1. GHULAM RASOOL K. SHAIKH, J.--This is a writ petition under Article 98 of the Constitution of the Islamic Republic of Pakistan against the order passed by the Commissioner of Karachi purporting to act under section 111 of the Municipal Administration Ordinance, 1960 and communicated to the Chairman, Karachi Municipal Corporation by letter No, 6(6)/67-LSG dated 31-3-67.
2. The petitioner No, 10 is an association known as Qureshi Market Welfare Association having a large number of members, while the petitioners 1 to 9 are the office-bearers of the Association. There is a plot of land bearing No, 1 sheet No, RB-7, Arambagh Quarters, belonging to the Municipal Corporation. A major portion of this was rented out to the members of the Association by the Municipal Corporation in the year 1948 for the construction of their shops. In pursuance of this lease the Municipal Corporation also demarcated the plot into small portions for the purpose of construction of shops and allotted the same to the members of the Society including the petitioners at a monthly rent of Rs, 5.10 each. After the allotment the petitioners and others constructed their separate and independent shops at their own expenses on the respective portions allotted to them. Since then they were running their business in those shops. This premises constituted a market known as Qureshi Bazar. The petitioners as well as the members paid ground rent in respect of the plots in their possession for the period ending June 1967.
3. It is further alleged in the petition that in September 1963 the Municipal Corporation illegally and arbitrarily enhanced the rent from Rs, 5.10 to R.. 20'00 per month and started demanding the same by way of licence fee. The petitioners challenged this by tiling a civil suit in January 1964 and it is still pending in the Court of Civil Judge, Karachi. This suit was resisted by the Karachi Municipal Corporation and written statement was filed.
4. It appears that the Municipal Corporation proposed to lease out the same plot with construction thereon for a sum of Rs, 5 lacs in favour of the Divisional Evacuee Trust Committee respondent No,
3. The petitioners having come to know about it approached the Municipal Corporation by making an application dated 28th June 1960 for grant of lease to their Association for the purpose of constructing multistereyed building for the benefit and use of the petitioners and other members of the Association having their shops in Qureshi Bazar. This application was considered by the Corporation at their meeting held on 12-4.66 and it was resolved to lease out the plot to the Association in consideration of Rs, 5,25,000 by Resolution No,
175. The petitioners, therefore, requested the Municipal Corporation to supply a copy of the Resolution to enable them to arrange the payment but the request was refused by letter dated 14-12-1966 as the approval of the Commissioner respondent Ni. 2 who was the Controlling Authority was awaited although it is contended by the petitioners that no such approval was required under the West Pakistan Municipal Committee Business Rules, 1960. However, on 15-12-66 the Municipal Corporation communicated the said Resolution to the petitioners by their letter No, LC. Misc-443/LS-7/63 dated 15-12-66 directing them to pay Rs, 1,31,2,50 being 25% of the cost for the grant of lease of the plot. In pursuance of this, the entire amount of Rs, 1,31,250 was deposited. After making this payment the petitioners continued to pursue the Municipal Corporation to execute all necessary documents to finalise the lease by virtue of the said Resolution but with no result.
5. However, subsequently the Commissioner, suddenly and without giving an opportunity to the petitioners of being heard quashed the said Resolution in exercise of his powers as Controlling Authority under section 111 of the Municipal Administration Ordinance, 1960 and granted the lease of the said plot to the Divisional Evacuee Trust Committee respondent No, 3 and the Chairman, Evacuee Trust Board respondent No, 4 ,by his order communicated by the Director of Basic Democracies by letter No, 6 (6)/67-LSG dated 31-3-67. The petitioners were accordingly informed by the Municipal Corporation by letter dated 19-4-67.
6. It was contended that the order passed by the Commissioner quashing the Resolution was beyond the scope of section 111 Municipal Administration Ordinance, 1960, as there were no findings that the said Resolution was against public interest or was not in conformity with law. An allegation was made that the Commissioner was influenced by a meeting held for the said purpose and did not pass the order on his personal and careful consideration. It was also pleaded that the respondents 3 and 4 had no lawful power to acquire any immovable property under the scheme framed under section 16-A of the Displaced Persons (Compensation and Rehabilitation) Act. The order of the Commissioner was also challenged on the ground of mala fide and fraud on his powers as the same had been passed for the benefit and use of one private company known as Hussain D'Silva and so the respondents 3 and 4 were trying to acquire the plot for the use and benefit of that private party and not in pursuance of any scheme. The aforesaid private company had given wide publicity to the proposed building on the aforesaid plot and several advertisements appeared in the newspapers. The appointment of the Commissioner as Controlling Authority under the Municipal Administration Ordinance, 1960 and the delegation of powers to him was also challenged. It was also asserted that the petitioners were old and bona fide occupants of the aforesaid plot and they had preferential and bona fide right in respect of the said plot and as such the impugned order was arbitrary and the quashment of the Resolution was illegal and without lawful authority.
7. On the basis of these facts stated in the writ petition following declaration was sought: "(a) To declare that the order passed by respondent No, 2 directing the quashment of Resolution No, 175 dated 12-11.66 passed by respondent No, 1 is without lawful authority and has no legal effect whatsoever and accordingly quash the said order and restore the Resolution No, 175 dated 12-11-66 passed by respondent No, 1.
