1990 PLP 796 (CLC)

Kazi Munawar Ali for Respondents. Date of hearing: 28th March, 1989. AJMAL MIAN, C.J: This petition is directed against an order dated 25‑5‑1983 passed by respondent No.l cancelling the allotment of the plot of the petitioner.

2. The brief facts leading to the filing of the above petition are that the petitioner was allotted a plot of land bearing No. 285, situated in Block‑E, Unit No.11, measuring 1000 sq. yards, Latifabad, Hyderabad, by the Commissioner, Hyderabad Division, by his order, dated 20th May, 1963, hereinafter referred to as the plot. It seems that the aforesaid Satellite Town Scheme was taken over by respondent No.l in the year 1976. The petitioner before the above taking over of the Scheme by respondent No.1 had paid the full occupancy charges on 24th January, 1968. However, the plot was cancelled by the impugned order, which reads as follows:‑‑ "Since the plot in question is under heavy encroachment and it is impossible to get it vacated, therefore, the Mayor, Hyderabad Municipal Corporation has been pleased to cancel the allotment order No.26 dated 22‑5‑1963. The amount paid towards cost of the plot can be refunded if you so claim:" The petitioner being aggrieved by the above order has filed the present petition.

3. In support of the above petition, Mr. S.A. Jamali, learned counsel for the petitioner, has contended that the allotment of the plot was cancelled without hearing the petitioner and that the ground on which the plot was cancelled is not sustainable in law. On the other hand, Mr. Kazi Munawar Ali, learned counsel for respondent No.l, has vehemently contended that the above petition is not maintainable as no writ can be issued in respect of the cancellation of the plot, which was a part of a Satellite Town Scheme, which had no statutory backing. He has further submitted that even otherwise under Rule 4 of the Municipality Rules the petitioner had adequate alternate remedy by way of appeal against the order before a tribunal.

4. It would be appropriate to take up the second submission of Mr. Kazi Munawari Ali, learned counsel for respondent No.l that the petitioner had adequate alternate remedy under Rule 4 of the Municipality Rules.

5. In this regard, Mr. S.A. Jamali, learned counsel for the petitioner, has referred to the celebrated case, the Murree Brewery Company Limited v. Pakistan through The Secretary to Government of Pakistan Works Division and 2 others of the Supreme Court reported in P L D 1972 S.C. 279, in which the Hon'ble Supreme Court while rejecting the contention of the respondent Government that the alternate remedy was available in the case observed that the rule that the High Court will not entertain any writ petition when other appropriate remedy is available is not a rule of law barring jurisdiction but a rule by which Court regulates its jurisdiction. It has been consistently held by the superior Courts that if the impugned order on the face of it is without jurisdiction, the Court will not insist upon first availing of alternate remedy before the forum provided under the law particularly in a case where such plea is raised for the first time after the expiry of several years. In the instant case no counter‑affidavit has been filed till today. It will not be just and proper to dismiss the above petition on the above ground, which has been raised first time by the learned counsel for respondent No.l during the argument. If the counter‑affidavit would have been filed immediately after the service of the notice of the petition and such plea would have been raised, then that might have carried some weight as the petitioner would have the option to approach the forum provided under the appropriate law. Even otherwise the above reproduced impugned order seems to be, on the face of it, illegal apart from the fact that no notice was given before passing of the impugned order to the petitioner, the ground on which the order has been passed, namely, that the plot has been encroached upon by certain persons and that the possession cannot be given, is not sustainable in law. Admittedly the petitioner had not committed any breach of allotment, which could have warranted the cancellation of the allotment.

6. We are, therefore, not inclined to entertain the above objection of the learned counsel for respondent No.l that the petitioner had alternate remedy.

7. Reverting to the submission of Mr. Kazi Munawar Ali, learned counsel for respondent No.l, that since the plot was a part of the Satellite Town Scheme, which was not backed by any statutory provision, no writ can be issued, it may be observed that he has relied upon the case of Majlis‑Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. Secretary to Government of West Pakistan, Communication and Works Department, Lahore, reported in P L D 1967 Lah. 709, in which a Division Bench of the erstwhile High Court of West Pakistan while dealing a Constitutional Petition under Article 98 of the late Constitution of 1962 held 'that the direction given by the Government for guidance of the officers connected with a department without any statutory backing cannot confer any vested right and that since there was no statute, which governed the Satellite Town Scheme, no writ could be issued.

8. In our view, the facts of the above case arc distinguishable inasmuch as admittedly respondent No.l is a local authority for the city of Hyderabad and, therefore, a writ could be issued against it if it acts in a manner not warranted by law. In the instant case as admittedly no notice was given prior to the cancellation of the allotment of the plot in favour of the petitioner nor the ground on which the allotment was cancelled was sustainable in law. In our view, a writ petition is competent against such an action.

9. We would, therefore, allow the above petition and declare the impugned order as being without lawful authority and of no legal effect. However, there will be no order as to costs. M.Y.H./A‑657/K Petition allowed.