Dr. NUSRAT AZIZ Versus CITY DISTRICT GOVERNMENT, KARACHI
SADIQ HUSSAIN BHATTI, J.--- A piece of land bearing Plot No.ST-1-C, Block 17, Scheme No.24, Gulshan-e-Iqbal, measuring 1937 sq. yards (hereinafter "the plot") was leased to the petitioner on 25.01.1974 for the purpose of construction of a clinic thereon. The petitioner paid various charges in respect of the plot, including Non-Utilization Fee (NUF) to the respondent till 1987. On 07.02.2001 the petitioner wrote a letter to the respondent showing her willingness to pay NUF for the intervening period. Attorney of the petitioner attended the office of the respondent to pursue the matter and he was informed that the file of the plot is missing. The attorney was also informed verbally that the lease of the plot in favour of the petitioner has been cancelled in the year 1982. He was further informed by the Director (Recoveries) of the respondent that, according to his information, the plot has been converted into commercial and is being put to auction. The attorney of the petitioner requested the Director (Recoveries) to give him complete information in respect of the plot in writing. However, nothing in writing was given to the petitioner's attorney on the pretext that the file of the plot is missing. In June, 2001 the petitioner's attorney wrote a letter to the Director General of the respondent apprising him of the factual position and requesting him to issue necessary directions for tracing out of the missing file of the plot or reconstructing the same. Since no action was taken by the respondent, therefore, the petitioner filed the present petition on 25.08.2001 with the following prayer:
1. Declare that the verbal cancellation of the plot bearing, No.ST-1-C, Block 17, measuring 1937 sq. yards, situated at Scheme No.24, Gulshan-e-Iqbal, Karachi is illegal and of no legal effect.
2. Direct the respondent to restore Plot bearing No.ST-1-C, Block 17, measuring 1937 Sq. yards, situated at Scheme No.24, Gulshan-e-Iqbal, Karachi to the petitioner.
3. Declare that the conversion of the plot in question to commercial is illegal and of no legal effect.
4. Direct the respondent to reconstruct the file of the plot of the petitioner.
5. Restrain the respondent from auctioning/re-allotting/re‑leasing the disputed plot to any person.
6. Award cost of the petition, and/or
7. Grant such other relief or reliefs in view of the nature and circumstances of the case.
2. Mr. Mustafa Lakhani, learned counsel for the petitioner submitted that neither the lease has been cancelled in writing nor any show cause notice has been issued to the petitioner in respect thereof and till date the respondent, despite being granted several opportunities, has not been able to produce any document which may show that the lease of the plot in favour of the petitioner was ever cancelled or that any show cause notice was issued to her. He also submitted that even if it is assumed that the same has been cancelled then it was cancelled without any notice to the petitioner and thus the same was in violation of the rule of natural justice as no opportunity of hearing was provided to the petitioner. The learned counsel also submitted that the conversion of the plot from amenity to commercial is also illegal and unauthorized.
3. On the other hand, the learned counsel for the KMC contended that as per the terms and conditions of the lease executed in respect of the plot in favour of the petitioner, the lessee i.e. the petitioner was obliged to construct a building on the plot according to the approved building plan within five years of the issuance of the possession order and the building so constructed was to be used for the purpose of clinic only. This was not done and the respondent was thus fully justified in cancelling the lease of the plot.
4. On 05.09.2014, when this case came up for hearing, Mr. S. Sultan Ahmed, learned counsel for KMC, sought time to produce copy of the show cause notice and the minutes of the meeting of the Governing Body whereby the lease in favour of the petitioner was cancelled and, accordingly, time was granted and the case was adjourned to 12.09.2014 with clarification that if the said documents are not produced on the next date, no further time would be granted. On 12.9.2014, learned counsel for the KMC filed a statement along with a copy of resolution of the Governing Body along with its annexures; parawise comments dated 10.09.2014 and latest site report along with copy of layout plan. Thus, it is evident that the learned counsel failed to produce a copy of the show cause notice allegedly issued to the petitioner before cancellation of the lease.
5. A perusal of the lease deed executed by the respondent in favour of the petitioner shows that sub-para (8) of para 2 thereof deals with cancellation of the plot, which reads as under:
8) The Lessee shall construct a building on the demised plot according to the approved building plan within 5 years of the service of the order of possession by the Lands and Estates Department of the K.D.A. The said plot and the building and structures thereon shall be used for Clinic ... purpose only, and shall not be diverted to other use without the previous consent in writing of the Lessor. The covenants set out in this sub-paragraphs subject to sub-para (23) are of the essence of the contract and for breach of any of these covenants by the Lessee, the Lessor shall be entitled to forfeit the lease and to resume the plot.
