KHALIL AHMED Versus MANAGING DIRECTOR, SIND INDUSTRIAL TRADING ESTATE, KARACHI
ORDER
1. MUHAMMAD ZAHOORUL HAQ, J. ‑‑By consent of the .Additional Advocate‑General and the petitioner's counsel Mr. Muhammad Ali Shaikh we have heard this petition on merits alongwith the Misc. No. 2347 of. 1986.
2. The contention of the Additional Advocate‑General is that the impugned order of the Deputy Commissioner has been passed after taking into consideration the report of the Mukhtiarkar which shows that the transferor of the petitioner namely Lilaram was not the owner of the land and therefore the Deputy Commissioner on that basis held that Lilaram had no title in the land and hence the petitioner could not seek No Objection Certificate from the Deputy Commissioner in respect of the sale which was to be made by Lilaram to the petitioner.
3. The relevant facts for this petition are that the petitioner had contracted to purchase the land in dispute from one Lilaram and since Lilaram had not transferred the land in time to the petitioner therefore the petitioner filed a suit in the High Court bearing No. 433 of 1984. In that suit Lilaram and the Government of Sind as well as Board of Revenue, Sind, and Deputy Commissioner, East were party. The suit was for specific performance and injunction. The same was compromised on 23‑12‑1985 between the petitioner and Lilaram who consented to the decree of specific performance on the petitioner paying a requisite amount of Rs.27,00,000 to him. The High Court had however, left it open to the Deputy Commissioner, .East, to consider the case of the grant of No Objection Certificate and the directions had been given to the Deputy Commissioner that in case all the formalities were completed and there was no obstacle in the way of the sale taking place then the Deputy Commissioner will issue the No Objection Certificate within a particular period.
4. What has happened is that the respondent Deputy Commissioner issued notice to the petitioner for the purpose of the grant/refusal of No Objection Certificate proceedings. However, counsel of petitioner had written to the Deputy Commissioner on 13‑1‑1986 to communicate the final order passed in the matter. There was no other notice issued to the petitioner or Lilaram to the effect that there was any objection found in the title of Lilaram. But the Deputy Commissioner proceeded in the matter and held that it was an evacuee property therefore it vested in Provincial Government. The order was passed by the Deputy Commissioner on 1‑4‑1986. The petitioner's contention was that there was no notice given to the petitioner in respect of the title of the land and' therefore the Deputy Commissioner was not justified in proceeding to determine the title of the land adverse to the petitioner of Lilaram, and more particularly when there was a decree of the High . Court subsisting in favour of the petitioner. The contention appears to be correct. The Deputy Commissioner was bound to issue notice to the petitioner intimating to him the flaws that had been noted by the Deputy Commissioner in the title of the property in respect of Lilaram against whom the petitioner had obtained the decree from the High Court. The specific show‑cause notice in that respect was called for and without such a show‑cause notice the Deputy Commissioner could not proceed to pass an order adverse to the petitioner or adverse to the title of Lilaram because by now the petitioner had a decree against Lilaram. The petitioner was entitled to know that his interests are going to be adversely affected by the Deputy Commissioner and unless and until that notice was issued to the petitioner the order impugned could not be passed. The petitioner has therefore been condemned unheard.
5. We therefore declare that the order passed by the Deputy Commissioner on 1‑4‑1986 was without lawful authority and set aside the same. The Deputy Commissioner will issue fresh notice to the petitioner in this respect and then proceed to decide the question of the no objection certificate and particularly the question of title of Lilaram. On the request of Mr. A.R. Kazi we are fixing 4‑4‑1987 as the date of hearing before the Deputy Commissioner East, for this Duroose, at 11 a.m. The petitioner is directed to appear on 4‑4‑1987 alongwith the documents of title which petitioner alleges to have received from Lilaram. The petitioner will also try to contact Lilaram and bring him before the Deputy Commissioner. As a matter of abundant precaution the Deputy Commissioner should also issue notice to Lilaram for the above date. Petition is allowed in the above terms.. Misc. Application is also disposed of.
6. H.B.T./K‑78/K Petition allowed.