1994 PLP 338 (MLD)

MAMOON KAZI, J: --The petitioner is aggrieved by the show-cause notice dated 22-9-1987 received by him from Pakistan Defence Officers Housing Authority, the respondent in this case, requiring him to show cause as to why allotment of Plot No. 32-C, situated at Iqbal Commercial Lane No. 2, Phase VIII, Measuring 100 sq. yds, in Pakistan Defence Officers Housing Authority which was made in the name of the petitioner may not be cancelled. The reasons for such action given in the said notice are that the said plot had been allotted to the petitioner by the Dissolved Pakistan Defence Housing Authority, the predecessor of the said respondent, in contravention of Bye-laws of the said Society. The purported action has been taken under Article 17 of the Pakistan Defence Officers Housing Authority Order (President's Order VII of 1980). The facts of the case are that the petitioner had applied on 4-10-1973 for the membership of the Pakistan Defence Officers Cooperative Housing Society and his application for membership was accepted by the Managing Committee of the said Society. The petitioner's eligibility for the Membership was accepted in terms of Bye-laws VIII(1) of the said Society. Thereafter, the petitioner applied for allotment of residential plot measuring 2,000 sq. yards in Phase VI in the said Society and his application was granted and the petitioner was allotted Plot No. 111 in the said Society. In the year 1981 the said Society was dissolved and Pakistan Defence Officers Housing Authority came into existence by virtue of the said President's Order. Thereafter, the petitioner applied for another plot and a commercial plot bearing No. 32-C situated at Iqbal Commercial Lane 2, Phase VIII measuring 100 sq. yds. was allotted to him on 10-8-1981 and allotment order in respect of the said plot was issued to the petitioner. The petitioner in terms of the said allotment order paid the entire costs and other charges for the said plot. Thereafter, after elapse of about twelve years a notice dated 22-9-1987 served upon the petitioner threatening cancellation of the said plot, reference to which has already been made in this judgment. The main contention of Mr. Syed Sami Ahmed, learned counsel for the petitioner before us has been that Article 17 of the said President's Order under which action has been purportedly taken is not attracted at all in the present circumstances of the case. The learned counsel has pointed out that clause (h) of Article 17 authorises the said Authority to cancel all such allotments which were made or issued in contravention of the Bye-laws of the Dissolved Defence Officers Housing Society. Since, admittedly the plot in question was allotted to the petitioner in contravention of Bye-laws by dissolved Society, the authority constituted under the said President's Order, Article 17 was not attracted at all to the present case. No doubt Article 18 of the said Order also empowers the Authority to cancel any allotment, transfer, licence or lease in respect of any plot and house unit etc. but such action can be taken only when the transferee or allottee fails to pay the dues or instalments including the development charges etc. in. respect of plot or housing unit. In such case action is to be taken in the manner provided under Article

18. Admittedly, neither Article 18 is attracted in the circumstances of the present case nor the impugned action is purported to be taken under the said Article. Mr. Munawar Malik, learned counsel for the respondent has argued that in fact the membership of the petitioner which is in question and since the petitioner is entitled to apply by virtue of his membership first to dissolve Society and then the present Authority, therefore, the basic question pertains to the membership of the petitioner. The arguments appears to be without any force because neither Article 17 would be attracted in instant case nor the show-cause notice indicates that the membership of the petitioner was in question. We are, however, of the opinion that there is another aspect of the matter which has not been considered by either of the counsel in this case, section 21 of the General Clauses Act, 1897 is as follows:

"Power to make, to include power to add to, amend, vary of rescind orders, rule or bye-laws. Where by any (Central Act) or Regulation, a power to (issue notifications), orders, rule or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any (notifications), orders, rules or bye-laws so (issued)." The above section clearly indicates that if any power is exercisable by virtue of any Central Act or Regulation to issue notifications, orders, rules etc. such power would also include a power- to add to, amend, vary or rescind any such notification, order etc. It, therefore, follows that if the said authority would pass order allotting the plot in question to the petitioner can also pass are order cancelling such allotment. The only case in which exercise of such power is restricted is that of locus poenitentiae. In the present case, it is not the case of the petitioner that on the basis of the allotment, he has taken any such steps which are not possible for him to retrace. Subsequently in our view even if Article 17 or Article 18 of the said President's Order, action can be taken by the respondent under section 21 of the General clauses Act. We find that show-cause notice issued by the respondent is not completely without justification because the petitioner, according to his own showing, was granted membership of dissolved Society by virtue of Bye-Law No. 8(1). The said bye laws provides as under:

"Notwithstanding anything contained in Bye-Law No. 3 associate membership of the Society without right of vote or the privilege of full membership may be granted at the discretion of Managing Committee to the following categories of persons:

(1) Persons not otherwise eligible under Bye-Law No. 7 in whose favour to special circumstances and for special reasons allotment has been made by the Managing Committee, or otherwise." Nothing has been placed before us, to show that what were special circumstances or special reasons on account of which the application of the petitioner for membership of the Society was granted. Admittedly, the petitioner was not elgible to membership of the Society under Bye-Law No.

7. Furthermore, we find that only a show-cause notice has been given to the petitioner and final action is yet to be taken in the matter. The petitioner can always approach the concerned officers of the respondent and Mr. Munawar Malik, learned counsel for the respondent states that in case the petitioner approaches his view point will be considered before any final action is taken by the respondent in the matter. The petitioner would g be at liberty to appear before the Authority alongwith his Advocate. The upshot of the discussion is that subject to the above observations we find no force in the present petition and the same is, therefore,, dismissed. The parties are left to bear their own costs. H.B.T./Z-217/K Petition dismissed.