1990 PLP 1791 (CLC)

3. The learned counsel for the petitioner in support of the petition has argued that the allotment in the name of the petitioner was never cancelled, therefore, the plot was not available for allotment to respondent No 4 It is added that the petitioner has been condemned unheard. The next submission is that the whole proceedings of allotment, delivery of possession and execution of agreement are illegal as the same are in violation of the injunction order issued by the Civil Court. It is added that the order of the allotment of plot is illegal, arbitrary, capricious and mala fide. In this behalf, the learned counsel for the petitioner has referred to the judgments of Hon'ble Supreme Court in the cases of S.S. Miranda Ltd. v. The Chief Commissioner, Karachi and another (P L D 1959 SC (Pak.) 134) and Farooque Ahmed v. Shah Nawaz (1985 S C M R 1303). The arguments are summed up with the submission that there is no force in the preliminary objection raised on behalf of the respondents that it is a contractual obligation, therefore, cannot be enforced through writ petition.

4. On the other hand, the learned Advocate‑General appearing on behalf of respondents No.l to 3 submitted that the petitioner had an alternative remedy as according to Clause 21 it should have gone for arbitration. It is submitted that respondents Nos.l to. 3 handed over the possession, to the petitioner and thereafter if there was any encroachment by respondent No.4 then they were not responsible for the same. It is submitted that the conduct of the petitioner is that it has not only failed to complete construction and install machinery as per schedule given in clause 8 of the agreement but also failed to make the payment. It is submitted that the price was to be paid in five annual instalments and each instalment was due on 4th September every year and the payment was to be made within 15 days of the due date. It is submitted that since the petitioner failed to pay the instalment for 1982 on 4‑9‑1982 and also within next 15 days, therefore, the plot automatically stood cancelled from its name on 17‑9‑1982. It is added that the petitioner was served with repeated show‑cause notices and the last one is dated 27‑10‑1983. The same was sent through registered post, acknowledgement due but the petitioner did not respond to these notices. The arguments are summed up with the submission that the petitioner was not interested in the plot and violated clauses 4, 6,7 and 8 of the agreement, therefore, the plot was rightly cancelled under clause 23 (1).

5. Mr. Jari Ullah Khan, Advocate appearing on behalf of respondent No‑4 in addition to adopting the arguments of the learned Advocate‑General proceeded to add that the petitioner delayed each step to the maximum extent. The purpose was to find out a suitable customer and dispose of the plot. In this behalf, the learned counsel submitted that the petitioner was allotted Plot No.112/17 on 25‑5‑1977 but he did not proceed with the construction and installation of machinery. Then after wasting about three years he made an application for exchange. The same was allowed on 10‑6‑1980. The petitioner delayed execution of agreement for almost three months and then delivery of possession for over one year. The next submission is that the respondent No.4 constructed the boundary wall in July, 1981 i.e. before the delivery of possession of the plot to the petitioner, therefore, there was no question of any encroachment by respondent No.4 after delivery of possession. It is submitted that his client had not encroached any part of the plot allotted to the petitioner. The same was only a pretext to delay the construction and installation of machinery as the petitioner was not in a mood to retain it. It is added that the petition raises disputed question of facts which can only be decided in a civil suit. The petitioner having already filed civil suit should pursue his remedy before the Civil Court. The arguments are concluded with the submission that the writ cannot be issued to enforce contractual obligations. In this behalf, the learned counsel has referred to case of Majlis‑Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. Secretary to Government of West Pakistan, Communication and Works Department, Lahore (P L D 1967 Lah. 709). The learned counsel for the petitioner while replying to the arguments advanced on behalf of the respondents submitted that the alleged violation as to construction is rectifiable. In this behalf, he has referred to clauses 3, 12 and 13 of the terms and conditions of allotment and there is no default in the payment of the price. The moment same was accepted, delay stood condoned. The respondents Nos.1 to 3 are estopped by their own conduct to allege delay after having accepted payments.

6. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record and precedent cases relied by them. The foremost question for determination is whether the respondents No.1 to 3 have passed any order of cancellation of the allotment of the petitioner in respect of the plot. The respondents have not placed on record any such order and it was argued that the cancellation is automatic. The date of automatic cancellation according to the learned Advocate‑General is 17‑9‑1982 while according to the learned counsel for respondent No.4 it is 27‑10‑1983. The learned Advocate‑General in this behalf, has referred to Clause 2 of the agreement but this clause cannot be read in isolation and if reference is made to clauses 12 and 13 of the agreement and clause 23 of the terms and conditions then it becomes absolutely clear that the cancellation cannot be automatic. The order has to be passed by the Allotment Committee. It seems that the story of automatic cancellation was introduced only with a view to set at naught the injunction order issued by the learned civil Court.

7. The submission on behalf of the respondents is that the allotment from the name of the petitioner stood cancelled on account of the non‑payment of the price, failure to raise the construction and start industry as per schedule in clause 8 of Annexure `C'. The petitioner has clearly stated in para 5 (e) of the petition that he has paid the entire amount and nothing is due from it. In this behalf, the petitioner has also relied on Annexure `M'. On the other hand, respondents No.l to 3 have not specifically denied the submissions as to payment in their reply, therefore, the plea of the petitioner will he deemed to have been accepted.

