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