' FAISAL ARAB, J.---In the year, 1982, the Ministry of Defence, Government of Pakistan sold Survey numbers 221/1, 221/C-2 and 221-B/1 having total area of 71718 square yards situated on Thandi Sarak, Hyderabad to the Department of Housing and Town Planning, Government of Sindh. These survey numbers were required for construction of a water reservoir for Hyderabade Water Supply Project. After the purchase, a . Considerable portion of the acquired land was utilized for building a water reservoir. Then, on an unutilized portion of this land, Hyderabad Development Authority sought permission from the Government of Sindh to construct a Civic Centre and an office building for the Zila Nazim, Hyderabad, which permission was granted and part of this land was so utilized.
2. Sometime in the month of February, 2004, the functionaries of Hyderabad Development Authority rented out about 1100 square yards from the unutilized portion of the acquired land to the petitioner to set up a petrol pump station. This was done with the approval and permission of Zila Nazim Hyderabad. A tenancy agreement was executed on 26-2-2004 whereby the land was rented out to the petitioner initially for a period of five years, which period was extendable up to thirty years, Subsequently, this agreement was replaced with a registered tenancy agreement, dated 23-9- 2004. The tenancy agreement with the petitioner was executed by Hyderabad Development Authority as it assumed itself to be the owner of the acquired land. Such a claim is mentioned in the recital of the tenancy agreement.
3. The Government of Sindh on the other had considered itself to be the owner of the acquired land.
In this regard the Provincial Cabinet in its meeting held on 30-7-2005 inter alia decided that as the land was acquired' for the purpose of water reservoir, therefore, remaining unutilized land shall remain reserved for future extension of water reservoir to meet the increasing demand for water. In this background, the Cabinet gave direction to Hyderabad Development Authority to cancel the tenancy rights created by it on a portion of the acquired land. The decisions of the Cabinet were communicated to Hyderabad Development Authority by the Department of Local Government Katachi Abadis and Spatial Development, Government of Sindh vide letter, dated 22-9-2005. The decision of the Provincial Cabinet that affects the petitioner has been called in question in the present petition.
4. Learned counsel for the petitioner argued that the letter, dated 22-9-2005, whereby the Provincial Government decided to cancel the rent agreement, was issued in utter violation of the principles of the natural justice as no notice was issued to the petitioner prior to such decision. In support of this argument, counsel for the petitioner has placed reliance upon the cases reported in PLD 1992 SC 113 and PLD 1975 SC 355. Learned counsel for the petitioner also argued that entire land that was acquired from the Ministry of Defence belongs to Hyderabad Development Authority and not the Provincial Government and therefore the Provincial Government had no right to seek cancellation of the tenancy agreement executed in favour of the petitioner. In support of this agreement learned counsel for the petitioner referred to certain documents filed with the petition and also referred to Article 140-A of the Constitution of Pakistan, section 121(1) I & (4) and `section 180 of the Local Government Ordinance, 2001 in order to emphasize his contention that the title in the acquired land vests in. Hyderabad Development Authority or its successor,
5. On the other hand learned Additional Advocate-General Mr. Allah Bachayo Soomro argued that the petitioner cannot seek enforcement of contractual obligations by invoking the constitutional jurisdiction of this Court as the proper forum for their enforcement is to invoke the jurisdiction of ordinary civil Court. In support of his argument he relied upon the case reported in PLD 1962 SC 108.
He next contended the land purchased by Government of Sindh and that too for a *specific public purpose and therefore the functionaries of Hyderabad Development Authority in no circumstances possessed any right to deal with the land for any purpose other than water reservoir or to create any right, title for interest therein, without first obtaining permission from the Provincial Government.
6 Additional Advocate-General also argued that in the tenancy agreement, which the petitioner seeks to enforce through this constitutional petition, there is an arbitration clause in clause 13 of the agreement and therefore the petitioner cannot see any remedy in the constitutional jurisdiction. He submitted that the petitioner may espouse his cause before the arbitrator as provided under the agreement.
7. Learned counsel for respondent No,2 Mr. Naimatullah Soomro argued that the impugned letter, dated 3-10-2005 is only a direction to cancel the lease and not an order of cancellation by itself; the possession of land has not yet been handed over to the petitioner; Hyderabad Development Authority became owner of the acquired land and contractual obligations cannot be enforced in constitutional jurisdiction of this Court.