6. Sub-para (23) of para 2 of the Lease reads as under:
"23). If the construction over the demised plot is not completed within the prescribed period and, at the Lessee's request, the Lessor agrees to withhold action under Sub-paragraph (8) and to grant extension to the Lessee, the granting of which shall be in the sole discretion of the Lessor and shall not operate as waiver of the Lessor's right under sub-paragraph (8) in case of any subsequent default on the part of the Lessee, the Lessee shall pay a non-utilization fee at the rate of 3% per annum of the total occupancy value for every six months or part thereof for such extended period."
7. As sub-para (24) of para 2 of the lease is also relevant, the same is also reproduced hereunder:
"(24). Time shall be the essence of this agreement and lease shall be cancelled if construction is not completed within the period specified by the KDA.
8. A perusal of the above quoted sub-paras of the lease agreement executed between the petitioner and the respondent clearly shows that time and again the mandatory word "shall" has been used therein and it has also been clarified and stated in unequivocal terms that the time would be of the essence of the contract. Thus, if the petitioner failed to construct a building, on the plot within the stipulated period and put it to the use as mentioned in the lease deed, then the Lessor i.e. the KDA/KMC would be fully justified and within its rights to cancel the lease and to resume the plot.
9. It may be mentioned here that the petitioner, as apparent from the perusal of the file, is living in USA for the last many decades. From none of the documents on record it appears that she is returning to Pakistan in near future. She has obtained the lease of the plot in the year 1974 and since then it is lying unused and the people of the area have been deprived of the facility of a clinic. This is a clear violation of sub-para (8) of para 2 of the lease and the lease of the plot was liable to be cancelled and the plot should have been resumed in accordance with law. However, although it is submitted on behalf of the respondent that the lease of the plot had been cancelled in the year 1982 but nothing has been placed on record to show that, in fact, the plot was cancelled and that any show cause notice, before cancellation of the lease of the plot, was issued to the petitioner. It is most unfortunate that even the original file of the plot is missing and neither the same could be recovered till date nor the same has been reconstructed. In such situation the respondent cannot defend itself. In this regard reference may be made to para (vii) of the comments filed by the counsel for KMC on 12.9.2014 which says that "due to non-availability of original file it cannot be ascertain(ed) that any show cause notice was issued for cancellation or not, and when cancellation letter (was) issued."
10. In view of the above, while there is a clear violation of the terms of lease on the part of the petitioner; but since the respondent has not been able to show that any show cause notice was issued to the petitioner before cancelling the lease or that the lease, in fact, was cancelled, therefore, we are of the opinion that the act of the respondent was in violation of the rule of natural justice.
11. There is yet another aspect of the case also. The lease deed executed, in favour of the petitioner is a registered document. It is well settled that a registered document cannot be cancelled without approaching a civil court of competent jurisdiction. In case there was any violation of the terms of the lease by the petitioner and the respondent considered it expedient to cancel the lease of the petitioner and resume the plot, it should have approached a civil court for cancellation of the lease deed executed in favour of the petitioner which for reasons best known to the respondent, was no done. In the present case the respondent purports to have cancelled the lease of the petitioner itself due to non-utilization of the said plot within the stipulated period after giving notice to the petitioner. Although neither a copy of the notice issued to the petitioner has been placed on record nor the cancellation letter itself has been produced by the counsel for the respondent, though ample time was given to him for producing the same, but even if the same were produced it would not have helped the respondent's case as the lease deed executed in favour of the petitioner, which was a registered document, cannot be cancelled without the intervention of the civil court. Thus, the respondent failed to adopt the proper procedure and instead of approaching a civil court for cancellation of the lease, cancelled the same itself. We are of the considered view that on this ground also the petition is to be granted.
12. In view of the above, we allowed this petition by our short order dated 12.09.2014. These are the reasons for the same.
13. Before parting with the judgment we may clarify that the respondent would be at liberty to take necessary action in accordance with law in case the petitioner again fails to raise construction on the said plot within the stipulated period and that the petitioner shall not use the plot for any other purpose except for which the plot was leased out to her by the respondent. The petitioner shall also be liable to pay necessary dues, including NUF, and other charges to the respondent in accordance with law. It also appears from the file that the petitioner is in the process of selling the plot to a builder but in this regard it should be ensured that the provisions of sub-para (2) of para 2 of the lease are complied with.
ZC/N-36/Sindh Petition allowed.