2004 PLP 1161 (YLR)

28. The first document mentioned by the plaintiff in paragraph 8 of the plaint is Order dated 1-5-2000 in Suit No.835 of 1997. This suit was filed by a private person against interference with the peaceful possession and ownership of Plot No.62. To resolve the dispute, Official Assignee was appointed commissioner to inspect the site and submit his report. The Official Assignee, with the assistance of Naval Hydrographer, prepared his report. The report of the Naval Hydrographer clearly mentioned that Plot No.62 does not fall within the limits of K.P.T. This document does not, in any manner, establish ownership or title of K.P.T. over the disputed land. On the contrary, the claim of K.P.T. was declined and its stand was rejected in respect of one of the plot lying in close proximity with the plot which is subject matter for this suit.

29. Similarly, the reference of Official Assignee in H.C.As. Nos.182 and 183 of 2000 was also in respect of plots other than the plot in dispute in this case. This also does not confer any ownership rights on K.P.T. in respect of the suit plot.

30. Similarly, the report of the Naval Hydrographer was also in respect of Plots Nos.62 and 63 and not in respect of Plot No.64. The maps which were used by the Naval Hydcographer for this purpose were prepared in the year 1926 and the High Water Mark, determined by the Naval Hydrographer is in conformity with the said Maps. It shows that Plots Nos.62 and 63 are on the other side of the High Water Mark and on higher altitude than the plot which is situated below the High Water Mark forming part of the river bed.

31. The plaintiff been asking for proof of ownership of K.P.T. over the plot and K. P.T. claimed title on the basis of the documents mentioned above. This statement of the plaintiff indicates that the plaintiff was also not aware of the title when he entered upon the land. K.P.T. has also not come forth with the specific document conferring title.

32. In addition to this in the letter dated 2nd September, 2002, written by the plaintiff to General Manager, K.P.T., (annexure "U" to the plaint) in the subject of the letter the plot has been referred to as "Plot No.64 at the Estuary of River Lyari, Mauripur Road" and in the same manner, the letter dated nil No. E/L/EA I/MP/PLOT-64 of 2001, (Annexure M to the plaint) refers to the plot as "at Estuary of River Lyari, Mauripur Road." This admission on the part of both the plaintiff as well as K.P.T. also suggests that the plot in dispute is situated at, and not along, the Estuary of River Lyari. It is of utmost importance that the area "Mauripur Road" or "Lyari River" is not mentioned anywhere in the lands earmarked to K.P.T. vide Annexures W-1 and W-3 with the plaint.

33. On the other hand, learned counsel for the contesting defendants rely on section 50 of the Land Revenue Act, and Article 172 of the Constitution which speak about the ownership of forests, quarries and wastelands and ownership of ownerless property respectively.

34. Section 50 of the Land Revenue which, speaks about presumption as to ownership of certain lands reads as under:-- "

50. Presumption as to ownership of forests, quarries and wastelands.

(1) When in any record of rights completed on or before the eighteenth day of November, 1871, in territories where the Punjab Land Revenue Act, 1887 (Punjab Act XVII of 1887), was, with or without modifications, in force immediately before the commencement of this Act, or completed on or before the seventeenth day of July, 1879, in territories where the Bombay Land Revenue Code, 1879, (Bombay Act V of 1879), or the Sindh Land Revenue Code (Sindh Act V of 1879), was so in force, or any unclaimed, unoccupied, deserted or wasteland, or any spontaneous produce or other necessary interest in land belongs to the landowners, it shall be presumed to belong to Government.

2. When in any record of rights completed after the eighteenth day of November, 1871 or the seventeenth day of July, 1879, as the case may be, it is not expressly provided that any forest or quarry or any such land, produce or interest as aforesaid, belongs to Government, it shall be presumed to belong to the landowners concerned.

3. The presumption created by subsection (1) may be rebutted by showing: (a) From the record or report made by the Assessing Officer at the time of assessment. (b) If the record or report is silent, then from a comparison between the assessment of villages of similar character in which there did not exist, any forest or quarry, or any such land, produce or interest, that the forest, quarry, land, produce or interest was taken into account in the assessment of the land revenue.

