AJMAL MIAN, J.---This Constitutional Petition is directed against the two orders dated 5th May, 1971 and 23rd July, 1971, passed by respondent No. 2 in Appeal No. 255-BD/68 filed by one Abdul Aziz, General Secretary Muslim Cloth Merchants Union, Azimshah Cloth Market, Hyderabad, (i.e. Respondent No. 3) in the present petition and Appeal No. 516-BD/71 filed by the present petitioner.
2. The brief facts leading to the filing of this petition are that petitioner No. 1 entered into a lease agreement in respect of a plot, bearing Survey No. 914 D, Sheet No. 87, Ward `G' Hyderabad, dated 6th November, 1951 for a period of 30 yeaRs.Under which petitioner No. 1 was permitted to put up a market for whole-sale and retail-sale cloth market. It is an admitted position that in pursuance of the lease, the petitioner had put up a market and granted the tenancy rights inter alia to the members of respondent No. 3 association. It seems that respon--dent No. 1 served a notice dated .15th July, 1968 (Annexure `B') alleging therein, that petitioner No. 1 had committed breach of the above lease inasmuch as the shops were let out to more than 241 persons for other purposes than for selling cloth, and, therefore, the lease was liable to be forfeited under clause 12 of the lease. The Chairman of respondent No. 1 purported to cancel the lease under Rule 10 (2) West Pakistan Municipal Committee (Contract) Rules 1960. It further seems that upon the receipt of the representation by petitioner No. 1 and the document to show that the persons dealing with other items than cloth were inducted into the shops at the directions of the then Martial Law Authorities.
The Chairman of respondent No. 1 by his order dated 9th August, 1968 concluded that there was no breach in fact on the part of petitioner No. l and, conse--quently, he withdrew the cancellation notice. It further seem s that the Secretary of respondent No. 3 association filed an Appeal before the Commissioner under section 119, which appeal was allowed by the afore--said order dated 5th May, 1971. It also seems that after the passing of the above order, petitioner No 1 filed the aforesaid Appeal No. 516-DB/71 challenging the cancellation order of the Chairman as the same was res-- tored by the Commissioner through his aforesaid order dated 5th May, 1971, whereby he set aside the aforesaid order of respondent No. 1's Chairman dated 9th August, 1968 withdrawing the cancellation notice. The above appeal was dismissed by the Commissioner on two grounds
(1) that the original grant in favour of petitioner No. 1 by the Municipal Committee was in violation of the mandatory provisions of Sind Municipal Boroughs Act inasmuch as no sanction of the Revenue Commissioner was obtained prior to the granting of the lease in favour of petitioners Nos. 1 and 2 that the lease was not in fact registered. The petitioner being aggrieved by the above two orders has filed the present petition.
3. (a) In support of the above petition Mr. Mushtaq Memon, the learned counsel for the petitioner has inter alia contended as follows :-
(i) That the Secretary of respondent No. 3 had no locus standi to file an appeal.
(ii) That the Chairman of the respondent No. 1 had power to recall his earlier order of cancellation of lease after discovering the true facts.
(6) Mr. Abdul Hameed Khan, learned counsel for the Corporation has contended as follows :
(i) That the petitioner had in fact filed a suit namely, Suit No. 231/ 71 in the Civil Court; Hyderabad on 5th January, 1971 against the order dated 5th May, 1971.
(ii) That in any case the lease period of 30 years has expired admit--tedly on 6th November, 1981 and therefore, the above petition has become infructuous.
(c) Whereas Mr. G. H. Abbasi, the learned counsel for respondent No. 2 has urged as follows
(i) That the Chairman of respondent No. 1 had no power to recall the order in the absence of any express power conferred on him under the relevant law.
(ii) That since original grant in favour of petitioner No. 1 was with--out the permission of the Revenue Commissioner as observed by the respondent No. 2, the latter was entitled to examine the above question being a legal question.
(i.e) That in any case the lease period has expired the petitioner cannot have any cause of action for prosecuting the above petition.