(b) To declare that the transfer of plot of land bearing No, 1 Sheet No: RB 7 Rambagh Quarters, Karachi, to respondents Nos, 3 and 4 by respondent No, 2 is illegal and contrary to law as respondents Nos, 3 and 4 have no lawful power to acquire immovable property under the scheme for the management and disposal of property attachment to charitable and religious purposes framed under section 16-A of Displaced Persons (Compensation and Rehabilitation) Act and as such the impugned order passed by respondent No, 2 directing the transfer of the said plot of land is infructuous and without lawful authority, contrary to law and has no legal effect whatsoever.
8. (c)To direct the respondents, their servants, their employees or anybody claiming through them not to act upon the said order passed by respondent No, 2 and give any legal effect whatsoever.
9. (d)To grant such relief or reliefs as this honourable Court may deem fit in the circumstances of the case."
10. The petition was resisted by all the respondents. Comments were called for from the Municipal.
11. Corporation respondent No, 1 and Commissioner respondent No, 2.
12. The respondent No, 1 denied that the plot was rented out to the members of the Association but it was pleaded that 53 persons were allowed in 1949 to put up cabins on a space of 4' x 10' on the plot in question purely on temporary basis as licensees subject to revocation of licence and removal on 15 days' notice. It was also agreed that the structure put up by the licensees shall vest in the Corporation. It was further stated that after the initial licences had been granted a number of licensees had left and others had unauthorisedly occupied the space and some of them had amalgamated more than one shop together without any permission and approval of the Corporation. Most of the persons in occupation had paid the licence fee at the reduced rate of Rs, 5.52 for the period ending June 1967. It was further stated that the area of this plot was 1121 sq. yards and behind this plot there was a big plot belonging to the Divisional Evacuee Trust Committee which wanted to put up a multi-storeyed building but no suitable building could be constructed unless the disputed land was also acquired by the Committee. As such, a meeting of the Divisional Evacuee Trust Committee was held in the Commissioner's office in November 1965 in which the then Chairman, Karachi Municipal Corporation, agreed to sell the disputed plot to the Divisional Evacuee Trust Committee for a sum of Rs, 5 lacs with a condition that the expenses of the shifting of the shops of Qureshi Bazar would be that of the Divisional Evacuee Trust Committee which in turn accepted the condition. It was added that in fact the negotiation for the purchase of the plot by the Divisional Evacuee Trust Committee was going on since September 1963 which was finally agreed upon by the Chairman in November 1965 in the said meeting held under the chairmanship of the Commissioner, Karachi. In pursuance of this agreement reached at the meeting the matter was placed before the House for the finalisation of the dealin favour of the Divisional Evacuee Trust Committee but the House rejected this proposal and passed Resolution No, 175 to transer the plot to the petitioners' Association. However, the resolution required the approval of the Controlling Authority who was the Commissioner and, therefore, it had no legal effect without his approval. It was admitted that an amount of Rs, 1,31,250 being 25% of the cost of the grant of lease was accepted by the Municipal Corporation but this was done in expectation of the approval of the resolution of the Corporation by the Controlling Authority but this approval was not granted by the Controlling Authority in the exercise of the powers vested in him by virtue of section 111 of the Municipal Administration Ordinance, 1960. The resolution was quashed by the Controlling Authority with a further direction that the plot in dispute be granted to the Divisional Evacuee Trust Committee and accordingly the petitioners were informed. The Commissioner was fully competent to pass the orders which he had passed and it was binding on the Municipal Corporation. It was further asserted that the petitioners had no vested right to occupy the land on long lease and even if there was any right they could agitate the matter through regular Court proceedings other than by invoking the writ jurisdiction. The grant of a valuable Municipal property as contemplated under the resolution in question could not be effective without the approval of the Controlling Authority which was not given.
13. The comments offered by the Commissioner are more or less in line with the comments offered by the Municipal Corporation. It was maintained that the meeting was held presided over by the Commissioner and it was agreed that the plot would be sold to the Divisional Evacuee Trust Committee for an amount of Rs, 5 lacs and the Municipal land could not be leased out for 99 years without the approval of the Controlling Authority. It was further stated that the resolution was passed a representation was made by the Divisional Evacuee Trust Committee and, therefore, the resolution was quashed by virtue of the power vested under section 111 of the Municipal Administration Ordinance, 1960 and this power was exercised bona fide and in accordance, with law and in the best interest of all concerned and keeping in view the earlier commitment made by the Chairman, K. M. C. in this behalf. The Controlling Authority had powers under the law to quash the proceedings of the Corporation and pass an order which may be fit, fair and proper and so the action was taken bona fide in the exercise of those powers. The petitioners had no vested right for the grant of lease for a period of 99 years.
