1984 PLP 3527 (CLC)

Date of hearing: 27th March, 1984. Nasir Aslam Zahid, J.‑‑ In this constitutional Petition, Petitioner is one Mst. Jamila daughter of Muhammad Ibrahim. Respondent No.1 is Secretary, Labour and Co‑operative Department, Government of Sind, who is also the Administrator of the Co‑operative Development Fund and Project established under the West Pakistan Co‑operative Board (Dissolu tion) Act 11 of 1966. Respondent No.2 is the Project Manager of the Co‑operative Development Fund and Project and respondent No.3 is Deputy Registrar, Co‑operative Societies. Respondent No.4 is Saddar Co‑operative Market, and Respondent No.5 is Baqir Hussain. It is the case of the Petitioner that her brother Muhammad Ismail was allotted Shop No.70‑A in Saddar Co‑operative Market, Karachi, and an agreement of perpetual lease was made between the Project and Petitioner's brother Muhammad Ismail. According to the petitioner, Muhammad Ismail after clearance of the entire dues of the Project against the shop in question transferred the said shop in favour of the petitioner and this was confirmed by the project vide their letter, dated 11th October, 1975. The shop was given to the respondent No.5 by the petitioner as her tenant and the petitioner had also filed a case of ejectment later on against respondent No.5 before the Rent Controller, Karachi, being Rent Case No.2473/76. By order, dated 22nd December, 1977 of the Project Manager, petitioner's 'allotment of Shop No. 70‑A was cancelled on account of alleged violation of the terms and conditions of the agreement. Thereafter, the shop was allotted to said Baqir Hussain, the tenant of the petitioner. The cancellation of her allotment was taken in appeal by the petitioner before the Project Director, Co‑operative Development Fund and Project and by his order, dated 17th June, 1978 the Project Director observed that the letter regard ing cancellation of the shop issued by the Project Manager was in fact issued under the order of the Administrator and the Project Manager simply conveyed the order of cancellation passed by the Administrator. Under the circumstances the Project Director held that he could not sit over the orders passed by the Administrator and as such he had no jurisdiction to decide the appeal. The matter was taken in revision/review by the petitioner before the Administrator and by his order, dated 31st March 1980 the revision/review was disposed of by the Administrator in the following words:‑ "The appellant was the‑ allottee of Shop No.70‑A in the Super Market Building. The circumstances in which the allotments were made to such persons have been discussed by me in order number S.0 (C.1) 6 (53)/78, dated 26th March, 1980 on a Revision/Review application filed by Akramuddin against the Co‑operative Development Fund and Projects and others. Applicant's case is similar to the case of Akramuddin and hence need not be repeated. The arguments advanced by the counsel of the parties are also identical. In view of the above, I direct that the matter be referred to an arbitrator as provided in clause 22 of the agreement between the appellant and the project." Being aggrieved by the cancellation order of her allotment, dated 31st March, 1980 of the Administrator referring the matter to an arbitrator the petitioner has filed the present constitutional petition. We have heard Mr. Muhammad Akram Zuberi, learned counsel for the petitioner, Mr. Iqbal Akhtar, learned counsel for the respondent No.2 and Mr. Muhammad Ali Shaikh, learned counsel for respondent No.5. No one has appeared on behalf of the other respondents. Apart from raising contentions about the illegality of the impugned order, learned counsel for the petitioner has also relied upon a common judgment, dated 18th May, 1981 of a Division Bench of this Court disposing of Constitutional Petitions Nos. 623 of 1980 and 1550 of 1980. By the said judgment Constitutional Petition No.1550 of 1980 filed by Akramuddin, the original allottee of another shop in the same Market was allowed and the Constitutional Petition No.623 of 1980 filed by Moharram Ali, the subsequent allottee after the cancellation of the allotment of Akramuddin was dismissed.

2. The allotment/lease of the shop in question in favour of the peti tioner was cancelled by order dated 22nd December, 1977 of the Project Manager of the Co‑operative Development Fund and project which order was alleged to have been passed under the orders of the Administrator. Under section 4 of the West Pakistan Co‑operative Board (Dissolution) Act, 1966, the Administrator is the competent authority to administer the Project which includes Saddar Co‑operative Market and not the Project Manager. The order of cancellation in this case was passed by the Project Manager. No authority has been shown by the official respondents that A the Project Manager was competent under the Act of 1976 to pass order cancelling the allotment/lease of the petitioner in respect of the shop in question. Further no specific order has been shown to have been passed by the Administrator whereby he ordered that allotment/lease of shop in question be cancelled. Further we find that the Administrator in his order, dated 31st March, 1980 had relied upon his previous order, dated 26th March, 1980 in the case of Akramuddin for directing the matter to be referred to an arbitrator as provided in clause 22 of the agreement between the petitioner and the Project. That order in the case of Akramud‑ . din, on which reliance has been placed, has been set aside by a Division Bench of this Court by their judgment dated 18th May, 1981 in Constitu tional Petition No.623 of 1980.

3. In the circumstances, the order of the cancellation of the lease/ allotment of Shop No.70‑A in Saddar Co‑operative Market from the name of the petitioner by the Project Manager is declared to have been passed without any lawful authority and to be of no legal effect. All subsequent actions/Orders pursuant to the order of cancellation of the allotment/lease are also declared to have been taken/passed without lawful authority and to be of no legal effect. It is however, observed that this judgment does not debar any party from taking fresh action as may be permissible under the law including the reference of any dispute to arbitration if provided by a valid existing agreement. Constitutional Petition No.D‑1023 of 1982 stands disposed of accord ingly with no order as to costs. M. B. A. Petition accepted: