petition for special leave to appeal was dismissed as infructuous, on the 3rd of March 1966. On being approached by the appellants, however, the Karachi Development Authority adhered to its earlier decision and even corresponded with the Provincial Government to persuade it to withdraw its direction in respect of the Society. The Provincial Government, however, did not respond to that request. A press advertisement was issued by the Karachi Development Authority, indicating that allotments of plots in Blocks Nos. 7, 8 and 9 of Scheme No. 24 would be made to individuals. The appellants then filed another Writ Petition No. 386 of 1966 in the High Court of West Pakistan, Karachi Bench. They claimed that the directive, included in the notification of the Provincial Government and in the letter of the Central Government, did not leave an unfettered discretion with the Karachi Development Authority and asked for a directive that the conditions be fully honoured. The High Court, however, felt pressed by the fact that the earlier judgment of the High Court had not been set aside by this Court and it was held therefore that it precluded the learned Judges from taking a different view on the second petition. The petition was con?sequently dismissed. Leave to appeal was granted to consider the following questions:- "(i) Whether the directions given by the Central Govern?ment in their letter No. F. 3‑8/60, DHS, dated the 14th June, 1963, to the Provincial Government that their com?mitment to the petitioner for allotment of 350 acres of land for its housing scheme in Blocks Nos. 8 and 9 may be kept in view and accommodated as far as practicable, were, under section 13‑A of President's Order No. 6 of 1962, binding upon the respondents, (ii) Whether allotment of land to the petitioner‑society had become impracticable to justify refusal to honour the commitment made by the Central Government, and (iii) Whether a legal duty was cast on the respondent to allot 350 acres of land to the petitioner regarding which the Central Government had given their approval and, if so, whether that duty could be enforced by the High Court in writ jurisdiction." The notification of the West Pakistan Government appears at page 44 of the record. Paragraph 2 of this notification in sub‑para. (a) referred to certain allotments of land already made by the Government of Pakistan in the area covered by the Scheme, and it was directed that these allotments "shall be respected and earmarked by the Authority" accor?ding to the scales specified in that sub‑para. Sub‑para. (b) declared as follows:-- "(b) The following commitments of the Government of Pakistan may also be kept in view and the provision made for the following in the Scheme as far as possible:- (v) Works Co‑operative Housing Society, the land originally reserved for Police Headquarters, namely, Blocks 8 and 9." The question that falls for determination is whether this provision in the notification, conferred an absolute discretion on the Karachi Development Authority, to allot to or withhold allotment from the appellant or whether it was a restricted discretion. The first point urged by Mr. Brohi, on behalf of the appellants, is that the Governing Body of the Karachi Develop?ment Authority in discharging its functions, is to be guided, on questions of policy, by such directions as the Central Government may, from time to time, give, vide subsection (2) of section 4 of the Karachi Development Authority Order, 1957. Reliance was, therefore, placed on the letter issued by the Central Government to the Karachi Development Authority, appearing at page 68 of the record. This is dated the 12th of February 1960, and apparently at that time the Central Government could issue such a direction on matters of policy. Clause (3) of Article 4 of this Order declares that if a ques?tion arises as to whether any matter is a matter of policy or not, the decision of the Central Government shall be final. Under Article 11 of this Order, the Central Government has also power to sanction an outline programme of any Scheme submitted by the Karachi Development Authority, or to reject or to revise it. There is, consequently, force in the contention raised on behalf of the appellants, that the Central Government's directive contained in the letter, dated the 12th of February, 1960, to the effect that in respect of Government institutions and private organizations mentioned in para. 2 of this letter, Government had agreed, in principle, to allot land including a specified area to the first appellant and that these reservations should be kept in view while preparing the development of Site‑B‑1 area, was binding on the Karachi Development Authority. With the promulgation of President's Order No. 6 of 1962, the Provincial Government replaced the Central Government, as the controlling authority above the Karachi Development Authority, for purposes of sanction of Schemes, etc., and for giving directions on matters of policy. Mr. Brohi pointed out that under Article 11 of this Order, any direction given by the Central Government shall be deemed to have been given by the Provincial Government under the relevant pro?vision, as amended by this Order and shall have effect accord?ingly. It is, therefore, urged that the directive contained in the Central Government's letter must henceforth be regarded as one having the authority of the Provincial Government itself. This contention has force. Mr. Brohi also tried to press into service another letter, issued by the Central Government on the 14th June 1963, to the Provincial Government which conveyed the approval of the Government of Pakistan to the Town Expansion Scheme No. 24, framed by the Karachi Development Authority, at an estimated cost of Rs. 431 lacs; over a period bf five years, subject to certain conditions. The letter reiterated the commitments already made by Government for this Scheme and directed that the commitment to the Works Co‑operative Housing Society in