35. Article 172 of the Constitution reads as under;-- "

172. Ownerless property.

(1) Any property which has no rightful owner shall, if located in a Province, vest in the Government of that Province, and in every other case, in the Federal Government.

2. All lands, minerals and other things of value within the continental shelf or underlying the ocean within the territorial waters of Pakistan shall vest in the Federal Government. Until the presumption is rebutted, the forest, quarry, land, produce or interest shall be held to belong Government. "

36. The contention of Mr. Mushtaq Memon, learned counsel for the plaintiff that Land Revenue Act does not apply to the lands of K.P.T. as K.P.T. is a Federal subject is misconceived as mere declaration of limit, ipso facto, does not mean that all lands falling within the limits of a local authority which is the subject-matter of the Federal Government would be excluded from the operation of the Land Revenue Act. For the purpose of exemption of certain lands from the operation of any or all the provisions of the Land Revenue Act, it is mandatory that a Notification be issued by the competent authority granting such exemption. Section 2 of the Land Revenue Act clearly provides that the Act, applies to the whole of West Pakistan except the Tribal area. As no such notification has been produced and the legal effect of limits of K.P.T. requires to be examined.

37. At the same time, much emphasis has been laid by Mr. Mushtaq Memon, learned counsel for the plaintiff, on the limits of the Port of Karachi with reference to the High Water Mark, which also requires examination.

38. Section 3 of the K.P.T. Act empowers the Federal Government to define and alter the limits of Port, which reads as under:--

3. Government may, by notification in the official Gazette: (a) Define the limits of the Port for the purpose of this Act; and (b) from time to time alter such limits. Such limits may extend to any part of the navigable approaches to the Port, and may include any wharves, tramways, warehouses sheds and other works made on behalf of the public for convenience and good governance of the Port, whether within or without high-water mark and subject to any rights of private property therein, any portion of the shore within fifty yards, of high water mark."

39. From a bare perusal of the above quoted section 3 of the Act, it is, evident that it provides for declaration of the limits of the Port of Karachi for the purpose or the Act only as it specifically mentions that the limits may extend to any part of the navigable approaches to the Port, and may include any wharves, tram ways warehouses, sheds and other works made on behalf of the public for convenience of traffic for safety of vessels or for the improvement, maintenance and goon governance of the Port. Whether within or without high-water mark, and, subject to any rights of private property therein, any portion of the shore within fifty yards of high-water mark. This clearly establishes that the demarcation of the limits of K.P.T. does not ipso facto mean that K.P.T. owns all the property located within the limits. The object of section 3 of the Act is only with regard to the administration of the area within the limited scope of powers available to K. P. T. under the Act.

40. There is vast difference between the word "limits" and the word "owner" The word "limit" has been defined in Words and Phrases. Volume 25, Permanent Edition, West Publishing Co., 1961, page 483 as "boundary, border, the outer line of a thing, and nothing else, except when used to convey the idea 'of restraint."

41. In Ballentine's Law Dictionary, Third Edition, page 740, the term "limit" has been defined as "A boundary, a border the outer line of a thing".

42. In Black's Law Dictionary, Sixth Edition, 1991, at page 926, "limits" has been defined as "A bound; a restriction; a restrain; a circumscription. Boundary, border, or outer line of thing, Extent of power, right or authority conferred".

43. In Chambers 21st Century Dictionary, Revised Edition, Page 792, the word "limit" has been defined as "A point degree, amount or boundary especially one which cannot, or should not, be passed".

44. In contrast to the work "limit", the word "owner" has been defined in Black's Law Dictionary at page 1105, as "The person in whom is vested the ownership, dominion, or title of property; proprietor".

45. In Ballentine's Law Dictionary, Third Edition, page 906, defines the wore "owner". as "One who has complete dominion over particular property. The person in whom the legal or equitable title vests".

