KHALID ALI Z. QAZI, J. - This Constitutional Petition has been preferred with the following prayers:->-- "(a) Declare that the impugned letter dated 1st April, 2008, (Annex "J") has been issued by the Respondent without lawful authority and is of no legal effect and .Quash the same.
(b) Prohibit the respondent from directly or indirectly through its officers, subordinates or, employees from taking any adverse action whatsoever against the petitioner.
(c) Grant any other relief which this Hon'ble Court deems just and proper in the circumstances of the case.
(d) Grant costs."
2. The facts diverged from the case Record seems to be that the petitioner was commissioned in the Royal India Navy on 10th October 1941. In the month of April, 1956 the petitioner was transferred as Director Defence Purchase, Ministry of Defence and in the year 1965 while the Petitioner was Member of Managing Committee of the Pakistan Defence Services Officers Co-operative Housing Society (hereinafter referred to as the "Society") was nominated as Honorary Vice-Chairman the Defence Housing Society. The petitioner was allotted an industrial/commercial plot bearing No. 136 measuring 2000 Square Yards in Phase in the said Society vide. Allotment Order bearing Ref. DS/S.S. 1/136, dated 15th February, 1966. Lease-Deed in favour of the. Petitioner was also executed, in respect of the said plot. The petitioner has paid all the premium and ground rent in respect of the said plot up to the year 1979, as is apparent from the Statement of Accounts supplied by the Respondent to the Petitioner, In the year 1980 the Pakistan Defence Officers Co-operative Housing Society Limited was dissolved and the Respondent came into new name D.H.A, by virtue of President's Order No. 7 of 1980.
3. Further case of the petitioner is that the respondent had issued a notice to the Petitioner on 7th October, 2002 stating therein that scrutiny of the records shows that the Petitioner had not raised construction' on the said plot and called upon him to immediately raise the construction after getting the building plan approved. The petitioner being an old person was not in a position to come to Karachi and get the building plan approved and start construction on the said plot, therefore, he decided to sell the property. The petitioner was informed that a sum of Rs. 9,08,660.00 was due against as non-utilization upto the year 2004, which was paid by the petitioner through pay order. On 1.4.2008 the petitioner was shocked to receive a letter from the respondent after forty-two years of the execution of lease in his favour threatening cancellation of the said plot on the following allegations:- "(1) In has been ascertained that while you were serving in D.O.H.S. (now D.H.A.) as Co-opt.
Secretary in 1966, a scheme of sma ll scale industrial plots was approved alongwith a list of applicants to whom plots were allotted In the record no such list of applicants exists to whom plots were allotted. However, the record indicates that you were the beneficiary of four plots.
(2) In view of above and detailed deliberation by the Scrutiny Committee this Show-Cause Notice for cancellation of subject plot is served to you. Please submit your clarification, if any by 20th April, 2008."
4. In reply, In. Co. (Retd.) Najmul Islam Rishi, Secretary of the respondent, has filed detailed counter- affidavit denying the contents made in the memo, of petition. He also challenged the maintainability of this petition on the ground that it involve factual dispute which cannot be resolved in exercise of jurisdiction under Article 199 of the Constitution, as alternate remedy available on the petitioner.
In is submitted that the respondent-Authority has not cancelled the subject Plot No. 136 so far and it was simply a Show-Cause Notice having been issued to the petitioner advising him to clarify his position. The petition is therefore premature and has been filed without any impugned order having been passed by the respondent-Authority. The petition is therefore liable to be dismissed on this ground alone.
5. We have heard Mr, Makhdoom Ali Khan learned counsel for. The petitioner and Mr. Khalid Javed learned counsel for the respondent and perused the material available on record.
