1978 PLP 307 (SCMR)

It appears that subsequent to this notification, pursuant to a policy decision taken by the Authority not to allot any area to the Authority claimed any Housing Society in Karachi that it reserved to it the right and discretion to allow or not to allow allotment contemplated by the Federal Government. The matter on being challenged in writ jurisdiction came up before this Court and it was held; ". . . the proper construction of the relevant provision of the statutory notification is that it leaves no unfettered discretion with the Karachi Development Authority and the allotment to the appellant‑Society could only be 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." It appears that after hearing the arguments in the above appeal, the case was adjourned so as to enable learned Advocate‑General appearing on behalf of the Authority to make a statement after enquiring from the Provincial Government, if it would withdraw the notification or otherwise modify it so as to relieve the Authority of the obligation to allot land to the Society. The Court was subsequently informed that the Provincial Government had no intention to withdraw or modify the notification and the Court issued direction in the following terms; "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 Govern ment, 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. Subsequent to the above judgment of this Court, the Provincial Government by two notifications dated 3‑10‑1968, 14‑10‑1968 purported to omit from the notification of the 9th June 1964 item (v) from paragraph 2(b), the avowed object being to relieve the Authority from its earlier obligation to allot area hitherto earmarked for it out of Scheme No.

24. The matter was again agitated in writ jurisdiction and brought to this Court. It was held that the purported omission of the item relating to the allotment of laud in favour eat the Society could not possibly defeat the right of the Society once declared by this Court. It was pointed out that the notification being the result of an executive decision could not operate retrospectively so a3 to deprive the Society of its right inhering in it under the notification of the 9the June 1964. The case was then remitted to the High Court under Order XLV, rule 15, C. P. C. for the enforcement of the judgment of this Court dated 13‑5‑1968 as clarified by its later judgment dated 20‑1‑1969. At this stage a fresh controversy started between the parties firstly, with regard to the extent of land to be allotted to the Society and secondly, the price payable therefore. It was canvassed on behalf of the Society that it was entitled to the entire area which was originally reserved for the Police Headquarters in Blocks 8 and 9 measuring 350 acres of land and that the price payable to the Authority should be the same as were current at the time when the initial allotment was made in favour of the Society. On behalf of the Authority the position taken was that in the changed circumstances it was not possible to allot land exceeding 177 acres which now comprised in Blocks 8 and 9 and that the price chargeable must be determined at the rates current today and not in the year 1964, when the original notification of 9th June 1964 was issued. It appears that in the High Court certain maps were produced by the Society tending to show that certain area has been carved out from the original Blocks 8 and 9 to constitute what are described as blocks bearing Nos. IS and 19 so as to reduce the area of Blocks 8 and 9 as originally delineated. On the first point, the High Court came to the following conclusion; "There can, therefore, be no manner of doubt that the area reserved for the Police Lines and Headquarters comprised of 350‑16 Ghuntas, as asserted by the petitioner‑Society. We, therefore, hold that the petitioner‑Society is entitled to the area of land to that extent." On the second point the finding of the High Court was that the Authority is bound to charge the same rates as were current on 9‑6‑1964, when pursuant to the direction by the Central Government notification approving Scheme No. 24 was issued by the Provincial Government. The Authority is aggrieved by both these findings and on the first point it is urged by Mr. S. M. Zaffar that the effect of the finding of the High Court is that the Authority is bound to allot 350 acres 16 ghuntas of land to society and that the Society now claims that if there is any diminution in the area, for any reason, the deficiency should be made from elsewhere. This question had come up for the consideration of this Court earlier and was disposed of by the following observations in its judgment dated 30‑5‑1968; "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 hats 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 . . . . . . . . It was represented, . . . . . . . . . . . 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 these allottees, the Urdu College had put up a building in Block No.

9. To the extent the building has been constructed, the . . . . . . . . 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 . . . . . . . . . Authority in any difficulties, if they honour the commitment made to the appellant‑Society." This excerpt from the judgment clearly defines the obligation of the Authority] for the relevant purpose that is to say at the area of 350 acres is only approximate and was to be allotted to the Society in what were then under stood to be Blocks 8 and 9 in the notification of 9th June 1964. The words, "the Land originally reserved for Police Headquarters namely Blocks Nos. 8 and 9" in the notification are significant and plainly refer to area reserved for the Police Headquarters out of what were then Blocks Nos. 8 and

9. Any variation in the area of the blocks because of any fresh survey or delineations of the blocks would not affect the rights or liabilities of the parties. On the ether hand, the Central Government's letter dated 14‑5‑1963 to the Provincial Government, required that the commitments of the former Government (which included the commitment to the Society) are to be "kept in view . . . . . . as far as practicable". The same was repeated in the Gazette notification of 9‑6‑1964. These words are permissive and militate against any claim for the full allotment of 350 acres odd as a matter of absolute obligation of the Authority. It was precisely for this reason, that cases of "physical impossibility" were excepted from the operation of the notification. There fore, it would be permissible to reduce the area to the extent of the built over area which had been duly allotted by Authority e.g. Urdu College. This is cited as illustration and there may be other cases also. Therefore, both under the terms of the original grant, as also on the interpretation of the relevant notification by this Court assurance for the allotment of 350 acres was not absolute in the sense of requiring the Authority to make up deficiency in the area on that account from some other area. The, impugned judgment of the, High Court does not say so expressly nor is it susceptible of that meaning. It cannot be imagined that High Court intended to hold otherwise which would have been in direct conflict with the tenor and substance of this Court's judgment dated 14‑5‑1968. As to the pi‑ice payable, the learned Judges in the High Court after con sidering circumstances of the case came to the conclusion that the price and the other charge payable by the Society for the land must be governed by rates prevailing on the 4th June 1964. S.M. Zaffar learned counsel for the Authority relied on the first, condition in the ‑it), of 9th Jun: 1964, which provides: "The Scheme shall be‑‑ (i) self‑financing the entire cost being recoverable from the allottees." It was argued that it was implicit in this provision that the price payable was' subject to variation depending upon, what would be the cost of development at the relevant time, it is, however, not controverted that the actual delivery of the area allotted has been delayed due to shifting positions taken by the Authority from time to time, which, to say the least, were not tenable and it would be inconsistent with equity, justice and good conscience to saddle the Society will, the additional burden for the commissions and omissions of the Authority. With the above observations, the petition is dismissed. Petition dismissed.