1. SAIYED SAEED ASHHAD, CJ.--In this Constitutional petition, the petitioner has sought the following reliefs:--
(a) Declare that the impugned order/decision dated 14th April, 1988 passed by the respondent is without jurisdiction, illegal, without lawful authority and of no legal effect.
(b) Direct the respondent to withdraw, rescind and/or cancel the impugned order/decision and restore the plot in question to the petitioner.
(c) Restrain and prohibit the respondent, its officers, employees, agents and assigns and/or any person or persons claiming through or under it from allotting, transferring, sub-leasing, encumbering, charging, alienating and disposing of plot No,104-C, Khayaban-e-Badar, Phase VII measuring 600 square yards, situated in Pakistan Defence Officers Housing Authority, Karachi, in any manner whatsoever.
(d) Award costs of this' petition, and/or
(e) Grant any other relief or relief in addition to the foregoing or such other orders and directions that this Hon'ble Court may deem fit and proper under the circumstances of the case. The brief facts of the case as stated in the memo of petition are that the petitioner was allotted a plot of land bearing No,104-C, Khayaban-e-Badar, Phase VII, measuring 600 Sq. Yds. (herein after referred to as the said plot) by Pakistan Defence Officers Cooperative Housing Society Limited (hereinafter referred to as the Society), the predecessor of the respondents Messrs Pakistan Defence Officers Housing Authority (hereinafter referred to as the Authority), vide letter dated 25-1- 1978 in accordance with the provisions of the bye-laws. The petitioner submitted that such allotment was made in his favour for the services rendered by him to the Society. The allotment was followed by execution of sublease in form 'A' on 4-2-1978. Subsequently, in 1980 by President's Order No,7 of 1980 (hereinafter referred to as the President's Order), the Society was superseded by the Authority. The Authority by virtue of the powers vested in it by Article 17(h) of the President's Order authorizing it to cancel allotment and transfer of plots whether residential or commercial issued in contravention of the bye-laws of the Society or the resolution of the Managing Committee of the Society, cancelled the allotment/transfer of the said plot vide letter dated 14-4-1988. The petitioner was informed that the Executive Board of the Authority had cancelled his allotment.
2. Feeling aggrieved and dissatisfied with the above order, the petitioner filed the present Constitutional Petition for seeking the reliefs mentioned herein above. The petition was allowed by this Court vide judgment dated 14-4-1993 holding that the impugned order cancelling the allotment of the said plot in favour of the petitioner was without lawful authority and of no legal effect. The judgment of this Court was assailed by the respondents before the Supreme Court, who vide order dated 3-7-1994 set aside the judgment and remanded the petition to this Court for fresh decision in accordance with law/bye-laws, after giving the parties opportunity of hearing. After the remand order, fresh notices were issued to the parties and/or their Advocates and the matter was heard on 9-3-2004 when the arguments of Messrs Abul Inam and Nazar Hussain Dhoon, learned advocates for the petitioner and the respondents respectively were heard and the petition was reserved for judgment. Mr. Abul Inam vehemently submitted that the Managing Committee of the Society, the predecessor of the respondents Authority, had allowed allotment of the said plot in its meeting held on 13-4-1976 and such allotment was made in accordance with the provisions of the bye-laws of the Society. He further submitted that in pursuance of the decision of the Managing Committee, letter dated 25-1-1978 was issued to the petitioner informing him of the allotment of the said plot in his favour and in pursuance thereof the petitioner made payments of a total sum of Rs,35,165 which he was called upon to pay by the Society from time to time. Mr. Abul Inam contended that in view of the fact that the decision of the Managing Committee had been acted upon as a result of which the petitioner had made payments towards the price and other charges in respect of the said plot and 'A' lease had been executed in his favour, the respondents were precluded from cancelling the allotment of the said plot. His further contention was that in the present case the allotment was converted into a substantial right by execution of 'A' lease by the Society in favour of the petitioner and the respondents in exercise of the powers conferred on it by the President's Order could not cancel or set aside 'A' lease which could be done only in accordance with the provisions of law relating to cancellation of leases and documents. Mr. Abul. Inam also argued that the facts of the case also attracted the principle of locus penitential as propounded by the Supreme Court and submitted that as the order of the Managing Committee had been acted upon resulting in creating of vested right in favour of the petitioner the same even if illegal or contrary to any provision of the law or the bye-laws could not be recalled, rescinded or cancelled. Mr. Abul Inam in support of his contention that the lease could not be cancelled by the respondents placed reliance on the case of Muhammad Arshad Jalil v. Pakistan Defence Officers Housing Authority and another PLD 1992 Kar.