8. Learned counsel for respondents Nos.3 to 5 Mr. Rafique Ahmed argued that Ministry of Defence sold the land as the same was required for specific public purpose and therefore the same cannot be utilized for any other purpose. He further contended that as the land in question is situated within the limits of Hyderabad Cantonment area, therefore before setting up a petrol pump, permission should have been first sought from Hyderabad Cantonment Board and Military Estate Office which has admittedly not been done.
9. We would first examine whether the land in question was acquired by the Provincial Government or Hyderabad Development Authority?
10. The petitioner with his petition has filed a document marked as annexure "C". This is a letter, dated 17-10-1982 which sanctions transfer of the land from the Ministry of Defence, Government of Pakistan to Government of Sindh. In the said letter the sale consideration is demanded from a department of the Provincial Government. Then annexure "D" to the petition is an extract from the Cantonment Land Register which shows that land has been transferred to Government of Sindh.
From these documents it becomes quite obvious that the land was purchased by the Government of Sindh. Not only this; in paragraph 5 of the petition, the petitioner has himself acknowledged that a portion of the land in question was utilized for construction of Civic Centre as well as for office building for Zila Nazim, Hyderabad, after obtaining approval and consent of the Government of Sindh. This by itself further fortifies the contention of the Additional Advocate-General that the land was acquired by the Provincial Government. It is not the case of the petitioner that subsequently the title in the entire acquired land was transferred by the Government of Sindh to Hyderabad Development Authority. Therefore, the title of the acquired land vests in the B Provincial Government and any unutilized portion cannot be utilized for any other purpose, without first obtaining approval of the Provincial Government. Zila Nazim possessed absolutely no right to rent out any portion of the acquired land.
11. As regards Article 140-A of the Constitution of Pakistan, a bare reading of Article 140-A would show that it only talks of establishing a local Government system and devolving upon its representatives the political, administrative and financial responsibility and authority and nothing more.
12. Insofar as section 121 read with section 180 of the Local Government Ordinance, 2001 are concerned the dame speak of only vesting of such properties in the local Government which were
(i) vested in the local Government through succession under the provisions of section 180; (ii) transferred to a local Government or constructed or acquired .By the local Government by its title.
None of the situations as envisaged in section 121 are attracted to the land in question. Thus, neither Article 140-A of the Constitution nor any provision of Local Government Ordinance, 2001 provide that the land owned by the Provincial Government would come under the ownership of the local Government without its title being specifically transferred to the local Government.
13. Furthermore, the land was purchased by the Government of Sindh for a public purpose i.e, for a water reservoir means for supply of water to the city of Hyderabad. Partly it was utilized and part of it is was reserved for future extension of the reservoir as is evident from the Cabinet decision as communicated in letter, dated 22-9-2005. This factual position is also admitted by the petitioner himself in ground No,3 taken in the petition. Hence, where a public land is meant for a public purpose; then the same cannot be utilized for any purpose other than the public purpose. It cannot be utilized for the benefit of an individual. Even where circumstances justify conversion of land use, such decision D should be taken after inviting public objections and objectively evaluating the new purpose to which land is to be put to use. All such steps are to be taken in a transparent manner and with the object to serve the best public interest.
14. With regard to argument of the counsel for the petitioner that no notice was served on the petitioner prior to taking the decision for cancelling the tenancy agreement and therefore the principles of natural justice were violated; we would say that, in the circumstances of the case, no such notice was required. The principles of natural justice are attracted only when some right is created by an authority competent to create such a right and subsequently this very right is impaired or nullified without affording an opportunity of hearing to the affected person. In the present case, the land which was rented out to the petitioner is owned by the Government of Sindh and not by Hyderabad Development Authority or the local Government. Admittedly, tenancy was not created by Government of Sindh but was created by Hyderabad Development Authority with the approval of Zila Nazim only. The land being owned by the Provincial Government, the Zila Nazim was not all competent to create any interest in favour of the petitioner. Therefore, even if the petitioner is called before cancelling the tenancy agreement, neither any functionary of the Hyderabad Development Authority nor the Zila Nazim possessed any authority to reverse the decision of cancellation. Therefore, cancellation of tenancy was a foregone conclusion. The Government of Sindh also is not obligated to hear the petitioner before taking decision of cancellation as admittedly the tenancy rights were not created by the Provincial Government. In this view of the matter, the plea, that principles of natural justice were not followed, is hardly of any legal consequence. The grant of tenancy being patently illegal and by an incompetent authority, its creation in the first place was void abs initio. The case-law cited by the petitioner's counsel in this regard is hardly of any relevance to the facts of the present case.
