2019 PLP 28 (CLCN)

SYED MUHAMMAD ATTIQUE SHAH, J.

The petitioner through instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has approached this Court with the following prayer:- "It is therefore most respectfully submitted that on acceptance of this Writ Petition: a. The cancellation/retrieval order dated 23.08.2011 and letter dated 21.02.2012 issued by the Respondent No.2 may graciously be declared illegal, mala fide, void ab initio and of no legal effect AND b. The respondents be directed to withdraw the cancellation order dated 23.08.2011 with immediate effect AND c. The respondents may kindly be directed not to interfere in the possession of the petitioner or his normal industrial activities in any manner, whatsoever AND d. The subsequent Lease Deed No.1557 dated 15,11.2011 may also be declared illegal, mala fide, collusive, void ab initio and have no bearing effects on the rights of the petitioner. e. Any other relief which this August Court deems proper may also be given in the circumstances of the case."

2. Brief facts, as averred by the petitioner, in the instant writ petition are, that the petitioner was leased out Plot No.43 measuring 4 Acres, in Phases I and II, Industrial Estate, Hattar, District Haripur for establishing a 'Mining Industry' vide registered lease deed No.242/1 dated 27.01.1991 along with agreement; that the petitioner has paid the full lease amount of Rs.1,400,000/- and has also been paying different dues and taxes in time and nothing was outstanding against him; that the petitioner has established Mining Industry and for the said purpose building i.e. offices, shed, residential accommodations etc was constructed and requisite machinery was installed and electricity, gas and water connections were obtained, skilled and unskilled labour were also employed and the industry became functional since 1991-1992; that respondent No.2 through his letter dated 30.06.2011 informed the petitioner that 2 Acres of the leased plot is lying vacant and as per building by-laws of the Estate, the covered area shall not be less than 55% and not more than 60% of the total area of allotted plot; that the petitioner submitted his detailed reply to respondent No.1 and entire position on the spot was explained to him but no response has been received so far; that in the meantime Respondent No.2 unlawfully cancelled/retrieved lease of 2 Acres and directed him to surrender the possession of the said area; that the petitioner preferred an appeal to respondent No.1 on 20.09.2011, however, no decision has been made thereon by him; that the petitioner, all of a sudden, received another letter dated 21.02.2012 from respondent No.2, whereby lease money of retrieved land of 2 Acres was refunded through a cross cheque dated 09.02.2012 but the cheque in question was not enclosed with the said letter, which refund of lease money amounts to rejection of appeal of the petitioner; that after cancellation of the petitioner's lease, the area of 2 Acres has been allotted to Respondent No. 4 vide Lease Deed No.1557 dated 15.11.2011. Hence, this amended writ petition.

3. Learned counsel for the petitioner vehemently argued that the impugned orders are illegal, arbitrary, perverse and based on malice and mala fide; he further argued that neither opportunity of hearing was provided to the petitioner before passing of the impugned order of retrieval by the respondents; nor any prior opportunity was afforded to him at the time of cancellation of the lease to the extent of 2 Acres, he prayed for acceptance of the writ petition by setting aside the impugned orders and subsequent allotment in favour of respondent No.4.

4. Conversely, learned counsel appearing on behalf of the respondents defended the impugned orders while arguing that in view of clause 16 of the Registered Lease Deed dated 28.01.1991 there was no need for issuing prior notice to the petitioner or providing him any opportunity of hearing before passing of retrieval order as well as order for cancellation of lease, and prayed for dismissal of present writ petition.

