IFTIKHAR MUHAMMAD CHAURHY, J.--- Listed appeals are by the leave of the Court against the judgment, dated 14th September, 1994 passed by the Peshawar High Court, Abbottabad Bench.
2. In these cases dispute relates to Plot No,87 situated in Khaira Gali Tehsil Abbottabad. Initially the plot was purchased by Bismillah Khanam wife of. Dr. Rafiq Ahmed and Rashida Begum Wife of Muhammad Abdul Majeed from Hazara (Hill Tract) Improvement Trust (hereinafter referred as `TIFITI Trust') who sold it to Mst. Qaisra Elahi (respondent No,1) in whose favor Sale-deed No,876-I, dated 25th August, 1985 was executed by HHTI Trust. As per one of the following conditions of the sale-deed vendee had to complete the construction of building up to 31st December, 1985:-- "1(b) The intended vendee shall, at her own expenses, within a period upto 31-12-1985 erect upon and over the land and complete in a substantial and workman like manner a building including an arcade above a height prescribed by the Trust according the provisions of the sanctioned scheme and shall commence the erection of building within a period upto 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."
3. Admittedly vendee could not raise construction of building upto 31st December, 1985, as stipulated hereinabove, and she obtained extensions in time subject to payment of non-utilization fee. Subsequently, respondent No,1 through letter No,HT/IT/87/KG/1453 dated 2nd September, 1990 was informed that her plot had been cancelled for non-construction of the building.
4. It is important to note that before issuance of order of cancellation of plot, the HHTI Trust, vide letter No,HT/IT/403/VIII/ 1355/Est. Dated 18th August, 1990 got published auction notices in various newspapers for auction of the plots including the one owned by respondent No,l. For convenience extract of the letter is reproduced hereinbelow:-- "Please advertise the attached Auction Notice in the following newspapers on the date mentioned against each:-
(1) Daily Mashriq Peshawar . 26-8-1990
(2) Daily Jang Rawalpindi and Karachi/Lahore. 27-8-1990
(3) Daily Nawa-i-W aqt Rawalpindi. 26-8-1990
(4) Daily Dawn, Karachi. 27-8-1990
(5) Daily Nawa-i-W aqt, Lahore. 26-8-1990 Funds are available to meet the advertisement charges. Bills for the above may please be sent to this office for payment. Please ensure that it is not advertised in the newspaper other than mentioned above."
5. It may be pertinent to note that the plot in dispute was earmarked for auction before cancelling it from the name of respondent No,
1. Surprisingly in the auction notices published in Newspapers no numbers of the plots being put to auction including the disputed one were disclosed for the reasons known to authorities.
6. Thus, auction was conducted in a clandestine manner and disputed plot was sold to Messrs Abdul Latif Abbasi and Dilawar Khan being highest bidders and sale was confirmed in their favor on 23rd September, 1990.
7. The respondent No,1 took exception to the auction of her plot through legal notice with a request to restore it in her name but all in vain. As such feeling dissatisfied from the order of cancellation of plot, she preferred writ petition before the Peshawar High Court against the appellant HHTI. Trust impleading Messrs Abdul Latif Abbasi and Dilawar Khan as co-respondents.
' Perusal of record reveals that one of the auction purchasers i,e, Abdul Latif Abbasi, handed over the plot to appellants Raja Bilal Zafar, Raja Haseeb Zafar and Raja Manan Zafar as according to him he was their representative. Therefore, they were also impleaded as respondents in the writ petition.
8. A learned Division Bench of the High Court vide impugned judgment allowed the petition.
Relevant para. Therefrom reads as under:-- "The impugned order of cancellation dated 2-9-1990 is also liable to lie struck down on yet another ground. The respondent No,1, 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 advertisement published in various papers on 23rd, 25th, 26th and 27th of. August, 1990, the auction of the disputed plot was fixed 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 provisions 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 power 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 were not only clothed with mala fides but illegal and without any lawful authority as well."