respect of the land originally reserved for Police Headquarters, Le Blocks Nos. 8 and 9, be also kept in view and accommodated, as far as practicable, while imple?menting the Scheme. It is objected by the learned Advo?cate‑General, on behalf of the Province of West Pakistan, that this letter is of no avail to the appellants, as the statutory power for giving such directions had passed from the Central Government to the Provincial Government, with effect from the 27th of March, 1962, when President's Order No. 6 of 1962 was promulgated. Even if this objection be conceded to be valid, the position, in our opinion, remains the same as before, because of the notification issued by the provincial Government, at pages 41 and 42 of the record. It incorporated similar directives as had been formulated by the Central Government in its earlier letter. Mr. Brohi very rightly pointed out that in the written statement, submitted on behalf of the Karachi Development Authority in the High Court, the position taken was not that it had not been found possible to allot land to the appellant? society. On the contrary, a decision had been taken as a matter of policy not to allow any allotments to any Co‑opera?tive Society. In our opinion, the construction placed by the Karachi Development Authority on the direction contained in this notification with regard to the appellant‑society, was erroneous. It did not imply unfettered discretion in the Karachi Development Authority to completely ignore the appellant? society, even if it was physically possible to allot the land it had asked for and which had been specifically earmarked for it in the notification. The only way in which the request of the appellant could have been defeated was, if a case had been made out, that due to physical factors beyond the control of the Karachi Development Authority, allotment to the appellant‑society was no longer possible. This was not the plea raised, on behalf of the Authority, in the High Court or before us. The discretion, if any, conferred on the Karachi Development Authority in this respect by the Provin?cial Government's notification, was only confined to the power of refusal of allotment, in case it was found impossible as a physical fact to accommodate the appellant‑society. The matter of policy stood decided by the directive contained in the notification itself and it was not open to the Karachi Develop?ment Authority to depart from that decision of policy under?lying the commitment made to the appellant‑society by Government. It was represented, on behalf of the Karachi Develop?ment Authority, by the learned Advocate‑General that the authority had already allotted parts of the land, earmarked for the appellant‑society, to some private individuals and that out of those allottees, the Urdu College had put up a building in Block No.

9. To the extent the building has been con?structed, the Karachi Development Authority may no longer be in a position to allot the land under that building to the appellant‑society. But mere allotments on paper to others who have put up no construction so far, would not involve the Karachi Development Authority in any difficulties, if they honour the commitment made to the appellant‑society. All that may be necessary for the Karachi Development Authority to do, in the case of these other allottees, would be to return their deposits, if any. The learned Advocate‑General also suggested that the Karachi Development Authority was empowered under section 51 of the Karachi Development Authority Order, 1957, to make alterations in an improvement scheme after sanction by the Government and before it has been completed, subject to certain restrictions of a financial character. In our opinion this section provides no legal power to the Karachi Develop?ment Authority, which is a body subordinate to the Provincial Government, to disregard the conditions to which a notified sanctioned scheme is subject. Apparently, the alterations con?templated by section 51 are of the nature of adjustments required in a scheme, subsequent to its sanction, but cannot be construed to include within its scope, the reversal of matters of policy already settled by the sanction of Govern?ment, contained in a duly notified scheme. After hearing arguments in the case we reserved orders, so as to enable the learned Advocate‑General to find out from the Provincial Government whether they were prepared to withdraw the previous notification or to modify it, so as to remove the obligation of the Karachi Development Authority to allot land to the appellant‑society. The papers now sub?mitted show that the Provincial Government has not thought it fit to modify its earlier notification which stands in its full rigour as before. They have merely, however, expressed an opinion in a letter to the Advocate‑General that the relevant provision in the notification, left a discretion to the Karachi Development Authority to allot land to the appellant ?society or not. With this opinion we are unable to agree. As we have observed above, the proper construction of the relevant provision of the statutory notification is that it leaves no unfettered discretion with the Karachi Development Autho?rity and the allotment to the appellant‑society could only be B refused, so long as the notification stands intact, if it became physically impossible for the Karachi Development Authority to make the allotment, as originally contemplated. This is, by no means, the case. We, therefore, allow this appeal and issue a direction to the Karachi Development Authority that they should honour the commitment of the Government expressed in the notification of the Provincial Government, dated the 9th of June 1964, in respect of commitment to the appellant‑society, and not to depart from the direction given in that notification, so long as it stands intact. The parties will be left to bear their own costs in this Court. S. Q. ?????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.