' SYED YAHYA ZAHID GILANI, J.---This revision petition brings in question judgment and decree dated 25-2-2005 passed by Civil Judge, Oghi, whereby Suit No,68/1 of 1992 filed by Shams-ur-Rehman petitioner was dismissed and his Appeal No,7/13 of 2005 was also dismissed by learned Additional District Judge-IV, Mansehra on 25-6-2007.
2. The plaintiff/petitioner had instituted suit for declaration to the effect that a plot/Adda situated in new Darband Township had been allotted to him vide Order No,1621-22/HVC dated 7-10-1991 on payment of Rs,1058/82 by the Chairman Allotment Committee / Deputy Commissioner, Mansehra and thereby he became allottee / owner in possession of the plot being Tarbela Dam affectee.
Subsequent order passed by Deputy Commissioner, Mansehra bearing No,1383-87 of 21-12-1992 for cancellatiOn of the allotment was illegal, without lawful authority, based on malice, against the principles of natural justice, fair play and good conscious. It is not binding on the plaintiff. He also prayed to restrain the concerned authority from issuing licence permit to any other person for leasing out the plot to run the Adda thereon.
3. Another connected Suit bearing No,249/1 titled Aziz-ur-Rehman v. Deputy Commissioner was also pending and it was ordered on 29-7-1992 in the order sheet No,11 of this case that the plaintiff in both the suits be arrayed as defendant in the counter-case. As such amended plaint was filed impleading the plaintiff of Suit No,249/1 as defendant in the present case. It is pertinent to mention here that the newly-added defendant Aziz-ur-Rehman was the rival claimant but Shams-ur- Rehman petitioner and the rival claimant Aziz-ur-Rehman entered into compromise during the proceedings of a commission appointed by the Court and joined hands to combine their efforts to protect the possession of the plot/Adda for their common interest. In this respect copy of report of commission Exh.P.W.2/D2 and the joint statement Exh.PW2/D1 are on file.
4. The suit was hotly contested by the TMA Oghi and other official defendant/respondents. After recording evidence of the parties, the suit was dismissed by deciding all the issues against the petitioner, inter alia, holding that the initial allotment of the plot in favour of plaintiff petitioner by.
Deputy Commissioner. Mansehra was without jurisdiction and it was rightly cancelled by him.
' The Court of appeal confirmed the aforesaid finding of learned trial Court also took the view that the allotment was in the shape of a license which could be revoked by the Licensing Authority.
5. I have heard Mr. Abdul Latif Khan Advocate for the petitioner and Abbas Khan learned DAG for respondents Nos.1 and 2 while going through record with their assistance.
6. Learned counsel for the petitioner raised the following points for consideration:--
(i) the findings of both the Courts below are not concurrent because their reasons for a similar decision, are dissimilar;
(ii) the Deputy Commissioner was duly empowered and the allotment vide Order No,551/54 dated 20-6-1986 could not legally be cancelled because there under specific rights of the plaintiff/petitioner had accrued;
(iii) the Deputy Commissioner could not recall the aforesaid order without notice;
(iv) the Deputy Commissioner could not widthdraw its allotment, being delegatee of power of allotment;
(v) that both the Courts below have not given findings on all relevant disputed matters;
(vi) the Court of appeal was presided over by Syed Kamal Hussain Shah Additional District Judge- IV, Mansehra, who had partially tried the suit as Senior Civil Judge, Mansehra and passed effective orders, besides normal proceedings. So the propriety demands that the appeal should not have been decided by him;
(vii) both the Courts below have decided the case on technical grounds, ignoring the evidence and related documents available on record and, hence, substantial justice was not done.
7. The learned DAG endeavoured to protect the impugned judgment by submitting that the initial order of Deputy Commissioner dated 2-6-1986 whereby the plot was allotted to petitioner was without jurisdiction and unlawful. It was rightly cancelled and both the Courts below have correctly applied the law while dismissing the suit. He referred to the judgments which have already been quoted by the learned Court of appeal which are reported in PLD 1965 SC 83 & PLD 1997 SC 342.
8. There is no dispute on the fact that a plot measuring 120' x 60' was earmarked in the residential colony of Tarbela Dam affectees for establishing a "vehicle stand" thereon, for public convenience.
The whole colony was under the control and management of Chief Engineering (AC & R), Tarbela Dam Project and for the purpose of allotment of plots a committee headed by Deputy Commissioner, Mansehra was constituted.
9. The initial allotment committee was dissolved, as referred in Deputy Director Admin. Tarbela Dam Project's letter No,17661/91-4349 dated 8-8-1991 addressed to Deputy Collector, Mansehra. It is mentioned in the same letter that a new committee has been constituted vide letter No,5551/54 dated 2-6-1986. This letter is also available on record and it is pertinent to mention specifically that this committee chaired by the Deputy Commissioner, Hazara Division under the cover of letter No,5551/54 dated 2-6-1986 was constituted for the allotment of residential plots only.
