' SHAUKAT AZIZ SIDDIQUI, J. --- Petitioner invoked the Constitutional Jurisdiction of this Court by way of filing instant Petition with the following prayer:- "In view of the aforesaid it is prayed that this Hon'ble Court may be pleased to declare that the Respondent No, 3's Cancellation Letter dated 11.06.2011, Respondent No, 3's Letter dated 26.06.2022 returning four pay-orders to the Petitioner, and the course of action proposed by the Respondents in the affidavit submitted by Chairman CDA before this Hon'ble Court in the matter of Shabnam Ashraf v. CDA in relation to the Petitioner's School Plot, is ultra vires of the law and the Constitution, unlawful and of no legal effect.
' It is further prayed that the Petitioner be granted a permanent injunction and the Respondents be retrained from prejudicing the vested rights of the Petitioner in the Petitioner's School Plot so long as the Petitioner continues to abide by its legal responsibilities in accordance with the law and the terms of the Allotment Letter.
' It is further prayed that the Respondent No, 3's Cancellation Letter dated 11.06.2011, Respondent No, 3's Letter dated 26.06.2012 be suspended during the pendency of the instant writ petition, the Petitioner be granted a temporary injunction and the Respondents be retrained from prejudicing the vested rights of the Petitioner in the Petitioners School Plot so long as the Petitioner continues to abide by its legal responsibilities in accordance with the law and the terms of the Allotment Letter.
' It is further prayed that the Respondents be directed to consider and process the architectural designs and building approval plans for Silver Oaks School on their merit without prejudice to the pendency of this Writ Petition.
' It is further prayed that the Respondents be directed to submit the record of all School Plots allotted, including the advertisements pursuant to which applications for such allotment were invited and the lists of successful applicants who were allotted School Plots upon satisfying the required criteria.
' It is further prayed that the Respondents be directed to submit a report on the disciplinary and penal actions taken against the officials of Respondent No, who prepared, approved and administered the School Prot Allotment Policy 2006, which resulted in the allotment of School Plots on a non-transparent basis requiring the Respondents to cancel plots in terms of the Affidavit submitted by Chairman CDA before this Hon'ble Court, and further that inquiry be ordered against officials of Respondent No, 1, pursuant to the Government's E&D Rules and the National Accountability Ordinance, against officials responsible for allotment of School Plots in a fair and transparent manner who failed to discharge such duty.
' It is further prayed that the Respondents be directed to create a level playing field that promotes equal opportunity on the basis of free and fair competition amongst all educational institutions of Pakistan when it comes to the allotment of School Plots in the federal capital and the Respondents be permanently restrained from issuing policies for allotment of plots that afford preferential treatment to applicants on the basis of their residency or domicile.
' It is further prayed that this Hon'ble Court grant any other relief that may be deemed just and appropriate in the circumstances."
2. Brief facts, as per the averments of instant petition, are that, Petitioner has a private school established since 1992, and has a proven track record of providing quality education in Rawalpindi; that Petitioner was allotted Plot No, 89 in Sector H-8/1 Islamabad for establishment of a purpose- built school, which has now cancelled by Respondents in an arbitrary manner; that in 2006, Respondent No, 1 planned, authorized and executed a scheme in the name of "School Plot Allotment Scheme 2006" to allot earmarked amenity plots for the specific purpose of establishing schools, that policy of awarding plots to schools already established in Islamabad was discriminatory and in breach of Articles 8, 9, 18 and 25 of the Constitution of Pakistan; no rational distinctions could be drawn between residents of Islamabad and residents of the rest of Pakistan while allocating school amenity plots in Federal Capital; that policy of awarding plots only to educationist established in Islamabad would be unjust and against public interest; that policy of awarding plots to educationist already established in Islamabad is tainted with an inherent bias encouraging illegality as it was meant only for educationist who had not been allotted any plot by the CDA previously; that Petitioner was informed that respondent No 1, had proposed to the CDA Board an amendment to the advertised policy in order to allow educationists, out of Islamabad to participate in the open competition for allotment of amenity plots in Islamabad by reserving a certain quota for them; that Board of respondent No, 1, did subsequently approve plot allotment policy 2006 by allowing educationists established outside Islamabad to participate in the School Plot Allotment Scheme 2006; that petitioner further wrote to respondent No, 1 on 15.02.2007, beseeching respondent No, 1 to consider the Petitioner's application submitted in response to the said Scheme on merit as well as on grounds of equity, and respondents No, 1 & 2 considered the Petitioner's application alongwith all other applications received under the School Plot Allotment Scheme 2006; that petitioner was eventually allotted Plot No, 89 in Sector H-8/1, Islamabad; that pursuant to the conditions of Allotment Letter, petitioner submitted:---
(i) a pay order in the amount of Rs, 89,54,000/- as 25% of the Cost of Plot.