6. Mr. Makhdoom Ali Khan learned counsel for the petitioner has' reiterated the same facts as stated in the memo, of petition and has argued that the respondent has no power of authority under the provision of President's Order 7 of 1980 to cancel the .Plot. The impugned letter for the cancellation of the plot has been issued illegally mala fide ultra vires and bad in law. He further argued that the allotment of plot in favour of the petitioner boing a past and closed transaction has attained, finality and it cannot be reopened on imaginary and elusive consideration, as a right accrued in favour of a person cannot be so disturbed and destroyed. He also contended that the impugned letter is void for being repugnant, to the doctrine of Promissory Estoppel and also the respondent has no power or authority' to cancel the lease for 99 years which has been executed in favour of the petitioner prior to President's Order 7 of 1980. In support of his contentions, learned counsel has relied upon the following case:-
(1) 2004 PTD 330 [364(i))];
(2) 2001 PTD 196;
(3) 2003 PTD 2097 (2099);
(4) 1982 PTD 361 (365);
(5) 1990 PTD 356(361);
(6) PLD 1996 Karachi 68 (94);
(7) PLD 1990 SC 399;
(8) PLD 2005 SC 792 (Para-4).
7. Mr. Khalid. Javed, learned counsel for the respondent has argued that the respondent is an Authority having been created by the President's Order No. 7 of 1980, namely the Pakistan Defence Officers' Housing Authority Order, 1980. The President's Order has been published in Gazette of Pakistan, Extra Ordinary Part-1, 9th August, 1980, which provides that there shall be an Executive Board of respondent D.H.A, consisting of Corps Commander posted at Karachi, or if there is none at Karachi, the most Senior serving Armed Forces Officer posted at Karachi, as its President and other members named in Article 5(2) of the President's Order. And Article 5(3) provides that the Executive Board shall exercise all administrative, executive, and financial powers and do all acts and things which may be exercised or done by the authority.
8. Learned counsel has contended that during the scrutiny of the relevant files maintained In the respondent- Authority it transpired that the petitioner while holding important officer(s) as member Managing Committee and Vice Chairman of the then Pakistan Defence Officers'
Cooperative Housing Society Limited in the year 1965 and 1966 has managed to obtain allotments of various plots in the Society in his name as well as in the names of others which were after got transferred in his name by using his influence and. position in the Society being its office- bearer.
He submitted that the Authority asking the petitioner to submit his reply and clarification by 20th April, 2008. However, instead of submitting any reply or clarification or to defend himself against the Show-Cause Notice, the petitioner has rushed to his Hon'ble Court in hasty manner and impugned the said notice. He contended that the respondent- Authority has not cancelled the subject Plot No. 136 so far and it was simply a Show-Cause Notice having been issued to the petitioner advising him to clarify his position. The petition is therefore premature and has been, filed without any impugned order having been passed by the respondent-Authority. Learned counsel further contended that on the basis of an illegal and mala fide allotment order if some decisive steps have been taken in the nature of payments made by an allottee and execution of lease in his favour, the order of allotment would not become irrevocable and a past and closed transaction, He urged that where an order on the basis of which subsequent rights and privileges are claimed, is found to be illegal, void and mala fide, then superstructure by way of rights and privileges would fall to the ground.
9. Mr. Khalid Javed learned counsel for the respondent further submitted that respondent has not violated any Article of the Constitution of 1973 and not violated the principles of natural justice but the petitioner has not come with clean hands and has concealed the material relevant facts from the Hon'ble Court, so that the matter involves questions of facts which cannot properly and justly be adjudicated upon in the Constitutional petition. Hence the petition is not maintainable in law.
The petition is misconceived having been filed on baseless and afterthought grounds as such the same is liable to be dismissed.
10. In support of his contention learned counsel has relied upon the following cases:-- "
(1) 2008 SCMR 611 (614);
(2) PLD 2005 Karachi 188;
(3) 2006 SCMR 178 (181);
(4) PTCL 2001 196 (Para 17);
(5) - 1982. PLC (Service) 01
(6) 1991 SCMR 2434;
(7) 1970 SCMR 158 (169);
(8) 1993 SCMR 2307;
(9) 2002 CLC 953 (960);
(10) 2000 SCMR 317; .
(11) 2001 YLR 1891 (1896);
(12) 1968 SCMR 317 (2);
(13) 2003 MLD 1939;
(14) 1993 SCMR 618;
(15) PLD 1989 SC 360.
