' SHAHID ANWAR BAJWA, J.---The facts as stated in the Petition No,D-723 of 2008 are that respondent No,1, Taluka Nazim, Taluka Municipal Administration Larkana, published auction notices through various newspapers for disposal of various plots through open auction. It is stated that the notices were also announced through beating of drums and loudspeakers as well as through pamphlets. Detailed conditions were laid down in the notices. The petitioners were allotted plots as they were successful in auctions. Thereafter advertisement was printed in daily "Jawish" Hyderabad on 20-10-2008 whereby auction/ allotment in Old Bus-stand Housing Colony and Sachal Sarmast Township Scheme, Larkana was cancelled. The Constitutional Petition No,723 of 2008 was filed to challenge such cancellation. On 5-11-2008 this Court passed an order directing that status qua be maintained in that petition. After order dated 5-11-2008 was passed, on 10-10-2009 an office order was issued by Taluka Nazim withdrawing the notice of cancellation. In view of such withdrawal of notice of cancellation, learned counsel for the petitioner in C.P. No, D-723 of 2008 applied for permission to withdraw the petition. In the meanwhile an application under Order I Rule 10, C.P.C. i,e, M.A. No,2240 of 2009 was filed by one Yasir Hussain Junejo. It was stated in that application that allotment of plot was ordered by said Yasin Hussain Junejo while he was holding charge of Taluka Nazim and Mr. Qurban Ali Abbasi, who later on took over as Taluka Nazim, disposed of the plots illegally in flagrant violation of the relevant rules and Government Policy and had therefore, with mala fide intentions issued order dated 10-10-2009 thereby withdrawing the cancellation order.
' Contempt of Court application was also filed wherein it was pleaded that since this Court had ordered maintenance of status quo vide order dated 5-11-2009 order dated 10-10-2009 withdrawing the cancellation order amounted to contempt of this Court. We do not agree with this contention because order dated 5-11-2008 was on the basis that the cancellation was illegal and it was ordered that status quo be maintained. Therefore, if cancellation was subsequently withdrawn it could not amount to disobedience of status quo order.
' The facts of C.P. No,D 724/2008 are also almost identical to C.P. No,D-723 of 2008 except that while in C.P. No, D-723 of 2008 the auction proceed amount had not been received by T.M.A. And in C.P.No,D-724 of 2008 such amount had been received by T.M.A. From the petitioners.
' In C.P. No,D-502 of 2007, the facts are almost similar except neither the proceed amount has been received nor the possession has been delivered. It is pointed out that even in C.P. No,D-723 of 2008 the possession has not yet been delivered.
' In C.P. No,D-572 of 2007, it is prayed that auction/disposal of amenity plots reserved for establishment of schools and other public purposes be declared as null and void. It is however, noticed at this stage that no specific order of allotment of plot has been impugned in this particular petition.
' Mr. Imtiaz Ahmed Bhatti, learned Advocate for intervener in C.P.No,D-723 of 2008 refereed to Sindh Local Government Contract Rules, 2001 and to Column No,2 of its First Schedule. He submitted that in respect of any immovable property jurisdiction of the Nazim is to the extent of Rs,1 Million and it is Town Municipal Administration Council only which can approve disposal/lease of any property with value in excess of Rs,1 Million. In this regard he referred to Rule 10(3) of ibid Rules where it is stated that on the completion of the contract the authority shall record a survey to that effect and if the contract was made with the approval of the Council, the report regarding completion shall be submitted to the Council. Learned counsel also submitted that there was ban imposed by the Chief Minister therefore, disposal of plots during period of ban is without lawful authority and is of no legal effect. In this regard he relied upon case of Syed Ghulam Mustafa and others v. Province of Sindh and others, 2005 CLC 931.
' Mr. Muhammad Ashiq Dhamrah, Advocate for the respondent No,2 Taluka Municipal Administration referred to section 124 of the Sindh Local Government Ordinance and contended that various designated authorities of the Taluka Municipal Administration and the Council are authorized to dispose of the properties in accordance with sections 124 and 125 of the Sindh Local Government Ordinance, 2001. Learned counsel referred to letter dated 29-10-2007 issued by the Sub-Registrar Larkana whereby the Sub-Registrar communicated the schedule, for auction of the plots in each of the localities. Thereafter learned counsel referred to various newspapers clippings to contend that the notice was duly published in newspapers as well as given wide circulation through pamphlets, since learned counsel for the intervener had contended that the publication of notice except through Public Information Department would be in violation of the policy of the Government. Learned counsel for Taluka Municipal Administration submitted copy of the letter dated 8-9-2007 whereby the Director Information of Information Department had returned requisition as well as cheque for Rs,40,000 for publication of the notice on the ground that there were some dues payable by the TMA to the Information Department. Learned counsel submitted that in presence of such refusal of by the Information Department, the TMA was justified in directly advertising in the newspapers.
