2007 PLP 2001 (YLR)

The petitioners have filed this petition seeking following reliefs: (a) Direct the respondent to issue allotment letter to the petitioner for 50 acres land in Scheme No.45 (Taiser Town) Karachi for which the petitioner has deposited a sum of Rs.1.00 million with the respondent on 28-2-1987. (b) Restrain the respondents from allotting any land in Scheme No.45 (Taiser town) Karachi to any one without first allotting land to petitioner in terms of hid entitlement and in satisfaction his claim to the said land for which advance payment was made as far back as on 28-2-1987. (c) Grant permanent injunction prohibiting the respondents directly or indirectly or through their officers, employees, agents, subordinates or any other person from taking any action which interferes with the rights and interest of the petitioner including but not limited to allotment of land in Scheme No.45 (Taiser Town) Karachi. (d) Grant any other relief(s) which, this Hon'ble Court deems just, fit and proper to the petitioner the circumstances of the case. (e) Award cost of the petition to the petitioners." Case of the petitioner, in nutshell appears to be that, the defunct KDA through public notice in newspapers dated September 1986 invited offer on prescribed format from reputable, established and financially sound builders and developers for allotment of land in a unit of 50 acres or multiples thereof in KDA Scheme No.45, Taiser Town. Last date for making such offer was 30-11-1986. Petitioner on 26-2-1987 applied for the allotment of one unit of 50 acres of land. Along with the application petitioner enclosed pay order of rupees One million. It seems that in 1996 Taiser Town was transferred to Malir Development Authority. Record shows that the petitioner made various representations for the allotment of land, which yielded no result. Ombudsman on complaint of the petitioner vide order dated 23-7-2002 directed the City Nazim "to redress the grievance of the complainant as per Rules and Regulations and report to him within 8 weeks hereof". It seems that even contempt before the Ombudsman bore no fruit. It was contended by the learned counsel for the petitioner that, the petitioner made an offer for the advertised land to the authority concerned. The amount demanded was deposited therefore, petitioner was entitled for the allotment of the land. Mr. Muhammad Akhtar, learned counsel appearing for the Malir Development Authority contends that, the offer was not accepted. The petitioner did not comply with the requirements of the conditions of the offer nor was it in time. It was argued that no binding contract, enforceable under law, came into being. It was further contended that though the land in Tasir Town was transferred to the Malir Development Authority, however, no amount, received by the KDA since defunct, was ever transferred to MDA therefore, they have assumed no liability on the part of the KDA as regard the subject land is concerned. He further contends that the petition is not maintainable and liable to be dismissed. Mr. Manzoor Ahmed learned counsel for the respondents Nos.2 to 4 also adopted the arguments of Mr. Muhammad Akhtar, Advocate. He further added that the amount received against the invitation to offer was refunded to those who had applied for the refund. It was stated that in case the petitioner had deposited any amount same could not be refunded since the petitioner did not approach the authority concerned. We have heard the arguments and perused the record. Invitation to offer published in newspaper was in following terms: "The builders and developers who fulfil the above conditions may submit their offer to Directors, Master Plan and Environmental Control Department, KDA, second floor, Civic 'Centre, Gulshan-e-Iqbal Karachi by 30th November, 1986 together with the following documents:-- (1) All necessary details about performance, experience, financial viability etc., as per format prescribed for the purpose. The format can be obtained on payment of Rs.50 from the Civic Centre branches of Habib, Bank, United Bank, National Bank and Allied Bank. (2) The application as per format should be complete in all respects as incomplete applications will not be considered. (3) The application should be accompanied by a pay order amounting to Rs.20 lacs for a unit of 50 acre applies for as Earnest Money. Those builders who want to apply for bigger parcels should enclose the pay order on proportionate basis. (4) This earnest money will be adjusted towards the cost of land and outer development charges fixed by KDA, in respect of those builders whose allotment is approved. For others, whose cases are not approved, the amount will be refunded immediately. KDA reserves the rights to accept or reject any offer without assigning any reason. On examining above terms it appears to be an invitation