' SHAUKAT ALI MEMON, J.---The instant petition is directed against the order of Governor of Sindh dated 11-9'2008, whereby Representation/Appeal filed by the petitioner against the Decision/Order dated 19-11-2007 of Provincial Ombudsman Sindh was found not maintainable.
2. The respondent No,2 (Kanpur Old Boys Association Karachi) is stated to have applied for allotment of an amenity plot to defunct K.D.A. For construction of community Hall/Library/Reading Room/Technical institute etc., which after necessary resolution by the Governing Body of K.D.A. Was approved and allocation offer/letter dated 21-4-1984 was issued requiring acceptance of the usual terms and conditions. It is common ground that 50% of the occupancy value was deposited.
However, formal acceptance of the offer was not notified, nor was allotment order issued. It appears that allocation offer was subsequently intended to be withdrawn/cancelled on two occasions through show cause notices; first dated 28-11-1995 and another dated 23-5-2003 on different grounds. It further appears that since no reply whatsoever to the first show cause notice was given by the respondent No,2, the offer was cancelled/withdrawn vide letter dated 8-1-1996, where after respondent No,2 did not agitate the matter further until service of second show cause notice dated 23-5-2003, pleading ban on allotment, which was however replied by the respondent No,2, but no order appears to have been passed thereafter. The respondent No,2 ultimately addressed a complaint dated 11-5-2006 complaining against delay in allotment of the amenity plot to the Provincial Ombudsman Sindh, which despite contest by the petitioner was accepted vide Decision/Order dated 19-11-2007 directing the petitioner to (i) issue the challan for remaining occupancy value; (ii) handover the lawful possession and (iii) report compliance within 30 days.
The Representation/Appeal to the Governor of Sindh preferred by the petitioner, also failed, therefore, petitioner filed the, instant petition.
3. The respondent No,2 in their comments supported the impugned order; admitted the issuance of the allocation/offer letter with the difference that the copy filed by the petitioner is forged and fabricated as certain conditions at the bottom of the letter are subsequently added. For first show cause notice it is stated that same was never delivered for want of change of address and for the second show cause notice its service is also denied except that same was hand delivered to their representative, who was on routine visit to office. The allegations of filing of the forged documents are however refuted by the petitioner through counter affidavit and by placing the certified copies of the documents as annexures P/11, P/12 & P/13.
4. The respondent No,1 filed no comments nor addressed any arguments by remaining absent on the date of hearing.
5. Mr. Jameel Ahmed, learned counsel for the petitioner, argued that allocation/offer made in the year 1984 and communicated vide letter dated 21-4-1984 has wrongly been treated and referred by the respondent No,2 as well as by the learned Ombudsman as an allotment order, issuance whereof was subject to compliance of the terms and conditions and fulfillment of certain formalities, which have not been done, thus, no vested right is created in favour of the respondent No,2, nor can these be enforced through decision of the learned Ombudsman, which is arrived at as a result of misinterpretation and misreading of the word allotment for allocation. It is next contended that letters dated 28-1-1998 and 3-1-1998 filed by the respondent No,2 with comments are manipulated by introducing hand written wording of sending the copies to the respondent No,2, which do not find place in the certified copies placed on record by the petitioner as annexures P/12 and P/13, thus hand written endorsement so appearing on these copies are manipulated and, managed one as Directorate of Planning and Urban Design are not authorized to issue the site plan. Per learned counsel, site plan is always prepared after allotment and is delivered along with possession order, that too, after payment of the full occupancy value, which has never been done in the instant case. Next, it is contended that factual controversy could not have been resolved by the learned Ombudsman without leading evidence and the decision so arrived is not sustainable.
Lastly, it is argued that this Court has ample jurisdiction to look into the subsequent events at the time of deciding the case and that each case is to be decided on its own peculiar circumstances and facts. In support, reliance is placed upon case law i,e, 1987 SCMR 1840, PLD 1969 SC 407, 1991 MLD 2317, 1996 CLC 333, 2007 SCMR 1451, PLD 1991 SC 973 and 2005 PLC (C.S.) 1457.
6. Conversely, Ms. Pooja Kalpana, learned counsel for the respondent No,2, argued that Association has fully complied with the terms and conditions of the allocation letter by depositing the occupancy value, thus vested rights have accrued in their favour, which cannot be withdrawn on unfounded grounds. Referring to the grounds of cancellation in both show cause notices, it is pointed out that both are on different grounds as first one is on account of raising no construction while the second one is on account of ban imposed by the Government of Sindh. Per learned counsel, the first show cause notice was never served for want of change of address and any order of cancellation passed thereunder was without hearing which was never given effect by own conduct of the petitioner when a second show cause notice on same subject was issued thus rendered the first one as redundant.
7. We have heard the arguments and perused the material on record called from Provincial Ombudsman Secretariat (POS).
8. So far factual controversy regarding forgery and manipulation alleged by the respondent No,2 is concerned, we are of the considered view that these cannot be decided in exercise of constitutional jurisdiction in view of authorities 2001 SCMR 135 and 2000 SCMR 81.
9. We are conscious about the use of words ' allotment' for 'allocation' and do not find both having the same meaning and implication. It is an admitted fact that entire case of the respondent No,2 is resting upon the allocation order dated 21st April, 1984, which never matured into final allotment order for want of fulfillment of conditions forming part of the allocation order/letter. It is also an admitted position that entire occupancy value was never paid/deposited within stipulated period, entitling the respondent for issuance of allotment order. Although respondent No,2 has disputed the genuineness of allocation order containing conditions at the bottom but altogether failed to place its original despite adequate opportunities, therefore, we are satisfied with the contents of the certified original copy P/11 placed by the petitioner. We are clear in mind that allocation/offer letter for want of non-observation of terms and conditions, implying acceptance, created no rights in favour of respondent No,2, nor could these be enforced giving premium to the respondent No,2 of their own shortcoming. The decision/order of Provincial Ombudsman is outcome of misreading and misinterpretation of word 'allotment' for 'allocation' which is always issued after fulfillment of all the conditions. Mere issuance of allocation letter did not create any enforceable relationship amounting to right in rem.
10. Reverting to the contention of the counsel for the respondent No,2 that vested right did accrue in favour of Association which could not be withdrawn unilaterally. We are not persuaded by it when shortcoming was on their part. Had all the conditions been complied with, there would have been no occasion for the petitioner to have delayed the allotment.
11. We would also like to dilate upon the issuance of two show cause notices on different grounds.
The first one was allegedly not delivered and the allocation cancelled on 8-1-1996. According to the petitioner, the respondent No, 2 had complete knowledge of the notice and withdrawal of the allocation letter. Therefore, it had never sought allotment, nor had got possession of the plot, thus accepting the consequences for good over seven years. By then, the Ordinance X of 2002 was promulgated imposing ban upon disposal of amenity plots, therefore, the show cause notice was maneouvered in order to overcome the long delay. The contention of respondent No,2 that the allocation letter was issued in the year 1984, and the ban imposed by Ordinance X of 2002 could not be applied retrospectively until clearly intended by the statute, is equally without force. Per learned counsel the second show cause notice by itself was in violation of settled law.
12. We have gone through the contents of Ordinance X of 2002, wherein its application is not made retrospective. However, 'disposal' of amenity plot would include 'allotment' whether fresh or in pending cases. The plea of respondent No,2 is that disposal of amenity plot in their favour was effected in 1984, before imposition of the ban. We are afraid, to accept this contention will be contrary to what we have held herein above. The issuance of 'allocation letter's did not amount to disposal, and disposal through allotment had yet to take place. The ban in terms of Ordinance X of 2002 will squarely apply to the subject plot and the 'allotment' cannot be issued after promulgation of Ordinance X of 2002. However, it is merely academic since we have held that the offer for allotment was withdrawn on 8-1-1996.
By short order dated 28-11-2013, we had allowed the petition. The order passed by the Governor on an appeal from the Ombudsman order was set aside along with order of POS dated 19-11-2007.
Above are the reasons for it.