' Regarding ban, learned counsel submits that firstly the ban has no legal effect as first there is no statutory provisions contained in sections 124 and 125 of the Sindh Local Government Ordinance, 2001 and secondly he placed on record the newspapers containing advertisements placed by various City Government and Development Authority for sale through public auction. Learned counsel also in this regard referred to letter dated 26-6-2003 issued by the Section Officer, Local Government Department, Government of Sindh stating that since section 124 of the Sindh Local Government Ordinance, 2001 provides that all properties of the Local Government will be used for public purposes and may also be disposed of through public auction therefore, in future no such reference should be moved for relaxation of ban. Learned counsel also referred to a draft resolution wherein it is stated that all these auctions be approved by the Local Council. However, learned counsel was candid in saying that so far this resolution has neither been adopted nor rejected by the Local Council so far. Learned Counsel further submitted that in many cases where the plots have been handed over, buildings have been made and investments have taken place and therefore, it would not be in public interest to undo all that. Learned counsel for the petitioners submitted that it is settled law that no adverse action can be taken against any person without affording him opportunity of being heard. He further submitted that no show-cause notice was issued before ordering cancellation. However, he hastened to add that since order of cancellation of plots has been withdrawn, his grievance has been redressed and he does not press his petition.
As far as publication in the newspapers through Public Information Department is concerned, learned counsel referred to Rule 6 of Sindh Local Government Contract Rules 2001 and submitted that there is no provision whatsoever in the rules that notice in every case be placed through Public Information Department.
' Learned A.A.G. Submitted that Town Municipal Administration at least as far as plots, whose value was in excess of Rs,1 Million are concerned placed a cart before horse in that it advertised and issued allotment orders without getting approval from the Council. Learned A.A.G. Further submitted that it is now well settled law that an amenity plot cannot be converted into any commercial or residential purpose and any such conversion would be without lawful authority and of no legal effect. He however, stated that in the case where vested rights have been created, a show cause notice must have been issued before cancelling allotment.
' Mr. Habibullah G. Ghouri, learned counsel for the petitioner in Constitutional Petition No,572 of 2007 submitted his prayer is that any allotment of an amenity plot for the purpose other than for the purpose of amenity is liable to be cancelled. Mr. Ghouri relied upon judgment of this Court in M.A.
Hamid Ali Bukhsh v. City Governments and others PLD 2003 Karachi 162.
' Mr. Muhammad Ashiq Dhamrah, learned counsel for TMA at the end submitted that the Municipal Administration is prepared to give an alternate amenity plot in place of plot which has been allotted to some of the petitioners.
'We have considered submissions made by the learned counsel and have gone through the record as well as the case law. First contention of the learned counsel for the intervener was that auction/notices of allotment took place when there was a ban placed by the Provincial Government. He in his regard referred to letter dated 27-8-1997 issued by Deputy Secretary Co- ordination. The letter referred to a directive given by the Chief Minister Sindh in reviewing allotment of various categories, leases etc. Made in violation of the prescribed policies/rules and placed ban imposed by the Chief Minister Sindh for allowing/vacating any transfer/mutation lease or charge of title in any way. Sections 124 and 125 of the Sindh Local Government Ordinance 2001 provide as follows:
124. Use and disposal of properties of local governments.---(1) Immovable properties of local governments shall, subject to section 125, not be sold or permanently alienated: Provided that such properties may be given on lease through competitive bidding by public auction.
(3) The movable properly of a local Government which is required to be disposed of, shall be sold through competitive bidding by public auction.
(4) All articles declared unserviceable shall be disposed of through competitive bidding by public auction.
125. Acquisition of immovable property.---Whenever any local government considers it necessary or expedient it may acquire or purchase any immovable property for public purposes: ' Provided that in case of purchase of property, the agreement of purchase shall be in writing: ' Provided further that until the development authorities are merged with any other department or authority of a local government, Taluka Municipal Administration and Town Municipal Administration may acquire land for development purposes and may sell or dispose of thereafter in accordance with the existing laws and the rules made thereunder.