9. Learned counsel appearing in Civil Appeal No,742 of 1998 contended:--
(a) That conclusion drawn by learned High Court that cancellation order of the plot of respondent No,1 vide letter dated 2nd September, 1990 is contrary to the principles of audi alteram partem is not correct because respondent No,1 had knowledge that due to non-construction of building by her within the period stipulated in the sale-deed i,e, 31st December, 1985, allotment of the plot was liable to be cancelled from her name. Therefore, she was not entitled to further opportunity of being heard before passing the order of cancellation of the plot.
10. Learned counsel who appeared in Civil Appeal No,743 of 1998 subscribed to above view point of learned counsel and further argued:--
(a) That the appellants are bona fide purchasers and they had raised construction of building on the plot by making huge investment, thus, a right had accrued to them, therefore, the High Court should not have exercised discretionary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in favor of respondent No: 1.
(b) That violation of the contractual obligations by either of the parties is not amenable to the Constitutional jurisdiction of the High Court, therefore, writ petition filed by respondent No,1 was not competent and learned High Court ought to have dismissed it on this score alone.
(c) That mala fides against HHTI Trust in cancelling the plot of respondent No,1 was not pleaded in writ petition, therefore, learned High Court should not have entered into this controversy as it relates to disputed facts which are to be proved accordingly.
11. Learned counsel for respondent No,1 stressed:--
(i) That order dated 2nd September, 1990 was passed contrary to principles of natural justice which is an inalienable right of a person against whom adverse order is passed, therefore, learned High Court in exercise of its powers under Article 199 of the Constitution of Islamic Republic of Pakistan had rightly set aside the said order.
(ii) That the time for construction of building was extended from time to time for the reasons mentioned in the applications moved for such purpose subject to payment of non-utilization fee, therefore, respondent No,1 was entitled to an opportunity of hearing in terms of clause I(b) of the sale-deed.
(iii) That the Chairman HHTI. Trust without the approval of the Board of Directors had cancelled the plot with mala fide intention, therefore, issuance of writ in favor of respondent No,1 was necessary in the interest of justice.
(iv) That appellants, Raja Bilal Zafar and two others failed to prove their status as owners of the plot because admittedly they had not participated' in the auction proceedings, inasmuch as even now sale-deed does not exist in their favor as per the written admission of learned counsel for HHTI.
Trust, therefore, mala fides behind transferring the plot in their favor is apparent.
(v) That in exercise of Constitutional jurisdiction Court can decide the question of performance or otherwise of the contractual obligations.
12. We have heard learned counsel for the parties and gone through the impugned judgment as well as available record carefully. The principle of natural justice enshrined in the maxim "audi alteram partem" is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings. Reference in this behalf may be made to the case of Pakistan International Airlines Corporation and others v. Nasir Jamal Malik and others 2001 SCMR 934. In this judgment it has been held that where adverse action is contemplated to be taken against the person/persons, he/they has/have a right to defend such action, notwithstanding the fact that the statute governing their rights does not contain provision of the principle of natural justice and even in absence thereof it is to be read/considered as a part of such statute in the interest of justice. It is important to note that the principle of natural justice is now made inbuilt part of civil contracts like the one under discussion. This principle originates from Islamic System of Justice as evident from historical episode when "Iblees was scolded for having misled Hazrat Adam (P.B.U.H.) into disobedience of Allah's command. Almighty Allah called upon Iblees to explain his conduct and after having an explanation from him which was found untenable, he was condemned and punished for all times to come". Thus, it is held that the principle of natural justice has to be applied in all kinds of proceedings strictly and departure there from would render subsequent actions illegal in the eye of law.
13. Learned counsel for appellant in C.A. No,743 of 1998, on having conceded that opportunity of hearing was not given to respondent No,1 before passing the order of cancellation of her plot, argued that in view of the facts and circumstances of the case the principle of natural justice would not be applicable as observed in the case of Aligarh Muslim University and others v. Mansoor Ali Khan AIR 2000 SC 2783. He relied upon following passage:-- "Chinnappa Reddy, J. In S.I. Kapoor's case AIR 1981 SC 136, laid down exceptions (at p.395 of SCC: at pp.147 and 148 of AIR, namely, 'if upon admitted or indisputable facts only one conclusion was possible'. Then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception."
' To elaborate his argument he contented that admittedly respondent No,1 could not complete construction of the building on the plot within prescribed period and had also failed to do needful, despite availing extension of time, therefore, this circumstance itself was sufficient notice in this behalf.