46. From the above judicial definitions of the words "limit" and "owner" it is clear that while the former merely reflects the boundary or border or outer line of thing and refers to restrictions to crossing of such limit, the latter speaks of the ability to use of the thing by the owner as he pleases. The authority to sell, transfer, lease or rent is vested in the owner and not to a functionary over all the things falling within his limit.

47. The word "limit" is not synonymous with the word "owner". It merely describes the territorial jurisdiction of a particular functionary to act within certain area. Whether such area is owned by such functionary is a different proposition. It is also worth-mentioning that in certain cases the overlapping limits may also create a buffer zone between two authorities. Various functionaries discharge their duties/functions within the limits of their area but such functionaries do not become owners of the areas under their respective limits. Few examples of the same are limits of police stations, fire brigade. Courts. Municipal Council limits, etc where the authorities exercise their powers and carry on their respective functions within the scope of their authority. However, they do not become owner of all those properties locates within their limits.

48. Likewise, declaration of limit of the Port of Karachi does not give any proprietary rights to K.P.T. to lease, rent or sell all the property within its limits. For such purpose a clear title to such property is necessary by showing that either the same was transferred to K.P.T. by virtue of Schedule A to act or it had been either under section 25 or section 26 of the Act.

49. As regard the Notification, issued under section 27 of the Act, is concerned, any such Notification will be subject to clause (i) to subsection (1) of section 27 of the Act which provides for resolution of a question arising between the Federal Government and the Board as to the boundaries of any portion of such property. The words "such property" clearly indicate that this provision apply only to questions pertaining to property transferred by the Federal Government to K.P.T. by virtue of Schedule A to the Act. It has nothing to do with those properties which are not covered by Schedule A to the Act.

50. The plaintiff or the defendant No .5 has not been able to show that the plot is vested in the Board as per Schedule A to the Act or that the Board had acquired the plot from a competent authority as envisaged under the provisions of sections 25 and 26 of the Act. Reference in this connection to part III of Schedule A to the K.P.T. Act, is totally misconceived as it refers to "All other lands, buildings, harbour-works". "which are in charge of the Port Officer of Karachi, the Port Engineer of Karachi or of the Karachi Harbour Board which clearly envisages that such lands, buildings, etc, which are under the use of the said persons, as the list of properties also includes machinery, plant, tools, furniture, vessels and boats. This section does not give wide and unabridged powers to the K.P.T. to claim whatever land it wants.

51. Apart from the above legal position, it is also of immense importance that if a portion of the Estuary of the Lyari River is allowed to be-blocked the resulting catastrophe can affect all the adjoining areas as well as other parts of the city as the flood water will be prevented from falling into the sea through the estuary due to blockade and enter the adjoining areas. The loss to life and property cannot be imagined in addition to the loss to infrastructure and amenities in the area.

52. A perusal of Notification dated 5-10-1991, which is the latest in the series of notifications declaring the limits of the Port of Karachi, reveals that the limits of the Port of Karachi starts from Splendid Hotel, Hawksbay and it mentions Manora Breakwater, mainland Gizri. Keamari Groyne Cargo Complex, China Creek Breakwaters. Juna Bunder and West Wharf. The Estuary of Lyari River is not mentioned in this notification. It has not been stated that these two names were new and did not exist at the time when the said Notification was gazetted.

