SIKANDAR AND COMPANY Versus CITY DISTRICT GOVERNMENT (KDA WING)
ORDER
SAJJAD ALI SHAH, J.--- All present request that the petition and all pending applications be taken up for hearing and consequently at their request the petition as well as following applications are taken up for hearing:--
1. Katcha Peshi
2. For hearing of Misc. No.25160/2014
3. For hearing of Misc. No.25161/2014
4. For hearing of Misc. No.25162/2014
5. For hearing of Misc. No.25163/2014
6. For hearing of Misc. No.25164/2014
7. For hearing of Misc. No.25165/2014
8. For hearing of Misc. No.25166/2014
9. For hearing of Misc. No.25167/2014
10. For hearing of Misc. No.25168/2014
11. For hearing of Misc. No.25169/2014
12. For hearing of Misc. No.25170/2014
13. For hearing of Misc. No.25171/2014
14. For hearing of Misc. No.25172/2014
15. For hearing of Misc. No.25173/2014
16. For hearing of Misc. No.11699/2014
17. For hearing of Misc. No.23440/2014
18. For hearing of Misc. No.23441/2014
Briefly, the petitioner in a public auction held on 14.10.1993 was allotted commercial plot bearing No. FL-4 in Sector 5-E, North Karachi Township, Karachi admeasuring 4000 square yards against total occupancy value including Surcharge at the rate of Rs.1,310/- per square yard totaling a sum of Rs.52,40,000/- which were deposited by the Petitioner in parts and lastly on 23.11.2006. The record further reflects that on 30.05.2007 a Const. Petition No. D-1205 of 2007 was filed challenging such allotment with the following prayer:- a. To direct the Respondents to get stop the construction work on Green Belt / Breathing Space / Amenity plot of Sector 5-E, New Karachi, forthwith. b. To restrain and direct the Respondent No.1 and 2 not allot / approve the site plan for the Green Belt / Breathing Space / amenity plot i.e. Sector 5-E, New Karachi, to any one and if same has been done then direct the Respondents to produce the allotment/approval before this Hon'ble Court and this Hon'ble Court may he pleased to treat the same as illegal /unlawful and cancelled. c. To direct the Respondent Nos.1 to 3 to not give protection to the illegal acts of Respondent No.4 and perform in accordance with law. d. Cost of the petition. e. Any other relief(s) in the favour of the Petitioner which this Hon'ble Court may deem fit and proper.
In that petition it was asserted that the plot of the Petitioner was situated on the Green Belt, an amenity meant for the residents of the area to be used as breathing space and therefore, no construction could be raised thereon and this Court vide its detailed Order dated 25.10.2010 allowed the petition as prayed.
The Petitioner approached the Apex Court by impugning the order of this Court and the Hon'ble Supreme Court in Civil Petition No. 80-K of 2011 maintained the order of this Court by holding:--
"The occupancy value so deposited on its face appears to be very negligible and does not reflect the real value of the plot and the whole transaction in respect of purported conversion of a Greenbelt/Amenity Plot into that of Commercial / Flat site and thereafter auction of it all appears to be a farce and sham attempt to rob Greenbelt/amenity plot from citizen of Karachi, which by no means is permissible by law. The petitioner itself admitted that the plot in question was ST-2, ST plots are special type plots being public property, which are only meant for public amenity purposes and cannot be converted into building and commercial site and in this regard reference is made to the case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi and 4 others (1999 SCMR 2883), Haider Ali Rasheed Molji and 9 others v. Messrs Jaffar-e-Tayyar Cooperative Housing Society Ltd. through President and 11 others (PLD 2005 SC 361), Al-Rehman Falahi Society through General Secretary v. Government of Sindh through Secretary, House and Town Planning, Karachi and another (PLD 2006 Karachi 14) and Funfair (Pvt.) Limited and another v. Karachi Development Authority and 2 others (PLD 2004 Karachi 170).
After hearing learned counsel for the parties, we are satisfied that the impugned order of the learned Division Bench of the High Court does not suffer from any illegality or perversity calling for interference by this Court. Therefore, this petition for leave to appeal is dismissed."