(ii) a bank guarantee in the amount of Rs, 53,72,400/- &
(iii) AGR for the first year in the amount of Rs, 9,608/- ' that petitioner was issued a certificate of possession, and handed over the possession of the Petitioner's School Plot on 13.11.2008; that petitioner has been paying the instalments in accordance with Allotment Letter; that after having acquired possession of the Petitioner's School, petitioner has been incurring ongoing expenses in digging and levelling the land, hiring architects for designing the custom built school etc; that in response to the Petitioner's application dated 16.08.2011, building plan was approved according to the settled principle, but later, on 11.06.2011, petitioner received a letter from the office of respondent No, 3 that allotment of the said plot has been cancelled in the light of the judgment dated 29.03.2011, passed by the Hon'ble Supreme Court of Pakistan; that stated judgment does not relate to the petitioner's School Plot and neither was the petitioner a party to the proceedings; that in the said matter/judgment respondent No, 1 has proposed to:--- "review all the allotments qua plots, which were not mentioned in the advertisement dated 18.10.2006." ' that main objections regarding administration of the School Plot Allotment Policy 2006 were that:- --
(i) ' (i) CDA awarded plots in sectors not included in the advertisement.
(ii) ' (ii) Educational institutions not already established in Islamabad were also considered for allotments.
(iii) ' (iii) Applications received after the deadline mentioned in the advertisements were also considered. ' that in response to these objections CDA Chairman submitted in his affidavit that:- '(i) CDA did award School Plots outside the Advertised Sectors.
(ii) '(ii) Applicants from outside Islamabad were also considered for allotment.
(iii) '(iii) Applications received after the deadline were also considered for School Plot allotments. ' that after statement of these facts in the affidavit and the admission that the competent authority i,e, the CDA Board duly approved the consideration of applicants running schools outside Islamabad after the publication of the advertisement dated 18.10.2006, Chairman CDA went on to propose the course of action that CDA will issue notices to the persons who have been allotted plots pursuant to the advertisement dated 18.10.2006, that all the persons who were allotted plots in Sectors were not mentioned in the advertisement, nor they were educationists and are adversely running Schools in Islamabad, that all those persons whose applications were entertained after the cut-off date of 16.11.2006, that subject to the conduct of hearings; ' that upon receipt of the Cancellation Letter, the petitioner sought an appointment from respondent No, 1 and met the then Chairman to explain his predicament and explained the following to Respondent No, 1:---
(a) ' (a) That petitioner was allotted. The School Plot after have participated in the public advertisement process.
(b) '(b) That in the past school established outside Islamabad were considered in the process of allotment of plots.
(c) '(c) That petitioner had already communicated to CDA that the police of reserving plots only for applicants from Islamabad was a breach of Articles 8, 9, 18 & 25 of the Constitution.
(d) '(d) That petitioner had been allotted a plot after its application on merits.
(e) '(e) That cancellation of petitioner's school plot would cause serious detriment and irreparable loss to petitioner.
(f) That cancellation of petitioner's plot would cause serious injustice to petitioner by undermining its substantive fundamental rights as well as constitution due process rights. ' that after meeting with Member Estate & Planning CDA, respondents No, 1 & 2 agreed that cancellation letter had been issued on the basis of misunderstanding of facts; that rising cost of construction due to delay in withdrawal of the Cancellation Letter continued to prejudice the interests of petitioner; that instead of withdrawing the cancellation letter, respondent No, 3 sent a letter to the petitioner that petitioner's school plot had been cancelled and the last four pay orders deposited by petitioner were being returned accordingly, but in this letter did not mention anything about remaining instalments already received and utilized by respondents in an amount of Rs, 21 million; that respondents have attempted to transfer the burden of their obligations to petitioner; that being an aggrieved person from the purposes of 'Article .199 of the Constitution, Petitioner has no effective or alternative legal remedy but to seek the intervention of this Hon'ble Court in its Constitutional jurisdiction.
