MUHAMRPAD JAMIL KHAN Versus KARACHI DEVELOPMENT AUTHORITY

1. AJMAL MIAN, C.J. --The petitioners by this petition have prayed for the following reliefs:-

(a) to declare that the action of the respondents for withholding issuance of mutation letter to the petitioners in respect of the subject plot of land in the aforesaid events and circumstances is contrary to law:

(b) to direct the respondents to issue mutation letter to the petitioners for the subject plot of land without any further delay in the events and circumstances of this case; and/or,

(c) grant them such other relief(s) as may be deemed just and proper to meet the ends of justice in this case with cost of the proceedings throughout.

2. The brief facts leading to the filing of the above petition are that the petitioners alongwith their parents namely; Ch. Muhammad Khalil Khan and Mst. Shamsunnisa purchased a plot of land bearing No.D-9 situated in Block No. N, K.DA. Scheme No.2, North Nazimabad Karachi, hereinafter referred to as the said plot measuring 1,000 sq. yds. under a registered conveyance deed dated 11th December, 1977. It is the case of the petitioner that their mother and father expired on 8th January 1981 and 27th February 1981 respectively. It is also the case of the petitioners that four remaining brothers and the two sisters who survived the parents relinquished their interest as legal heirs of the parents in favour of the petitioner by a relinquishment deed dated 19-10-1982. The petitioners applied for mutation of their names in respect of the said plot through an appropriate application with the requisite documents. The petitioners also deposited a sum of Rs.635 on 24th September 1984 as the mutation fee. After that they continued to visit the respondent's office concerned for finalising the above matter for several years. Eventually the petitioners sent a notice dated 4-3-1985 through their Advocate. In reply to the above legal notice respondent No.l through respondent No.3 sent a reply dated 18-3-1985 which reads as follows:

3. ???????????

4. "Sub: Mutation of Plot No.D-9, Block N'

5. Scheme No.2 North Nazimabad, Karachi.

6. I am directed to refer to your letter dated 4th February, 1985, on the subject cited above, and to say that as the plot in question is being used for commercial instead of residential purpose for which the allotment was made, the mutation applied for by your clients, cannot be allowed till such time a policy decision is taken regarding misuse-of residential plot as Marriage Hall.

7. ADDITIONAL DIRECTOR (LAND)

8. ?????????????????????? ???????????????????????? K.D.A."

9. After that the petitioner filed the present petition inter alia, alleging therein that the refusal on the part of the respondent to mutate is mala fide and not warranted by law.

10. In support of the above petition Mr. A. Aziz Khan, learned counsel for the petitioners has urged as follows:-

(a) That there is no nexus between the mutation and the use of the plot as a marriage hall instead of residential purpose.

(b) That the refusal to mutate the petitioners' names violates Article 23 of the Constitution inasmuch as it infringes the right of the petitioners to own and dispose of the property, and

(c) That since respondent No.1. is a statutory corporation incorporated for preparing public housing schemes and since these schemes are framed in exercise of the statutory power the mutation policy also has backing of the law and therefore denial to make constitutes the denial of the petitioners' right warranting the filing of the above petition.

11. On the other hand Mr. Sabir Hussain Qazilbash learned counsel for the respondent has submitted that the respondent cannot mutate the names of the petitioners after having discovered the fact that the plot is used as a marriage hall instead of for residential purpose and that the refusal of the respondent to mutate the petitioners' names till such time a policy decision is taken does not violate either Article 23 or the policy relating to mutation.

12. Reverting to the first submission of Mr. A. Aziz Khan that there is no nexus between the mutation and user of the plot as a marriage hall instead of residential purpose, it may be observed that it is true that the respondent as the lessor can take action for the breach of the terms of the lease on account of the alleged breach on the part of the petitioner but in our view the respondent can also refuse the mutation in the names of the petitioners on the plea that there exists a breach of the terms of the lease. It is not correct to say that there is no nexus between refusal to mutate and the user of the plot as a marriage hall.

13. As regards the second submission that the refusal would amount to violation of Article 23 of the Constitution as it infringes the petitioners' right to own and to dispose of the property, it may be observed that in our view no violation of the above Article is involved. The petitioners have not been able to bring on record any reliable material to indicate that the respondents in similar cases have in fact mutated the names of the legal heirs of the original lessee or of the purchaser of the plot during the period in question. If the petitioners would have been able to bring the above material on record in that case it might have been argued that the respondent No.1 being a statutory corporation cannot discriminate between the various lessees. But since there is no material for the time being before us, we cannot grant any relief to the petitioners on this plea. The right to own or to dispose of the property under Article 23 of the Constitution is a right subject to law and not an uncontrolled or unregulated right.

14. Reverting to the third submission of Mr. A. Aziz Khan that the respondent No.1 being a statutory corporation incorporated for the purpose of framing/floating the house schemes and that the mutation policy has the backing of law and, therefore denial of the mutation by the respondents violates the petitioners' right warranting the filing of the above petition, it may be observed that he has referred to the case of Haji Noor Mohammad and others v. Karachi Development Authority and 2 others reported in PLD 1975 Kar. 373 in which the K.D.A. had contended that the petition filed by an allottee of the plot was not competent as it was a matter of breach of simple agreement. The above contention was rejected and it was held that the KDA in compliance of its statutory duties had issued the scheme in which the allotments of the plots were made and therefore the petition was competent. The above case has no application to the present case, inasmuch as it is not the case of the KDA that writ cannot be filed against them in respect of a plot of land if otherwise it is competent.

15. The petitioner has, therefore, no merit and, therefore, is dismissed with no order as to costs.

16. MYH/M-839/K ??????????

17. Petition dismissed.