' RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.--- The petitioner, namely, Syed Muhammad Sarwar Ali Shah son of Syed Asad Ali Shah, by filing this constitutional petition has assailed the letter dated 29-4-2008 issued by Deputy Director, Estate & Land Management, Multan Development Authority, Multan (respondent No,3), whereby the transfer letter issued vide No,1820/E&LM/MDA and No,1823/E&LM/ MDA, dated 3-4-2008 and the statements recorded had been withdrawn including forfeiting of transfer fee and share of Mst. Surraya Jabeen and Mst. Tayyaba Tahira (respondents Nos.5 and 4, respectively) was restored.
2. Precisely the facts giving rise to the instant petition are that a Plot bearing No,4 measuring about eight Kanals situate in Officers Colony, Multan ha& been allotted to Ghulam Sarwar Shah, paternal grandfather of the petitioner by the defunct Improvement Trust, Multan, decades ago; he had transferred some area out of the aforesaid eight Kanals in favour of his wife Mst. Surraya Jabeen (respondent No,5), his son Syed Asad Ali Shah (father of the petitioner) and his daughter Syeda Tayyaba Tahira (respondent No,4) by the orders of the competent authorities; Syed Asad Ali Shah in turn had transferred his share in favour of his wife, Mst. Fauzia Ali, who further transferred her portion in favour of third party; Plot No,4/min measuring 2514.15 sq.Ft. And 4/A, measuring 2961.42 sq.Ft. Out of the above total area was transferred by the original allottee in favour of his daughter and wife (respondents No,4 and 5); they both had struck a bargain with Mst. Fauzia Ali, mother of the petitioner after receiving lacs of rupees as a sale price about fifteen years ago and had promised to get the above said plots transferred from the successor organization i,e, Multan Development Authority, as and when desired by her; at the same time, possession of the portion of the plot was delivered by respondents No,4 and 5 to mother of the petitioner, who had rented out the building to a school and started receiving amount of rent; when mother of the petitioner asked respondents No,4 and 5 to honour their commitment and to transfer the aforesaid portion in favour of her son (the petitioner), who had already executed the rent deed of the said premises with the Management of British International School and is receiving rent from them, both the ladies (respondents Nos.4 and 5) voluntarily and with their free consent had transferred the plot in question in favour of the petitioner by the order of respondents Nos.2 and 3 bearing No,1820/E&LM/MDA and 1823/E&LM/MDA, dated 3-4-2008; thereafter respondents Nos.4 and 5 submitted applications to the Multan Development Authority alleging therein that some one had committed fraud and they had not sold out the property to any one, whereupon respondent No,3 had withdrawn the aforesaid orders dated 3-4-2008 by means of the impugned letter/order dated 29-4-2008. Hence, the instant petition on the ground that the aforesaid order has been passed by respondent No,3 without giving an opportunity of hearing to the petitioner.
3. In response to this Court's order dated 6-6-2008, respondents Nos.1 to 3 submitted their report and parawise comments. In order to consider the contention of the learned counsel for the petitioner that the petitioner had not been given an opportunity of hearing by respondent No,3 before passing the impugned order dated 29-4- 2008, this petition was admitted to regular hearing.
4. Today, the main thrust of the learned counsel for the petitioner was on the said argument, however, he added that it has been admitted by the Multan Development Authority in its report that the petitioner was not heard; that the MDA never issued any notice to the petitioner and had recalled the order dated 3-4-2008 unilaterally without associating or getting the version of the petitioner side; the respondent No,3 had in fact reviewed his earlier order of his own without proving proper opportunity of personal hearing to the petitioner, hence, the impugned order is patently illegal and without jurisdiction, therefore, the same cannot be sustained in the eyes of law. Further contended that the impugned order has been passed in violation of the principle "audi alteram partem". It has also been argued that respondent No,5 had submitted and application to the Authority on 28-8- 2007 stating therein that she being share-holder of Plots Nos.4 and 4/A, Officers Colony Multan by virtue of inheritance, wanted to transfer her share in favour of her grandson Muhammad Sarwar Ali (the petitioner) and similar type of application by respondent No,4 was submitted, whereupon transfer fee challan of the amount of Rs,99,331 was issued and the petitioner had deposited the same. The learned counsel by moving an application bearing C.M.No,1619 of 2009, has placed on record a photostat of the agreement to sell dated 12-4- 2005, which had allegedly been executed between the petitioner and respondent No,4, whereby the petitioner has paid an amount or Rs,12,00,000 to respondent No,4 and in lieu thereof possession of the property in dispute was delivered to the petitioner, hence, she cannot resile from this agreement.
5. On the other hand, the learned counsel for the Multan Development Authority argued that notices were issued to the petitioner, but he has not turned up; that Sahibzada Suleman son of Sahibzada Muhammad Ibrahim, Advocate submitted an application, dated 29-4-2008 informing the Authority that his father had gone to U.K., which was received on 30-4-2008, which shows that the proceedings were in the knowledge of the petitioner.