3. Learned ,counsel for the petitioner while arguing his case almost reiterated the same facts as narrated in his petition that the policies of the Respondents are against the fundamental rights of Petitioner, and Petitioner has left with no other option/remedy except to invoke the Constitutional jurisdiction of this Court.
4. On the other hand learned counsel for the Respondents contested the writ petition while arguing that according to Clause-7(4) of ILDR-2005, regarding allotment of school plots to private sector, Plots earmarked for educational institutions in private sector shall be allotted after inviting applications and as per criteria to be laid down by the CDA Board; that in pursuance to the approval of the authority, public notice was issued in the National Dailies on 18.10.2006, for inviting applications for allotment of school plots, and last date for submission of applications was 16.11.2006, which was extended upto 15.12.2006 through public notice by the Authority; that in pursuance to the public notice, 59 applications were received, out of which, 42 from the schools operating in Islamabad and 17 from outside Islamabad; that the applications were scrutinized by a committee comprising of six persons including Chairman; that subject to the conduct of hearing CDA has cancelled all allotment of plots in Sectors other than those mentioned in the advertisement dated 18.10.2006; that CDA has cancelled all allotments made to the persons who were not educationists already running schools in Islamabad; that CDA has also cancelled allotments made to the persons whose applications were entertained after the cut-off date of 16.11.2006; that in pursuance to the decision of the Hon'ble Supreme Court of Pakistan dated 29.03.2011, in case titled "CDA v. Gulzar Hussain", the Estate Management Directorate-II cancelled the allotments of six schools including the allotment of the petitioner; that as per policy, school plots for private sector were planned to accommodate those schools having their establishment in Islamabad in residential premises to eradicate such nonconforming use of residential buildings; that policy is based on the issue of non-conforming use of residential buildings in violation of terms and conditions of allotment; that CDA Board is competent to decide the disposal of school plots and in this case the allotment of school plots was decided by CDA Board in its meeting; that school plots have been cancelled in compliance to the Orders of the Hon'ble Supreme Court of Pakistan dated 29.03.2011; that Petitioner is not entitled to any extraordinary relief, whatsoever, and this petition deserves dismissal with costs.
5. I have heard the learned Counsel representing the parties and have gone through the available record with their valuable assistance.
6. The crux of the pleadings of the parties is that the respondents invited applications for allotment of school plots to the private sector, that public notices were issued in the National Dailies dated 18.10.2006 and last date for submission of applications was 16.11.2006 which was extended upto 15.12.2006 through public notice by the authority, that the petitioner approached the respondents to persuade them that allotments of school plot to the private sector only situated in Islamabad was breach of Articles 8, 9, 18 & 25 of the Constitution of Islamic Republic of Pakistan, that argument of the petitioner prevailed with the respondents and the application of the petitioner, who is not based in Islamabad and other such like institution were also entertained, that in total 59 applications were received out of which 42 applications were from the schools operating in Islamabad and 17 were from schools outside Islamabad.
' Admittedly, the CDA Board exercised its power in accordance with Regulation 07 of the Islamabad Land Disposal Regulation, 2005 and CDA board decided to consider the applicant schools operating outside Islamabad for the allotment of plot and thereafter the respondents allotted plot No, 89 in Sector school H-8/1 Islamabad to the petitioner for the establishment of school.
7. Perusal of the para-wise comments submitted by the respondents and the arguments advanced by the learned counsel for the respondents reveals that fact which motivated the respondents to cancel the allotment of the plot through the impugned letter dated 11.06.2011, was a decision rendered by the Hon'ble Supreme Court of Pakistan dated 29.03.2011 in case titled "Capital Development Authority v. Gulzar Hussain". It will be appropriate to quote the judgment of the Hon'ble Supreme Court of Pakistan for the purpose of ready reference:- ' This judgment shall dispose of the titled civil petitions as they have nexus and directed against the same judgment dated 28.10.2009 passed by the Hon'ble Lahore High Court, Lahore, Rawalpindi Bench, Rawalpindi, vide which appeals were dismissed and it was observed that the order of the CDA allotting plots in favour of the Zarmina Shakeel for the establishment of the school is illegal and without lawful authority.
