2003 PLP 156 (CLC)

The petitioner challenged the vires of notice issued by the respondents to the petitioner on 15‑6‑2000 under section 5(1) of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965. Learned counsel of the petitioner submits that initially the bungalow in question was allotted to Shafi Muhammad Shah who had constructed the building over the plot after securing sanction from the respondents on 2‑10‑1960. The original owner had expired and the property in question had devolved upon his legal heir Syed Adnan Shafi who sold the property in question to the petitioner and the petitioner is in possession of the same as owner. The petitioner had rebuilt the old building by expending huge expenses from her own pocket and the respondents did not raise any objection qua the repair of the property in question by the petitioner. The respondents issued a notice to the petitioner's husband on 28‑11‑1995 to demolish the so‑called unauthorized construction raised by the petitioner over the plot in question. The husband of the petitioner being aggrieved filed a civil suit against the respondents. Subsequently the matter was patched up between the husband of the petitioner and respondents. The husband of the petitioner had withdrawn the suit on the understanding by the then Station Commander that the matter would be settled by mutual negotiations. The petitioner submitted certain proposals to the respondents. The Station Commander forwarded the recommendations to Headquarters 30 Corps which were approved by the Headquarters .as is evident from Annexure "C" attached with the writ petition. Therefore, impugned notice issued by the respondents is without lawful authority. He further submits that respondents initially issued a notice to the petitioner's husband on 28‑11‑1995 under the provisions of Cantonments Act; 1924. Therefore,' respondents have no lawful authority to issue notice to the petitioner under section 5(2) of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 on the well‑known principle of estoppel and waiver. He further submits that as the recommendations submitted by the Station Commander to the Headquarters were approved by the Headquarters, therefore, the respondents have no lawful authority to approbate and reprobate. In support of his contention he relied upon Muhammad Sharif v. Chief Administrator Auqaf 1975 SCMR

104. He further urged that respondents have no lawful authority to wriggle out from their admission in view of Article 113 of Qanun‑e- Shahadat Order, 1984. He further urges that respondents have no lawful authority to take away the right of path of the petitioner. Therefore, the impugned notice is not sustainable in the eyes of law and is a result of mala fide. In support of his contention he relied upon the following judgments:‑‑ (1) M.C. Leiah v. Sheikh Zafar Iqbal NLR 1986 CLC 2306. (2) Asiatic Chemical Industries v. Punjab Agriculture Research 1997 CLC 1606. He further submits that authorities under Cantonments Act have only power to impose fine and have no authority whatsoever to demolish the premises of the petitioner in view of section 185 of the Cantonments Act, 1924. He further urges that impugned notice has been issued by the respondents without any inquiry. Therefore, condition precedent prescribed under section 5 of the Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 has not been complied with. Therefore, the impugned notice is not sustainable in the eyes of law. He further submits that the petitioner did not encroach upon any land of the respondents as is evident from Annexure "9" attached by the respondents alongwith report and parawise comments.

2. Learned counsel of respondents Nos.2 and 3 submits that petitioner's husband has given undertaking before Station Commander to allow time to the petitioner to retain the land in question till 30‑9‑2000 as is evident from Annexure " 11 " attached with the report and parawise comments. Therefore, the petitioner has not approached this Court with clean hands. The petitioner secured time and thereafter filed this writ petition mala fidely with unclean hands. He further submits that writ petition against show‑cause notice is not maintainable. He further urges that disputed questions of fact cannot be decided in Constitutional jurisdiction. Mr. Muhammad Nawaz Bhatti, learned Deputy Attorney‑General submits that petitioner has challenged the vires of show‑cause notice through this writ petition and the writ petition against show‑cause notice is not maintainable as per principle laid down by the Honourable Supreme Court in Shagufta Begum's case PLD 1989 SC 360.

3. Learned counsel of the petitioner in rebuttal submits that impugned notice is issued by the respondents malafidely, therefore, the writ petition is maintainable. In support of his contention he relied upon Messrs Central Insurance Co. v. C.B.R. 1993 SCMR 1232.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is settled proposition of law that writ petition is not maintainable qua the show- cause notice. In arriving to this conclusion I am fortified by the following judgments:‑‑ (1) Messrs Pakistan Tobacco Co. Ltd. v. Government of Pakistan 1993 SCMR 493. (2) Al‑Ahram Builders v. Income‑tax Appellate Tribunal 1993 SCMR 29, (3) Commissioner of income‑tax v. Jennings Private School 1993 SCMR 96, (4) Income‑tax Officer v. Messrs Ghappal Builders 1993 SCMR 1108, (5) Shagufta Begum's case PLD 1989 SC

360. The Honourable Supreme Court has laid down the aforesaid principle that writ petition is not maintainable against the show‑cause notice. Following the rule laid down in the aforesaid judgments of Honourable Supreme Court and also keeping in view the facts that controversial issues regarding factual inquiry are involved I am of the view that the petitioner, if so advised, in the first instance may raise all the objections to the jurisdiction of the respondent and also against the maintainability' of the proceedings or issuance of notice under section 5(2) of Central Government Lands and Buildings (Recovery of Possession) Ordinance, 1965 before the respondent, who will decide the same as primary step after giving opportunity of hearing to the petitioner in accordance with law on its merits and keeping in view the observations mentioned in the aforesaid judgments of the Honourable Supreme Court. Even otherwise, writ petition is not maintainable in view of the law laid down by the. Honourable Supreme Court in Messrs Bashir & Company's case 1968 SCMR 997 iii which it was held that a party cannot be allowed to bypass jurisdiction vested by the law in Special Tribunal and writ jurisdiction cannot be invoked when special remedy is available under the provisions of aforesaid Ordinance. In arriving to this conclusion I am fortified by the judgment of Abdul Rehman's case 1988 SCMR 1711. I have taken the aforesaid view after considering all the case‑law on the subject in Messrs Pak Arab Fertilizer v. D.C. Income‑tax 2000 PTD

263. I am not in a position to deviate from my own view on the well‑known principle of consistency as per principle laid down by the Honourable Supreme Court in Muhammad Muzaffar Khan's case PLD 1959 SC

9. The petitioner is well within his right to raise all legal ant factual pleas before the respondents by filing a reply who is duty bound to consider the case and pass a speaking order including assuming jurisdiction. The petitioner is directed to appear before the respondent on 27‑6‑2002 alongwith reply. The respondents are restrained to take any action against the petitioner till the aforesaid date. With these observations the writ petition is disposed of. Q.M.H./M.A.K./K‑155/L Order accordingly.