IN THE HIGH COURT OF SINDH AT KARACHI

 

C.P. No. D-3216 of 2011

______________________________________________________

Date                      Order with Signature of Judge

___________________________________________________________

 

                                Before : Mr. Justice Nadeem Akhtar

                                       Mr. Justice Fahim Ahmed Siddiqui

 

Muhammad Younus Ahmed Zai.………………...…………………..Petitioner

 

Versus

 

The Executive Officer, Malir Cantonment, and 03 others…….Respondents

 

Date of Hearing :                       24.01.2017

 

Shaikh Abdul Majeed, advocate for the petitioner.

Mr. Ashraf Ali Butt, advocate for the respondent No.1

Alongwith Aijaz Ali, O.S., Cantoment Board Malir, Karachi.

 

 

J U D G M E N T

.-.-.-.-.-.

 

FAHIM AHMED SIDDIQUI, J:It is the case of the petitioner that in an open auction Lt. Col. Afzal Baig purchased open plot No. 17 Block-B, measuring 400 sq. yds., situated at Cantonment Bazaar Area, Malir Cantonment, Karachi for a price of Rs. 18,972.81 including the expenses of the lease deed. Subsequently, the auction-purchaser surrendered the said plot to the petitioner through a deed of surrender. The respondent No. 1 accepted the said deed of surrender on payment of transfer charges on 29-08-1984 and issued a certificate of transfer to the petitioner. After receiving the requisite charges, the respondent No. 1 intimated the concerned Sub-Registrar in writing and directed the petitioner to appear before the Sub-Registrar for the completion of registration of the lease deed. The petitioner attended the office of the Sub-Registrar several times but the lease deed could not be registered due to non-appearance of the representative of the respondent No. 1. The petitioner paid ground rent up to 30-06-2002 but thereafter the respondent No. 1 refused to accept ground rent on the different pretext. In response to a public notice published in newspapers, the petitioner approached the respondent No. 1 with all relevant documents to show his bona fide but nothing happened. The petitioner issued a notice to respondent No. 1 on 15-12-2010 under Section 273 of the Cantonment Act in response to which they intimated on 07-05-2011 that his plot is cancelled and it was decided to re-auction his plot.

2.                        The respondent No. 1 in their para-wise comments denied all the allegations in respect of non-registration of lease deed but admitted the auction of the plot to Lt. Col. Afzal Baig and subsequent transfer to the petitioner. Payment of the entire amount and receiving of land rent up to the year 2002 are also accepted. Their contention is that as the petitioner has not appeared before the Sub-Registrar for registration of lease deed for a long time therefore his plot was cancelled and authorities have decided to re-auction the same.

3.                        We have heard the arguments advanced by the learned counsel for the petitioner as well as the learned counsel for the respondents and the Standing Counsel. According to the learned counsel for the petitioner, it is his right that the subject plot should be leased out in his name as he has paid the entire amount. He submitted that the petitioner is willing to co-operate in this respect. According to him, at the time of taking adverse action against the petitioner neither any notice nor a chance of hearing was given to him. The learned counsel for the respondent No. 1 submitted that the lease document was prepared and handed over to the petitioner but he himself has not presented the same before the Sub-Registrar as such he is at fault. According to him, it is the responsibility of the petitioner to be vigilant in which he failed. In response to a query, he admitted that the plot in question is still available as the same has yet not been re-auctioned.

4.                        It is a fact that the plot in question was purchased by the auction-purchaser in the open bid and subsequently it was transferred to the petitioner and such transfer was admitted and acknowledged by the respondent No. 1. It is also admitted position that the entire payment was made and even ground rent was received by the respondent No. 1 until 2002. It does mean that a vested right has been created in favour of the petitioner regarding the said plot. A right once created cannot be snatched in the manner as it was done by the respondent No. 1. In this respect reference may be made to observations made by a Full Bench of this Court in Zohra v. Government of Sindh (PLD 1996 Kar. 1), expressing the view that a vested right is an immediate or a fixed right to present or future enjoyment and one that is not dependent on any event that is uncertain; in other words, a right which is not subject to any contingency. We are of the view that by reason of a valid transfer of the said plot in favour of the petitioner, doctrine of promissory estoppel may also be pressed into service which right is available in Pakistan against the Government and its functionaries subject to certain limitations. This view was propounded and highlighted in Army Welfare Sugar Mills Ltd. v. Federation of Pakistan (1992 SCMR 1652). After collecting all the dues, primarily the registration of lease deed was the responsibility of the respondent No. 1 and if there is certain sluggishness on the part of the petitioner, he cannot be punished for the same by snatching a right which is also guaranteed under the Constitution of Pakistan. Article 23 which grants every citizen the right to acquire, hold and dispose of property in any part of Pakistan of course subject to the Constitution and any reasonable restriction that may be imposed by law in the public interest, Article 24 lays down in unequivocal language that no person shall be deprived of his property save in accordance with law. As the action taken against the petitioner is not in accordance with law, the same cannot be upheld.

5.                        There is another aspect of the case. The authorities admittedly issued neither a show cause notice to the petitioner nor he was heard before taking impugned action against him. It is necessary that a notice must be issued, as to why his allotment be not cancelled for the reasons and grounds of cancellation as such this act of the respondents is in violation of the principle of natural justice and, therefore, on this score alone the impugned cancellation of the plot of the petitioner is liable to be struck down.

6.                        It is admitted by the counsel for the respondent No. 1 that the plot in question is still available and the same has yet not been auctioned as per direction of the authorities. We, therefore, allow this petition with no order as to cost, and direct the respondent No. 1 to execute and register the lease deed in favour of the petitioner and hand over the physical possession of the said plot to him. The petitioner is liable to pay the outstanding ground rent and the charges if any which are permissible in law. Let a copy of this order be communicated to the respondent No. 1, for compliance.

         The above are the reasons of our short order dated 24-01-2017.

         The parties shall be liable to pay the outstanding ground rent and other charges, if any, which are permissible in law.

 

JUDGE

                                                                        JUDGE