' We do not think the ban imposed by the Chief Minister in 1997 is attracted in the circumstances of the petition. Firstly because much water has flown down the River Indus over the last 12 years; secondly various developments placed by the learned counsel for Taluka Municipal Administration clearly show that City District Government Karachi. Malir Development Authority etc., have been repeatedly advertising for auction/sale of commercial plots and residential plots. Thirdly and most importantly section 124 of the Sindh Local Government Ordinance 2001 being firstly statute and secondly being subsequent to letter dated 27-8-1997 overrides the ban placed by the Chief Minister Sindh on disposal etc. Of various local government properties. Fourthly even letter dated 26-6-2003 issued by section Officer Local Government clearly after referring to section 124 of the Sindh Local Government Ordinance directs various Taluka Municipal Administrations not to refer in future any case for relaxation of the ban. Lastly we have not been able to find any provision in section 129 or in any other provision of the Sindh Local Government Ordinance conferring any authority on the Chief Minister in this regard. This means that if action is taken by the local government under section 124 of the Sindh Local Government Ordinance 2001 the ban imposed by the Chief Minister, even if the said ban is still effective in respect of properties of Sindh Government, would not be applicable to the property of the Local Government Institutions.
' Case law relied upon by the learned counsel is that of Syed Ghulam Mustafa Shah (supra). The property in this case was agricultural land in Barrage Colony. Therefore, facts of that case are quite distinguishable from facts of the present petition.
' Second submission by the learned counsel for the intervener was that advertisement was placed without reference to public information Department. Learned counsel for the Town Municipal Administration placed on record letter dated 8-9-2007 issued by Director Information (Advertisement) returning cheque for Rs,40,000 not on the ground that Government had any objection to publication of notice but on the ground that previous dues had not been paid by the Town Municipal Administration. Without going into the question whether policy of the Government that every advertisement by a Local Government should be placed through Town Municipal Administration (Advertisement placed by City District Government Karachi on 23-1-2009 and August 6th, 2008 and by Malir Development Authority do not appear to have been placed by the Public Information Department) is also applicable to Local Government institution which we leave for determination in proper case, in the present case public Information Department was requested to place advertisement in the newspapers and it declined to do so for the reason that previous dues had not been paid by the Local Government . In this set of peculiar circumstances, we do not see anything wrong with placement of advertisement by the local Government directly.
' The key question is that when Nazim did not have the power to lease out the plot of a value higher than Rs,1 Million whether action taken by the Nazim is within scope of his authority or not and if it is not within scope of his authority, then what would be the consequences. The contention of Mr. Muhammad Ashiq Dhamrah that resolution was prepared and given to the Naib Taluka Nazim Convener of the Council but it was not placed before the Council and since it has not been rejected by the Council therefore allotment by the Nazim having not been rejected by the Council, should be upheld, in our opinion, is not sustainable. It is settled principle of law that if action is taken by a person not competent to take that action, then that action would be a nullity in the eyes of law and would be void ab initio. The Supreme Court of Pakistan in Dr. Mubashar Hussain v. Federation of Pakistan in which judgment was announced on December 16th, 2009, has held that even Ordinance issued by the President of Pakistan which Ordinance is ultra vires of the Constitution and consequently all actions and reliefs granted under that Ordinance would be a nullity in the eyes of law and all such actions and reliefs are liable to be reversed and position of status qua ante is to be brought about.
' Coming to the question whether the Nazim has power to contract. First Schedule of Sindh Local Government Contract Rules, 2001 provides as under:--
1. Contracts, for the acquisition purchase or transfer by grant, gift, mortgage, lease, exchange or otherwise of immovable property or any interest of any right thereto:-- TIER OF LOCAL GOVERNMENT AMOUNT OF THE CONTRACT
1. City District Government 40,00,000
2. District Government. 15,00,000 3 Town Municipal Administration and Taluka Municipal Administration of Taluka Hyderabad, Latifabad. Qasimabad.
Sukkur, Larkana and Mirpurkhas.10,00,000
4. Taluka MA (all other Dist. Head Quarter)5,00,000
5. Taluka MA (all others) 2,00,000
6. Union Administration. 50,000 ' Perusal of his provision indicates that Town Municipal Administration and Taluka Municipal Administration has power to enter into contract whose value does not exceed Rs,1 Million in cases of immovable property in Talukas of Larkana.
