2001 PLP 1804 (MLD)

"MODE OF PAYMENT. (1) Cost of plot on cash basic. Rs. 1,70,000 per acre. (2) Cost of plot on 5 years deferred payment ... .... ... ... ... ... ... .. ... ... ... ... ... ... ... .. .. .. ...Rs. 2,50,000 per acre. (a) Down payment ... ... ... ... .... ... ...Rs. 60,000 per acre (b) Half yearly Ten (10) equal instalments Five yeaRs. . ..Rs. 19,000 per acre. (The above are subject to variation due to actual conditions. RENDERING THEREFORE During the said term of the lease, the lease amount is fixed to (sic) Rs. 17,50,000 (Rs. Seventeen lacs Fifty thousand) only and shall pay down payment at the time of allotment amounting to Rs. 4,20,000 (Rs. Four lacs Twenty thousand) only and for the remaining terms , of the lease shall pay in Ten equal half yearly payment, payable, to the lessor half yearly each in advance at the rate of Rs. 1,33,000 (Rs. One lac thirty three thousand) from the date of allotment (subject to amendment in rates of rent as prescribed by the Government from time to time) and shall also pay half yearly recurring expenditure. The amount thus payable to the lessor will be without previous demand and without any deduction whatever and without prejudice to the lessor's right to determine this lease and of its right of re‑entry upon the demised land and such other rights and remedies as may be open to the lessor including interest at 14.72% per annum leviable on all rents not so paid within the due dates. The annual recurring expenditure will be determined from time to time by a Committee or Board to be nominated by the lessor." The petitioner only deposited Rs. 7,10,000 and thereafter did not pay the remaining amount as per lease deed mentioned above. After taking over the possession of the land, the petitioner constructed a shed for installation of Furniture Industry but did not instal other two projects for which the plots were leased to him.

10. It was somewhere in the year 1990 that the petitioner came to know that respondent No. 2 had allotted land measuring 140 Acrss to respondent No. 4 in Phase IV at the rate of Rs. 14,530.50 per Acre for levelled land. He approached to respondents Nos. l and 2 with the request that he should also be charged with the same rate i.e. at Rs. 14,530.50 per Acre and after deducting the price of land allotted to him at the said rate, the excess amount paid by him be refunded to him, but instead of paying any heed to his request for reduction of price, they directed him to make the payment; as agreed by him at the time of allotment of plots to him. He was also directed to pay the interest and development charges and on his violation to make the payment, the plots allotted to him were cancelled.

11. The main question for determination in this case is as to whether the petitioner was discriminated or not. The answer of this proposition is in negative, firstly, because the petitioner is not similarly placed with respondent No. 4, who was allotted land at a distance of 3/4 Kilometres from the petitioner's plot on self‑purchase and self‑development basis. Secondly, the Government has acquired land for respondent No. 4 for fetching high technology and basic raw material Industry' in N.W.F.P. and respondent No. 4 has established (Polyester Staple Fibre Manufacturing Complex) with the collaboration of C.Itoh, Japan at the Industrial Estate Hattar for manufacturing staple fibre and Fabric. Thirdly, the land was allotted to respondent No. 4 on acquisition price without any infrastructure facilities with conditions that should the Courts increase the price of acquired land, the respondent shall pay the increased price to landowners and recently a Division Bench of this Court of which I was a Member and have penned down the judgment has enhanced the acquisition price by Rs. 1000 per Acre which respondent No. 4 is liable to pay.

12. On the contrary the petitioner was allotted land in Phase‑II though he had agreed to pay price at the rate of Rs:1,70,000 per Acre at the time of allotment as well as at the time of execution of lease deed by him in favour of the respondent No. 1 but still he was given special concession for the land which was unlevelled and was directed to pay at the rate of Rs. 24,000 per Acre for land measuring 6.87 Acres (unlevelled). He was in possession of excess area which was allotted to him on 16‑8‑1990 though he enjoyed the possession of the excess land from the year 1985 but he was not charged for the period commencing from 1985 till 16‑8‑1990. The petitioner has not brought any technology and has even failed to establish 3 units for which the land was allotted to him. He has only utilised 6% of the total land by constructing a shed for ordinary Furniture Unit and has even failed to get the site plan approved from the competent authority for establishment of other 2 units namely Carpet and Specialized Textile. He has even failed to pay the price and development charges for the land allotted to him. In Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary,' Ministry of Health, Government of Pakistan, Islamabad and another (2000 SCMR 1956), it was held:‑‑ "the equality should not be in terms of mathematical calculation and exactness. It must be amongst the equal. The equality has to be between the person who are placed in the same set of circumstances. (1991 CLC 13 (D.B.)). The phrase equal protection of law' envisages in Article 25 of the Constitution means that no person or class of persons would be denied the same protection of law which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty, property, or pursuit of happiness Persons similarly situated or in similar circumstances are to be treated in the same manner". (1990 CLC 136). It is well‑settled by now that "the conception of equality before the law does not involve the idea of absolute equality among human being which is a physical impossibility. (PLD 1980 Quetta 10 + PLJ 1979 Quetta 246 (D.B.) + AIR 1951 Nag. 58 + ILR 1951 Nag. 646 (F.B.)). Article of the Constitution of Islamic Republic of Pakistan guarantees a similarity of treatment and not identical treatment." We are therefore, of the view that the petitioner has not been discriminated.