' Learned counsel for the petitioner department CDA (CPS 2603 to 2606/2010) who is also respondent in other petitions submitted on instruction that CDA has decided to review all the allotments qua plots which were not mentioned in the advertisement dated 18.10.2006 including the plot, subject-matter of these petitions, in terms of affidavit given by the Chairman CDA before the Islamabad High Court in Writ Petition No, 2125/09.
' In these circumstances, he prayed that let the impugned judgment and also the letter of allotment or plot, subject-matter of these petitions, be annulled and CDA be allowed to proceed in the matter afresh, strictly in accordance with laws and regulations and instructioa if any.
' Learned counsel for the respondents (Muhammad Akram Sheikh Sr. ASC) does not join the issue with the aforesaid proposal.
' In view of the fair stance taken by the CDA and for the parties these petitions are converted into appeals and are allowed with the consent of the parties and the impugned judgment is set aside leaving the CDA to proceed with the matter in the light of the affidavit to which reference have been made above. Since the matter is lingering on for several years, the Chairman CDA shall ensure that competent authority of CDA decides the matter within 06 weeks of the receipt of this judgment strictly as mandated in law. No order as to cost."
8. The above-referred judgment of the august Supreme Court of Pakistan reveals that the controversy before the august Supreme Court of Pakistan was allotment of plot in favour of Zarmina Shakeel for the establishment of the School in the Capital Territory and no other plot was disputed in those proceedings including the plot allotted to the petitioner. In the proceedings before the august Supreme Court of Pakistan, the learned counsel for the CDA had submitted that the CDA had decided to review the allotment qua plots which were not mentioned in the advertisement dated 18.10.2006 with reference to above-said version of the CDA in the august Supreme Court of Pakistan it is observed that it is not the stance of the CDA that the disputed plot was not included in the advertisement dated 18.10.2006 and on this score the cancellation of the plot from the name of the petitioner is absolutely illegal, null and void.
9. The learned counsel for the CDA, in the proceedings before the august Supreme Court of Pakistan, had also referred to the affidavit given by the Chairman CDA before the Islamabad High Court in Writ Petition No, 2125/2009, and it would also be appropriate to have a glance on the order passed by this Court in the matter titled "Shabnam Ashraf v. CDA" which is annexed with this petition as "Annexure N". In Writ Petition No, 2125/2009, the petitioner Shabnam Ashraf had challenged the allotment of the plot No, 2A situated in Diplomatic Enclave Islamabad to American School of International Academics on the ground that said plot was not included in the advertisement dated 18.10.2006. In the said writ petition Imtiaz Anayat Ali, Chairman, CDA sworn his affidavit wherein he provided that some plots in Sectors not mentioned in the aforesaid public notices/advertisements were also made available to parties, that in response to the notice/advertisement dated 18.10.2006 applications were entertained from the applicants not already running school in Islamabad even though the advertisement of 18.10.2006 had restricted the allotment only for the educationists already running schools in Islamabad and that the applications were entertained after the cut-off date on 16.11.2006.
10. The Hon'ble Islamabad High Court accepted the writ petition through order dated 10.02.2011 and ordered the cancellation of Plot No, 2-A situated in Diplomatic Enclave from the name of Sardar Hamid Yar Hiraj and American School of International Academics and also cancelled the plot No 5 in Sector D-12/2 from the name of the Shabnam Asharaf, the petitioner of writ petition No, 2125/09.
Again the disputed plot allotted to the petitioner was not subject-matter of controversy before this Court and neither the Honble Islamabad High Court nor the august Supreme Court of Pakistan passed order or gave any observation effecting the rights of the petitioner.