' Therefore, Nazim did not have the power to contract for amounts in excess of Rs,10,000,000. All the learned counsel have consensus on this point that Nazim did not have such power for an amount in excess of Rs,1 Million. Therefore any such contract of allotment or conferment of any such right by the Nazim would be without lawful authority and consequently of no legal effect.
' It was argued by learned counsel for Taluka Municipal Administration that in many cases letters of allotment have already been issued and vested rights have been created. He submitted that it will resulted in lot of wastage of funds of private individuals who acting upon the orders of Nazim have made investments and erected buildings. He referred to section 21 of General Clauses Act. In our opinion the contention of learned counsel is misconceived.
' Under section 21 of the General Clauses Act, power under doctrine of locus poententaie is available and applicable only as long as decisive steps have not been taken and vested rights have not been created. But this does not help the hopeless allotees. The very act of allotment by Nazim in case of properties in excess of Rs,1 Million was not within scope of his authority and an illegal act and an act without authority cannot be given protection merely because vested rights have been created. Moreover, the power of Nazim is prescribed by statutory instrument i,e, Sindh Local Government Contract Rules, 2001. No one can plead ignorance of statute. Therefore parties who acted in violation of statutes cannot claim rights on the basis of their such acts. Mr. Muhammad Ashiq Dhamrah submitted that people have invested and constructed those buildings. In these days, plazas built in violation of rules are being demolished and we not think such argument can hold any force. However there may be cases where an individual has been conferred a right in accordance with the law. Therefore, those cases will have to be dealt with separately. Therefore, in cases where the Nazim has exceeded his authority, the Taluka Municipal Administration is directed to issue a show cause notice, within 15 days to such allotees who have been allotted plots by Nazim in violation of the power conferred upon him by the Sindh Local Government Contract Rules. Such allotees shall have right to submit their replies within 15 days thereafter and the Taluka Municipal Administration shall pass order within 15 days thereafter.
Needless to observe that it is of course available to the Council to pass resolution in the meanwhile.
' We are left with the question of amenity plots. This court in M.A. Hamid Ali Bakhsh's (supra) case has clearly held that allotment of an amenity plot for any purpose other than amenity would be in violation of law and a negation of right of all citizens who had right to enjoy and avail the benefit of that facility. Therefore, if any amenity plot has been allotted such allotment shall be cancelled.
However, show cause notice as stipulated above will be issued in such cases before taking final action.
' It was argued by learned counsel for the petitioner in Constitutional Petition No,D-723 of 2008 that since order cancelling the allotment has been withdrawn, his grievance has been redressed and thereafter he merely wanted to withdraw this petition. His submission was that since he wanted to withdraw the petitioner his petition should be dismissed as withdrawn. As far as power of litigant to withdraw whole or part of his claim unconditionally, is concerned that right is conferred upon a complainant under Order XXIII rule 1 (1), C.P.C. And there is a considerable chain of authorities available on the point that such a withdrawal can be effected without any order from the court even but in constitutional jurisdiction through Civil Procedure Code is substantially applicable (PLD 1970 SC 1) but the purpose of writ jurisdiction is to do complete justice and no one should be allowed to get away with ill gotten gains. Such jurisdiction is corrective and directory in nature and it is to be tempered with equity as has been held by the Honourable Supreme Court of Pakistan in the case of Wajihul Hussan Zaidi v. Government of Punjab and others 1997 SCM R 1901 and WAPDA through Superintending Engineer and another v. The Presiding Officer, Sindh Labour Court No,VII, Sukkur and others 1998 PLC 180. In exercise of constitutional jurisdiction, the superior Courts act as conscious keeper of the Constitution and ultimate protector of rights of citizens and the society at large. This court cannot shut its eyes to wanton use and misuse of powers of State functionaries and property of the State. Therefore, contention of learned counsel that he similiciter wants to withdraw this petition it should be dismissed as withdrawn, is obviously misconceived.
' Before parting with the judgment, we may observe that if any State functionary or functionary of a Local Government takes action in excess of his authority and in consequences of that action a citizen is made to incur expenditure or suffer a loss that citizen has remedy to recover damages from such functionary in accordance with the law.
' These constitutional petitions are consequently, disposed.