1999CLC813 (PLP)

(e) to grant costs to the petitioner,

6. The respondent No.1 K.D.A, in its comments, admitted that the petitioner is the transferee/allottee of said plots. It has also been admitted that the petitioner was not served with the cancellation order, but added "registered post letters were sent to the petitioner and the same were received back undelivered". It has also been admitted by the respondent that no show‑cause notice or the opportunity of being heard, before the order of cancellation of said plots, was given to the petitioner. Explaining as to why impugned order, dated 17‑7‑1995 was not brought on record before the Supreme Court at the time leave granting order, dated 28‑11‑1995 was passed, it is mentioned that the file of said plots was sent to the then Minister of Housing and Town Planning through his Private Secretary and was not returned back till then.

7. The case of respondent No.4 (Shaheen Construction Company), in brief, is that, said plot lie on conduit line, which land the K.D.A. is not authorized to allot to anybody. Said allotments are against public interest. The conduit reservation is meant for facilities/utilities i.e. Dumlottee's main water pipe line flow through said plot, and if construction is allowed on said plots, the same is bound to damage such utilities/facilities. It is also the case of this respondent that it had acquired the Plot No.FL‑9 through this Court in auction after payment of valuable consideration of rupees nine million and before that the respondent had inspected the site plan and also approved plan for construction. According to the respondent, the site plan as well as approved plan confirmed that the frontage of Plot No.FL‑9 was to face the 135 feet road. Further, it is claimed that said plan clearly indicated that between the Plot FL‑9 and the 135 feet road there was a 60 feet strip of land reserved for conduit line bearing no allotments thereon, except conduit reservation. It is alleged that on 16th November, 1993 the K.D.A. executed lease deed of Plot No.FL‑9 in favour of said respondent and in the lease deed also the position of the boundaries to the said Plot FL‑9 was confirmed to be in consonance with the aforesaid plans. The respondent has claimed that main attraction for prospective buyers as well as residents of the project was that the plot face 135 feet road without anything, in between the road and the plot sides. A plan has also been taken that the said plot being amenity/utility plot the same could not be converted in the commercial plots in violation of Master Plan, as it was violative of K.D.A. Order No.5 of 1957.

8. Masood Ahmed Khan Niazi was the petitioner in C.P. No.D‑1292 of 1988. This petition, as pointed out earlier, was dismissed on 13‑11‑1991 and at its page 6, the following was observed:‑‑ "The petitioner kept silent all this long time, took the benefit of acquiring additional land from conduit reservation, for enrichment of his project and even tried to get the said six plots allotted to himself, but to no success. Additionally he awaited result of public auction of the said plots as advertised by respondent No. 1 and thereafter, filed this petition. The petitioner consequently cannot maintain this petition and challenge the allotment of any portion of land situated on the West of the flat site, allotted to him. "

9. The following observations of a Division Bench of this Court in C.Ps. Nos. D‑654 of 1994 and D‑1679 of 1994 are also relevant for the disposal of this petition:‑‑ "From the perusal of the record, it seems that although C.P. No.D‑654 of 1994 was earlier filed, the petitioners in the said petition awaited the result of the subsequent Petition No.1679 of 1994 which was admitted on 20‑7‑1994 and C.P. No,D‑654 of 1994 was admitted on i8‑1‑1995 subject to the question of locus standi of the petitioners. In both petitions the grounds urged by the petitioners are almost identical. In Petition No.D‑1679 of 1994 the petitioners have admitted that there was land reserved for conduit pipeline and further that they purchased extra land from out of said reservation from the K.D.A. The petitioners in C.P. No.D‑1679 of 1994 are, thus, stopped from challenging the allotment or disposal of land from out of the extra land reserved for conduit reservation. In C.P. No.654 of 1994 the petitioners have failed to show if they have any locus standi to file the petition. None of the grounds urged by the learned counsel in both petitions are sustainable at law. We may also refer to the judgment of a Division Bench of this Court in C.P. No.D‑1292 of 1998 where allotment of area from out of the conduit reservation was challenged but without any success and the said petition was dismissed. With utmost respect, we follow the reasoning of our learned brothers in C.P. No.D‑1292 of 1998 and hold that the petitioners in both petitions are not entitled to any relief."