' Reliance was also placed by him upon the case of Lahore Cantonment Cooperative Housing Society Limited, Lahore Cantt. v. Dr. Nusrat Ullah Chaudhry and others PLD 2002 SC 1068 wherein the respondent failed to complete the construction of a hospital within a period of three years of the signing of agreement as such sale-deed in his favor was cancelled and the High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan accepted the petition against which Lahore Cooperative Housing Society approached this Court by filing an appeal which was allowed as a result whereof the order of the High Court was set aside and the cancellation order was found to be correct.
14. In order to ascertain the applicability of the principles of law discussed in reported judgments it would be expedient to examine the circumstances under which disputed plot was cancelled/resumed and if it is found that the appellant in Civil Appeal No,742 of 1998 cancelled/ resumed the plot lawfully and without mala fide intentions then respondent No,1 would be held not entitled to right of hearing.
15. It is the case of respondent No,1 that Chairman HHTI Trust had cancelled/resumed the plot in dispute by means of order, dated 25th August, 1990 without lawful authority because under section 14 of the West Pakistan Hill Tract Improvement Ordinance,'1961 (Ordinance VIII of 1961) no powers were delegated to him to cancel/resume the plots. For convenience said order is reproduced hereinbelow : ' Plot No,87 was auctioned during 1976. The plot was later on transferred in the name of Qaisra Elahi subject to condition that the owner will complete construction before 31-12-1985. The construction period was lastly extended upto 31-12-1989.
' Since the owner failed to start the construction work, therefore, Plot No,87 K.G. Is liable to cancellation."
' It is pertinent to note that learned counsel for HHTI Trust was repeatedly called upon to satisfy as to whether the Chairman of the Board of Trustees was competent to cancel/resume the plot being the delegatee of the Board of Trustees or Government of N.-W.F.P., he failed to satisfy the Court in this behalf, although hearing of the case was postponed from time to time. Thus, it is held that the Chairman HHTI Trust without approval of the Board had no authority to resume the plot.
' At this juncture it would not be out of context to note that the HHTI Trust before cancelling/resuming the plot had published auction notices in the newspapers as evident from the letter dated 18th August, 1990, contents whereof have already been reproduced hereinabove.
' Perusal of auction notices reveals that the auction-purchasers were not apprised that which plot is to be put on auction but fact remains that disputed Plot bearing No,87 was included in the list meant for this purpose although till then its allotment was not cancelled/ resumed from the name of respondent No,1 as per available record. Thus, it may be safely concluded that with mala fide intention Plot No,87, was included in the auction list knowing well that sale-deed in favor of respondent No,1 was intact and she has paid non-utilization fee upto date.
16. The Board of Trustees in its meetings held from time to time had been examining the question of non-utilization of the plots but plots were seldom cancelled/resumed for such reason. According to record produced before us there were at least four plot holders including respondent No,1 in Khaira Gali who could not raise construction within stipulated time but the Board of Trustees instead of cancelling/resuming their plots imposed non-utilization fee upon them. The details of the plot holders mentioned in the list pertaining to Khaira Gali and other places is reproduced hereinbelow, supplied by the learned counsel for appellant HHTI Trust, with the minutes of the meeting dated 18th October, 1989, to show mala fides of the HHTI Trust for singling out respondent No,1 for the purpose of cancelling/resuming the plot from her name:-- S.No. Plot No.Name and address Date of allotment Ghoradakka/Khanspur:
1. 51 Maj. Muhammad Khan Ashraf, Lahore10-3-1972
2. 105 Maj. Muhammad Akbar Khan, Roomi Road, Rawalpindi11-1-1975
3. 115-A 115-B 115-CMessrs Muhammad Sharif and Party , Khanspur28-7-1978
4. 130 Mr. N.H. Loan, Adam Jee Road, Rawalpindi23-19-1962
5. 157 Dr. Hamid Asghar , 1540 Farid Town, Sahiwal29-9-1962
6. 161 Mr. Talib Sheikh, House No.3, Street 26, F-6/1, Islamabad4-10-1984
7. 196-A Mr. Gul Siraj, Khanspur 21-8-1976
8. 143 Mst. Azra Khatoon, L- 116/9, Dastagir Society , Karachi31-7-1964 Changla Gali:
1. 30-A Mr. Zia Shah, Bungalow No.291-A, Peshawar Road, Rawalpindi24-6-1978