15. We have noted that functionaries of Hyderabad Development Authority rented out an unutilized portion to the petitioner after seeking premises from Zila Nazim only, unlike the course, which was adopted for constructing Civic Centre and the office building of Zila Nazim. For such purposes permission was sought from the Provincial Government. Furthermore, the act of renting out the land in question to an individual is contrary to the public purpose for which the land was acquired.
Hence, the same being contrary to the public interest and therefore not sustainable for this reason as well.
16. With regard to the objection of the Additional Advocate-General as to the enforcement of contractual obligation in constitutional petition suffice is to add that this Court in exercise of its jurisdiction under Article 199 of the Constitution can examine the competency of a functionary to execute a contract. This is exactly what we have done in this case and have given our findings on merits of the case.
17. To counter the argument of Additional Advocate-General, the counsel for the petitioner has relied upon cases. In 1999 CLC 813 (Muhammad Talib v. Karachi Development Authority) allotment of plots was cancelled by the competent authority, without issuing show-cause notice to the allottee and without initiating any inquiry. The cancellation was nevertheless done by the competent authority. It was in this case background that it was held in the above refereed case that the action of cancellation of allotment was illegal and without lawful authority. In PLD 1963 SC 109 (The Majlis-i-Intizamia, Jamia Masjid v.
The Secretary to Government of West Pakistan), after execution of the lease deed by the competent authority, the same was cancelled otherwise than the procedure provided in the terms of the grant. In PLD 1992 SC 113 (Al-Shafeeq Housing Society, Hyderabad v. Pakistan Medical Association, Karachi), the dispute pertained to allotment of a plot by the authority that was competent to make allotments. In 1992 M LD 671 Muhammad Amin v. The Province of Sindh), the dispute pertained to cancellation of plots by the functionaries of the government who had the power to make allotment of plots. It was in this background that it was held that an aggrieved party is entitled to invoke the constitutional jurisdiction as provided under Article 199 of the Constitution of Pakistan.
18. In all the cases referred to in the preceding paragraph, though contractual obligations were involved, yet jurisdiction under Article 199 of the Constitution was exercised. However, in all these cases reliefs were granted to the petitioners as whether rights were created in their favour, they were created by the Authority competent to create such rights in contradiction. To the facts of the present case. No doubt, in them case reported in PLD 1962 SC 108 (Messrs Momin Motor Company v.
The Regional Transport Authority, Dacca), cited by Additional Advocate-General and in several other cases of our superior courts, it has been held that contractual rights are not enforceable by taking recourse to constitutional jurisdiction. But this principle would apply when disputed facts are involved. In the present case, from the pleadings and the documents filed by the parties one can examine the legality of the agreement executed in favour of the. Petitioner. Relegating a party to seek recourse before a civil Court in contractual matters would have been justified, if, the contract itself had been executed by the competent authority but on account of factual controversies, evidence was required to be recorded in order to resolve the factual dispute. In the present case as the tenancy was not validly created, which fact is evident from the pleadings and undisputed documents filed in this petition, therefore this Court can exercise jurisdiction under Article 199 of the Constitution and examine the legality of the agreement executed in favour of the petitioner.
19. In reply to the argument of the learned Advocate-General that there k an arbitration clause in the tenancy agreement, learned counsel for the petitioner submitted that as petitioner's grievance is directed against the impugned letter, dated 3-10-2005 issued by Government of Sindh which is not a party to the tenancy agreement. On this we are in total agreement with the submission of the petitioner's counsel. Therefore in this background there was no legal justification to refer the matter for arbitration.
20. In view of the above discussion, we hold that respondent No,2 or any of its functionaries were not legally competent to execute agreement, dated 23-9-2004 in favour of the petitioner, which is void as initio. We therefore dismiss this petition in limine.