2015 PLP 799 (SCMR)

IJAZ AHMED CHAUDHRY, J.

Through this appeal, the appellant has challenged the impugned judgment passed by the learned Peshawar High Court, Bannu Bench vide which the Civil Revision filed by the respondents was accepted and the judgment and decree of the learned Appellate Court was set aside and that of the learned Trial Court dismissing the suit of the appellant was restored/maintained.

2. Briefly stated the facts of the matter are that the appellant filed a suit for declaration to the effect that he was allotted a plot measuring 6.3 kanals in Bannu Township by the respondents vide letter dated 18-1-1992 pursuant whereof he had deposited Rs.1,50,000 as advance and any proceeding for cancellation of allotment order is ineffective on his rights and is liable to be struck down. The suit was contested by the respondents and in view of the divergent pleas, several issues were framed. The learned trial Court vide its judgment dated 3-9-2002 dismissed the suit. The appellant preferred appeal before the learned Appellate Court/Additional District Judge Bannu which was accepted vide judgment dated 3-3-2004 and the order of the learned trial Court was set aside. Being aggrieved, the respondents/defendants filed Civil Revision No. 144 of 2004 before the Peshawar High Court which stood dismissed vide order dated 2-2-2009. The respondents then filed Civil Petition No. 187-P of 2009 before this Court, which stood allowed by this Court on 1-10-2012 and ultimately the matter was remanded back to the learned High Court for decision afresh in accordance with law. In post remand proceedings, the Civil Revision of the respondents/ defendants has been accepted by the learned Peshawar High Court vide impugned order dated 22-1-2013, as a result whereof the suit of the appellant was dismissed. Hence this appeal.

3. Learned counsel for the appellant has submitted that the respondents/defendants could not have cancelled the allotment as it was an outright sale and they could only recover the balance sale price; that the scope of revision petition before the High Court is very limited and the same is only to the extent of correction of any patent illegality; that there is no material defect in the judgment of the Appellate Court; that the respondents/defendants themselves after accepting the sale price cannot turn around and insist on cancellation of the allotted land; that the late payment should not be taken into consideration which even has been ultimately paid as per the decree of the First Appellate Court; that the cancellation order was passed without hearing the appellant/plaintiff and that the impugned judgment suffers from misreading and non-reading of evidence and the same is liable to be set aside.

4. Learned counsel for the respondents Nos. 3 and 4, on the other hand, has defended the impugned judgment.

5. We have heard learned counsel for the appellant as also learned counsel for the respondents Nos. 3 and 4 and have gone through the evidence on record.

