' JAMILA JAHANOOR ASLAM, J.-The petitioner was leased out a plot of land measuring 1598.08 square yards known as Bungalow N0.153/B&C (Part) by the Military Estate Officer Rawalpindi/ Respondent No,2 on behalf of the President of Pakistan, being the lessor of the area in which the subject land is situated for a period of 99 years. The lease was confirmed by respondent No,3/DG, Lands Rawalpindi vide letters 31-8-2001 bearing reference No,26/159l/DRR/14 and letter dated 24-9- 2001 bearing No,26/1591/ DRR/16. The lease document was further registered with the Sub-Registrar of the Rawalpindi Division petitioner further states that the amount fixed as premium has also been paid by the petitioner in the sum of Rs, 11,62,235.00. The building plan for residential construction comprising of basement, ground and first floor has also been approved by the Cantonment Board/Respondent No, 1 from a municipal point of view, in its meeting held on 1-8-2003 vide Resolution No,2(10-B).
2. The dispute arose between the parties when the petitioners applied to respondent No,l for an extension in the time for completion of the construction work at the site under section 183-A of the Cantonment Act of 1924 vide application dated 20-7-2004. The application for grant of extension of time has been declined by respondent No,l, which has been challenged by the petitioner through this writ petition.
3. The learned counsel for the petitioners has argued his case at length and referred to a number of documents on record. He has challenged the decision of rejection as being in violation of principles of natural justice and section 24-A of the General Clauses Act. He has argued with vehemence that the principles of locus Penitential would apply to his case. He has argued that a right once created cannot be taken away unilaterally on the grounds afore mentioned. He has prayed that the impugned order No,6599 dated 12-2-2005 be declared illegal and without jurisdiction, ultra vires the constitution and principles of natural justice. He has further sought mandatory injunction for directing the respondents for extending the time as prayed for in the application submitted by the petitioners. He has relied on 1998 SCM R 2268, 1998 SCM R 2419, 2002 CLC 1049, 2003 CLC 331 and PLD 2005 Kar.
524.
4. On the other hand, the learned counsel for the respondents has filed his comments. The only ground which has been agitated by the respondents is that the sanction granted to the petitioner for construction of building comprising of basement, ground and first floor is contrary to the policy of the government which was in the field at the time the sanction was granted and sanction could only be granted to the extent of ground plus one storey. He has referred to letter dated 11-4-2003 issued to all DML&C issued by Deputy Director General (Lands). The letter and its instructions are however not addressed to the DML&C Rawalpindi and the copy is only circulated to the aforementioned DML&C. The learned counsel for the respondents has vehemently contended that the sanction/approval granted to the petitioner was wrong in the first place therefore no extension could even otherwise be granted. He has also attached with his comments Resolution No,17 which has been referred to in .The impugned order 12- 12-2-2005.
5. I have heard the counsel for the parties, perused the record and the law applicable to the controversy in hand.
6. It would be advantageous to reproduce section 183-A of the Cantonments Act of 1924 (hereinafter the Act).
' Section 183-A: ' Period for completion of building.-A board, when sanctioning the erection or reerection of a building as hereinbefore provided, shall specify a reasonable period after the work has commenced within which the erection or re-erection is to be completed, and, if the erection or re- erection is not completed within the period so fixed, it shall not be continued there after without fresh sanction obtained in the manner herein before provide, unless the board on application made therefore has allowed an extension of that period: ' Provided that no more than two such extensions shall be allowed by the Board in any case.
7. Taking into consideration the language of section 183-A of the Cantonments Act of 1924, it becomes necessary to briefly refer to the preceding sections of the Act. Control over buildings is covered by Chapter XI of the Act. Buildings are sanctioned under the said Chapter XI. However, section 183 of the Act assumes greater significance in view of the language employed by section 183-A of the Act. Section 183 states as under: ' Section 183: ' Lapse of Sanction.-Every sanction for the erection or reerection of a building given or deemed to have been given by the Board as herein before provided shall be available for one year from the date on which it is given, and, if the building to sanctioned is not begun by the person who has obtained the sanction or someone lawfully claiming under him within that period, it shall not there after be begun (unless the Board on an application made therefore has allowed an extension of that period).
8. It can therefore safely be concluded that the extension in time can be granted by the Board on an application in both situations, one where the work of reerection or erection has not commenced at all within one year from the date the erection or re-erection has been sanctioned and the other where the work has commenced but not been completed within time sanctioned (sections 183 and 183-A respectively). The law would be better served if both the aforementioned sections 183 and 183-A of the Act are therefore read together. Though on a closer reading of the afore mentioned sections 183 and 183-A of the Act, the former is the provision which applied to the application of the petitioners as no construction has admittedly been started on the plot, but since the sections must be read together, the purpose of application of both sections in effect remains the same. Even otherwise, wrong heading of legal provisions has never been considered fatal to a cause and I am not inclined to make too much of a technicality nor has it been the respondents' case.