14. Subsequently additional comments were also made by the Commissioner. In these comments it was stated that the petitioners occupied only a portion of the plot and originally some 45 persons were allowed to occupy the space measuring 4' x 10' each on temporary basis as mere licensees and a written agreement was executed with the Municipal Corporation. Since the allotment, the premises changed hands without the sanction and approval of the Corporation and some more space was added to the original space which was allotted. The occupants as allottees were mere licensees and their licences were terminable after 15 days' notice in the sole discretion of the Corporation. The Resolution No, 75 passed by the Municipal Corporation was rescinded and against this the remedy available to the Corporation was to file an appeal as provided by section 111 (2) of the Municipal Corporation Ordinance but no such appeal was preferred by the Corporation. The mere passing of the resolution did not convey any right or title upon the petitioners without approval of the Commissioner which was never granted. Lastly, it was asserted that in fact the licence to occupy the respective sites had not been revoked so far and as such the question of affording opportunity to the affected persons did not arise and despite that steps would be taken in due course to ensure that an alternative accommodation would be provided to the displaced persons when the occasion arises.
15. Again a further clarification was made by the Commissioner with regard to his earlier comments made in para. 8. It was stated that while exercising powers under section 111 of the Municipal Administration Ordinance there was no occasion for the petitioners to be heard and even otherwise the Commissioner could straightaway refuse the sanction under rule 8 of the West Pakistan Municipal Committee (Property) Rules, 1962.
16. So far the Divisional Evacuee Trust Committee is concerned counter-affidavits of Ahmed Idris Qadri who was the legal assistant were filed to resist the petition. It was asserted that the land in dispute was adjacent to the plot belonging to the Divisional Evacuee Trust Committee and, therefore, looking to the location it was necessary to acquire the disputed plot for the development of their own two plots. In this connection a request was made to the Karachi Municipal Corporation in the year 1963 for taking on lease the disputed plot and it was agreed by the Chairman of Municipal Corporation that the plot with structures would be sold and lease for a period of 99 years would be created for an amount of Rs, 5 lacs plus proper ground rent. It was claimed that the Committee was competent to acquire the immovable property under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 for the benefit and purposes specified in the scheme framed under section 16-A of the Act. It was further stated that the two plots owned by the Committee had already been leased out to Hussain D'Silva, a private company, for a sum of Rs, 4,28,743.95 permanently subject to enhancement of rent at 7-(1/2)% after the expiry of every 33 years against the total annual income of Rs, 47,291.76 and the disputed plot would also be leased out to Hussain D'Silva company on a very high rent and the income would be utilised for charitable, religious and educational purposes. It was denied that the plot in dispute was to be acquired for the benefit of the company (Hussain D'Silva). The other contentions already raised in the comments offered by the Karachi Municipal Corporation and the Commissioner were repeated.
17. Some documents had been produced and the file of the Controlling Authority (Commissioner) under the Municipal Administration Ordinance, 1960 had been placed before us. In this connection a few more facts may be stated. As is known the Divisional Evacuee Trust Committee owned two plots adjoining the disputed plot and efforts were made by the Committee to acquire that plot. It is said that a scheme was also prepared to raise construction.
18. In November 1965 a meeting was held under the chairmanship of the Commissioner and amongst others, the Chairman of the Municipal Corporation attended the meeting. The Chairman, Municipal Corporation agreed to lease the disputed plot to the Divisional Evacuee Trust Committee.
19. In pursuance of this agreement a resolution was moved in the meeting of the general body of the Municipal Corporation held on 12-11-66 but this proposal was turned down and instead a resolution was passed to lease the plot to the petitioners who, it seems, having learnt about the decision taken at the meeting presided over by the Commissioner and the move to place the proposal before the House made an application on 28th June 1966 for the grant of lease in their favour to raise multi-storeyed building. Since the resolution passed by the Municipal Committee to grant the lease in favour of the petitioner, required the approval of the Controlling Authority, the Chairman, Municipal Corporation acting in pursuance of the resolution moved the Commissioner (Controlling Authority) by letter No, LCF. PSI/LS7/67 dated 1-2-67 to accord the approval. The letter reads as under : "Plot No, 1 R. B. 7, Rambagh Qr., measuring 1121 sq. yds. situated on Bunder Road stands in the name of Karachi Municipality in which the Municipal Employees' Clinic is housed. There also exists Qureshi Bazar Market and a mosque on this plot.
20. Behind this plot, there is a big plot belonging to the Divisonal Evacuee Trust Committee where they want to construct a multi-storeyed building and in order to construct a nice building they decided to acquire the K.M.C.'s above plot.
21. A meeting in this connection was held in the office of the Commissioner, Karachi in November 1965 in which the ex-Chairman told the Committee that the K.M.C. can sell this plot with structure standing thereon provided the Committee agreed to pay Rs, 5 lacs and take the responsibility of shifting the shopkeepers of Qureshi Bazar Market by providing suitable accommodation. The Secretary, Divisional Evacuee Trust Committee, agreed to purchase the plot with structure for Rs, 5,00,000 with the above conditions.
22. The matter for grant of the above plot along with the structure to the Divisional Evacuee Trust Committee for Rs, 5,00,000 was placed before the Corporation through the Finance Sub- Committee for their sanction. The finance Sub-Committee vide their Resolution No, 74 dated 18-10- 66 recommended the office proposal to the Corporation for acceptance but the Corporation in their meeting held on 12-11-66 vide Resolution No, 175 (copyenclosed) resolved as under : {{URDU TEXT}} Accordingly the Qureshi Bazar Association were informed and asked to pay Rs, 1,31,250 being 25% of the cost in case the offer of Rs, 5,45,000 for grant of the above plot is acceptable to them. The Association has agreed to pay Rs, 5,25,000 for grant of the above plot and has deposited Rs, 1,31,250 vide Habib Bank Ack. No, 211 dated 2941-66.
