' SABIHUDDIN AHMED, J.--- The petitioner, who claims to be a charitable trust, is aggrieved by the cancellation of a plot measuring 2.12 acres in Clifton; Karachi allotted to it. The cancellation order, dated 17-7-1997 was passed by the Director Land Management of the erstwhile K.D.A. Purporting to cancel the allotment of the said plot.
2. The petitioner has-contended that it had applied for allotment of a plot and the plot in question was sold by the erstwhile K.D.A. For a total consideration of Rs,5,130,500 by way of the allotment order, which was issued on 11-7-1995 and possession was also subsequently, delivered to the petitioner. The, allotment order was signed by an Additional Director and the possession order by an Assistant Director of the erstwhile K.D.A. Subsequently, when the petitioner had started raising construction, an omnibus order (impugned order) was passed on 17-7-1997 declaring that allotment of plots made in violation of rules and regulations between 20-10-1993 and 5-11-1996 stood cancelled with immediate effect.
3. Mr. Abdul Latif A. Shakoor learned counsel for the petitioner basically argued that once possession had been delivered to the petitioner pursuant to an allotment order and even payment had been received by the K.D.A. The cancellation could not be effected without giving the petitioner a show-cause notice or an adequate opportunity of being heard. In the instant case, it is not disputed that no show-cause notice was given and the cancellation took place as a consequence of a omnibus order passed pursuant to orders of the respondent No,1 to the following effect:-- "I am directed to intimate that in pursuance of the orders issued by the Housing Town Planning Local Government and Rural Development Department, Government of Sindh, allotment of plots made in violation of the rules and regulations in between 20-10-1993 to 5-11-1996 stand cancelled with.' immediate effect.
' Allotment of the aforesaid plot made in your favour on 11-7-1995 is accordingly cancelled with immediate effect."
4. In principle learned counsel appears to be correct to the extent that the petitioner had required rights in property through an allotment order and the principles of natural justice required that the allotment could not be cancelled without a show-cause notice. Indeed if allotments made in violation of rules and regulations were required to be cancelled pursuant to a policy decision of the Government, the concerned authorities in the K.D.A. Ought to have applied their independent minds after hearing the petitioner as to whether the rules and regulations had in fact been violated effecting the allotment in question.
5. Nevertheless, Mr. Rafique Rajorvi learned A.A.-G. And Mr. Raghib Baqi learned counsel for the K.D.A. Urged that the violation of rules and regulations was evident from the fact that the allotment in question had in fact been made by the then Chief Minister of Sindh and not the governing body of the K.D.A. Under the Rules,. Learned A.A.-G. Placed on record an application by one of the Trustees of the petitioner Dr. Mrs. Ashraf Abbasi dated 18-4-1995, which may be reproduced as under:-- "Subject: Allotment of plot to Sindh People's Welfare Trust for school building.
' My Dear Chief Minister (through Minister H.T.P.)
' As you were aware that the Sindh People's Welfare Trust had launched many programmes of social welfare in the Province of Sindh. I would like to inform you that recently the Sindh People's Welfare Trust has established a quality school "Bakhtawar Model School" at Naudero (Larkana).
Now the Trust is planning to establish another school (from primary to secondary level) in Karachi. I appreciate that the Government of Sindh has always encouraged the efforts of private sector/N.G.Os. For providing such facilities in social sector to assist the Provincial Government.
' It is requested to very kindly allot a suitable plot of a reasonable size to the Trust on urgent basis so that the school building is started as early as possible.
' An early action shall be highly appreciated. With regards. Yours sincerely (Sd.) Dr. Mrs. Ashraf Abbasi Ex-Deputy Speaker N.A. Trustee SPWT."
6. Upon the aforesaid letter the Chief Minister ordered "please allot and put up summary". In the summary prepared for the Chief Minister by the Secretary Housing Town Planning and Environment Department, on the same day it was stated that according to report given by the K.D.A., the plot in question measuring 2.12 acres was available and proposed that either the whole or half of the plot be allotted to the petitioner and the remaining may be utilized at a later stage. It was routed through the Chief Secretary who suggested that half of the plot be allotted, but the Chief Minister disagreed and approved the allotment of the entire plot on 19-4-1995. On 20-4-1995 a letter was addressed to the Director-General K.D.A. Stating that "the Chief Minister Sindh had been pleased to allot" the plot to the petition in relaxation of ban. Learned counsel relied upon the pronouncement of the Honourable Supreme Court in Al-Shafiq Housing Society v. Pakistan Medical Association PLD 1992 SC 113, wherein it was held that the powers of the Government were only confined to issuing policy directives to the K.D.A. Under Article 4(2) of the K.D.A. Order and neither the Government nor the Chief Minister had any power to allot a particular plot to any person.
