2001 PLP 1013 (MLD)

6. I find that vide Annexure H, a letter dated 20‑9‑1989 issued by a Project Director of the Agricultural Department, Government approval was conveyed for allotment of Plot No.3 in favour of respondent No.5 for Rs.42,000 while respondent No. 3 vide a letter dated 5‑10‑1989 (Annexure 'J' to the written statement of respondents 2 and 5) directed the said respondent No.5 to deposit Rs.42,

000. Vide receipt Annexure K dated 5‑10‑1989, the said amount was deposited by respondent No.5. Vide Annexure, G, a letter dated 6‑7‑1989 of the' said Project Director, Government approval was conveyed for allotment of a plot out of two available plots in favour of respondent No.4 for a price of Rs.20,000 as a special case. However, I neither find any allegation in the comments filed by respondent No.4 that he did deposit the said amount nor have any further orders by respondent No.3 in the matter or any receipt for the amount, if any, deposited, has been produced.

7. Learned A.A.‑G. has produced the original file being maintained by respondent No.3: regarding the said Plots Nos.3 and 4 and I have examined the same. According to this file, the petitioner made the highest bid of Rs.42,000 each for the said two plots and a sum of Rs.10,500 each was paid and is noted on the two bid sheets. The amount was paid on the very day, the auction was conducted i.e. 17‑12‑1978. Thereafter, notices were issued on 3Q‑8‑1980 calling upon the petitioner to deposit the balance amount within one month. Thereafter., a notice was issued on 17‑3‑1981 which states that after the earlier notices, he was granted time to pay the balance but still he has not done so and that he should do the needful. It was also intimated that now no case is pending in the High Court against respondent No.3. Thereafter, there is a letter addressed by Lt. Col. Islam Khan to the Chairman of the Market Committee stating that petitioner is his relative and has purchased Plots Nos.3 and 4 and that instalments are due. He requested that the amount due be debited to his account and that is this letter should be taken as a receipt of the amount, to be paid to the Market Committee as cost of the land. On the back of this letter, is an order passed by the Chairman of the Market Committee on the office report, on the said letter and the request was allowed. Letter dated 2‑11‑1981 was issued to the said Muhammad Islam and he was intimated that as soon as amount of his share was to be received, the balance instalments will be recovered from the share of said M. Islam Khan. Then there is a note dated 22‑1‑1984 that a sum of Rs.2,00,000 had been received thereafter by the said Islam Khan but he had not paid the balance against the Plots Nos.3 and 4 and that he should be called upon to make the payment whereupon a notice was ordered to be issued to M. Islam Khan. Then I find a notice issued to the petitioner on 28‑10‑1986 informing him that the auction of the plot has been cancelled and the amount paid by him, has been forfeited. Now I find that a copy of this letter has been appended with the written statement of respondents Nos.2 and 5 as Annexure D but I note that whereas there is nothing on the file as to whether or not this order was received by the petitioner. I find that in the said photocopy (Annexure D) signatures purporting to be that of Sultan Ahmad petitioner appear whereas there are no such signatures on the said letter in the original file handed over to me by the learned A.A.‑G. Thereafter, the original file contain the application of respondents 4 and 5 and the said orders of the Government according to approval and deposit receipts. From the file, it does appear that respondent‑ No.4 had deposited Rs.10,000 as an instalment on 15‑8‑1989. However, I also find that the application filed by respondent No.4 whereupon the allotment process was negotiated, makes an interesting reading. The application narrates that the Commission Agents managed to obtain the plots on very low rates and that he is not only prepared to pay the price on which the Government has given the plots to other persons but that he is prepared to pay the price in lump sum. However, the record shows that the respondents 1 and 3 proceeded to allot the plot to respondent No.4 at a price less than half of the price that had been offered by the petitioner and according to the record produced before me, this price was also paid in instalments one on 15‑8‑1989 and the other on 12‑9‑1989.