23. It is, therefore, requested that the Commissioner, Karachi may be pleased to accord his approval to the Corporation resolution and communicate the same to this office at an early date."
24. The Secretary of the Divisional Evacuee Trust Committee having learnt about the resolution submitted a note dated 30th December 1966 to the Commissioner/Chairman, Divisional Evacuee Trust Committee to the effect that the development scheme of the property bearing Survey No, R.B.
25. 7/2/3 commonly known as Pinjrapur Compound had been prepared and for the implementation of that scheme the disputed plot was essential and the Karachi Municipal Corporation on their move agreed to sell the same to the Divisional Evacuee Trust Committee for Rs, 5 lacs but this decision was altered by the Corporation by the aforesaid resolution. It was further suggested in this submission note that the resolution of the Karachi Municipal Corporation be quashed and the Corporation be directed to adhere to the commitment which had already been made, suggesting further that the existing tenants of the Qureshi Market would be accommodated in the project like other tenants of the Pinjrapur Trust. This submission note and the letter of the Chairman recommending the grant of lease in favour of the petitioners passed through the process of usual notings in the office of the Commissioner. The notings show that the proposal which was placed before the House was in respect of the sale of the plot to the Divisional Evacuee Trust Committee but instead the Corporation decided against it and since the Corporation had backed out from its commitment it would adversely affect the scheme of the Divisional Evacuee Trust Committee for the construction of the multi-storeyed building and the Controlling Authority was invested with certain powers under section 111 (1) of the Municipal Administration Ordinance which was reproduced in the noting, It was also noted that since the Divisional Evacuee Trust Committee was a public office it was presumed that their decision to construct the multi-storeyed building would be for public purpose. Finally the Director, Basic Democracies put up the following note dated 17-2- 67 for the consideration of the Commissioner : "Commissioner may be pleased to see the office note which is self-explanatory. This office agrees with the request of the Secretary, Divisional Evacuee Trust Committee that the plot should be given to the Trust. The Corporation, in a meeting, already stands committed to grant the plot in question to the Trust. The value of the plot was fixed at Rs, 5,00,000 which calculates to Rs, 472 (approximately) per sq. yard which is a fair and reasonable price for the land in that locality.
26. Another reason for the grant of the plot in question to the Trust is that the land in question is adjacent to Pinjrapur Trust Compound whereon a multi-storeyed building has been planned for construction. If the plot in question is not granted to the Trust obviously the construction of the multi-storeyed building would be adversely affected. Under Article 111 of the Municipal Administration Ordinance, the Controlling Authority (Commissioner) is competent to quash the Resolution in question and direct the Karachi Municipal Corporation to grant the plot in question to the Evacuee Trust. Submitted to the Commissioner for his kind orders."
27. The Commissioner made certain queries which were answered and finally the Commissioner approved the recommendation in the following terms on 25-3-67 : "I agree with the proposal of Director, Basic Democracies dated 17-2-67."
28. However, no formal order was drawn for the signature of the Commissioner as . Controlling Authority but instead the Director, Basic Democracies in pursuance of the approval of the Commissioner to his proposal, sent letter No, 6(6)/67-LGS dated 31-3-67 to the Secretary, Divisional Evacuee Trust Committee, which reads as under:- "OFFICE OF THE COMMISSIONER OF KARACHI No, 6(6)/67-LGS, Karachi, dated the 31st March 67.
29. To The Chairman, Karachi Municipal Corporation, Karachi.
30. Subject--Plot No, 1 R. B. 7 Rambagh Quarters Reference-- Your letter No, L-FP-SI/LS/77/67 dated 1st February, 1967 It is observed that a meeting in connection with the disposal of the plot in question was held before the Com-missioner in November 1965 in which the ex-Chairman told the DETC that the K. M. C. will sell this plot with structures thereon to the DETC, provided the Committee agreed to pay Rs, 5 lacs and take the responsibility of shifting the shopkeepers of Qureshi Bazar by providing them suitable accommodation. The Secretary, DETC agreed to purchase the plot for Rs, 5 lacs with the said condition. Besides the land in question is adjacent to Pinjrapur Trust' Compound whereon a multi- storeyed building has already been planned for construction by West Pakistan Evacuee Property Trust Board, Lahore. If the plot in question is not granted to the Trust, obviously the construction of the multi-storeyed building would be adversely affected. Under the powers conferred upon him under Article 1 l 1 of the Municipal Administration Ordinance, 1969, the Commissioner, Karachi has, therefore, been pleased to quash Resolution No, 175, dated 12th November 1966 passed by the Corporation and to direct that the plot in question should be granted to the Divisional Evacuee Trust Committee, Karachi. You are therefore requested to please take necessary action in the matter. (Sd.) Ahmed Ullah, Director, Basic Democracies for Commissioner, Karachi."