8. Now coming to the other ground i.e. failure to complete construction and start of industry as per schedule in clause 8 of the agreement. The petitioner has explained that as the respondent No.4 has encroached on a strip of land of the plot in dispute, therefore, it was not possible for it to make the construction in accordance with by‑laws, rules and building plan approved by the Department. It is submitted that petitioner has to leave 10 feet wide open space on both sides. The argument is that since respondent No.4 has encroached to the extent of two feet wide strip, therefore, the petitioner has to wait for the clearance of the same. The respondent No.4 has denied any encroachment but it is clear from the report of the Sub‑Engineer placed as Annexure `H' on the file that there is an encroachment or at least petitioner is complaining of encroachment. This Court is not concerned with the merits of this plea because same is subject‑matter of the suit. Suffice it to observe that the respondents No.l to 3 did not try to satisfy the petitioner as to the encroachment, therefore, until and unless this dispute was resolved the petitioner could not be compelled to make construction.

9. The learned Addl. Advocate‑General submitted that the petitioner was served with repeated notices but the petitioner did not respond to the same. However, the respondents have failed to place on record any such notices, therefore, it is difficult to accept this plea. The only notice is dated 27‑10‑1983 and the same has been placed on record by the petitioner as Annexure `I'. The petitioner promptly made a reply to the same on 2‑11‑1983. This is clear from office noting appended as Annexure `H' with the petition. This is not all. Even the respondent No.2 proceeded to call for the parties for appearance before Project Director vide order dated 13‑2‑1984. The parties were required to appear before Project Director on 15‑3‑7984, then on 18‑3‑198.1 and finally on 28‑3‑1984. Therefore, there is no force in the argument of the learned Advocate‑General that the plot stood automatically cancelled on 17‑9‑1982 and that of the learned counsel for respondent No.4 that it stood cancelled on 27‑10‑1983. This completely smashes their plea of automatic cancellation. The show‑cause notice was based on non‑payment of Government dues and failure to complete construction. The allegations as to the non‑payment are too vague to make any sense; neither the nature of the dues nor the amount was specified. In any case the petitioner in the reply maintained that he has paid the entire price. The other ground was failure of the petitioner to complete construction in the stipulated period. The petitioner submitted reply thereto and explained the reasons. The same were prima facie accepted by respondents Nos.1 to 3 while proceeding to send for respondent No.4. In any case after the reply order of cancellation has to be passed by someone and that too after granting hearing to the petitioner. According to Clause 12 of the agreement of sale and Clause 23 of the terms and conditions the order has to be passed by Government or Committee or any officer acting on behalf of the allotment Committee. This was not done, therefore, there is no cancellation of the plot from the name of the petitioner in the eye of law: There is no scope for automatic cancellation. Moreso when it was lawful for the. Government either to cancel the allotment or to accept in lieu thereof compensation in money from the intended vendee as per Clause 13 of the agreement.

10. It is clear from order of respondent No.2 passed on the review application of respondent No.4 that the plot in dispute was to be allotted to it if the same was `clearly available'. Since there was no cancellation of the plot from the name of the petitioner, therefore, the same was not at all available for allotment to respondent No.4 This vitiates all the proceedings as to the allotment of plot to respondent No.4, delivery of possession to it and execution of agreement of sale in its favour. The petitioner continues to be the allottee of the plot, therefore, entitled to restoration of possession. Even the respondent No.3 was not competent to review order of his predecessor in absence of provisions of the Act, therefore, order dated 10‑12‑1985 is legal and without jurisdiction.

11. Now coming to the argument of the learned counsel for respondent No.4 that in face of the suit the present writ petition in not competent especially when it raises disputed questions of fact. The petitioner has placed a copy of the plaint on the file as annexure `P'. It is clear from the perusal of the plaint and the writ petition that the scope of both is distinct. In the writ petition the basic question involved is whether the plot has been legally and validly cancelled from the name of the petitioner. This does not require any detailed enquiry. The admitted position is that there is no order of cancellation, therefore, it does not require any recording of any evidence to answer this issue. The moment it is held that the A alleged cancellation of the allotment of plot from the name of the petitioner is illegal and against principle of natural justice, the other acts are automatically rendered illegal and ineffective. The superstructure tumbles down the moment foundation disappears P L D 1980 Quetta

32. There is no need to record any evidence as to the allotment to respondent No.4, legality of agreement in its favour and delivery of possession.

12. The perusal of the documents appended as Annexures `B and C' clearly shows that the default as to payment and period of construction arc rectifiable, therefore, before taking any action as to resumption the respondents Nos.1 to 3 were under legal obligation to allow the petitioner chance to rectify these lapses. The respondent No.2 after receipt of the reply to show‑cause notice from the petitioner proceeded to call for the parties for appearance before Project Director. This way at least the justification for delay in starting construction was impliedly accepted. In case the time was not essence of contract.

13. I have taken maximum care not to express any view or record any finding in respect of the issues involved in the suit. The same is to be decided on its merits in accordance with the law and evidence on record and any observation in the judgment will not be read as to cause prejudice to either of the parties. The parties submitted that the case at the moment is pending in the Court of Mr. Muhammad Aslam Bhatti, Civil Judge, Lahore. He is directed to decide the suit expeditiously and in any case before 23‑12‑1990,, even if he has to conduct day to day proceedings.

14. The upshot of this discussion is that this petition is allowed with costs The result is that the allotment of the petitioner is held to be intact while allotment in name of respondent No.4, delivery of possession to it and agreement of sale in its favour are declared illegal and void and respondents Nos.1 to 3 a directed to deliver the possession of the plot to the petitioner within one week from this order. M.B.A./M‑2174/L Petition accepted