1998 PLP 1073 (CLC)

HAMID ALI MIRZA, J.‑‑‑This is a Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 'filed 17y the petitioner Muhammad Asar Hussain wherein he has prayed: (i) To direct the respondents to perform their statutory duty of handing over the vacant, peaceful possession of the plot of land bearing No.A 141, Block‑L, North Nazimabad and allow to petitioner to start construction thereon according to approved plan: (ii) declare the show‑cause notice issued, dated 6‑5‑1990 by the respondent to the petitioner is illegal, unauthorised and of no legal effect; and (iii) direct the respondents to execute lease‑deed and get it registered at the costs of the petitioner. Brief facts of the case are that the petitioner filed a Suit No.1350 of 1967 before the I‑Senior Civil Judge, Karachi for declaration, cancellation and mandatory injunction against the respondent which suit was dismissed on 26‑4‑1986, against which Civil Appeal No.308 of 1982 was filed by him before the District Judge, Karachi which was heard and dismissed by learned Judge Small Causes Court and Ex Officio Additional District Judge, Karachi on 23‑8‑1986 against which Revision No.296 of 1986 was filed before this Court which was disposed of on 7‑6‑1987 with the following observations: "The result of the above discussions is that the Revision Application of the applicant is partly allowed and the judgment and decree of the lower Courts are set aside to the extent that the suit of the applicant for declaration that the cancellation of the allotment order in favour of the applicant and subsequent allotment to respondent No.2 are illegal and inoperative is decreed. The judgment and decree of the Courts below dismissing his suit for mandatory injunction directing the respondent No.l to accept the occupancy value and give up the possession of the plot of the applicant is maintained. As already pointed the respondent No. l is expected to discharge his statutory duties in accordance with law. However, the respondent No.l is at liberty to decide afresh if he so desires, after given show‑cause notice to the applicant, as to whether the applicant has committed any breach of any terms of the contract." Mr. Zafarullah Khan preferred an Appeal No.375‑K of 1990: 1996 SCMR 1804 before Supreme Court of Pakistan which was heard and dismissed on 30‑6‑1991 affirming the judgment passed by this Court in Civil Revision No.226 of 1986 with following observations viz: "We agree with the conclusions in the impugned judgment to the grant of discretionary relief of declaration only for reasons given by us above. We do not subscribe to and approve grounds given by the High Court in support of the conclusions, as reliance by the High Court on the case of Haji Noor Muhammad and another v. K.D.A. reported in PLD 1975 Karachi 373 is misplaced for three reasons. Firstly, in the reported case Constitutional petition was filed in the High Court, as such High Court exercised extraordinary Constitutional jurisdiction. Secondly, in the reported case possession of the plot was taken over by the petitioner and allotment as subsequently cancelled by K.D.A. on the ground that the petitioner had failed to raise construction within specified time. Thirdly; in the case under consideration before us, possession was not taken over by the plaintiff when his order of allotment was cancelled as such right in rem could not be claimed as was claimed in the reported case. For facts and reasons stated above, impugned judgment is maintained in terms aforementioned. We leave it open to K.D.A. to decide afresh whether plaintiff has committed any breach of terms of contract after giving him hearing. In the result, appeal is dismissed. " The petitioner thereafter filed Review Petition No.35‑K of 1991 before Supreme Court which was disposed of on 10‑9‑1991 in the following terms: "Petitioner, who is an Advocate and appeared in person at the time of hearing of appeal, seeks review of judgment, which is in his favour on the ground that he is entitled to specific performance of the agreement. Scope of review is limited which does not permit the parties to take‑up issues with the Court or seek rehearing. There is no ambiguity or equivocation in the judgment or any mistake apparent on the face of record requiring clarification. Last paragraph of the judgment reads as under:‑‑‑ 'We leave it open to K.D.A. to decide afresh whether plaintiff has committed any breach of terms of contract after giving him hearing'. " The petitioner after disposal of the Revision Application No.296 of 1986 by this Court, deposited a sum of Rs.1,605 towards the occupancy value of disputed plot through Pay Order No.E‑157279, dated 22‑6‑1987 ,issued by the National Bank of Pakistan, City Courts Branch, Karachi in favour of respondent K.D.A., the receipt of which was admitted