' SYED QALB-I-HASSAN SHAH, J.---This is a regular first appeal against the judgment and decree of the learned Civil Judge, Islamabad, dated 29-7-2006 by which the suit of the appellant was dismissed. Brief facts of the case per plaint are that the respondent put to open auction land measuring 62 acres situated near Rawal Lake, Park Road, Islamabad on 14-4-1995. Respondent's highest bid of Rs.5,50,00,000 was accepted vide bid acceptance letter, dated 16-10-1995. The appellant deposited 25% of the premium and other demand of Rs.1,28,75,000 was deposited, as per demand by the respondent vide letter, dated 16-10-1995. A sum of Rs.25,75,000 was also deposited per demand of the respondent. At the time of auction the plot in dispute was under litigation with Gammon Private Ltd., therefore, the allotment letter was not issued, however, with the efforts of the appellant, the pending litigation was withdrawn by the previous lessee and formal letter of allotment was issued in January, 1996. Along with other terms and conditions of the allotment letter the suit-land was to be handed over to the appellant within one month from the date of issuance of allotment letter. The appellant immediately on acceptance of the bid started working on development plan which was duly intimated to the respondent. It revealed that the respondent, despite settlement with previous lessee, was not in possession about 5 acres of the land which was in possession of different persons, therefore, the possession of the same could not be delivered to the appellant. That the respondent could easily evict the strangers from the suit plot but miserably failed to do the needful and violated the terms of allotment letter and possession of the suit plot was delayed on one pretext or the other. In the meanwhile an official of the respondent got registered an F.I.R. Against the ex-Chairman, C.D.A. And the Chairman of the appellant-Company on the ground that during the examination of the record of C.D.A. Certain grave violations of rules and regulations have been committed, therefore, legal action against the concerned officials and major beneficiaries be initiated. The Chairman of the appellant-Company sought quashment of the same through writ petition which was disposed of on the statement of the learned Deputy Attorney General of Pakistan on 22-4-2002. However, on 18-6-1997 the respondent issued a show- cause notice to the appellant that why the land allotted vide letter, dated 28-1-1996 should not be cancelled/withdrawn. The appellant replied to the show-cause notice vide letter, dated 27-6-1997 and explained the entire position that uptill now the respondent has not delivered the possession to the appellant and the appellant is still willing and ready to make the payment subject to delivery of possession but the respondents vide letter, dated 29-7-1997 cancelled the allotment of land. The appellant through his suit sought declaration, permanent injunction, restitution and damages and in the alternative for specific performance, possession and challenged the said show-cause notice as well as the order of cancellation on the ground that the respondents have themselves violated the terms of allotment letter and not delivered the possession for a considerable period despite repeated notices and numerous reminders and thereafter when the appellant learnt about the cancellation through newspaper he in order to show his bona fide as a last resort tendered the balance amount along with delayed charges to the respondent but the respondent with mala fide intention and colourable exercise of the discretion cancelled the allotment of the plot. It was also alleged that the allotment was cancelled by an incompetent person whereas only the Chairman of the respondent has power to allot and cancel the plots and cannot even delegate such powers to any other officers of the authority.
2. The respondent entered appearance and contested the suit mainly on the ground that the appellant has violated the terms of allotment letter and not paid the balance amount in accordance with schedule settled in the allotment letter. The respondent with specific reference to clause 9 of the terms and conditions of the auction submitted that non-delivery of possession of the plot for any reason will not justify non-payment of installments. It was further stated that some encroachment was made by the encroacher and file of the suit plot was taken over by FIA Authorities, therefore, it was decided by the competent authority to pend the handing over of the possession as the matter is still under investigation. It is further added that the appellant has wilfully defaulted in the payment of the balance amount, therefore, the respondents have rightly cancelled the allotment of the plot in accordance with the terms and conditions of the allotment and rules applicable for such allotment.
3. The learned trial Court framed necessary issues and directed the parties to produce evidence in support of their respective contentions. The parties produced oral as well as documentary evidence in support of their respective contentions. The learned trial Court after hearing the arguments of both the sides dismissed the suit of the appellant vide impugned judgment and decree, dated 29-7-2006. The appellant has challenged the validity of judgment and decree passed by the learned trial Court through the instant regular first appeal.