8. This Court had observed as far back as on 25‑11‑1989 that the respondent No. 1 was unable to produce any order of cancellation on the said date or even to refer to the particulars of the same. I have examined the comments filed by respondent No.3 which were received in this Court on ‑29‑10‑1989. The comments were forwarded vide letter dated 25‑10‑1989. I find that the comments are absolutely silent as to any particulars of the alleged cancellation order or that the cancellation order was served on the petitioner.

9. There is another significant aspect of the matter. The respondents 2 and 5 have appended as Annexure F to their written statement, a letter dated 23‑8‑1989 purported .to have been issued by respondent No.3 to the petitioner. I deem it proper to reproduce the said letter here in its entirety. A bare reading of the said letter, would show that the particulars of the cancellation order are missing. On the other hand, this letter gives‑ a clear impression that the cancellation order as pleaded by the respondents 2 and 5 dad not come into existence at the time when the said letter date 23‑8‑1989 was issued.

10. Now the said letter is an apology that the notice has been wrongly issued to the petitioner calling upon him to commence the construction on the plot and that the petitioner has fraudulently deposited Rs.41,000 thereafter. Now the petitioner has made specific allegations in his writ petition regarding the issuance of notice for commencement of construction and is making deposit of Rs.41,000 upon insistence of respondent No.3 despite the fact that it was agreed that the balance would be recovered from the share of said Islam Khan. In the comments filed by respondent No.3, I do not find any such allegation as contained in said letter, dated 23‑8‑1989 although these comments were sent to Court on 25‑10‑1989. Thus, I find that not only the alleged cancellation order ((Annexure D to the written statement) of respondents 2 and 5) is a fabricated document but so is the case with the said letter, dated 23‑8‑1989 (Annexure F to the said written statement). I have no hesitation in observing that both these documents were prepared at a point of time after the filing of this writ petition and even after the filing of the comments by respondent No.3 in this Court.

11. There is no denial of the fact, by any of the respondents, that M. Islam Khan, the owner, was entitled to recover 1/3rd of the‑price of the land that was auctioned by respondent No.3. There is also no denial that M. Islam Khan did confirm to the respondent No.3 that the petitioner had paid the price to him and that the same be recovered from his share. I have already stated above with reference to the original file of respondent No.3 that the arrangement was accepted by the said respondent and an order was passed that the price shall be so recovered. Now the plea taken by learned A.A.‑G. is that a sum of Rs.2,00,000 was payable to Islam Khan after the said arrangement had been agreed but Islam Khan proceeded to receive the said amount of Rs.2,00,000 from respondent No.3 and thereafter did not pay back the amount to the respondent No.3. Even if the said fact is admitted, the question arises as to how Islam Khan was allowed to run away with the said amount which of course was in the control of respondent No.3 and was admittedly paid by the said respondent to Islam Khan. I do not find anything in the said file and the learned A.A.‑G. has also admitted that no proceedings were taken against the officials of respondent No.3 who had allowed Islam Khan to run away with the said amount without deducting the price of the said plots which were agreed to be adjusted against the said 'amount. Be that as it may, the fact remains that upon receipt of the notice for commencement of the construction, the petitioner did make the deposit which is being held by respondent No.3. I have already stated above that the plea of the respondents 2 and 5 (not of respondents l and 3) that the said notice in the year 1989 was issued due to some misunderstanding or that the petitioner managed to procure the issuance of said notice, is not believable

12. The material available on record, thus, fully corroborates the case set up by the petitioner in his writ petition so far as the factual aspects of the case are concerned. I, therefore, find that in the first instance, the plots were never cancelled from the name of the petitioner and in the second, even if by some stretch of imagination, it can be said that the plots were cancelled, the cancellation is wholly illegal and void.