10. Mr. S. Sharifuddin Pirzada, learned counsel for the petitioner contends that the impugned order is void, ab initio as it was passed in haste ignoring all the established norms of justice, including the principle of Natural Justice. He also argued that after said plots, were mutated in the name of the petitioner, the allotments of the same could not be cancelled only because some bureaucrats and a few political figures desired so. He also argued that admittedly no show‑cause notice was issued to the petitioner and even the factum of cancellation of said plots was not brought to the notice of the petitioner till the aforesaid two petitions were disposed of as infructuous. He also submitted that cancellation is purported to have been made on the order of the then Prime Minister and that Prime Minister had no such legal authority to give direction for their cancellation.

11. It is urged on behalf of the petitioner that admittedly show‑cause notice was not issued to the petitioner nor an opportunity of being heard was given to him. The respondents have not rebutted above assertion. It being so, on this very ground, the petition is to be allowed and impugned order deserves to be set aside. Since the case of the petitioner has been established on the basis of irrefutable evidence and it being his fundamental right to enjoy the protection of law and to be treated in accordance with law, which in this case was not done with him on the basis of extraneous or irrelevant consideration, we are not inclined to remand the matter and are finally deciding it on merits.

12. As regards, the directive of the Prime Minister about cancellation of said plots Mr. Pirzada submitted that the Prime Minister had no authority to order cancellation of said plots. In support of this plea, he cited Al‑Shafeeq Housing Society, Hyderabad v. Pakistan Medical Association, Karachi and 5 others PLD 1992 SC

113. The dispute in this matter was about a plot. It was held that the Government or for that matter the Chief Minister had no power either to annul the respondents allotment order or to make allotment to the appellant as was done in said case. Another case, cited by Mr. Pirzada on this point, is of Muhammad Amin v. The Province of Sindh and 6 others 1992 MLD

671. In this case, the plot in question was cancelled suo motu by exercising Revisional Jurisdiction by the Authority. Before doing that, the authority had given a show‑cause notice to transferee of the plot, alleging therein that the transfer was liable to be cancelled for the reasons shown in the show‑cause notice. It was held that the authority was not competent to undertake investigation by going beyond the scope of show‑cause notice, as such the authority's order cancelling the allotment was declared as without lawful authority and of no legal effect.

13. The instant case is on much better footing as neither show‑cause notice was issued to the petitioner nor any inquiry was held. Accordingly, we hold that on the directive of the Prime Minister, the allotment of said plots could not be cancelled.

14. Mr. Pirzada vehemently argued that principles of res judicata and constructive res judicata are attracted to the circumstances of this case. Precisely stated, the contention is that all points raised by the respondents Nos.4 and 5 in the present petition have already been decided in C.Ps. Nos.D‑654 and D‑1679 of 1994 and now the respondent No.4 was trying to prove the same issues by bringing new evidence, which is barred by the principles of res judicata and constructive res judicata. In support of this contention, he cited (i) Hussain Bux v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1, (ii) Syed Nizam Shah v. Babu Abdullah and others 1991 SCMR 1149, (iii) Messrs Tank Steel and Rerolling Mills (Pvt.) Ltd. Dera Ismail Khan and others v. Federation of Pakistan and others PLD 1996 SC 77 and (iv) Amanulmalook v. Mian Ghafoor‑ur‑Rehman and others 1977 SCMR 1796. In the case of Hussain Bux, it was held that though High Court exercises civil jurisdiction but it is not a civil Court, nevertheless the provisions of C.P.C. would apply to High Court. In the case of Syed Nizam Shah, it was held that principles of constructive res judicata would apply in cases of the petitions ,filed before the High Court. In case of Tank Steel and of Amanulmalook also, the same view was taken.