3A. Learned counsel for the appellant contended that the learned trial Court did not apply its judicial mind to the complete facts of the case and confined itself only to the non-payment of the instalment by the appellant without considering that the respondent had itself not fulfilled the conditions of delivering the possession to the appellant but also filed a baseless complaint against the appellant as well as the ex-chairman of the respondent and themselves pended the delivery of the plot in dispute on the ground that the file of the case is taken by FIA Authorities, therefore, delivery of possession cannot be done in the circumstances. The learned counsel agitated that despite sheer violation of the terms and conditions by not delivering the possession to the appellant and moreover unjustified demand of the respondent for delayed charges the appellant as a last resort deposited the entire amount along with delayed charges immediately on learning the news of cancellation of plot but the respondents under the constant mala fide intentions returned the entire amount and cancelled the allotment of the plot in a most haste and illegal manner by an incompetent person in violation of their own Conduct, of Business Regulations, 1985.
The learned counsel contended that the respondents have already condoned the delay of payment in so many cases and even themselves decided vide No. PSO-B-4(10)(CCI)/95/853, dated 28-2-1995 that delayed payment charges will not be demanded in cases where CDA could not hand over possession of he land due to any technical administrative reasons and in this view of the matter the appellant was discriminated while issuing the show-cause notice and consequently cancelling the allotment of the plot. To support his contentions learned counsel for the appellant has relied upon Capital Development Authority v. Mrs. Shaheen Farooq (2007 SCM R 1328); Capital Development Authority v. Zahid Iqbal (PLD 2004 Supreme Court 99); Muhammad Din and others v. Jamal Din and others (2007 SCM R 1091) and unreported judgment in Messrs Essems Hotels (Pvt.) Ltd. v. CDA (Writ Petition No.2816 of 1997) and again an unreported judgment of the Hon'ble Supreme Court in Civil Petition No.887 of 1998.
4. Learned counsel for the respondent vehemently opposed the contentions raised by the learned counsel for the appellant and contended that he appellant has miserably failed to act upon the terms and conditions of the allotment letter and wilfully violated the schedule decided for payment of the balance amount vide allotment letter of January, 1996. Learned counsel for the respondent while referring clauses, 6(ii), 6(iv) and 23 of the brochure argued that in view of the violation of the above said clauses the respondent has legally cancelled the allotment of the plot. Learned counsel further referred the evidence of P.W.2 and argued that the witnesses of the appellant themselves admitted that the appellant has not deposited the amount due from the very inception of the allotment of the plot and violated the terms and conditions of the allotment letter. The learned counsel further added that the allotment was cancelled with the approval of the competent authority, strictly in accordance with the procedure laid down for the cancellation of allotment of plots and prayed for dismissal of the appeal.
5. We have heard the arguments of the learned counsel for the parties and perused the record.
6. The plot was purchased by the appellant through open auction being highest bidder and according to allotment letter more than 50% of the amount was deposited by him. Admittedly the possession was not delivered to the appellant on the ground of encroachment by different persons and litigation between the previous lessee and the respondent. Meanwhile an F.I.R. Was got registered by officials of the respondent against the Chairman of the appellant-Company and ex- Chairman of the respondent and the file of the plot in dispute was taken over by FIA. The appellant placed on record letter, dated 31-5-1997 which reads as follows:- SUBJECT: STOPPAGE OF HANDING OVER OF PHYSICAL POSSESSION TO MESSRS HASHWANI HOTELS LTD. OF LAND MEASURING 62 ACRES (APPROX) FOR DEVELOPMENT OF A NURSERY FLORICULTURE AND ORCHARD ALONG WITH A. MINI GOLF COURSE LOCATED ON THE SOUTH OF PARK ROAD NEAR RAWAL LAKE, ISLAMABAD.
' Please refer to the offer of allotment letter issued by the Dte. Of EM-li to Messrs Hashwani Hotels Ltd. As mentioned under the subject through their letter No. CDA/EM-II(PVC-39)/ 32/95/81, dated 28-1-1996 and the letter of Dy. Director Land Survey Division No.CDA/PLW-RP-1(17) (NPA)/96/104, dated 20-8-1996 relating to handing over of physical possession to Messrs Hashwani Hotels Ltd. Of the above mentioned land.
(2) I have been directed to inform you that since the case of allotment of the above mentioned land to Messrs Hashwani Hotels Ltd. Is presently under investigation by the Federal Investigation Agency (FIA), the Competent Authority has decided to pend the handing over of physical possession to the party till further orders. This direction of the Competent Authority may please be complied with.