31. This decision was also communicated to the petitioners by the Land Manager, Municipal Corporation by letter No, LC. Misc. 443/LS7/63, dated 19-4-67 and they were also required to receive back the amount of Rs, 1,31,250 deposited by them vide Habib Bank Ack. No, 211, dated 29-12-1966.
32. Turning to the documents filed on behalf of the Divisional Evacuee Trust Committee, it appears that there are shops, a mosque and Municipal Dispensary in the disputed plot which the Committee intended to acquire as it is situated in front of the two plots owned by the Committee. So a request to acquire the plot was made to keep the mosque in tact by letter dated 17th September 1963. This proposal did not materialise till the meeting was held in November 1965. It further appears that the Divisional Evacuee Trust Committee entered into negotiation with Messrs Hussain D'Silva, a private company, and an agreement was reached whereby the Trust Committee agreed to lease the two plots owned by the Committee as well as the disputed plot to the company for a period of 33 years renewable for a similar period up to maximum of 99 years (the period for which the Committee had to acquire the lease of the disputed plot from the Municipality) on certain terms and conditions including the lease money payable to the Committee at the rate settled between the parties as well as the payment of Rs, 5 lacs by the Company to the Municipality with an undertaking to provide accommodation to the existing tenants. The proposal to this effect and two other proposals in respect of some other properties were forwarded to the Evacuee Trust Board, Lahore for approval by letter No, 3 (E-1)65/683, dated 24-4-66. All the three proposals were approved by the Board and communicated to the Committee by letter No, L1/30 (64)/38/36, dated 3-6-1966.
33. Adverting to the position of the Commissioner in the present case he had to perform the statutory functions in dual capacity. He is the Controlling Authority under the Municipal Administration Ordinance and invested with certain powers to control the act or omissions of the Municipal Corporation as well as the Chairman and as such he can also issue certain directions within the limits prescribed by the Ordinance. The other capacity of the Commissioner is that he is the Chairman of the Divisional Evacuee Trust Committee respondent No, 3 in whose favour the lease of the plot in dispute was sanctioned by him. It is also pertinent to note that the counsel who is in the permanent employment of the Corporation appeared for the Commissioner as well as Chairman of the Corporation and while defending the action of the Commissioner, he condemned the resolution passed by the Corporation presided over by the Chairman, on the ground that it was beyond the scope of the powers and the functions of the Corporation and, therefore invalid. We are not unmindful of the fact that the Commissioner was impleaded in his capacity as Controlling Authority under the Ordinance, and, therefore, the representation by the same counsel may not be open to any serious objection but all the same, keeping in view the background of the case it rather looks anamolous. However, it is apparent that the Chairman on receipt of the letter from the Director, Basic Democracies had to reconcile with the new situation and proceeded to give effect to the directions without placing the matters before the House for reconsideration, but before the bargain with the Trust Committee could take final shape, the present petition was filed and status quo was ordered.
34. In order to consider and appreciate the points raised before us, it is necessary at the outset to reproduce section 111 of the Municipal Administration Ordinance of 1960 and rule 8 of the West Pakistan Municipal Committee Property Rules, 1962, which have given rise to the present conflict.
35. Section 111 of the Ordinance reads as under :- "Control over the activities of Municipal Committees.--(1) if, in the opinion of the Controlling Authority, anything done or intended to be done by or on behalf of a Municipal Committee is not in conformity with law, or is in any way against public interest, the Controlling Authority may, by order, -- (a)quash the proceedings ; (b)suspend the execution of any resolution passed or order made by the Municipal Committee ; (c)prohibit the doing of anything proposed to be done ; (d)require the Municipal Committee to take such action as may be specified.
(2) Where an order under subsection (1) is made by a Controlling Authority other than the Government, the Municipal Committee concerned may, within thirty days of the receipt of the order, represent against it to the Government and the Government may either confirm or modify or set aside the order."
36. Rule 8 of the Property Rules reads as under :- "Alienation of property.--Any movable property of a Municipal Committee may be disposed of by sale or otherwise in accordance with the provisions of the West Pakistan Municipal Committees (Contracts) Rules, 1960.
(2) Notwithstanding anything to the contrary contained in the West Pakistan Municipal Committees (Contracts) Rules, 1960, any immovable property of a Municipal Committee may be leased, disposed of by sale or otherwise alienated by the Chairman ; (a)on his own authority, if the period of the lease does not exceed one year ; (b)with the previous sanction of the Municipal Committee, if the period of the lease is more than one year, but not more than three years ; (c)with the previous sanction of the Controlling Authority in any other case."
37. Turning to the merits, the effect of the impugned action was two-fold ; the approval of the proposal made by the Chairman was not granted and the disposal of the plot was ordered in favour of the Trust Committee. This action was purported to have been taken under section 111 of the Ordinance and later while offering comments, a plea was taken that the power to refuse the approval was available by virtue of rule 8 of the Property Rules. The legality and bona fide of the action was impeached on various grounds. On the other hand the action was defended and it was maintained that the claim of the petitioners was not sustainable either on facts or in law.
