' Through this Constitutional petition, the petitioner has challenged the notice dated 22-1-1995 as also the ex parte order dated 7-5-1995 whereby the five-Marla plot subject-matter of this position was cancelled and allotted to the respondent No,3, who thereafter transferred the same in respondent No,4's favour.
2. Learned counsel for the petitioner submits that pursuant to an advertisement given he applied for the plot in question; that he was successful in the draw; that he was intimated by the respondent authority accordingly and in terms of the relevant conditions he deposited all the dues.
In the afore-referred circumstances it was contended that the impugned action cancelling petitioner's plot for non-deposit of the amount (Rs,67,500) in terms of notice dated 22-1-1995 which admittedly was never received by the petitioner, is not tenable.
3. Learned counsel for respondent No,4 who was impleaded as a party on his application has submitted that as the petitioner did not deposit Rs,500 per marla alongwith the application to participate in the draw of ballot for the plot in question he was issued the notice to deposit Rs,67,500 as penalty and as he failed to deposit the same, that plot in question was rightly cancelled by the Multan Development Authority on 7-5-1995, the same was allotted to one Mst.
Mubarik Mai as an exemptee on 28-8-1995 who sold the same on 31-8-1995 to respondent No,.4 who being a bona fide purchaser no exception can be taken to the cancellation/allOtment and the subsequent sale of the same: He further added that the respondent had become an owner prior to the filing of this petition and that since, this writ.Petition is addressed against a notice it is not maintainable. It was lastly argued that the petition has been filed through- general attorney and power of attorney has not been annexed.
4. The learned counsel for the Mutt= Development Authority has defended the impugned action on the grounds that the petitioner was directed to deposit Rs,500 alongwith the application for the plot in question and as he had not deposited the same the M.D.A. Had rightly issued him the notice to deposit the amount in question and on his failure to do so the same was cancelled which order neither reflects any jurisdictional defect nor was against the canons of equity to merit interference under Article 199 of the Constitution of Islamic Republic of Pakistan.
' Heard. Record perused.
6. The only ground mentioned for the cancellation of plot in petitioner's name in the parawise comments submitted by the Multan Development Authority is as under:- ' "It was clearly mentioned in the advertisement that interested application should submit applications alongwith earnest money at the rate of Rs,500 per Marla in the form of call deposit or bank draft. Mr. Ahmad Khan son of Muhammad Nawaz Khan did not deposit earnest money in the form of call deposit or bank draft. He was not eligible to participate in the draw. However, in the draw held on 21-10-1985 he was declared successful and such as he was allotted Plot No,F-312 of 5 Marla size in Housing Scheme Shah Rukne Alam. This irregularity came in the notice in the year 1992 and it was considered appropriate to get the final decision of the Authority on this irregular allotment. Accordingly the matter was placed before the Governing Body of M.D.A. For consideration and decision. The Governing Body of M.D.A. Considered the issue in its 31st Authority meeting held on 7-9-1993 and decide..
' It has further been averred in the comments that:- ' "As per decision of the Governing Body of M.D.A. The writ petitioner is bound to pay penalty at the rate of 50% of the existing reserve price of M.D.A. According to which the petitioner was issued Notice No,300/DD-II/MDA dated 22-1-1995 for the payment of Rs,9,000 per Marla (Reserve price) + 4500 penalty at the rate of 50% Rs,13,500 per Marla within a period of one month."
' It was contended in the comments that:- ' "Due to non-payment, the allotment of plot has been cancelled on 7-5-1995, and reallotted to ex- landowner Mst. Mubarik Mai etc., who has since been transferred this plot to Shah Muhammad son of Jan Muhammad on 31-8-1995."
' So far as the cancellation of the plot allotted for the alleged irregularity is concerned this matter was considered by this Court in several similar petitions which were allowed and the judgment is reported in Muhammad Rafiq v. M.D.A. And others (1997 M LD 3009) wherein it was observed as under:- ' 'In the instant cases the failure of call deposit could disentitle the petitioners to participate in the draw but vice versa they were allowed to participate in the draw and after being succes ful they were allotted plots in the said Housing Scheme and were also allowed to rectify the breach through payment of entire price; were handed over possession; allowed the site plan for construction; and completion certificates were granted to them. Even sale agreement between the allottees and third persons were executed through the Department and after the expiry of ten years the impugned notices are given to the allottees imposing penalty. This conduct of the Department Shows that they have waived their right of forfeiture and are disentitled in law to take further action by imposing a penalty and cancellation of plots when they have expressly allowed the other side to rectify the breach at an earlier stage'."
8. It is not denied that at no stage service could be affected on the petitioner qua the notice which ultimately led to the cancellation of a plot. It was indeed an ex parte order. I have perused the record and note that the address given on the notice was "Ahmad Khan son of Muhammad Nawaz Khan, Mohallah Matimwah, Beroon Pak Gate, Multan" whereas petitioner had shifted to his new address which the Multan Development Authority knew very well and they had even been corresponding with the petitioner for quite sometime on the new address with regard to the payment of the earlier dues which of course were paid. In this connection he has referred to Letter No,2067/EM/MDA, dated 22-3-1990 in which the address given is" Ahmad Khan son of Muhammad Nawaz Khan, Shop No,1, Block-D, General Bus Stand, Multan." Abdul Qayyum Assistant Director M.D.A.
Appearing in Court confirms that the afore-referred address is on record and notices were duly received by the petitioner at the said address. That being so the noting on the order sheet is to the effect that "we have given the notice on the available address. We have no other address of alllottee. "may cancel" is not only against the record but is arbitrary, unjust and dishonest observation. It was on the basis of the afore-referred observation that on 7-5-1995 the then Director Estate Management M.D.A. Passed the following order:- ' "as proposed take possession at site"
' Having taken notional possession behind the back of the petitioner the plot was transferred to one Mst. Mubarik Mai in lieu of her claim for alternate claim and two days after the said allotment this plot was transferred in the name of Shan Muhammad respondent No,4 by way of sale. The manner in which the petitioner's plot was cancelled on 7-5-1995, allotted to Mst. Mubarik Mai on 29-8-1995 and transferred in the name of Shan Muhammad respondent No,4 on 31-8-1995 reflects a hastle on the part of the Multan Development Authority which makes the entire exercise rather dubious. It was not open for the M.D.A. To cancel the plot in the manner in which they did as certain rights had accrued in favour of the petitioner and the same could not have been taken back arbitrarily. The authority which has a power to pass an order has got the power to rescind and vary it but once rights have accrued the said power comes to an end. This was so held by the Hon'ble Supreme Court in Pakistan through Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) and Muhammad Nawaz v. Federation of Pakistan (1992 SCMR 14). This writ petition is, therefore, allowed and the order dated 7-5-1995 cancelling petitioner's plot is hereby set aside.
However, as respondent No,4 appears to be a transferee of the plot from Mst. Mubarik Mai who as per record had an entitlement to get a plot measuring five Marlas and as Abdul Qayyum, Assistant Director of Multan Development Authority admits that certain plots are available for allotment I am persuaded to direct the Director Estate Management, Multan Development Authority to allot alternate plot to respondent No,4 within ten days from his appearance before him. Respondent No,4 shall appear before the Director on 2-11-1998. Considering the expense involved on the bundary wall around the plot and the iron gate installed, petitioner has offered to pay to respondent No,4 a sum of Rs,15,000 which I think would meet the ends of justice. Petitioner shall pay the said payment within two weeks. This petition disposed of in terms noted above.