13. So far as the argument of the learned counsel for the petitioner that cancellation of the plots allotted to him vide letter, dated 2‑10‑1994 is unlawful, illegal and of no legal effect is concerned, the same has force in it The petitioner, as mentioned above, was allotted land measuring 10 Acres vide letter, dated 23‑4‑1985, land measuring 7 Acres vide letter dated 6‑11‑1985 and excess area in his possession was allotted to him vide letter dated 21‑8‑1990. He executed lease deed No. 212 dated 18‑2‑1987 in favour of respondent in respect of land measuring 7 Acres, whereby he undertook to pay the price of allotted land as per mode prescribed in the deed. He deposited Rs. 7,10,000 (date of much deposit has not been mentioned by the parties). In the year 1990 petitioner came to know that respondent No. 2 allotted land measuring 140 Acres to respondent No. 4 in Phase IV at the rate of Rs. 14530.50 per acres :or the levelled land. He immediately approached respondents 1 and 2 with the request that he should also be charged with the same rate i.e. Rs. 14530.50 per acre and after deducting the price of the land allotted to him at the said rate the excess amount paid by him be refunded. In this regard he approached the higher 'authorities also, hold Press Conferences and made appeals through various means but none paid any heed to his request and in retaliation to the present demand of the petitioner for treating him at par with respondent No. 4 and to charge at the same rate for which respondent No. 4 has been charged. Respondent No. 2 vide letter, dated 2‑10‑1994 cancelled the allotment of land of petitioner though respondent No. 2 was not competent to cancel the same.

14. So far as the non‑payment of the dues by the petitioner is concerned, the petitioner from very beginning has taken the stand that he is liable to pay the price of the land allotted to him at the rate of Rs. 14530.50 and that he has already paid Rs. 7,10,000 which is mere than the amount which he was obliged to pay. Respondent No. 2 has worked out the following dues allegedly outstanding against the petitioner as on 18‑8‑2000:‑‑ (1) Lease Money Rs. 4,10,520.00 (2) Interest Rs. 10,79,148.00 (3) Development charges. Rs. 3,63,356.00 Total Rs. 18,53,024.00

15. We have in the preceding paragraph held that the petitioner has not been discriminated and since the petitioner had at the time of allotment of land and at the time of execution of lease deed had agreed to pay the price of land/leaase money at the rate of Rs. 1,70,000 per acre for levelled land and the rate of Rs. 24,000 per acre for the unlevelled land, therefore, we hold that the petitioner is liable to pay the remaining lease amount of Rs. 4,10,520 to respondent No. 1 alongwith development charges amounting to Rs. 3,63,

356. So far as the amount of interest is concerned, it has not been made clear as to at which rate the interest has been calculated. Moreover, we are of the view, the petitioner is not liable to pay the amount of interest for the reasons firstly, that payment of interest has been declared as un‑Islamic by Honourable Shariat Appellate Bench of Supreme Court of Pakistan, secondly, the writ petition filed by the petitioner is pending since 1994 in this Court and he cannot be penalised for the period for which his petition was pending decision, thirdly, respondent No. 2 has failed to show as to at which rate and for which period an amount of Rs. 10,79,148 has been calculated. The cancellation of plots leased to the petitioner vide letter, dated 2‑10‑1994, therefore, without lawful authority and illegal. '

16. The argument of the learned counsel for the respondents 1, 2 and 5 that the petitioner wants to enforce contractual obligations through writ petition in hand has no force. The petitioner through this writ petition has challenged the validity of letter, dated 2‑10‑1994. The cancellation of the said plots by Sarhad Development Authority pertains to the performance of statutory obligation and functions of the respondents 1, 2 and 5 and therefore, susceptible to exercise of writ jurisdiction by this Court. In this regard reliance is placed on Pakistan Medical Association Karachi v. Government of Sindh and 5 others (1979 CLC 382) and Haji Noor Muhammad and another v. K.D.A. and others (PLD 1975 Karachi 373).

17. Likewise when a State functionary enters into a contract with a private citizen/Ltd. Company, any serious contravention of the Rules or instructions are amenable to the writ jurisdiction of this Court. A similar question arose in Rashid A. Khan v. West Pakistan Railway Board through its Chairman, Lahore and another (PLD 1973 Lahore 733), wherein it was held that:‑‑ "The action of a State functionary entering into an ordinary contract with a party in any matter concerning the Government is different from entering into a contract through the process of tenders. The basic concept of financial dealing in the latter case is different from the former, any serious contravention of the rules/instructions in the latter case might set at naught the entire concept. When rights are involved, such contravention may not be accepted as a lawful act or as falling within the discretion of `the State functionary; as it would lead to most serious consequences both legal and factual. The functionaries would be well‑advised in their own interest not to contravene the rules and instructions which have been laid down with care to safeguard the interests of the State (Public exchequer) and the citizens including the dealing parties. In proper competently instituted proceedings, the Court will not hesitate to interfere particularly if in addition to the contravention of the above type, there is allegation of mala fides! And in the latter case, it may be neither unlawful nor improper for the Court, while interfering for the purpose of correcting the error, to further direct that the loss suffered by the public exchequer and/or by a citizen be compensated personally by the defaulting public functionaries." We, therefore, hold that matter before this Court purely and simply pertains to the cancellation of allotment of plots Nos. 30 and 32 vide letter dated 2‑10‑1994 and the petitioner does not want to enforce the contractual obligation through writ petition in hand, therefore, the writ petition is maintainable. The outcome of the above discussion is that the petitioner has not been discriminated by respondents Nos. l and

2. The cancellation of lease of land allotted to the petitioner vide letter, dated 2‑10‑1994 is without lawful authority, illegal and of no legal effect. The lease/allotment of the plots is restored with the direction to the petitioner that he shall deposit Rs. 7,73,8761 Rs. 4,10,520 for lease money and Rs. 3,63,356 for development charges) within a period of four months from the date of announcement of this judgment failing which the cancellation order, dated 2‑10‑1994 shall hold the field. The writ petition is partially allowed in the above terms with no orders as to costs. Q.M.H./M.A.K./316/P Order accordingly.