9. It is also pertinent to reproduce Clause No,5 of the lease agreement executed on 28-9-2001: ' Within (twelve) calendar months next after the date of these presents at his own cost to erect and finish fit for habitation/use on the premises hereby demised a residential building together with all necessary outhouses, sewers, drains and other appurtenances in accordance with a plan or plans to be approved in writing by the Cantonment Board under the provisions of the Cantonments Act and not to erect or suffer to be erected on any part of the premises hereby demised any building other than and except the residential building hereby covenanted to be erected without the previous sanction consent in writing of the Lessor, (under lining is mine for emphasis).
10. Though the lease agreement was executed on 28-9-2001, the building plans for basement, ground plus first floor were approved by the Board on 1-8-2003. Even otherwise, it is nobody's case that the time for carrying out construction did not start effectively from 1-8-2003 on approval of the building plans by respondent No,3. Suffice to say, the purpose for mentioning the afore mentioned details is to highlight that the time for finishing habitation on the subject premises for residential purposes commenced from 1-8-2003 and not earlier. The application for extension under section 183-A of the Act was filed on 20-7-2004, before the period of twelve months stipulated in the lease agreement expired. No construction could have commenced till building plans were sanctioned by the Board and the words to be lay testimony to this conclusion.
11. On a close perusal of the record, the contentions of the learned Counsel for the petitioner seem to hold force. The contentions of the learned Counsel, though momentarily seeming weighty, however lose effect once the contents of the letter dated 11-4-2003 and attached Resolution No,17 are perused and kept in juxta position with the extract from the General Land Register which has been issued by the Military Estates Officer, Rawalpindi Circle, Rawalpindi Cantonment on 23-1-2002.
Entry number 10 of the extract pertaining to Nature of Holder's right mentions that the lease of the land is in schedule IX-C of the CLA Rules of 1937. The directions or policy dated 11-4-2003 which the learned counsel for the respondents has referred to, is applicable to lands in schedule IX-A of the CLA Rules, 1937. The directions or policy contained in the letter dated 11-4-2003, therefore do not apply to the petitioner's land. When confronted with this, the learned counsel for the respondents could not give a reply or state anything to prove otherwise. Therefore, the basic defence or rather the ground of attack adopted by the respondents has not force. The effect of the letter dated 11-4- 2003 being addressed to all DML&C except the DML&C Rawalpindi, though seems to further fortify the fact that the restrictions in the letter will not apply to land, building plans of which were to .Be looked into by the DML&C Rawalpindi for any reason, however the said aspect need not be discussed in view of which is stated above. It would therefore be correct to hold that the land of the petitioner is exempt from the restrictions mentioned in the letter dated 11-4-2003 and the building plans were rightly approved. There is no restriction for approval of a building plan for basement, ground and first floor approval and any restriction pleaded to the contrary is misconceived.
12. On a perusal of Resolution No,17, it is noted that the case was deferred for want of verification of classification/status of land. There after, the application has been rejected but no reasons have been given. Ironically, the entry at Resolution No,16 contains the grant of an extension to the applicant mentioned therein. The discriminate attitude of the respondents is apparent from the cited resolutions.
13. Coming to the rejection of the application under section 183-A of the Act, the rejection in granting extensions vide the impugned order No,6599 dated 12-2-2005 is also without force. I have already observed that Resolution No,17 is discriminate. In addition to this, it is further apparent that this is a classic case of excessive use of a jurisdiction which is in itself illegal as held in the case reported in 1993 SCM R 1533.
14. Undoubtedly, the respondents have jurisdiction to reject the application or impose any other restriction on the petitioner but such restrictions have to meet the standards fashioned by the applicable law and of course the constitutional guarantees and standards. The respondents being public functionaries are to be mindful of this onerous duty because they hold public office for the benefit and assistance of the public and not be extract opportunities to flout or misuse the law by deliberate misapplication. Though the respondents have attempted to impose a restriction by way of the letter dated 11-4-2003, which is not applicable to the petitioner's case, even otherwise such restriction or any other restriction imposed and being imposed after collection of a huge sum of money from the petitioners is unjustified and misuse and abuse of authority. One cannot lose sight of the principle of vested rights which accrued in favour of the petitioners after making such hefty official payments of the respondents which have been accepted by the respondents. The petitioners, as stated above, had applied to the respondents for an extension before the one year period for completing construction mentioned in the lease agreement had expired. Inability to complete construction within one year cannot be considered to be misuse, as such interpretation of the said inability would again lead to putting a restraint on the effect and relief which sections 183 and 183-A contemplates and attribute redundancy to the law. As a matter of fact, the Cantonments Act of 1924 provides for various remedies under Chapter XI. Such remedies are always available to the respondent subject of course to proper exercise of the jurisdiction and power such provisions allow. Indeed, in the case of an illegal sanction or misuse of the same, such sanction could have been withdrawn by the Board and no amount of monetary amputation would have aided the petitioners but the sanction is neither illegal nor the same has been misused by the petitioners. Section 183-A of the Act as well as section 183 are enabling provisions. They serve a beneficial purpose and therefore must be construed and jurisdiction therein applied liberally. As it stands, no more than A two extensions can anyway be granted as there is a clear embargo in law to do that sections 183 and 183-A cannot be used as a machinery for collecting revenue as it has been used in this case.
