1989 PLP 1470 (CLC)

ABDUL RAHIM KAZI, J.‑‑The facts giving rise to the present petition are that the petitioner was minor in the year 1974 when his father Syed Noor Ahmad Shah had made an application to the then Chief Minister of Sind for allotment of a residential plot to the petitioner in the Housing Scheme and consequently a plot bearing No.D‑34 in Block D‑4 of K.D.A. Scheme No.5 Kahkashan (hereinafter referred to as the plot) was allotted to the petitioner and a challan was issued to him where under the petitioner paid 50% of the price amounting to Rs.25,000 and ground rent for one year amounting to Rs.60 only. The ,said challan bearing No.272 issued on 22‑3‑1975 was paid in the Habib Bank Ltd. K.DA.. Branch Karachi on 27‑3‑1975. The allotment order was issued on 7‑4‑1975 pertaining to the plot admeasuring about 1,000 Sq. Yds. The site plan was issued on 15‑4‑1975. The possession of the plot was handed over on 7‑5‑1975. On measurement the‑ actual area of the plot came to 993.75 Sq.Yds. which was duly acknowledged on 20‑8‑1975. The father of the petitioner then made an application on 23‑2‑1980 to the Additional Director (Lands) of the K.D.A. intimating them that the plot stands allotted in the name of his son, the petitioner and that he should be issued the. challan for the payment of arrears outstanding against the plot. By this application he also intimated the respondents that the original challan of the amount paid by him earlier was misplaced and therefore he also submitted an indemnity bond on the stamp paper of Rs.30 duly attested by Notary Public. The respondents K.D.A. then issued challan No.F‑257 on 20‑2 1980 for a total sum of Rs.35,039.54 being the arrears of occupancy value, ground rent up to 30‑6‑1981, transfer fee and interest which amount was paid in the Habib Bank Ltd. K.DA. Branch Karachi on 4‑3‑1980. However, thereafter the respondent No.3 issued a show‑cause notice to the petitioner on 17‑2‑1981 requiring him to give reply to a show‑cause notice issued earlier on 8‑2‑1981, a copy of which was enclosed therewith. Under the said show‑cause notice of 8‑2 1981 the petitioner was required to show cause within 15 days with regard to the following three irregularities committed in his allotment:‑ (1) There is no specific order of any competent authority for the allotment of the said plot. (2) You did not produce the original challan of first 25% occupancy value. (3) In the indemnity bond submitted by your father Syed Noor Ahmad Shah to issue the duplicate copy of challan of first 25% occupancy value, you have been shown a minor, whereas you have shown yourself a major of 38 years old in the application dated 7‑4‑1975 on the prescribed pro forma at the time of allotment of plot." The father of the petitioner submitted his explanation on 2‑3‑1981, but the respondent issued the orders on 17‑10‑1981 whereby the allotment of the plot in favour of the petitioner was cancelled. The petitioner therefore filed the present petition with the prayer that the said cancellation of the plot be declared to be without lawful authority and of no legal effect and further that the respondent be restrained from giving effect to the said cancellation order and also from dispossessing the petitioner from the plot. In reply to the above petition Mr.Shamsul Arfin, Assistant Director, Clifton Division, KDA. filed his counter affidavit wherein it was specifically contended that the allotment of the plot was cancelled for the reasons mentioned in the said show‑cause notice. It is also contended that there was no specific order of the allotment of the plot in favour of the petitioner by any competent authority and that the petition is not maintainable. In reply to the counter‑affidavit the petitioner, who had attained majority by now has filed affidavit‑in‑rejoinder in March, 1989. Wherein it has further been contended that no opportunity for hearing was given to the petitioner. We have heard learned counsel for the parties. Mr. Kamal Azfar, learned counsel for the petitioner has urged the following points:‑ (1) The grounds shown in show‑cause notice are not valid grounds for cancellation of allotment. (2) The show‑cause notice and cancellation order are in fact the orders passed by the Martial Law authorities and not the respondents and are mala fide. (3) Martial Law authorities did not have jurisdiction to direct the respondents to pass such orders of cancellation. (4) The petitioner has acquired vested rights in the said plot having fulfilled all the requirements. (5) The order of cancellation is against the principle of natural justice as no personal hearing was given to the petitioner. Repelling the above contention of the learned counsel