' RANA BHAGWANDAS, J.--- Petitioner-Defence Housing Authority is aggrieved by judgment dated 11-11-2003 passed by a Division Bench of the Sindh High Court allowing respondent's writ petition seeking a declaration that cancellation order dated 4-1-2000 of the latter's commercial Plot No,79- C, measuring 100 square yard, Khayaban-e-Shaheen Phase-VIII, Defence Housing Authority,'
Karachi (hereinafter referred to as the Authority) by the petitioner was illegal, ultra wires, void and of no legal effect with a direction for restoration of the allotment.
2. Precise facts of the case leading to this petition appear to be that the respondent was an officer of Pakistan Military Accounts Services, Ministry of Defence since 1951. He was being paid from Defence budget/estimates and, in such capacity, acquired membership of Defence Officers Cooperative Housing Society Limited sometimes in 1971. As per his entitlement, he was allotted residential Plot No,61, 7th Street, in Phase-V, Defence Housing Authority vide allotment order dated 7-7-1976 by the Society and the disputed plot of commercial nature vide allotment letter dated 19- 2-1982 by petitioner-Authority. It may be pertinent to observe that vide President's Order No,7 of 1980, published in the extraordinary Gazette of Pakistan dated 9-8-1980, the petitioner-Authority was established under section 4 of the Pakistan Defence Officers' Cooperative Housing Authority Order, 1980, which has been given overriding effect, notwithstanding anything contained in any other law for the time being in force or the Memorandum and Article of Association of the Society or of the Defence. Society's Educational Foundation. It may not be out of context to notice that vide Article 17 of this Order, the Society, the Executive Committee of the Club and the foundation together with its Board of Governors stood dissolved and upon such dissolution all assets, rights, powers and properties etc. Were to be transferred and vested in the Authority. Furthermore, all contracts and agreements entered into, all rights acquired and all matters and things engaged to be done by, with or for the Society, Club or Foundation before such dissolution shall be deemed to have been entered into, acquired or engaged to be done by, with or for the Authority. Clause (h) of this Article stipulates that all allotments and transfers of plots, whether residential, commercial or otherwise, made by the Society before such dissolution shall be deemed to be allotments and transfers made by the Authority. However, there is a rider clause empowering the Authority to cancel such allotments, which were made or issued in contravention of the bye-laws of the Society or the resolution of the Managing Committee of the Society. The allotment of residential plot in favor of the respondent was followed by execution of a sub-lease and remains intact. However, after expiry of 18 years, vide show-cause notice, dated 12-2-1999, the respondent was called upon to show cause as to why the allotment of commercial plot in his favor be not cancelled as the same was allotted in contravention of the bye-laws of Authority because he was not eligible to become a member being not paid from defence budget/estimates. Respondent resisted the notice pleading to be a bona fide member of erstwhile Society since, 1971 and allottee of a commercial plot in his own rights for which he had applied way back in 1976 and made payment of such plot before the creation of the Authority, though actual allotment of such plot matured vide Authority's letter dated 18-8-1981 whereby it was notified that he was allotted this plot in ballot and called upon to make payment of remaining dues amounting to Rs,1210 so that proper allotment order be issued in his favor. Petitioner authority, however, did not feel satisfied with the stance of the respondent and cancelled the allotment of the commercial plot vide letter, dated 4-1-2000.
Respondent represented against the cancellation of his allotment but without any success, therefore, he was obliged to invoke the constitutional jurisdiction of the High Court.
3. Petitioner-Authority in its parawise comments admitted the factum of membership of the respondent, allotment of residential as well as commercial plots in his favor with the exception that allotment of commercial plot was made in contravention of the bye-laws of the Authority because at the relevant time, he was serving as Chairman, P.I.D.C. And, thus, was not entitled for allotment. It was urged that he was not being paid from Defence estimates at the time of allotment, therefore, his case was placed before the scrutiny committee and, after the service of a show-cause notice, Executive Board decided to cancel the allotment in exercise of the power and authority for cancellation of the plot in favor of the respondent derived from Article 17(h)(i) of the President's Order 7 of 1980.' On facts, it was stated that the question of eligibility of respondent escaped notice of Authority while processing his case for allotment of commercial plot, which did not attain finality, the act of allotment being void and without jurisdiction.
