1991 PLP 2042 (MLD)

(iii) Direct the defendants for leasing out the said plot to the plaintiff and alternatively on their failure to direct the Sub-Registrar or any other person on behalf of the defendants be directed to execute the lease of the said plot in favour of the plaintiff. (iv) Any other relief which this Honourable Court deems fit and proper in the circumstance of the case."

3. The applicants in. their written statement raised preliminary objections stating that the relief claimed is barred by sections 42 and 56 of Specific Relief Act, and the suit is hit by section 108 of Sindh Local Government Ordinance, 1979. According to them the respondent is an encroacher on K.M.C. land and mere payment of taxes or service charges does not confer any right of ownership over the encroached plot. It is denied that in the revised layout plan the plot in question has been shown as regularisable in favour of the respondent. The plot has now been commercialised as per revised layout plan of the area and since the respondent had not submitted any objection at that time he is estopped to agitate at this stage. It is averred that the respondent had no vested right on the plot as he is neither their lessee nor licensee. Besides commercialised plots can only be disposed of by public auction and cannot be leased out to any individual other than by way of general public auction.

4. On the basis of the pleadings of the parties the following issues were framed:-- "(1) Whether the action of the defendant in commercialising the plot of the plaintiff it legal and in accordance with principles of natural justice? (2) Whether the suit premises are regularisable in favour of the plaintiff in accordance with the plan prepared by K.M.C.? (3) Whether the plaintiff has got vested rights on the suit plot for the purpose of lease as per lease policy adopted in respect of Lyari Quarters for-leasing out the pots to their occupants? (4) Whether the K.M.C. has leased out other plots in the same locality to their occupants? (5) What should the decree be?"

