IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mr. Justice Nadeem Akhtar

Mr. Justice Fahim Ahmed Siddiqui

C.P.No. D - 196 of 2011

Rafi Ahmed Qureshi……………....……………...…………………..Petitioner

Versus

City District Government, Karachi and 02 others..…………….Respondents

Date of Hearing & Judgment : 01.03.2017

Mr. Abbadul Hasnain, advocate for the petitioner

Mr. Afaq Yousuf, advocate for respondent No.1

Mr. Miran Muhammad Shah, AAG Sindh

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: The petitioner has filed the instant petition in respect of alleged cancellation of his plot situated in Lucknow Cooperative Housing Society by the respondent No. 3.

2. The petitioner is the original allottee of Lucknow Cooperative Housing Society, and he has a plot No. C- 492, measuring 160 square yards. The management of the society allotted the said plot to the petitioner through Allotment Order No. 430 dated 1-9-1965. The respondent No. 3 issued possession letter to the petitioner on 14-9-1974, and since then the petitioner is continuously in possession of his plot and he had already paid all the dues to the society. The petitioner received the impugned cancellation letter dated 20.12.2010 regarding his plot, along with another letter of the respondent No. 1 bearing No.DOC/-257/2010 dated 12-10-2010 addressed to respondent No. 3.

3. Through the instant petition, the petitioner has sought the following reliefs against the respondents:

a) To declare that the cancellation letter 20-12-2010 issued by respondent No. 3 is unlawful, illegal, unwanted and void and has no legal effect.

b) To direct Respondent No. 3 not to harass or humiliate the petitioner regarding his plot, withdraw the cancellation letter and not to create any third party interest.

c) To direct the Respondent No. 2 not to entertain any document for transfer or any other purpose relating to petitioner's plot bearing No.C-492, measuring 160 sq. yds. situated at Lucknow Cooperative Housing Society Ltd., Korangi, Karachi.

d) To direct respondent No. 1 to take the lawful action against respondent No. 3 against misusing of power of the office of honorary Secretary.

4. After notice, the comments were filed on behalf of official respondents. Respondent No. 3 filed his counter-affidavit in which he also took preliminary objection regarding maintainability of the petition. It is their contention that the petitioner had no locus standi for filing the instant petition as at that time he was not the member of society. The main objection of respondent No. 3 is that wife of the petitioner is also a member of society and having a similar plot in the society. Respondent No. 3 stated in his counter affidavit that the other relatives of the petitioner are the members of society and having their plots within the society. The respondent No.3 further alleged that the petitioner, during his tenure of honorary secretary of the society, in violation of Gazette Notification issued by the Sindh Government dated 24-6-1971 allotted plots to his family members including his wife.

5. It is the contention of the learned counsel for the petitioner that in a similar nature case i.e., C.P. No. 1970 of 2011, this Court has already held that the notification referred by the respondent No. 3 is not applicable to the cases of the said society. He drew our attention towards the ratio of the above-mentioned order passed by this Court as well as the facts and circumstances of the petition.

6. On the other hand, the learned counsel for the respondent No. 3 opposed the instant petition. He contended that the order passed by this court in C.P.No.1970 of 2011 is not applicable to the instant petition. According to him, the facts and circumstances of the case in hand are distinguishing.

7. The learned AAG, frankly admitted that the referred gazette notification pertains to the land granted by the provincial government and it is not applicable to those societies who purchased land privately.

8. We have heard arguments advanced and have gone through the material placed before us. We have also gone through the actual controversy in the instant petition as well as in C.P.No.1970 of 2011. We are of the considered view that both the petitions are similar in nature and the impugned letters in both the petitions are also identical in all respect. The respondent No. 3 issued impugned letter under the alleged directives of respondent No. 1, which was based on a gazette notification of the Government of Sindh. The guidelines of respondent No. 1 were communicated to the respondent No. 3 through letter No. DOC/-257/2010 dated 12-10-2010, which reads as under:-

"SUBJECT: IMPLEMENTATION OF TERMS AND CONDITIONS OF GAZETTE NOTIFICATION.

With reference to your application/letter wherein you ask this office advice/allow you a for implementation of terms and conditions of Gazette Notification 1971 issued by Government of Sindh.

The managing committee is empowered to take action as per law.

You are, therefore, advised to take action in this regard strictly in accordance with registered bye-laws, Act and Rules."

From the above letter of respondent No. 1, it appears that the respondent No. 3 has sought permission from the respondent No. 1 for cancellation of plots in compliance of the Gazette Notification (hereinafter referred as the Gazette Notification). The respondent No. 1 has not given a blanket power to the respondent No. 3 for cancellation of plots but he advised the respondent No. 3 to take action strictly according to the registered bylaws and rules.

9. The Notification of 1971 is also available in the record and for the sake of brevity, the relevant portion of that notification is reproduced as under:-

"Notification No 869/71/4083-P. 1 – in exercise of the power conferred by sub- clause (2) of Section 10 of the Colonization of Government Lands (Punjab) Act, 1912, as applicable to the bona fide Housing Societies registered under the Cooperative Societies Act, 1925 (hereinafter referred to as the Societies) in various tonal schemes prepared by the Karachi Development Authority (hereinafter referred to as the Authority), for the urban area of Karachi Taluka:-

1. ------------------------

2.(i) ------------------------

(ii) ------------------------

(iii) No Society shall be eligible for allotment of land under these conditions unless its bylaws provide – –

a) ------------------------

b) ------------------------

c) that no person shall be allotted a plot by the Society; if he or his wife/husband, minor child or any dependent, owns or has at any time owned, a plot, a house or a flat in the metropolitan area of Karachi."

10. From the bare perusal of relevant clauses of the Gazette Notification, It is clear that the same is applicable to those societies whom the government of Sindh granted land under Section 10 of the Colonization Act, 1912. The case of Lucknow Cooperative Housing Society Ltd is entirely different. Apparently, there was no grant of land to the said society by the government of Sindh under the Colonization Act. The petitioner has produced a copy of 'Agreement of Lease', which indicates that the land of the society was purchased from KDA. In these circumstances, the Gazette Notification is not applicable to the said society. We have gone through the counter affidavit filed by the respondent No. 3 and nowhere is it mentioned therein about an embargo under the bylaws of society for allotment of plot to the dependent of a member who is already an allottee of a plot. In such a situation, we have no hesitation to hold that under the law there is no provision for cancellation of the plot to a member of the society described above on the ground that he is dependent or family member of an allottee of the plot in the society.

11. In view of the above discussion, we declare that the act of respondent No. 3 of issuing the impugned cancellation letter to the petitioner is illegal, unlawful and having no legal effect and set aside the impugned cancellation letter dated 20-12-2010 issued by respondent No. 3. We further direct the respondent No. 3 to restore the allotment of the petitioner's plot to him with immediate effect and not to cause any harassment or take unlawful action against him. The instant petition is allowed with no order as to cost.

These are the reasons for our short order dated 01-03-2017.

JUDGE