P L D 1995 Peshawar 22 (PLP)

Farukh Jawad Panni, Bar‑at‑Law for Petitioner. Sardar Aman Khan for Respondents Nos. 1 to

3. Kh. A. Rashid for Respondents Nos. 4 to

6. Date of hearing: 29th June, 1994. MIAN MUHAMMAD AJMAL, J.‑‑‑Petitioner herein, through this writ petition under Article 199 of the Islamic Republic of Pakistan, 1973, has sought declaration to the effect that cancellation of allotment of Plot No.87 Khairagali, Tehsil and District Abbottabad by the respondent No.l vide his order dated 2‑9‑1990, is without lawful authority, being violative of principle of natural justice and that the confirmation of the auction of the disputed plot in the name of respondents 2 to 6 was equally ab initio void, illegal and without jurisdiction..

2. The plot in question was originally purchased by M/s. Bismillah Khanum wife of Dr. Rafiq Ahmed and Rashida Beguai wife of Muhammad Abdul Majeed residents of P‑181/3/Ward No.6, Faisalabad in the year 1977, who sold/transferred it to the petitioner in 1985, whereafter a sale‑deed No.876/1 dated 25‑8‑1985 was executed between the petitioner and respondent No.l and all the dues were paid. It was provided in the said deed that the vendee shall within a period up to 31‑12‑1985 erect upon the plot and complete in a substantial and workmanlike manner, a building including an arcade above a height prescribed by the Trust according to the provisions of the sanctioned scheme failing which the land shall be liable to be resumed by the Trust and the amount paid as price forfeited to the Trust provided that before taking such action the vendee shall be given an opportunity of being heard and further that the Trust may allow extensions in the building time on payment of non utilization fee from time to time. The petitioner did not construct the building within the said period and was granted extension on payment of non‑utilization charges from time to time, the first of such extension was given vide Letter No.HT/IT/87/KG/2721/Estb. dated 7‑9‑1985. Thereafter, another extension was granted on 29‑11‑1986 for a period of two years on payment of non utilization charges of Rs.2,

090. Yet another extension was allowed vide Letter No.HT/IT/87‑KG‑308/Est. dated 4‑2‑1989 on payment of Rs.3,

728. Thereafter, the petitioner was informed vide Letter No.HT/IT/87‑KG‑1453 dated 2‑9‑1990 that as the petitioner failed to construct the building on the plot therefore under clause 1(b) of sale‑deed the sale is cancelled and the costs paid is forfeited, which order is impugned herein.

3. Learned counsel for the petitioner contended that the sale‑deed itself contained a provision that before taking any final action of cancellation of sale of the plot, the vendee would be given an opportunity of being heard. It was also provided in the same deed that further extension could be granted on payment of non‑utilization fee from time to time. The respondent No.l had been allowing extensions from time to time on payment of non‑utilization fee. Before taking any final action in the matter it was imperative upon respondent to have afforded an opportunity of hearing to the petitioner as provided in the deed itself, and its own non‑compliance amounts to gross violation of the principle of natural justice and the order passed in consequence thereto would be ab initio void. He further contended that the action taken by the respondent was‑grossly mala fide as before the passing of the impugned order and before the cancellation had taken place, respondent No.1 advertised the auction of the plot, which was held on 7‑9‑1990 and the plot was purchased by respondents Nos.2 and 3 who, thereafter applied to respondent No.l that they had purchased the plot for respondents 4 to 6, as such the same be transferred in their names. He submitted that the whole of the exercise on the part of respondent No.l was mala fide thus the impugned order and the subsequent actions taken are without lawful authority and are liable to be quashed.

4. Learned counsel for the respondents 4 to 6 on the other hand submitted that they are bona fide purchasers of the plot, who after the purchase had constructed a house over it and as such their rights cannot be disturbed even if any illegal or unlawful action has been taken by respondent No.l. He further submitted that the respondent No.l had been gracious to the petitioner to extend the period‑ for the construction of building but the petitioner failed to avail the extended opportunities, therefore, the petitioner cannot claim that she has been condemned unheard. Learned counsel for respondent No.l, however, conceded that before cancellation no notice was issued to the petitioner in view of the letters whereby extension was given and she was warned that if ‑she failed to construct the building within the extended period, her allotment shall be cancelled.

