1. LAL JAN KHATTAK, J. Petitioner through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has applied this Court for issuance of a writ declaring the orders dated 02.02.2010 and 04.02.2010, as illegal and void ab initio, whereby the respondent Nos.2 and 3 have not only cancelled the allotment of his industrial plot but have further allotted the same to respondent No.4. Petitioner has also prayed for a relief of restoration of possession to him of the plot in question.
2. 2- Brief facts of the case are that a plot bearing No.38/1 measuring 02 Acres, situated at Phase I & II in Hattar Industrial Estate, Haripur (hereinafter to be referred as the plot) was initially allotted to MIs Khalid Construction Company Ltd for the purpose of setting up "Fabricated Housing Industry" vide allotment letter dated 10.10.1985. Thereafter, the plot was sold by the said Company to Muhammad Kamran, brother of the petitioner, from whom same was purchased by the petitioner and to this effect, a lease deed was executed and registered on 04.03.2008, whereby the plot was allotted to the petitioner for a period of 99 years by the respondent Nos.2 and 3. On 11.10.2010, petitioner received a letter / order dated 02.02.2010 from the respondent No.3, whereby he came to know that the respondents have cancelled the allotment of his plot and have further allotted it to respondent No.4 vide allotment order dated 04.02.2010. Petitioner has impugned the order of cancellation of his plot and its subsequent allotment to respondent No.4 through the instant writ petition.
3. 3- Respondents No.2 and 3 filed their comments while the respondent No.4 filed his written statement, wherein they opposed issuance of the desired writ. This Court, on 04.06.2013, after hearing learned counsel for the parties had dismissed the writ petition on merit, whereagainst the petitioner filed appeal before the Honourable Supreme Court of Pakistan, which, with consent of the learned counsel for the parties, was allowed and on setting aside the order dated 04.06.2013, the case was remanded to this Court for its disposal afresh after taking into consideration all its factual and legal aspects including competency and maintainability thereof.
4. 4- Learned counsel for the petitioner contended that the plot was legally leased out to the petitioner by the respondents vide registered lease deed dated 04.03.2008 for a period of 99 years over which with the passage of time he raised construction and moved in some locally manufactured machinery to achieve the purpose for which same was allotted to him. Further contended that for no legal ground and justification, the respondents have cancelled the allotment of plot from the petitioner's name and then subsequently have allotted it to the respondent No.4.
5. Learned counsel then contended that the impugned cancellation order and subsequent allotment of the plot to respondent No.4 was arbitrary and based on sheer mala fide, which has no legal backing. Lastly argued that the petitioner has been deprived of his property by the respondents, except in due course of law, and in connivance with each other, which action of theirs' is contrary to the principles of natural justice and fair play, therefore, the impugned orders be declared as illegal and of no legal effect. In support of his case, learned counsel for the petitioner placed reliance on PLD 1992 SC 113, 1998 SCM R 2268, 1999 SCM R 2883, 2003 SCMR 90, 2005 SCM R 126, 2005 SCM R 678 and 2008 M LD 782.
6. 5- As against the above, learned counsel for the respondent No.4, first of all raised preliminary objections on the maintainability of the writ petition by arguing that in view of the arbitration clause as contained in the initial lease deed dated 04.03.2008, the writ petition was not maintainable, because per clause V(4) of the agreement, the dispute, if any, was referable to the arbitrator nominated by Chairman SDA for its resolution, which forum the petitioner has not availed. It was further contended that the petitioner has brought a factual controversy for resolution thereof before this Court in a writ petition, which matter is not amenable to the writ jurisdiction of this Court. On merit, it was argued by the learned counsel that the petitioner had failed to comply with the terms and conditions embodied in the lease deed, as he did not utilize the plot, within the prescribed period, for the purpose it was leased out to him. It was further argued that the writ petition has been filed at a belated stage and, as such, it was hit by lathes. Learned counsel relied upon the case law reported in PLD 1962 SC 108, PLD 1990 SC 48, 1999 SCM R 121, PLD 2003 SC 808, PLD 2011 SC 44, 1999 CLC 26, 2001 CLC 694, 2012 CLD 298, 2011 M LD 10, 2012 M LD 902, 2006 YLR 467 and PLD 1997 K 636.
7. 6- Learned counsel for the respondents No.2 and 3 adopted the arguments advanced by learned counsel for respondent No.4 and also relied upon 2010 SCM R 1097, 2012 CLC 1729, 2013 CLC 34, 2011 M LD 10, 2009 YLR 348 and 2013 YLR 2132.