11. It has already been discussed that the respondents cancelled the plot from the name of the petitioner in view of the affidavit submitted by the Chairman CDA in the Islamabad High Court in writ petition No 2125/2009 and the above-referred order of the Islamabad High Court apparently reveals that the CDA board had reserved the right to review the allotment of any land in the name of any person if it found that allotment was procured through the practice of fraud, forgery and misrepresentation of facts but even in that case the condemnation without providing an opportunity of hearing is illegal. If the respondents had any material against the petitioner that the petitioner had obtained the allotment of plot in violation of any law rules & regulation, they would had provided the opportunity of hearing to the petitioner especially when they had not only received huge amounts from the petitioner but also put the petitioner in possession of disputed plot and approved the building plan submitted by the petitioner.
12. The only relevant provision in the Islamabad Land Disposal Regulation, 2005 is Regulation 7(4) which provides that plots earmarked for educational institutions in private sector shall be allotted after inviting applications and as per criteria to be laid down by the CDA Board. This regulation by itself does not provide that only the educational institution established in Islamabad would be entitled for the allotment of the plots for establishing the educational institution. It is the contention of the petitioner that the CDA Board had approved the allotment of the plots for the establishments of the educational institution based anywhere and in this regard the petitioner has placed the reliance on "Annexure B" which is news clipping in which it is provided that the CDA Board had approved 30% quota for educational institution from outside Islamabad and remaining 70% for the schools running in the Capital Territory. There is no other document with the respondents to establish that the CDA Board had not approved the policy to allot 30% of the plots to the educational Institutions not established in Islamabad. When the respondents themselves received the application of the petitioner, scrutinized it, entertained it and approved it by allotting the plot No 89 Sector H-8/1 Islamabad to the petitioner to establish the school, they received huge amounts from the petitioner, put the petitioner in the possession of the disputed plot, issued the possession certificate to the petitioner and approved its building plan, then how can they deny that they had formulated some other policy.
13. As per version of the petitioner, he incurred huge amounts on the levelling and digging of the land for the construction of the purpose built school in the disputed plot and all of sudden, he received letter about the cancellation of the plot from the authorities. Respondents have proceeded in violation of Articles 4, 9, 18 & 25 of the Constitution of the Islamic Republic of Pakistan and they have also violated the principle of "Audi Alterum Partum" as no opportunity was afforded to the petitioner to put forward his version before any adverse action would have been taken against him. Regulation No, 19 of the Islamabad Land Disposal Regulation, 2005 is about the cancellation of plots wherein it is provided that the allotment of the plots shall be liable to be cancelled on non-payment of dues within the specified, period, non-completion of the building within specific period, violation of other terms and conditions of allotment e.g. Nonconforming use, sub-division, amalgamation of plots etc. And violation of Municipal by-laws and building, Zoning and other regulations and instructions of the Authority. The impugned cancellation order reveals that none of the default as provided in this regulation are attributed to the petitioner and on this ground the disputed plot would not have been cancelled from the name of the petitioner.
14. Before parting with this judgment it is imperative to observe that none especially the Government and its authorities are expected to cheat the people through pronouncements, declarations or acts issued by its representatives and subsequently withdrawn by his successor representatives. If an innocent person believing the officials pronouncements and acts as genuine, invest huge amounts and thereafter the same are withdrawn, he should not be made to suffer and if any action is to be taken against him, then the example should be set by taking to the task, that representative who either issued false declarations or with male fide intention withdrew the said declarations. In view of the above discussion, it is observed that the petitioner had submitted the application for allotment of the plot to the respondents within the cut-off date i,e, 18.11.2006, disputed plot was included in the advertisement dated 18.10.2006 and if it would have been the policy of the CDA board to allot the plots to the educational institutions already established in Islamabad then the application of the petitioner should not have been proceeded any further and should have been rejected summarily but the respondents proceed with the application of the petitioner and ultimately allotted the disputed plot to the petitioner. In these circumstances, the instant petition is hereby allowed and the impugned order of the respondents whereby the plot was cancelled from the name of the petitioner and pay orders were returned to the petitioner are hereby set-aside and declared to be null and void. Needless to observe that the respondents may proceed in accordance with law against the petitioner if any fraud or forgery is found to have been committed by him in securing the allotment of the disputed plot in his name, after providing the opportunity of hearing to the petitioner. No order as to costs.