ARBAB MUHAMMAD TAHIR, J. The petitioner through this Constitutional Petition has impugned orders dated 06-04-1994 and 27-05-2013 passed by the learned Wafaqi Mohtasib and the Hon'ble President, respectively.
2. The facts, in brief, are that Syed Shujaat Hussain (the "Respondent") was allotted Plot No. 65, measuring 11.42 acres, situated at Murree Road, Islamabad (the "Plot ")in the Orchard Scheme (defunct) vide letter, dated 11-04-1981. The Respondent deposited an amount of Rs. 8,565/- as consideration of lease. Subsequently the possession of the Plot was handed over to the Respondent and a lease agreement in respect of the Plot was also executed between the Capital Development Authority (the "Authority")and the Respondent. However, vide letter dated 22-12-1981, the Authority cancelled the allotment for following reasons:- "The Orchard Scheme in which plot No, 65 was allotted to you, has not been approved by the Federal Government as required under Section 14 of the CDA Ordinance, 1960 and the area of the said scheme has been allocated by the Federal Government for public purpose.
2. Therefore, under Clause 20 of the agreement executed by you on 29.10.81 the Authority hereby withdraws the allotment of your plot and terminates the said agreement. Cheque No. CD/100 No. 790152 dated 22.12.81 for Rs.8,565/- (Rupees eight thousand five hundred and sixty five) an account of money deposited by you is enclosed."
3. Feeling aggrieved of the cancellation of Plot, the respondent filed a complaint before the learned Wafaqi Mohtasib (the "Ombudsman") on 06-04-1994. The learned Ombudsman vide order, dated 25-09-1994 concluded that the cancellation of Plot amounted to maladministration and recommended to the Authority either to restore the Plot or allot an alternate plot at an appropriate place. Against the said order the Authority preferred a representation before President, which was accepted vide order, dated 22-07-1998. The respondent challenged the order passed by the President in W.P. No. 560 of 1999. The said petition was allowed by the learned Lahore High Court vide order, dated 16-04-2001, with direction to restore the possession of the plot to the petitioner. It has been asserted in the memo of petition that I.C.A. No.63/2001 filed against order, dated 16-04- 2001, was subsequently dismissed vide order dated 26-03-2003. The Authority filed two petitions i.e. C.P. No.2421/2004 against order, dated 16-04-2001, passed in W.P. No.560 of 1999 and C.P. No. 1245 of 2003 against order dated 26-03-2003 passed in C.A. No. 63 of 2001. The august Supreme Court with the consent of the parties passed order dated 15- 03-2005 whereby-Civil Petition No.2421/2004 was converted into appeal and allowed by setting aside the judgment, dated 16-04- 2001, passed in W.P. No. 560 of 1999 for deciding the mater afresh on merits after giving full opportunity to both the parties of being heard whereas C.P. No. 1245 of 2003 was dismissed as withdrawn.
After remand of the matter to this Court, the petition filed by the respondent was again dismissed vide order, dated 07-06-2011. The respondent assailed judgment, dated 07-06-2011, before the august Supreme Court in Civil Petition No. 1246 of 2011. The august Supreme Court vide order, dated 28-03-2012, converted the petition into appeal and allowed for the reason that order, dated 22-07- 1998, passed by the President was passed without affording an opportunity of hearing to the petitioner, therefore, the matter was remanded to the President "for decision afresh in accordance with law, after giving the petitioner an option of being heard." In compliance with the order of the august Supreme Court, dated 28-03-2012, the President after affording opportunity of hearing to the parties, rejected the representation of the Agency i.e. the Authority vide order, dated 27-05- 2013. Feeling aggrieved of the rejection of representation by the President, the Authority has filed the instant petition challenging orders dated 06-04-1994 and 27-05-2013.
4. The learned counsel for the Authority has argued that; the Federal Government was competent to allocate the land for public purpose; clause 1 of the agreement to lease determined the status of allottee as licensee; clause 20 of the agreement to lease empowers the Authority to withdraw the allotment; the land was required for "public purpose"; the order of the President is not a speaking order; the question that the respondent was merely a "licensee" was not adverted; no vested right has ever accrued in favour of the respondent; the matter involved determination of rights in the light of "agreement to lease" thus the learned Ombudsman lacked jurisdiction to proceed with the matter; the question of limitation was addressed mechanically; reliance has been placed on the cases titled "Syed Shujaat Hussain v. Capital Development Authority through Chairman, Islamabad and another" [PLD 2012 Islamabad 13], "Board of Secondary Education through authorized officer v. Provincial Ombudsman of Sindh and 2 others" [2019 CLC 1531 (Sindh)], and "State Life Insurance Corporation of Pakistan v. Wafaqi Mohtasib, Federal Ombudsman Secretariat, Islamabad and another" [2000 CLC 1593 (Karachi)].