38. To begin with, exception was taken on behalf of the respondents to the maintainability of the petition on the ground that the resolution passed by the Corporation did not create any vested right in the petitioners and, therefore, they could not be considered to be the aggrieved persons within Article the of the Constitution. Having given our anxious thought to this objection, we are unable to uphold it. The resolution does not stand by itself but some positive steps had been taken to implement it. The petitioners were called upon to deposit 25% of the lease money which was actually deposited and the Chairman moved the Commissioner to accord approval. The petitioners had raised permanent structures and they are distressed by the proposed lease in favour of the Trust Committee and eventually the transfer of the plot to Messrs D'Silva which would dislodge them from the premises and deprive them of their place of business. Of course by the terms of lease, the alternative accommodation was assured but this would be provided in the building which has yet to be constructed. A huge multi-storeyed building is contemplated and there is no magic wand to do it overnight. Naturally it must take a few years before it is ready for occupation. Till then the petitioners must wait and watch. No immediate alternative accommodation is offered or guaranteed. A large number of families are likely to be affected thereby and thrown in the street either to wander and starve or hunt for new places of business which is hardly possible in the near future in view of the scarcity of such places in the city. The petitioners' claim on the basis of the resolution itself may not be sustainable but the action of the Commissioner has been challenged on the ground that it had been passed in disregard of the law under which he purported to act and this adversely affected them. In this connection the pertinent observation made in the case of Montgomery Flour and General Mills Ltd. v. Director, Food Purchases may be reproduced. It reads as under :- "It is true, observed the learned Judge 'that a petitioner must have some right if he applies to the Court for a direction or order under Article 170 (now Article 98 of the Constitution of Pakistan) but he need not have a right in that strict sense of the terms which is mentioned above. Whenever an enactment empowers a public officer to pass orders that benefit or harm citizen, the citizen gets a right that in a matter in which he is concerned an order be passed in accordance with law. This too is a right that can be enforced by the Court in the exercise of its jurisdiction under Article 170 of the Constitution of Pakistan. If the ,officer concerned passes an order that is not in accordance with law, any person whose interests are effected by the order can maintain a petition for a writ or direction under Article 170. All orders of executive officers are subject to challenge by those affected by the orders, and a person would be 'effected' even if he loses some benefit or advantage which he would have gained if the order was in accordance with law. A public officer passing an order on an application submitted to him does not grant the applicant a favour. He is only granting the applicant his right in the sense that he has a right to have matter determined in accordance with law and justice. It will be observed that even a fundamental right may not be a 'right' in the strict sense of the term. A right to acquire or hold property, a right to carry on a profession, a right to move about freely, etc. are not rights in the strict sense because they do not cast any corresponding duties on any person. They are what writers on jurisprudence call `liberties'. In a wider sense these too are recognised as rights by jurisprudence and they can form the basis of a writ petition'."
39. The above decision was approved by the Supreme Court in the case of Ikram Bus Service v. Board of Revenue and the case of Fazal Din v. Lahore Improvement Trust in which the following observation was made :- "It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses1 2 3 that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
40. Applying the principle laid down above to the present case, it is clear that non-observance of law has caused prejudice to B, the petitioners and so they have sufficient interest to challenge the action of the Commissioner and, therefore, their right to maintain the petition cannot be questioned.
41. It was next urged that the Commissioner as Controlling Authority under the Ordinance enjoyed unlimited and absolute powers to rescind any resolution and withhold the assent or pass any other order according to his individual discretion and the discretion so exercised was not justiciable. We are unable to concede to such a sweeping proposition. A public functionary does not enjoy despotic powers to act in whatever manner he likes according to his whims. An authority created by Statute must act within the scope of the powers conferred by the Statute and observe the limitations imposed by it. Deviation from law cannot be allowed to go unnoticed and unchecked.
42. Law is jealous of the transgressions of the limits laid down by it. If the authority has jurisdiction to decide in a particular manner, he cannot decide in a different manner. Furthermore, if the jurisdiction depends upon the existence of certain circumstances, those circumstances must be shown to exist to provide a justification for the exercise of jurisdiction. The approach of the authority in determining the relevant facts for the existence of the circumstances in order to exercise the jurisdiction may be subjective and not objective but the legal duty imposed by Statute cannot be disregarded. In other words the findings of facts will not be reviewed but where the decision is founded on clear ignorance or disregarded of the provisions of law, it is open to interference. So the choice cannot be in defiance of law. It, therefore, follows that the immunity attached to the order of the Commissioner from attack can be conceded if the order is in conformity with law but if the very provisions of law which forms the basis of the authority is disregarded, the immunity loses its ground and is no longer available to protect the action. The question whether the Commissioner adhered to the law in passing the order will be examined in due course.
43. The validity of the resolution passed by the Corporation was also contested by the learned counsel for the respondents on the ground that it was not competent to pass any resolution in respect of immovable property as the power of disposal of immovable property was conferred on the Chairman by virtue of rule 8(2) of the West Pakistan Municipal Property Rules subject to the previous sanction of the Commissioner. We are unable to entertain the objection for the simple reason that the Rule does not debar the Corporation to pass a resolution. On the contrary a special meeting can be held for the consideration of sale, lease, transfer or disposal of immovable property by virtue of Regulation No, 3(d) of Model Regulations for the conduct of business by Municipal Committee in West Pakistan. Indeed the resolution may have no binding force and may not override the provisions of rule 8(2) but it has no relevancy in considering the competency of the Corporation to pass the resolution. Secondly the turning point in this case is that the Chairman who presided over the meeting not only did not disown it but actually adopted it and moved the Commissioner to accord approval to the resolution by his letter dated 1+67 already reproduced. By making the reference the requirements of rule 8 so far the Chairman and his powers are concerned, are fulfilled. Faced with this situation it was urged by the learned counsel for the respondents that according to section 23 of the Ordinance the Chairman was bound to forward the resolution to the Commissioner and it was accordingly sent. This contention is equally devoid of force. The letter as it reads is not a mere compliance of section 23 but he too recommended the approval of the resolution and thereby sought the necessary sanction to the transfer of the plot in favour of the petitioners.
