P L D 1988 Lahore 325 (PLP)

This petition calls in question the two notices dated 14‑5‑1981 whereby the Military Estate Officer, Lahore Cantonment, Lahore (respondent No.2 herein), called upon the petitioner to hand over physical possession of plot No.17, situate in Survey No.295, Lahore Cantonment.

2. Briefly stated the facts of the case are that the petitioner was leased out a plot measuring 1000 square yards for a period of 99 years commencing 11‑6‑1976 (not 11‑6‑1979 as mentioned in para. 1 of the petition) to 10‑6‑2075, on payment of a premium of Rs.1,000 and annual rent of Rs.100, lease deed whereof was executed and got registered in the office of the Sub‑Registrar, Lahore Cantonment, on 4‑10‑1976. Later certain amendment was introduced in the lease deed which document was executed on 20‑12‑1978 and registered on 24‑12‑1978. it is further averred that after execution and attestation of the lease deed, the petitioner made considerable improvements in the plot by incurring huge expenditure, and got the building plan sanctioned on 7‑5‑1979. Improvements made by the petitioner enhanced the value of the plot which became attractive for all interested persons, and the functionaries of the respondent, with a view to accommodate their own persons proceeded to black‑mail, pressurise and harass the petitioner and consequently vide notices dated 14‑5‑1981 communicated to him that the Government of Pakistan, Ministry of Defence, Rawalpindi, had decided to determine' the lease‑hold rights of the subject plot of land without payment of any compensation and that the vacant possession thereof would be entered upon by the representative of that office under the provisions of the Central Government Lands and Buildings (Recovery of Possession) Order, 1965.

3. The above mentioned notices have been questioned on a number of grounds which I will be attending to later. Presently, it may be stated that on 13‑12‑1987 1 had called for the learned Deputy Attorney General for Pakistan to assist the Court. Copy of the petitioner was delivered to him with direction to seek instructions from respondent No.2. Be that as it may, a report and parawise comments were received from respondent No.2 and the case came up in motion on 31‑1‑1988. It was noticed that although there was a categorical assertion on behalf of the petitioner that no show‑cause notice was served on him before passing the resumption order, that has not been specifically refuted by the respondent, it was in these circumstances that the petition was admitted to a regular hearing,'

4. It is contended by the learned. counsel for the petitioner that before resuming the plot in question, no show‑cause notice was either issued or served on him arid that being we case it was violative of The principle of natural justice, It is also contended that through the second notice (Annex,B) the petitioner was called upon to vacate the land in question within fifteen days from the issue of the notice .which also is dated 14‑5‑19811, and in these state of affairs it is in .conflict with the other notice (Annex. A) which postulates that the plot in question stood resumed with immediate effect and notice was only given to the effect that vacant physical possession of the plot in question would be entered upon by the representative. of the office under the provisions of the order ibid.

5. Learned counsel for the petitioner further contended that the haste shown in issuing the two notices or, the same date demonstrates the malice on the part of the respondent in resuming the plot, He also contended that the plot was leased out for a period of 99 year with a firm assurance that the petitioner would enjoy to the term of the lease, consequently the resumption order was against public policy, void ab initio and without legal effect. In so far as the building ,period was concerned, it was contended that it could be extended by the Cantonment Board as per section 183‑A of the Cantonment Act, adding that in many cases building period had been extended but in the case of the petitioner, however, before he could apply for such extension, resumption order through the two notices was issued which, it is asserted, was done with mala fide intention.

6. It was also submitted that the petitioner had commenced construction within the building period and incurred an expenditure of about Rs.58.000 besides stacking building material on the site. My attention in this connection was invited to the report of the Local Commissioner (Annex, D )‑ A reference has also been made to letter No. 118/ 100/ T P/ ML & C /7 3 dated 26th September, 1984 issued by Government of Pakistan Ministry of Defence (ML&C Department) addressed to MEOs on the subject of completion of buildings on plots in the Defence Officers Schemes in Cantonment. It was stated therein that the Ministry of Defence had decided that in all those cases where leases were executed on or before 23rd September, 1974 g registered show‑cause notice should, be served by MEO concerned on all such, defaulters to explain as to why their leases should not be determined and plot resumed for breach of terms of the lease agreement. On the expiry of this notice cases for the determination of leases of the defaulters should be initiated in the normal way and further that this letter should be considered as authority for extension of time limit in all other cases. Building application, in such cases, should be accepted without any objection on this particular account and cleared from land pointed out as soon as received in the Circle Office. It is stated that by virtue of the above letter the building period of the plot of the petitioner stood automatically extended because the lease in his favour was executed after 30th September, 1974.