to offer by 30-11-1986. From Condition No.4 it is evident that amount received along with the application was to be treated as earnest money to be adjusted towards the cost of land and outer development charges fixed by KDA, in respect of those builders whose allotment is approved. For others whose cases are not approved the amount will be refunded immediately. From record it appears that the Pay Order No.PO-3/ 276966 dated 28-2-1987 drawn on United Bank Limited, Shaheed-e-Millat Road Branch, Karachi in the sum of Rs.1.00 million was paid under the covering letter dated 26-2-1987. Copy of the purported pay order (page 23) and acknowledgement on behalf of the KDA by the Additional Director (page 25) is on record. Petitioner candidly conceded that no formal approval of the petitioner's offer by the defunct KDA was received. It is admitted position that the binding contracts come into being only when offer made is accepted. In the instant case as per terms and conditions reproduced and narrated above it seems that invitation to offer per advertisement was subject to the conditions as narrated above. Condition No.4 clearly stipulated that the earnest amount is adjustable to the cost of the land and other development charges fixed by the KDA in respect of those builders whose offers are approved. In the instant case admittedly petitioner made an offer which was not accepted nor approval was granted. We are afraid that the petitioner was not able to convince us that any contract enforceable at law came into being. Therefore, relief as claimed in prayer clauses (a) to (c) as reproduced in the narrative above cannot be conceded to and is accordingly declined. When Mr. Manzoor Ahmed learned counsel for the CDGK, the successor of defunct KDA was confronted as to why the amount of rupees one million has not been refunded. It was contended that the petitioner never applied for the refund and in case any application is made, amount would be refunded, provided pay order was encashed. Condition No.4 of the invitation to offer also provided that those builders whose cases are not approved the amount will be refunded immediately. There is nothing on record to show that the amount has been refunded. Copy of the pay order and acknowledgement by the defunct KDA is available on record. Even order of Ombudsman shows that the KDA and MDA have admitted making of the application and payment of Rs. One million way ack in 1987. In case where the relief prayed for any reason cannot be granted and from the facts and circumstances of case it appears that the petitioner is entitled to some other relief this Court could, to advance cause of justice and to avoid multiplicity of proceedings grant such relief as justice may demand. Even the petitioner in prayer clause (d) has also prayed for "any other relief which this Honourable deems just, fit and proper to the petitioner in the circumstances of the case." We are not impressed by the contention of the learned counsel appearing for the CDGK that the amount deposited will be refunded provided the petitioner approach the authority concerned. In terms of conditions No.4 as reproduced above it was obligatory on the part of the defunct KDA since succeeded by the CDGK to have refunded the amount immediately when the offer of the petitioner was not approved. Petitioner is out of pocket of rupees one million .since 28-2-1987 and amount is in use of the CDGK. Petitioner was deprived of substantial sum of money without any just cause neither the plot was allotted nor the amount was refunded immediately. It is duty of the public functionaries to act fairly and reasonably. In the instant case conduct of withholding amount without any just cause cannot be approved of. Under given circumstances, we direct that the amount of Rs. One million be refunded to the petitioner along with markup at the rate of 6% from the date of deposit till payment. The amount with accrued markup be deposited with the Nazir of this Court within four weeks from the date of this order. On deposit of the amount same may be paid to the petitioner against proper verification and identification, without seeking any further order of the Court. When we passed the above order, Mr. Manzoor Ahmed stated that it is not ascertainable whether the pay order was encashed by .the KDA or not. Though no counter affidavit was filed disputing the above position. In the interest of justice order of deposit would be subject to confirmation of realization of the pay order by the KDA. City District Government Karachi has since succeeded and assumed all the obligations and liabilities of the defunct KDA, will be liable to deposit the amount as directed above, above- exercise should not take more than the time set out above. Petition stand disposed of in terms above along with pending application. M.B.A./S-45/K Order accordingly.