' FAISAL ZAMAN KHAN, J. The facts giving rise to the present petition are that petitioner was owner of land measuring 100 Kanals in Mouza Chak Bharat Lahore which was situated within the precincts of Phase-VIII of the Defence Housing Authority (Respondent). In the year 2003 petitioner entered into an agreement with respondent for sale of 100 Kanals of land against which 17 exempted plot files were to be given to him. Thereafter a conveyance deed dated 05.03.2003 bearing Document No,3529 Volume No,1, Book No,115 was registered with Sub Registrar Aziz Bhatti Town Lahore, subsequent to which mutation No,326 dated 16.05.2007 was sanctioned in favour of the respondent and possession was handed over.
2. In furtherance of the agreement/conveyance deed petitioner was given 17 exempted plot files, which he from time to time and without any objections from the respondent has been selling the same.
3. Petitioner being owner of another plot bearing No,291-E Phase-VI, DHA, Lahore applied for a No Demand Certificate (NDC) whereupon it revealed that a caution has been marked by the respondent because of which petitioner cannot sell his plot. Feeling aggrieved present petition has been filed challenging, the embargo placed on the rights of the petitioner.
4. Report and parawise comments were requisitioned from the respondent which revealed that the said embargo has been placed because petitioner has failed to fulfill his obligation under the agreement/ conveyance deed.
5. Learned counsel for the petitioner submits that in the first instance, petitioner has fulfilled his obligation as contemplated in the agreement/ conveyance deed as possession of 100 kanals has been handed over to the respondent and for a while if this is presumed that he did not and respondent is aggrieved of non- fulfillment of his obligation, they can approach the court of law and seek an attachment order, however, by no stretch of imagination, they can place an embargo upon his rights. He asserts that this embargo is violative of Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan (Constitution) therefore is not sustainable.
6. Replying to the above, learned counsel for the respondent with vehemence submits that a caution has rightly been marked on the plot of the petitioner as he failed to fulfill his obligation which he was supposed to under the agreement/conveyance deed.
7. Arguments heard. Record perused.
8. Learned counsel for the respondent has been time and again asked, to show that under what authority of law respondent is invested with the power to mark caution on a plot owned by the petitioner by virtue of which an embargo can be placed on the rights of a land owner from selling/using his plot for non-fulfilment of an obligation under an agreement/conveyance deed arrived at between the parties qua some other land.
9. In spite of effort, he has not been able to show any provision of law which enables the respondent to place such embargo on the rights of the petitioner.
10. Arguments heard. Record perused.
11. Articles 23 and 24 of the Constitution provides protection to citizens of this Country qua acquiring, using and holding a property save as in accordance with law. For convenience the said Articles are reproduced:-
23. Provision as to property.--- Every citizen shall have the right toacquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest. (emphasis supplied)
24. Protection of property rights.- -- (1) No person shall be deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of--
(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or
(b) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or
(c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law); or
(d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property, or for the benefit of its owner; or
(e) any law providing for the acquisition of any class of property for the purpose of -
(i) providing education and medical aid to all or any specified class of citizens; or
(ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens; or
(iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or
(f) any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any court.
12. From the perusal of the aforenoted Articles it is manifest that a citizen of this country has every right to acquiring, use and hold a property with exception to the rule that if a law provides that he can be deprived of the same, it can be done.
13. In the case in hand, respondent marked caution on the plot of the petitioner on the pretext that he did not fulfill his obligation in furtherance of an agreement/conveyance deed arrived at between the parties. In case such an obligation was not fulfilled, respondent had alternate efficacious remedies available to them under the law, by way of approaching the Civil Court of competent jurisdiction for enforcement/ specific performance of the agreement/conveyance deed or else seek damages from the petitioner. For reference, reliance can be, placed upon Messrs Malik and Haq and another v. Muhammad Shamsul Islam Choudhry and 2 others [PLD 1961 SC 531], Mst.. Rasheeda Begum and others v. Muhammad Yousaf and others [2002 SCM R 1089], Muhammad Ibrahim and 44 others v. Fateh All and 30 others [2005 SCMR 106t] and Ghulam Hussain and others v. Muhammad Yousaf and another [PLD 1981 Lahore 11]. In addition to the above, respondent could have obtained an attachment or a stay order from the Court as contemplated in Orders XXXVIII and XXXIX, C.P.C. Whereafter, petitioner could have been restrained from using his plot.
14. Non fulfillment of a contractual obligation by no means invest the respondent-authority to mark caution/place embargo on the rights of the petitioner from acquiring, using and holding a property. In the case in hand, instead of approaching the Court of Law for enforcement of their rights, respondent in a Kingly manner and without any authority of law placed a rider on the rights of the petitioner which is in utter violation of Articles 23 and 24 of the Constitution, therefore, is not sustainable.
15. Even otherwise, the marking of caution is also violative of Article 10-A of the Constitution as neither any adjudication was made by a court of law which would suggest that petitioner has not fulfilled his obligation as enshrined in the agreement/conveyance deed nor an opportunity of hearing was provided to him prior to taking such action which militate the principle of audi alteram partem.
16. It shall not be out of place to mention here that respondent is governed by Defence Housing Authority Lahore Order, 2002. A perusal of the said law would also suggest that respondent is not invested with any authority under the law to mark caution on the rights of a land owner.
17. For what has been discussed above, this petition is accepted. The marking of caution by the respondents over Plot No, 291-E Phase-VI, DHA, Lahore is declared to be without any lawful authority, therefore, the same is set aside. As a sequel to the above a direction is issued to respondent to issue No Demand Certificate to the petitioner.