8. 7- We have heard learned counsel for the parties and gone through the case record with their valuable assistance.
9. 8- Perusal of the case record would show that admittedly the petitioner was legally allotted the plot by the respondents for a period of 99 years vide registered lease deed dated 04.03.2008.
10. Record reveals that the respondents on 02.02.2010 without associating the petitioner in the cancellation process or giving him any plausible reason and notice regarding the cancellation have unilaterally cancelled the allotment. It is strange to note that on 3rd day of the cancellation i.e. 04.02.2010, the plot was allotted to the respondent No.4 by the respondent No.3 and that too without putting the same for any auction etc. It is noteworthy that the ibid allotment letter dated 04.02.2010 refers to a request made by the respondent No.4 to the SDA Authorities on 16.01.2014, on which date the impugned cancellation had not been conceived at all. Question arises that how respondent No.4 had come to know on 16.01.2014 that certftwri r n be irue Copy the plot, which was duly allotted to the petitioner, would be cancelled from him. Both the learned counsel for the respondents were asked to clarify the above imbroglio of the case but they did not answer on this aspect of the case satisfactorily, which shows that the respondents were in league and connivance with each other prior to the impugned cancellation and its subsequent allotment. This unexpected and extraordinary swift action of the respondents has generated reasonable suspicions in minds, which has made the impugned orders as dubious one because the entire process starting from cancellation to the subsequent allotment lacks transparency therein.
11. 9- Of course, the authorities of SDA were legally empowered to cancel the plot but subject to the procedure prescribed for cancellation. Record reveals that neither any notice for cancellation was served upon the petitioner nor the reasons given in the impugned cancellation order are justifiable on any count. According to the bye-laws of the SDA, copy of which was supplied to the Court by learned counsel for the petitioner, if a lessee fails in establishing his unit in the plot within two years of allotment then in that eventuality the lessor can resort to withdraw all the facilities for such violation which was not the case of the petitioner as the stipulated period of two years had not yet been expired when the cancellation order was issued.
12. 9- The impugned orders are seemingly based on mala fide and to accommodate the respondent No.4 at the cost of the petitioner, which action of the respondents cannot be countenanced and approved by this Court for its being contrary to law, rules, good governance and the principles of natural justice.
13. 1 1 - Now, we come to the preliminary objections raised by learned counsel for the respondents. It is well settled that a general objection taken in a written statement about non-maintainability of a case on the basis of some arbitration clause in the agreement, would be of no importance and significance unless a specific application at initial stage of the case is moved requesting the Court to refer the case for arbitration. As the respondents have moved no such application, therefore, such objection of the learned counsel for the respondents is repelled.
14. 12- Contention of the learned counsel that an alternate remedy of filing a civil suit was available to the petitioner, which was not availed, too has no force, as it is also well settled that mere existence of an alternate legal remedy for the redressal of a grievance cannot per se be a good ground for dismissal of a writ petition, particularly when the impugned order is tainted with mala fide.
15. 13- Learned counsel for the respondents had also argued that the writ petition was not maintainable as the petitioner has brought a factual controversy for its resolution before the High Court in its constitutional jurisdiction. This objection of the respondents too is not correct as there is no factual controversy involved in the case because allotment of the plot to the petitioner was admitted, its cancellation was not denied and its subsequent allotment to the respondent No.4 is not under dispute. The question of factual controversy will arise only when some facts are asserted by one party and denied by the other but when parties to a /is do not deny the existence of any fact then in that eventuality a High Court can well proceed with the case to decide it. Therefore, this objection of the learned counsel for the respondents too is repelled. Regarding objection that the writ petition is hit by lathes, suffice it to observe that when an order or action is basically illegal, contrary to the established principles and based on mala fide then such order or action cannot be allowed to remain in the filed on the mere ground that same has not been challenged within due time.
16. 14- No doubt, learned counsel for the respondents, after considerable research, have cited Certified to be True Copy number of authorities at the bar, which assistance of Court theirs' we appreciate but, with due respect, we hold the same not relevant to the facts and circumstances of the instant case.
17. 15- For what has been discussed above, we accept this writ petition as prayed for and declare that the order of cancellation of plot dated 02.02.2010 is illegal, unlawful, based on mala fide and, as such, is of no legal effect. Likewise the subsequent allotment order of the plot in favour of the respondent No.4 on 04.02.2010 too is declared illegal, unlawful and of no legal effect. No order as to costs.