5. The respondent examined himself; whereas K.M.C. had produced one Muneer Akhtar, Assistant Director Lands, K.M.C. in support of their case. ISSUES NOS. 1 and 2.--The contention of Mr. S.M. Muslim Naqvi is that in view of Resolution No.2555 dated 1-3-1978, commercialisation of the plot had taken place, whereafter, publication in the daily Jang dated 23-7-1991 took place, requiring filing of objections for commercialisation of the plot. It is thus contended by him that despite publication of notice, no objection was lodged by the respondent and therefore, his claim over the rights in the land is untenable. It is an admitted position that the land in question is situated in Miranpir, so also it is a fact that the applicant had allocated/leased out the land in this area in favour of other persons. What Mr. MA.M. Namazi pointed out was that the applicants themselves violated their own rules and failed in their statutory duties. It is also not a case where a commercial plot can be disposed through open auction as alleged. First of all learned counsel for respondent brought to my notice the very Resolution No.2555 dated 1-3-1978, the heading whereof reads as follows:-- "The approval of regularization plan of Lyari and other Katchi Abadis of Karachi Metropolitan Corporation:" There is also nothing to show that any amendment or revision in the original plan was sought as claimed by the applicant. There is also nothing in the resolution for commercialisation of the plot in question. The obvious object of passing the resolution was. to regularise certain localities including Miranpir, where the plot of the respondent is situated. According to him, there is no clause in the resolution referring to revising, amending or commercialising of the locality. It is for this reason that despite Court's order dated 21-2-1983, D.W. Mr. Munir Akhtar failed to produce any revised layout plan in respect of the locality. The reason for non-production of the revised layout plan was that either it did not exist at all or this suit plot was still shown residential in the revised layout plan. Reference was then made by the learned counsel to P/5 being publication of notice appearing in the daily Jang dated 23-7-1981. It was pointed out that this notice on the face of it is bad in law as it speaks of commercialisation of the plot having already taken place. As to how, when and in what manner commercialisation has taken place no details whatsoever are given therein or brought on record, although D.W. Munir Akhtar in his deposition stated that whatever be the nature of the plot, whether it be residential or commercial, applicant prepares original layout plan, amended layout plan or revised layout plan. However, the applicant despite required to produce revised layout plan in respect of the locality has failed to do so and as held in Raja Akhtar Choudhry v. Jammu and Kashmir Government P L D 1982 SC (AJ&K) 124, an adverse presumption can be drawn as to the existence of documents. It is also an admitted position that in spite of specific direction given by the Court to the applicant, they have failed to produce relevant papers in respect of regularisation of other plots in the same locality and, therefore, inference may be drawn against them under section 129(g) of the Qanun-e-Shahadat. The applicant did not adopt any procedure for commericalisation of the plot for approval of revised layout plan. No notice whatsoever was given to the respondent about the commercialisation of the plot, burden of proof of which lies heavily on the shoulders of the applicant. The applicant has failed to discharge their burden. Next comes the question of the respondent claiming lease of the portion of the plot in his possession. It is not disputed by the applicant that the respondent purchased the plot on 23-5-1981 from one Haji Ali together with structures thereon. The applicant has produced declaration deed Ex.P-2, P.T.1 issued by Excise and Taxation Department being Ex.P-3, Electricity Bill Ex.P-6. It is also a matter of record that the applicant on the basis of P.T.1 (P-3) mutated the property in the name of the respondent vide Ex.P-4. The respondent had also applied to Lyari Lease Office for issuance of lease of plot in dispute in his name. Admittedly Plots Nos.234 and 235 were regularised and leased out by applicant to various persons. Mr. Munir Akhtar, Assistant Director Lands, Lyari Zone, K.M.C., in his position has stated that K.M.C. used to auction the vacant plots but it used to regularise plots occupied by occupants of plots namely 234, 235, 226, 229, 235-A, 235-B which are in one row in the same locality and adjacent to the plot in question. It is also admitted by him that Lyari commercial plots were leased out on basis of physical possession. It is also admitted by him that the applicant was issuing lease on the basis of record of Excise and Taxation Department. Mr. M.A.M. Namazi pointed out that there is a specific procedure prescribed for regularisation of unauthorised possession of the occupants under section 13 of the Sindh Peoples Local Council's (Land) Rules, 1975 which runs as follows:-- RULE 1.--Where a large number of plots are under unauthorised occupation or are held without regular title, or structures are raised thereon in an unplanned manner and without lawful authority the Council may, and if required by the Controlling Authority shall prepare a layout plan marking out suitable plots of such size as it may consider best suited to the locality or areas. RULE 5: -The unauthorised occupation of plots may, subject to conditions prescribed in these rules and on payment of occupancy value and development charges in lump sum, be regularised, by granting lease in respect of such plots to the extent and size as may be permitted by the sanctioned layout plan. It was urged that the applicant has admitted the rights of the respondent over the suit plot and under the circumstances, the respondent is entitled to lease of the suit plot in his favour. I agree with Mr.S.M.Muslim Naqvi, learned counsel for the applicant that there is nothing to show that the respondent has acquired vested rights in lease of the portion of plot in his possession, but at the same time bulk of evidence as well as the rules under the Sindh Peoples Local Council's (Land) Rules, 1975 lend support to the respondent's case that even as unauthorised occupant, the respondent has the right to be considered by the applicant for lease in respect thereof subject, however, to rules and conditions prescribed by the applicant thereunder. The applicants admittedly have not considered the respondent's case for lease which may be considered by them object, however, to the rules and conditions thereunder. With regard to the respondent's prayer for injunction reliance was placed on A I R 1941 Lah. 200, in which it was held that where the Municipal Committee acts in a capricious, oppressive, unreasonable arbitrary or partial manner, a Civil Court can under section 55 of the Specific Relief Act, issue injunction to Municipal Committee even in cases where section 45 of that Act does not apply. In view of the facts and circumstances of the case particularly keeping in view the admitted position that the applicant had leased out other plots in the same locality to others, I am of the view that the learned Additional District Judge rightly granted injunction to the respondent and hence there is no justification for interference with his order. In the result, I partly allow the revision but with no order as to costs. A.A./K-258/K Revision allowed.