The petitioner has now again approached this Court by filing the instant petition, containing the following prayers:--
A. That the respondent No.1 may please be directed to grant alternate plot of land to the petitioner of the same area near to the land of the petitioner in North Karachi Township, Karachi in lieu of the plot of land bearing No. FL-4, measuring 4000 Square Yards situated at Sector 5-E, North Karachi Township Karachi of the petitioner or alternately to pay cash compensation to the petitioner in accordance with the market rate now available to be ascertained by the body jointly agreed by the petitioner and the respondent No.l.
B. That the respondents Nos.1 and 2 may kindly be directed to implement the Order dated 25.10.2010 passed by the learned Division Bench of this Hon'ble Court in Constitution Petition No. D-1205 of 2007 by canceling the plots the respondents No.3 to 5 bearing Nos. FL-1 measuring 4000 Square Yards, FL-2, measuring 4000 Square Yards and FL-3, measuring 4000 Square Yards Sector 5-E situated at North Karachi Township Karachi and others to whom the amenity plots fallen in Green Belt of Sector 5-3 North Karachi Township Karachi allotted to them by the respondent No.1 with direction to respondent No.1 to provide list of all these allottees or non-allottees whose plots are fallen in the Green Belt of Sector 5-E, North Karachi Township Karachi.
C. The respondent No.2 may kindly be directed to cancel the Building Plans of the respondents Nos.3 to 5 if approve and to demolish all construction raised on plots of the respondents Nos.3 to 5 and other fallen in the Green Belt of Sector 5-E, North Township North Karachi. The respondent No.2 may further please be directed not to approve Building Plan of any body whose plot is fallen in the Green Belt of Sector 5-E, North Karachi Township Karachi in any manner by any means.
D. Cost of the petition be solicited.
E. Any other relief or reliefs which this Hon'ble Court may deem fit and proper under the circumstances may also be granted.
On 25.08.2014, it was brought to the notice of this Court that the Petitioner's plot was cancelled by holding that it was situated on the Greenbelt, notwithstanding, on the same Greenbelt construction of various projects are going on and consequently, this Court directed the sealing of all projects being constructed on the Greenbelt, the relevant portion of Order dated 25.08.2014 is reproduced as follows:--
"Notwithstanding, since admittedly construction is being raised on the Green Belt which is not permissible under the law, therefore, both CDGK and SBCA are directed to seal the project on the subject Green Belt and to ensure that no further construction at any cost is carried out."
Being aggrieved of the aforesaid order, the owners of the project which were sealed in consequent to Order dated 25.08.2014, moved the above listed applications for impleading them as parties and for suspension of Order dated 25.08.2014 by directing de-sealing of their projects.
CMA No. 25160/2014 (listed at Serial No.2)
CMA No. 25161/2014 (listed at Serial No.3)
Application listed at Serial No.2 has been moved by M/s. Pak Associates for impleading them as a party and application listed at Serial No.3 is for suspension of the proceedings. Along with the applications applicant has annexed documents reflecting that plot No.Fl-5, Sector 11-A, NKT, Karachi, admeasuring 4000 square yards was allocated to their predecessor in interest in auction held on 20.10.1993 @ Rs.1,780/- per square yard for a total sale consideration of Rs.71,20,000/- which were paid through challan dated 20.10.1993 and 25.4.1994. Consequently, allotment order was issued on 22.6.1994.
CMA No. 25162/2014 (listed at Serial No.4)
CMA No. 25163/2014 (listed at Serial No.5)
Application listed at Serial No.4 has been moved by one Muhammad Adam for impleading him as a party and application listed at Serial No.5 is for suspension of the proceedings. Alongwith the applications applicant has annexed documents reflecting that commercial plot No. SB-13, Sector 11-A, NKT, Karachi, admeasuring 511.11 square yards was allocated to his predecessor in interest in auction held on 20.10.1993 @ Rs.2,350/- per square yard for a total sale consideration of Rs.12,01,108/- which were paid through challans dated 21.10.1993, 30.11.1995, 13.10.1997 and 27.9.2005.