7. After passage of only 18 days of the above referred letter the respondents issued notice for cancellation of the plot and consequently on 29th July, 1997 the plot in dispute was cancelled for non-payment of outstanding dues under clause 6(ii) and 12(xiv) of the allotment letter, B dated 23- 1-1996 with the penalty of forfeiture of 10% of the total amount price of the plot. Now admittedly the plot in dispute was cancelled under clauses 6(ii) and 12(xiv) without adverting to the other terms and conditions of the allotment letter. There is no cavil with the proposition that whole of the document has to be read and considered in totality and C the terms pertaining to delivery of possession of the plot and payment of balance premium have to be harmoniously read and the condition regarding the payment of instalments cannot be invoked by the D respondents without first fulfilling the conditions with respect to delivery of actual physical possession. The arguments of the learned counsel for the respondents that under clause 8 of the terms and conditions of the allotment letter the appellant was bound to pay the remaining instalments notwithstanding that the actual possession was delivered to him. Clause 8 of the terms and conditions of the allotment letter reads as under:- POSSESSION OF THE SITE.
(i) Possession of the land shall be handed over by the successful bidder within one month from the date of issue of allotment letter by the CDA failing which possession shall be deemed to have been taken over.
(ii) The correct and final dimension shall be determined on demarcation and actual measurement of the area by the Authority's Surveyor at the time of handing over the possession.
(iii) Prior to giving possession of the site, lease agreement with the CDA shall be executed.
8. Learned counsel for the appellant argued that clause-8 was not meant as argued by the learned counsel for the respondent. The learned counsel submitted that in fact that the said clause was applicable when possession offered by the respondent was not occupied by the appellant but in the present case admittedly the possession was not handed over to the appellant till the issuance of show-cause notice and cancellation of the plot. No doubt the atmosphere of uncertainty prevailing about the title and physical possession of the allotted site, the appellant should not be condemned for non-payment of the balance amount along with delayed charges, however, it is also an admitted fact that the appellant has also deposited the entire balance amount along with delayed charges to the respondent immediately after learning the intentions of cancellation of allotment of plot through newspaper but the respondent has returned the same to the appellant which shows that the respondents are adamant to cancel the allotment of the plot in any event, obviously with mala fide intentions. The learned counsel for the appellant also argued that the cancellation of commercial plots only vests in the Chairman but the plot in dispute was cancelled by Director E.M-.II, thus the cancellation is also without jurisdiction and supported his contention by relying on CDA v. Zahid Iqbal (PLD 2004 SC 99) which reads as follows:-- ' It is the Authority under section 51 of Ordinance XXIII of 1960 which had powers to make regulations to deal with the matters relating to the Authority and in exercise of the said powers, the Authority had made the Conduct of Business Regulations of 1985 according to which Regulation the Estate Management Directorate fell to the share of the Chairman. The learned counsel could not show us any authority vesting in the Chairman either to the Members or to other officers in the Authority in derogation of the distribution of business commanded by a Regulation. In this view of the matter the above noticed Office Order, dated 29-2-1988 issue by the Chairman allocating the business assigned to him to the Member (Administration) was an order without lawful authority.
9. In the light of the dictum laid down by the Hon'ble Supreme Court the cancellation letter issued by Director E.M.-II is also without jurisdiction and lawful authority.
10. In view of above discussion and the factual position after examination of the legal principles it is proved that the plot allotted to the appellant remained under the possession of encroachers. The stand taken by the respondent in their own written statement and different letters placed on the record the respondents had failed to deliver the possession of the plot to the appellant with a clear title and free from encroachments which results in delay in the payment of premium. The appellant as a last option deposited the total amount along with delayed charges although one or two days after the impugned cancellation which mean that the appellant has showed his bona fide in depositing the entire amount along with delayed charges even without getting possession of the plot in dispute. In the circumstances, we are constrained to hold that the respondents cannot impose the delayed payment charges at the first instance, however, when the balance amount along with delayed charges was deposited, the respondents should have considered it, therefore, the impugned order of cancellation of allotment of the plot is declared to be illegal, without lawful authority and of no legal effect. The claim of the appellant for the damages is also not justified because he himself has deposited balance amount along with delayed charges. In consequence it is directed that the appellant shall deposit the balance amount along with delayed charges within 15 days from today. The respondents are directed to deliver the actual possession of the plot clear from all encroachments immediately on deposit of the amount claimed by the respondent vide letter, dated 18-6-1997.
' The appeal is accepted and the judgment and decree of the learned trial Court is set aside with no order as to costs.