' SABIHUDDIN AHMED, J.--The petitioner joined the Pakistan Military Accounts Services in 1951 as Assistant Controller of Military Accounts, and held various positions relating to military accounts until 1972. However, he was confirmed in 1972 and thereafter posted to hold different assignments under Federal Government till his retirement from service in 1987. The petitioner applied for membership of the then Pakistan Defence Officers Cooperative Housing Society Limited (hereinafter mentioned as the Society') in 1971 on the basis of being civilian officer paid from the Defence Services Estimates in terms of Bye-Laws No.7(i) of the Bye-Laws of the Society. Apparently such membership was granted and he was allotted a residential plot measuring about 1000 square yards in Phase-V. A lease was also executed in his favour on 10-7-1976.
2. In 1980 the respondent 'Authority' was constituted under President's Order No.7 of 1980 which took over the assets, liabilities and functions of the Society. The petitioner was thereafter also allotted a commercial plot measuring 100 square yard in Khiyaban-e-Shaheen, Phase-VIII, through ballot. He was required to pay certain amounts by way of advance development charges and upon such charges having been paid, an allotment order dated 19-2-1982 was issued.
3. However, it is contended that though the entire payment was made by the petitioner in respect of the commercial plot, physical possession was yet to be given, despite of efforts on his part to obtain the same, till a letter dated 12-2-1999 from the respondent was received stating that the allotment of commercial plot had been made to him in contravention of the Bye-Laws of the authority as he was not eligible to become a member of the authority under its Bye-Laws as being not paid from the Defence Estimates. Accordingly he was required to show cause why the allotment made to him should not be cancelled under Article 17 of the President's Order No.7 of 1980. The petitioner submitted a reply which was not accepted and by a letter dated 4-1-2000 the allotment of commercial plot in his favour was cancelled. This letter has been called in question through this petition and by a subsequent letter of 9-2-2000 an amount of Rs.18,670 paid by him was also said to be returned by cheque. According to the petitioner he did not encashed the cheque and sent it back to the respondent.
4. It has been argued on behalf of the petitioner that the petitioner was qualified to be a member of the Society under Clause 7(i) of the Bye-Laws as a person being paid from the Defence Estimates.
Secondly, it was urged that a plot having been duly allotted and payments having been received, the respondent had lost locus poenitentiae to cancel the allotment.
5. On the other hand Mr. Nazar Hussain Dhoon, learned counsel for the respondent, contended the contention that the petitioner was being paid from the Defence Estimates on the date of allotment and, therefore, he could not qualify for membership of the Society on such date, therefore, the allotment in his favour was invalid and could always be cancelled. He further argued that the petitioner could at best be treated as a civilian officer under Ministry of Defence and in any event since he was not serving any military accounts and paid from the Defence Estimates on the date of allotment of the commercial plot, he could not be allotted a plot.
6. Since it required to be clarify whether the petitioner is an officer of the Pakistan Ministry of Accounts Services was being paid from the Defence Services Estimates or otherwise, adequate material had not been placed before us by either of the parties to determine the same, we issued notice to the learned Deputy Attorney General (DAG) for his assistance.
7. Mr. Nadeem Azhar Siddiqui, learned DAG has appeared today and placed before us his letter addressed to the Military Accountant General Rawalpindi and the reply received from his office, though the factual information relating to the petitioner has not been furnished, it is made clear in both the letters dated 31-10-2003 and 10-11-2003 that, military accounts department is paid from the defence budget/estimates since the inception - of Pakistan.
8. Before discussing the rival contentions it may be appropriate to reproduce Bye-Law No.7 of the erstwhile:-- ' Bye-Law No.7.
' The membership of the Society will be confined to the following:---
(i) Officers of Pakistan Armed Forces and Civilian Officers paid from the Defence Services Estimates.
(ii) Officers of the Armed Forces who have been released either in Pakistan or pre-partitioned India and who have subsequently acquired Pakistan nationality.
(iii) Certain Officers working in the Ministry of Defence/Military Finance, at the discretion of the Managing Committee. This does not include organizations working under Ministry of Defence, e.g. P.I.A., Shipyard etc. (iv)
(v)
9. The above position could not be seriously challenged by the respondent and it is acknowledged that a civilian officer performing services in connection with the military accounts is paid from the Defence Estimates. Nevertheless, Mr. Dhoon, argued that on the date of the allotment of the commercial plot the petitioner was serving as Director Finance PIDC and could not be stated to be paid from the Defence Estimates. Indeed, this fact is not disputed. However, learned counsel was requested to show whether the Bye-Laws required that a person should be actually serving in the armed forces or paid out of the Military Estimates at the time of allotment in terms of Bye-Laws 7(i).
Mr. Dhoon, while contesting that retired or released officers of the armed forces could always be allotted plots the same condition did not apply to the civilian. We are afraid that we find no basis for drawing the aforesaid distinction because Bye-Laws 7(i) deals both with the officers of the armed forces as well as civilian officers paid from the Defenc Estimates. Mr. Dhoon, attempted to argue that Bye-Laws 7(iii) was applicable to civilians but we are afraid that this contention cannot succeed either, obviously when a category/particular type is entitled to membership/allotment under Bye-Laws 7(i) the proviso (iii) would not apply to them. Allotment in the discretion of the managing committee under Bye-Laws 7(iii) could only be made to persons who were not otherwise entitled to allotment as a right.
10. Even otherwise we find that cancellation of allotment of commercial plot which was made by the respondent and not its predecessor Society is also invalid for another reason. Proviso (i) of Article 17(h) enable the respondent to cancel allotments made in violation of the Bye-Laws of the Society or the resolution of the Managing Committee. In case the petitioner was not entitled to membership, perhaps a residential plot allotted by the Society could be cancelled under the above provision. Nevertheless, there appears to be no provision enabling the respondent to cancel the allotments made by its own Executive Board. Learned counsel, indeed, relied upon section 21 of the General Clauses Act but it is well settled that when vested A rights have matured pursuant to an order passed by an authority, the authority losses locus poenitentiae to recall the same. Even in case the petitioner was found to be entitled only under Bye-Laws 7(iii) the fact remained that once the discretion has been exercised which has resulted in creating rights it cannot be recalled and nothing perverse in the exercise has been shown.
11. For the foregoing reasons we would allow this .Petition and declare the impugned letter of 4-1- 2000 to be of without lawful authority and of no legal effect.
12. We are grateful to the learned counsel and in particular to learned D.A.G for their valuable assistance.