4. Upon hearing learned counsel for the parties a Division Bench of the Sindh High Court allowed the writ petition and declared the act of cancellation of allotment commercial plot of the respondent as without lawful authority and of no legal effect, hence this petition.
5. We have heard learned counsel for the petitioner at great length while the respondent has advanced his submissions in person. It is not disputed that the petitioner, while serving in Military Accounts Service, being paid from defence budget/estimates was enrolled as member of the erstwhile Society way back in 1971 and as such was entitled to allotment of a residential as well as commercial plot as per bye-laws of the Society. Undisputedly, a residential plot measuring 1000 square yards was allotted in his favor, which was followed by execution of a sublease. As per consistent practice and policy of erstwhile Society, the respondent applied for allotment of a commercial plot measuring 100 square yards vide application dated 12-10-1976 with remittance of Rs,3,100 towards the cost of the plot. He repeated his application with remittance of similar amount on 5-5-1977 whereupon he was informed vide Society's Director Administration letter dated 7-5- 1979 that a member was entitled to ask for one residential and one commercial plot only whereas he had applied twice and remitted the amount of advance deposited two times. Respondent states that it was through bona fide error and inadvertence that he applied twice and remitted dual payment, one of which was refunded to him by the Society.
6. Adverting to the proviso to Article 17 of the President's Order No,7 of 1980, it may be pertinent to note that the proviso no doubt authorises Executive Board of the Authority to cancel allotment of a plot, which was made or issued in contravention of the bye-laws of the Society or resolution of the Managing Committee of the Society. Evidently, the petitioner failed to point out such contravention in the matter of allotment of commercial plot in favor of the respondent as admittedly commercial plot was allotted to him in consonance with the Regulations of the Authority and as a member duly enrolled with the Authority on account of his old membership with the erstwhile Society irrespective of the fact that at the time of actual allotment he was no longer working in Military Accounts Service and was posted by the Federal Government as Chairman, P.I.D.C. Since the membership of the respondent stood intact, there was hardly any question of cancellation of his allotment. A valuable right and interest had already accrued in his favor and he did not cease to be the member of the Authority, as wrongly and erroneously misunderstood by the officials of the Authority. Indeed the allotment of commercial plot in his favor, after full payment had attained finality. It being a past and closed transaction could not be reopened on imaginary and elusive consideration that at the time of allotment, he was not physically serving in Military Accounts Service and not receiving his emoluments from Defence budget/estimates. In law, right accrued in favor of a person cannot be disturbed and destroyed by subsequent developments and once a person continues to be a lawful member of a Society or the Authority, he does not lose his right and interest in the property already accrued to him. Indeed there was no contravention of the bye-laws of the Society or the resolution of the Managing Committee because the allotment in favor of the respondent took place long after the creation of the petitioner-Authority in normal course of business in a fair and transparent manner. Such allotment had the blessings of Executive Committee and doctrine of Promissory estoppel would be pressed into service against the petitioner-Authority.
7. Colburable exercise of power on the part of the Executive Board, therefore, suffers from patent illegality and was rightly declared as such by the High Court in the exercise of, its constitutional jurisdiction. In our considered opinion, the jurisdiction exercised by the High Court within the contemplation of Article 199 of the Constitution does not suffer from any legal or factual infirmity so as to warrant interference by this Court in the exercise of extraordinary constitutional jurisdiction. In any event, no question of law of public importance is spelt out in the circumstances. Resultantly, we are constrained to dismiss this petition with no order as to costs. Leave to appeal is, therefore, declined.