1991 PLP 1404 (MLD)

9. The case of the plaintiff, however, is that the question whether the K.M.C. had resumed the plot in question on account of the failure of the first defendant to fulfil the conditions of sale as contained in Rule 13 of the said Rules was not sub judice before the High Court and as such the said question is still open to be agitated before this Court in the present proceedings. The plaintiff claims that the first respondent had lost his licence to enter upon the plot auctioned in his favour on 29-6-1942 as the said defendant never raised any building on the said plot within the time of three years prescribed under the Rules or even thereafter. According to the plaintiff, the only right the first defendant had acquired after sanction of auction was on agreement to lease in Form `A' which could materialise into a lease only after the construction of the building by him. As against that the K.M.C. (defendant No.4) resumed the plot in question and transferred the same to the plaintiff after accepting the transfer price fixed by the controlling authority. The building plans were approved by the K.M.C. in favour of the plaintiff and ground rent was also accepted from him as owner with effect from 29-6-1942. Consequently, according to the plaintiff, the first defendant had no right, title or interest in the plot in question after 28-6-1945 or in any case after 3-4-1969 and hence the present suit.

10. The case of the plaintiff has been resisted by the defendants Nos. 1, 2 and 3, all of whom have filed their respective written statements. A written statement has also been filed by the defendant No.4, however, no relief has been claimed by the plaintiff against it and the said defendant has been impleaded only as a pro forma defendant. According to the case of the defendants Nos.1, 2 and 3, the property in question has been purchased by the defendant No.2 from the defendant No.1 vide a registered sale deed and the property has been duly mutated by the K.M.C., the defendant No.4 in favour of the defendant No.2 vide resolution No.2882 passed by the K.M.C. on 28-5-1979. According to the defendants, no title exists in favour of the plaintiff specially in view of the judgment passed by the High Court in C.P. No.208/65 which was subsequently confirmed by the Supreme Court. The defendants have also denied that the possession of the plot in question had remained with the plaintiff as, according to them, the same remained with the defendant No. 1 after 1942 and the same continued to remain with the said defendant till it was handed over to the defendant No.2 on transfer of the plot in her favour. Consequently, according to the defendants, the defendant No.2 is the rightful owner of the plot in question. The land stands mutated in her name and no mutation had ever taken place in favour of the plaintiff. It has also been denied that the plaintiff paid the land rent to the K.M.C. An objection has also been raised in regard to the proper valuation of the suit made by the plaintiff as, according to the defendants, the suit has been under-valued by the plaintiff. 10-A. According to the case put forth by the K.M.C. the plot in dispute had stood reverted to the K.M.C. as the defendant No.1 had violated the terms and conditions of the lease granted in his favour and the same was then regularized by it in favour of the plaintiff, subject to the payment of Rs.15 per square yard being its "upset price".

11. On the basis of the respective pleadings of the parties the following issues were framed by the Court:- "(1) On what terms and conditions defendant No.1 purchased the plot in question from the K.M.C. in auction and as to whether there has been any breach of the said terms and conditions. If so, what is its effect? (2) Whether the plaintiff constructed the building after making payment and after obtaining the permission of the K.M.C., in terms of the sanction and if so, what is its effect? (3) Whether the alleged sale made by defendant No.1 in favour of defendant No.2 through defendant No.3 is legal and binding on the plaintiff. If so, what is its effect? . (4) Whether the suit has been properly filed? (5) Whether the suit has been undervalued, if so, what it its effect? (6) Who was in possession of the suit plot after the alleged sale agreement with the K.M.C. (7) Whether the plaintiff has any legal title to the suit property as to entitle him to maintain the suit. (8) What should be the decree, if any?"

