IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
Present: 
Mr. Justice Nasir-ul-Mulk, CJ 
Mr. Justice Gulzar Ahmed 
Mr. Justice Mushir Alam 
 
 
CIVIL APPEAL NO.1481 OF 2007 
[On appeal against the Judgment dated 16.06.2007, 
passed by the High Court of Sindh, Karachi, in 
C.P.No.D-1549 of 2005] 
 
 
Province of Sindh through its Chief Secretary 
& 8 others 
Appellant(s) 
VERSUS 
Syed Kabir Bokhari 
Respondent(s) 
 
 
For the Appellant(s) 
  
[Appellants No.1, 4, 6-9] 
: Mr. Qasim Mirjat Addl.A.G. Sindh 
Raja Abdul Ghafoor, AOR 
 
[Appellants No.2, 3 & 5] 
: Syed Jamil Ahmed, ASC 
Raja Abdul Ghafoor, AOR 
 
  
For the Respondent(s) 
: Dr. A. Basit, Sr. ASC 
 
  
Date of Hearing 
: 10.02.2015 
 
 
JUDGMENT 
 
GULZAR AHMED, J.—  The brief facts of the matter are that 
through two identical allotment orders dated 23.2.1976, Karachi 
Development Authority (KDA), on acceptance of highest bid of the 
respondent, had allotted two kiosks Plot No.1 and Plot No.2 in Block 
IV, each measuring 100 Sq.Yards, in Scheme No.5, Kehkashan, 
Clifton, Karachi at the rate of Rs.505/- per Sq.Yard (the disputed 
plots). Through possession orders both dated 24.2.1976 the KDA 
handed over the possession of disputed plots to the respondent. The 
possession order provided that 99 years lease will be granted on 
C.A.No.1481 of 2007.doc 
2
payment of full occupancy value. It is further alleged that respondent 
has paid the full occupancy value of the disputed plots. Subsequently 
it transpired that in the master plan of KDA Scheme 5, Kehkashan 
Clifton, Karachi made by the KDA and notified on 06.10.1964 there 
was no land earmarked for the purpose of two kiosks and the 
allotment of the disputed plots to the respondent was illegal. Two 
show cause notices, both dated 14.7.2005, were issued by the CDGK, 
Land Management Department (Successor of KDA) for canceling the 
allotment of the disputed plots of kiosks Nos.1 & 2 on the ground that 
respondent has failed to raise construction on the disputed plots 
within stipulated period of two years from the date of possession and 
further the disputed plots were carved out from amenity plot without 
completing the codal formalities and thus the allotment order was  
ab initio void and illegal. Through two letters both dated 05.8.2005 
the allotment of the disputed plots of kiosks Nos. 1 & 2 were 
cancelled. The respondent filed C.P.No.D-1549/2005 in the High 
Court of Sindh at Karachi challenging the cancellation orders. The 
learned Division Bench of High Court of Sindh at Karachi, through 
short order dated 30.5.2007, allowed the said petition and directed 
the respondents (the appellants in the present appeal) to execute 
lease deed in favour of the petitioner (respondent herein) of the 
disputed plots of kiosks No. 1 & 2 and also transfer the site in terms 
of the allotment orders. The detailed judgment was given on 
16.6.2007. The appellant challenged the said judgment in this Court 
and vide order dated 09.8.2007 leave to appeal was granted to 
consider the following questions: 
 
i) 
Whether, in the facts and circumstances of 
the case, the plots viz: kiosk Nos. 1 and 2 
allotted to the respondent in the year 
1976 through open auction could be 
C.A.No.1481 of 2007.doc 
3
cancelled in the year 2005 on the ground 
that 
in 
revised 
plan 
prepared 
by 
Government the same were carved out 
from the land originally meant for amenity 
purposes particularly when after such 
cancellation the very kiosks have been 
advertised by City District Government for 
public auction as commercial plots? 
 
ii) 
Whether the cancellation f allotment of 
plots in dispute after full payment received 
from respondent and possession handed 
over to him was validly and legally made 
after twenty nine years of the allotment? 
 