6. The learned counsel appearing on behalf of respondents Nos.4 and 5 submitted that the writ petition is not maintainable on the ground that it requires factual inquiry, which cannot be undertaken by this Court in its constitutional jurisdiction; that the Authority, which passed the order of transfer of plot, has had the authority to recall that order under section 24 of the General Clauses Act, if the same is obtained by exerting fraud and collusion and that the Authority, when it was informed well in time before the conclusion of the proceedings on the basis of applications of respondents Nos.4 and 5 inquired into the matter, called upon the parties, but the petitioner side intentionally avoided to appear before the Authority, which after going through the record and the entire evidence recalled the order to the extent of transfer of property in the name of Syeda Tayyaba Tahira (respondent No,4) in favour of the petitioner, whereas transfer order to the extent of Mst. Surraya Jabeen (respondent No,5) was not yet complete and no order has been passed by the Authority in that regard. Further argued that notice was issued to the petitioner side, but they did not appear and instead son of Sahibzada Muhammad Ibrahim, Advocate had submitted an application on 30-4-2008 informing the Authority that his father had gone to U.K., meaning thereby their service was complete; that under section 16 of the Contract Act, proceedings were not complete to the extent of Mst. Surraya Jabeen; that respondents Nos.4 and 5 have appeared before this Court today and have made statements that they have not appeared at any time before the Authority for the transfer of their shares; that they are Parda Nasheen ladies, therefore, the transaction in question does not have any significance. Further submitted that if for the sake of argument, the agreement to sell is concerned, it does not create any right in favour of the petitioner and that under section 16 of the Contract Act, which talks about the Parda Nasheen ladies, when they deny the transaction, the burden of proof is upon the beneficiary to prove the same.
7. I have heard the learned counsel for the parties at considerable length and have also gone through the record.
8. Perusal of the report and parawise comments reveals that on 11-12-2007, two applications through One Window Cell of the MDA had been received from Mst. Surraya. Jabeen and Mst. Syeda Tayyaba Tahira for appointment of Local Commission for the transfer of property, whereupon respondent No,3 instead of appointing a local commission had considered better to record the statements of respondents Nos.4 and 5 himself; he accordingly visited the house of the petitioner in the company of Sahibzada Muhammad Ibrahim, Advocate High Court, where both the ladies had been identified by Mst. Fauzia Ali and Sahibzada Muhammad Ibrahim, Advocate; respondent No,3 recorded their statements and both the ladies thumb marked the same and also affixed their signatures thereon, however, at that moment, their national Identity Cards could not be produced before him and it was promised that the same would be produced in the office on the next working day, but the needful was not done; in the meanwhile, an application of Mst. Surraya Jabeen Addressed to D.-G., MDA through TCS had been received in the office on 20-3-2008, wherein she stated that she had neither given any power of attorney (General/Special) to any person whatsoever till this date nor had she rented out the said property; that it had come to her knowledge that some person had approached the Authority to have the aforesaid property transferred, which is unwarranted and without authorization; in response to that application, the Authority summoned the said lady, who appeared and made statement on 9-4-2008 in presence of two witnesses producing her NIC that she had not transferred her share to any one and confirmed her possession over the property. It is pertinent to mention here that according to relevant procedure, the property cannot be transferred, unless owner in person appears in person, but in this case, the property had been transferred on the basis of identification made by Mst. Fauzia Ali and Sahibzada Muhammad Ibrahim, Advocate. However, on the applications submitted by respondents Nos.4 and 5, the authority recalled the aforesaid transfer order vide the impugned order dated 29-4-2008.
9. In order to confirm the fact that whether the aforesaid ladies i,e, respondents Nos.4 and 5 had transferred their shares in favour of the petitioner or not, I had summoned them personally. Today Syeda Tayyaba Tahira (respondent No,4) is present in person and states that her mother Mst. Surraya Jabeen is also present in the car outside the Court and could not appear as she could not come upstairs. In view of this situation, I have called upon the Additional Registrar of this Court and asked him to record the statement of Mst. Surraya Jabeen. The petitioner was also directed to associate him and to identify her grandmother. Syeda Tayyaba Tahira (respondent No,4) while appearing in person had denied the factum of transfer of her share to the petitioner. Likewise, Mst. Surraya Jabeen in her statement stated that neither she herself nor Syeda Tahira had appeared before any officer for the transfer of the plot Nos.4 and 4/A, Officers Colony, Multan. She further stated that she never visited the house of Fauzia Ali in the year 2008 and that she never made any application for transfer of the said plot or share therein to any body, nor any officer of the MDA recorded her statement in this regard.
10. Be that as it may, factual controversy is involved in the case in I hand, which, it is settled principle of law, cannot be undertaken by this A Court in its constitutional jurisdiction. Insofar as the legality of the impugned order is concerned, admittedly, the same has been passed by the Authority without providing an opportunity of being heard to the B petitioner side. It was passed in a hasty manner violating the maxim of "audi alteram partem".
11. I do not want to comment on merits or demerits of the case, lest it prejudices the case of either of the sides, however, in the interest of justice and in order to provide an opportunity to the petitioner of proving his stance, I think it better to remit the matter to the Authority concerned for passing an appropriate order after hearing both the sides.
12. Resultantly, by allowing this petition, I set aside the impugned order dated 29-4-2008 as well as the proceedings initiated before passing the order dated 3-4-2008 and remit the matter to the Authority concerned, which will decide the same afresh after providing sufficient opportunity to the parties concerned to the property in dispute. No order as to costs.
13. Director General, Multan Development Authority (respondent No,1) is also directed to hold an inquiry into the matter and if any impersonation, misrepresentation and element of fraud and cheating on the part of the any official or private person is made out, then he will fix the responsibility and proceed against the delinquent persons under the criminal law.