2. 84 Malik Farooq Ahmed Khokhar , Multan Cantt.5-10-1984 Khaira Gali:
1. 7-B Mr. Ghazzan, Khairagali 20-8-1972
2. 44-A Capt. Dr . Ch. Muhammad Akbar , 16-A, Satellite Town, Gujranwala13-9-1972
3. 60 Mr. Farooq Ahmed Khokhar , Multan Cantt.5-10-1984
4. 87 Mrs. Qaisra Ellahi, wife of Ch. Pervaiz Elahi, Zahoor Palace, Gujrat22-8-1976 A glance at of the minutes of the meeting of the Board of Trustees dated 18th October, 1989 makes it clear that the Board of Trustees had not decided to cancel/resume the plot but insisted upon recovery of non-utilization fee as per its decision dated 11th January, 1989. Relevant para. Therefrom is reproduced hereunder:- "As regards the plot on which no construction work has been started (Annexure "B"), the purchasers were asked through final notice issued under the decision of the meeting of the B.O.T. Meeting held on 11-1-1989 to pay non-utilization fee within 15 days otherwise their plot shall be resumed, but they did not comply with, therefore, it is suggested that all such plots may be resumed in Trust favor forthwith."
Admittedly respondent No,1 had paid non-utilization fee much prior to above decision. Thus, it is held that plot from her name was cancelled by the Chairman HHTI Trust, contrary to the decision of the Board of Trustees, without lawful authority vide order, dated 25th August, 1990 (ibid).
17. At this juncture we consider it appropriate to note that appellants in Appeal No,743 of 1998 though obtained consent of Abdul Latif one of the auction-purchasers for transfer of the plot in their favor but sale-deed was not executed in their favor as is evident from the following statement of the learned counsel appearing for HHTI Trust filed by him in Court during hearing of appeal:-- "As per record provided by the department there is no sale-deed available on record. Only the receipt of amount of auction proceedings is available on record in favor of appellants in C.A.
No,743 of 1998."
18. Learned Division Bench of the High Court having taken notice of the illegalities and irregularities, committed by the Chairman HHTI Trust in cancelling the plot from the name of respondent No,1 issued writ in her favor. Operative para. Therefrom has already been reproduced hereinabove. In our opinion the illegalities and irregularities, mentioned in the impugned judgment, arc sufficient to hold that the Chairman HHTI Trust exercised jurisdiction illegally without adhering to the prescribed procedure. It is true that in the memo. Of writ petition, element of mala fide in cancelling the plot from her name was not pleaded categorically but when illegalities surfaced on record, the High Court formed an opinion that the plot has been cancelled/ resumed on the basis of mala fides.
There is no cavil with the proposition that mala fides are required to be pleaded specifically and proved as a question of fact, as held in the case of Government of Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 but when mala fide on the part of concerned authority is apparent on the face of record, then a Court of law, seized with the matter, is not supposed to shut its eyes, without taking notice thereof. In forming this view, we are fortified by the judgment in the case of Muhammad Bashir v. Abdul Karim PLD 2004 SC 271. Relevant para. There from is reproduced herein below for convenience:-- We are not persuaded to agree with Sardar Muhammad Ghazi, learned Advocate Supreme Court for appellant that the scope of Article 199 is limited and such-like controversy could not have been dilated upon and decided by the High Court while exercising Constitutional jurisdiction for the simple reason that record was crystal clear and accordingly the controversy being not ticklish and complicated could have been decided. It is well-settled by now that "Article 199 casts an obligation on the High Court to act in aid of law, protect the rights of the citizens within the framework of the Constitution against the infringement of law and Constitution by the executive authorities, strike a rationale compromise and a fair balance between the rights of the citizens and the actions of the State functionaries, claimed to be in the larger interest of Society. This power is conferred on the High Court under the Constitution and is to be exercised subject to Constitutional limitations. The Article is intended to enable the High Court to control executive action so as to bring it in conformity with the law. Whenever the executive acts in violation of the law, an appropriate order can be granted this will relieve the citizen of the effects of illegal