 
2. 
We have heard the learned counsel for the parties at length and 
have also gone through the record of the case.  
 
3. 
There is no dispute between the parties on the factual 
controversy that is the allotment of disputed plots to the respondent, 
the payment of its price/occupancy value, delivery of possession, 
issuing of show cause notice and cancellation of disputed plots. The 
main argument revolved before us was on the question that disputed 
plots were part of an amenity plot. The fact that the disputed plots 
become part and parcel of parking lot for providing parking facility to 
the public is also not in dispute for that there is a inspection report of 
Deputy Nazir of High Court dated 15.12.2005 so also the report dated 
18.10.2012 of the Office Incharge of the Supreme Court of Pakistan, 
Branch Registry Karachi, wherein the position reflected on the ground 
is that the disputed plots are shown to be part and parcel of parking 
lot made by the CDGK. It was proposed by the counsel for respondent 
that the respondent is prepared to accept the cancellation of the 
disputed plots for use as a parking space for public provided the 
respondent is paid appropriate compensation in that respondent has 
acquired proprietary right in the disputed plots and such right cannot 
be denied or taken away.  
C.A.No.1481 of 2007.doc 
4
 
4. 
Both learned Additional Advocate General Sindh appearing for 
the appellant Nos. 1, 4, 6 and 9 and Syed Jameel Ahmed learned ASC 
appearing for the appellant Nos. 2, 3 & 5 have sought time to seek 
instructions from their respective parties on the point of payment of 
compensation but despite availing of ample time, no response has 
been made by the above named two counsel for the appellants. It 
therefore, transpires that the appellants are not willing to pay 
compensation to the respondent in respect of disputed plots.  
 
5. 
On perusal of the record, we find that in the revised layout plan 
of Kehkashan, Scheme 5, Clifton, Karachi made in the year 1972, a 
copy of which is attached with CMA No. 4472/2011 filed by the counsel 
for respondent, does not anywhere reflect availability of any land or 
plots for the purpose of kiosks. There is land showing cross lining in 
front of which is an open land. In this open land perhaps the petitioner 
in his own hardwiring has shown to be having the deputed plots of two 
kiosks. Yet another copy of another revised layout plan of 1975 is 
attached with the same CMA, which also reflects that the similar 
position of land, which is shown in the revised plan of 1972 except that 
there is an insertion of two squares, which are shown to be located 
outside the cross lining area. The respondent in his letter dated 
10.7.2003 addressed to the District Executive Officer, Master Plan 
Group of Office, CDGK has himself stated that due to error the KDA at 
the time of making the Master Plan of Kehkashan Clifton Scheme 5 
Karachi two kiosks were not included in the master plan and requested 
for their incorporation in the master plan. This very letter of 
respondent lend support to the fact that in the master plan of 
Kehkashan, Scheme 5, Clifton, Karachi there was no existence of any 
plot for kiosks.  
C.A.No.1481 of 2007.doc 
5
 
6. 
It is not the case of respondent before us that the disputed 
plots allotted to the respondent were the plots meant for commercial 
use and such also does not appear to be the position emerging on 
examining the two master plans as referred above. The master plan 
shows that the land having cross lines apparently is meant for 
amenity/land for public use and not a space/land meant for allotment 
for use in commercial venture. Depiction of two squares in the 
revised master plan of 1975 is outside the lined area does not appear 
to be factually correct as has become known from the two reports; 
one submitted by the Deputy Nazir of High Court of Sindh and the 
other of Office Incharge of this Court in which the disputed plots are 
shown to be part and parcel of parking lot of CDGK and not out side 
it. The land immediately outside the parking lot is a beach, which 
become submersible by sea water on high tide.  
 
7. 
All these factors show that the disputed plots allotted to the 
respondent were carved out from amenity plot/land for public use 
and such allotment being admittedly made for commercial use was 
directly in conflict with the Article 52-A of the KDA Order, 1957 which 
specifically provided for procedure for seeking of conversion of 
amenity plot for other use. Admittedly, there is no order whereby use 
of plot from that of amenity to that of commercial was sanctioned by 
competent authority in respect of disputed plots.  
 
8. 
It may further be noted that the allotment of disputed plots was 
made as back in the year 1976 but despite having possession, the 
respondent took no steps for raising construction and rather left the 
disputed plots as they were at the time of allotment and possession 
that is a bare site. The respondent has given an explanation for not 
C.A.No.1481 of 2007.doc 
6
raising the construction that is the officials did not develop the area 
nor provided the utility. The fact however remains that for almost 29 
years respondent remained inactive and did not use the disputed 
plots for the purpose for which they were allotted. This fact of non-
use of disputed plots by the respondent reflects heavily against him 
and shows that very purpose of allotment of disputed plots was 
other-wise than use by the respondent as kiosks.  
 
