1993 PLP 2135 (CLC)

SH. IJAZ NISAR, J.‑‑‑Rana Muhammad Sarwar, Advocate was allotted a plot out of the Supreme Court, Advocates' quota by the C.DA. on 2‑9‑1975. An intimation to this effect was conveyed to him vide Letter No.CDA/EM‑33(78)74‑Policy, Islamabad, September 2, 1975. The mode of payment of the price to be remitted by the allottee was mentioned therein. At the foot of the said letter it was mentioned that the allotment was subject to the terms and conditions already furnished in the form of brochure published alongwith the application form.

2. It is alleged that the allottee made a default in the payment of first two installments. Consequently, his allotment was cancelled on 8‑10‑1977. The allottee made a representation to the C.DA.(appellant) that the cancellation was not justified, for, no show‑cause notice had been issued to him, but the C.DA. did not restore his allotment.

3. Feeling aggrieved, Rana Muhammad Sarwar, the allottee filed writ petition in the High Court challenging the cancellation of the allotment of his plot. It was accepted by a learned Single Judge on 24‑9‑1983. The learned Single Judge observed that the principles of natural justice had been violated, in that, no show‑cause notice was served on the allottees' before taking the impugned action. It was further observed "that he was entitled to a reasonable opportunity of showing cause against the impugned cancellation. Since the same was not afforded to him; therefore, on that score alone the impugned cancellation was liable to be struck down".

4. Accepting the writ petition, the learned Single Judge directed the respondent to pay the balance premium of the plot in lump sum with prescribed interest within one month of the receipt of the demand notice by him from the C.DA.

5. The C.DA. has filed this I.CA against the order of the learned Single Judge. It is contended that since there was contractual relationship between the parties there was no occasion whatsoever for the issuance of any show cause notice. It is further maintained that the cancellation of allotment was justified because of the failure of the respondent to pay the installment within the prescribed period.

6. The respondent contends that since the C.DA. is a Statutory Authority with its statutory duty to prepare Housing Schemes and make allotment of plots, it was not a case of simple agreement between two private parties but performance of statutory obligations and functionary a statutory authority, therefore, Constitutional jurisdiction could be invoked. In this behalf reliance has been placed on Pakistan Medical Association, Karachi v. Government of Sindh and others (1979 CLC 382). It is added that this objection was neither raised before the learned Single Judge nor specifically mentioned in the grounds of appeal. ,

7. We have perused the terms and conditions of allotment issued by the Capital. Development Authority, Islamabad in March, 1974 in respect of residential plots in Sector F/10, where the plot in question falls. Condition No.8 provides that if any amount of premium, annual ground rent etc. is not paid by the due date, a simple interest at the rate of 10% (as may be revised from time to time) will be charged by the Authority. Condition No.10 provides that if any amount whether of premium, annual ground rent etc. is not paid balance of the interest due thereon, remains in arrear for more than two months after it becomes due, the C.DA. shall have the right to cancel the allotment. It is implied from the wording of Condition No.10 that the allottee shall be given a notice requiring him to pay the outstanding amount and if he fails to do so within a period of two months his allotment shall be liable to cancellation. The issuance of the notice to the allottee was also necessary because the alleged non‑payment of dues was a rectifiable breach. This proposition was considered in Mst. Zenab Bibi and others v. Commissioner, Lahore Division etc. (PLD 1976 Lah. 820) and it was held that resumption of Ihatas without giving notice to the allottee calling them upon to rectify breach was without lawful authority. There is no substance in the contention of the s learned counsel for the appellant that letter of allotment dated 2‑9‑1975 shall be treated as notice, because there is no indication at all of the consequences of default in the payment in the said letter.

8. It is an admitted position that in the present case no notice was issued by the appellant to the respondent to clear the dues nor was any show‑cause notice issued to him against the impugned cancellation, therefore, the impugned notice was violative of the maxim "Audi alteram partem". The principles of natural justice were also violated by the appellant in taking the unilateral action of cancellation of allotment. In the above circumstances, the impugned cancellation of the plot of the respondent was rightly declared to be without lawful authority and of no legal effect. The appeal has, therefore, no substance and merits dismissal.

10. We order accordingly. The appellant is directed to issue demand notice to the respondent indicating the outstanding amount, which he shall pay within one month of its receipt, in lump sum.

11. The parties are left to bear their own costs. M.BA./C‑26/L Order accordingly.