15. I have however, noticed, that the petitioners have annexed with the memo. Of the petition a letter issued on 27-11-2004 to the petitioners wherein the initial order of rejection passed on 13-9- 2004 has been issued to the petitioners. Though subsequently, the petitioners have addressed a number of letters to respondent No,1 against this rejection and sought reasons for the same, no reasons have been given. The impugned order No,6599 dated 12-2-2005 is also based on the same decision dated 13-9-2004. The petitioners have not challenged the decision dated 13-9-2004 nor the communication thereof vide letter dated 27-112004 but the legal defect in all three letters/orders dated 13-9-2004, 27-11-2004 and the impugned order No,6599 dated 12-2-2005 is the same. No reasons have been given in support of all three. There is clearly a violation of the constitutional guarantees promised to the petitioners under Article 24 of the Constitution as well as Article 4 and section 24-A of the General Clauses Act. No hearing has been provided to the petitioners to allow them an opportunity to satisfy the respondents. Such opportunity though not expressly called upon in the language of section 183 or even 183-A of the Act, but the legal requirement of applying for an extension connotes and attaches with such application the right to be heard in support of such application and proper and B structured exercise of discretion by the respondents in support of any decision thereon. Natural justice and right of hearing is read as part of every law even by implication. Clearly, no opportunity to present their case has been granted and the discretion has not been exercised as required by law. Discretion has to be structured and unless its exercise is in conformity with the principles laid down in the cases of PLD 2001 SC 1, the exercise of discretion is unwarranted and cannot be sustained. Even otherwise, this court in exercise of the writ jurisdiction can always mould the relief. The famous case of Sharaf Faridi v.
Federal of Pakistan reported as PLD 1989 Kar. 404 is relevant case law for the proposition in addition to numerous other such pronouncements by the superior courts.
16. This court has to ensure that the constitutional rights of the parties are safe C guarded. The petitioners after having made substantial payments to the respondents cannot be non suited on the mere technicality that the initial order dated 13-9-2004 and letter of rejection dated 27-11-2004 have not been assailed. The import and impact of the impugned order dated 12-2-2005 is the same as the aforementioned preceding letters/ordef. Laches, if at all an obstacle in view of this fact, have to be considered keeping the facts of the case in hand as ruled in the case of 1987 SCMR 1117. The said fact even otherwise has not been agitated by the respondents.
17. Under the circumstances, and in view of what has been mentioned above, I hold as under:
(a) That the rejection of the application dated 20-7-2004 is illegal and arbitrary, in excess of jurisdiction and against all rules of natural justice and the 2etitioner's constitutional rights.
(b) The discretion vested in the respondents has not been exercised in accordance with law and the reasons, though not given at the time of rejecting the application, but subsequently pleaded by the respondents in their comments, are also without force. Suffice to say, the reasons pleaded before this court seem to be an after though in an attempt to somehow justify the wrong committed by the respondents.
(c) The principles of locus poenitentiae apply with full force to the case of the petitioners. Valuable rights of the petitioners cannot be usurped by the respondents. They are public functionaries and are required to act in good faith and to advance the law and not to stifle it.
(d) The Resolution No,17 relied upon in the letter dated 12-2-2005 as well as other correspondence, is discriminatory, it cannot sustain itself on the touchstone of the Constitution of Pakistan.
(e) The impugned order dated 12-2-2005 being violative of the principles of natural justice and section 24-A of the General Clauses Act as well as Articles 24 and based on Resolution No,17 is hereby set aside and all other connected orders including but not limited to order dated 13-9-2004 and letter dated 27-11-2004, passed prior to the impugned order or subsequent thereto are also declared as illegal, arbitrary, void and of no effect for the reasons mentioned hereinabove.
(f) The application for extension under section 183-A of the Act filed by the petitioners will be deemed to be pending before the respondent No,1 who will allow them an opportunity to appear and present their case for extension of time. Respondent No,1 will give proper reasons in its decision. The time consumed in this petition as well as before respondent No,1 hereafter will not be considered by the respondent No,1 for the purposes of deciding the application.
(g) The parties are left to bear their own costs.
' Petition is disposed of in the above terms.