9. 
Though, it is contended by the respondent that these disputed 
plots and other plots were being offered for ten years lease by the 
CDGK for their commercial exploitation seems to be correct but such 
venture was scrapped for the reason that the disputed plots stood 
already allotted to the respondent. We do not know nor do we want 
to comment upon the venture of CDGK of giving plot on ten years 
lease for commercial exploitation. Had such venture been executed, 
the same on the basis that amenity plots cannot be used for 
commercial exploitation would have definitely been set aside.  It may 
be observed that the residents of Karachi have over time been denied 
of 
amenity/land 
for 
public 
use 
by 
their 
illegal 
occupation/ 
encroachments and also by public functionaries by making false 
allotments/transfers, which has clogged the city and denuded it from 
much needed open spaces for the residents as a breather and a 
space where they can walkout freely. This facility for the residents of 
the city of Karachi seems to have been totally vanished. In our view, 
CDGK so also Government of Sindh should take immediate steps for 
restoring of amenity/land for public use for which they were 
exclusively provided in the original master plan of city of Karachi. It is 
so strange to note that the whole of the beach of the city of Karachi 
totally looks barren devoid of any plantation or greenery except much 
C.A.No.1481 of 2007.doc 
7
acclaimed Bagh-e-Ibne Qassim, which apparently is not being 
maintained in a way the park of such magnitude is required to be 
maintained.     
 
10. 
Despite the above discussion, it is clear that it was the KDA 
who has offered the disputed plots to the respondent who through a 
bidding process has made the highest offer and on acceptance of 
such offer has got allotment of disputed plots in his favour. He has 
also paid whole of occupancy value/price of disputed plots and has 
obtained their possession, which possession letter represented giving 
of lease of 99 years of disputed plots on receipt of full occupancy 
value/price. The respondent cannot be squarely blamed for illegal 
conduct of officials of the KDA in making of allotment of amenity plot/ 
land for public use to the respondent. The respondent admittedly has 
paid substantial amount in the shape of whole occupancy value/price 
of disputed plots and thus cannot be deprived of his funds so paid by 
him to the KDA now the CDGK. Although the respondent did not 
acquire any title to the disputed plots but the fact remains that he did 
pay for disputed plots and such was done by him on illegal and 
unlawful conduct of officials of then KDA. The Government and its 
department are bound to act justly and fairly with the citizens of the 
country and in case of illegal and unlawful conduct of the government 
and its officials of department any loss is caused to the citizen of this 
country, 
same 
is 
appropriately 
be 
compensated. 
This 
is 
a 
fundamental rule and also principle of equity. The learned ASC for the 
respondent during the course of hearing of this appeal has contended 
that in case the respondent is found not entitled to the disputed plots 
of the two kiosks, the respondent be paid compensation at the 
prevailing market rate of the disputed plots and in this respect has 
C.A.No.1481 of 2007.doc 
8
referred to the advertisement published in daily newspaper Dawn 
dated 16.11.2005 in which offer of public auction of plots by the 
CDGK on the Clifton Beach for setting up stalls etc on short lease of 
ten years with a bid price of Rs.15,00,000/- per year. Similar position 
has been taken by the respondent in his CMA No.581/2015. We have 
already noted above that the land, on which the disputed plots were 
allotted to the respondent, was an amenity plot/land for public use 
and thus not available for being allotted for commercial exploitation. 
No lease of 99 years was made in favour of the respondent. The 
respondent himself did not utilize the two plots for almost 29 years 
though in possession. Although, on the basis of fundamental rules so 
also principle of equity the respondent is entitled to be compensated 
but the compensation as is claimed by the respondent is not what in 
the facts and circumstances of the present case such principle will 
admit. The offer of plot by public auction by the CDGK in 2005 at the 
rate of Rs.15,00,000/- per year never materialized and thus it cannot 
form basis for granting of compensation. Yet the illegality committed 
by the officials of KDA in dolling out the disputed plots out of the 
amenity plot/land for public use cannot give advantage to the 
respondent so as to enrich himself from such illegality. In all fairness, 
the respondent can well be compensated by directing refund of the 
amount received from him as the occupancy value/price of land by 
the appellant alongwith interest/markup at the rate of 18% per 
annum from the date of the receipt of occupancy value/price of land 
until it is actually refunded. Consequently, the appeal is partly 
allowed by setting aside the impugned judgment with directions to 
the appellants Government of Sindh/CDGK to refund to the 
respondent all the amount of occupancy value of disputed plots 
alongwith markup at the rate of 18% per annum from the date of 
C.A.No.1481 of 2007.doc 
9
occupancy amount received till the amount is actually paid to the 
respondent.   
 
 
 
 
 
CJ. 
 
 
 
 
Bench-I 
ISLAMABAD 
J. 
 
10.02.2015 
NOT APPROVED FOR REPORTING 
*Hashmi* 
J. 
 
 
Announced in open Court on  
11.08.2015 
 
 
 
 
 
 
 
J. 
 
 
 
 