by the Director Land Management Mr. Aftab Ahmed Qureshi in his counter affidavit filed in this Court in the contempt proceedings in Revision Application No.296 of 1986. Thereafter, the petitioner received a notice, dated 6‑5‑1990 from the respondent K.D.A. whereby he was called upon to show‑cause within seven days as to why his allotment of Plot No.A‑141, Block‑L, North Nazimabad, Karachi be not cancelled in default of payment of 40 % of occupancy value against which notice, the present petition was filed wherein the petitioners prayed for the relief reproduced above. It is admitted position that Notice No.15272/1154, dated 27‑3‑1962 was declared to be invalid, so also the cancellation of allotment and subsequent re‑allotment in favour of respondent Mr. Zafarullah was held to be invalid and illegal in Civil Revision Application No.296 of 1990 which decision was also upheld by the Supreme Court of Pakistan in Civil Appeal No.375‑E of 1990. It would appear from the above said notice that the petitioner was called upon to explain within seven days as to why his allotment of plot in question should not be cancelled because of his failure to pay 40 % of occupancy value within 30 days as per earlier notice which was received after expiry of time, consequently, the allotment made in favour of petitioner was cancelled and the plot in dispute was long thereafter allotted to the respondent Mr. Zafarullah even after the decision in the above revision application. The said earlier notice, dated 27‑3‑1962 was held to be no notice as no proper opportunity of hearing given to the petitioner, consequently the petitioner was placed in the same position, which he occupied before the receipt of the earlier said notice which notice was challenged in the suit and ultimately in Civil Revision Application No.296 of 1990 it was held to be invalid and illegal hence fresh demand as to 40% of occupancy value was to be asked for from the petitioner, in case he would have not paid 40 % of occupancy value within the prescribed period then only penalty with regard to the cancellation of the allotment could have been imposed. The respondent K.D.A. would not be legally entitled to initiate action on the basis of notice which was held to be invalid and illegal in Civil Revision No.296 of 1990 which decision was also affirmed by the Supreme Court of Pakistan and could not treat the then non‑payment of 40% occupancy value of plot as ground for cancellation of allotment by the petitioner after the decision given in said revision application by this Court. However, it has come on record that the petitioner has paid/deposited 40% of occupancy value, therefore, there could not be said to be any breach of the terms of contract which has been said in the impugned notice. Accordingly, we are of the view that the notice, dated 6‑5‑1990 is illegal and without jurisdiction and there could not be any breach of contract so far non‑payment of occupancy value is concerned. It has also been observed in the judgment of this Court in Civil Revision No.296 of 1990 that respondent No. l is expected to discharge its statutory duty in accordance with law which has also been affirmed by the Supreme Court of Pakistan, therefore, the respondent No. l being statutory body would act in accordance with law considering that the petitioner has paid 40 % of occupancy value of plot in question, hence the respondent No. l would put him in vacant peaceful possession of the plot in dispute and also grant lease and get it registered in his favour at his cost. Accordingly, we dispose of this petition with the above directions. In view of the above observations, Civil Miscellaneous Application No.644 of 1996 also stands disposed of. So far Civil Miscellaneous Application No. 1819 of 1997 which is a contempt application under section 4 of Contempt of Courts Act wherein the petitioner has alleged that the respondents/contemners in utter violation of status quo order of this Court have allowed some agents of Mr. Zafarullah, the subsequent allottee of the disputed plot of land, to occupy the said plot in spite of the requests and notices from the petitioner, no action has been taken by the said respondent K.D.A. Mr. Amir Raza Naqvi, learned counsel for respondent K.D.A. has stated that the said respondent K.D.A. has neither authorised any person to occupy the plot in the disputed nor has violated or disobeyed the order of this Court. There is nothing on record which supports the contention of the petitioner that the respondent K.D.A. asked the agents of Mr. Zafarullah to occupy the disputed plot, mere allegation of the petitioner would not prove itself when it has been denied by the learned counsel for respondent K.D.A. Accordingly, we find no merit in this application which 'is hereby dismissed. A.A./M‑272/K Order accordingly.