7. Mr. Raghib Baqi further drew our attention to Rule 11 of the Karachi Development Authority (Disposal of Land and Estates) Rules, 1971. This Rule relates to disposal of amenity plots including sites for schools and provides that an application is to be made to the K.D.A. In a prescribed form which is to be scrutinized by the Amenity Plots Sub-Committee headed by a member of the governing Body. The Sub-Committee is required to interview the applicant and satisfy itself inter alia as to actual requirements of land and the recommendations of the concerned heads of departments such as Director of Education etc. The recommendations of the Sub-Committee are required to be put to the Allotment Advisory Committee which is to undertake further scrutiny and refer the matter to the governing body of the Authority for final allotment. Admittedly such procedure was never adopted and the petitioner themselves chose to defy the requirement of Rules by making a direct application to the Chief Minister who had no power in law to effect allotment. The appropriate Committees of the K.D.A. Or even the governing body were never given an opportunity to consider the petitioners' application on merits and a final order of the Chief Minister overruling the recommendations of the Chief Secretary (for allotment of half of the size of plot) was communicated to the Director-General as fait accompli. We can perhaps also take notice of the fact as admitted in the petition that such hasty measures in violation of the requirements of law as taken on -account of the fact that the Trustees of the petitioner happened to be four prominent members of the political party to which the then Chief Minister belonged and included then Prime Minister. It would, therefore, not be wrong to conclude that the allotment was not merely in violation of rules but also lacked bona fides.
8. As regards the absence of show-cause notice it needs to be mentioned that the petitioner's claim was founded upon the principles of natural justice and not on any mandatory provision of law. In this context a distinction has been laid, down by the Honourable Supreme Court in Collector Sahiwal v. M. Akhtar 1971 SCM R 681 and followed ever since to the effect that when the impugned action is taken in violation of a mandatory provision of law requiring notice to the affected party the action is void, ab initio. However, when absence of notice is complained of on the grounds of violation of the principles of natural justice, the defect can be rectified even at a subsequent stage.
We invited Mr. Latif Shakoor to show whether it was possible for him to contend, in the face of the documents placed on record that the allotment in question was not irregular or had been effected in accordance with the applicable rules and indeed he was unable to do so. Indeed he attempted to urge that by accepting payment the K.D.A. Should be deemed to have Tatified the irregularity.
We are afraid in the circumstances, highlighted above and the unusual haste with which the then Chief Minister handed down the order of allotment it is impossible to urge that any opportunity for independent application of mind was made available to the governing body of the K.D.A.
9. Evidently the allotment had been effected by a person who had no jurisdiction to do so and it is doubtful whether the petitioner could claim having acquired an interest in property which could not be taken away without being provided an opportunity of hearing particularly when the petitioner themselves chose not to apply for allotment in the prescribed form according to the rules and sought the same from a person having no jurisdiction they could hardly claim violation of B principles of natural justice.
10. Even otherwise it is well-settled that the jurisdiction of this Court under Article 199 of the Constitution is discretionary and such discretion ought not to be exercised in aid of injustice notwithstanding the illegality of the impugned action. At the same time, however, we are or the view that the amount deposited by the petitioner ought to be refunded at the earliest and some compensation given for the use of such amount for a long period. Accordingly, we would dismiss the petition but direct that the amount deposited by the petitioner will be refunded to them by the City District Government of Karachi (the successor-in-interest' of K.D.A.) with 5% mark-up from 16- 7-1995 within 30 days from the date of this order.
11. At the same time, however, we feel constrained to deprecate the conduct of public representatives in using public property for political ends and also disapprove the tendency on the part of public officials in ignoring the requirements of law to please their superiors. When the Chief Minister desired summary to be prepared it was the duty of the concerned officers of the Sindh Government to bring to his notice that the allotment could only be effected by the governing body of the K.D.A. After following certain procedures. Again when the Cabinet decision to cancel irregular allotments was communicated to the concerned officers in the K.D.A., K.D.A. Ought to have realized that such cancellation could not be effected through cyclostyled orders but in each case the irregularity had to be identified and the affected persons given a chance to prove the contrary.