CMA No. 25164/2014 (listed at Serial No.6)
CMA No. 25165/2014 (listed at Serial No.7)
Application listed at Serial No.6 has been moved by one Muhammad Adam for impleading him as a party and application listed at Serial No.7 is for suspension of the proceedings. Along with the applications applicant has annexed documents reflecting that commercial plot No. SB-14, Sector 11-A, NKT, Karachi, admeasuring 511.11 square yards was allocated to his predecessor in interest in auction held on 20.10.1993 @ Rs.2,250/- per square yard for a total sale consideration of Rs.11,49,997/- which were paid through challans dated 21.10.1993, 30.11.1995, 29.08.1998, 27.09.2005.
CMA No. 25166/2014 (listed at Serial No.8)
CMA No. 25167/2014 (listed at Serial No.9)
Application listed at Serial No.8 has been moved by M/s. Times Builders and Developers for impleading them as a party and application listed at Serial No.9 is for suspension of the proceedings. Along with the applications applicant has annexed documents reflecting that commercial plots No. SB-5, SB-6, SB-11 and SB-12 situated in Sector 11-A, NKT, Karachi, each admeasuring 511.11 square yards was allocated to their predecessor in interest in auction held on 20.10.1993 @ Rs.2,260/-, Rs.2,280/-, Rs.2,610/- and Rs.2,850/- per square yard respectively for a total sale consideration of Rs.11,29,553/-, Rs.14,56,663/-, Rs.11,65,330/, and Rs.11,55,108/- totaling Rs.49,06,654/- which were paid through challans on the dates mentioned with the plots numbers, detail whereof is as follows:--
(SB-5) 20.10.1993, 30.11.1995, 14.09.2005,
(SB-6) 20.10.1993, 30.11.1995, 14.10.1997, 14.09.2005
(SB-11) 21.10.1993, 30.11.1995, 13.10.1997, 14.09.2005,
(SB-12) 21.10.1993, 30.11.1995, 14.09.2005,
CMA No. 25168/2014 (listed at Serial No.10)
CMA No. 25169/2014 (listed at Serial No.11)
Application listed at Serial No.10 has been moved by one Shahbaz Ghouri Khan for impleading him as a party and application listed at Serial No.11 is for suspension of the proceedings. Alongwith the applications applicant has annexed documents reflecting that commercial plot No. SB-9, Sector 11-A, NKT, Karachi, admeasuring 511.11 square yards was allocated to his predecessor in interest in auction held on 20.10.1993 @ Rs.3,510/- per square yard for a total sale consideration of Rs.17,93,996/-. The applicant has not filed any proof of payment, but has placed on record lease deed dated 24.02.2014 reflecting payment made through challan No.28684 on 06.02.2014.
CMA No. 25170/2014 (listed at Serial No.12)
CMA No. 25171/2014 (listed at Serial No.13)
Application listed at Serial No.12 has been moved by Messrs Basm Construction Company for impleading them as a party and application listed at Serial No.13 is for suspension of the proceedings. Along with the applications applicant has annexed documents reflecting that commercial plot No. FL-11, Sector 11-A, NKT, Karachi, admeasuring 4841.40 square yards was allotted to the applicant vide allotment Order dated 16.01.1995 against occupancy value of Rs.300/- per square yards. The applicant paid 50% of the occupancy value in the sum of Rs.7,26,300/- through challan dated 9.1.1995 and differential of Rs.8370,000/- on 31.7.2009 and 11.8.2009.
CMA No. 25172/2014 (listed at Serial No.14)
CMA No. 25173/2014 (listed at Serial No.15)
Application listed at Serial No.14 has been moved by one Muhammad Adil Khan for impleading him as a party and application listed at Serial No.15 is for suspension of the proceedings. Along with the applications applicant has annexed documents reflecting that commercial plot No. SC-2, Sector 11-A, NKT, Karachi, admeasuring 500 square yards as claimed was allotted to his predecessor-in-interest vide allotment order dated 10.11.1993 (NOT FILED) washed out at Rs.226/- per square yard for a total sale consideration of Rs.11,3200/- which were paid through challans dated 04.02.1996, 18.03.1996, (Para 5) and differential of Rs.11,03,200 + Rs.32,500/- vide challan dated 18.01.2007 and 15.06.2010.