action. It is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. If the citizens of this country are deprived of the guarantee given to them under the Constitution, illegally or, not in accordance with law, then Article 199 can always be invoked for redress". (Ghulam Mustafa Khar v. Pakistan and others PLD 1988 Lah. 49, Muhammad Hussain Khan v. Federation of Pakistan PLD 1956 Kar. 538(FB), S.M. Yousuf v. Collector of Customs PLD 1968 Kar.599 (FB). It is to be noted that "paramount consideration in exercise of Constitutional jurisdiction is to foster justice and right a wrong". (Rehmatullah v. Hameeda Begum 1986 SCMR 1516, Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236). There is no cavil with the proposition that "so long as statutory bodies and executive authorities act without fraud and bona fide within the powers conferred on them by the Statute, the judiciary cannot interfere with them. There is ample power vested in the High Court to issue directions to an executive authority when such an authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party". (East and West Steamship Co. v. Pakistan PLD 1958 SC (Pak.) 41). In our considered view, technicalities cannot prevent High Court from exercising its Constitutional jurisdiction and affording relief which otherwise respondent is found entitled to receive. "
' In the instant matter, learned counsel appearing for appellants in Civil Appeal No,742 of 1998, himself has produced record of the case possessed by him during the hearing, therefore, no further proof was required to establish mala fides.
19. Learned counsel for appellants in Appeal No,743 of 1998 vehemently urged that appellants have acquired right to retain possession of the plot on which they have raised construction after having purchased the same from ostensible owner of the plot, therefore, any procedural defect in completion of the transaction could not be considered a valid, ground to deprive them of their valuable rights. In this behalf learned counsel appearing for respondent cited a judgment in the case of Industrial Development Bank of Pakistan v. Saadi Asmatullah 1999 SCMR 2874, wherein the word "good faith" has been defined to be "an act said to be done in good faith when the same was done with due care and attention" and argued that the appellants have not entered into a transaction with HHTI Trust in good faith because it was incumbent upon them to have inquired as to whether allotment of the plot, being purchased by them through Abdul Latif and Dilawar Khan, was rightly cancelled by the competent authority or otherwise. We are inclined to subscribe to the view point expressed by the learned counsel for the respondent because as discussed hereinabove that Board of Trustees instead of cancelling/resuming the plot, in its last meeting, held on 18th October, 1989, insisted for the recovery of non-utilization fee from the plot holders, having plots situated in Khaira Gali and other places, whose names were placed before it, details of which have already been reproduced hereinabove, but the Chairman HHTI Trust, by adopting a device, without obtaining approval from the Board of Trustees, cancelled allotment of the plot of respondent No,1. In addition to it, appellants Bilal Zafar and others, themselves were not the auction-purchasers, as the vendees were Abdul Latif and Dilawar Khan and out of them only one Abdul Latif had filed application before the Chairman HHTI Trust, who passed order on it on 17th January, 1991, which reads as under:-- "As we have established a precedent of this nature in case of Plot No,50 Gora Daka, we may oblige the applicant here as well. (Sd.) Chairman 17-1-1991" Consequently, above circumstances indicate that transaction of plot in dispute between appellants Bilal Zafar and others, with Abdul Latif and HHTI Trust was not transparent and in accordance with rules and regulations.
20. Learned counsel for appellants in Civil Appeal No,743 of 1998 emphatically emphasized that for enforcement of contractual obligations, writ jurisdiction of the High Court was not a proper forum.
21. We are afraid this argument is not available to him in view of the law laid down by this Court in Airport Support Services v. Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 and Ranma Pipe, General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.)
2004 SCMR 1274 and Muhammad Bashir v. Abdul Karim PLD 2004 SC 271.
22. Now it requires to be considered as to whether a vested right had accrued to appellants Raja Bilal Zafar and others as allegedly they had spent huge amount on construction of building.
