P L D 1973 Karachi 302 (PLP)

(iii) Plots ranging between 401 square yards and 1500 square yards (hereinafter referred to as category "C" plots) shall be disposed of as under (a) 15 % shall be reserved for employees of the Sind Government and Statutory Corporations, autonomous and semi‑autonomous bodies/organizations under the administrative control of the Sind Government. (b) 5 % shall be reserved for employees of the Central Government. (c) 10 % shall be reserved for Defence Personnel. (d) 70 % shall be reserved for public auction. (2) No residential plot shall exceed 1500 square yards in area." It will be noticed that the first sub‑rule is numbered (2) but it is an obvious printing mistake as admittedly there is no other first sub‑rule and the only other sub‑rule is also numbered (2). We are, therefore, reading the figure '2' at the beginning of the rule as really being figure 1.

4. Each of the petitioners was an applicant for a plot of 240 yards and we are, therefore, really concerned with the quotas reserved under clause (ii) of sub‑rule (1). The petitioners are admittedly employees of the Karachi Port Trust. This Trust is created by the Karachi Port Trust Act, 1886, which is, under section 4 of the Act, a body corporate having perpetual succession and a common seal, which can sue and be sued by the name, "Trustees of the Port of Karachi". Clearly, therefore, at is a statutory corporation, and its employees cannot be described as employees of the Central Government. Indeed it is not the case of the petitioners that they are employees of the Central Government and the reservations of 5 % for such employees, therefore, is not attracted, nor those made under clauses (c) and (d). Their case Is that they come under clause (a), a clause with a reservation of 15 % and a part of the argument is that the respondents themselves consider that they come within that clause and it is on that basis that they were Issued pink forms. The argument of Mr. Obaidur Rahman, learned counsel who appeared for them is, that the quota of 15% is reserved, among others, for employees of statutory corporations and that the words, "under the administrative control of the Sind Government" do not qualify this expression, while the case of the other side is that the only statutory corporations which are envisaged by clause (a) are such as are under the administra tive control of the Sind Government.

5. The Karachi Port Trust Act has a long history of amend ments and in various sections of it the words, 'Government' and 'Central Government' are used. It might, therefore, have been difficult to decide whether or not the K. P. T. can be regarded as being under the administrative control of the Sind Government Instead of the Government of Pakistan had it not been for the fact that, as the Act at present stands, it contains section 79‑A which is in the following terms : "79‑A. All acts and proceedings of the Board shall be subject to the control of the Central Government and the Central Government may cancel, suspend or modify any such acts or proceedings." Clearly, therefore, and In fact admittedly, it is not a statutory corporation under the administrative control of the Sind Government. The main controversy, therefore, in this case depends upon a simple question of interpreting the language of clause (a) in order to see whether the expression 'statutory corporation" is qualified by the words "under the administrative control of the Sind Government". Upon the plain language of clause (a) I think it is clear that the words "statutory corporation" must be held qualified by the expression at the end of the clause. It will be noticed that the word "Government" where it first appears in the clause is not followed by a comma but by the word 'and' and it seems to me, therefore, that clause (a) contemplates two classes, the first being the employees of the Sind Government and the second being those of the statutory corporations, autonomous and semi‑autonomous bodies/ organizations under the administrative control of the Sind Government. The word `and' where it first appears clearly joins these two classes. Clearly, therefore, if Mr. Obaidur Rahman's contentions had been correct then after the word 'Government' should have appeared a comma ; in that case also there should be no comma after the words 'corporation' but instead again the use of the conjunction 'and'. As a matter of pure grammar it seems to me obvious that the adjectival phrase 'under the administrative control of the Sind Government' must be held to govern not only autonomous and semi‑autonomous bodies/ organizations but also statutory corporations. Since admittedly and, as I have as a matter of law found, the K. P. T. is not under the administrative control of the Sind Government it cannot be described as any such statutory corporation as is contemplated by clause (a). I have, therefore, no hesitation whatever in holding against the petitioners that they are not the employees of such a corporation as is included in clause (a). It must, follow, therefore, that they do not belong to that class of persons for which a quota of 15 % is reserved and were not, therefore, eligible to apply for a plot on that reserved quota. It is of course no body's case that the applicants applied as members of the general public or that they have acquired any rights as such ; it is only on the basis of being successful candidates in ballot for the reserved quota that they claim any right which they seek to enforce by means of these petitions.