M/s. Abdul Sattar Pirzada and Ali Lakhani Advocates appearing for the Intervenors initially contended that the conversion, if any, of the subject property was much before holding of auction through which the predecessor-in-interest of the applicant had acquired the subject property for valuable consideration and some of the applicants have already raised construction and had created third party interest. Per counsel the applicants are bona fide purchaser for valuable consideration and the petitioner in a clandestine manner without their impleadment has obtained the order of sealing which order is liable to be recalled. As to the findings of the Apex Court in respect of the petitioner's plot that it was situated on the Green Belt, it was jointly contended that the plot of the Petitioner is situated in Sector 5-E, whereas, the applicants' plots are situated in Sector 11-A and 5-L which are totally different and the findings of the Apex Court in respect of the status of the plots are not applicable in the cases of the applicants. As to the findings of the Apex Court that the auction proceedings held in the year 1993 were shame, Mr. Abdul Sattar Pirzada asserted that such findings are not applicable to the case of the applicants as they have purchased the property on the then market value and promptly effected the payments.
On the other hand, Syed Sultan Ahmed, learned counsel appearing for KMC initially contended that Karachi Development Authority President's Order No.5 of 1957 (hereinafter referred to as "Order of 1957") empowers the Authority to convert plots reserved for roads, hospitals, schools, colleges, libraries playgrounds, gardens, parks, community centres, mosques, graveyards etc. and the conversion was made after adopting due procedure as provided in Section 52A(3) of the "Order of 1957" and consequently sought time to place on record the material i.e. public notice through which such conversion was advertised calling for objections but could not produce any such material, and thereafter argued that the strip which was publicly auctioned in 1993 in fact was a railway track and not a Green Belt or park area.
In response, Mr. Abdul Sattar Pirzada has argued that Section 52A(1) of the "Order of 1957" provides that after any housing scheme is sanctioned or altered with the approval of Government, Government has to submit to the Commissioner the details of such scheme including the survey numbers, area and location of each plot reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques, graveyards etc., and the Commissioner has to notify such details in official Gazette. According to the counsel the Authority under Section 52A(2) of the "Order of 1957" was empowered for the utilization of any plot reserved for the aforesaid purposes to any other purpose and in that case the Commissioner on receipt of application for conversion would invite objections from the general public through a notice published in one English and vernacular leading local daily newspaper and then would consider the objections. According to the counsel in the instant case a strip reserved for the railway track was converted into commercial / residential area and such place reserved (railway track) does not find mentioned in Section 52A(1), therefore, the procedure provided under Sections 52A(2) and (3) of the "Order of 1957" is inapplicable and for that reason KDA has no record for such conversion.
In rebuttal Raja Sikandar Khan Yasir, learned counsel appearing for the Petitioners, contends that the plot of the Petitioner was also situated on the same belt which was declared by the Apex Court as Green Belt and even the KMC stance was that it was a Green Belt, therefore, the KMC cannot take a different stance that one which was taken in the case of Petitioner before the Apex Court. Counsel further contended that any other finding by this Court would literally amount to upsetting the judgment of the Apex Court by which the Apex Court has not only held the strip as Green Belt but has also held that the auction held in 1993 was a shame.
We have heard the learned counsel for the respective parties and have perused the record.
