2012 PLP 466 (YLR)

SHAHID ANWAR BAJWA, J.

For reasons to be recorded later, this petition was dismissed, vide order announced in open Court on 21-9-2011. Following are our reasons for the short order. It is stated in the petition that the petitioner is a registered partnership firm and is engaged in the business of Cotton Ginning. Plot No. 26-B, Sindh Industrial Trading Estate, Sukkur was leased to the petitioner by SITE, Sukkur vide a registered sale-deed. In the sale agreement, it was provided that it was being leased for erection of a building of a factory for the purpose of setting up a beverages plant, according to such specifications, as may be sanctioned by respondent No.

1. In Para 19 of the lease deed, it is stated as under:-- "In the event of the applicant committing any breach of this agreement, it shall be lawful for the owner, by notice in writing, to terminate this agreement immediately or at the expiration of such period as the owner may specify, and upon the termination of this agreement, the owner may enter into and upon and put in possession of all the buildings and constructions and all the materials and things upon the said plot of land for the absolute use and benefit of the owner, but in such an event, the owner may, if it thinks fit, on affecting a sale thereof, pay to the applicant the net sale proceeds after deducting all expenses of the incidental to the sale and such sum of money by way of liquidated damages as the owner may reasonably estimate." On 5-4-2005, a letter was written to the petitioner on the letter pad of respondent No. 1 under the signature of its Secretary and the petitioner was informed as under:-- "An allotment was restored on 22-5-1999, of the following terms conditions:-- (1) That you pay us SITE dues amounting to Rs.156,52. (2) That you should get your plans approved within a month. (3) That you should start construction of factory buildings, on the plot within 2 months. (4) That you submitted an undertaking on stamp paper of Rs.50 stating therein that in case of default plot should be cancelled without any obligation. (5) Please note down that this is final chance from SITE Ltd., for utilizing the plot for industrial purpose. If you failed to complete the construction of factory unit within a six months the provisional restoration allowed to you by this order will revert back automatically no further appeal would be allowed and plot would stand cancelled without any obligation or further notice. Since you have failed to pay our dues of Rs.47,250 towards non-utilization fee and you have not constructed any structure of the factory building on the above plot as yet in spite of repeated notices. Managing Director has been pleased to withdraw our provisional allotment in respect of the above plot with immediate effect, the Estate Engineer, Sukkur is directed to resume the possession of the vacant plot immediately and sent report". This letter was replied by the petitioner vide letter dated 6-4-2005. Petitioner also submitted two bank drafts totalling for an amount of Rs.3,078 and such drafts were returned by respondent No.1, vide letter dated 7-4-2005. After service of legal notice, this petition was filed and the following prayers were made:- "It is, therefore, most respectfully prayed that the withdrawal/ cancellation of the plot in question and the impugned letters dated 5-4-2005 and 7-4-2005 may graciously be declared to have been effected/issued without lawful authority and of no legal effect upon the rights of the petitioner. Respondent No. 3 be also graciously directed to receive the dues with respect to rent, fees and development charges etc. and such other charges as may be found due from the petitioner. The alleged non-utilization charges be also ordered to be refunded or adjusted towards other dues, if any. Any other relief found available and equitable by this honourable Court may also be granted to the petitioner". Learned counsel for the petitioner submitted that letter dated 5-4-2005 is corum non judice because it has been issued by the Secretary, who had no power to issue the same and it could only be issued with the approval of the Board of Directors. Learned counsel next submitted that order dated 5-4-2005 is a mala fide order and it was ante dated to 5-4-2005 because there is a stamp of 6-4-2011 also on that letter and consequently, on 6-4-2005, the same plot was leased by respondent No. 1 to respondent No.

5. Learned counsel referred to para 19 (quoted above) and submitted that since lease was under the signatures of Managing Director, it could only be cancelled by the Managing Director and not by the Secretary. Learned counsel relied upon Karachi Development Authority through its Chairman and another v. Mrs. Shaheen Farooq and another 2007 SCMR 1328, Brigadier (R) Rashid Ahmad v. Dafedar Rashid Ahmad and others 2008 SCMR 362 and Brig. Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 and also referred to order dated 15-4-2010 in this Petition. Mr. Amir Mehmood Shaikh, learned counsel for respondent No.1, vehemently opposed the Petition. He placed on record extract of minutes of meeting of the Board of Directors of Sindh Industrial Trading Estates, Ltd. Karachi held on 12-5-1975 as also a copy of the order passed by the Managing Director. We have considered the submissions made by the learned counsel and have also gone through the record. Learned counsel for the petitioner referred to order dated 15-4-2010 passed in this petition. The order is to the following effect:-- "We have heard Mr. Sajid Mehmood Shaikh, learned counsel for the petitioner whose main contention is that the only condition which he was required to follow was given in clause 19 of agreement dated 15-7-1984 wherein he was required to pay the taxes and non-utilization fee but impugned letter dated 5-4-2005 was issued by the Secretary without the apparent sanction of the SITE Limited which is the owner of the plot and under clause 20 of the above agreement only the owners had the powers to cancel the allotment. The learned counsel also argued that the impugned order has been issued on the basis of mala fide inasmuch as the plot was cancelled later and was allotted to respondent No.5 earlier. While reviewing the arguments of the learned counsel for the petitioner we have examined the records of the case and we find that in the petition all the material facts were not mentioned as a very important material fact was that initially somewhere in 1990s the plot was cancelled and was restored on 22-5-1999 subject to the following further terms and conditions: (1) That you pay us SITE dues amounting to Rs.156,52. (2) That you should get your plans approved within a month. (3) That you should start construction of factory buildings, on the plot within 2 months. (4) That you submitted an undertaking on stamp paper of Rs.50 stating therein that in case of default plot should be cancelled without any obligation. (5) Please note down that this is final chance from SITE Limited, for utilizing the plot for industrial purpose. If you failed to complete the construction of factory unit within a six month the provisional restoration allowed to you by this order will revert back automatically no further appeal would be allowed and plot would stand cancelled without any obligation or further notice. And at the time of such restoration the petitioner had submitted an undertaking stating therein that in case of default of any of these conditions, the plot may be cancelled without any obligation. The learned Assistant Advocate-General who has been representing respondent No.1 in absence of Mr.Mehboob Malik who is seriously ill, has submitted that as many as 17 notices were given to the petitioner before the impugned letter of cancellation was issued as those notices had remained un-responded. He further submitted that the plot was cancelled first and then the allotment order was simultaneously issued in the name of respondent No.5 as the plot was cancelled on 5-4-2005 and the allot-ment order in the name of respon-dent No.5 was issued after cancel-lation of the plot on the same date. The only contention of the learned counsel for the petitioner which now remains to be examined is whether the Secretary of SITE issuing the letter of cancellation on behalf of the Managing Director had the power and authority either on the basis of any sanction of the Board of Directors or on the basis of such powers being granted to him in the Memorandum and Article of Association of SITE Limited to cancel the plot. Whereas the learned Assistant Advocate General undertakes to seek this information from SITE. We will also direct that since the SITE was being represented by a private counsel Mr.Mehboob Malik; therefore, notice may be directly issued to SITE to be present on the next date of hearing and clarify as to under what authority this letter of cancellation has been issued by the Secretary SITE". The key argument by learned counsel for the petitioner was that order dated 5-4-2005 is coram non judice because it has been passed by the Secretary and it could only have been so passed without a resolution by the Board of Directors. Subsidiary to this question, argument of the learned counsel was that since agreement of sale was signed by Managing Director, cancellation order could only be issued by the Managing Director. In response, learned counsel for respondent No.1 referred to minutes of a meeting of the Board of Directors held on 12-5-1975 where at item No. 15, it was decided by the Board as under:-- "

