2009 PLP 1387 (YLR)

ARSHAD NOOR KHAN, J.

By this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has questioned the legality, propriety and validity of the cancellation of plot allotted to him by the respondent vide letter dated 5th July 2005. The facts, necessary to decide the present petition in brief are that the petitioner joined Pakistan Armed Forces as Flight Cadet in the year 1964 and was paid out of defence services estimates. At the relevant time of his service, the cooperative housing society namely Pakistan Defence Officers Cooperative Housing Society Limited, Karachi (hereinafter shall be referred to as "the Society Ltd."), established with sole aim and object to procure land for the benefits of the armed personnel. The petitioner by virtue of byelaw No.7 of the Society Ltd., 1972 obtained the membership being No.AF-4977 on payment of requisite fee., It is further stated in the petition that after scrutiny of record of the petitioner, he was allotted plot No.214-C, Al Murtaza Commercial Lane-3, Phase-VIII, admeasuring 200 sq. yards., Karachi by the managing committee of the then society, in its meeting held on 25th July, 1975. It is further stated in the plaint that the said plot was allotted to him on the basis of ballot' and after allotment all the necessary charges were paid by him and since last about 30 years no one has raised objection regarding membership of the petitioner or allotment of the plot in question and to the utter surprise and disappointment of the petitioner, he received letter dated 5th July 2005 from respondents thereby informing him about cancellation of his aforesaid plot and the said Plot was cancelled without hearing of the petitioner or without issuance of any show-cause notice as such the order of cancellation of the plot dated 5th July 2005 is illegal, inoperative, mala fide, ultra vires to the Constitution and prayed to declare the same having no lawful effect. The respondent filed their objections stating therein that on scrutiny of the file of the petitioner it revealed that on the day when he acquired membership of the society, he was not working as armed personnel and obtained the membership by concealing the material facts and that he is/ was also not working as civilian members of the armed forces and a show-cause notice was sent to his address available with the respondent and subsequently it revealed that he was residing in U.S.A. therefore another show-cause notice was sent to him on the address of U.S.A. but petitioner did not respond to the said show-cause notice sent to him on his both addresses. Thereafter reminders have also been sent to him on his both the addresses which were received by him but he did not respond, therefore the plot in question was cancelled. We have heard Mr. Anwar Hussain Advocate for the petitioner and Mr. Khalid Jawaid, Advocate for the respondent. Mr. Anwar Hussain, Advocate for the petitioner vehemently contended that the petitioner is a member of the society and was lawfully allotted the plot in dispute which has been cancelled by the respondent without issuing any show-cause notice to him or without affording an opportunity of hearing to the petitioner, 'as such, bright principle of natural justice has been violated and the impugned cancellation letter is liable to be declared as illegal, inoperative, void and is of no legal consequences. In support of his contention, he has relied upon an unreported judgment of this Court passed in CP No.D-414/2004 Mst. Ghaur Jillani v. Pakistan Defence Officers Housing Authority. Mr. Khalid Jawaid, advocate for respondent while refuting the arguments advanced by the learned counsel for the petitioner has vehemently contended that the petitioner practised fraud with the respondent in obtaining membership of the then society as at the time of establishment of the then society he was not in service of armed forces, which is a basic requirement of byelaw No.7(i) of the society. He further contended that the society subsequently had been converted into an authority by the President Order No.7 of 1980, as Pakistan Defence Officers Housing Authority Order, 1980 and on scrutiny of the case of the petitioner, it revealed that he was not in the services of the armed forces, therefore he was served with the show-cause notice and subsequently upon his failure to reply show- cause notices, cancellation of his plot is not unlawful. In support of his contention, he has relied upon the case of Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi reported in 2008 SCMR