10. Despite the clear mandate, the allotment committee chaired by Deputy Commissioner, Mansehra vide his letter copy Exh.P.W.5/2 bearing No,1621-22 dated 7-12-1991 allotted the disputed plot to petitioner which was not residential but a commercial plot. Before' proceedings ahead, it shall have to be kept in mind that this allotment was not a sale, permanently involving transfer to title. The allotment order itself speaks of the condition that the plot or its part will not be sold/transferred/leased out to any person else for gaining financial benefits and the violation of these conditions would make the allotment liable to cancellation.
11. Thereafter the impugned cancellation of the allotment arrived through the letter of Deputy Commissioner, Mansehra bearing No,13832-87 dated 21-12-1992 (Exh.P.W.2/3). The copy of the letter is reproduced below for ready reference, keeping in view its immense importance:-- "(i). Whereas plot nieasurhig 120 ft x 60 ft situated at New Darband Township was allotted vide this office order No,1621- 22/KHVC, dated 7-10-1991 to Shams-ur-Rehman son of Habibur Rehman resident of New Darband at the cost of Rs,1058.82.
(ii) Whereas the said plot was specified for. Bus Stand by TDRO in lieu of previous Bus Stand at old Darband sank in Tarbela Dam.
(iii) Whereas the plot in question is belonged to Union Council Darband as representative of Local Govt. Department, Union Council Darband accrue its annual incomes.
(iv) Whereas the plot is not meant for resettlement and is property of local department, thus its allotment is illegal, in other words a Government Department had been deprived of its valuable property, which has resulted- in un-necessary litigation.
(v) Whereas the allottee was served with notice vide Endst: No,4608, dated 14-11-1991, giving him a period of 15 days to file written statement in case he wants to say something with regard to cancellation of plot. But despite of lapse of 37 days the allottee has failed to file any representation.
(vi) Now, therefore, I Murtaza Khan, Deputy Commissioner, Mansehra/Collector, do hereby cancel the allotment order of the said plot bearing Endst: No,1621-22/HVC, dated 7-12-1991. The plot is restored to Local Government Department."
' It was this letter which aggrieved the plaintiff/petitioner and he wanted it to be declared illegal and ineffective but the trial as well as appellate Courts declined, as I have referred above.
12. Learned counsel for the petitioner had raised the point that the A findings of learned lower Courts are not concurrent in the sense that they 1 have given different reasons for holding this letter valid and effective. Record reveals that learned trial Court held in accordance with law on the ground that the initial allotment of the plot by the Deputy Commissioner order dated 7-10-1991 in favour of plaintiff / petitioner was without jurisdiction because he being Chairman of the allotment committee for allotment of only residential plots, had no jurisdiction to allot a commercial plot, therefore, he could recall his illegal and without jurisdiction order through the subsequent order dated 21-12-1992. (quoted above) and it is valid.
13. Learned appellate Court subscribing the same view, further added that besides the aforesaid reasons, the grant was in fact license and the license could be revoked through the impugned order dated 21-12-1992.
14. I do not agree with the proposition of learned counsel for the petitioner that these are not concurrent findings. Learned appellate Court had not disagreed with the findings of trial Court and further augmented it, discussing the same from another angle.
15. Before I express my view about the legality of the initial allotment of Deputy Commissioner dated 7-10-1991, it is pertinent to repeat that the allotment committee headed by the Deputy Commissioner had the mandate to transfer only residential plots to the affectees of Tarbela Dam Project related to Kala Dhaka area. It was beyond his mandate to allot the petitioner a commercial plot to run a Bus Stand, hence, there is no doubt that the allotment order dated 7-10-1991 passed in favour of petitioner was an order without jurisdiction and consequently illegal.
16. The objection of learned counsel for the petitioner was that his client deposited the required fee and started running the Bus Stand for Commercial purpose, hence the order could not be recalled by the Deputy Commissioner on three scores:-- (1). Whether it was allotment, grant or licence, it could not be revoked because the property has been transferred to plaintiff/petitioner after deposit of Rs,1058/82 demanded as sale proceeds, followed by the transfer of possession and execution of work.
(2). The Deputy Commissioner was a delegatee of the power of allotment, and as such he could not cancel the plot, after allotment.
(3). The allotment could not be cancelled without notice.
