1996SCMR755 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.

This petition for special leave to appeal is directed against the judgment of the Lahore High Court, Multan Bench, Multan, by which Intra-Court Appeal filed by the petitioner against the order of a learned Single Judge of that High Court was dismissed on 27-3-1995.

2. The brief facts forming the background of this petition are that in the early fifty's the Multan Improvement Trust, Multan introduced a Housing Scheme called as Officers Colony. The management of the Scheme including right of allotment of its plots was entrusted to a registered Society named as Government Gazetted Officers House Building Society Limited, Multan. Sardar Atta Muhammad Khan Leghari since dead and represented by Mst. Fatima Ires Begum and 3 others; respondents Nos.(i) to (iv), was allotted Plot No.5-E measuring 16 Kanals and 3 Marlas. It is no more in dispute that he failed to construct the house on the plot within the stipulated period of one and a half year of the allotment. In consequence, the Society vide its Resolution dated 18-6-1972 cancelled the allotment of plot in the name of the. deceased respondent. On 16-12-1976 the Punjab Development of Cities Act (Punjab Act.XIX of 1976) (hereinafter called as the Act) was enacted, inter alia, for regulating planning and development of certain cities in Punjab particularly in the fields of Housing, Industrial Development, Traffic and Transportation etc. By virtue of this enactment the Multan Improvement Trust, Multan, stood abolished and its rights and obligations devolved upon Multan Development Authority (to be hereinafter called as M.D.A.) constituted under section 4 of the Act. It also provided that in pursuance of the provisions of MLR-25 no plot shall be in excess of two Kanals in the area. Pursuant to this direction, the M.D.A. carved out 14 plots of one Kanal each out of Plot No.5-E. In this manner, plots of one Kanal and two Kanals were allotted to 8 persons including the petitioner on 31-1-1983. The petitioner had paid the entire price of the plot.

3. After cancellation of the allotment of plot in dispute Sardar Atta Muhammad Khan Leghari made several representations to different Authorities but without any success. Ultimately, he approached the Chief Minister Punjab "(who happened to be Chairman of M.D. A. under the Act)." The Chief Minister directed an inquiry to be held by the Commissioner Multan Division, Multan. On 14-5-1986, he submitted his report to the Chief Minister and thereupon the latter issued directive to the Director-General, M.D.A. for "immediate restoration of the plot and delivery of its possession to Sardar Atta Muhammad Khan Leghari". In consequence the allotment of plot in dispute to the name of the petitioner was cancelled on 10-10-1986. The petitioner challenged this order of cancellation of plot in Writ Petition No.1437/1986. It was principally contended before the learned Single Judge, who was seized of the matter, that the petitioner had paid the entire price of plot; that he had been? condemned unheard; and that by accepting the price of plot from the petitioner the M.D.A was estopped from cancelling the same. The learned counsel for, the respondent No.2 opposed the petition and maintained that after cancellation Of the plot from his name respondent No.2 had invoked the arbitration clause, and petitioned before the Registrar of Cooperative Housing Society who appointed one Anwar Gillani as Arbitrator who held that the cancellation of plot from the name of respondent No.5 was illegal and without lawful authority; that no appeal had been filed against the Society/Improvement Trust/M.D.A. In challenge the award; and lastly that the Commissioner had also directed the cancellation of plot from the name of the petitioner to be illegal and without lawful authority. Resultantly, the Registrar, Cooperative Housing Society while accepting the award recommended the cancellation of plot allotted to the petitioner.

4. The learned Judge in Chamber came to the conclusion that the predecessor-in-interest of respondents Nos.5(i) to 5(iv) had paid the entire sale price within time but as the vacant possession .of the plot had not been delivered to him with 1/1-2 years of the allotment, he was not responsible for not constructing the house within the stipulated period. It was further held that late Sardar Atta Muhammad Khan Leghari 'after the cancellation of the plot had invoked- the arbitration clause of the agreement; that the Arbitrator had announced the award in his favour which amounted to the decree of the Court; that having not been challenged by the Society/M.D.A., the award had attained finality; and that upon the directions, of the Chief Minister the Commissioner had conducted a thorough inquiry and had found that the cancellation of the plot allotted to late Saradr Atta Muhammad Khan Leghari was without lawful authority. It was thus concluded that the Chief Minister/Chairman, M.D.A. was quite competent to restore the allotment of the plot to late Sardar Atta Muhammad Khan Leghari. The writ petition was, therefore, dismissed. ???????

5. Feeling aggrieved, the petitioner filed Intra-Court Appeal No.64/1991. A learned Division Bench of the Lahore High' Court, Multan Bench, Multan held that the cancellation of plot on 18-6-1972 on the ground that late Sardar Atta Muhammad Khan Leghari had failed to raise any construction over the plot in question within a period of 1/1-2 years was illegal holding that "it is since long well-settled that in cases relating to sale of immovable property the time is not essence of the contract and the mere failure to raise construction within the period fixed in the agreement cannot result in cancellation of the transfer". In support of this proposition reliance was placed on Sh. Muhammad Shafi v. The Lahore. Improvement Trust (PLD 1959 Lahore 1). It was furthkr observed that "it is a common ground between the parties that at the time when the plot was allotted to respondent No.5 and even for a lopg period thereafter it was occupied by certain quarters and as such its possession could not be delivered to him". The learned Judges of the Division Bench "failed to understand as to how in the absence of delivery of possession, could respondent No.5 be penalised for not raising any construction over the plot". As a cumulative effect of these observations, the Intra-Court Appeal was found to be without any force and was accordingly dismissed.

6. Ch. Mushtaq Masood, learned counsel for the petitioner, at the first instance, invoked the principle of natural justice enshrined in the maxim: ' audi alteram partem', namely, that nobody should be condemned unheard and submitted that before cancellation of the plot on `10-10-1986 the petitioner was neither heard nor was given an opportunity to defend his allotment. It was next contended that the alleged award of the Arbitrator dated 27-7-1975 having not been made the rule of the Court could not be given legal effect. It was lastly contended that the learned Single Judge in the High Court as well as the learned Judges of the Division Bench have fallen into an error to hold that the Chief Minister was competent to order the cancellation of plot of the petitioner and invoked the provisions of section 4(4) of the Act whereunder the Minister Incharge of Housing and Physical Planning Department was the Chairman and not the Chief Minister, therefore, any order passed by the latter was without lawful authority and of no legal effect.

7. Mian Zafar Yasin, learned counsel; for the legal representatives of respondent No.5, on the contrary, has supported the impugned orders of the learned Single Judge and the learned Judges of the Division Bench and has reiterated the arguments which had been advanced before them.

8. Leave to appeal is granted to consider the following propositions:-- (i) Whether the petitioner had a right to be heard before the allotment of his plot had been cancelled by the respondent on 10-10-1986? (ii) Whether the learned High Court was correct to hold that it was not necessary to hear the petitioner before the order of cancellation of the plot was passed? (iii) Whether the award given by the Arbitrator on 27-7-1975 having not been made the rule of the Court has got any legal value? (iv) Whether it was the Authority constituted under section 4(4) of the Punjab Development of Cities Act (Punjab XIX of 1976) competent to order the allotment/cancellation of the plot falling within the jurisdiction of Multan Development Authority and not the Chief Minister. A.A:/F-382/5?????????????????????????????????????????????????????????????????????????? Leave granted.