304. Mr. Abul Inam in support of his contention that an order even if illegal, ultra vires or contrary to the provisions of law was acted upon, thereby conferring or creating legal right in favour of a party then the same could not be recalled or rescinded, placed reliance on the case of Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407. Mr. Abul Inam further argued that the petitioner had become entitled to allotment of a plot under Bye-Law category No,8(1) of the Bye-laws of the Society as he had rendered legal services as an Advocate on behalf of the Society for which he was not paid any professional fee and to compensate him for his services the Society in the meeting of the Managing Committee decided to allot him the said plot. Mr. Nazar Hussain Dhoon, Advocate for the respondents Authority, controverted the arguments advanced by Mr. Abul Inam and submitted that the entire process of issuance of letter of allotment, making payments towards price and other dues/charges in respect of the said plot and execution of 'A' lease was fraudulent, bogus, illegal and was done with mala fide intention by the then Secretary of the Society namely, Lt.-Col. (R.) G.M. Nizamuddin, who was found to be involved in a large number of cases of fraudulent, bogus and illegal allotments in favour of several persons including the petitioner and all such allotments/transfers were cancelled by the respondents in exercise of its powers under Article 17(h) of the President's Order. He further submitted that the illegality and the mala fides were apparent from the very letter of allotment which is dated 5-1-1978 purporting to informing the petitioner of allotment of the said plot in his favour in the meeting of the Managing Committee purported to have been held on 13-4-1976 and contended that the letter of allotment was issued after a lapse of twenty-one (21) months which in itself was sufficient to raise grave and serious doubts with regard to the genuineness of the allotment order. Apart from the above, he submitted that as a !Inner of fact no meeting of the Managing Committee had taken place on 13-4-1976 and in support of the above contention, he placed reliance on the Minutes Book of the meetings of the Managing Committee of the Society held during 1976, according to which no meeting of the Managing Committee had taken place on 13-4-1976 and submitted that this fact completely negated the claim of the petitioner and rendered the allotment as absOlutely bogus, illegal and of no legal effect. With regard to the contention that the respondents Authority in exercise of the powers conferred on it by Article 17(h) of the President's Order could not recall rescind or cancel 'A' lease executed in accordance with law, he submitted that when the initial order which formed the basis of the execution of 'A' lease was illegal, contrary to law, bogus and fraudulent, then all subsequent orders made and actions taken on the basis of the original illegal, bogus and fraudulent order would be deemed to be without any sanction, illegal and of no legal effect in view of the settled principle that all subsequent orders passed on the basis of a void or illegal order either by the same authority or by other authority would be without any basis in law and such orders together with superstructure of right and obligation built upon, would fall to the ground, reliance was placed on the cases of (i)
3. Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104; (ii) Home Secretary to the Government of West Pakistan, Lahore and others v. Jan Muhammad and another PLD 1969 SC 333; and (iii) Mansab Ali v. Amir and 3 others PLD 1971 SC 124. We have considered the arguments advanced by the learned counsel for the parties and have also perused the material on record, the relevant provisions of the law/bye-laws and the case law relied upon by the learned counsel for the parties. Before proceeding to discuss the case in the light of the arguments advanced by the learned counsel, it will be appropriate to refer to the observations of the Supreme Court in its order dated 3-7-1994, whereby the judgment of this petition in favour of the petitioner was set aside and the petition was remanded for fresh decision. The main point which weighed with the Supreme Court in setting aside the judgment of this Court and remanding the case for fresh decision, appears to be the failure of this Court to examine the proceedings of the Managing Committee said to have been held on 13-4-1976, which was found by the Supreme Court to be essential for doing complete justice to the parties and for a just decision of the Constitutional Petition. It will be appropriate to reproduce the relevant portion from the order of the Supreme Court which is as under:-- "4. Learned counsel for the parties have argued for and against the aforesaid contentions. They have, however, agreed that under the bye-laws, the Managing Committee alone could make allotment of the plot to the respondent provided he was a member of the Society or there were special reasons and special circumstances in his favour and that this aspect of the case, requiring examination of the proceedings of the Managing Committee held on 13-4-1976, which was essential for doing complete justice to the parties and for the just decision of the Constitutional petition, has not received attention of the High Court." It was for this reasons that we had asked Mr. Nazar Hussian Dhoon to produce the Minutes Book of the meetings of the Managing Committee of the Society for the year 1976, which was duly complied with by him. From perusal of the Minutes Book, it transpires that no meeting of the Managing Committee had taken place on 13-4-1976. It was further revealed that meeting No,3/1976 was held on 29-3-1976; meeting No,4/1976 was held