2008 PLP 864 (CLC)

SABIHUDDIN AHMED, J.

The petitioner appears to be aggrieved by the letter of respondents Nos.1 and 2, dated 3-1-2004 refusing effect of mutation of a plot purchased by her father and subsequently, gifted to her.

2. Briefly, it may be stated that on 9-1-1971 an allotment order in respect of a plot of land was issued in the name of one Capt. Tariq Ahmed Malik by the erstwhile K.D.A. from the "Quota Reserved for Families of the Armed Forces Personnel". Possession was apparently, delivered to the allottee on 4-2-1971 and eventually a registered lease for a term of 99 years was executed by the K.D.A. in his favour on 12th July, 1971. Subsequently, through a registered sale-deed dated 30th October, 1977 the aforesaid Capt. Tariq Ahmed Malik transferred the plot in favour of petitioner's father, who, in turn, transferred it in favour of the petitioner through a registered gift-deed dated 31st May, 1979.

3. However, when the petitioner approached the K.D.A./respondent No.1 seeking mutation of the plot in her favour she was informed that it was allotted by GHQ out of Defence Quota and mutation could not be effected without N.O.C. from GHQ. She even approached GHQ but was required to submit a large number of documents including the original allotment order, payment receipts and pension book of the original allottee Capt. Tariq Ahmed Malik in whose favour the allotment was made more than 30 years ago.

4. Mr. Arshad Mohsin, learned counsel for the petitioner, contended that the petitioner was only bound by the terms of the registered lease-deed upon which the plot had been transferred to her predecessor-in-interest and it is apparent that none of the said documents, any condition regarding permission from GHQ was stipulated. Both learned Deputy Attorney-General and Mr. Manzoor Ahmed argued that it was common knowledge that certain quotas were reserved for Armed Forces Personnel in certain residential schemes/areas and further transactions could be made by allottees only with permission of GHQ.

5. Assuming that such system was to be followed it was important to ensure that such kind of a restriction to laid down in the instrument of transfer itself. Indeed, when the K.D.A. claimed to itself complete authority to allot plots and never stipulated such a condition in the registered lease-deed no such condition could be imposed. Moreover, it also needs to be considered how far such a condition having been imposed by a public authority without the backing of statutory provisions could stand the test of validity under Article 23 of the Constitution. Nevertheless, without going into the constitutional question since no law or provision of contract containing such a condition for transfer has been referred to, we could confine ourselves by declaring the impugned condition to be without lawful authority and of no legal effect. We would, therefore, direct the respondent No.1 to effect mutation subject to payment of all legal dues. H.B.T./Z-7/K Petition allowed.