5. Arguments of the learned counsel for the parties heard and record perused with their valuable assistance.

6. Admittedly, Plot No.43 Industrial Estate Hattar, District Haripur, measuring 4 Acres was allotted to the petitioner by the respondents vide Allotment Letter No.PH/1263/435 dated 17.01.1991 and the said allotment was subsequently converted into lease agreement vide registered Deed No.242/1 dated 28.01.1991. The petitioner has established its industry with the name of Messrs Resource Mining Industrial Corporation (Pvt.) Ltd. since 1991-1992. The respondent No.2, after more than twenty years of the allotment and Lease Deed, issued a letter bearing No.SDA/PM/HE/959-63 dated 30.06.2011, wherein, they retrieved land measuring 2 Acres from the petitioner on the ground that uncovered area of plot found in excess of 45% shall be liable to cancellation. The petitioner, however, submitted clarification regarding uncovered area in his letter dated 5.07.2011. The respondents in response to clarification sought by the petitioner were required to have properly addressed the matter but they instead issued cancellation order vide letter No.SDA/PM/HIE/1348-51 dated 23.08.2011, wherein, they mentioned that the justification furnished by the petitioner for holding 2 Acres land, being unjustified was not entertained and has accordingly been disposed off vide letter No.SDA/PM/HIE/1208 dated 03.08.2011. The petitioner also filed appeal against the order dated 23.08.2011 but no decision whatsoever has so far been passed by the respondents thereupon. Moreover, the said retrieved land was subsequently allotted to respondent No.4 vide lease deed dated 15.11.2011.

7. In view of the peculiar facts and circumstances of the case in hand, this Court would not discuss in deep the merits of the case, lest it may prejudice the case of any of the parties. However, on cursory perusal of the record reveals that the respondents without giving any notice to the petitioner and providing him opportunity of hearing passed order of retrieval regarding 2 Acres Land in his possession, which is against the principle of natural justice. The petitioner also sought clarification from the respondents vide letter dated 05.07.2011 after the said retrieval order, however, the respondents instead of furnishing clarification to him, disposed of the said clarification letter by terming it unjustified, and issued cancellation letter dated 23.08.2011 unilaterally without affording any opportunity of hearing. The act of the respondents has certainly prejudiced the cause of petitioner, as he remained condemned unheard. Be that as it may by now it is an established principle of law that nobody can be condemned unheard and no act or action which is detrimental against the right and interest of a person/persons can be passed without giving him prior notice and opportunity of hearing. The record of the case further transpires that the respondents have not treated the petitioner fairly and justly. Moreover, the argument of learned counsel for the respondents does not hold ground that no prior notice is required for retrieval of property or cancellation of lease in terms of clause 16 of the Lease Deed dated 27.01.1991, because principle of Natural Justice is the hall mark of true dispensation of justice, therefore, the respondents cannot take refuge under the clause ibid. As by now it is well settled that even if statutory law or rule does not provide a right and opportunity of hearing before taking any action or passing any order detrimental to the rights of a person(s) still it would be deemed that such right is available to the person/persons aggrieved, which cannot be taken away from him/them on the ground that the authority under the law is not obliged to give him/them prior notice. Even the principle of natural justice "audi alteram partem" is to be read into every statute regardless of that whether or not the same is contemplated in a statue/instrument governing proceedings and rights of the parties in this respect. Wisdom is derived from the judgment of apex Court reported in 2002 SCMR 1034, wherein it is held that: "We have considered the arguments so advanced by both the sides in this behalf it may be noted that in the judicial history of our country as well as in those countries where identical/ corresponding system of administration of justice is in vogue the principle enshrined in the maxim audi alteram partem has been made applicable expressly or impliedly in every instrument governing the proceedings which may be statutory or otherwise and if its absence is conspicuous by not making it a part of the instrument governing the proceedings. Though the principle of audi alteram partem is not universally accepted principle but emphasis on its application has always been made on those proceedings where adverse action is being contemplated to be taken against the person/persons who have at least a right to defend such action or during course of time they have acquired a right to negate allegations on basis of which an action adversely affecting their interest is being taken." In this regard, reference may be made to PLD 2011 SC 671 and 2018 MLD 1425. In the light of the above discussion, this Court reached at the conclusion that the retrieval order dated 30.06.2011 and cancellation order dated 23.08.2011 are illegal, unlawful, perverse and arbitrary, therefore, the same are set aside. The subsequent allotment of 2 Acres land out of Plot No.43 vide registered lease deed dated 15.11.2011 in favour of respondent No.4 is also declared illegal and the same is also revoked being based on an illegal and void orders. However, respondents are at liberty to proceed against the petitioner if they wish so, in case the petitioner has committed any illegality or violated the provisions of Bye-laws, but strictly in accordance with law, while providing him full opportunity of hearing in accordance with the principle of natural justice. ZC/15/P Petition allowed.