4. Reverting to Mr. Abdul Hamid Khan's contention that the above petition has become infunctuous as petitioner No. 1 had availed of the remedy in the form of the suit, it may be observed that according to Mr. Abdul Hameed Khan the above suit was dismissed for non-prosecution on 7th March, 1973. It will suffice to observe that if the order of respondent No. 1 is to be held to be without jurisdiction, the filing of suit itself will not render the above petition infructuous. The reference can be made to the case Salahuddin & others v. Frontier Sugar Mills & Distillery Ltd. (PLD 1975 SC 144).
Furthermore. Subsection (2) of section 119 of the Municipal Administration A Ordinance provides that no suit would be competent against the order passed in appeal. In this view of the matter in our view the above petition has not become infructuous. Admittedly the above suit is no longer pending as it was dismissed in default.
5. (a) With reference to the contention of the learned counsel for the parties on the question, as to whether the Chairman of respondent No. 1 had the power to recall his cancellation order, it may be observed that Mr. Mushtaq Memon, learned counsel for the petitioners has relied upon the case of Pakistan v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) and the case of N. Q. Industries v.
MRs.Bagai Kaikhusro (PLD 1968 Kar. 589).
On the other hand, Mr. G. H. Abbasi, the learned counsel for the respondent No. 2, has referred to the case of Hussain Bux v. Settlement Commissioner Rawalpindi (PLD 1970 SC 1).
(i) Reverting to PLD 1969 SC p. 407 it may be observed that the Supreme Court in the above case inter alia observed that the principle of locus poenitentiae (power of receding till a decisive step taken) is available to Government or to the relevant authorities and the authori--ties competent to make an order has the power to undo. However, this power cannot be exercised if before exercising such power, certain rights have been created in favour of any individual. The question before the Supreme Court was, as to whether the President of Pakistan was competent to recall on 26th August, 1962 an order dated 1st October, 1959 granting certain grade/pay to the respondent after the above order was acted upon. The Supreme Court concurred with the judgment of the High Court and held that the power to recall the above order was no longer available with the President after the order was acted upon.
(ii) Referring to PLD 1968 Karachi, it will suffice to observe that in the above case the question before the learned Single Judge was as to whether the Rent Controller could set aside an order passed in default for non-appearance. It was urged that since the late West Pakistan Urban Rent Restriction Ordinance did not provide any power to recall the order, the Rent Controller was not competent.
The above contention was repelled and it was held that the authority competent to issue an order has also power to vary or cancel that order and the reliance was placed on Section 20 of the West Pakistan General Clauses Act.
(i.e) As regards the case reported in PLD 1970 S. C., it may be observe--ed that the question before the Supreme Court was, whether the High Court apart from its power to correct errors apparent on the face of the record in exercise of its inherent powers, had the powers under C. P. C. To review its order made in exercise of its Writ Jurisdiction. It was held that the right to claim review of a decision of any Court of Law like the right of appeal is substantive right and not mere matter of procedure and that a review is not available unless it has been conferred by law.
(b) In our view the above two cases cited by Mr. Mushtaq Memon are on all fours applicable to the instant cases, whereas the above Supereme Court case 1970 relied upon by Mr. Abbasi has no application to the instant case. It is an admitted position that the Chairman of respondent No. 1 acting as the lessor of the land in question issued notice dated 15th July, 1968 for cancellation of the lease. However. When proper facts were brought to his notice by petitioner No. I he recalled his aforesaid order of cancellation. In our view he was competent to recall the order of cancellation of the lease. It is inherent power of a lessor to waive the breach or to withdraw the notice of termination and that power was available to respondent No. 1 Chairman if he was competent to issue cancellation notice.
We may observe that the reasons recorded by respondent No. 1 (Chair--man), in his order dated 9th AugustJ1968 for recalling the order of the cancellation of the lease are cogent and, therefore, in any case respondent No. 2 was not justified in interfering with the above order on the ground that the Chairman was not competent to recall his order. It may be pertinent to observe that the lease in question was granted prior to the enforcement of the Municipal Committee (Contract) Rules.