Learned counsel for respondent No,1, in order to meet this argument, submitted that building has been constructed on the plot in pursuance of a site plan dated 13th August, 1991 submitted by the owner. His name is shown therein as Raja Shahid Zafar son of Raja Zafar-ul-Haq, who is not a party before this Court. The plot was got transferred in his name by Abdul Latif Abbasi vide undated application on which the order was passed by the Chairman, HHTI Trust on 17th January, 1990, therefore, no question of making investment in the construction of building by the appellants arises. It may be noted that it is apparent from the record that Raja Shahid Zafar, is the brother of the appellant Raja Bilal Zafar and father of remaining two appellants, who got approved plan for construction of the building, therefore, it was for the authorities to ascertain as to how approval for construction of the building can be given to a person who had not acquired proprietary rights in the plot. In addition to it, it is stated that no sooner the litigation commenced the HHTI Trust wrote a letter to appellants Raja Bilal Zafar and others to stop construction on the subject plot forthwith, till the decision of the High Court. Copy of this letter was marked to the S.D.O. HHTI Trust with direction to take prompt action to stop the construction work, but it seems that the appellants failed to pay Any heed. Later on, respondent No,1 also submitted an application for restraining the respondents i,e, Abdul Latif and Dilawar Khan from raising construction on the disputed plot. During pendency of this application, it revealed that they had allegedly transferred their rights over the plot to the respondent No,1 as such vide order, dated 21st October, 1991, they were impleaded as respondents in writ petition:-- "The perusal of written statement filed by respondent No,1 shows that Raja Bilal Zafar, Raja Haseeb Zafar and Raja Manan Zafar of Kiyan Tipu Road, Rawalpindi are real owners and that respondents Nos.2 and 3 are only Benamidars and that the construction is being made by Raja Bilal Zafar etc. On the plot in question who are in physical possession of the same. Respondent No,1 has also filed copy of the application by respondents Nos.2 and 3 for the transfer of the plot in question in favor of Raja Bilal Zafar and others upon with necessary order has already been passed by the competent authority. The presence of Raja Bilal Zafar, Raja Haseeb Zafar and Raja Manan Zafar before the Court for the complete and effectual adjudication is necessary. Therefore, we order their impleadment as respondents in the writ petition. Their names may be added in the heading of the writ petition as well as the memo. Of addresses and notice of the writ petition as well as this C.M. Be issued to them for a date in office. The interim status quo order, dated. 28-4-1991 against respondents 2 and 3 shall continue." Later on, an amended petition, impleading Raja Bilal Zafar and others, was submitted. Another application being C.M. No,168 of 1991 was moved on which, the order of status quo was passed.
Subsequent thereto, contempt proceedings were also initiated but record is silent as to whether any action was taken against the appellants or not.
23. From the facts narrated above, it is evident that appellants Raja Bilal Zafar and others were fully aware that the matter was sub judice and status quo order was operating against them, but despite that, they entrench a great risk and allegedly completed construction over the plot, as stated on their behalf by the learned counsel, appearing for them. Therefore, it may safely be held that the appellants had not cared to abide by the status quo order and shown hurry in completion of the construction of the building without waiting for the decision of the writ petition. As such, in our opinion, no vested right has accrued in their favor to claim the protection of law, under the circumstances noted above.
24. As has been discussed hereinabove that the transfer of the plot was made by HHTI in favor of appellants Raja Bilal Zafar and others in a clandestine manner and construction of building was also completed by the respondents without bothering about the Court proceedings, therefore, all series of action, based on illegal transfer of the plot, are bound to fall down as held in the case of Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104.
25. Since the Chairman of the HHTI Trust had exercised jurisdiction in a colorable manner and beyond the scope of powers conferred upon him under the law i,e, West Pakistan Hill Tract Improvement of Trust Ordinance, 1961, therefore, to camouflage such illegal acts, the right of hearing enshrined in the maxim "audi alteram partem" (no one should be condemned unheard) was denied to respondent No,1, in view of inbuilt provision of clause 1(b) of the sale-deed dated 25th August, 1985.
26. Thus, the principle heavily relied upon by the learned counsel for appellants in Civil Appeal No,743 of 1998 in the case of Aligarh Muslim University (ibid), relevant para. Wherefrom has been reproduced hereinabove is not attracted and we conclude that condemnation of respondent No,1 without issuing notice to her before cancellation of the plot is based on mala fides, therefore, learned High Court had rightly issued writ in her favor. As a consequence of above discussion, appeals are dismissed with costs.
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