15. Coming back to the facts of the instant case, it is noted that appeal was filed in the Supreme Court against the judgment, dated 4‑5‑1995, wherein leave was granted. For the applicability of principles of res judicata, it is essential that the issues in question must have been heard and finally decided. Looking to the facts and circumstances of the case, we hold that principles of res judicata and constructive res judicata on the points agitated, considered and repelled in above mentioned two petitions would apply to the facts of this petition, except on the issue of cancellation of said plots.

16. The moot point involved in this petition is that whether, under the facts and circumstances, K.D.A. could unilaterally cancel the allotments of said plots. The issue of ownership of these plots has already been decided by this Court in C.Ps. Nos.D‑654 and D‑1679 of 1994 by a common order, dated 4‑5‑1995. With regard to C.P. No.D‑1679 of 1994, it was clearly observed that "the petitioners in C.P. No.D‑1679 of 1994 are, thus, stopped from challenging the allotment or disposal of land from out of the extra land reserved for conduit reservation". With reference to C.P. No.D‑654 of 1994, it was held that "the petitioners have failed to show if they have any locus standi to file the petition". Under the circumstances, the scope of controversy is narrowed down only to the extent if K.D.A. could cancel said plots.

17. Mr. Farogh Naseem, learned counsel for the respondent No.4, however, argued that the very transfer of said plots to the predecessors‑ interest of the petitioner was illegal, as said plots lie on conduit line and the K.D.A. was not authorised to allot said land to anybody. It is pertinent to point out that said plots as well as Plots Nos.ZC‑21 to ZC‑26 are on the same belt facing conduit and now it is an admitted position that the building. "Sunny Arcade", situated on Plots Nos.ZC‑21 to ZC‑26, in front of Plot No.FL‑10, is not situated on land reserved for Dumlotee's conduit. Besides, a statement, filed on behalf of Karachi Water and Sewerage Board, on 27‑9‑1994, in C.P. No.D‑654 of 1994, clarifies the above point without leaving any doubt. Above referred statement signed by Chief Engineer dated 27‑9‑1994 (page 709 of the file) is as follows:‑‑ "Statement on behalf of KW&SB respondent No.9 In the above matter, it is most respectfully submitted on behalf of the respondent No.9 KW&SB that the reserved portion of 30 on either side of the conduit is not disturbed and is clear from all encroachments hence carving out of Plot i.e. SB‑1, SB‑2 and SB‑3 and allotment to the respondents Nos.4, 5 and 6 requires no permission from the respondent No. 9, hence no cause of action against the answering respondents." It is, thus, clear that said plots are not on conduit line

19. Mr. Farogh Naseem also argued that the respondent No.4 was entitled to the frontage of 135 feet wide road in front of its plot and by carving out said plots this facility would not be available to the respondent. Said plots were open unspecified plots when they were carved out and nobody had any exclusive legal right over said piece of land which belonged to K.D.A. No wrong was done by K.D.A. by utilizing said land. On the contrary, it was a lapse on the part of K.D.A. to have left it unutilized at the initial stages of demarcation of plots. The respondent No.4 could not claim frontage of 135 feet wide road, when such facility keeping in view the larger interest of the people, was not given to the other people of said locality.

20. Mr. Farogh Naseem also argued that said plots could not be allotted in view of restraint on allotments of plots by the then Chief Minister. Sindh. Suffice it to say that Plots Nos.SB‑1, SB‑2 and SB‑3 were allotted on 25‑1‑1994, 12‑1‑1994 and 12‑1‑1994 respectively, whereas the alleged restraint on allotments of plots came into effect from 20th March, 1994. Therefore, the permission of the Chief Minister was not required, as such, it was not obtained.