11. We have carefully cfone through the record and examined the case-law cited at the bar by the learned counsel for the parties and relevant provisions of laws and the Constitution of Islamic Republic of Pakistan.
12. .In our view following facts are not in dispute:--
(i) A Special Meeting No. 3/66 of Managing Committee of the respondent held on 4.2.1966. The minutes of the meeting are available at pages 145 and 147 of the case file. The said sub-committee was delegated the task of allotments by the Managing Committee as per bye-laws 58 of the Society. A large number of members of the Managing Committee including petitioner on that specific day were allotted plots. None of the these allotments have been cancelled.
(ii) The petitioner was allotted an Industrial/Gommercial Plot bearing No. 136 measuring 2000 Sq.
Yards in Phase-I of the Society vide Allotment Order bearing Ref. No. DS/S.S.I/136, dated;15th February, 1966.
(iii) The President of Pakistan through Military Estate Officer, Karachi Circle as well as respondent D.H.A, on 26.4.1966 executed a Deed of Lease in favour of the petitioner in respect of the said plot vide registered No.. 3889 and Pages 71 to 75, Volume 1548 of Block No. 1 Addl. Dated 29.4.1966 with Sub- Registrar, Karachi which was presented at the office of the District Registrar, Karachi at serial No. 4424 on 28.4.1966.
(iv) The petitioner deposited all the dues of D.H.A, by a Pay Order in the sum of Rs. 9,08,660/- up the year 2004.
(v) The respondent issued the impugned Show- Cause Notice dated 1.4.2008 for the - cancellation of Plot Nq. 136, Phase-I, measuring 2135 Sq. Yards, D.H.A., Karachi, wherein it was alleged as under:--
(a) The petitioner was serving in D.O.H.S. (now D.H.A.) as Co-opt. Secretary in 1966.
(b) In the record no such list of applicants - exists to whom plots were allotted.
(c) The petitioner was beneficiary of four plot.
(vi) In 1966 Captain U.A. .Saied was the Honorary Secretary of the Society and not the petitioner. He was member of-the Managing Committee of Society.
(vii) List of applicants/name of allottees is available at page 147 of the case file.
(viii) No details of 4 plots have been mentioned in the impugned Show-Cause Notice. No specific ,allegation has been mentioned in the impugned Show-Cause Notice.
(ix) No contravention of the bye-laws or resolution ./of the Managing Committee has been mentioned in the impugned Show-Cause Notice as required under Provision (i) of Article 17(h) of the President's Order No. 7 of 1980 which reads:-- "Provided that the Executive Board may:---
(i) 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."
(x) Major General Muzaffaruddin was a member of respondent since 9.8.1964 and was allotted Industrial/Commercial Plot No. 135 measuring 610 Sq. Yards approximately Phase-I, D.H.A., Karachi on 4.2.1966 and it was transferred to the petitioner on 27.6.1970 when the petitioner was not the office-bearer or member of. Managing Committee of the respondent's Society.
(xi) The Society allotted the Plot No. 137' Khayaban-e-Sehar measuring 2O0O Sq. Yards D. H.A, to Captain Naveed Alam Khan. on 28.6.1970 when the petitioner was not the office-bearer or member of the Managing Committee of the Society. The said plot was transferred by the Society in the name of petitioner on 14.10.1970.
(xii) On 4.8.1966 Plot No. 5-A National Highway, D.H.A, measuring 2135 Sq. Yards originally allotted to The petitioner was transferred in the name of Mrs. Nusrat Maqbool wife of petitioner as per decision of the Managing Committee in its meeting held on 5.8.1966.
13. In Pakistan Defence Housing Authority, Karachi v. Shamim Khan through LRs. and others (PLD 2005 SC 792) a Full Bench of Hon'ble Supreme Court has held that Authority did not enjoy unlimited power of cancellation of allotment made by the Society rather such power was confined only to the extent of allotments which were made in contravention of the bye-laws of the Society, It was further held by Hon'ble Supreme Court that Article 17(h) of Pakistan Defence Officers Housing Authority Order, 1980, (P.O. No. 7 of 1980), provide that all allotments and transfers of plots, whether residential, commercial or otherwise, made by the Society before its dissolution shall be deemed to be allotments and transfers made by the Authority. The dictum, of law laid down by Hon'ble Supreme Court is fully applicable on,the present case.
