Sheikh GHULAM SHAH Versus K.D.A.

ORDER

Without going into unnecessary factual detail, it might suffice to state that the petitioner has constructed a multi‑storyed building and using it for commercial purposes on a plot of land bearing No.SB‑6, Block No. 12. Gulshen‑e‑Iqbal, Karachi. Part of his plot was taken away by the respondent No. 1 and the petitioner applied for being given a portion from the adjacent Plot No.SB‑7 but his efforts did not bear fruit. On the other hand: the respondent No.2 was allotted the aforesaid adjacent Plot No.SB‑7 in exchange for his plot bearing the same number in Block No.13‑B vide letter dated 14‑2‑1989. It may be added that the original plot in Bloch No. 13‑B was not allotted to the respondent by the governing body of the respondent No.2 but under the order of the Chief Minister, Sindh.

2. Mr. Mansoorul Arfin learned counsel for the petitioner raised a two‑fold contention before us. In the first instance he argued that under the Allotment Regulation, 1965, a commercial plot could only be allotted/disposed of through open auction and therefore, the allotment in favour of the petitioner through some private negotiation was ex facie, mala fide and illegal. Secondly he argued that the Chief Minister, Sindh had no lawful power to allot plots belonging to the K.D.A. (respondent No.1) and therefore, the allotment in favour of the respondent No.2 was ab initio void.

3. Syed Jamil Ahmed learned counsel for the respondent No. 1 also supported the petitioner's contention and candidly conceded that he was not in a position to defend an order lacking legal authority.

4. Mr. Imran Ahmed learned counsel for the respondent No. 2 attempted to meet the arguments by contending in the first instance that the plot was allotted to the respondent No.2 in exchange for his commercial plot in Block No.13‑B and such exchange was valid under Regulation 22 of the Allotment Regulation, 1965. With respect to the power of Chief Minister, Sindh learned counsel argued that Rule 15 had been added to the Allotment of Plots Rules, 1971 which enables the Government to relax any rule upon being satisfied their strict application thereof would call hardship. Moreover, he contended that the predecessor of the petitioner Masood Hussain Khan had also acquired the plot No. SB‑6, Block No. 12 upon an order of the Chief Minister, Sindh and the petitioner was not entitled to question the allotment in favour of the respondent No.2 on that ground alone.

5. Having carefully heard learned counsel, we are of the view that as far as the two legal points are concerned Mr. Arfin is totally correct. He has rightly urged that commercial plots had to be disposed of through open auction and in any case the Chief Minister had no power to make allotments. We may add that the respondent No.1 is a statutory body and its property can only be disposed of in accordance with the statute. We are also not impressed by Mr. Imran Ahmed's contention as to the interpretation of the newly added Rule 15 because in our considered view an exceptionally power to deviate from the 13 normal rule can only be exercised when circumstances warranting its use objectively exit. Nothing has been placed on record to show that deviation from the rule was required or justified. The allegation of the respondent No.2 that the petitioner's plot was also acquired through an allotment order issued by the then Chief Minister has not been disputed through an affidavit‑in- rejoinder and has also been admitted in the comments filed by the respondent No.1. It is well settled that when the parties are in pardelicto the benefit goes to the defendant. Our superior Courts have consistently held that discretionary relief under Article 199 of the Constitution can only be granted to a party, which approaches the Court with clean hands.

Under the above circumstances, we do not think that the petitioner is entitled to any relief and are therefore, constrained to dismiss this petition together with listed applications. Nevertheless, we would leave it open to the respondent No. 1 to take any action, as it may deem appropriate to vindicate the law.

S.A.K./G‑137/K Petition dismissed.