44. We have noted with anxiety that there is no order of the Commissioner in strict sense. What has been found is the mere note of the Commissioner on the file endorsing the proposal made by the office and Director, Basic Democracies. This has already been reproduced. No formal order was drawn to be properly authenticated by the Commissioner. Even presuming that this formality was not necessary and the endorsement made by the Commissioner on the file has the same force as an order but this order betrays another and deeper error than already noticed viz. it is not in terms of section 111 of the Ordinance, the order must be a speaking order showing that the authority passing the order has applied his mind to the requirements of law. This has not been done as will be shown presently.
45. The bare reading of section 111 makes it clear that the Commissioner does not enjoy unfettered discretion to reject the resolution of the Corporation or the proposal submitted by the Chairman. It lays down conditions which must be satisfied to provide justification for the exercise of discretion.
46. The condition is that anything done or intended to be done by or on behalf of the Municipal Committee is not in conformity with law or is in any way against public interest. This is condition precedent to the exercise of powers conferred by clauses (a) to (d) of the section. Thus at the outset the Commissioner is required to examine the proposal on the basis of the test laid down by law and if he is satisfied that the condition exists for interference he can proceed to pass any one of the orders under clauses (a) to (d). The language of the section in which it is couched is not open to any ambiguity nor it permits any other interpretation. To decide it otherwise is to do violence to the plain reading of the provisions of law. The section must be read as a whole. One part cannot be divorced from the other and read independently of each other.
47. Unfortunately the Commissioner did not address himself to this aspect of the case and without deciding he invoked clause (d) in ordering the grant of lease in favour of the Trust Committee. Even there is no such suggestion in the notings including the final submission note. Simply because the multi-storeyed building planned by the Trust was likely to be adversely affected, it does not mean that the lease in favour of the petitioners violated any law or was against public interest. The Commissioner may grant or withhold sanction but in doing so he has to be guided by certain considerations and those considerations are laid down by section 111 . It, therefore, seems difficult to appreciate how the question of the exercise of the powers under clause (d) arises when the condition precedent has not been considered. Since the obligation imposed by law has not been complied with, the impugned action is not sustainable. An order in violation of law is mala fide in law, though actual malice may not be present in the mind of the authority passing the order.
48. The whole fabric of the various nothings and the order of the Commissioner has been ostensibly founded on the ground that the Trust Committee had been given an assurance by the Chairman who was competent to make the proposal and despite that assurance, the proposal was made for the transfer of the plot in favour of the petitioners. The commitment did not create any right in the Trust Committee nor the Chairman was bound by any provisions of law to honour the commitment. The commitment was not supported by the Corporation and the Chairman took no exception to it. The commitment made earlier did not provide any justification to reject the proposal or order the transfer of plot in favour of the Trust Committee nor on the basis of commitment the obligation imposed by law could be overlooked on the excuse that if the plot was not transferred to the Trust Committee, the multi-storeyed building would be adversely affected.
49. A feeble attempt was made to sustain the action of the Commissioner on the basis of rule 8 and section 111(d) of the Ordinance. While doing so there is an apparent inconsistency in the position taken by the learned counsel for the respondents. It was urged that in cancelling the resolution or proposal the Commissioner exercised his powers under rule 8 but when he ordered the transfer in favour of the Trust Committee he derived his powers from clause (d) to section 111. It was also suggested that the condition embodied in the opening part of the section was not attracted. We are not able to understand the fallacy of this argument. On the one hand section 111 is sought to be used to justify the action and on the other in the same breath it is sought to be excluded from consideration. This position cannot be accepted without doing violence to the clear provisions of law and the condition expressly stated therein. It is idle to speculate that the condition laid down by the section was superfluous and could be ignored by the Commissioner in the exercise of his discretion.
50. Rule 8 confers powers upon the Chairman for the disposal of property but he has to seek previous sanction from the Commissioner in cases otherwise than covered by clauses (a) and (b). The power of rejection of the proposal by the Commissioner is derived from section 111 of the Ordinance and, therefore, the condition precedent cannot be avoided. Even otherwise, the rules are framed under a Statute and, therefore, are subordinate to it. Rules cannot override or abridge the provisions of the Statute nor can have wider scope. It is settled position of law that if the rules deviate from Statute and confer excessive powers, they are repugnant to the Statute and are void to the extent of repugnancy. Thus it follows that the provisions of a Statute must prevail against anything contained in the Rules and, therefore, the rules cannot be allowed a determinative effect.
