2008 PLP 1120 (CLC)

UMAR ATA BANDIAL, J.

This petition is filed to challenge proceedings taken by the respondents Nos.1 to 3 cancelling the residential plots allotted to the petitioners in 1982 in the canal park scheme framed by the Municipal Committee, Rahimyar Khan. The petitioners made full payment of the auction price and are in possession of the plots in question. Upon the consideration of public interest being served by the provision of a car parking facility and a girls college that has subsequently shifted into the scheme, the A.D.L.G. and the Deputy Commissioner, predecessors of respondents Nos.2 and 3 passed the impugned order, dated 12-3-1997 cancelling the residential plots of the petitioners falling within the area designated for the parking space except those plots upon which allottees have already raised construction. This order was passed without hearing the petitioners wherein no compensation for the cancelled plots is provided to the petitioners except the refund of the respective prices obtained 14 years ago from the petitioners.

2. The learned counsel for the petitioner attacks the impugned order on the touchstone of Articles 23 and 24 of the Constitution for amounting to the expropriation of the petitioners property without compensation. He further submits that such exproprietary order was passed without hearing and amounts to violation of the rules of natural justice.

3. The learned counsel for the respondents Nos. 1 to 3 has defended the impugned action and submits that the petition is not maintainable on account of alternative remedy being available under section 166 of the Punjab Local Government Ordinance, 1979. It is further submitted that the petitioners are in default of their obligation to build on the plots within time, therefore, they are not entitled to any relief for being in such default. He adds that under section 156 of the said Ordinance the Deputy Commissioner is competent to pass orders in public interest whereby private rights may be affected adversely. Reliance is placed on Haji Khan Wali and others v. Director-General C.D & MK, Peshawar 2005 YLR 3102.

4. Learned counsel for respondent No.4 adds that the petitioners have a remedy by way of a suit for damages.

5. The submissions made by the learned counsel have been considered. The petitioners acquired vested proprietary rights to the plots in question after having paid their price in full and having obtained possession thereof. The deprivation of the aforesaid rights to property is permissible under the Constitution subject to payment of compensation in accordance with law. The impugned action lacks that attribute by allowing refund of a price charged 14 years earlier and not a contemporary value thereof. In any event the deprivation of proprietary rights must at a minimum be attended by prior notice and opportunity of defence which was admittedly not given to the petitioners. These defects go to the root of the matter disclosing patent illegality for which the constitutional jurisdiction constitutes the appropriate remedy. The impugned action is, therefore, declared to be without lawful authority and of no legal effect. Be that as it may, the respondents are well-within their right to pursue the aim of public interest in the matter but must do so by a process that complies with the law. Disposed of. H.B.T./D-3/L?????????????????????????????????????????????????????????????????????????????????????? Petition allowed.