53. A reference may also be made to the report dated 10-2-2002 prepared by Wasim Ahmed, Assistant Director, Survey of Pakistan, Karachi. The report, which is addressed to the Official Assignee, is reproduced hereinbelow for the sake of convenience:-- "Sub: Suit No.924 of 2002, Modern Terminal Operator v. The City District Government Karachi and others. Ref: Your letter No.O.A./117/2002, dated 2-2-2002 received under D.S.C.'s No. 2877/11-G-4/Court Case, dated 10-12-2002. The matter has been studied in the light of record provided by the Official Assignee through K.P.T. representative which consists of following material:-- (i) Boundary schedule of K.P.T. vide Registered No.M 302, 2 November, 1991. (ii) High Court of Sindh at Karachi Nos.182 and 183 of 2000 (Court Decision). (iii) Naval Headquarters report issued vide No. NE/Land/ 14/848, dated 19-12-2000. (iv) Suit No.924 of 2002. According to boundary schedule of K.P.T. (Serial 1, above) the K.P.T. boundary runs so meters above the High Water Line. In Suits Nos. 182 and 183 of 2000, the Naval Headquarters was approached through O.A. for marking of H.W.L. which was delineated/marked by the Naval Headquarters vide their report at Serial (iii) above. It is quite evident from the plan annexed to Naval report that the Plot No.64 falls toward sea below H.W.L. According to Map Plan submitted by K.P.T. and judgment of 182, 183, the Plots Nos.62 and 63 fall in K.D.A. limit and hence Plot No.64 falls below H.W.L. toward sea. To have a better knowledge of the physical status of the area, the undersigned visited the site on 4-4-2003 under intimation to City District Government, K.P.T. and the representative of Modern Terminal Operator, Representatives of the parties were present. It is mentioned that no documents have been provided which define the, bed of the Estuary of the Lyari River. However, if the edge of the bridge is considered then the Plot No.64 is along the bed of the Estuary of the Lyari River. Survey of Pakistan, Karachi has carried out this task in National interest, please. (Sd.) Wasim Ahmed Asstt. Director OC No. 9 Survey of Pakistan."

54. In this report it is stated that "According to Map Plan submitted by K.P.T. and Judgment of 182. 183, the Plots Nos.62 and 63 falls in K.D.A. limit and hence plot No.64 falls below H.W.L. toward sea." A finding on the location of Plot N6.64 on the basis of the location of Plots Nos.62 and 63, which was decided without any reference to the plot in dispute, is to say the least, vague. The survey report further states that "no documents have been provided which define the bed of the Estuary of the Lyari River. However, if the edge of the bridge is considered then the Plot No.64 is along the bed of the Estuary of the Lyari River." The word "Estuary" according to Chambers 20th Century Dictionary. New Edition 1983, at page 431. defines `Estuary' as "the wide lower tidal part of a river." This clearly establishes that the Estuary of a river is wider than the general width of the river Therefore, the finding that "if the edge of the bridge is considered then the Plot No.64 is along the bed of the Estuary of the Lyari River" is based on surmises and conjecture.

55. Since, in the report submitted by Wasim Ahmed. Assistant Director, Survey of Pakistan, findings are given without reference to the record and also contrary to the recorded position as such it cannot be given any consideration as entire record is already before the Court.

56. There is no cavil with the proposition advanced by the learned counsel for the plaintiff, that public functionaries are required to act within the parameters .of authority conferred upon them under the law and that they cannot claim any inherent power or jurisdiction and every executive authority has to justify its actions with reference to some contemporary law. It is also well-settled that public and executive functionary are required to act reasonably judiciously and with justice, equity, fairness and in accordance with spirit of provisions under which powers are sought to be exercised.

57. It is the case of the contesting defendants that the Plot is situated in the Estuary of Lyari River and as such it cannot be allotted or leased to anyone and on ground they are contesting the suit as according to them the plot has been illegally occupied by the plaintiff. It cannot therefore, be said that they are not acting reasonably, judiciously and with justice, equity, fairness or that they are acting within the parameters of authority conferred upon them under the law. It is not, therefore necessary to discuss the case law cited by the learned counsel for the plaintiff as there are no two opinions about the law laid down in those cases.

58. The upshot of the above discussion is that the K.P.T. has not been able to establish from any of the documents available on record that the said plot vested in it by virtue of Schedule A to the Act or, at any time. The plot was in charge of the persons mentioned in Part III of Schedule A to the K.P.T. Act or it was acquired under section 25 or 26 of the Act, Therefore, the plaintiff is not entitled to any of the prayers made in the plaint. The suit is dismissed) alongwith the listed application. H.B.T./M-17/K Suit dismissed.