Mst. BILQUIS QADRI vs Mst. NISHAT MUSHTAQ through L.Rs,
This matter involves a property dispute concerning the legality of the allotment and subsequent transfer of a plot of land, designated as Plot No. D-786, carved out of an open area within a Karachi Development Authority (KDA) scheme. The core legal questions concern whether the KDA had the authority to convert open land into a plot, whether the Chief Minister of Sindh possessed the power to direct such an allotment, and whether the appellant qualifies as a bona fide purchaser protected under the Transfer of Property Act, 1882. The Supreme Court found that the trial and appellate courts failed to properly scrutinize critical documentary evidence and left substantial questions regarding the legality of the allotment process, the KDA's regulations, and the statutory requirements for notice unanswered. Consequently, the Supreme Court set aside the impugned judgments and remanded the case to the trial court for a fresh decision. The court directed the trial court to frame additional issues, record further evidence if necessary, and specifically address the identified legal questions regarding the validity of the allotment and the status of the purchaser.
- Whether the Chief Minister of Sindh is empowered under the Karachi Development Authority (Disposal of Land) Rules, 1971 to direct the allotment of a plot by relaxing existing regulations?
- Does a purchaser of land qualify as a bona fide purchaser protected under Section 41 of the Transfer of Property Act, 1882 if the initial allotment of the land was potentially illegal or ultra vires?
- Is the issuance of a statutory notice under Article 131 of the Karachi Development Authority Order, 1957 mandatory when the act of the competent authority is alleged to be illegal and mala fide?
- Section 41, Transfer of Property Act 1882
- Article 131, Karachi Development Authority Order 1957
- Regulation 6, Karachi Development Authority Regulations
- Regulation 23, Karachi Development Authority Regulations
- Rule 15, Karachi Development Authority (Disposal of Land) Rules 1971
'JAVED IQBAL, J.--- Heard Syed Sharifuddin Pirzada learned Senior Advocate Supreme Court on behalf of appellant and Mr. Tariq Mehmood, learned Senior Advocate Supreme Court for respondent No, 1 . We have examined the entire record and perused the judgment of learned trial and appellate Courts vigilantly. After having an in depth scrutiny of the entire record we are of the view that the controversy could not have been set at naught without considering the documentary evidence which escaped the notice of learned trial and appellate Courts and moreso certain important questions having substantial bearing on merits of the case remained unanswered which are as follows:---
(i) How the unnumbered triangular area of about 274.67 square yards was converted into Plot bearing No,D-786 in contravention of the earlier stance of KDA that the open area in question was reserved for further utilization (letters of KDA dated 26-9-1973 and 7-12-1974) and whether it could have been allotted to the appellant or respondent being owner of Plot No,D-279 measuring 600 square yards?
(ii) How Plot No,D-786 was created by carving out the open area and whether it was in accordance with the prevalent rules, regulations and policy of KDA?
(iii) Whether KDA has any authority to allot the open area to appellant by converting it into Piot No,D-786 which could not have been leased out as per the laws of KDA i,e, Regulation No,6 read with Regulation No,23 which deals with the question of allotment and annexation of adjacent land?
(iv) Whether Chief Minister, Sindh was competent to make such allotment in favour of Saleem Wafai (respondent No,3) who had initially requested for allotment of a plot measuring 274 square yards which was subsequently converted into 384.33 square yards by KDA presumably on the direction of the then Chief Minister, Sindh but such plot could not have been carved out from the open area as independent in terms of the scheme?
(v) Whether the statutory notice would be mandatory in case the act of competent authority is prima facie i,e, illegal and ultra vires with mala fide intention?
(vi) Whether any resolution was passed by the governing body prior to such allotment?
(vii) Whether issuance of statutory notice under Article 131 of the KDA Order in Suit No,1017 of 1980 copy whereof was filed with the plaint but went unnoticed can be considered sufficient in subsequent suits?
(viii)Whether any allotment could have been made in favour of Mst. Bilquis Qadri (appellant) through intervention of the Courts specially when a plot of 600 square yards was also in her possession and Plot bearing No,D-786 was more than 50% of the area which could not have been allotted in absence of any vested or legal rights?
(ix) Whether Mst. Bilquis Qadri (appellant) is a bona fide purchaser and her rights and interest are protected under section 41 of the Transfer of Property Act, 1882?
(x) Whether documentary evidence has been appreciated properly which is indicative of the fact that initially the open are was about 274.33 square yards then how it was enhanced to that of 384.33 square yards and allotted to Saleem Wafai (respondent No,3)?
(xi) What would be the impact of provisions as enumerated in section 41 of the Transfer of Property Act, 1882 being substantive in nature and statutory law vis-a-vis Disposal of Lands and Estate Rules and Regulations of KDA?
(xii) Whether Mst. Bilquis Qadri (appellant) can be considered as a lawful owner of Plot bearing No,D-786 measuring 384.33 square yards in KDA Scheme No,1-A (Extension) as bona fide purchaser in good faith for valuable consideration without notice of any claim of any party in terms of registered Deed of Conveyance/Sale-deed dated 17-9-1979 and mutation dated 3-6-1982?
(xiii)Whether the provisions as enumerated under Rule 15 of the KDA (Disposal of Land) Rules, 1971 authorize the Chief Minister to relax the provision of any clause and direct the KDA for allotment of the plot in question i,e, D-786?
(xiv) Whether the allotment in favour of Saleem Wafai (respondent No,3) stood regularized upon lease having been subsequently granted by KDA for 99 years in favour of Mst. Bilquis Qadri (appellant) vide lease deed dated 30-8-1977 upon her having purchased the said plot from Nazeerul Hassan by whom it was purchased from Saleem Wafai (respondent No,3)?
2. In the light of what has been stated above, the judgment impugned is set aside and case remanded to learned trial Court for deciding afresh after affording proper opportunity of hearing to all concerned. The contentions raised before this Court can be agitated before learned trial Court which shall be decided without being influenced from any previous order made in the case. The above mentioned questions should be dilated upon and decided in accordance with law and on merits. The learned trial Court may frame additional issues and record evidence if need be in order to resolve the dispute completely. The appeal is disposed of in above terms.