6. Admittedly the appellant requested the Project Director Dera Development Authority, D.I. Khan vide application dated 27-8-1991 for allotment of a plot in Bannu Township for a private school. This application was acceded to and the Housing Officer, Dera Development Authority vide letter dated 18-1-1992 allotted 6.3 kanals of land to the appellant for construction of public school in Bannu Township Scheme. The cost of land and payment schedule was also provided therein, according to which, total cost of the land was fixed as Rs.6,30,000 i.e. Rs.100,000 per kanal. Appellant had deposited an advance amount of Rs.1,50,000 whereas the balance amount of Rs.4,80,000 was to be deposited in three equal instalments i.e. Rs.1,60,000 each on 30-6-1992, 30-12-1992 and 30-6-1993. Through the same letter, the appellant was "directed to attend the office of the Project Director, DDA for further discussion regarding settlement of the details of the rest of the terms and conditions regarding allotment, construction schedule and functioning schedule of the school and other details on 18-1-1992 but not later than 20-1-1992." As the appellant did not comply with the same, a reminder was issued to him vide letter dated 25-4-1992 to attend the office of Project Director, DDA up to 5-5-1992 to finalize the rest of the terms and conditions of allotment. Upon receipt of this letter, Vice-Principal of Iqbal Public School Bannu vide letter dated 2-5-1992 informed the Project Director that the appellant is out of station and he will visit the office by the last week of May, 1992. However, the appellant again failed to comply with the same. On 7-6-1992 appellant was again advised to attend the office of Dera Development Authority for settlement of rest of the terms. Once again vide letter dated 23-8-1992, as the date for first instalment had lapsed, appellant was requested to deposit the 1st instalment with 10% surcharge in the bank. The appellant after deposit of advance never responded to any of the reminders sent by the Authority. On 21-2-1993 the appellant submitted an application to the Chief Minister and Minister for PP&HD to reduce the price of plot in question to Rs.61,000 per kanal equal to the price of the plots allotted to Private Schools in Hayat Abad, Sheikh Maltoon and Kohat Township. However, vide letter dated 22-6-1993 the Commissioner Bannu Division was informed by the Project Director that the rates were offered by the appellant and the same were approved by the then Chief Minister on 9-12-1991, therefore, he is not competent to reduce the rates. On 29-11-1993 the appellant was again reminded that instalment Nos. 1 and 3 have not been deposited which should be deposited with surcharge upto 20-12-1993, failing which necessary action shall be taken against him as per rules. However, the appellant only deposited the second instalment on 20-1-1993 and failed to deposit any other instalment. Upon this, the Project Director DDA, D.I. Khan vide letter dated 8-2-1994 addressed to the Administrative Officer-II, Provincial Urban Development Board, N.-W.F.P. recommended cancellation of plot with 20% forfeiture in favour of the Authority. Vide letter dated 3-3-1994 the Administrative Officer-II, PUDB directed the Project Director DDA for cancellation of questioned allotment with forfeiture of 20% of the amount deposited by the appellant. Pursuant to this, vide letter dated 7-3-1994 appellant was informed about cancellation of the plot in question and forfeiture of 20% of the deposited amount in favour of the Authority. It was after this that the appellant filed instant suit on 8-5-1996. However, he has not specifically questioned the cancellation of his plot but has sought a declaration that he be allowed to deposit the price of the plot in question at the rate of Rs.61,000 per kanal. It is on record that appellant was aware of the allotment as he himself had deposited advance amount of Rs.1,50,000 when the original allotment order was issued in his favour on 18-1-1992. Appellant was repeatedly given notices but he failed to deposit the instalments. So, there is no question of his being condemned unheard. So far as the point raised by learned counsel for the appellant that the scope of civil revision is limited is concerned, this Court in Rozi Khan v. Nasir (1997 SCMR 1849) has candidly held that the scope of revisional jurisdiction could be appropriately invoked where subordinate forums had committed jurisdictional error or had misread evidence or had ignored material aspects affecting very root of case suggesting perversity. In Muhammad Mian v. Shamimullah (1995 SCMR 69) it is held that scope of revisional powers though hedged by conditions, is nevertheless vast and corresponds to a remedy of certiorari. Therefore, the argument of learned counsel is misconceived. If the appellant was aggrieved of the value of the plot i.e. Rs.100,000 per kanal, why he kept mum for a period of more than one year. It is on record that after the allotment of plot on 18-1-1992, he on 21-2-1993 after more than one year approached the Chief Minister for reduction of price of the plot. In the meantime, the appellant neither approached the concerned Authority for extending the dates of instalments nor paid all instalments, even under protest or otherwise. Even otherwise, having deposited advance amount of Rs.1,50,000 the appellant had in-fact agreed with the price of plot in question i.e. Rs.100,000 per kanal. If he had any reservation at that time regarding the price of the land, he should have contacted the authorities in this regard, but admittedly he did not do so. The fact that the appellant had deposited the instalments after the decree of the learned Appellate Court, in the facts and circumstances of this case, is of no help to him. The appellant by not establishing the school in such a time has also deprived the people of the vicinity. The learned High Court has rightly relied upon Paragraph 9, Chapter-II of the Allotment Regulations Bannu Township Scheme, which clearly stipulates that "public utility plots for colleges, schools, hospitals, dispensaries etc, will be disposed of through outright sale with price/cost payable by the allotee Department/body wherever applicable" and has rightly observed that "phrase "disposed of through outright sale" clearly denotes that it would neither be an allotment through draw nor an auction or payment by instalment, but it would be simply a sale, price of which would be paid in lump sum. In such a case, the defendants have shown leniency in favour of the plaintiff by asking him to pay the agreed amount in instalments. The learned High Court has passed a well reasoned judgment, to which no exception could be taken.

7. For what has been discussed above, we do not find any merit in this appeal, which is dismissed. MWA/I-4/SC Appeal dismissed.