First of all we would take up the controversy raised by the applicants that the plot of the Petitioner which was situated in Sector 5-E and was declared by the Apex Court as situated on the Green Belt is on a totally different place then the plots of the applicants which are situated in Sector 11-A and 5-L. We have called for the Master Lay Out Plan in order to resolve such controversy. Perusal of Lay Out Plan of North Karachi where the subject plots are situated reflects that from Orangi Hill side along with main road there is a 100 feet wide strip which runs throughout North Karachi passing through various sectors. The plan reflects that Sectors 4, 5-C, 5-K, 5-L, 5-E, 5-G and 6-B are on the left side if entry is made from Orangi Hill side and Sectors 8, 11-A, 11-K, 11-L, 11-D, 11-F and 12-A are on the right side and in between is the 100 feet wide strip. The plot of the Petitioner declared to be on the Green Belt by the Apex Court is in between Sector 5-E and 11-D whereas the plots of the applicants are in between Sector 5-C and 11-A and the plot of the applicant Hanif Yousuf is in between Sector 5-L and 11-L. However, after examining the lay out plan none could dispute that the Petitioner's plot was on the same strip on which the plots of the applicants are situated. To make the things more clear the relevant portion of lay out plan is reproduced.
Orangi Hills
4
5C
5K
5L
5E
5G
6B ooooo Applicants Plot o Applicants Plot o Petitioners Plots
8
11A
11K
11L
11D
11F
12A
15. It is now pleaded before us that the aforesaid belt / space was provided for Railway Track, however, the Administrator KMC namely Rauf Akhter Farooqui in August, 2014 under his own signature has filed a statement, the relevant portion whereof for the sake of convenience is reproduced as follows:--
"It is also respectfully submitted that, though in Sindh Local Government Act, 2013 some amendments have been made by the Sindh Government and Master Plan Department of KMC has been given under the control of SBCA, so in this regard I am unable to take any action against officers of Master Plan Department who have involved in carving out the plots on Green Belt. Further department is ready to compensate to the petitioner either to refund their amount paid by him against his plot or to allot any alternate plot in Surjani Town, Scheme No.41, if found vacant.
It is prayed that the above Statement may kindly be taken on record.
Karachi
Dated -8-2014
Sd/-
Rauf Akhtar Farooqui
Administrator "
After minutely examining the layout plan of North Karachi Township Karachi, we are of the firm view that the plots of the applicants are situated on the same belt on which the plot of petitioner was situated and which belt has been declared by the Hon'ble Supreme Court as "green belt". We have further scrutinized title documents which were placed before us and have found that the applicants have purchased the plots in the same auction which has been declared by the Apex Court as farce and shame and attempt to rob green belt as amenity plot for the citizen of Karachi. The allocation letters reflect that the commercial plots of 500 square yards which carries great commercial value were sold ranging between Rs.2,000 to Rs.2,800/- per square yard and in most of the cases those amounts were paid at least after a decade and in some cases after more than two decades. In the case of M/s. Basm Construction Company (CMA No.25170/2014) the applicant managed to get a plot admeasuring 4,841 square yards at an occupancy value of Rs.300/- per square yard and paid Rs.7,26,300/- that too in the year 1995 and the rest through differential, that too in the year 2009. Likewise in the case of Muhammad Adil Khan (CMA No.25172/2014) the applicant managed to obtain allotment of commercial plots admeasuring 500 square yards at the rate of Rs.226/- per square yard paid in the year 1996 and differential in 2007 and 2010. Notwithstanding since we have come to the conclusion that the plots of the applicants are situated on the same belt which has been declared "Green Belt" and in the same auction which has been declared by the Apex Court as farce and sham attempt to rob the green belt/amenity plots from the citizen of Karachi, therefore, we cannot give different treatment to the applicants than what was given by the Apex Court to the petitioner. All the applications, therefore, are dismissed with directions to the KMC and SBCA who presently Control Master Planning Department to ensure removal of entire construction so far raised on the entire Green Belt within a period of 30 days. It should further be ensured that no further construction is allowed on the said Green Belt and that it is restored to its original position. The applicants may pursue their remedy against KMC in accordance with law.
As to the left over prayers, since the Administrator has himself proposed for the refund or provision for an alternate plot, therefore, we dispose of this petition on the basis of the statement filed by the Administrator.
ZC/S-10/Sindh Order accordingly.