5. The learned counsel for the respondent has argued that; the impugned orders are well- reasoned; vested right of the respondent was withdrawn unilaterally; once possession was handed over to the respondent, the order of allotment had taken effect, hence could not have been withdrawn or rescinded; the principle of locus poenitentiae is applicable; the order whereby the allotment was withdrawn was passed without affording an opportunity of personal hearing to the respondent; the learned Ombudsman was competent to entertain the complaint; reliance has been placed on the cases titled "Pakistan Railways through General Manager, Railway Headquarters Office, Lahore v. Abdul Bari Khan and others" [PLD 2004 SC 127], "Mrs. Anisa Rehman v. PIAC and others" [1994 SCMR 2232], Muhammad Ayub Khan Tanoli v. Secretary of Industries, Government of N.W.F.P., Peshawar and 3 others" [2004 CLC 1500 (Peshawar)], "Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others" [PLD 1991 SC 973], "Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukh" [PLD 1969 SC 407], "Capital Development Authority through Chairman and another v.
Zahid lqbal and another" [PLD 2004 SC 99], "Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others" [1999 SCMR 2189] and "Hamida Farhat Burki v. Capital Development Authority and 3 others" [2015 MLD 845 (Islamabad)].
6. The learned counsel have been heard and the record perused with their able assistance.
7. The issue in hand remained the subject matter of litigation before various forums including the august Supreme Court. In short the respondent was aggrieved on account of cancellation of the Plot by the Authority and filed a complaint before the learned Ombudsman. The learned Ombudsman after investigating the complaint, ordered restoration of the Plot or in alternate allotment of plot at an appropriate place and this order has been upheld by the President in appeal/representation, which have been assailed by the Authority through the instant petition.
8. Pursuant to allotment of Plot, agreement dated 29-10-1981 i.e. "Agreement to Lease for Orchard Plot" (the "Agreement to Lease") was executed between the Authority and the Respondent. The relevant clauses of the Agreement to Lease are reproduced as follows:- Clause 1.
The legal status of the allottees shall be that of a licensee during the period between the execution of this agreement and the execution of the lease deed.
Clause 20.
The Authority reserves the right to withdraw the allotment and terminate the agreement in case whole or part of the allotted is needed by it for public purpose.
Clause 24.
On completion of the project and compliance, with the terms and conditions herein contained to the satisfaction of the Authority, it shall execute a deed or lease for a first term of 33 years in favour of the allottee or in case of his death in favour of his heirs/successors. The cost and expense of the execution and registration of the deed of lease shall be paid by the allottee or his heirs/successors, as the case may be.
9. The terms of the Agreement to Lease were agreed by both the parties with free consent. It appears from the above reproduced clause 24 that the "Deed of Lease was to be executed after completion of the project. The allotment was cancelled by invoking clause 20 of the Agreement to Lease and this reason was clearly stated in the letter dated 22-12-1981. Furthermore, the amount deposited by the Respondent was also reimbursed to him vide Cheque No.CD/100 No.790152, dated 22-12-1981. The facts and circumstances of the case warranted a full-fledged trial of the matter by a civil court to determine the rights and liabilities of the parties and assessment of the enforceability of the Agreement to Lease, after proving his case by the Respondent. In case of breach of the terms of agreement i.e. Agreement to Lease, such grievance could have been gitated by way of seeking a relief under the Specific Relief Act, 1877.
10. Learned Ombudsman has conducted the proceedings under the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (the "Order of 1983"). The Order of 1983 came into force on 24th of January, 1983. The Plot was cancelled on 22-12-1981. The petitioner filed the complaint before the learned Ombudsman on 06-04-1994. The gap between the cancellation of plot and filing of complaint before the learned Ombudsman is almost 12 years. The limitation for filing of a suit seeking specific performance of agreement under the Limitation Act, 1908 is 'three years', whereas, under section 10(3) of the Order of 1983 the limitation to file a complaint before the learned Ombudsman is "three months from the day on which the person aggrieved had the notice of the matter alleged in the complaint". Furthermore, section 10(1) of the Order of 1983 mandates that the complaint shall be made on solemn affirmation or on oath. The complaint of the Respondent before the learned Ombudsman was thus deficient because the complaint was not made on solemn affirmation, not condoned by the learned Ombudsman. The learned Ombudsman has condoned the delay on the ground that the petitioner was in active service in army and that he could not open dispute and that the Respondent had filed a representation before the Authority. The reasoning of the learned Ombudsman for condonation of delay is violative of the spirit of Section 10(3) of the Order of 1983 as the Respondent in his complaint has specifically mentioned that in the year 1981 he was in the knowledge of the matter agitated in the complaint. However, despite knowledge, the Respondent opted not to file a complaint before the learned Ombudsman after promulgation of the Order of 1983. Section 10(3) of the Order of 1983 does not cater for the period lapsed on account of pendency of a representation before other forums. Furthermore, the Order of 1983 has not dealt with an aggrieved person differently who is in active service in the army in respect of his civil rights and such ground relied upon by the learned Ombudsman was violative of section 10(3) thereof. In fact the Respondent was burdened with the onus to explain the delay of each and every day in filing of complaint before the learned Ombudsman, which delay in the instant case is 12 years. The petitioner opted to file a complaint before the learned Ombudsman to avoid the bar of limitation provided for approaching other competent forums.