7. Learned counsel for the petitioner cited Abdus Saboor Khan v. Karachi University P L D 1966 S C 536; Abdullah Mahmood Peermohamed v. Karachi Municipal Corporation P L D 1971 S C 130; Murree Brewery Co. Ltd. v. Pakistan P L D 1972 S C 279; Talab Din v. S.D.M. Khanewal P L D 1972 Lah. 676; Mst. Abeda Begum v. Govt. of Pakistan 1985 C L C 2859 and Haji Yaqoob Khan v. Murree Cantt. Board 1987 C L C 108 in support of his case.

8. At the very outset, learned counsel for the respondent raised an objection on the admissibility of the present petition on the ground that the petitioner had also filed a civil suit in a Court of law and in the circumstances he was precluded from invoking the constitutional jurisdiction of this Court.

9. It is next contended by the learned counsel for the respondent that although the building plan for construction of a bungalow on the plot in question was sanctioned by the Cantonment Board in the month of March, 1979, the petitioner failed to construct the building as per sanctioned plan and that infringed/ violated condition No.1(5) of the lease deed. It is contended that in the circumstances the Government of Pakistan, Ministry of Defence, had rightly determined the lease hold rights of the plot and both the notices were rightly issued by respondent No.2. It is also submitted that the petitioner had not commenced construction of the building on the demised plot prior to the cancellation of the lease‑deed and foundations were dug up after cancellation of the deed.

10. I have heard the learned counsel for the parties and with their assistance have also gone through the record. From the parawise comments submitted by respondent No.2 it is sufficiently evident that prior to the cancellation of the lease deed no notice was issued to the petitioner. Even at the time of the hearing of the petition no such notice was produced by the respondent from which it could be ascertained that any notice prior to the cancellation was issued by the Government of Pakistan. In the circumstances, I have no hesitation in holding that the cancellation order passed by the Government of Pakistan is violative of the maxim audi alteram partem and consequently void ab initio. I am fortified in my conclusion by a judgment of the Karachi High Court report as Mst. Abeda Begum v. Govt. of Pakistan 1985 C L C 2859 wherein an order passed in violation of the principles of natural justice was declared to have been passed with authority and of no legal effect and was consequently set aside.

11. As for the preliminary objection raised by the learned counsel for the respondent about the right of the petitioner to approach this Court in the constitutional jurisdiction, I am clearly of the view that there is no substance s the objection. I should not, however, be taken to mean that a party who has already gone to a civil Court is entitled as of right to invoke constitutional jurisdiction of this Court, but each case has to be weighed and decided on its own merits. In the instant case, essentially a civil suit is not an adequate remedy and the petitioner will have to wait for years for final determination. Besides, the learned counsel for the respondent did not cite any authority to support his contention that where a suit is filed a party is precluded from pursuing his remedy through a constitutional' petition. Moreover, powers conferred on this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan are essentially discretionary in nature and in view of the circumstances and facts of. the case, I feel exercising that jurisdiction in favour of the petitioner. If any authority is needed for this proposition, reference may be made to Abdullah Mahmood Peermohamed v. Karachi Municipal Corporation P L D 1971 S C 130.

13. The respondents have failed to show as to why the case 01 the petitioner is not covered by the letter No.118/100/TP/ML&C/73 dated 26th September, 1984 automatically extending building period of the leases executed after 30th September, 1974.

14. For the reasons given above, I hold that the act of cancellation of the lease deed in favour of the petitioner followed by issuance of two notices is an act without lawful authority and of no legal effect. The petition is accordingly accepted. Parties are, however, left to bear their own costs. A. A /M- 645/L Petition accepted.