12. I have heard Mr. Khalil-ur-Rehman, learned counsel for the plaintiff and Mr. Hassan A. Shaikh, learned counsel for the defendant No.2. Both the learned counsel agree that the principal issue involved in the case is issue No.7 viz., whether the plaintiff has any legal title to the suit property to entitle him to maintain the present suit. If the decision on this issue goes against the plaintiff then the entire suit of the plaintiff fails. So far as the documentary and oral evidence on the point is concerned, admittedly, the plot in question had been allotted by the K.M.C. to the defendant No.1 after the auction of the plot held by the former vide entry made in the record of the K.M.C. dated 29-6-1942 (Exh.5/1). This entry further shows that the defendant was entitled to get 99 years lease executed in his favour if the defendant No.1 had constructed a building within a period of 18 months or any other extended period on the said plot in accordance with the .plan approved by the K.M.C. The lease was to end on the 25th September, 2008. Thereafter, vide letter dated 18-6-1946 (Exh.5/3) time for construction of the building on the plot was extended to 30-8-1947. However, admittedly, the building was not constructed on the plot by the defendant No.2 even within the extended period. This property was purchased by the plaintiff in the year 1964 from the Settlement Department and a P T D dated 31-12-1964 in respect of the suit property was issued in his favour. Thereafter, on the basis of the P.T.D., the property was also mutated in favour of the plaintiff in the record of the K.M.C., as is evident from Exh.6/2. Thereafter, when the plaintiff submitted a building plan to the K.M.C., for approval, an objection was raised by the latter saying that the plot in fact had belonged to it and the Settlement Department had nothing to do with the same. The K.M.C., however, gave option to the plaintiff to get the transfer regularised by it as had been done in the case of another plot purchased by one Mir Khalilur Rehman vide resolution No.1134 passed by the K.M.C. The plot could be regularised by the Commissioner Karachi as the controlling authority. Thereafter, a reference was made by the Chairman, K.M.C., to the Commissioner Karachi vide his letter dated 3-4-1969 (Exh.5/4) and the proposed regularization of the transfer was approved by the Commissioner Karachi vide his letter dated 7-4-1970 (Exh.5/6). The plaintiff was then asked to deposit Rs.15 per square yard as "upset price" for the plot as per Exh.5/5, which the plaintiff did vide challan dated 20-4-1970 (Exh.5/7). Thereafter, the building plan submitted by the plaintiff was approved by the K.M.C? on 12-8-1970 vide its letter of the same date (Exh.6/4) and the plaintiff then started construction of a three-storeyed building on the said plot in the year 1970-71. This factual position is clearly borne out by the evidence of P.W. Altaf Ahmed Khan, a clerk in the Land Department of K.M.C., Karachi and P.W. Salman Ashraf another witness examined on behalf of the plaintiff. P.W. Aftab Ahmed Khan has further confirmed that the plot in question was sold by the defendant No.1 to the defendant No.2 Mushtari Begum and on her application to the K.M.C., the transfer was approved by it. According to the witness, no notice or intimation regarding this transfer had been given by the K.M.C., to the plaintiff. Similarly, no notice was given by the K.M.C., to the defendant No.1 regarding the transfer of the plot in favour of the plaintiff. The witness further confirmed that no mutation was ever made in respect of the plot in favour of the plaintiff. According to the defendant No.1's witness Muhammad Bilal Shaikh, who also held a general power of attorney from the defendant, the K.M.C., had first extended the period of construction on the request of the defendant No.1 up to 1947 and. thereafter up to 30-9-1949. The defendant No.1 had first approached the Custodian and Settlement Authorities against the auction of the plot in question and subsequently he filed a Constitutional Petition (C.P. No.208/65) in this Court which was ultimately decided in favour of the defendant No.1 as he was declared by the Court as non-evacuee and the auction of the plot was declared to be illegal. The plaintiff in the case then filed an application for special leave to appeal (No.C.P.S.L.K-180 of 1978) but the judgment of this Court was upheld by the Supreme Court. Copies of the two judgments have been produced as Exh.D.W: 1/3 and D.W.1/4 respectively. D.W. Muhammad Bilal Shaikh also produced the conveyance deed of the property in favour of the defendant No.2 dated 14-9-1978 as Exh.D.W.1/6. The mutation made in the record of the K.M.C. in favour of the defendant No.2 has been produced as Exh.D.W.l/9. The letter of K.M.C. dated 28-1-1979 has been produced as Exh.D.W.l/10 as according to the witness Rai Sahib Roopchand was throughout in possession up to the time when it was taken over by the Settlement Department. The plaintiff started construction on the said plot in 1970 during the pendency of the Petition No.208/65 which was stopped by the Court during the pendency of the said Constitutional petition.

13. Mr. Khalil-ur-Rehman, learned counsel for the plaintiff has placed before me the relevant Rules under which the plot had been auctioned by the K.M.C. to the defendant No.1 and Rule 13 of the said Rules reads as follows:-- "13.

(1) The building to be erected on the plot, shall be of the class specified under rule 26 and in accordance with the conditions of the sale and shall be completed within 18 months from the date of the sanction of the Commissioner-in-Sindh to the sale of the plot, but the purchaser shall be entitled to an extension of this period by six months on payment in advance of a fee equal to one year's rent in addition to the rent ordinarily due. The building so constructed shall be used only for the purposes specified in the conditions of the sale. (2) If in any case the Standing Committee considers that there are exceptional circumstances justifying a further extension, the Committee may, by a resolution specifying the said exceptional circumstances, grant such further extension not exceeding one year, of the period within which the building is to be completed as may be necessary, subject to a further payment in advance of a fee equal to two years rent in addition to the rent ordinarily due, but the total period allowed for the completion of a building shall in no case exceed three years from the date of the sanction of the Commissioner-in-Sindh to the sale of the plot. (3) If the building is not built in accordance with the plan as finally approved under rule 27 and completed within the period of 18 months or any extension granted under this rule, the land shall be deemed to be resumed and the purchaser not be entitled to claim any refund of the purchase money and other amounts paid by him. The purchaser shall however be at liberty to enter upon and remove building and other materials belonging to him from the said plot within six months of the cancellation of the sale failing which such material shall belong absolutely to the Municipality. (4) On the purchaser completing the building in accordance with the foregoing rule within the period specified and in conformity with the terms of the agreement to lease he shall be entitled to a lease for a period of 99 years on terms and conditions mentioned in Form B. (5) In constructing the building the purchaser shall also comply with the provisions of the Municipal Act and Building Bye-laws in force for the time being." The contention of Mr. Khalil-ur-Rehman is that even assuming that the period for construction of a building was extended by the K.M.C. till 30-9-1949 but since admittedly no building was constructed by the defendant No.1 on the plot in question the plot automatically reverted to the K.M.C. and therefore the same had been rightly resumed by it. Mr. Khalil-ur-Rehman has further argued that Rule No.13 is to be strictly construed and consequently, notwithstanding the fact that the property had been declared by this Court as non-evacuee, the same could be validly transferred by K.M.C. to the plaintiff with the approval of the Commissioner Karachi which undisputedly had been granted in the present case. Mr. Hasan A. Shaikh, learned counsel for the defendant, on the other hand, has argued that notwithstanding Rule 13, the defendant No.4 was not empowered to allot the plot in favour of the plaintiff as the same had already been validly transferred in favour of the defendant No.1. It is pertinent to point out that admittedly no resolution had been passed by the K.M.C. cancelling the allotment in favour of the defendant No.1 or any show-cause notice had been given thereby to the said defendant before allotment of the plot in favour of the plaintiff.