6. Mr. Obaidur Rahman next contended that it is not open to the respondent to deny their eligibility since they themselves issued the pink forms to the applicants, the forms admittedly meant for the persons who come within a class for which the 15 % quota had been reserved. The applications were entertained and allowed to form part of those, which were subjected to a ballot for the purpose of choosing the successful applicants. Quite apart from the colour the applications are headed by the word 'Forms of Applications for allotment of residential plots reserves for employees of Government of Sind and Statutory Corporation and Autonomons and Semi‑Autonomous Bodies/Organization; under its administrative control. The respondents thus must, according to learned counsel, be held to have accepted the eligibility of the petitioners to apply in this particular class by entertaining such applications. At the foot of the applications are two notes which read thus : "(1) This application form is liable to be rejected even after ballot if the entries are incomplete and the required particular are not quoted clearly. (2) Should any of the above statements be found incorrect without prejudice to any other legal action that may be taken against the applicant, the plot allotted to him shall be liable to summary cancellation with forfeiture of 25 per cent. Of its occupancy value, and the applicant shall in that case have no legal right, claim or title to the plot."

7. Learned counsel, therefore, argued that these applications having been entertained could be rejected, if rejected at all, upon the basis of one of these two notes. Clearly the entries were not incomplete and recourse could, therefore, be had only to the second of these notes on the ground that one of the statements was found to be incorrect, namely, that the applicants had applied as an employee of such a statutory corporation as is contemplated by the form and the rules under which it was issued. In view of the fact, however, that the form expressly requires a statement of the nature of service or post held by the applicant and it is not the respondent's case that they falsely described themselves as the employees of some organization other than the K. P. T., there is no Incorrect statement and, even if the contention of the respondent be accepted as I have accepted it, it would be upon a question of law and not based upon the incorrect statement of fact. Clearly the word "statement" must mean a statement of fact and not an inference of law. Attractively as the argument is put, I regret my inability to accept it. Mr. Shamsul Haq, learned counsel who appears for the respondent points out that what the petitioners are virtually arguing is an assertion of estoppel. Now these reservations were not made by the advertisement alone but are required by the rule which I have quoted. Indeed by reason of that rule the respondent is required to dispose of the plots in a manner prescribed by the rules and has no authority to do otherwise. My Shamsul Haq, therefore, argues, I think quite rightly, that the petitioners are really pleading estoppel and estoppel clearly is not available against a statute.

8. There was some question raised as to the vires of these rules inasmuch as they are made by the Governor of Sind and it was claimed that the proper authority, empowered under Article 14 of the K. D. A. Order to make rules, is the Central Government. It was, therefore, argued that the rules themselves, not being made by competent authority, are ultra vires and of no effect. If this was correct of course there would h:: no question of estoppel against a statute. However, Article 14 of the K. D. A. Order was amended by President's Order No. 6 of 1962, Article 2 whereof substitutes for the words `Central Government' the words 'Provincial Government' wherever they occur in the main order, excepting in certain Articles which do not include Article

14. The vires of the Amending Order were not questioned and the argument, therefore, as to the vires of the rules was then given up. I have, therefore, no difficulty in holding that the rules are intra vires.

9. Mr. Obaidur Rahman then argued, not quite seriously I think, that in cancelling the allotment made to his clients their fundamental rights guaranteed under Articles 20 and 22 of the Constitution have been violated. Quite apart from the question that this ground is not taken up in the petition, and also from the consideration that these two Articles are at present suspended by a Proclamation of Emergency, I do not find any real substance in this argument. There is no question here of the right of the petitioners to acquire, bold and dispose of property. The real question is whether they have in fact acquired property or any interest in the property and upon that question my earlier findings, I think, suffice. The argument of Article 22 is even less substantial. It is difficult to see how they have been treated un equally ; the right is one of all citizens to be equal before law and not the rights of all employees of Statutory Corporations to be treated alike. To be fair to Mr. Obaidur Rahman, he did not really persist in this argument.