17. I have contemplated over above noted three points wherein the first point relates to the doctrine of locus poenitentiae, i,e, "the power of receding an action till a decisive step in taken". This principle is attracted when at the base of it is a valid and legal order, passed without any jurisdictional error, and that is not the case herein. As I have mentioned above the initial allotment in favour of petitioner was void ab initio being without jurisdiction because the Deputy Commissioner being Chairman of the allotment committee was not authorized to allot a commercial plot, and the disputed plot is undoubtedly a commercial plot to run a Bus Stand. So, legally, an unlawful and without jurisdiction order can be at any time recalled, withdrawn or revoked by the same authority that had passed the order. To support this view ample authorities are available in the case law.
Honourable the apex Court has held in the case "The Engineer-in-Chief Branch v. Jalal-ud-Din" reported in PLD 1972 SC 207(c) that "locus poenitentiae" is the power of receding till a decisive step is taken but it is not a principle of law that the order once passed becomes irrevocable and it is a past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order.
18. In another case titled "Abdul Haque Indhar v. Province of Sindh" decided by Honourable apex Court as reported in 2000 SCMR at page 907 (b) & (c) the above mentioned rule was reiterated with clear words that if the order is illegal, then perpetual rights cannot be gained on the basis of such an illegal order. It has further been held in this case that the principle of natural justice enshrined as maxim "audi alteram partem" is always available but it is not of so universal nature to be availed to a person having no vested right to defend the action. In case a claimant has no basis or entitlement in his favour, he would not be entitled to protection of this principle of natural justice.
This point has been elaborately explained in the following passage of the judgment:-- "It may be noted that his Lordship Mr. Justice Ajmal Mian (as he then was) has concluded that principle of audit alteram partem" is to be read into the relevant provision if the action is to affect any vested right of a person. Further, adding to these reasons we would observe that if this rider is not placed for applying the principle of "audi alteram partem" then in certain cases where the law demands that action must be taken promptly shall defeat the ends of justice and there is very likelihood that the object is required to be achieved by an immediate action shall not be accomplished and in the meanwhile a person who has no vested right shall continue to enjoy the benefits of the deeds without any-legal entitlement."
In view of the above mentioned clear dictums, the plea of learned counsel for the petitioner that the allotment to his client could not be cancelled as delegatee and that too without notice, looses force and dashes down.
19. Another authority in this regard is available in the judgment of this Court in the case "Shah Nawaz v. Umar Daraz" reported in 1999 CLC at page 1883 (c). It holds that if a wrong or unwarranted order is passed due to any fallacy of fact, misrepresentation or misreading of any document or due to any other vitiating factor, same could be corrected by the same authority.
20. In the light of above discussed law and the factual situation in which Deputy Commissioner.
Mansehra withdrew the allotment and his this act was not illegal. Rather, the illegal allotment was cancelled to rectify a fault and since no vested legal right of petitioner was affected he was not entitled to any notice. However, if the petitioner believed that he has sustained any loss he may, if so advised, seek his remedy by asking compensation for the damages, as indicated in the case reported in PLD 1965 SC 83 (d), if so advised.
21. I do not find any substance in the plea of learned counsel for the petitioner that all the relevant points involved in the case were not decided by the lower forums because both the judgments of trial and appellant Courts are speaking judgments and they cover the material issues framed in the case.
22. It was also agitated that the Presiding Officer of the appellate Court had remained Presiding Officer of the trial Court for a short period during which he passed effective orders and for that reason he should not have heard and decided the appeal.
23. I have gone through the record of trial Court and found that Syed Kamal Hussain Shah remained seized of the case in trial Court from 20-9-2003 till 14-6-2004 and then the case was transferred to Civil Judge, Oghi. In his period Syed Kamal Hussain Shah passed an order on 14-10- 2003 vide which ex parte proceedings were set aside against few defendants and some parties were deleted and added. In the next order dated 14-6-2004 he simply sent the record to learned District Judge, Mansebra for transferring the case to Civil Judge, Oghi.
24. Both these orders do not involve disposal of any issue touching the substantial rights of the parties and fundamental disputes relating to the main controversial points pending for adjudication, therefore, no prejudice has been caused to the petitioner by dismissal of appeal by Syed Kamal Hussain Shah as appellate Court.
25. In normal course, a Presiding Officer who remained seized of a case in trial Court should shun from deciding the appeal when it comes before him at a subsequent stage because no room for any objection should be created by the Court itself. But, when it has already been done like in the present case, it would be seen by the higher forum that the act has, for any reason and in any manner, prejudiced the aggrieved party or not? In absence of any prejudice to the complaining party, the objection can be ignored and the objected order shall not vitiate.
26. An objection based on doctrine of lis pendens was mentioned in the revision petition, but is was not pressed in arguments by learned counsel for the petitioner.
27. Consequent upon above discussion I conclude that neither there is any misreading or non- reading of evidence, nor incorrect appreciation of law, nor jurisdictional error or any material irregularity, which could justify interference of this Court in the impugned orders. Hence, the revision petition is found without force, which is dismissed with costs.