on 19-4-1976; and subsequent meetings were held after 19-4-1976 but no meeting had taken place on 13-4-1976 as was claimed by the petitioner. Neither in the meeting of 29-3-1976 nor in the meeting of 19-4-1976 there was any material relating to the allotment of the plot in favour of the petitioner. Perusal of the Minutes Book .Of the meetings of the Managing Committee for the year 1976 completely erased the basis for allotment of the said plot in favour of the petitioner. It is to be noted that during the course of arguments before the Supreme Court the counsel for the petitioner had conceded that the allotment of the said plot in favour of the petitioner could be made by the Managing Committee of the Society in accordance with the bye-laws of the Society. The petitioner has failed to produce a valid and proper order of the Managing Committee of the Society whereby a decision to allot the said plot in his favour was made. The facts and circumstances lend support to the contention of Mr. Nazar Hussain Dhoon that the allotment letter dated 25-1-1978 was a fraudulent, bogus and illegal letter issued by the then Secretary to the Society who, according to Mr. Nazar Hussain Dhoon, was found involved in grave and serious practice of fraudulent, bogus, illegal and mala fides allotments of the plots in favour of several persons including the petitioner. Taking up the contention that the Society was under a legal or moral duty or obligation to allot the said plot in favour of the petitioner for the legal service rendered by him without charging any fee, it is to be observed that in the memo. Of petition the petitioner had categorically stated that the legal services were rendered by him on behalf of his senior colleague late Sharaf Faridi, Advocate who was the legal adviser/consultant of the Society. The performance of work of legal assistance, advice and opinion was undertaken by the petitioner on behalf of his senior colleague and the Society could in no way be said to be under legal or moral obligation to the petitioner. The obligation, if any, in performing the above duties would be to late Sharaf Faridi who was the legal adviser/consultant of the Society but was out of Pakistan during the relevant period as a result of which the petitioner as an associate or colleague of late Sharaf Faridi was under a legal and moral duty to late Sharaf Faridi to provide assistance to the Society. In view of the above facts, the special circumstances/case on the basis of which the petitioner claimed entitlement to allotment of a plot did not exist and there was hardly any ground for the Society to allot him the said plot for the legal services rendered by him.
4. Relating to the contention that since order of allotment had been acted upon as the petitioner made payments of a total sum of Rs,35,165 as demanded by the Society from time to time followed by execution of `A' lease in his favour, the same could not be recalled, rescinded or cancelled in view of the principle of locus penitential as enunciated in the case of Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (supra), it is to be noted that the Principle of locus penitential is applicable if the order on the basis of which certain rights and privileges are claimed was a legal order and further that perpetual rights cannot be acquired or gained on the basis of an illegal order. As has already been observed above, the allotment order dated 25-1-1978 was not a legal, valid and bona fide order as the very basis thereof i,e, meeting dated 13-4-1976 of the Managing Committee of the Society wherein the decision was purportedly taken to allot the said plot in favour of the petitioner, had never taken place and, therefore, there was no basis for issuing the said allotment order. On the basis of such illegal, bogus and mala fide allotment order even if some decisive steps had been taken in the nature of payments made by the petitioner and execution of `A' lease in his favour, the order of allotment would not become irrevocable and a past and closed transaction. The basic order i,e, allotment order dated 25-1-1978 being illegal, void mala fide and of no effect, no perpetual right could be acquired or gained by the petitioner on the basis of such an illegal order.
5. The contention that 'A' lease had been executed by the concerned authority in accordance with law in favour of the petitioner and the respondents could not rescind, cancel or set aside the same which could be cancelled or rescinded in accordance with law relating to the cancellation of leases, deeds and such like documents is also without any force in view of the settled principle that where the order on the basis of which subsequent rights and privileges are claimed is found to be illegal, void and mala fide, then all superstructure by way of rights and privileges would fall to the ground. The pronouncements made in the cases of (i) Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC 104; (ii) Home Secretary to the Government of West Pakistan, Lahore and others v. Jan Muhammad and another PLD 1969 SC 333; and (iii) Mansab Ali v. Amir and 3 other PLD 1971 SC 124 (supra) are applicable on all fours to the facts of this case and it is held that as the order of allotment dated 25-1-1978 was illegal, bogus, mala fide and of no effect, therefore, the subsequent payments made by the petitioner by way of price and other charges in respect of the said plot as well as of execution of 'A' lease in his favour were also illegal and of no effect and would not create any rights or privileges in favour of the petitioner in respect of the said plot. For the foregoing reasons and discussion, we find that this Constitutional Petition does not merit consideration. Accordingly, it stands dismissed with no order as to costs.