for the petitioner Mr. Sabir Hussain Kazilbash learned counsel appearing for the respondents has submitted as under:‑ (i) There was no proper and lawful order of allotment of the plot in favour of the petitioner. (ii) That the application form contained false information about the age of the applicant petitioner and that in consequence of the certificate given at the foot of the application form, the allotment was validly cancelled. (iii) The cancellation of the allotment was by competent authority and not under the orders of Martial Law authorities." Taking up the first contention of the learned counsel for the petitioner, our attention has been drawn to the Allotment Regulations issued by the KDA. Lands and Estates Department published in the Gazette of West Pakistan of 27th August, 1965 which lays down the terms and conditions for allotment. Clause 6 of the said regulation provides for the procedure of allotment. Sub‑clause (b) provides that G.B. may allot or authorise the Chief Minister and Director General to allot a fixed number of such plots to individuals. It is also provided that the such allotments shall be subjected to the terms and conditions at Appendix A. From this the learned counsel has argued that the Chief Minister was quite competent to make allotment. He has then drawn our attention to the Appendix A to the above regulation which provides for the mode of payment of instalment, taking over the possession and the penalties to be inflicted in case of default of payment etc. He has specially referred to condition No.14 which reads:‑ "

14. On payment of the full occupancy value and all arrears of lease together with one year's rent in advance in respect of plot allotted to him the allottee will be entitled to a lease of the same for a period of 99 years upon the terms and conditions contained in the lease‑deed. The stamp duty and registration fee will be paid by the allottee. From this the learned counsel has submitted that having paid the entire consideration as per the copies of two challans submitted with the present petition, the petitioner has acquired vested right in the said plot which would not be cancelled for any reason other than those given in the terms and conditions as per above said Appendix A. The petitioner accordingly has submitted that the copy of the petitioner's application for allotment of the plot which has been produced by the petitioner along with his counter‑affidavit as Annexure A, shows that there is an endorsement: Challan No.27 dated 22‑3‑1975" This challan No.272 of 22‑3‑1975 is the one which the petitioner has produced with his memo. of petition under which the amount of 50% of. the occupancy value and one year's ground rent has been paid. He has contended that the respondents therefore cannot take the plea that there is no valid and lawful order of allotment in favour of the present petitioner, as this document comes from the record of the respondents and the obvious inference is that they had issued this challan in consequence of the order of allotment which fact is further supported by the allotment order, site plan and possession order. Therefore the first two grounds taken in the show‑cause notice are not tenable. With regard to the third ground taken in the show‑cause notice, the learned counsel has contended that it was the petitioner's father who had himself written to the respondents on 23‑2‑1980 stating therein that the plot stood allotted in the name of his minor son. He has also referred to copy of the indemnity bond produced by the respondents with their counter‑affidavit as Annexure B wherein also he has stated that his son Noor Muhammad Shah (minor) is the owner of the plot. Therefore, his contention is that the show‑cause notice issued on 8‑2‑1981 is not bona fide for the reasons that he has explained that the printed application form shows first three columns as name, father's name, age. It is his contention that the column of age is given below the column of father's name, and the petitioner's father was under the impression that it was his own age that was to be written and not the age of the minor, and under this misunderstanding he wrote his own age as 38 years and that this is a bona fide mistake for which he cannot be penalised. However, he has submitted that this is not a ground for cancellation of allotment as required under the above said regulation and the appendix. From the above submissions the learned counsel has contended that the petitioner has acquired vested right in the plot. Be that as it may, in our view these points involving factual aspects can best be determined by the respondent on the basis of the record. With regard to the second and third