51. 'Support for the scope of rule 8(c) conferring the necessary powers on the Commissioner was also sought from the following observation made by the Supreme Court in the case of Mls. Oxford Knitting Mills v. Sukkur Municipality, Sukkur and another : "On merits, the petitioner has no case. The Controlling Authority was fully competent to consider the terms on which the lease should have been granted to the petitioner. There is no bar under the relevant rules on the power of the Controlling Authority to change the terms of the lease that came before it for sanction."
52. In that case a plot of land was leased by the Municipality for a period of 99 years at the rate of Rs, 3 per sq. ft. and since the lease was for a period of more than three years it required the approval of the Controlling Authority under rule 8(2)(c) of the Property Rules and on reference the Controlling Authorit sanctioned the lease at the rate of Rs, 6.50 per sq. ft. In view of the point involved in that case the authority is clearly distinguishable. Moreover, the implication of the condition precedent laid down by section 111 did not come under review. Secondly under clause (d) to section 111 the Controlling Authority was fully competent to alter the terms of grant of lease. So the observation of their Lordships did not enlarge the scope of rule 8(2)(c) to an unlimited extent as has been canvassed before us.
53. Proceeding with clause (d) to section 111, it was urged by the learned counsel for the petitioners that under this clause the Commissioner had no power to order the transfer of the plot in favour of the Trust Committee whose case was not recommended by the Chairman. In elaborating this it was pointed out that clause (d) was a general clause which followed more specific clauses and the principle was that the general should follow the things analogous to the specific but if the specific followed the general, then specific acted as illustration of the general clause. This contention is based mainly on the rule of construction known as "Ejusdem generis" where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable to persons or things of the same general nature or class as those enumerated. This doctrine, however, is only a rule of construction, to be applied as an aid in ascertaining the Legislature's intent and cannot control where the plain purpose and intent of the Legislature would thereby be hindered or defeated.
54. Section 111 provides the mechanism for control over the activities of Municipal Committees. The object of the control is to keep watch to ensure that the acts of the Municipal Committees are not against law or public interest as is clear from the section itself. The Controlling Authority, therefore, cannot impose his will or decision except for the attainment of that object. Keeping in view the object of the control and the powers conferred by clauses (a), (b) and (c) to section 111 subject to the fulfilment of the condition precedent, we are of the view that the doctrine Ejusdem generis' is4 applicable to the present case. Clause (d) is merely ancillary and cannot be taken out of the context. It, therefore, did not confer unlimited powers on the Controlling Authority but he could impose certain conditions for the transfer of the plot to the petitioners or give certain directions such as reconsideration of the proposal made by the Chairman. Another serious infirmity in the order of the Controlling Authority is that apart from the non-fulfilment of the condition precedent which has already been dealt with and need not be repeated the Controlling Authority did not come to the conclusion that the transfer of plot in favour of the Trust Committee was in public interest but the order was founded upon the earlier commitment made by the Chairman. Mere non-fulfilment of the commitment does not mean involvement of public interest. Action taken under a statute must fulfil conditions of statute to gain validity. It, therefore, follows that the Commissioner had gone beyond the powers conferred on him and had done something more than what he was required to do under the law.
55. A plea was taken on behalf of the petitioners that the Commissioner before taking the action did not afford any opportunity to them to be heard. This contention was opposed by the learned counsel for the respondents contending that no notice was necessary either before the rejection of the proposal made by the Chairman or before the disposal of plot in favour of the Trust Committee nor there was any provision for notice in the Ordinance and the rules made thereunder. We partly agree and partly disagree with the contentions raised by the learned counsel for the parties. We agree to the extent that no opportunity could be afforded to the petitioners before the rejection of the proposal made by the Chairman in case the Commissioner was satisfied that the proposal was not in con-formity with law or in any way against public interest but the petitioners could not be denied the opportunity of being heard before ordering the disposal of the plot in favour of the Trust Committee, as their interest was being trenched upon and adversely affected for the reasons already stated. As regards the contention that there is nothing in the Ordinance and the Rules entitling the petitioners to be heard, it has no force as by now it is a settled position needing no authority that the principle of natural justice that no person should be condemned unheard (audi alteram partem) be deemed to be incorporated in every enactment in the absence of a provision to the contrary.
56. Lastly, it was urged that the proposed lease in favour of the petitioners was intended to serve public purpose and no violation of law was involved while the transfer of the plot in favour of the Trust Committee was in fact intended for benefit of a private person. We do not wish to go into the merits of these contentions, for the reasons which follow. The first contention was not considered by the Commissioner and we would not like to impose our view upon him. So far the second contention is concerned it is a disputed question of fact which cannot be gone into and investigated in these proceedings. On the basis of the material available on record it is not possible to come to a definite conclusion.
57. On consideration of the various contentions raised before us, the conclusion is irresistible that the order of the Controlling Authority is not legally sustainable and calls for interference under Article 98 of the Constitution. We, therefore, allow the petition and quash the impugned order, holding further that the proposal made by the Chairman shall be deemed to be pending and the controlling authority may pass such orders as may be deemed fit in accordance with law. PLD 1957 Lah. 914 PLD 1963 SC 564 PLD 1969 S C223 1970 SCMR 537 1 2 3 4