1960, and there fore, the contention of the learned counsel for the petitioner that the above Rules could not have been pressed into service is not without any force.
6. Reverting to Mr. Memon's contention that respondent No. 3 (Secretary) had no locus standi to file the aforesaid appeal against the afore--said order dated 9th August, 1968, recalling the cancellation notice of the lease, it may be pertinent to observe that it is an admitted position that the members- of respondent No. 3' s Association were inducted into the shops by petitioner No. 1 as tenants. In our view because of section 116 of the Evidence Act, respondent No. 3's members were estopped from alleging or agitating any right or interest adverse to petitioner No. 1. Nothing has been brought on record by the respondents to indicate that the original order of the cancellation of the lease was passed by respondent No.1's Chairman upon the application of respondent No. 3's Association. In this view of the matter, it cannot be said that respondent No. 3 was an aggrieved person within the ambit of section 119 of the Municipal Administration Ordinance for the purpose of maintaining an appeal.
7. With reference to the contention of M/s. Ghulam Hussain Abbasi and Abdul Hameed Khan's contention that as a matter of fact the lease has expired on 6th November, 1981 and, therefore, the petition has become infructuous it may be observed that in case the order of termination holds the field, petitioner No. I would not be entitled to recover any rent from the occupants of the shops for the period prior to 6th November, 1981 and therefore, it cannot be urged that the petition has become infructuous. However, at the same time we would like to observe that since the lease has expired, it will be for respondent No. 1 to decide as to whether the lease is to be renewed or not.
According to the learned counsel for the respondents, the petitioner has no legal right to get a renewal of the lease is there is no such clause in the expired lease. In our view, it will not be Proper for us to comment upon the above contention, but it will suffice o observe that respondent No. 1 will be free to deal with the renewal application of the petitioner No. I in accordance with law.
8. Reverting to the second order namely, dated 23rd June, 1971, gassed by respondent No. 2, it may be observed that according to the earned counsel for the petitioners, petitioner No. 1 had filed the above appeal after the passing of the order dated 5th May, 1971 by the Commis--sioner, whereby he had restored the cancellation order, it may be noticed that respondent No. 2 has dismissed the above appeal on the two grounds noticed hereinabove in para. 2 namely, that the original lease was granted without obtaining the sanction/approval of the Revenue Commissioner as was required under the Sind Municipal Boroughs Act and that the lease was not registered. The first ground found favour by respondent No. 2 though it was never agitated during 20 years preceding to the passing of the impugned order. It may be observed that the lease in question was execu-- ted in 1951, where the impugned order was passed on 23rd July, 1971. It is an admitted position that in pursuance of the lease, petitioner No. 1 had put up construction of a market comprising about 550 shops. It is also an admitted position that till the cancellation of the lease the Municipal Committee was realising the lease money from petitioner No. 1, who in turn was realising the rent from the occupants of the shops. In the above back-ground of the facts, it was not just and proper for respondent No. 2 to non-suit petitioner No. 1 on the above ground. If the above ground was in fact legally resistible (which is very doubtful) it would have been proper to provide a reasonable opportunity to petitioner No. 1 before acting upon the above ground.
As regard to the second ground, namely, the non-registration of the lease dated 6th November, 1.951, it seems that factually the above ground is incorrect as petitioner No. 1 has filed the certified copy of a registered lease deed, which was duly registered by the Sub-Registrar Hyderabad on 13th November, 1951 at pages 214 to 400 Book No. 1. The above-order also cannot be sustained on the above grounds.
' Furthermore, since we have held that respondent No.1's Chairman could have recalled the order of the cancellation of the lease, it must follow from it that any subsequent order passed to the order dated 9th August, 1969 recalling the cancellation notice is of no legal effect.
9. For the aforesaid reasons we allow this petition and declare the two orders as without lawfull authority. However, we may observe that it will be open to respondent No. 1 to consider the renewal application of lease in accordance with law since the lease has already expired There will be no order as to costs.