contention of the learned counsel for the petitioner, he has referred to the contents of para. 15 of the counter affidavit filed by the respondents wherein it has been specifically stated as under: "It is further submitted that the Martial Law Administrator, Headquarter MLA, Zone 'C' under letter dated 29‑1‑1981 had also ordered to take action for cancellation of the said plot on the ground that there is no specific order of the competent authority for allotment of the said plot, the allottee has failed to produce the original documents including the challan and that the plot was allotted to a minor on the misstatement of Syed Noor Ahmad Shah. On receipt of the order from the Martial Law Authorities the competent authority of the answering respondents after serving the show‑cause notice ordered for cancellation of the plot. The order passed by the Martial Law Authorities as well as by the competent authority of the answering respondents are just, legal and proper and fully warranted in law and passed in accordance with the rules and regulations in force. His submission therefore is that admittedly the action has been taken by the respondents under the orders of the Martial Law Authorities who were not the competent authority to order cancellation of the plot. In reply to the above contention, Mr. Sabir Hussain Kizilbash, learned counsel for the respondents, has stated that the order of cancellation was passed by the respondents of their own accord and not under the directions of the Martial Law Authorities as is apparent from the order itself which is passed by the competent authority on the basis of record. Lastly the learned counsel for the petitioner has urged that the impugned order was passed without giving any personal hearing to the petitioner which fact has been asserted in his affidavit‑in‑rejoinder. He has further argued that .it was incumbent upon the respondents to have given personal hearing to the petitioner before ordering the cancellation of the allotment. The learned counsel has referred to the case of Pakistan Medical Association, Karachi v. Government of Sind and 5 others 1979 CLC 382; wherein it has been held, "furthermore the petitioner ought to have been heard before unilateral cancellation of the allotment of the plot in its favour as held by a Division Bench of this Court in the case of Haji Noor Mohammad and another v. K.D.A. and others PLD 1975 Kar. 373 their Lordships have held:‑ "This, however, does not mean that the K.DA. or the Chairman would act in an arbitrary, discriminating or in a capricious manner or that the allottee was not to be given a fair opportunity of presenting his case or that any representation or cause shown by him was not to be examined or taken into consideration." The learned counsel for the petitioner has also placed reliance on the case of Yar Muhammad v. K.DA. PLD 1976 Karachi 830; wherein it has been held that, "The mere fact that an allotment order could be cancelled without giving reason does not abrogate the rule of natural justice that the aggrieved party has to be heard before an order affecting his right is passed. The allotment order issued in favour of the petitioner's father conferred an important right upon him. In fact the reason given by respondent No.l, in its letter dated 17‑10‑1973, for canceling the allotment in favour of petitioner's father was that the old allotment order in favour of Hidayatullah had been cancelled without notice to him, and such cancellation, according to the legal advice received by the K.DA., was illegal. We are of the opinion that the K.DA. while canceling the allotment order in favour of the petitioner, should have given the petitioner a show‑cause notice, as was suggested by its Legal Adviser in respect of respondent Hidayatullah." The case of the petitioner that the petitioner or his father were not given the personal hearing has not been controverted by Mr. Kizilbash, learned counsel for the respondents which became an admitted position. We are inclined to follow the principles laid down in the above 3 Division Bench cases of this Court and hold that the order of cancellation of the allotment of the plot is contrary to the principles of natural justice (audi alteram partem). We, therefore, set aside and quash the impugned order of 17‑10‑1981, whereby, the respondents cancelled the petitioner's allotment of the plot and remand the case to respondent No.3 with the directions to give an opportunity of being heard to the petitioner and pass a proper order after taking into consideration the submissions of the petitioner. The petition stands allowed in the above terms. However, there will be no order as to costs. AA./N‑181/K Petition accepted.