11. It is settled law that delay defeats equity Equity leans in favour of a vigilant litigant. The law of limitation is not considered a mere formality and is required to be observed as being of mandatory nature. These principles rest on the foundation that lapse of time creates rights in favour of the other party and, therefore, burdening the party, which fails to act within the stipulated time, to demonstrate sufficient and satisfactory cause/reason for delay regarding each day. A person may have an enforceable right, but if he/she fails to enforce the said right within the time stipulated by law, then the right becomes unenforceable. Reliance for these principles is placed on 'State Bank of Pakistan through Governor v. Imtiaz Ali Khan' [2012 SCMR 280], 'Ghulam Sarwar v. Amir Hussain' [2004 SCMR 944], 'Lahore Development Authority v. Mst. Sharifan Bibi' [PLD 2010 SC 705] and 'Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen' [2006 SCMR 631].
12. The impugned order passed by the President is based on the reason that the allotment/Agreement to Lease created a right in favour of Respondent No.1, therefore, such right could not have been withdrawn. Both the forums i.e. the learned Ombudsman and the President failed to appreciate clause" 1 of the Agreement to Lease (reproduced above), which specifically declares the status of the allottee as licensee. A similar question has been dealt with by this Court in the case titled "Hamida Farhat Burki v. Capital Development Authority and 3 others" [2015 MLD 845 (Islamabad)] and the relevant portion is reproduced as follows:- "The petitioners hold the above mentioned properties on license. License is defined in section 52 of the Easements Act, 1882, and reads as follows:-
52. "License" defined.---Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."
The plain reading of the above section shows that definition of license is grant of permission to do something which otherwise would be unlawful. However, a license does not amount to an easement or an interest in the property. The nature of license was elucidated in the case titled "Rehmat Ullah Khan and others v. GOP" (2003 SCMR 50) as follows:-
5. The second idea that comes to one's mind can be of a licence. Licence is defined in the easements Act which we believe is not a case of the petitioners/plaintiffs. Coming to the dictionary meaning of the word "licence" we may refer to Fifth Edition of Black's Law Dictionary, page 829. It defines licence as; "The permission by competent Authority to do an act which, without such permission, would be illegal, a trespass, or a tort. Leave to do things which licensor could prevent. Permission to do a particular thing to exercise a certain privilege or to carry on a particular business or to pursue a certain occupation. Permission to do something which without the licence would not be allowable.
A licence is not a contract between the State and the licensee, but is a mere personal permit.
Licence with respect to real property is a privilege to go on premises for a certain purpose, but does not operate to confer on, or vest in, licensee any title, interest, or estate in such property.
6. Similarly, in case titled "Zafar Ali v. The State" (2008 YLR 2071), licensee was elucidated as follows:- "Under-the law "license" is a personal privilege to do some particular act or series of acts on the land without possessing any estate or interest therein, and is ordinarily revocable at the will of the licensor and is not assignable. Thus a license is not a contract between the licensor and licensee but a mere personal permit therefore a license is distinguishable from an "easement", which implies an interest in the land and a "lease," or right to take the profits of land. Whereas a legal right in its strict sense is one which is an ascertainable claim, enforceable before Courts and administrative agencies. In its widest sense, a legal right has to be understood as any advantage or benefit conferred upon the person by a rule of law. Thus it is a right of a party recognized and protected by a rule of law, me violation of which would be a legal wrong done to his interest and respect for which is a legal duty even though no action may actually lie."
7. A license can be revoked under section 60, however, if it is coupled with the transfer of property and such transfer is in force or the licensee acting upon the license has executed work of a permanent character then the same cannot be done.
8. The case of the respondents is that all nurseries situated at National Park Road Area, Chakshazad, Islamabad are being transferred on licenses through open auction/bidding process as a matter of policy and the petitioners are not being discriminated. This Court in case titled "Messrs Mega Sign and others v. CDA and others" (2014 CLC 516) observed as follows:-
11. "The license in question ostensibly confers a right in favour of its holder, but at the same time, it cannot lost sight that the right which was alienated in favour of the petitioners originally belongs to the state and the State being a virtual entity exercised its authority through the public functionary, therefore, whenever a right belonging to the State is going to be alienated, the inventor/public functionary is under obligation to protect at preserve the transparency and to ensure the maximum gain for the public exchequer. In order to achieve the goal, legislature by way of principle as well as delegated legislation has settled the procedure. The pivotal aspect of the said exercise remains that equal opportunity shall be extended to all the potential aspirant, who intend to acquire the State Property, which is being alienated and for achieving this objective it is mandatory for public functionary to invoke such provisions of the statute, which ensure maximum participation of competitors with an object to gain maximum advantage.
13. The grant of license to use the Plot for the purpose for which it was allotted did not confer absolute vested right as the Agreement to Lease was subject to fulfillment of the conditions mentioned therein and completion of the project, revocable as agreed by the Respondent in clause 20 thereof.
14. For what has been discussed above, the impugned orders dated 06-04-1994 and 27-05-2013 passed by the learned Ombudsman and the President, respectively are not legally sustainable.
Consequently, the instant petition is allowed and the impugned orders are, therefore, accordingly set-aside.