14. A close look at Rule 13 shows that, although, a period of 18 months has been fixed by clause (1) of the said Rule for completion of a building on the plot, but this period could be extended by the K.M.C. on payment in advance of a fee equal to one year's rent or two years' rent in addition to the rent ordinarily due, as the case may be, the maximum period for which such extension could be granted being three years. Clause (3) of Rule 13 then provides that if the building is not built within the period of 18 months or any extended period the land shall be deemed to be resumed and the purchaser shall not be entitled to claim any refund of the purchase money and other amounts paid by him. Mr. Khalil-ur?Rehman has argued that the provisions of Rule 13, as suggested by their language, are mandatory and not merely directory. Consequently, according to him the resumption of the plot by the defendant No.4 was clearly within its powers vesting in it under Rule 13(3). No doubt, the conditions imposed by Rule 13(2) qua construction appear to be inflexible on account of the negative language in which the rule has been couched, but the action taken by the K.M.C. appears to be invalid on account of two reasons: Firstly, there was no resolution passed by the Governing Body of the K.M.C. in regard to the resumption of the plot in view, of the provisions of Rule

13. No doubt, a letter dated 3-4-1969 was sent by Chairman K.M.C. to the Commissioner Karachi requiring approval for regularization of the allotment in favour of the plaintiff and as is evident, the same was approved by the Commissioner and such approval was also communi?cated to the plaintiff vide letter of Land Manager, K.M.C, dated 7-4-1970. but Mr. Khalil-ur-Rehman has failed to offer any satisfactory explanation whether such a decision could betaken by the Chairman, K.M.C. in absence of the resolution of its Governing Body. Reference, no doubt, was made by the counsel to Resolution No.1134, dated 30-6-1965 but the same resolution was passed in respect of another plot and not the plot in question. Any regularisation or allotment of the plot by the Chairman without the resolution of the Governing Body therefore, could not confer a valid title in respect of the property on the plaintiff.

15. The allotment in favour of the plaintiff also appears to be invalid on account of the fact that the plot had earlier been allotted to the defendant No.1. No doubt, as pointed out earlier, the defendant No.1 had failed to construct a building on the plot in accordance with Rule 13 on account of which the allotment in his favour was liable to be cancelled by the K.M.C. It is, however, pertinent to point out that any adverse action against the defendant No.1 could not be taken by the K.M.C. without serving upon him a show-cause notice. The principle of audi alteram partem is well known. The same has to be read into every statute nothwithstanding the fact that no express provision in this regard exists therein. In my opinion, the plot could not have been allotted to the plaintiff without its cancellation first by a resolution of the Governing Body of K.M.C. and issuance of a show-cause notice, as just pointed out. The plot was mutated in favour of the' defendant No.1 and it continued to remain so till it was again mutated in favour of the defendant No.2 by the K.M.C. itself. Curiously enough, extension was also granted by the K.M.C. to the defendant No.2 vide its letter dated 1-1-1980 to construct a building on the said plot up to 30-6-1982. The plot also stands in the name of the defendant No.2 in the record of the Excise and Taxation Office 'B' Division Karachi and an extract from Form PT-1 has been produced in evidence as Exh. D.W./13. So far as the claim of the plaintiff is concerned, no doubt, the plaintiff appears to have constructed a building on the plot incurring a lot of expenses but for this the plaintiff has to blame himself as the plaintiff has failed to show a clear title in his favour.

16. In the result, issue No.7 cannot be decided in favour of the plaintiff. Unless there exists a clear title in favour of the plaintiff none of the prayers sought in the plaint can be granted in his favour. Consequently, it will be futile to refer to the other issues in the case.

17. The upshot of the above discussion is that the suit of the plaintiff is dismissed. The parties are, however, left to bear their own costs in view of the complicated issues involved in the case. H.B.T./A-1033/K ?????????????????????????????????????????????????????????????????????????????? Suit dismissed.