21. Mr. Farogh Naseem, learned counsel for the respondent No.4 strenuously argued that the petition is hopelessly hit by latches. He submitted that, during the intervening period, several indefeasible rights have come into existence. He submitted that the impugned order was passed on 17‑7‑1995 while this petition was presented on 22‑9‑1996. In support of this contention, he cited Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119, wherein it was held that statutory bar of limitation and latches cannot be equated. Having gone through the entire circumstances of the case, we are of the view that principles of latches are not attracted to the circumstances of this case. As pointed out earlier, the petitioner came to know about cancellation of said plots when the Supreme Court had dismissed abovementioned two petitions on their having become infructuous and immediately thereafter, he had filed this petition, therefore, no latches can be attributed to the petitioner.

22. Mr. Farogh Naseem also argued that to grant relief under Article 199 of the Constitution is discretionary and this discretion can only be exercised where it is established by irrefutable evidence that injustice was done to a party seeking relief without any fault on his part. He also argued that while exercising jurisdiction under said Article, re‑appraisal of evidence was not permissible. In support of his submissions, he cited (i) The Chairman East Pakistan Board Chitagong v. Abdul Majid, Ticket Collector, Pakistan Eastern Railway, Laksan PLD . 1996 SC 725, (ii) Nawab Syed Ronaq Ali v. Chief Settlement Commissioner and others PLD 1973 SC 236, (iii) Khawaja Muhammad Akhtar v. President Cantonment Board, Sialkot Cantt./Election Authority (Tribunal) and another 1981 SCMR 291, (iv) Syed Ali Shah v. Abdul Sagheer Khan Sherwani and others PLD 1970 SC 504, (v) Muhammad Baran and others v. Member Settlement and Rehabilitation Board of Punjab and others PLD 1991 SC 691, (vi) Karachi Shipyard and Engineering Works Limited v. Abdul Ghafoor and 2 others 1993 SCMR 511 and (vii) Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Safar Bukhari PLD.1977 SC 351.

23. In the case of Chairman East Pakistan Railway Board, Chitagong, it was held that when order is passed by public authority, every possible explanation for validity of such order should be explored. In case of Syed Ronaq Ali it was held that the Court would refuse to perpetuate something which would be patently unjust or unlawful. In case of Khawaja Muhammad Akhtar, it was held that re‑appraisal of evidence was not within the ambit of jurisdiction of High‑Court under Article

199. In case of Syed Ali Shah, it was observed that it was not every illegal order which was liable to be set aside in exercise ef the Constitutional jurisdiction and that paramount consideration should be, whether setting aside an order which suffers from illegality, will advance the cause of justice or would it perpetuate injustice. In case of Muhammad Baran, it was observed that before a person could be permitted to invoke discretionary Constitutional jurisdiction under Article 199, it must be shown that the orders sought to be set aside had occasioned some injustice to the parties. If such order does not work any injustice to any party rather it cures a manifest illegality, then the extraordinary jurisdiction ought not be allowed to be invoked. In case of Karachi Shipyard, it was held that the High Court in its Constitutional jurisdiction could not substitute its own finding, for that of statutory forum on a question of fact. In case of Province of Punjab, it was held that before a person could be permitted to invoke the discretionary power of a Court, it must be shown that the orders sought to be set aside had occasioned some injustice to the parties.

24. Ratio decidendi of above cases is that the High Court while exercising jurisdiction under Article 199 must look for advancing cause of justice and not to perpetuate injustice.

25. Above cited cases are not attracted to the facts of this case. In the instant case not only the impugned order was passed ignoring establishing judicial norms but it was also absolutely unjust and mala fide. The petitioner is the transferee of said plots for valuable consideration and the same could not be taken away from him on unreasonable grounds. If the Plots Nos.ZC‑21 to ZC‑26 could be allotted then said plots were also rightly transferred to the predecessors‑in‑interest of the petitioner.

26. Accordingly, we allow the petition and declare that the impugned order is illegal, without lawful authority and of no legal effect. The reliefs claimed in prayer Clauses (B) and (C) of the petition are also granted to the petitioner. Q.M.H./M‑395/K Petition allowed.