2006 PLP 504 (CLC)

SABIHUDDIN AHMED, J.

The facts of the case appear to be fairly simple. The petitioner was allotted a plot in K.D.A. Scheme No.5, on the basis of direction issued by the then Chief Minister for the establishment of a school and was delivered possession on 5-5-1992. According to the terms of the allotment the petitioner was required to complete the construction of a building within two years from the date of possession and thereafter a lease was required to be executed in his favour. However, for some reason the construction could not be completed within the given time and thereafter by order, dated April 26, 1995 the allotment was cancelled on the ground that the petitioner had violated certain terms of allotment. The aforesaid letter, dated 26-4-1995 has been called in question in this petition.

2. Mr. Muhammad Ashraf Kazi, learned counsel for the petitioner argued that the cancellation was effected without notice to the petitioner and in violation of the principles of natural justice. He further argued that by the factum of delivery and possession of the plot to the petitioner, even as a licensee, had acquired a right in rem in the plot allotted to him and, therefore, cancellation could not be effected without hearing him. Indeed such position has been acknowledged by this Court in Noor Muhammad v. K.D.A. PLD 1975 Kar. 373.

3. On the other hand Syed Jameel Ahmad, learned counsel for respondent No.1 has contended that the allotment was made on the basis of recommendation of the Chief Minister, who had no power to do so and therefore, it was void ab initio.

4. Miss Rizwana Ismail, learned counsel for respondent No.3, on the other hand, argued that the plot was meant for park and recreation activities under the layout plan and allotment in favour of the petitioner for the purposes of setting up a school was ex facie without jurisdiction. As such no need for affording an opportunity of hearing existed.

5. Be that as it may the fact remains that the order of cancellation impugned in this petition does not speak of absence of authority of the respondent No.1 to effect the allotment in petitioner's favour mala fides in passing the allotment order. It only referred to violation of certain conditions of allotment and in all fairness violation of those conditions would not automatically entail cancellation. The petitioner was entitled to show whether the same occurred for reasons beyond his control or otherwise and the respondents were expected to exercise their discretion fairly and honestly in determining whether cancellation or extension of time was appropriate in the circumstances. The question whether the plot was actually available for transfer to the petitioner or whether the allotment was otherwise bona fide are those of facts which can also be best determined by the competent authority. For these reasons we would allow this petition to the extent that the impugned order is set aside and the matter would be decided afresh by appropriate officer in the respondent No.3 on or before the closing of the present calendar year. Till such date the petitioner will not raise any construction on the plot in question. M.B.A./R-4/K Order accordingly.