14. The Division Bench judgment of Hon'ble Supreme Court in Mustafa Lakhani's case (2008 SCMR 611) is not applicable in present case as the facts of Mustafa Lakhani's case different as much as in supra case that no meeting of Managing Committee was held on 13.4.1976, therefore, the entire process of allotment of the plot in dispute and its subsequent payment and execution of "A" lease in favour of the Mustafa Lakhani was without legal and lawful authority while in present case-the meeting of Special Committee No, 3/66 was held on 4th February, 1966 and none of the allotments were cancelled.
15. In view of the undisputed position that the allotment in favour of the petitioner in 1966 by the then Managing Committee of the Pakistan Defence Officers Housing Authority and execution of lease-deed dated 26.4.1966 by the President of Pakistan through Military Estate Officer, Karachi as well as Pakistan Defence Officers Housing Society Limited, were never challenged by anyone and respondent never called the allotment of-the said plot in favour of petitioner as illegal therefore at this belated stage, after forty years it cannot be cancelled. The issuance of impugned notice dated 1.4.2008 seems to be without any basis and without any legal jurisdiction.
16. Arguments advanced by Mr, Makhdoom Ali Khan learned counsel for the petitioner from the record seems to be correct. The respondent till 31.3.2008 $d not commit any illegality which would have warranted interference with the decision of then Committee in their meeting held on 4.2.1966.
In view of the above, the decision to issue a show-cause notice dated 1.4.2008 calling upon the petitioner to show-cause as to why allotment order in his favour be not cancelled was a change of view or mind in grave violation of the Article 17(h) Of Pakistan Defence Officers Housing Authority Order, 1980, (P.O, No. 7 of 1980) which provides that all allotments and transfers of plots, whether residential, commercial or otherwise, made by the Society before its dissolution shall be deemed to be allotments and transfers made by the Authority. The decision of Special Committee No. 3/66 of Managing Committee dated 4.2.1966 was neither erroneous nor was prejudicial to the interest of the Society. The issuance of show-cause notice dated 1st April, 2008 on the basis Of change of view or mind would not be a valid and proper notice. The show- cause notice dated 1,4.2008 on the facts that circumstances of the case was without lawful authority and was void.
17. On behalf of respondent the maintainability of this Constitutional Petition was vehemently assailed on the. ground that the petitioner could not have invoked the Constitutional jurisdiction of this Court as the impugned notice was merely as show-cause, notice which did not violate any fundamental or vested right of the petitioner resulting in. legal loss which were essential condition for having recourse to Article 199 of the Constitution of Islamic Republic of Pakistan, It was submitted by Mr. Khalid Jawed that proper course for the petitioner was to have waited for a decision/order in pursuance of the show-cause notice and. to have assailed the same in accordance with the law. This contention advanced by Mr. Khalid Jawed on behalf of the respondent is without any substance in view of the pronouncement made by the Hon'ble Supreme Court in large number of cases to the effect that if the order or action complained of was so patently illegal, void or wanting in jurisdiction that any further recourse to alternate remedy may only be counter-productive and by invoking of Article 199 the mischief could forthwith be nipped in the bud then in such matters existence of alternate remedy would. not bar .the exercise Of Constitutional Jurisdiction by this Court. Relaince may be placed (i) 1999 SCMR 1881 ;'(ii) 1999 SGMR 1072; (iii) 1993 SCMR 1778; and (iv) PLD 1990 SC 399.
18. Upon the above discussion and for the foregoing reasons, we find that this Constitutional petition carries weight and merits consideration. Accordingly, we allowed this Constitutional Petition with no order as to costs.
19. Foregoing are the reasons for our short order dated 21.8.2008.