13. Coming to the allotments of the said plots in favour of respondents Nos. 3 and

4. The establishment of the Market in question is governed by Rule 67 of the said Rules. A reading of Rule 67(f) of the said Rules clearly depicts that upon forfeiture of a plot, it has to be re‑auctioned. There is no 'provision in the entire Punjab Agricultural Produce Markets Ordinance, 1979 or the said Rules which have been framed under the said Ordinance for the allotment of plot or transfer of plot in any manner other than by auction. Learned A.A.‑G. and the learned counsel for the private respondents stress that Rule 72 of the said Rules empowers the respondent No. 1 to relax the rule in any individual case. The said Rule 72 is in the following terms. "

72. Relaxation of rules.‑‑‑Any of these rules may, for reasons to be recorded in writing be relaxed in an individual case by the Government, if the Government is satisfied that a strict application of the rule would cause undue hardship to the individual concerned. " A plain reading of the said rule would show that none of the conditions prescribed therein for relaxation of the rules exists in the present case. To my mind, if at all the said rule could have been resorted to only relieve the petitioner of any hardship in the matter of a strict application of the rules. By no process of conjecture or surmise, can this rule be stretched to doling out of public property to individuals by the Government as done in the present case. I have already stated above that one plot was sold for half the price offered and paid by the petitioner while the other was sold of course at the same price. Thus, no benefit whatsoever has been obtained for the public exchequer rather a loss stands caused to it.

14. Learned counsel for the petitioner relies upon the case of "Pervaiz Oliver and others v. St. Gabrial School through Principal and others" (PLD 1999 Supreme Court 26) in support of his proposition that the respondents 1 and 3 cannot be allowed to act as if the said plots were their personal property. I deem it proper to reproduce here the following‑ observations of Mr. Justice Wajihuddin Ahmed (as his Lordships then was) appearing at page 35 of the report:‑‑ "We consider it our bounden duty to observe that many of those in the administration, politicians and bureaucrats alike, virtually consider public property as their own to be appropriated or allocated at their whims or fancies. Nothing is further removed from legal realities. No public property, big or small, tangible or intangible, can be disposed of except in accordance with law. Those who transgress, expose themselves to the severest of penalties under law, the cardinal principle being, the higher the functionary, the higher responsibility and, for that reason, the stricter the punishment. " I have already observed above that the matter has been dealt with by respondents 1 and 3 in gross violation of the rules governing the disposal of the said plots. In the present case, not only an individual i.e. the petitioner had been caused wrongful harm but also the public property has been dealt with in a reckless manner. Even if no rules were there, the impugned acts of the respondents 1 and 3 were not be exempted from the judicial scrutiny. I may refer here to the Case of "Controller of Patent and Designs, Karachi and others v. Muhammad Qadir Hussain" (1995 SCMR 529) where it has been observed by the apex Court that the Government as also its functionaries do not enjoy any convential prerogative as was or is available to Crown in England except those discretionary powers which either have been specifically conferred by the Constitution or under any law passed by the Parliament. The Supreme Court further observed that any discretionary power available to Government or its functionaries in the nature of prerogative is subject to the process of judicial review by the superior Courts in accordance with their jurisdiction under the Constitution and any exercise of discretionary power has to be justified either under some Statute, Law or under the provisions of the Constitution before it is pressed into service before a Court. No justification whatsoever has been given by respondents Nos. 1 and 3 for the impugned acts.

15. I may also refer here to the case of "Sherin and 4 others v. Fazal Muhammad and 4 others" (1995 SCMR 584) where referring to some observations made by Lord Atkin in the case of "East Suffolk Rivers Catchment Board v. Kent and another (1941 AC 74), it was observed that: "All public authorities including the judicial functionaries while doing an act enjoined by law or merely empowered to do it must not to do it improperly."

16. In the case of "Shaukat Ali v. Secretary Industries and Mineral Development, Government of Punjab Lahore and 3 others" (1995 MLD 123) while dealing with a case arising out of Punjab Minor Minerals Concession Rules, 1990 this Court held that since the said rules provide for grant of licensing rights through public auction, a Licensing Authority has no power to grant leases to people by any other mode including negotiations. Respondent No. 1 was, therefore, not at all possessed of authority to proceed to direct respondent No.3 to allot the plots to respondents 4 and 5.