611. We have considered the arguments advanced on behalf of the parties and have gone through the material available before us. The petitioner is claiming membership of the society on the basis of byelaw No.7 of the society, which was promulgated in the year 1972 and by virtue of byelaw No.7(i) the membership was allowed to him, which speaks about the qualification of members to be the officer of the Pakistan Armed Forces and civilian officer paid from the defence service estimates. The claim of the petitioner is that he joined Pakistan Air Force as Flight Cadet in the year 1964 but has concealed the fact that when he was discharged or removed from the armed services. The respondents in their objections have categorically stated that at the relevant time when the society was created, the petitioner was not qualified to be the member of the society by virtue of byelaw No. 7(i) and the service record of the petitioner was checked from Air Headquarters Islamabad and Wing Commander, Air Headquarters Islamabad vide his letter dated 7th October 2002 informed that Pak-91838 Ex-Flight Cadet Pervez Shamim joined PAF as Flight Cadet on 29-1-1964. His cadetship was terminated with effect from 24-6-1964 due to poor academic performance. A perusal of the letter sent by Air Headquarters Islamabad to the respondent shows that the service of the petitioner-was terminated in the month of June 1964 whereas the society 'was established in the year 1972 and at that relevant time when the society was established and its byelaws were promulgated, the petitioner was neither the member of the armed forces nor the civilian Officer paid from the defence services estimate, as such the petitioner was basically disqualified to become a member of the respondents society. The????? respondents????? have???? also produced the show-cause notice, dated 28-6-1990 addressed to the petitioner at his available address of Karachi, wherein the respondent alleged that on scrutiny of his file, it transpired that the allotment of the Plot No.214-C, Al-Murtaza Commercial Lane-3, Phase-VIII, was allotted to him in contravention of bye-laws of the then society and he was not eligible to become the member of the defunct society under its byelaws on the basis of which the allotment was made to him and he was required to show cause within 15 days to explain as to why the plot in question may not be cancelled by the execution Board. The said notice did not return back to the respondent and as per case of the respondent the residence of the petitioner is at U.S.A., therefore they sent another show-cause notice dated 11th November 1991 to the petitioner at his address of U.S.A, but again after this notice he did not appear or contact, therefore the reminder dated 30th November 1991 was dispatched to him, which also followed by another reminder dated 3rd August 1992 at his residence in U.S.A, but he remained silent, which compelled the respondent to cancel the plot in question and the cancellation of the plot was conveyed to the petitioner at his same address of U.S.A. whereon the show-cause notices and two reminders were sent to him and he not only received the said cancellation letter but filed the present petition. The defence put forward by the respondent is fully in the knowledge of the petitioner as the petitioner has received the copies of the objections along with documents filed by the respondent and after receipt of the same, petitioner did not controvert the defence taken by the respondent that he at the relevant time was not eligible to become the member of the society as his cadetship was terminated in the month of June, 1964, much earlier to the date of promulgation of the byelaws of ,the society, and the petitioner did not controvert the said specific defence put forward by the respondent which will deem to have been admitted by the petitioner. The petitioner has completely failed to point out that the respondent while cancelling the plot in question acted illegally in exercising the powers conferred in it by virtue of Pakistan Defence Officers Housing Authority Order, 1980 (President Order No.7 of 1980) not has established that he was in the services of Pakistan Armed Forces which entitled him to become the member of the society by virtue of byelaw No.7 (i). The respondent by virtue of Article 17(h)(i) of Pakistan Defence Officers Housing Authority, Karachi Order 1980 have all the powers to cancel such allotment which has been made or issued in contravention of the byelaws' of the society or resolution of the managing committee of the society. The respondent rightly acted in accordance with the rules and byelaws promulgated for their functioning and no material is available on record to declare that the respondent while cancelling the plot of the petitioner acted in excess of their powers vested in them or they exercised the power in colourable or pregnant manner. In the case of Mustafa Lakhani, supra relied upon by the learned counsel for the respondents, the Honourable Supreme Court while considering the scope of Article 17(h) of the Pakistan Defence Officers Housing Authority Order 1980, was pleased to observe, as under:-- "It is settled principle of law that if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal, the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which the instant case the very basis of allotment being illegal, void ab initio consequently no legal right was conveyed as such payment and execution of "a" lease in favour of petitioner was illegal void ab initio hence of no effect and would not create any right or privilege in favour of the petitioner in respect of said plot, therefore,? the respondents were quite competent to cancel the allotment of plot." For the afore-stated reasons, we are of the opinion that the petitioner was not eligible to become the member of the respondent society, when the society was established in the year 1972 his cadetship had already been terminated in the month of June 1964 and inspite of receipt of show cause notices, by the respondents, the petitioner chooses to remain absent, as such, it could not be said that the principle of audi alteram partem (no one should be condemned unheard) have been violated by the respondents. The petition being devoid of any merit, is hereby dismissed summarily along with pending applications. M.H./P-5/K???????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.