5. We have given due consideration to the submission of the learned counsel for the parties and with their assistance have gone through the record of the case. The relevant clause of the sale‑deed crucial for the determination of the case is reproduced hereunder: "(1)(b): . The intended vendee shall, at her own expenses, within a period up to 31‑12‑1985 erect upon and over the land and complete in a substantial and workmanlike manner, a building including an arcade above a height prescribed by the Trust according to the provisions of the sanctioned scheme and shall commence the erection of building within a period up to 31‑12‑1985, failing which the land shall be liable to be resumed by the Trust and the amount paid as price forfeited to the Trust; provided that before taking such action the intended vendee shall be given an opportunity of being heard; provided further that the Trust may allow extensions in the building time to the intended vendee on payment of non‑utilization fee to be fixed by the Trust from time to time." A bare reading of the above clause would show that the Trust could not pass any order cancelling the allotment and resuming the land unless the vendee had been given an opportunity of being heard. It is a well‑settled legal proposition that any order passed its violation of audi alteram partem (nobody is to be condemned unheard), would be a nullity. This maxim embodies well founded principle of law and even if it is not expressly provided in a statute or the rules, it has to be read into it so as to act fairly and justly with due regard to A the principle of natural justice. It has been conceded by the learned counsel for respondent No.l that prior to cancellation of sale no notice was issued to the petitioner, which is indicative of the fact that respondent passed the impugned order in utter disregard to the condition laid down in the deed of conveyance itself. Such order being grossly violative of the maxim `audi alteram partem' is void ab initio and all subsequent actions taken would also be void and without any legal basis. In case of Yousaf Ali v. Muhammad Aslam Zia reported in PLD 1958 SC 105, the august Supreme Court of Pakistan has held as under: "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 or such orders, together with the superstructure of rights and liabilities built upon them, must unless some statute or principle of law, recognising as legal the changed position of the parties, is in operation, fall to the ground, as such orders have as little legal foundation as the void order on which they are founded."

6. As far the contention of the learned counsel for respondent No.l that the letters whereby the extension in period of construction was allowed, contained warning that if the construction is not completed within the extended period, the plot shall stand cancelled/resumed with forfeiture of the money. This contention has no force. The extension of time used to be allowed on the payment of non‑utilization fee as per provision laid down in the clause of the a deed reproduced above, therefore, the allowance of extension in time for construction, the respondent has not been showing any extraordinary favour to the petitioner. The alleged warning in the letters appears to be a routine matter and it cannot be equated with the mandatory notice which had to be given as per clause of the deed before taking any final step.

7. The impugned order of cancellation dated 2‑9‑1990 is also liable to be I struck down on yet another ground. The respondent No.l vide its Letter No.HT/IT/403‑VIII 1355/Estb dated 18‑8‑1990 addressed to the Director of information N.‑W.F.P., Peshawar, sent `Auction Notice' for the sale of the plots including the plot in question. As per advertisements published in various papers on 23rd, 25th, 26th and 27th of August, 1990, the auction of the disputed plot was fired on 7‑9‑1990. This would show that before cancellation of plot had taken place, the respondent No.1 had made up its mind to violate the provision's of the deed by adopting a different recourse than required. This is settled law that an act required to be done in a particular manner, has to be done in that manner and not in any other manner. The very issuance of advertisement before passing the cancellation order speaks for itself to be mala fide and in bad faith. According to Supreme Court of India in Jai Chand Lal v. State of West Bengal (AIR 1967 SC 483), mala fide exercise of power would mean that the statutory power is exercised for purposes alien to those for which it is in law intended. In other words, the powers conferred by the Statute has been utilized for some indirect purpose not connected with the object of the statute or the mischief it seeks to remedy. As the flagrant defiance from the given covenant was made by the functionaries itself, therefore, the action taken' was not only clothed with mala fides but illegal without any lawful authority as well.

8. For the foregoing reasons this writ petition is accepted with costs, the impugned order and the subsequent actions taken by respondent No .l are declared to be void ab initio, mala fide and without lawful authority. AA.1647/P Petition accepted.