17. The respondents 1 and 3 have not been able to justify their acts and to give any explanation for the same. Article 4 of the Constitution enjoins a duty upon any person interfering with the property of any other person under the cover of Law to explain and satisfy the Court with regard to its validity and propriety both procedural and substantive, as observed by the Supreme Court of Pakistan in the case of "Government of Sindh through Secretary,, Home Department, Karachi and another v. Abbas Ahmad, Advocate and 2 others" (1994 SCMR 923). The orders purportedly passed for reservation of plots and then their, allotment to the respondents 4 and 5 by respondent No. 1 is clearly in excess of legal authority. Even if the respondent No.3 has proceeded to carry the same into effect, the same do not furnish any foundation for a legal right to respondents 4 and

5. Needless to add that a waiver has not been alleged and in any case there is no question of any waiver as the acts and orders were challenged promptly by filing the present writ petition. Reference be made to the case of "Abdul Rauf v. Mst. Hafizan Mosan Atta and others" (1986 SCMR 1893).

18. This is an Islamic State. It is our firm belief that all sovereignty vests in Allah Almighty and this belief is duly expressed in our Constitution. The Government established under the Constitution and all its functionaries perform their duties in the exercise of authority vesting in them by law as delegatees. I deem it proper to state here the attributes of the delegated authority held in trust as expressed in the opinion of Mr. Justice Shafiur Rahman (as his Lordship then was) in the case of "Pakistan v. Public‑at‑large" (PLD 1987 Supreme Court 304). (i) The authority so delegated to, and held in trust by, various functionaries of the State including its Head must be exercised so as to protect preserve, effectuate and advance the object and purposes of the trust, (ii) all authority so enjoyed must be accountable at every stage, and at all times, like that of trusteee, both in hierarchical order doing back to the ultimate delegator, and at the other end to the beneficiary of the trust, (iii) in discharging the trust and in exercising this delegated authority, there should not only be substantive compliance but also procedural fairness. " Thus, from whatever angle seen, the said acts committed by the respondents 1 and 3 for the benefit of respondents 3 and 4 cannot be sustained.

19. As to the said contention of the learned counsel for the private respondents that they have raised construction and shall be facing hardship, I find that so far as the respondent No.4 is concerned, he made the last deposit on 12‑9‑1989 while the respondent No.5 made the deposit on 5‑10‑1989. This writ petition was filed in Court on 7‑10‑1989 and on 8‑10‑1989, an order was issued directing the respondents to maintain status quo. Prima facie, it appears that the respondent proceeded to make the construction after the institution of the writ petition and nothing, therefore, turns on the said plea of learned counsel.

20. So far as the contention of the learned counsel for respondents 2, 4 and 5 as to failure of petitioner to avail alternate remedy is concerned, I do not find that any equally efficacious alternate remedy was available. Besides there is no dearth of authority, that where an order impugned before this Court suffers from illegality on the face of the record or is in excess of jurisdiction or is without jurisdiction, a certiorari may be granted even though the right of statutory appeal had not been availed of. Reference be made to the cases of "Nagina Silk Mill, Lyallpur v. The Income Tax Officer, etc." (PLD 1963 Supreme Court 322) and "The Murree Brewery Co. Ltd., v. Pakistan through the Secretary and 2 others" (PLD 1972 Supreme Court 279).

21. In view of the above discussion, this writ petition is allowed. The orders dated 6‑7‑1989 (Annexure G) and 28‑9‑1989 (Annexure H) of the respondent No.1 and the pursuant orders and proceedings thereto by respondent No.3 are declared to be illegal, void, and without lawful authority. The respondents are further directed to immediately restore the possession of the Plots 3 and 4 to the petitioner. The private respondents shall be at liberty to remove the constructions, if any. The respondents shall also bear the costs of this writ petition. Q.M.H./M.A.K./S‑145/L Petition allowed.