1998 PLP 2745 (SCMR)

AJMAL MIAN, C.J.

This is an appeal with the leave of this Court against the judgment dated 15-9-1992 of a Division Bench of the Peshawar High Court in Writ Petition No.937 of 1991 filed by the appellant against the order dated 30-1-1991 rescinding/recalling the allotment order in respect of a plot measuring one Kanal in Phase-VI of Hayatabad Township, Peshawar, dismissing the same. The brief facts are that the appellant, who claims to be a journalist, was allotted one Kanal plot in Phase-VI of Hayatabad Township through letter dated 12-5-1990 issued by the Housing Officer of respondent No. l Peshawar Development Authority. The above letter reads as follows: "Subject: Allotment of Plots in Phase-VI of Hayatabad Town. The Chief Minister N.-W.F.P. is pleased to allot you Kanal plot in Phaase-VI of Hayatabad Town. The plot No. alongwith other documentation will be intimated to you as soon as the-land is marked." After that the Secretary of respondent No. l through his letter dated 30-1-1991 withdrew the above allotment letter. The above letter reads as I follows: "Subject: Allotment of Plot in Phase-VI, Hayatabad Town Reference This office No.3-1-60/62, dated 12-5-1990 on the subject cited above. It is to inform you that the allotment of plot intimated to you vide this office No. quoted above, stands withdrawn." Thereupon, the appellant filed the above writ petition in which inter alia it was averred that the above allotment was made by the Chief Minister, N.-W.F.P. from his quota of 12% reserved in the above township. It was further pleaded that the above order of withdrawing the allotment was passed without hearing the appellant. The above petition was resisted by respondent No. l and inter alia it was pleaded that there was no discretionary or any other quota provided under the rules for allocation by the Chief Minister. It was further submitted that since no particular plot was allotted to the appellant and no payment was made by him, respondent No. l was, entitled under law to withdraw the above allotment. The learned Division Bench through its judgment under appeal dismissed the same inter alia by holding that till withdrawal of the above allotment no decisive step had been taken and thus no right to claim the plot is vested in the appellant. It was further held that the impugned order recalling the allotment was not tainted with any mala fides. Thereupon the appellant filed a petition for leave to appeal, which was granted to consider the question as to why the appellant should not be even now allowed and direct to avail of the opportunity provided by appeal provision of the Regulation. In support of the above appeal Mr. Samdani, learned counsel appearing for the appellant has invited our attention to printed page No.5 of brochure of Hayatabad Township (copy at page 49 of the paper-book where under sub-para. (k) of para. 3 the following entry appears: "(k) P.D.A. Reserve. 12%". However, he has not been able to show that under what para. of the above brochure the Chief Minister has the power to issue direction for allotment. In our view, in the absence of any statutory backing empowering the Chief Minister to allocate any plot out of 12% plots reserved by respondent No.1 in the above scheme, the appellant cannot maintain a Constitutional petition. Even otherwise, it is debateable whether any such discretionary powers can be vested in the Chief Minister to allot plots in a public scheme in view of various Articles contained in the Constitution of Islamic Republic of Pakistan particularly relating to the Fundamental Rights. It may be pointed out that the abovequoted allotment letter indicates that the number of plot alongwith other documents were to be intimated to the E appellant, after which he was to deposit the cost of the plot. Admittedly, he was not intimated any number of the plot nor he was given any document before withdrawal of the allotment letter. In this view of the matter, no vested right can be claimed by the appellant in a particular category of plots. The High Court has rightly held that no decisive step had been taken before the above allotment was withdrawn. We may also observe that exercise of Constitutional jurisdiction is a discretionary matter and the Court may decline to invoke the same even if an impugned order prima facie may be illegal. In our view it is not a fit case where the High Court should have invoked Constitutional jurisdiction, as by doing so the High Court would have approved the practice of having discretionary quota for allotment of plots which is against the tenets of Islam and also against the Constitutional provisions. The appeal has not merit and the same is dismissed. A.A./S-85/S Appeal dismissed.