10. Finally Mr. Obaidur Rahman argued that in any event an allotment having been made it could not and should not have been cancelled except after he had been given an opportunity to show cause against the cancellation. Before I go on to examine the argument I think it convenient to deal with the answer of Mr. Shamsul Haq, learned counsel for the respondent. He argues that the statute does net expressly require the giving of such a show‑cause notice and that this requirement is a tart of the principles of natural justice on account of which would ordinarily read such a requirement into ever unless of course there be something in the statute or in the nature of the case which necessarily excludes such a show‑cause notice. As has been seen the respondent is required by statutory rules to dispose of the lands in question in a particular fashion and I have already come to the conclusion that, according to those rules. the petitioners were not eligible to be allotted any plot within the quota which they claimed. Mr. Shamsul Haq argues, therefore, that the whole purpose of show‑cause notice being to pursuade an authority not to act in a particular fashion it could not possibly be achieved by a show‑cause notice given in the Instant case. Whatever be the arguments presented by the petitioner to the K. D. A. that authority would necessarily have to take a view that it already has taken, namely, that the petitioners were not eligible. In effect Mr. Shamsul Raq is saying that a show‑cause notice is useless in cases were the authority sought to be pursuaded has no discretion to act but as it has and that in such a case, therefore, we ought not to read any necessity of giving a show‑cause notice. Plausibly as the argument is, it overlooks one important matter. It assumes that it is necessarily right in holding that the petitioners are in eligible. It is true of course that I have held that they are ineligible but It does not follow that the authority in taking that view should have felt that it could not be pursuaded to take any other view. If in the instant case for other reasons I was willing to hold that an opportunity to show cause was necessary before the cancellation, the purpose of providing this opportunity would not merely be to pursuade the K. D. A. not to cancel but also to enable the petitioners to attempt to pursuade that authority that they were in fact and in law eligible for allotment under the reserved quota contrary to what the K. D. A. had held. In other words the opportunity then would have been to the petitioners to place their case before the K. D. A. as they have put it before us, namely, that upon a true interpretation of the clause (a) of rule 2. sub‑rule (ii) in question they were eligible.

11. However, I am not pursuaded that the petitioners had acquired any such rights which could be taken away or were taken away by the alleged cancellation only after such an opportunity as they now claim. Admittedly there was no allotment as such 3 all that had taken place was that a result of the ballot bad been announced and in accordance with that result certain plots by number were assigned to each of the successful applicants. The applicants could not have claimed as of right, to start with, that they must be given plots. &f, there fore, they had been declared unsuccessful there would be no question of their asking for an opportunity to show cause against such a declaration. The question then is whether the declaration gave them such a right as could not be taken away from them except after an opportunity to show cause. In this connection Mr. Obaidur Rahman has placed reliance upon a case, Fazal Din v. Lahore Improvement Trust (P L D 1972 S C 223). The petitioner in this case was the owner of a house constructed on one of the plots in the Gulberg Scheme of the Lahore Improvement Trust and he was seeking to gave set aside a resolution of that Trust whereby an area of land was allotted to one of the respondents on the ground that the area its question had been earmarked for the construction of a market. The Supreme Court held and I quote from the Judgment of his Lordship the Chief Justice at page 231 : "It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest In the performance of the legal duty which if not performed or performed to a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise." With this observation I am of course in respectful agreement. But I cannot read the Supreme Court judgment as meaning any thing more than this that the rule in question need not necessarily be a right in the strict juristic sense. I think there still must be some right which the petitioner is sought to be deprived of before he could claim the benefit of showing cause. In the Supreme Court case that right arose because the petitioner was admittedly the owner of a plot of land in the Scheme on which he had constructed a house and was on that account Interested personally in the performance of a duty which in that case was the construction of a market. With utmost respect I do not think that the Supreme Court case has any real application to the facts of the present case. I do not, therefore think that the petitioners had any right to a sow‑cause notice.

12. I would accordingly dismiss both these petitions. Costs should normally follow the event but in view of the conduct of the Karachi Development Authority which entertained these applications of the petitioners on the pink forms I think it has contributed in some measure to the sense of grievance on account of which the petitioners have brought the present petitions and I would, therefore, make no orders as to costs. K. B. A. Petitions dismissed.