15. Considered the M.d's note restoration of allotment of Plot No F/96, SITE, Karachi to Messrs American Tyre Retreading Company. Approved the restoration of allotment of Plot No.F/96, SITE, and Karachi to Messrs American Tyre Retreading Company In addition it was decided that cases of restoration of plots an cancellation should be decided by the Managing Director according to SITE policy and the Board of Directors informed of the decision". Therefore, as far as contention of the learned counsel that there should have been a resolution by the Board of Directors is concerned, minutes of meeting dated 12-5-1975 clearly indicate that the Board delegated the authority for restoration and cancellation of plots to the Managing Director. Learned counsel for respondent No.1 submitted that Managing Director on 5-4-2005 approved cancellation. Therefore, on both these counts, contention of the learned counsel is repelled. Learned counsel also argued that the cancellation letter should have been signed by the Managing Director himself. We are unable to see any force in this contention because it is well-settled law now that if a functionary, who is conferred with the power to approve any act approves it, then any subordinate may communicate the order in terms of the approval. In the letter dated 5-4-2005, it is specifically stated that it is Managing Director, who had approved it and document has been shown that the Managing Director in fact approved it. Learned counsel for the petitioner relied upon Karachi Development Authority's case (supra): In that case, it was stated that action was taken for cancellation of plot on verbal orders of Chairman of the Authority and the Supreme Court held that all order should be in writing. The case is clearly distinguishable because in the present case, there is a written order by the Managing Director as well as a resolution by the Board of Directors. Learned counsel next relied upon Brig. (R) Rashid Ahmed's case (supra). It was held in that case that unless previous allotment was cancelled, second allotment could not be made. Again the case is clearly distinguishable. In the present case, allotment of petitioner was cancelled on 5-4-2005 and allotment to respondent No.5 was made on 7-4-2005. Third case relied upon by the learned counsel was Brig. Muhammad Bashir's case (supra). The matter pertained to Colonization of Government Lands (Punjab) Act, 1912 and it was observed that even if the allotment was cancelled, unless the land was resumed, it could not have been further allotted. The case again does not have any relevance to the questions in issue in the present petition. Learned counsel for the petitioner made a lot of emphasis on a stamp appearing at the bottom of letter dated 5-4-2005. In the stamp, date of 6-4-2005 and learned counsel's contention was that this letter was issued on 6-4-2005 and has been ante dated with mala fide intention. We are unable to subscribe to the contention of the learned counsel. The letter itself states that it was issued on 5-4-2005 and even that date is written by the Secretary under his signature. Even the approval granted by Chief Executive is dated 4-5-2005. Stamp appears to have been put by subordinate to which copy was sent and he received the same. Therefore, contention of learned counsel that it was ante dated does not appear to be correct. We have already quoted the order dated 15-4-2010 and this Bench clearly noted that earlier an allotment of petitioner was cancelled because the petitioner had not utilized the plot for the purpose for which he had got it leased. However, allotment was restored on 22-5-1999 subject to the conditions specified therein and one of the conditions was that he would start construction within four months. No such construction has been started in spite of lapse of 12 years and indeed learned counsel was unable to demonstrate that any step, concrete or otherwise, was taken by the petitioner towards that end. Above are our reasons for a short, dictated in open Court. While parting with his arguments, learned counsel submitted that there are many other allottees, who have been allotted plots for a number of years and who have similarly not taken any step to set up any industrial units and no action whatsoever has been taken against them. If it is so, respondent No. 1 is directed to take steps to ensure that within a reasonable periods preferably within three months, all the allottees take concrete steps and initiate process for establishment of the industrial units for which the plot was allotted to them and any allottee, who is in violation of the terms of the deed, is dealt with in accordance with the law. H.B.T./M-137/K Petition dismissed.